Calcutta High Court (Appellete Side)
Sri Bijoy Krishna Chandra vs Sri Bishnupada Das & Others on 9 April, 2015
Author: Indrajit Chatterjee
Bench: Subhro Kamal Mukherjee, Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
PRESENT:
The Hon'ble Mr. Justice Subhro Kamal Mukherjee
And
The Hon'ble Mr. Justice Indrajit Chatterjee
F.A. No. 225 of 2014
Sri Bijoy Krishna Chandra
Vs.
Sri Bishnupada Das & Others
For the petitioner : Mr. Syed Nurul Arefin,
For the opposite party : Mr. Hiranmoy Bhattacharyya
Mr. Atanu Chakraborty
Heard On : 06.04.2015
Judgement on : 09.04.2015
Indrajit Chatterjee, J.: This appeal has been directed as against the order
No. 56 dated 20th May, 2014, as passed in other suit No.12 of 2012 which
was previously numbered as Probate Case No. 50 of 2008 as passed by the
learned Additional District Judge, First Court, Paschim Midnapore.
As per the said order the learned Trial Court rejected the petition
dated 3rd of December, 2013, filed by one Bijoy Krishna Chandra, Son of
Late Ananga Mohan Chandra, who was defendant no. 2 in that other suit
to implead him as the plaintiff so that he can proceed with the said
proceeding regarding the same Will after transposing himself as the
plaintiff after converting the probate case into one application for letters of
administration. It may be mentioned that Bishnupada Das, who filed the
said application ultimately abandoned the probate case after he was
examined and partially cross-examined and that Bishunupada Das alleged
in his petition dated 18th of September, 2013, that he was misrepresented
by Bijoy Krishna Chandra to file that probate case and further that he has
been suffering from serious ailments. Vide that impugned order another
application filed by Bijoy Krishna Chandra as filed under Section 151 of
the Civil Procedure Code praying for transposing him as the plaintiff in
that other suit was also rejected.
As per that impugned order, the other suit number stated above and
the proceeding was disposed of without any order as to costs by the
learned Trial Court.
The learned Advocate appearing on behalf of the appellant submitted
by taking us to the decision of this Hon'ble Court in which one of us
(Subhro Kamal Mukherjee, J.) was a party as reported in 2005(1) CHN
Page 27 (Satidas Mukherjee alias S.D Mukherjee deceased and in the
matter of Sudip Mukherjee) wherein the Hon'ble Single Judge held:
i) It is settled law that a Court has got inherent power to take
note of subsequent events and to mould the reliefs on the basis of the
altered conditions to meet out justice. As far as possible the anxiety and
the endeavor of the Court should be to remedy injustice rather than deny
relief to an aggrieved party on pure technical ground.
ii) Since the executor had died before he could prove the Will, the
legatees under the Will are entitled to apply for grant of letters of
administration under Section 232 of the Succession Act, 1925. There is no
period of limitation governing such an application.
iii) I, therefore, allow this application and permit the applicant to
proceed with this application upon conversion of the proceeding into a
proceeding for grant of letters of administration.
In that case before the floor of the High Court, the executor died
before proving the 'Will' and one of the legatees under the 'Will' sought for
leave of the Court to proceed with the said application upon conversation
of the probate proceeding into a proceeding for grant letters of
administration (henceforth called as LOA). In that decision referred to
above, the said prayer was allowed and permission was granted to the
appellant and permitted the applicant to proceed with the said application
on conversation of the proceeding of probate into the proceeding for LOA.
It was submitted by the learned Advocate appearing on behalf of the
appellant that the fact of this case suits with the decision of this Court as
cited above and as such the order passed by the learned Trial Court is fit
to be dismissed and liberty may be given to the appellant to proceed with
the said application by converting it into one LOA.
The fact of this case on which the case was decided by the learned
Trial Court can be stated in brief thus.
