Calcutta High Court (Appellete Side)
Smt. Ashoka Dhar & Anr vs Dr. Partha Banerjee & Ors on 19 August, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 2762 of 2005
Smt. Ashoka Dhar & anr.
Versus
Dr. Partha Banerjee & ors.
with
C.O. 29 of 2008
and
C.A.N. 1634 of 2011
Smt. Ashoka Dhar & anr.
Versus
Dr. Ramesh Chandra Dhar & ors.
For the petitioners : Mr. Sabyasachi Bhattacharya. Advocate
Mr. Animesh Dhar, Advocate
Mr. Dibyendu Chatterjee, Advocate
For the opposite parties 1 to 3 : Mr. Bidyut Kumar Banerjee, Sr. Advocate
in C.O. 2762 of 2005 Ms. Shila Sarkar, Advocate
For the opposite parties 2 to 4 : Mr. Subir Sanyal, Advocate
in C.O. 29 of 2008 Mr. Ratul Biswas, Advocate
For the opposite party no.4 : Mr. Hiranmoy Bhattacharya, Advocate
in C.O. 2762 of 2005 Mr. Apratim Bhattacharya, Advocate
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Heard on : April 4 and April 29, 2011
Judgment on : August 19, 2011
1. These two revisional applications arise out of orders passed by the
trial Courts in independent proceedings but have been heard
together in pursuance of an order dated July 3, 2008 of the Hon'ble
the Chief Justice and, accordingly, shall stand disposed of by this
common judgment and order.
2. The petitioners in both the applications are common. The first
petitioner is the widow of Ashim Kumar Dhar (since deceased)
(hereafter Ashim), whereas the second petitioner is the son of the
first petitioner, born in her wedlock with Ashim.
3. Subject matter of challenge in C.O. No. 2762 of 2005 (hereafter the
former application) is order no.12 dated July 29, 2005 passed by the
learned Chief Judge, City Civil Court in L.A. Case No. 69 of 2004. In
C.O. No. 29 of 2008 (hereafter the latter application), order no.142
dated December 18, 2007 passed by the learned Judge, 10th Bench,
City Civil Court at Calcutta in Title Suit No. 1884 of 1991 is under
challenge.
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4. The material facts relevant for decision on the applications are noted
first.
5. A certain Nanibala Dhar (since deceased) (hereafter Nanibala) by a
will dated December 2, 1965 had bequeathed all her properties to
Ashim by appointing him as the sole executor. After the death of
Nanibala in 1979, Ashim, as the sole executor, had applied on July
28, 2004 for grant of probate of her will before the learned Chief
Judge, City Civil Court at Calcutta, giving rise to Probate Case
No.69 of 2004.
6. During pendency of the said probate case, Ashim passed away on
November 9, 2004. The petitioners being the heirs of Ashim, who
was the sole beneficiary of the will executed by Nanibala, filed an
application before the Court for converting the said probate case
into a case for grant of letters of administration. The conversion
was duly allowed.
7. In terms of an order dated 15th March, 2005, a notice was published
in the issue dated March 23, 2005 of the Bengali daily "Bartaman"
for general citation regarding the letters of administration case.
Interested parties were called upon to lodge objection by 8th April,
2005 failing which the said case would proceed ex parte.
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8. Consequent to publication of the said notice, Dr. Partha Banerjee
(hereafter Dr. Partha), Smt. Aparna Banerjee (hereafter Aparna) and
Smt. Sanjukta Banerjee (hereafter Sanjukta) filed an application
before the trial Court praying for direction upon the petitioners to
produce the will executed by Nanibala for inspection and/or to
deliver photocopy thereof to them. One other application claiming
similar relief was filed by Sri Rajesh Dhar (hereafter Rajesh),
claiming himself to be the constituted attorney of one Dr. Ramesh
Chandra Dhar (hereafter Dr. Ramesh). Dr. Partha, Aparna, Sanjukta
and Rajesh shall hereafter be referred to as the applicants.
9. In their objection dated 7th April, 2005, Dr. Partha, Aparna and
Sanjukta claimed that Nanibala while being absolutely seized and
possessed of premises no.79/4G, Raja Naba Krishna Street,
Kolkata-700 005 (hereafter the said premises) had created a trust in
respect thereof by a registered deed of settlement dated 28th
December, 1972, appointing thereby her adopted son Dr. Ramesh
as the sole trustee with liberty to sell the said premises; that, by
virtue of a registered deed of conveyance dated 31st May, 2004, the
said Dr. Ramesh, with the consent of the beneficiaries, sold and
transferred all right, title and interest in the said premises to Dr.
