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2004 DIGILAW 177 (CAL)

SIBAJI MITRA v. PRAKASHWATI CHOPRA

2004-03-11

J.K.BISWAS

body2004
J. K. BISWAS, J. ( 1 ) THE Court: This is an application under Chapter 13a of the Original Side Rules. The plaintiff is the executor, heir, legal representative and a legatee of the last Will and testament of his father, late Sachindra Nath Mitra. ( 2 ) MR. Pratap Chatterjee, learned senior counsel, appears for the plaintiff. He submits that in the capacity of executor the plaintiff has filed the suit, and in the suit the present application has been filed under Chapter 13a. The suit has been filed for eviction of the defendants from the suit properties. The suit properties were properties of the testator. The plaintiff has applied for probate of the Will. Such application is pending. In the circumstances, on the basis of the ratio of the Division Bench decision of this Court in Prabhat Nath Das v. Ramendra Kumar Saha, ILR 61 1081, the present application may be adjourned for some time. At the present moment, in the absence of probate, the plaintiff will not be entitled to recover the decree, if one is passed in the Chapter 13a application, though he can lawfully file it. ( 3 ) MR. Dutt, learned senior counsel, appears for the defendants. He submits that in view of the Division Bench decision of this Court in Bibhuti Bhusan Roy and Anr. v. Narendra Narayan Ghosh and Ors. , AIR 1951 Cal 228 (DB), the suit is not maintainable. The suit and the application both are not maintainable, because without obtaining probate the plaintiff, qua executor of the Will of the testator (the owner of the suit properties), is not empowered or entitled to file the suit for eviction. The Will itself is a nullity, as life estate was sought to be given to the widow of the testator, though after 1956 the concept of life estate has lost its legal force. The daughters of the testator, who are co-owners of the properties, having not been made parties, the suit is hit by the provisions of order 1 Rule 9 of the Code of Civil Procedure, 1908. The heirs of the owner of the suit properties (including the present plaintiff) by their overt acts abandoned the lease whereunder the owner had let out the properties to the defendants. The heirs of the owner of the suit properties (including the present plaintiff) by their overt acts abandoned the lease whereunder the owner had let out the properties to the defendants. As Will appear from the rent receipts issued by the heirs, the tenancy was converted to a monthly one, to be governed by the West Bengal Premises Tenancy Act, 1956. It will now be governed by the West Bengal Premises Tenancy Act, 1997. In view of section 44 of this Act the present suit cannot be filed in this Court. All these questions require determination by trial. So there is no reason to adjourn this application to enable the plaintiff to obtain for proceeding with it. If the present application is kept pending, the defendants will suffer loss and prejudice, because during its pendency they are not entitled to file their written statement. Hence the application should be dismissed with costs. ( 4 ) AFTER hearing the learned counsel for the parties, I find that the first question that arises for decision is: whether the application should be adjourned to enable the plaintiff to obtain the probate. ( 5 ) MR. Chatterjee has relied on the decision in Prabhat Nath's case. I find from this decision that the Division Bench of this Court held as follows:. . . . . . . . THE grant of a probate is not a condition precedent to the institution of the suit by the executor. See Chandra Kishore Roy v. Prasanna Kumari Dasi (1 ). There cannot be any doubt that the appellant had right to institute the present suit as executor before he obtained the probate. Whether as executor he would be entitled to recover the decree or to maintain the same passed by the trial Court without producing the probate is an entirely different matter. It is well established on authorities that he will be entitled to get a decree, if he produces the probate before the passing of the final decree. . . . . It is well established on authorities that he will be entitled to get a decree, if he produces the probate before the passing of the final decree. . . . . ( 6 ) I find from the decision in Prbhat Nath's case that to enable the plaintiff there to obtain the probate, and then to invite the Court to consider the question of passing the decree in the suit filed by the plaintiff there, the Division Bench of this Court granted the plaintiff five month's time, and the Lower Appellate Court was directed to take up the appeal for hearing after five months. ( 7 ) IN Bibhuti Bhusan's case - relied on by Mr. Dutt - the facts were these. Two suits were filed against one Nripendra Bala. The suit were C. S. No. 37 of 1936 and C. S. No. 328 of 1937. Nripendra Bala died leaving her Will, wherein her son Durgacharan was