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2005 DIGILAW 430 (GAU)

Til Bahadur Konwar v. Dilu Sahu

2005-06-03

ANIMA HAZARIKA

body2005
JUDGMENT A. Hazarika, J. 1. That the short question that requires for determination in this case is as to whether on remand by this Court in L.P.A. No. 14 of 1993 in F.A. No. 18 (SH) 1989, to the trial court, with a direction to proceed with the case after ensuring the presence of the parties has been complied with, if not, whether the learned trial Court is justified in decreeing the Probate Case No. 28(T) of 1981 ex-parte, in favour of the opposite party in the present case and whether the service of summon on Swaraswati wife of Appellant can be construed as sufficient and can be treated as service duly served on the Appellant. 2. In order to determine the said question, the brief facts of the case is required to be narrated. The Probate Case arises out of a will executed by late Kul Bahadur Konwar in favour of the opposite party Smti Dilu Sahu, who was admittedly not related to the said Kul Bahadur Konwar (since deceased). The said Kul Bahadur Konwar died on 23.7.78 and on 28.8.81 an application for probate to the said will was filed before the learned Additional Deputy Commissioner, Shillong. In the said application for granting probate no one was shown as the next of kin of the deceased. Therefore, a general notice was issued and as no objection was filed, the learned court below examined the opposite party Dilu Sahu and two other witnesses and an ex-parte order was passed on 12.10.81 granting probate of the will. 3. Knowing the facts of ex-parte order granting probate of the alleged will, the present Appellant filed an application on 26.2.1982 for cancellation of probate contending inter alia, that the executing of the will used to live with Til Bahadur, present Appellant till his death and late Kul Bahadur was not mentally and physically fit to execute the will since he was addicted to drinks and as such he was suffering off and on in his later part of his life. He further contended that the opposite party in collusion with her husband got the forged will executed and fraudulently and surreptitiously managed to take the ex-parte order of probate, by suppressing the material facts knowing fully well that the Appellant is the brother of Late Kul Bahadur Konwar and therefore prayed for cancellation of the probate. 4. He further contended that the opposite party in collusion with her husband got the forged will executed and fraudulently and surreptitiously managed to take the ex-parte order of probate, by suppressing the material facts knowing fully well that the Appellant is the brother of Late Kul Bahadur Konwar and therefore prayed for cancellation of the probate. 4. The opposite party has entered appearance and submitted the objection denying the allegations made in the application and prayed for dismissal of the application. The learned court below after hearing the parties rejected the said application which culminated in filing First Appeal before this Court being F.A. No. 18 of 1989. The said First Appeal came up for hearing on various dates and the court delivered the judgment on 16.9.93 and remanded the case after setting aside the judgment impugned in the First Appeal with a direction to consider the entire matter after keeping in view the law regarding competency of a person to execute the will and the manner in which a will has to be attested. 5. Being aggrieved with the aforesaid judgment of remand dated 16.9.93 passed in F.A. No. 18 of 1989, the opposite party (herein) has preferred a Letter Patent Appeal before the Division Bench of this Court being L.P.A. No. 14 of 1993 in F.A. No. 18 of 1989. The said L.P.A. No. 14 of 1993 came up for hearing on 3.4.2001 and the Division Bench of this Court dismissed the appeal with a direction to the learned trial Court to proceed with the case after ensuring the presence of the parties. 6. On remand the learned trial Court received the case record and the relevant orders passed by the Court below are quoted hereunder: 20.3002- C.R. put up on call. Seen the judgment and order (oral) of the Hon'ble Gauhati High Court in L.P.A. No. 14 of 1993 in F.A. No. 18/89 wherein the Hon'ble Division Bench of the Hon'ble Chief Justice Shri N.C. Jain and Hon'ble Justice D. Biswas has directed in the said judgment that this Court to proceed with the case in hand and to issue notice to the parties informing them of the same. Accordingly, as directed, let notice be issued to the parties and fix next date for appearance. Fix 23.4,02 for appearance. 