Back
High Court Of Calcutta
ARUN KUMAR DUTTA
SANTI SWARUP SARKAR - Appellant
Versus
PRADIP KUMAR SARKAR - Respondent
C. O. 938 Of 1992
Decided On : 09/13/1996
PROBATE - ACT-SECTION: INDIAN SUCCESSION ACT, 1925 SECTION 232, 233, INDIAN CIVIL PROCEDURE CODE, 1908 ORDER 22, ORDER 23 RULE 1A - SUMMARY: The petitioner, the universal legatee in the will of his deceased mother, sought to transpose himself as plaintiff in a probate suit and amend the petition for probate to one for letters of administration with a copy of the will annexed, following the death of the sole surviving executor. The court held that the petitioner, already on record as a defendant, could continue the proceedings for grant of letters of administration and allowed the applications for transposition and amendment, interpreting the term "abandoned" in Order 23 Rule 1a of the Civil Procedure Code to include abandonment by death.
Fact of the Case:
The petitioner, the universal legatee in the will of his deceased mother, filed applications to transpose himself as plaintiff and amend the petition for probate to one for letters of administration with a copy of the will annexed, following the death of the sole surviving executor. The court below rejected the applications.
Finding of the Court:
The court held that the petitioner, already on record as a defendant, could continue the proceedings for grant of letters of administration and allowed the applications for transposition and amendment, interpreting the term "abandoned" in Order 23 Rule 1a of the Civil Procedure Code to include abandonment by death.
Issues: Whether the petitioner, as a universal legatee, could continue the probate proceedings initiated by the deceased executor and obtain letters of administration.
Ratio Decidendi: The court relied on precedents from the Madras High Court, which held that a legatee or person interested could intervene and continue probate proceedings to prove the will and obtain letters of administration in their own right upon the death of the executor. The court also referred to the Supreme Court's decision in B. Banerjee v. Smt. Anita Pan, which emphasized the need to avoid multiplicity of litigation and interpret statutes in a manner that promotes justice and social gain. By interpreting "abandoned" in Order 23 Rule 1a to include abandonment by death, the court allowed the petitioner to continue the probate proceedings and obtain letters of administration.
Final Decision: The court allowed the petitioner's applications for transposition as plaintiff and amendment of the petition for probate, setting aside the impugned order of the court below.
( 1 ) THIS revisional application under S. 115 of the Code of Civil Procedure (hereinafter referred to as Code) is directed against the order dated 8th April, 1992 passed by the learned Additional District Judge, 7th Court, Alipore, 24-Parganas (South) in Original Suit No. 11 of 1990 before him, for the reasons stated therein.
( 2 ) SMT. Charu Sila Sarkar, since deceased, a Hindu Lady, had executed a Will dated 15th August, 1996 appointing Provash Chandra Banerjee, Smt. Jyotsna Moyee Chowdhury and Sudhangshu Kumar Dutta, Executors/ Executrix. The said Sri Provash Chandra Banerjee and Smt. Jyotsna Moyee Chowdhury having since died, the only other surviving Executor Sudhangshu, Kumar Dutta had filed application for grant of probate of the said Will and Testament of the said deceased Charu Sila Sarkar. Contention having been raised to the said grant the matter was set down as a contentious cause and had been converted into a regular suit. During the pendency of the said suit the sole surviving Executor Sudhangshu Kumar Dutta had died on 16th July, 1991 whereupon the petitioner Shanti Swarup Sarkar, the universal/residuary legatee in the said Will left by his mother Charu Sila Sarkar, who is the defendant No. 6 in the relevant suit (hereinafter referred to as the petitioner) had filed two applications before the Court below, one for transposing him as a plaintiff in place of the deceased Executor Sudhangshu Kumar Dutta and allow him to proceed with the suit as plaintiff for grant of letters of administration with a copy of the Will under S. 232 of the Indian Succession Act, and the other to have the petition for probate amended by substituting a prayer for letters of administration with copy of the Will annexed in place of the prayer for probate.
( 3 ) THE Court below by passing the impugned order had rejected both the applications filed by the petitioner for the reasons recorded therein.
( 4 ) AGGRIEVED by the impugned order so passed by the Court below, the petitioner has filed the instant revisional application on the grounds made out therein.
( 5 ) I had been addressed at length by the learned Advocates for the contending parties in the instant revisional application. While supporting the impugned order passed by the Court below Mr. Priyabrata Mukherjee, the learned Advocate for the contending defendants-opposite parties (hereinafter referred to as opposite parties), had referred to the decisions of this Court in Sarat Chandra Banerjee v. Nani Mohan Banerjee, (1909) ILR 36 Cal 799; Hari Bhusan Dutta v. Manmatha Nath Dutta, AIR 1919 Calcutta 197 and Haripada Saha v. Gobinda Chandra Saha, (1947) 51 Cal WN 917 to reinforce the same. But on perusal of the aforesaid three decisions I find that the facts and circumstances therein are not applicable to the facts and circumstances herein for the reasons I shall presently discuss.
( 6 ) IN the case of Sarat Chandra Banerjee v. Nani Mohan Banerjee (1909 ILR 36 Cal 799) on an application by a sole executor for grant of probate, a caveat was entered, and the matter was set down as a contentious cause. Pending the hearing, the executor died. Thereupon his widow and legal representative applied to have her name substituted for his, and to have the petition for probate amended by substituting a prayer for letters of administration with copy of the Will annexed, in place of the prayer for probate. The Court held therein that the application must be refused, as the right to sue had not survived and the suit had abated. In that case the widow and legal representative of the deceased executor was not on record and had sought to be brought on record by substitution.
( 7 ) IN the case of Hari Bhusan Datta v. Manmatha Nath Datta, (AIR 1919 Cal 197) a residuary legatee under a will applied for grant of Letters of Administration to the estate of the testator with the copy of the Will annexed, and during the pendency of the application died leaving his son as his heir and le
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
