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1976 Supreme(Cal) 44
IN THE HIGH COURT AT CALCUTTA
Rabindranath Bhattacharji, J.
Sastiram Ghosh & Ors. – Appellants
Versus
Sankaribala Dassi & Ors. - Respondents
Second Appeal No. 1180 of 1968.
Decided On : February 9, 1976
Advocate Appeared:
Lala Hemanta Kumar and Mohanlal De ………. For appellants
B. K. Banerjee and Mukti Prosanna Mukherjee
A probate granted to an executor is valid and effective, and the subsequent issue of probate to another person does not render the will ineffective.
Headnote:
PROBATE - WILL - EFFECTIVENESS - GRANT OF PROBATE TO EXECUTOR - SUBSEQUENT ISSUE OF PROBATE TO ANOTHER PERSON - VALIDITY - ADVERSE POSSESSION - TITLE ACQUIRED BY ADVERSE POSSESSION - BAR OF RES JUDICATA - NOT APPLICABLE WHERE PLAINTIFF NOT A PARTY TO PREVIOUS SUIT.
Fact of the Case:
Plaintiffs filed a suit for recovery of possession of a house from defendants. Defendant no. 1 was the tenant, while defendants nos. 2, 3, and 6 claimed title to the property. The plaintiffs claimed title through a will executed by Shyamapada, who had inherited the property from his mother, Sushila. The defendants challenged the validity of the will and the plaintiffs' title. The trial court found in favor of the plaintiffs, holding that Shyamapada had acquired title by adverse possession and that the plaintiffs had inherited the property from him. The defendants appealed to the District Judge, who dismissed the appeal.
Finding of the Court:
The High Court held that the probate granted to Shyamapada was valid and effective, and that the subsequent issue of probate to Sankaribala, the plaintiff no. 2, did not render the will ineffective. The court also held that the plaintiffs had acquired title to the property by adverse possession, and that the defendant no. 1, the tenant, was not a party to the previous suit between the plaintiff no. 1 and the defendant no. 1, and therefore the principles of res judicata did not apply.
Issues: 1. Whether the probate granted to Shyamapada was valid and effective? 2. Whether the plaintiffs had acquired title to the property by adverse possession? 3. Whether the defendant no. 1, the tenant, was a party to the previous suit between the plaintiff no. 1 and the defendant no. 1, and therefore the principles of res judicata applied.
Ratio Decidendi: 1. The court held that the probate granted to Shyamapada was valid and effective, as the order allowing probate had been passed by the court, and the will had become active and effective upon the passing of that order. 2. The court held that the plaintiffs had acquired title to the property by adverse possession, as the trial court had found that the plaintiffs' predecessor in interest had possessed the property in their own right and had acquired title by adverse possession. 3. The court held that the defendant no. 1, the tenant, was not a party to the previous suit between the plaintiff no. 1 and the defendant no. 1, and therefore the principles of res judicata did not apply.
Final Decision: The appeal was dismissed on contest, with costs in favor of the contesting respondent no.1 in this appeal.
The judgment of the Court was as follows :-
This second appeal is by the defendants nos. 2, 3 and 6 of the original suit.
2. The plaintiffs, two in number, filed the original suit against the six defendants for recovery of khas possession of the suit premises which is a house. Defendant no. 1 is the tenant. Previously plaintiff no. 1, Narayan filed a suit against the defendant no. 1 for eviction and in that suit it was found that there was no relationship of landlord and tenant as between Narayan and the defendant no.1, Ramani Mohan. Subsequently, the plaintiff no.1 Narayan and the plaintiff no. 2 Sankaribala Dassi jointly filed the present suit for eviction of the defendants. In this suit, the material allegations were that originally Bipin and Madhav, two brothers were the owners of the house. Bipin possessed the southern portion and Madhav enjoyed the northern portion. Bipin left a will giving his properties to his wife Sushila. Sushila took the probate of the will and the gifted some of the properties she got from her husband to Paritosh Kumari, her sister and her share in the suit property in the southern portion was given to Paritosh Kumari's son Shyamapada by a will. After the death of Sushila, Shyamapada took the propate of the will and possessed the property. After his death, the property devolved upon his mother and ultimately upon his brother Ramapada Ghosh. The other half of the suit house which was possessed by Madhav Ghosh was also given to his wife Elokesi on the basis of a will. Elokesi possessed that property and made a gift of the Same to one Shibaram Ghosh. Shibaram died leaving his wife Swetbarani and four sons including the plaintiff no. 1. In R.S. khatian the disputed portion of the property has been recorded in the name of Swetbarani alone. Paritosh Kumari while living in the southern portion of the suit house let out the upper story of that portion to different tenants. After his death, her son Ramapada inherited her properties and began to possess the suit property in his own right for more 12 years. Ramapada made a gift of his share of the suit property to his niece, Sankaribala, the plaintiff no. 2 and she transferred the property to plaintiff no. 1. Subsequently, as some doubt was raised regarding the legality of this transfer, both the plaintiffs have started the present action after the dismissal of the previous suit for evicting the defendant no. 1. The defendant no. 1 and the defendant nos. 2, 3 and 6 contested the suit. Defendant no. 1 pleaded that he was a tenant under the predecessor in-interest of the defendant nos. 2, 3 and 6 and challenged the title of the plaintiffs in the suit premises. The defendant nos. 2, 3 and 6 also challenged the title of the plain tiffs.
3. The trial court on the evidence on record held that plaintiff no. 2 was entitled to get a decree for recovery of khas possession by evicting the defendants from the suit property which is in possession of the plaintiff no. 2. It was held by the trial court that Paritosh Kumsri and Ramapada possessed the suit house in their own right' and had undoubtedly acquired title by adverse possession and the allegations of transfer made in the plaint were not proved to be false or illegal. It has been specifically found by the trial court that none of the defendants had any title in the suit property and that the defendants have no right title and interest in it. It was decided by the trial court that Sankaribala the plaintiff no. 2 bas right, title and interest to the suit house as claimed. All the defendants were declared to be trespassers and they were found to have colluded with one another. The right, title and interest of the plaintiff no.2 was declared and she was directed to get khas possession by evicting the defendants. The plaintiff no. 2 was also found to be entitled to get mesne profits as indicated there.
4. Against that decision, an appeal was taken to the District Judge by the defendant nos. 2, 3 and 6. Plat appeal has
