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CALCUTTA HIGH COURT
DEBASISH KAR GUPTA & ISHAN CHANDRA DAS, JJ.
Paritosh Patra and others – Appellants
Vs.
Angur Bala Rana and others – Respondents
F.A. No. 148 of 2001
Decided On : 14/02/2014
WILL - PROBATE - LETTER OF ADMINISTRATION - LIMITATION - ATTESTATION - INDIAN SUCCESSION ACT, 1925 - SECTION 63(C) - LIMITATION ACT, 1963 - ARTICLES 137 - CODE OF CIVIL PROCEDURE, 1908 - ORDER IX, RULE 9 & ORDER VIII, RULE 9 - Whether the application filed afresh for grant of letter of administration was maintainable in view of inaction on the part of the petitioners/respondents instead of taking steps in respect of their previous application filed for the grant of letter of administration in the year 1976? - Whether the purported Will executed by the deceased Ashutosh Rana was proved before the learned Court below in accordance with the provisions of subsection (c) of Section 63 of the Indian Succession Act, 1925?
Fact of the Case:
The petitioners/respondents filed an application for granting letter of administration of the Will to the estate of the deceased Ashutosh Rana in the year 1976. The opposite parties/appellants filed objection against granting of probate to the above Will. The learned Munsif, Bishnupur being a District Delegate passed an order of returning the petition for filing it before the proper forum. The petitioners/respondents filed an application afresh in the Court of the learned Munsif, Bishnupur, District Bankura for granting letter of administration of the Will to the estate of the aforesaid deceased Ashutosh Rana on December 18, 1991. The opposite parties/appellants filed objection with regard to maintainability of the application filed afresh on the ground of limitation. The learned Munsif directed the petitioners respondents to file the above case in the Court of learned District Judge, Bankura. The above application bearing Probate Case No.2 of 1992 was taken back on December 18, 1991 and it was filed in the Court of learned District Judge, Bankura on October 3, 1992. The impugned judgment was delivered on August 29, 2000 and the decree was passed on September 5, 2000.
Finding of the Court:
The Court held that the application filed afresh by the respondents was not sustainable in law as the provisions of Order IX, Rule 9 read with Order 8, Rule 9 of the Code of Civil Procedure stands in the way of filing the second application. The Court also held that the Will should have been attested by two or more witnesses and it was not proved before the learned Court below that there had been two attesting witnesses of the Will under reference.
Issues: 1. Whether the application filed afresh for grant of letter of administration was maintainable in view of inaction on the part of the petitioners/respondents instead of taking steps in respect of their previous application filed for the grant of letter of administration in the year 1976? 2. Whether the purported Will executed by the deceased Ashutosh Rana was proved before the learned Court below in accordance with the provisions of subsection (c) of Section 63 of the Indian Succession Act, 1925?
Ratio Decidendi: 1. The Court held that the application filed afresh by the respondents was not sustainable in law as the provisions of Order IX, Rule 9 read with Order 8, Rule 9 of the Code of Civil Procedure stands in the way of filing the second application. The Court relied on the decision of Kanailal Khan v. Anil Kumar Khan & Ors., reported in (1974) 78 CWN 25, to hold that the application was dismissed for non-prosecution on a day which was not fixed for hearing of the application and the plaintiff could not be said not to have appeared when the suit was called for hearing on that date, the suit could not have been called for hearing within Order IX, Rule 8 of the Code of Civil Procedure unlike our case. 2. The Court held that the Will should have been attested by two or more witnesses and it was not proved before the learned Court below that there had been two attesting witnesses of the Will under reference. The Court relied on the provisions of sub-section (c) of Section 63 of the Indian Succession Act, 1925 to hold that each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Final Decision: The Court allowed the appeal and set aside the impugned judgment and decree.
Debasish Kar Gupta, J.
This appeal is preferred against the judgment and decree dated August 29, 2000 and September 5, 2000 passed by the learned Additional District Judge, 1st Court at Bankura in Probate Suit No.2 of 1992/Letter of Administration Case No.2 of 1992. By virtue of the impugned judgment and decree, the learned Court below allowed the Letter of Administration Case on contest granting letter of Administration of Will to the estate of deceased Ashutosh Rana in favour of the petitioners/respondents.
2. The backdrop of the case in a nutshell is as follows:
One Ashutosh Rana, since deceased, permanent resident of Dwaripota, P.S. Indus, District - Bankura executed a Will during his lifetime on January 25, 1961. The above Will was registered at Indus Sub-registry Office, District-Bankura on July 5, 1961. According to the petitioners/respondents, the above Will was the last Will of the aforesaid Ashutosh Rana, who breathed his last on June 18, 1970 leaving the properties described in an application filed by the petitioners/respondents for granting letter of administration of Will to the estate of the deceased Ashutosh Rana.
3. The aforesaid Ashutosh Rana, since deceased, expired leaving behind him the petitioners/respondents as his sons, widow Saralabala Dasi, since deceased, and the opposite parties/appellants as his daughters, namely, Parul Bala Dasya, Laksmirani Dasi and Mayarani Dasi. According to the petitioners/respondents, the aforesaid deceased Ashutosh Rana appointed Saralabala Dasi, since deceased, their mother as executrix of the above Will. The aforesaid Saralabala Dasi, executrix of the above Will, died in the year 1973 and consequent thereupon, the petitioners/respondents were legally entitled to get letters of administration of the Will to the estate of the deceased Ashutosh Rana in accordance with the provisions of the Indian Succession Act as also according to the terms and conditions envisaged in the above Will.
4. In the year 1976, the petitioners/respondents filed an application for granting letter of administration of the Will to the estate of the deceased Ashutosh Rana in the Court of learned Munsif, Bishnupur, District-Bankura being a District Delegate. The opposite parties/appellants filed objection against granting of probate to the above Will. The learned Munsif, Bishnupur being a District Delegate passed an order of returning the petition for filing it before the proper forum. According to the petitioners/respondents, they could not file the petition in the Court of learned District Judge, Bankura due to poverty. Further, they were advised that in view of the fact of appointment of their mother, Saralabala Dasi, since deceased, as executrix by the deceased Ashutosh Rana in the Will under reference, the petitioners/respondents had no locus standi to file the petition in the Court of the learned District Judge, Bankura and as a result, they neither received back the petition nor took further steps in the matter.
5. Subsequently, on December 18, 1991, the petitioners/respondents filed an application afresh in the Court of the learned Munsif, Bishnupur, District Bankura for granting letter of administration of the Will to the estate of the aforesaid deceased Ashutosh Rana.
6. The opposite parties/appellants filed objection with regard to maintainability of the application filed afresh on the ground of limitation. The other ground for raising objection was that their father, Ashutosh Rana, since deceased, was not in a sound state of body, mind and health at the material point of time and he had no capacity to understand at all the contents of the alleged Will.
7. By an order dated December 15, 1991, the learned Munsif directed the petitioners respondents to file the above case in the Court of learned District Judge, Bankura. The above application bearing Probate Case No.2 of 1992 was taken back on December 18, 1991 and it was filed in the Court of learned District Judge, Bankura on October 3, 1
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