Calcutta High Court
Rajendra Singh Lodha vs Ajay Kumar Newar & Ors on 4 February, 2009
Author: Biswanath Somadder
Bench: Surinder Singh Nijjar, Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
G.A. No. 3541 of 2008
G.A. No.3193 of 2008
A.P.O.T. No. 399 of 2008
with
PLA No.204 of 2004
T.S. No. 6 of 2004
Rajendra Singh Lodha
Versus
Ajay Kumar Newar & Ors.
For the Appellant : Mr. Anindya Mitra, Mr. Pratap Chatterjee, Sr. Advocates
With Mr. Abhrajit Mitra, Mr. Debanjan Mondal, Mr. S. Trivedi, Mr. J.
Chowdhury, Mr. R. Bhattacharya & Mr. S. Mukherjee, Advocates.
For Respondent No.1 (a) : Mr. Balai Roy, Advocate General with Mr. S. Sarkar, Senior
Advocate For Respondent No.2 (a) : Mr. Bimal Kr. Chatterjee, Mr. Pradip Dutta, Sr. Advocates with Mr. Ravi Kapoor, Advocate.
For Respondent No.1 (d) : Mr. Hirak Mitra & Mr. Ajoy Kr. Chatterjee, Sr. Advocates with Mr. P. Ghosh, Mr. D. Sen, Mr. P. Banerjee & Mr. M.K. Seal, Advocates. For Respondent No.1 (c) : Mr. P. K. Das, Sr. Advocate with Mr. K.N. Mukherjee, Sr. Advocate For Respondent No.1 (b) : Mr. S. Pal, Sr. Advocate with Ms. Vineeta Maheria, Advocate BEFORE :
The Hon'ble Chief Justice Surinder Singh Nijjar And The Hon'ble Justice Biswanath Somadder Date : 4th February, 2009 The Court : It is recorded in the impugned order that his Lordship, the Hon'ble Mr. Justice K.J. Sengupta has been hearing the Testamentary Suit being Testamentary Suit No.6 of 2004 (previously P.L.A. No.204 of 2004) (in the goods of Priyamvada Devi Birla also known as Priyamvada Birla ) (Rajendra Singh Lodha vs. Ajay Kumar Newar & Ors.). On 9th May, 2008 when the matter 2 appeared before the learned Single Judge, an objection was raised on behalf of the plaintiff/applicant with regard to the jurisdiction of the Court contending that there had been no lawful assignment of the Testamentary Suit to the learned Single Judge. On that date the learned Single Judge briefly noticed the submissions made on behalf of the parties. The particular submission made by the counsel for the plaintiff was that the application for grant of probate, namely, P.L.A. No.204 of 2004 had not been assigned before the Hon'ble Mr. Justice K.J. Sengupta. It was also stated that only G.A. No.3335 of 2004 had been assigned to the aforesaid Bench. It was also stated that another matter, viz. P.L.A. No.241 of 2004 was not assigned to the learned Single Judge. It was also submitted on behalf of the plaintiff-applicant that upon P.L.A. No.204 of 2004 being treated as contentious suit being Testamentary Suit No.6 of 2004 the character of the proceedings had been changed. It was also stated that merely because some interlocutory applications had been disposed of by the same learned Single Judge does not mean that there has been lawful conferment of jurisdiction to deal with this matter. It was, therefore, submitted that the matter be placed before the Hon'ble the Chief Justice for clarification.
On the other hand, Mr. Pal and Mr. Sarkar, learned Senior Advocates opposed the submissions made by Mr. Mitra and Mr. Chatterjee. It was their submission that the matter has been entirely assigned to the Hon'ble Mr. Justice K.J. Sengupta. It was submitted that since the aforesaid two applications for grant of probate have been assigned to Hon'ble Mr. Justice K.J. Sengupta, they had to be heard by the same Bench either in absence of any contest or with 3 contest. Since the learned Single Judge had dealt with various applications including the application for discharge of caveats and application for appointment of Administrator pendente lite, the matter ought to be heard by the same Bench. It was submitted that had the entire matter not been assigned to Justice K.J. Sengupta, the aforesaid applications could not have been heard and decided. After noticing the aforesaid submissions, the learned Single Judge adjourned the matter for further consideration.
