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1995 DIGILAW 465 (CAL)

Broja Behari Sen v. Joyanti Sen

1995-12-21

SIDHESWAR NARAYAN

body1995
JUDGMENT 1. This petition in revision is directed against the orders dated 17.5.1991 and dated 20.6.1991, passed by Shri P. Mondal, Assistant District Judge, 10th Court, Alipore in Title Suit No. 114 of 1995 (earlier being Title Suit No.33 of 1950 of the Court of Subordinate Judge, 24-Parganas). As per these orders on one side the natural heirs of the sole deceased plaintiff, Bon Behari, being his wife and three daughters were substituted and one, Mitali Biswas was added as defendant on death of her mother, Jyotsna Rani (Defendant No.4) and on the other side the original petitioner's prayer for dismissal of the suit as abated was rejected. The petitioner's prayer was rejected on the sole ground that the petitioner being not a party to the suit, his prayer for dismissal of the suit could not be entertained. 2. The controversy between the parties centres around a registered deed of Will dated 27.11.1927 with regard to the estate of one, Basanta Behari Sen. The Will has been probated on 3.12.1930 in favour of the sole executrix, Bijan Bala, third wife of the testator. The aforesaid suit for administration and construction of the Will was instituted by one, Binoy Behari Sen, son of the testator on the ground of mis-management of the property under the Will in the hands of the sole executors. It would be relevant to now place the genealogical table of the parties, so as to better appreciate the contentions of the parties. 3. The genealogical table of the parties as follows :- NIL MADHAB SEN Benode Bipin Basanta Behari Sen (died on 9.3.30) Testator Bankim Bimal died on Bijan Bala (3rd wife) 13.5.49 died on 1979 Broja Behari Sen (Original petitioner) Heirs substituted Binoy Behari Sen Bon Behari Sen Jyotsna Original plaintiff /Defdt No.3(died on Rani died on 14.1.86. 20.11.90) transposed (died plaintiff after the on death of original 7/90 plaintiff Mitali Biswas (Daughter) Jayanti Bala Smt. Lachmi Smt. Rama Smt. Madhu (Widow) Ghosh Mazumdar Ghosh (Daughter) (Daughter) (Daughter) 4. After the deatb of the original plaintiff, namely, Benoy Behari Sen, his brother, Bon Bebari Sen was transposed as plaintiff in the suit and, subsequently, on the death of the said Bon Behari Sen, his widow and three daughters have been substituted by the impugned orders. After the deatb of the original plaintiff, namely, Benoy Behari Sen, his brother, Bon Bebari Sen was transposed as plaintiff in the suit and, subsequently, on the death of the said Bon Behari Sen, his widow and three daughters have been substituted by the impugned orders. On the death of Jyotsna Rani (Defendant No.4) i.e. the sister of Benoy Behari Sen and Bon Behari Sen, her daughter, Mitali Biswas was also added as a defendant in the suit by the impugned orders. The Original Revisional Petitioner, Broja Behari Sen being the grandson of the full brother of the testator felt aggrieved of the order rejecting his prayer for dismissal and, instead, allowing the prayer of substitution and addition of party as mentioned above. It may be added that the present petitioners in revision are the substituted heirs of the Original Petitioner, Broja Behari Sen. 5. At this juncture, it would be apposite to place the relevant extract of the Will-in-question, executed by the testator, Basant Behari Sen. The clause of the Will, which appears to have been the bone of contention between the parties is as follows :- "That in case of his two sons, named, Benoy Behari Sen and Bon Behari Sen and/or of his daughter Jyotsna Rani having no son then all his movables and immovables properties excepting 35, Balaram Bose ghat Road House, Calcutta shall go absolutely to his Bhratusputra (Brother's son), Bimal Behari Sen or his heirs". 6. Shri S.P. Roy Chowdhury, learned Counsel for the petitioner has emphatically pointed out that the suit was passing through a phase under which the two sons and one daughter of the testator, namely, Benoy Behari Sen, Bon Behari Sen and Jyotsna Rani are dead and neither of them has left behind any son and, hence, as per the provision made in the Will for such eventuality, the interest of the original petitioner. Bimal Behari Sen (since dead) or his legal heirs (i.e. the present petitioners) has come into existence on the death of Shri Bon Bebari Sen last male decendent of the testator. This submission does not appear to be baseless and, most certainly, a question does arise to construe the deed of Will either to accept the claim of the natural heirs of the testator (i.e. already substituted plaintiff) or the contention of the revisional petitioners as legal representative of the testator's estate under the Will. This submission does not appear to be baseless and, most certainly, a question does arise to construe the deed of Will either to accept the claim of the natural heirs of the testator (i.e. already substituted plaintiff) or the contention of the revisional petitioners as legal representative of the testator's estate under the Will. I would certainly abstrain from expressing any opinion on this vital point and it has to be left for determination by the Trial Court in presence of the contending parties in accordance with law. It may, however, be observed that the revisional petitioners were not altogether strangers. Simply because they were not from amongst the decendent/natural heirs of the branch of the testator, there was no end of the matter. The term of the will, as referred to above, still remains to be construed in proper prospective. 