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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.)