Calcutta High Court
For The vs Sarjan Singh & Ors on 8 March, 2024
Author: Sugato Majumdar
Bench: Sugato Majumdar
OD - 16
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
IA NO. GA/1/2023
In PLA/49/2001
IN THE GOODS OF SHIBANANDA SARKAR
BEFORE:
THE HON'BLE JUSTICE SUGATO MAJUMDAR
Date: 8th March, 2024
Appearance:
Mr. Krishnendu Bera, Adv.
Ms. Debolina Chakraborty, Adv.
...for the Petitioner.
Mr. Sarosij Dasgupta, Adv.
Mr. Samrat Mukherji, Adv.
Ms. Dakshayani Basu, Adv.
Mr. Rik Mukherjee, Adv.
...for the Respondent.
The Court: GA 1 of 2023 is filed by the Petitioner Mallika Sarkar Kapoor praying for revocation of grant of letter of administration in respect of the estate of deceased Shibananda Sarkar.
Shibananda Sarkar, since deceased, was the brother of the present Petitioner. The said Shibananda Sarkar died intestate as bachelor on 29th January, 2000. At the time of death his father Ranjit Kumar Sarkar was alive who is the father of the present Petitioner too, since the deceased was brother of the present Petitioner. 2
On death of Shibananda Sarkar, his father Ranjit Kumar Sarkar made an application in this Court for grant of letter of administration. This Court granted letter of administration in respect of the estate of the deceased on 01.03.2001 and the same was issued on 06.07.2001.
It is contended in the present application that the grant was obtained by Ranjit Kumar Sarkar, the father of the deceased as well as the present Petitioner suppressing the fact that the present Petitioner is also a legal heir of the deceased Shibananda Sarkar. It was contended in the application for grant that except Ranjit Kumar Sarkar, there was no other legal heir of the deceased Shibananda Sarkar. No citation was issued to the present Petitioner in the proceeding for grant of letter of administration. According to the Petitioner the grant of the letter of administration was obtained by deliberate suppression of fact and by practicing fraud upon this Court.
The present Petitioner came to know of the grant for the first time on 10th August, 2019 from the summons of the Title Suit No. 632 of 2019 filed by the second wife of Ranjit Kumar Sarkar, Smt. Somali Sarkar being the step mother of the present Petitioner and by her step sister Mayami Srivastava. This suit was filed in the Court of the 5th Civil Judge, Senior Division at Alipore.
The present Petitioner was all along in touch with the Learned Lawyer for tracing out the record of the original grant. The husband of the present Petitioner had been suffering injury for which he was hospitalized repeatedly for operation and treatments. After convalescing of her husband and discharge from the hospital on 11.01.2023, the present Petitioner made contact with her Learned Lawyer. The husband of the present Petitioner was cured in the 1st week of July, 2023. Thereafter, 3 the instant application was filed. The Petitioner prays for condonation of delay along with prayer for revocation of the grant.
Affidavit-in-Opposition was filed on behalf of Somali Sarkar. It is contended firstly, that the present application is filed wrongly interpreting the provisions of the Hindu Succession Act, 1956 as well as the Indian Succession Act, 1925. The present Petitioner could not have any right, title or interest in the property or estate of the deceased as the present Petitioner was not a legal heir and successor of the deceased. Secondly, it is contended that the present application was filed after lapse of about 22 years since the grant. The present Petitioner was all along aware of the outcome of the grant of letter of administration. The present Petitioner is a beneficiary of rent being collected from the tenants occupying the premises being 50E, Hazra Road, Kolkata - 700019, which originally belonged to the deceased Shibananda Sarkar. On the strength of the letter of administration, Ranjit Kumar Sarkar became entitled to collect rents. On demise of the said Ranjit Kumar Sarkar, to whom the grant was allowed, the present Petitioner along with the answering respondent and her daughter became beneficiary. Knowledge of the Petitioner was palpably clear from the fact that Ranjit Kumar Sarkar mutated his name in the records of Kolkata Municipal Corporation. The answering Respondent denied that the grant was defective and other allegations raised in the present Petitioner. According to the answering Respondent the present Petition is liable to be dismissed with exemplary cost.