7. It was in the above significant situation of the suit that there was the necessity for the deceased revisional petitioner to come up before the Trial Court with a prayer that the suit was liable to be dismissed as abated. Such prayer was obviously made in the background that at some earlier stage he had put in a petition for adding him as a party but that was rejected by the Order dated 14th September, 1990 of the Trial Court. Subsequently, when the sole surviving male decendent, Bon Behari Sen also died on 20th November, 1990, it was urged on behalf of the revisional petitioner to dismiss the suit as abated. Be that as it may, the question now arises whether the original petitioner had any independent right, title and interest otherwise than as legal heirs. It has been seen above that the petitioner has been able to raise a pertinent question to be decided as to his interest in the property as legal representative (if not as a legal heir). Be that as it may, the question now arises whether the original petitioner had any independent right, title and interest otherwise than as legal heirs. It has been seen above that the petitioner has been able to raise a pertinent question to be decided as to his interest in the property as legal representative (if not as a legal heir). To deal with such eventuality, there is already provision available in the Civil Procedure Code and that is under Order 1 Rule 10(2) of the C.P.C., which reads as follows :- "The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessarily in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added". 8. Since the subject matter of the suit-in-question was the deed of Will in itself, the occasion has now arisen to construe the said document to adjudicate the conflicting claim between the natural heirs and the legal representative of the testator. Therefore, in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in one and the same suit, it was open to take recourse of the provision under Order 1 Rule 10(2) of the C.P.C. 9. In fact, the deceased petitioner had once moved the Trial Court for adding him as a party taking recourse to the provision of law under Order 1 Rule 10(2) of the C.P.C. but the prayer had been then rejected by the Order dated 14th September, 1990. The order of rejection was of course then valid in view of the fact that one of the male decendent i.e., the second son of the testator, Bon Behari Sen was then alive and he being defendant No.3 earlier was transposed to the category of plaintiff on the death of his elder brother, Benoy Behari Sen (the original plaintiff). The order of rejection was of course then valid in view of the fact that one of the male decendent i.e., the second son of the testator, Bon Behari Sen was then alive and he being defendant No.3 earlier was transposed to the category of plaintiff on the death of his elder brother, Benoy Behari Sen (the original plaintiff). The question as to the interest of the original petitioner has arisen only after the death of Bon Behari Sen, which occurred on 20th November, 1990. 10. It would be apposite to refer to the decision of the Supreme Court in the case of (1) Bidyawati v. Manmohan and Ors. reported in AIR 1995 Supreme Court 1653, over which reliance has been placed on behalf of the opposite party but somehow or the other it would also help the revisional petitioners. The principle laid down in this authority indicates that if a person claiming himself to be a legal representative of a deceased defendant wants to be impleaded in the suit as a party defendant and also sets up his own independent right, title and interest. It is open for such person to impleade himself in his independent capacity under Order 1 Rule 10(2) of the C.P.C. or to reserve his right to file an independent suit. The instant case appears to be a fit one in which the above petitioners should have been better advised either to go once again making prayer before the Trial Court for being impleaded under Order 1 Rule 10 or to retain the right to file independent suit ascerting their own right. Since, by the impugned orders the substitution or addition of parties had been granted in favour of only those persons, who are the natural legal heirs of the testator; Basant Behari Sen, I do not think that could be reasonably challenged for any interference by this Court. Of course, while expressing no opinion as to the merit of the disputed clause of the Wilt, it does appear that there was a valid question raised to construe the deed of Will and to determine its real purport. 11. Of course, while expressing no opinion as to the merit of the disputed clause of the Wilt, it does appear that there was a valid question raised to construe the deed of Will and to determine its real purport. 11. Regard being have had to the facts, circumstance and the chequered carrier of the suit passing through the phase of successive deaths, I would observe that the revisional petitioners should either put in a formal petition for being added as defendant in the suit under Order 1 Rule 10 of the C.P.C. or they should simply retain the right to file an independent suit ascerting their own right, title and interest in the property under the Will. In the premises, this revisional petition is dismissed with the observation as above. There shall be however no order as to costs.