appointed the executor. In Suit No. 37 of 1936 Durgacharan was substituted in place of Nripendra Bala as executor of her Will, probate whereof was yet to be taken. His sister Saraswati was also impleaded in this suit, and she was impleaded as legatee under the Will left by Nripendra Bala. In Suit No. 328 of 1937 only Durgacharan was substituted for Nripendra Bala. In it Durgacharan was substituted as her heir, and not as executor of her Will. Both the suits were decreed and the same property was sold in execution of both the decrees. The question arose: which sale was the valid one. It was held by the Division Bench that the sale that took place in execution of the decree passed Suit No. 328 of 1937 was the valid one, because here the estate of the deceased testatrix was properly represented by Durgacharan as her son and heir, and not as executor. It was held that since in Suit No. 37 of 1936 Durgacharan was substituted as executor of the estate of the deceased, the estate was not properly represented, and hence the decree was not a valid decree. The Division Bench held that an executor cannot represent the estate of the testator in a suit till he obtains probate of the Will. ( 8 ) AFTER considering the two decisions, I am unable to agree with Mr. The Division Bench held that an executor cannot represent the estate of the testator in a suit till he obtains probate of the Will. ( 8 ) AFTER considering the two decisions, I am unable to agree with Mr. Dutt's contention that the Division Bench decision in Probhat Nath's case was impliedly overruled by the subsequent Division Bench decision in Bibhuti Bhusan's case. It seems to me, the two situations, in the two cases were different. In Bibhuti Bhusan's case the question was whether without obtaining probate of the Will the executor was entitled to file a suit regarding the properties of the testator. The Division Bench held that obtaining of probate is not a condition precedent for filing the suit, though the executor is not entitled to recover the decree without producing the probate. In Bibhuti Bhusan's case the situation was otherwise. Here the question was whether the executor could represent the estate of the deceased without obtaining probate of the Will. In this context the Division Bench held that without obtaining the probate the executor would not be entitled in law to represent the estate of the deceased testator. In my view, there was no scope of overruling the previous Division Bench decision by the subsequent one. ( 9 ) I find that the principle laid down in Prabhat Nath's case would squarely apply to the present case. The suit and the present application filed by the plaintiff cannot be said to be not maintainable on the ground that the plaintiff who is the executor of the Will of the owner of the suit properties, is yet to obtain probate of the Will. Since the suit is maintainable, in my view, the present application is also maintainable. For pendency of the present application the defendants do not suffer any prejudice. For not getting a chance to file the written statement, I am of the view, the defendants cannot suffer any prejudice whatsoever. The right to file this application was available to the plaintiff under the rules contained in Chapter 13a of the Original Side Rules of this Court. There was no scope for the plaintiff to wait for the grant of probate, because by that time the opportunity to file an application under Chapter 13a would have been lost. The right to file this application was available to the plaintiff under the rules contained in Chapter 13a of the Original Side Rules of this Court. There was no scope for the plaintiff to wait for the grant of probate, because by that time the opportunity to file an application under Chapter 13a would have been lost. ( 10 ) FOR the above reasons I am of the view that this Chapter 13a application filed by the plaintiff should be adjourned to enable the plaintiff to obtain the probate before proceeding with it. ( 11 ) SINCE I have already held that the application filed by the plaintiff under Chapter 13a should be adjourned to enable the plaintiff to obtain the probate before proceeding with it, I find no necessity to go into the merits of the application at the preset stage. The contentions raised by Mr. Dutt Will be considered in detail when the application comes up for hearing on merit. ( 12 ) HENCE it is hereby ordered that the present Chapter 13a application shall remain adjourned for four months from date, for the time being. If in the meantime the plaintiff obtains the probate, it will be open to the plaintiff to mention the application for inclusion in the cause list for hearing. The application for extension of time to file written statement filed by the defendants is also adjourned for four months from date. Both the applications will be heard together. All parties are to act on a signed xerox copy of this dictated order on the usual undertakings. Order accordingly