The Learned Counsel appearing for the present Petitioner argued, referring to the provisions of the Hindu Succession Act, 1956, that the present Petitioner is one of the legal heirs and successors of the deceased Shibananda Sarkar. It is also argued that the Petitioner came to know about the grant only on 10.08.2019. Delay in filing 4 the present petition is explained. Therefore, according to the Learned Counsel, the petition should succeed. The Learned Counsel referred to a Division Bench judgment of this Court Deep Narayan Singh & Ors. Vs. Sarjan Singh & Ors. [(2002) SCC OnLine Cal 408] in his support.
Per contra, the Learned Counsel for the answering Respondent argued that delay of 22 years is not explained. The application is clearly barred by limitation. It is further argued, with reference to the provisions of the Hindu Succession Act, 1956, that the present Petitioner is not a legal heir of the brother in presence of father. It is also submitted that the present Petitioner had full knowledge of the grant but delayed for about 22 years in preferring this application. Referring to a judgment of the Supreme Court of India, Swaminathan & Ors. Vs. Alankamony (Dead) through Lrs. [2022 LiveLaw (SC) 276] it is submitted that no "just cause" exists to revoke the grant. The Learned Counsel also referred to a Division Bench judgment of this Court Shri Arun Chandra Dey Vs. Shri Debasish Ghosh & Ors. (F.A 110 of 2004) in support of his contention.
I have heard rival submissions.
Section 8 of the Hindu Succession Act, 1956 provides with devolution of interest of a male Hindu dying intestate. Clause (b) of the section provides that if there is no heir of Class I then the property would devolve upon the heirs being the relatives specified in Class II of the Schedule. Both the present Petitioner and the father of the deceased belonged to Class II heir. Section 9 of the Act states:
"9. Order of succession among heirs in the Schedule.―Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be 5 preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession."
Therefore, in view of the clear provisions of the Act, a sister cannot succeed the estate of a male Hindu dying intestate and bachelor, in absence of any Class I heir, along with or to the exclusion with the father. Therefore, contention of the Petitioner that she is one of the legal heirs of his brother holds no ground. Therefore, the original application for grant of letter of administration cannot be said to be filed suppressing the fact that the present Petitioner is an heir. This allegation or contention does not furnish a ground to revoke the grant.
The letter of administration was granted on 01.03.2001 and the same was issued on 06.07.2001. It is averred in the present application that the grant came to the knowledge of herself on 10.08.2019. The deceased was the brother of the present Petitioner. The property belonged to her family member. Nothing is said as to why she was unaware of the administration of the estate of the deceased. It is not the case of the present Petitioner that she stayed away from the family or had no means to ascertain administration and management of the estate of the deceased. Since the properties are family properties belonging to a member of the family, she must have means to know the administration and management of the estate of the deceased. It cannot be assumed that she had no knowledge about devolution of interest of the deceased.
Question of limitation on revocation of a grant was considered by the Three Judges' Bench of the Supreme Court of India in Ramesh Nivrutti Bhagwat Vs. Dr. Surendra Manohar Parakhe [(2020) 17 SCC 284]. The Bench considered and approved the ratio of the judgment passed by the Supreme Court of India in 6 Lynette Fernandes Vs. Gertie Mathias [(2018) 1 SCC 271]. In Lynette Fernandes's case, it was observed:
"19. One must keep in mind that the grant of probate by a competent court operates as a judgment in rem and once the probate to the will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate."
With reference to the above observation, the Three Judges' Bench of the Supreme Court of India in Ramesh Nivrutti's case (supra) held that the above observation dealt with the precise issue of the period of limitation applicable to an application for cancellation of a probate or letters of administration. With such observation, the Bench observed that the Petition for revocation, in that case, was barred by limitation. Coming to the case in hand, this application was filed after lapse of about 22 years from the date of grant of the letter of administration. Clearly, the present application is barred by the law of limitation in terms of Article 137 of the Limitation Act, 1963. Accordingly, the present application stands dismissed.
GA 1 of 2023 stands disposed of accordingly.
(SUGATO MAJUMDAR, J.)