The matter was again considered at length on 12th of September, 2008. The learned Single Judge took note of the various assignment orders that had been made at different stages either by the acting Chief Justice or by the Chief Justice. On 30th of August, 2004 the matter was released by Hon'ble Mr. Justice Subhro Kamal Mukherjee. It was also noticed that at that time when the matter had been released by Subhro Kamal Mukherjee, J., it was not possible for the learned Single Judge to release the application for grant of probate because the same did not and could not appear in the list for hearing and only the interlocutory application in connection therewith being G.A. No.3335 of 2004 appeared in the list. On the matter being released, it was re-assigned to Hon'ble Mr. Justice K.J. Sengupta with the following endorsement :-
"Let the matter be now heard by Justice K.J. Sengupta.
Many arguments were addressed before the Trial Court as to whether the entire matter had been assigned before the Hon'ble Mr. Justice K.J. Sengupta or only some applications as mentioned above had been assigned. After going through the records the Trial Court did not accept the contention of Mr. Mitra 4 that Hon'ble Justice Subhro Kamal Mukherjee had intended to release only the application being G.A. No.3335 of 2004 as it had appeared in the list and the probate application could not be released as it was not in the list. This submission has been rejected as being patently absurd as the application being G.A. No.3335 of 2004 had been directed to be out of list. The learned Trial Judge has also come to the conclusion that once parent proceedings had been released, interlocutory and off shoot proceedings would also stand released under the practice and procedure of this Court. The Trial Court also observed that in view of the fact that numerous proceedings had been taken out by the parties, the submission could not be accepted that there was any mistake or misunderstanding with regard to the assignment of the probate application. Therefore, it has been held that the application for grant of probate being P.L.A. No.204 of 2004 was assigned to the Court of Justice K.J. Sengupta. It is also mentioned that application for treating the probate as contentious cause was decided by the same court. Thereafter, the matter has been set down as a contentious cause and the same was listed as Testamentary Suit. The Trial Court thereafter considered the question as to whether after setting down the matter as a contentious cause and in view of the change of nomenclature from P.L.A. to Testamentary Suit, the order of assignment ceased to have any effect or not. Thereafter, the Trial Court examined the impact of Rule 28 of Chapter XXXV of the Original Side Rules as also Section 295 of the Indian Succession Act, 1925. It is held that the application for grant of probate or Letters of Administration is not a suit in the real sense as suit can be filed with the presentation of a plaint. 5 Therefore, merely because an application for grant of Probate or Letters of Administration at a subsequent stage is converted into a suit under law does not become a suit. The learned Trial Court buttressed the aforesaid view by making a reference to a Division Bench judgment of the Bombay High Court reported in AIR 1956 Bombay 45 and a Division Bench judgment of this Court in the case of Balai Lall Banerjee & Ors. vs. Debaki Kumar Ganguly reported in AIR 1984 Cal. 16. The learned Single Judge also made a reference to a Division Bench judgment of the Patna High Court reported in AIR 1994 Patna 144. On the basis of the law laid down by various authorities the Trial Court concluded that once the application for grant of probate is filed it does not lose its original character and remains the same. That being so, the Trial Court held that it has the jurisdiction to hear the suit. Thereafter the Trial Court gave the following directions :
"To summarize entire subject it appears to me the Hon'ble Acting Chief Justice assigned to hear and dispose of the application for grant of probate and in what manner and method is to be done, is exclusive authority of the Court concerned for object unlike regular suit, is either to grant probate or refuse to grant. In view of the aforesaid discussion I am of the view that the contention of Mr. Mitra and Mr. Chatterjee is unacceptable and I hold that the order of assignment of the Hon'ble Acting Chief Justice was and is for application for grant of probate and as the same having been treated as contentious cause the effect of order of assignment does not cease. Therefore, the suit has to be heard and tried by this Court and by this Court alone. Now, parties will be at liberty to take steps either judicially or administratively if permissible in law, as may be advised." 6
It is to be noticed from the above that the Trial Court had clearly granted liberty to the parties to take steps either judicially or administratively. Instead of making an application before the Chief Justice on the Administrative Side the appellant has chosen to file the present appeal. We are of the opinion that the appeal filed by the appellant is not maintainable and the matter ought to have been placed before the Chief Justice on the Administrative Side for any further clarification, if at all required. We dismiss the appeal as not maintainable. We, further, direct that the matter be placed before the Chief Justice on the Administrative Side for necessary clarification, if any.
In view of the order passed, all other connected applications have become infructuous and both the appeal and the applications are dismissed.
Let Photostat certified copy of this order be made available to the parties, if applied for, upon compliance of usual formalities.
( SURINDER SINGH NIJJAR, C.J. ) ( BISWANATH SOMADDER, J. )