That one Ananga Mohan Chandra the predecessor in interest of
Bijoy Krishna Chandra, Binay Krishna Chandra, Lila Bhowmik, Lushi Das
and Mera Sen, executed one Will and appointed Bishnupada Das, his
friend as the executor of the said Will. That Bishnupada Das filed an
application before the District Judge, Midnapore for granting of probate
under Section 276 of the Indian Succession Act in respect of the scheduled
properties as per that Will. The said probate case was numbered as 50 of
2008 which was later on renumbered as other suit no.12 of 2012. It was
further claimed in that application that the said applicant was eager to
handover the properties as per Will to those legatees.
Taking the risk of repetition we may say that it is settled law that
Court has inherent power to remedy injustice rather than deny relief to an
aggrieved party on pure technical ground. Here in this case for some
reason or other, Bishnupada Das, disassociated himself from the said
probate case and as such the beneficiaries cannot be thrown out of the
arena of the legal battle simply because the executor was not willing to
proceed with the application under Section 276 of the Indian Succession
Act. The legatee of a Will has every right to implead him as the petitioner in
an application for LOA because he and other legatees are the actual
beneficiaries.
We do not like to make our judgment further lengthier as the point
of law has been well settled in several decisions. We can refer to a Division
Bench decision of this Court as reported in 51 CWN 917 (Haripada Saha
and Anr. Vs. Gobinda Chanda and others) wherein the Division Bench
observed that the respondents (legatee) has right over the properties left by
the testator and the Court held, "........ It would, we think be sacrificing justice to mere technicality, if we are to set aside the entire proceeding at the present stage, and direct the plaintiffs to proceed afresh. There is undoubtedly a technical defect but it is not a defect which has in any way affected the merits of the case or the jurisdiction of the Court."
Thus, we are of the considered view that the learned Trial Judge should have allowed the prayers made by Bijoy Krishna Chandra. In Santi Swarup Sarkar versus Pradip Kumar Sarkar and others (AIR 1997 Cal
197) it was held by this Court, the Court quoted the observation of the Trial Judge "If, it is competent for a legatee to file fresh application for grant of letters of administration in a case where the executor dies during the during the pendency of a probate proceeding. I wonder why a legatee, already on a record in a probate proceeding, as in the instance case before us, would not be competent to continue the proceeding for grant of letters of administration in place grant of probate, by transposing him as a plaintiff in the suit, treating the relevant proceeding to have been instituted from the date of filing the relevant applications for transposing him as a plaintiff and for amended of the plaint for the said purpose. We like to add here that not only in a case death of the executor this principle is to be followed, but it is also to be followed in a case in which the executor is not willing to file any application under Section 276 of the said Act, or that he has become incapable of filing such application for any reason whatsoever.
In this connection the decision of Madras High Court as reported in AIR 1963 Madras 456 (Govinda M Asrani Vs. Jayram Asrani & Anr.) may be quoted below as such "To put it in other words, the proceedings taken out the proceeding taking out either for grant of probate or letters of administration with the Will annexed are in the interested of the legatees and the question involved in such proceeding will be the same, namely, about the truth genuineness of the Will. In both the cases it will be open to a person interested to intervene. Final adjudication as to the genuineness of the Will in both cases will operate as a judgment in rem."
We, therefore, allow this appeal and in doing so we also allow the prayers made by Bijoy Krishna Chandra in his petition dated 3rd December, 2013 under Section 232 of the Indian Succession Act and also his other petition dated 3rd of December, 2013, made under Section 151 of the Code of Civil Procedure. The impugned order is hereby set aside. The learned trial Court is directed to transpose Bijoy Krishna Chandra as the plaintiff and to convert the proceeding for granting of probate into one letters of administration.
As the appeal has been disposed of, the CAN 8086 of 2014 has become infructuous and it is dismissed as such without cost.
The Trial Court is requested to dispose of the application for the letters of administration as expeditiously as possible preferably by September, 2015.
We make no order as to costs.
Department to supply urgent certified copies to the parties as per rules.
(Indrajit Chatterjee, J.) I agree:
(Subhro Kamal Mukherjee, J.)