Calcutta High Court (Appellete Side)
Gour Chandra Shaw vs Kaustov Kanti Dasgupta & Ors on 17 June, 2025
Author: Soumen Sen
Bench: Soumen Sen
17.06.2025
Sl No.7
Court No.8
(gc)
FA 220 of 2011
CAN 1 of 2014 (Old No: CAN 11667 of 2014)
CAN 2 of 2025
CAN 4 of 2025
Gour Chandra Shaw
Vs.
Kaustov Kanti Dasgupta & Ors.
Mr. Ayan Banerjee,
Mr. Dhiman Banerjee
...for the Appellant/Applicant.
Mrs. Sabita Mukherjee Roy Chowdhury,
Ms. Sneha Singh
...for the Respondent No.1.
Re: CAN 2 of 2025
With
CAN 4 of 2025
Soumen Sen. J.(Oral)
1. This is an application for transposition, being CAN 2 of 2025, by one of the beneficiaries under the Will as an appellant with a prayer for condonation of delay, being CAN 4 of 2025. The said application is opposed by the respondent no.1.
2. It appears that the probate proceeding was dismissed on context and the executor during his lifetime preferred an appeal. The sole executor died on 15th February, 2019. Before that, the executor filed an application for expeditious hearing of the appeal. It is stated in the petition that after the death of the executor due to Covid-19 and that he was travelling frequently to USA to meet his son, 2 he could not take appropriate steps for transposition. It is further stated that by virtue of Section 232 of the Indian Succession Act, the applicant is entitled to continue with the appeal in the capacity as a legatee under the Will.
3. The learned Counsel for the respondent no.1 in opposing the prayer has submitted that Covid commenced sometimes in late March, 2020 and continued till 2022, however, the application was filed on 10th June, 2025. The reason for such delay for transposition is not sufficiently explained.
4. In the present proceeding the executor died during the pendency of the appeal. The present applicant was one of the defendants. He is also one of the beneficiaries. He supported the executor. In view of the fact that executor was alive and file an application for grant of probate he could not have independently file any such application the executor was sufficiently representing the interest of the legatee.
5. In Mahabir Prasad v. Jage Ram, (1971) 1 SCC 265, (Para 7) where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described 3 by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate.
6. An executor has no personal interest as he is appointed to prove the Will and carry out the wishes of the testator and administer the estate according to the direction of the testator for the benefit of the legatees. In other words, the action, which he has commenced is not for his benefit but he acts as a representative of those who are interested in the will of the deceased. Therefore, the action being a representative one, those whom he represents are equally interested in the prosecution of such a proceeding. Therefore, if the executor dies, the action which he has commenced to propound the will of the deceased, does not come to an end with his death but can be continued by those whom he represents.'
7. In Sudip Mukheqee, 2004 SCC OnLine Cal 848, (Para 14-15), Hon'ble Justice Subhro Kamal Mukherjee held:
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'It is settled law that a Court has got inherent power to take note of subsequent events and to mould the reliefs on the basis of the altered conditions to mete out justice. As far as possible the anxiety and endeavour of the Court should be to remedy injustice rather than deny relief to an aggrieved party on pure technical ground.
Since the executor had died before he could prove the Will, the legatees under the Will are entitled to apply for grant of letters of administration under Section 232 of the Indian Succession Act, 1925. There is no period of limitation governing such an application.'