23.4.02- Petitioner has entered appearance through lawyer Shri V.K. Jindal, Sr. Advocate assisted by Shri L. Lyngdoh, Advocate. Accordingly, as directed, let notice be issued to the parties and fix next date for appearance. Fix 23.4,02 for appearance. 23.4.02- Petitioner has entered appearance through lawyer Shri V.K. Jindal, Sr. Advocate assisted by Shri L. Lyngdoh, Advocate. No. report of the notice issued upon the objector about service report. Fix 8.5.02 for S/R 27.5.02- Petitioner present. No. report on the notice issued upon objector. Petitioner to take fresh steps for service. Fix 11.6.02 for S/R. 11.6.02- None appeared. No service report, await service report. Fix 26.6.02 for S/R 26.6.02- Appellant filed Hazira, but not present on call. No service report. Fix 12.7.02 for S/R 12.7.02- Appellant filed Hazira, but not present on call. No service report. Let Anr. notice from the court be issued upon the Respondent. Fix 16.8.02 for report. 16.8.02- Petitioner is present through counsel Shri V.K. Jindal, Sr. Advocate. It is seen that notice served upon the objector has been duly received and a report to that effect has also seen. However the objector has not appeared in court today. Let Anr. chance be given to the objector to appear in court. Fix 30.8.02 for appearance. 30.8.02- Petitioner file Hazira. The objector/opp party has not yet made any appearance inspite of receipt of notice. In the events this matter will proceed ex-parte. Fix 18.9.02 for ex-parte hearing. 7. Accordingly the probate Misc. Case No. 28(T) of 1981 proceeded ex parte. The learned trial Court vide judgment and order dated 21.4.2003 has decided the probate case, whereby the will of Kul Bahadur Konwar in which the testator has bequeathed his land and property to the opposite party has accordingly probated. 8. The present Petitioner on coming to the said facts of granting probate in favour of the opposite party in probated Misc. case No. 28(T) 1981 has filed an application under Order 9 Rule 13 of the Code of Civil Procedure on 27.4.2004 for setting aside the judgment and order dated 21.4.2003 passed ex-parte. In the said application under order 9 Rule 13 of the Code, the Petitioner has averred the following statements supported by an affidavit. On receipt of the said application a case has been registered being Misc. Application No. 5(T) 2004 in probate Misc. case 28(T) 81. 9. The categorical averment made in the said application would show that the notice has not been served on the Petitioner. On receipt of the said application a case has been registered being Misc. Application No. 5(T) 2004 in probate Misc. case 28(T) 81. 9. The categorical averment made in the said application would show that the notice has not been served on the Petitioner. The said application has been filed supported by an affidavit. The relevant portion of the statement is quoted hereunder: Paragraph 11- That, thereafter on 12th April, 2004, to his utter shock and surprise, your Petitioner learnt that this Hon'ble Court had already passed order and judgment ex-parte against your Petitioner holding that your Petitioner failed to appear before the Hon'ble Court despite receipt of notice. Paragraph 12- That your Petitioner respectfully submits that no notice whatsoever regarding the Fresh Trial of the Probate Case in terms of the order of the Hon'ble High Court was ever received by your Petitioner. It was only when your Petitioner came to know about the fate of the L.P.A. he made enquiries and found that this Court has passed judgment and order ex-parte against your Petitioner holding that your Petitioner had failed to appear before the court despite receipt of notice. In this connection your Petitioner begs to submit that he has spent all his life's earning in defending his interest and had he received the notice he would have certainly appeared before this Hon'ble Court. Paragraph 13- That further the lawyers engaged by your Petitioner at Shillong to conduct the probate case did not inform your Petitioner that the case has been remanded to this Hon'ble Court. Paragraph 14- That unless the ex-parte judgment and order dated 21.4.03 is vacated and the operation of the same is stayed, your Petitioner shall suffer irreparable loss and he would be denied justice. Paragraph 15- That it is in the interest of justice, equity and fairplay that the judgment and order dated 21.4.2003 be vacated and the Probate case be tried in terms of the judgment and order of the Hon'ble High Court. Paragraph 16-That this petition is filed most bonafide and in the interest of justice. 