Partha, Aparna and Sanjukta and put them in possession of the
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entire first and second floors as also part of ground floor of the said
premises for valuable consideration mentioned therein; that on
noticing the publication in the "Bartaman", Dr. Partha, Aparna and
Sanjukta considering themselves to be interested and necessary
parties intended to lodge their objections in respect of the alleged
will of Nanibala which, according to them, is a fabricated document;
that Dr. Ramesh during his tenure as trustee had instituted T.S. No.
1884 of 1991 against his licensee, the said Ashim, upon revocation
of licence; that the suit is pending before the learned Judge, 10th
Bench, City Civil Court wherein Dr. Partha, Aparna and Sanjukta
have filed an application under Order 22 Rule 10, Civil Procedure
Code (hereafter the Code) for being added as parties; and that, in
the circumstances, the petitioners ought to be directed to produce
the alleged will for inspection and/or to deliver photocopy thereof for
filing effective objection to the aforesaid letters of administration
case and to contest it.
10. In his objection dated 8th April, 2005, Rajesh claimed himself to be
the constituted attorney of Dr. Ramesh and while expressing
interest to contest the letters of administration case prayed for
direction of the petitioners to supply the copy of the will and copy of
the application for granting letters of administration for filing an
objection thereagainst.
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11. The petitioners lodged objections against the aforesaid two
applications. According to them, the applicants were strangers
having no relation with Nanibala in any manner whatsoever and,
therefore, have no interest in the properties that were bequeathed in
favour of Ashim by her and thus they are not entitled in law to claim
any right either to inspect the will or to pray for supply of photocopy
thereof. Accordingly, they prayed for rejection of the two
applications.
12. The learned Chief Judge considered the applications. By order no.12
dated July 29, 2005, the objections were disposed of. He was of the
view that opportunity to inspect the will would serve the purpose of
the applicants and hence, while rejecting their prayer for supply of
photocopy of the will, the petitioners were directed to file the will in
original before the Court positively by 18th August, 2005 and if the
same is filed on that date, the learned advocates for the applicants
were given the liberty to inspect the same in the presence of the
dealing assistant.
13. In connection with T.S. No. 1884 of 1991 instituted by Dr. Ramesh,
referred to above, the petitioners after demise of Ashim had filed an
application under Order 22 Rule 4 read with Section 151 of the
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Code praying for their substitution in his place. The application was
allowed by the trial Court and the petitioners have been substituted
as defendants 1 and 2 in the suit. During pendency of the suit, Dr.
Partha, Aparna and Sanjukta had applied for their addition as
plaintiffs 2, 3, and 4, as noticed above, and the said application was
allowed by the trial Court with liberty to the petitioners to file
additional written statement. After their addition as plaintiffs, Dr.
Partha, Aparna and Sanjukta intended to contest an application
under Order 39 Rules 1 & 2 of the Code filed by the petitioners.
There was reference in the said application to the will of Nanibala
and hence they filed an application under Order 11 Rule 15 of the
Code for inspection of the will executed by her. The petitioners filed
a written objection thereto. Upon hearing the parties, the learned
Judge by order no.142 dated 18th December, 2007 allowed the said
application under Order 11 Rule 15 of the Code and directed the
petitioners to furnish to them copy of the will and/or to show the
same in open Court in presence of the bench clerk and the learned
lawyers for the parties by 10th January, 2008.
14. It is noted that in C.O. No. 2762 of 2005, Dr. Partha, Aparna,
Sanjukta and Rajesh were originally impleaded as the opposite
parties. Dr. Ramesh was impleaded as the fifth opposite party in
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terms of an order passed by a learned Judge of this Court on 2nd
September, 2009.
15. Despite attempts, Dr. Ramesh could not be served copies of the
revisional applications. The parties including Rajesh were even not
aware as to whether he is alive. Be that as it may.
16. Mr. Sabyasachi Bhattacharya, learned advocate representing the
petitioners while arguing the former application urged that the
learned Chief Judge erred in passing the order impugned
overlooking the fact that no power of attorney was produced on
behalf of the applicants. As a corollary to this point, it was argued
that the power of attorney ought to have been registered in terms of
the provisions contained in the Registration Act and since the power
of attorney had not been produced, there was no scope for the
learned Chief Judge to ascertain whether it was registered or not. It
was contended that the applicants have no caveatable interest and,
therefore, cannot seek inspection of the will. Finally, it was his
contention that the trust deed had also not been produced. Based
on the above, it was submitted that no prima facie case was
established to show caveatable interest of the applicants and,
therefore, the order impugned is liable to be set aside by this Court
in exercise of revisional jurisdiction.
