Calcutta High Court (Appellete Side)
Smt. Biva Rani Biswas vs Rabindra Nath Ghosh Alias on 7 January, 2020
Author: Biswajit Basu
Bench: Biswajit Basu
1 (19) 07.01.2020
(p.jana) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION CO No. 4316 of 2019 Smt. Biva Rani Biswas
-versus-
Rabindra Nath Ghosh alias Rabindra Nath Das Ghosh & ors.
Mr. Srijib Chakraborty, Ms. Sudeshna Basu Thakur, ... for the petitioner.
Mr. Debanik Banerjee, ... for the opposite party no. 1.
Mr. Shiba Prasad Mukherjee, Mr. Debanjan Mukherjee, Mr. Anirban Roy Chowdhury, .... for the opposite party no. 2 Affidavit of service filed in Court today be kept with the record. The opposite party no. 1 is one of the named executors of the alleged last Will and testament of one Smt. Gouri Bala Das Ghosh. The said opposite party on the death of the testatrix applied for grant of the probate of the said Will which being objected became contentious and is now pending before the 10th Court of learned Additional District Judge at Alipore, being Original Suit No. 05 of 2014.
The opposite party no. 1 on September 03, 2019 filed an application in the said suit praying his discharge from the office of the executor on the ground of his illness.
The son of the said opposite party no. 1, Shri Krishnendu Ghosh also filed two applications in the said suit on September 03, 2019.
2The said son of the opposite party no. 1 by one of the said applications prayed that he may be permitted to proceed with the said suit as plaintiff and by the another application he prayed for conversion of the said suit from probate suit to a suit for grant of letters of administration.
The learned Trial Judge by the order impugned has allowed all the three applications. The defendant no. 5 of the said suit aggrieved by the part of the order whereby the learned Trial Judge has permitted the son of opposite party no. 1 to continue the suit as plaintiff, has preferred the instant revisional application under Article 227 of the Constitution of India.
The executor possesses a personal right as such his office is not heritable, moreover the executor in the instant case is still alive, therefore, his son is not entitled to continue the suit as plaintiff.
The part of the order impugned whereby the application of the son of the opposite party, who has been subsequently added as opposite party no. 9 in the present revisional application to proceed with the suit as plaintiff has been allowed is set aside, consequently the part of the said order whereby the said suit has been converted into a suit for grant of letters of administration is also set aside.
Mr. Debanik Banerjee, learned counsel appearing on behalf of the opposite party no. 1, submits that the only surviving executor, the opposite party no. 1 herein because of his serious illness, prayed for his discharge from the office of the executor allowing his son to continue with the suit but he has no intention to renounce the office of the said executorship. On the contrary he is still willing to discharge his obligation as executor.
The opposite party no. 1 being the sole surviving executor is the only competent person to apply for the grant of probate of the said Will, the suit filed by him for the purpose of said grant 3 cannot be allowed to lapse only because he is unable to take day to day steps in the suit due to his illness.
The opposite party no. 1 can seek appropriate order from the Court dispensing with his personal appearances before the Court on valid grounds unless such appearance is completely unavoidable.
The opposite party no. 1 therefore granted liberty to apply before the learned Trial Judge seeking modification of the part of the order impugned whereby his prayer for discharge from the office of the executorship has been allowed.
With the above, CO 4316 of 2019 is disposed of. No order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
(Biswajit Basu, J.)