Calcutta High Court (Appellete Side)
Asansol Durgapur Development ... vs Smt. Kanchan Chatterjee & Ors on 3 January, 2020
1
139 03.01.2020 F.A.T. 15 of 2016
Ct. No. 02
with
CAN 5425 of 2016
akd CAN 8830 of 2019
Asansol Durgapur Development Authority
Vs.
Smt. Kanchan Chatterjee & Ors.
---------------
Re: CAN 8830 of 2019 Ms. Anyapurba Banerjee.
... for the appellant.
Ms. Ruchika Mall.
... for the respondent no. 1.
The instant application is filed by the appellant for substitution of the heirs and legal representatives of the deceased respondent no. 1 after setting aside abatement and also upon condonation of delay in filing the instant application.
It is stated in the instant application that the said respondent no. 1 died intestate on 28th December, 2015 leaving behind her surviving husband and two sons; the description whereof has been given in paragraph 2 of the said application. It is further stated that the factum of death of the said respondent was not known to the appellant. It is informed on 27th August, 2019, when the instant matter was called on and the learned Advocate representing the said deceased respondent appeared and informed that her client died on such date.
The cause for delay in preferring the application for setting aside abatement appears to be lack of knowledge of the death and the moment it is disclosed, the application has been filed.
We thus find that the appellant was prevented by sufficient cause in not filing the application for substitution after setting aside abatement in time. The delay in filing the same is hereby condoned.
It has been submitted by the learned Advocate 2 representing the heirs and legal representatives of the said deceased respondent that the property being the subject matter of acquisition was inherited by the deceased from her parents.
In view of the aforesaid fact and taking into account the provisions contained under Section 15(2)(a) of the Hindu Succession Act, the husband cannot be regarded as heir to inherit the estate of his wife; whereas the two sons are entitled to inherit the same.
The application is thus allowed directing the substitution of the sons shown in b, c, at paragraph 2 of the said application in place and stead of the said deceased respondent no.1. The abatement, if there be any, is set aside.
The office is directed to amend the cause title of the Memorandum of Appeal immediately. Since Ms. Ruchika Mall, learned Advocate, has entered appearance for the substituted respondents and the Vakalatnama was filed vide Filing No. A- 16036 on 16th September, 2019 executed by the husband and the two sons of the said deceased respondent, the office shall treat the said Vakalatnama to have been executed by the said two sons, since we do not find that the husband is entitled to inherit the estate of his wife, the deceased respondent no. 1.
The appeal shall be treated ready as regards service.
Office is directed to take all steps to get the appeal ready for hearing.
(Abhijit Gangopadhyay, J.) (Harish Tandon, J.) 3