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17. While assailing the order dated December 18, 2007 passed by the
learned Judge impugned in the latter application, Mr. Bhattacharya
contended that the learned Judge acted illegally and with material
irregularity in not complying with provisions contained in Rules 16
to 20 of Order 11 of the Code and thereby occasioned grave failure
of justice.
18. Mr. Banerjee, learned senior advocate representing Dr. Partha,
Aparna and Sanjukta in the former application contended that in
terms of Section 276 of the Succession Act, 1925 (hereafter the Act),
the executor of a will applying for grant of probate must annex the
will with the application, with a statement that the will so annexed
is the last will and testament of the testator and this being a
mandatory requirement of the statute has to be complied with. In
support of his contention, Mr. Banerjee relied on the decision of a
learned single Judge of this Court reported in AIR 2005 Calcutta 1
[In the matter of: Madhav Prasad Birla (D)] wherein it was ruled that
when grant of probate is sought to be asked in relation to a
testamentary instrument, the competent Court of law cannot
entertain any application primarily without having received the
original thereof. Reference was also made to provisions contained in
Section 283 of the Act, which permits participation in the
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proceedings before grant as prayed for. According to him, the
impugned order requires nothing more than compliance with the
requirements of the statute and once the will in original becomes
part of the Court's records, it is competent to allow inspection of its
records to the interested parties. It was further contended that by
passing the impugned order dated 29th July, 2005, the learned Chief
Judge recognized the right of an interested party to have inspection
of the Court's records on the basis of a registered deed of sale.
19. It was further contended that the probate Court is not required, at
this stage, to enter into questions of title but if a party could show a
slight interest or a bare possibility of an interest in the estate of
Nanibala, that would entitle such party to entire caveat in the
probate proceedings. Reliance in this connection was placed on the
decisions reported in (2008) 10 SCC 489 (G. Gopal v. C. Baskar &
ors.) and 2002 (1) CHN 303 (Binoy Krishna Banerjee & anr. v.
Sadhan Ranjan Banerjee).
20. While concluding, Mr. Banerjee submitted that the order impugned
does not suffer from any error of law and the learned Chief Judge
having acted within jurisdiction, no interference is called for.
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21. Mr. Sanyal, learned advocate representing Dr. Partha, Aparna and
Sanjukta in the latter application contented that Nanibala and her
husband had no issue; Nityananda Dhar, brother in law of Nanibala
(the brother of Nanibala's husband) had six children; Dr. Ramesh
and a certain Sudhir Dhar were two out of the said six children of
Nityananda, and Ashim is the son of Sudhir; the will was allegedly
executed in 1965, whereas Nanibala created trust by way of a
registered deed of settlement in 1972, appointing Dr. Ramesh as the
sole trustee of the trust property; Dr. Ramesh filed suit for eviction
of Ashim from the said premises in 1991; and after purchase of the
said premises in 2004, Dr. Partha, Aparna and Sanjukta have been
added as plaintiffs. More than 13 years after institution of the suit
for eviction, the probate case was filed, which is nothing but a mala
fide attempt on the part of Ashim to grab the said premises. After
being added as co-plaintiffs, Dr. Partha, Aparna and Sanjukta filed
an application under Order 11 Rule 15 of the Code for supply of
copy of the will on 15th May, 2005. It is contended by him that since
interest in the suit premises has been derived by the registered deed
of sale executed by and between the constituted attorney of Dr.
Ramesh on the one hand and Dr. Partha, Aparna and Sanjukta on
the other, they are entitled to inspect the will allegedly executed by
Nanibala and, therefore, the trial Court rightly passed the order
under challenge which does not require any interference.
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22. Mr. Hiranmoy Bhattarcharya, learned advocate representing Rajesh
supported the contentions advanced by Mr. Banerjee and Mr.
Sanyal.
23. I have heard learned advocates for the parties and perused the
materials on record.
24. Before I proceed further, it would be proper to make a survey of the
decisions of the Supreme Court in relation to 'caveatable interest'
and under what circumstances a non-party could be allowed to
intervene in a proceeding for grant of probate or letters of
administration.
