JUDGMENT

S. RAVINDRA BHAT, J.

Background

1. This appeal, by special leave, challenges a judgment and order of the Calcutta High Court, (F.A. No. 664/1972, dated 02.02.2007) which affirmed a judgment and decree by the trial court (O.S. No. 7/1969, dated 31.05.1972) allowing a petition for grant of letters of administration under Section 278 of the Indian Succession Act, 1925 (hereinafter, “Act”). The aggrieved defendant is the appellant before this court.

2. The facts in brief are that one Gosaidas Samanta (hereinafter, “testator”) had three sons – Upendra, Anukul and Mahadev. He died, survived by his three sons and widow Bhagbati Das, and left behind a will dated 16.11.1929. The testator bequeathed his estate among three heirs – his sons Anukul and Mahadev, and his grandson Shibu, the son of Upendra (who was not granted any share). On 21.02.1945, a partition deed was drawn between these three co-sharers. This arrangement was apparently accepted by Upendra, who executed a disclaimer document, in respect of one part of the properties, sold by Shibu, out of his share.

3. In 1952, alleging that he was in occupation of a part of the properties owned by the testator, and that he had purchas