Calcutta High Court (Appellete Side)
Bimal Patra @ Bimal Kumar Patra & Anr vs Tapati Mondal & Ors on 12 June, 2019
Author: I. P. Mukerji
Bench: I. P. Mukerji
1
12.06.2019
Sl.No. 01
Ct.No.18
Amalranjan
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
SAT 410 of 2017
Bimal Patra @ Bimal Kumar Patra & Anr.
Vs.
Tapati Mondal & ors.
Mr. Saunak Bhattacharya
...for the appellants
This is an intended second appeal. The facts of the case
need to be stated in short to appreciate whether a substantial
question of law arises from the impugned decree of the first
appellate court dated 28th August, 2017.
Mr. Bhattacharya, learned counsel for the appellants states
that the appeal was filed within time, but did not appear for
admission.
Now, the execution proceedings are on the verge of
conclusion by eviction of the appellants, tomorrow. Hence,
urgency was pleaded to this court to consider admission of the
appeal and stay of the impugned decree expeditiously.
In those circumstances, we placed the intended appeal in
the list today.
2
One Surendranath Mondal was the absolute owner of
several plots of land of significant area in Mouza - Dhopagachi
Gram, Police Station - Baruipur, District - South 24 Parganas.
The predecessor in interest of the appellants claimed to be
an innocent and bona fide purchaser of the proportionate
undivided share of the vendors one son and daughter of
Surendranath Mondal in 1976, after the death of Surendranath
Mondal on 21st September, 1965, in the above plots on the
representation that he died intestate and that the vendors were
the joint owners of the said proportionate share in this
undivided land. The other joint owners were the other heirs of
Surendranath Mondal.
Later, a Will of Surendranath Mondal purportedly executed
on 19th January, 1968 was produced. The executor of that Will
being one of his sons obtained probate thereof. By this Will he
claims the entire property absolutely to the exclusion of others.
The appellants and/or their predecessor in interest resisted the
suit filed before the court below for execution of the said
predecessor in interest of the appellants on the ground that the
purchaser was an innocent and bona fide purchaser for value.
He also challenged the grant of probate, claiming that the Will
was fabricated.
3
The learned first court dismissed the suit. But the first
appellate court by the impugned judgment and decree dated
28th August, 2017, inter alia, reversed this decree holding that
the court had no jurisdiction to decide the question of
genuineness of the Will which should be decided in an
application for revocation of grant of probate.
The principal ground taken by Mr. Bhattacharya in this
second appeal is that the genuineness of a Will challenged on
the ground of fraud can be taken on any collateral proceeding
and that the court ought to have decided the question.
We find substance in this ground taken and admit the
second appeal on the following principal substantial question of
law and other ancillary questions of law that would arise
therefrom:-
(i) Whether the first appellate court exercised its
jurisdiction properly by not entertaining the defence
set up in the written statement by the
appellants/their predecessor in interest that the Will
on which the respondents who are the heirs of the
original plaintiff (executor and beneficiary of the Will of Surendranath Mondal) was a product of fraud a fabricated document and that the probate thereof should be declared as nonest.
4Ancillary questions:-
(XI) Whether the learned judge of the first appellate court erred in law by not holding that the alleged probate was obtained by the plaintiff by practising fraud and/or by way of collusion?
(XII) Whether the learned judge of the first appellate court erred in law by not holding that the defendant/appellants have right, title, and interest in respect of the suit property?
Let the notice of appeal be issued and served on the respondents by 29th June, 2019.
Call for the Lower Court records by 19th July, 2019 through a Special Messenger at the cost of the appellant. Such cost is to be put in within one week from date.
The advocate on record for the appellants is to prepare and file the requisite number of informal paper books by 16th August, 2019, serving at least one copy thereof on the advocate on record for the respondents not later than 7 days before the date of hearing of the appeal.
All other formalities regarding preparation of paper books are dispensed with.
List the appeal for hearing on 29th August, 2019. 5
Re: CAN 3055 of 2019 (stay) The advocate on record for the appellants is directed to serve a copy of the stay application (CAN 3055 of 2019) upon the respondents and file an affidavit of service by 22nd June, 2019. List this application on 24th June, 2019 before the regular Bench, subject to its convenience.
Learned advocate for the appellants will be at liberty to apprise the learned court below of this order admitting the appeal and to pray stay of execution of the impugned decree, which shall be considered it in accordance with law. Urgent certified photo copy of this order, if applied for, be given to learned advocates for the parties upon compliance of all requisite formalities.
( I. P. Mukerji,J. ) ( Md. Nizamuddin,J. )