8. In Santi Swarup Sarkar v. Pradip Kumar Sarkar and Ors., 1996 SCC OnLine Cal 306, (Para 15, 17 and 19), the Hon'ble Calcutta High Court held:
'But it must, at the same time, be recognised that the impleading of the legatee or person interested in the place of the deceased executor would involve an alteration of the petition which was originally filed for the issue of probate, into one for the grant of letters of administration. But that is a technicality not affecting the substance of the matters to be decided in the case.5
If it is competent for a legatee to file fresh application for grant of Letter of Administration in a case where the Executor dies during the pendency of a probate proceedings, I wonder why a legatee, already on record as a defendant in a probate proceedings, as in the instant case before us, would not be competent to continue the proceedings for grant of Letters of Administration, in place of grant of probate, by transposing him as a plaintiff in the suit, treatment the relevant proceedings to have been instituted from the date of filing the relevant applications for transposing him as a plaintiff and for amendment of the plaint for the said purpose, in the light of the observations of the Supreme Court in B. Banerjee v. Smt. Anita Pan, AIR 1975 SC 1146. The Supreme Court in the said decision has held, in the facts and circumstances therein, that where two interpretations are possible that which validates the statute and shortens litigation should be preferred to the one which invalidates or proliferates. Their Lordships therein were satisfied that, as far as possible, courts must avoid multiplicity of litigation.'
9. In Sarmistha Guha v. Gouri Guha, 2014 SCC OnLine Cal 19749, (Para 17), it was held:
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'the conversion of the suit, from probate proceedings into one for grant of letters of administration, when the evidence on behalf of the plaintiff had already been closed and the suit is at the stage of recording of evidence on behalf of the defendant, in my view the Court should take a liberal approach and the technicalities should not be a bar in granting the reliefs sought for by the heirs of the original plaintiff.'
10. In Vatsala Srinivasan v. Shyamala Raghunathan, (2016) 13 SCC 253, the issue involved in this appeal was whether upon death of the executor, during the pendency of testamentary suit proceedings, the proceedings have abated. In the circumstances, the proceedings were converted into the proceedings for getting the letter of administration. Being aggrieved by the said order passed by the learned Single Judge, the appellant preferred an appeal before the Division Bench of the High Court. By the judgment dated 19-1-2011 [Vatsala Srinivasan v. Narisimha Raghunathan, 2011 SCC OnLine Bom 78: AIR 2011 Bom 76] , the said appeal was dismissed and the order dated 16-8-2010 was affirmed. The Hon'ble Supreme Court held:
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'In any case, so as to establish the will, the probate proceedings are required. The function of the executor is to execute the will. The main purpose can be very well achieved by obtaining a letter of administration so that the property can be administered by the administrator as per Section 232 of the Succession Act, 1925. In the instant case, the said practice has been rightly followed.'
11. The law is thus clear that the proceeding never abates.
12. On such consideration, we allow this application for transposition and conversion of the probate proceeding to one of letters of administration with the Will annexed.
13. The necessary amendments be carried out in the memorandum of appeal and other related cause papers.
14. In view of disposal of the transposition application, the application for condonation of delay is also disposed of.
Re: CAN 1 of 2014 (Old No: CAN 11667 of 2014)
15. This was an application filed by the erstwhile executor for expeditious disposal of the appeal and for preparation of paper books. Since we allow the application for transposition, we treat this application to be an application of 8 Somnath Ghosh for the purpose of expediting the matter.
16. The department, however, shall formally carry out the amendment in terms of the order passed today.
17. Let the Trial Court Records of this case be called for within two weeks from date by Special Messenger at the costs of the appellant. Such costs are to be deposited within one week from date.
18. After arrival of Trial Court Records, Office shall examine the same and, if found complete, shall forthwith serve a notice upon the appellant.
19. Ms. Sabita Mukherjee Roy Chowdhury, learned Counsel appearing for the respondent no.1 accepts service of notice of appeal on behalf of the respondent no.1. As such, service of notice of appeal upon the respondent no.1 is waived.
20. The appeal is otherwise ready as regards service.
21. The learned Trial Court is directed to ensure that while forwarding the T.C.R., it must be complete and without any defect.
22. The appellant shall prepare and file requisite number of informal paper books, printed, typewritten or cyclostyled, as the case may be, 9 out of court, within four weeks after arrival of the T.C.R.
23. Liberty to mention for early hearing after preparation of the paper books.
24. Accordingly, the application being CAN 11667 of 2014 is disposed of.
(Soumen Sen, J.) (Smita Das De, J.)