2016 Supreme(Cal) 1063

IN THE HIGH COURT OF CALCUTTA
RANJIT KUMAR BAG, J.
Hubert Probhat Pereira - Plaintiff
Versus
Narayan Adhya and Ors. - Defendants
C.S. No. 427 of 2014
Decided On : 03-11-2016

Headnote:

WILL - INTERPRETATION - SUIT FOR DECLARATION OF RIGHT, TITLE AND INTEREST IN PROPERTY - APPLICATION FOR GRANT OF PROBATE PENDING - APPLICANT APPOINTED AS EXECUTOR OF THE WILL - CONSENT DECREE PASSED IN EARLIER SUIT - TERMS OF SETTLEMENT INCORPORATED IN THE DECREE - WHETHER THE EXECUTOR CAN INSTITUTE THE SUIT AS A LEGAL REPRESENTATIVE WITHOUT GRANT OF PROBATE - WHETHER THE SUIT IS MAINTAINABLE - INTERPRETATION OF CLAUSE 5 OF THE TERMS OF SETTLEMENT - WHETHER THE ELDEST SON ALONE OR ALL THE SONS OF THE TESTATOR ARE ENTITLED TO THE PROPERTY - CONSTRUCTION OF THE TERM "A NATURAL SON" MENTIONED IN CLAUSE 5 OF THE TERMS OF SETTLEMENT.

Fact of the Case:

The suit property was originally owned by one Shyamal Kishore Adhya who died on June 11, 1937, leaving a Will in respect of his properties, including the suit property. The Official Trustee of Bengal, as the executor of the Will, filed an application for grant of probate, which was registered as Testamentary Suit No.21 of 1937. The suit was decreed on April 6, 1950, in accordance with the terms of settlement arrived at between the parties. Baidyanath Adhya, the father of the defendants and predecessor-in-interest of the plaintiff, acquired life interest in the properties of his father, Shyamal Kishore Adhya, as per the terms of settlement in the said suit. The probate proceeding was ultimately dismissed in accordance with the terms of settlement. By virtue of the terms of settlement in Testamentary Suit No.21 of 1937, the suit property was devolved upon all the natural born sons of Baidyanath Adhya after his death on July 8, 1971.

Finding of the Court:

1. The suit instituted by the plaintiff as executor of the Will of Panchanan Adhya for declaration and permanent injunction is maintainable in law. 2. The suit is not barred under Article 58 of the Limitation Act, 1963. 3. The plaintiff, as the executor of the Will of Panchanan Adhya, is entitled to institute the suit for establishment of right of the legal heirs of the testator in the suit property. 4. The bar under Section 213(1) of the Indian Succession Act, 1925 cannot be made applicable in the facts of the present case. 5. The term "a natural son" mentioned in Clause 5 of the terms of settlement incorporated in the consent decree of Testamentary Suit No.21 of 1937 will include "all natural sons born to Baidyanath." 6. Panchanan Adhya did not become the sole owner of the suit property described in Schedule "A" of the terms of settlement being made part of the decree dated April 6, 1950, passed in Testamentary Suit No.21 of 1937. 7. Baidyanath Adhya had the right to transfer or convey right, title and interest in respect of part of the suit property namely 21, Prananath Pandit Street as the same was acquired by Baidyanath Adhya by virtue of the order passed by the court in connection with Testamentary Suit No.21 of 1937. 8. All the sons of Baidyanath including Panchanan have acquired right, title and interest in the suit property jointly in equal 1/5th share. 9. Each of the defendants being four brothers of Panchanan Adhya are entitled to joint ownership in the suit property along with Panchanan Adhya in equal 1/5th share. 10. The plaintiff being the executor of the Will of Panchanan Adhya is entitled to get the decree for declaration of his 1/5th joint share in the suit property. 11. The plaintiff is also entitled to get permanent injunction restraining the defendants from interfering with the joint 1/5th share of the plaintiff in the suit property.

Issues: 1. Is the suit maintainable in its present form and in law? 2. Is the suit barred by limitation? 3. Is the plaintiff entitled to institute the present suit as Executor of Estate of Panchanan Adhya and to represent the Estate of Panchanan Adhya? 4. Is the decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937 in accordance with terms of settlement binding upon the defendants? 5. Has Panchanan Adhya become the sole owner of the suit property described in Schedule "A" of terms of settlement being made part of the decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937? 6. Had Baidyanath Adhya any right to transfer or convey right, title, interest of the properties described in Schedule "A" of the terms of settlement being made part of the decree dated April 6, 1950 in Testamentary Suit No.21 of 1937? 7. Can the defendants claim ownership in the suit property? 8. Are the sons of Baidyanath Adhya born after the birth of Panchanan Adhya being the defendants joint owners of the suit property? 9. Is the plaintiff entitled to get the decree for declaration and permanent injunction as prayed for? 10. Is the plaintiff entitled to get any other reliefs under law and equity? 11. Can the registered instrument dated April 1, 1953 executed by Baidyanath Adhya override the decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937?

Ratio Decidendi: 1. The executor of a Will can institute a suit for establishment of right of the legal heirs of the testator in the suit property, when the plaintiff wants to establish the right not on the basis of the Will, but independent of the Will. 2. The bar under Section 213 of the Indian Succession Act, 1925 is only in respect of establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. 3. The term "a natural son" mentioned in Clause 5 of the terms of settlement incorporated in the consent decree of Testamentary Suit No.21 of 1937 will include "all natural sons born to Baidyanath."

Final Decision: The suit decreed in part, but without any cost. The decree be drawn up expeditiously. The Receiver appointed in connection with this suit is discharged with direction to submit the statement of accounts before the parties to the suit through their Learned Advocates within a period of four weeks from the date of this order.