25. In G. Gopal (supra), cited by Mr. Banerjee, the learned Judges of the
Supreme Court were of the view that the respondents, who were
grand children of the testator claiming interest in his estate on the basis of a settlement deed executed by the testator himself, which admittedly was revoked later on, had caveatable interest in the estate of the testator and, therefore, were entitled to notice before the final order is passed. Their Lordships opined that "(I)t is well-settled that if a person who has even a slight interest in the estate of the testator is 13 entitled to file caveat and contest the grant of probate of the will of the testator".
26. Prior to the decision in G. Gopal (supra), another bench of two learned Judges of the Supreme Court in its decision reported in (2008) 4 SCC 300 (Krishna Kumar Birla v. Rajendra Singh Lodha & ors.) had the occasion to observe that a caveatable interest is an interest in the estate of the deceased testator which may be affected by grant of probate of the will of the deceased. The test required to be applied is : Does the claim of grant of probate prejudice the right of the caveator because it defeats some other line of succession in terms whereof the caveator asserted his right? It was further held that what would be the caveatable interest would depend upon the fact situation obtaining in each case and no hard-and-fast rule, as such, could be laid down. In paragraph 109 of the decision, Their Lordships held :
"It is in that backdrop the question which is required to be posed is : Did the Calcutta High Court or the other High Court opine that even a busybody or an interloper having no legitimate concern in the outcome of the probate proceedings would be entitled to lodge a caveat and oppose the probate? The answer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busybody or an interloper is found to be entitled to enter a caveat and oppose grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act would have been differently worded. Such an interpretation would lead to an anomalous situation. It is, therefore, not possible for us to accede to the submission of the learned counsel that caveatable interest should be construed very widely."14
27. These two decisions were considered by another bench of two learned Judges of the Supreme Court. In the decision reported in (2010) 5 SCC 157 (Jagjit Singh & ors. v. Pamela Manmohan Singh), the learned Judges were of the view that conflicting views had apparently been expressed by coordinate benches on the interpretation of the expression "caveatable interest". The learned Judges felt that the issue deserves to be considered and decided by a larger bench and, accordingly, directed the registry to place the matter before the Hon'ble the Chief Justice for appropriate order.
28. Having regard to the aforesaid decision in Jagjit Singh (supra), it can safely be concluded that there is no declaration of law on the point by the Supreme Court that could be regarded as binding on me as precedent under Article 141 of the Constitution and it would be unsafe to proceed acknowledging the pronouncement in either Krishna Kumar Birla (supra) or G.Gopal (supra) as the settled law. It would, however, not preclude me to decide the issue raised herein based on the ratio decidendi of other decisions considering Section 283 of the Act.
29.Reference may be made to the decision of the Supreme Court reported in (2002) 1 SCC 33 (Ghulam Quader v. Special Tribunal) and the 15 Bench decisions of this Court reported in AIR 1932 Cal 734 (Nabin Chandra Guha v. Nibaran Chandra Biswas), 49 CWN 713 (Haripada Saha v. Ghanasyam Saha), 1983 (1) CLJ 169 (Saral Patwar v. Smt. Sushila Dassi) and Binoy Krishna Banerjee (supra).
30.In Ghulam Quader (supra), the Supreme Court reiterated the law that grant of probate conclusively establishes valid execution of the will and appointment of the executor but does not establish more than the factum of the will, as the probate Court does not decide question of title or of the existence of the property mentioned therein.
31.In Nabin Chandra Guha (supra), the Bench noted that the words in Section 283 of the Indian Succession Act, 1925 that "all persons claiming to have any interest in the estate of the deceased" have from time to time been explained by judicial decisions. Applying the law laid down in various decisions, it was held by the Bench that a purchaser from an heir after the death of the testator has a locus standi; and to have it, it is not necessary for the objector to show that he had an interest in the estate at the time of the testator's death.
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32.While holding that the trial Court was not justified in refusing the petitioners an opportunity to contest the probate proceedings, the Bench in Haripada Saha (supra) ruled that "(I)t is well-settled that any interest, however, slight, and even the bare possibility of an interest is sufficient to entitle a person to enter caveat in a probate proceeding".
33.In Saral Patwar (supra), the Bench clearly laid down the law, on interpretation of Section 283(1) of the Act, that the expression "claiming to have any interest in the estate of the deceased"
appearing therein is wide enough to include persons having possibility of an interest and in case his interest is such as is or is likely to have prejudicially or adversely affected by the grant, a person would be qualified to receive citation.
34.The view expressed in the earlier Bench decisions noted above has been echoed in the decision in Binoy Krishna Banerjee (supra).
