Rabindra Nath Sadhukhan (since deceased substituted by Raja Sadhukhan) vs Gopal Chandra Sadhukhan

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 117

IN THE HIGH COURT AT CALCUTTA
TAPABRATA CHAKRABORTY, PARTHA SARATHI CHATTERJEE, JJ.
Rabindra Nath Sadhukhan (since deceased substituted by Raja Sadhukhan) - Appellant
Versus
Sri Gopal Chandra Sadhukhan – Respondent
FA 24 of 2022 with IA No. CAN 2 of 2020 (Old No. CAN 2777 of 2020) (Disposed of) with IA No. CAN 4 of 2023 with IA No. CAN 5 of 2023
Decided On : 14-06-2023

Advocates Appeared:
For the Appellant : Mr. Asit Baran Raut, Mr. Tushin Subhra Raut, Mr. Asit Kumar Chowdhury, Ms. Ishita Raut.
For the Respondents: Mr. Mukul Lahiri, Mr. Victor Dutta, Mr. Sanjib Dawn.

Headnote:
Indian Succession Act, 1925 - Section 268 - Indian Penal Code,1860 - Sections 306/34 – Will Deed - Grant of letters of administration – Production of additional Evidence – Whether permissible - Whether testator had any testamentary capacity to execute will - Held, appellant’s prayer for adducing additional evidence does not satisfy the any of the conditions incorporated in sub-rule 1(a) and 1(aa) of Rule 27 and it is to be noted that the words ‘or for any other substantial cause’ must be read with the word ‘requires’ which is set out at the commencement of the provision. It means that when appellate Court requires additional evidence, appellate Court can accept the same as per sub-rule 1(b) of Rule 27. In other words, when it would be apparent that without taking additional evidence, appellate Court would not be able to pronounce the judgment, then it can take additional evidence. - Applicant applied for substitution of his name in place of testator on strength of Will and DDA asked him to pay of unearned increase as per terms and conditions stipulated in lease deed and hence applicant filed writ petition in case of question was out of two Wills which was genuine - In case of issue was raised that testator had no absolute interest in property bequeathed Will letters of administration was granted holding that testator had only one-fourth share in property - It was held that letters of administration should be granted without limiting it to any particular share of property - In case of father of appellant was adjudicated an insolvent - Appeal Dismissed.

JUDGMENT :

(Partha Sarathi Chatterjee, J.)

1. Legality and propriety of the judgment dated 20th June, 2016 passed by the learned Judge, City Civil Court, 3rd Bench, Calcutta in O.C. No. 2014, whereby letters of administration in respect of the Will executed by one Jahar Lal Sadhukhan dated 22.12.1986 was granted to his son namely, Sri Chandan Kumar Sadhukhan, has been called in question in the present appeal.

2. One Gopal Chandra Sadhukhan (in short, Gopal) filed an application under Section 268 of Indian Succession Act, 1925 (hereinafter referred to as the Act of 1925) praying for grant of letters of administration in respect of registered Will executed by Jahar Lal Sadhukhan (in short, Jahar) on 22.12.1986.

3. Facts frescoed in that application presented under Section 268 of Act of 1925 are as follows :

i) One Balai Chand Sadhukhan (in short, Balai) happened to be the absolute owner of five properties. By executing one deed of trust, Balai divested himself from absolute ownership of those properties and endowed the properties to his family idols namely, Thakur Sree Sree Iswar Gour Gobinda Jew and Sree Sree Iswar Narayan Jew, consecrated in the premises vide. no. 11/2, Gobinda Sen Late, Kolkata- 700 012;

ii) In the deed of trust, it was stipulated that Balai would be the first trustee and after his demise, all his sons and in case of death of any of his son, his senior most male heir in the male line shall be the joint trustee and the settlor appointed shebait/shebaits for performing seba puja of the family deities;

iii) In the deed of trust incorporating one restriction clause, settlor desires that if any of shebait or shebaits renounces or renounce the Hindu faith or seizes or seize to be a Baishnab then he or they shall seize to be shebait or shebaits and the person or persons next entitled to succeed as shebait or shebaits in pursuance of the provisions contained in the deed, shall take his or their place and shall become shebait or shebaits;

iv) Balai died in 1950 leaving behind five sons namely, Sunendranath, Nagendranath, Jitendranath, Debendranath and Jagendranath, who became joint trustees and all those sons of the settlor have expired and now, the applicant being the eldest son of Brojomohan, Soumitra, eldest son of Ramlal and Rabindranath, eldest son of Jahar are alive;

v) On 06.02.1988, Jahar died leaving behind three sons, Rabindranath (in short, Rabin), Chandan and Malay. Rabin and Malay inflicted tortures upon Balai in various manners and Rabin and Malay became non-baishanb and hence, Jahar executed one Will whereby he disinherited both Rabin and Malay from the trust properties and debarred them from taking part in the affairs of debuttar properties either as trustee or as shebait. In the Will, Jahar’s daughter namely, Chitra was appointed as sole executrix;

vi) Chitra predeceased Jahar. Chitra’s daughter, Mousumi died after the death of testator. Mother and wife of Jahar also predeceased Jahar and since, there was none to apply for probate and Jahar himself handed over the I.G.R. of the registered Will to the applicant, who happens to be the one of the trustees as well as one of the shebaits of the trust properties, applied for letters of administration in respect of that Will. In the affidavit of asset, premise (which is three-storied building one) located at 14/2/B, Shree Gopal Mullick Lane, P.S.-Muchipara, Kolkata -700 012 was mentioned as a property forming the subject matter of the Will.

4. Record postulates that initially the application for grant of letters of administration was registered as LA case no. 30 of 2010 but Rabin resisted the grant of letters of administration by filing written objection rendering the case as contentious cause. The case was renumbered as O.C. no. 21 of 2014 and was transmitted to the learned Court below for disposal.

5. The grounds on which resistance was raised against grant of letters of administration, inter alia, are that such application is not maintainable. Jahar used t