35.Notwithstanding the fact that a larger Bench of the Supreme Court might be in seisin of the issue that has been referred to it by the learned Judges in Jagjit Singh (supra), nothing precludes me to decide this application being guided by the Bench decisions of this Court, which are binding on me. Although in Krishna Kumar Birla (supra) 17 it was held that the view expressed in Nabin Chandra Guha (supra) is not entirely correct, the other Bench decisions referred to above interpreting Section 283 of the Act in wide terms went unnoticed and, therefore, there could be no impediment to apply the law laid down therein [particularly when the propositions of law in paragraph 86 of the said decision in Krishna Kumar Birla (supra) stand substantially diluted by the observations in paragraph 103 thereof].
36.Here, the alleged transfer of the said premises by way of sale occurred nearly 13 years before institution of the probate/letters of administration case and Dr. Partha, Aparna and Sanjukta have questioned the will itself in their application filed in response to the notice. Whatever be the worth of the allegations made by them, it cannot be said that they have absolutely no interest in the estate of the deceased. The purchase that they have made stands the risk of being affected if the terms of the will were to be made effective.
37.Mr. Banerjee is right in his contention that the application for grant of probate filed by Ashim ought to have been accompanied by the will of Nanibala, in original. The decision in Madhab Prasad Birla (supra), upon construing Section 276 of the Act, is an authority for the proposition that excepting cases under Sections 237, 238 and 18 239 of the Act, an application for probate or for grant of letters of administration has to be filed with the will in original, if available, and that such requirement is mandatory and the Court cannot dispense such requirement under any circumstance. The direction for filing the original of the will executed by Nanibala by part of the impugned order dated 29th July, 2005 cannot be faulted at all.
38.Now, the question that is to be addressed is whether the applicants are entitled to inspection thereof. Mr. Banerjee is again right in his contention that Dr. Partha, Aparna and Sanjukta by dint of the registered deed of sale by which right, title and interest in respect of the said premises has been transferred to them have been able to demonstrate sufficient interest to contest the case for grant of letters of administration and, therefore, they are entitled to take inspection of the will, which would form a part of the Court's record once the direction in the order dated 29th July, 2005 is complied with. The right to take inspection would carry with it the right to take notes therefrom and I am of the considered view that the grounds urged by Mr. Bhattacharya to have the said order set aside are not legal, valid, proper and tenable to deny Dr. Partha, Aparna and Sanjukta the right to take inspection. Whether the power of attorney executed by Dr. Ramesh in favour of Rajesh is in existence or ought to have been registered or not and further whether at all Nanibala created a trust or not are questions not required to be answered by this Court while examining 19 propriety of the orders impugned. It has been ascertained in course of hearing that the petitioners have instituted a separate suit (T.S. No. 1238 of 2004), which is pending on the file of the learned Judge, 10th Bench, City Civil Court against Dr. Ramesh and others. The questions urged by Mr. Bhattacharya in all likelihood would come up for decision in such suit and, hence, no opinion is expressed.
39. Rajesh being the constituted attorney of Dr. Ramesh, the transferor, in my view, is similarly entitled to inspect the will.
40.I am of the considered view that by passing the order impugned, the learned Chief Judge has not acted beyond the bounds of his authority or has not passed a perverse order or has not acted in flagrant violation of the fundamental principles of law and justice so as to warrant interference in exercise of power conferred by Article 227 of the Constitution of India.
41. I, therefore, find no merit in the former application. C.O. 2762 of 2002, accordingly, stands dismissed.
42. In so far as the latter application is concerned, it is true that the learned Judge disposed of the application under Order 11 Rule 15 of the Code dated May 5, 2005 without compliance with the requirements of the 20 statute. But considering the fact that C.O. 2762 of 2002 stands dismissed, as a result whereof the applicants would have the liberty of taking inspection of the will, I do not feel inclined to disturb their entitlement and to pass any further order on the latter application except that the direction for showing the will in the presence of the bench clerk stands set aside and that the applicants shall be entitled to file their respective written objections to the injunction petition dated 30th March, 2006 filed by the petitioners within three weeks from the date of inspection of the will. The learned Judge shall, thereafter, proceed to dispose of the application for injunction as well as the suit, as early as possible. C.O. 29 of 2008 stands disposed of accordingly.
43.In view of the aforesaid order, CAN 1634 of 2011 also stands disposed of.
Photocopy of this judgment and order, duly counter-signed by the Assistant Court Officer, shall be retained with the records of C.O. 29 of 2008.
Urgent photostat certified copy of this judgment and order may be furnished, if applied for, to the applicant as expeditiously as possible.
(DIPANKAR DATTA, J.)