10. The material evident on record would show that the learned trial Court issued notice on the opposite party and the opposite party has filed an objection contending inter alia, that the petition made under Order 9 Rule 13 is misconceived. Paragraph 16-That this petition is filed most bonafide and in the interest of justice. 10. The material evident on record would show that the learned trial Court issued notice on the opposite party and the opposite party has filed an objection contending inter alia, that the petition made under Order 9 Rule 13 is misconceived. She has further averred that the notice was duly served on him, but he did not contested the case and the learned court has no other option but to proceed with the case ex-parte vide order dated 23.4.2003 and the judgment and order dated 21.4.2003 has been rightly passed granting probate in her favour. She has further raised the question of limitation in filing the instant plication and the affidavit sworn by the Petitioner verifying the statements in paragraphs 1 to 13 to the best of his information, which is hit by Order 19 Rule 3 to the Code of Civil Procedure and there being no other evidence or material except the affidavit, the petition is required to be dismissed. 11. The learned court below took the Misc. Case No. 5(T) 2004 in probate case No. 28(T) of 81 on 23.9.2004 for hearing. The argument advanced by the parties would reveal, that the question of limitation, sufficient cause and notice whether served on the Petitioner are the questions raised before the learned court below. After hearing the parties the learned trial Court has taken the point as to whether the notice served upon the wife of the Petitioner can be construed as valid. The learned trial Court has quoted Order 9 Rule 13 and has referred Order 5 Rule 15 of the Code of Civil Procedure and dealt with the only question of summons received by Swaraswati and came to a finding that there is no reason to doubt that Smti. Swaraswati has received the notice on Petitioner's behalf, identifying herself as the wife of the Petitioner and therefore, holding that the Petitioner has failed to satisfy the court that the summon was not duly served and rejected the petition and hence this application under Rule 36 of the Administration of Justice and Police in the East Khasi Hills District (Adminsitrered Areas), Shillong before this Court being FAO No. 5 (SH) 2004 praying for setting aside the order dated 23.9.2004 passed in Civil Misc. Application No. 5(T) 2004 by the learned Additional Deputy Commissioner, Shillong. Application No. 5(T) 2004 by the learned Additional Deputy Commissioner, Shillong. 12. The case has been heard at length. The only limited question is raised by the counsel of the parties as to the summons received by Swaraswati can be construed as valid summon served on the Petitioner. In order to determine the said question, two essential factors are to be considered by this Court viz. a) whether the Petitioner has shown sufficient cause for non appearance in the case? And b) whether the relevant procedure in regard to service of summon on the Petitioner has been complied with? 13. To answer the questions this Court has perused the relevant records and notice alleged to have been served on Swaraswati. The notice is quoted hereunder: IN THE COURT OF ADDITIONAL DEPUTY COMMISSIONER (SHRI W DIENGDOH) EAST KHASI HILLS DISTRICT AT SHILLONG Probate Misc. case No. 28(T) 81 Smti Dilu Sahu Petitioner Vs. Shri Til Bahadur Konwar objector/Opposite Party NOTICE Shri Til Bahadur Konwar S/o late Umananda Konwar Bishnupur, Shillong Take Notice, that the records of the aforesaid case has been received by this Court on transfer/remand by the Hon'ble High Court and the court has fixed 26th day of June, 2002 at 10.30 A.M. for your appearance either personally or through a duly instructed attorney or counsel. You are hereby required to appear on the date and time mentioned above failing which the case shall proceed ex-parte against you. Given under my hand and seal of this Court this the 13th day of June 2002. Sd/- Illegible Sheristadar Court of District and Sessions Judge, Shillong SWARASWATI/WIFE 19.7.2002 14. On the reverse of the notice the process server has written as: Sir, I beg to report that the notice have been served by me and was received by his wife Smti Swarasati Devi for Shri T.B. Konwar. Reported by, Sd/- Illigible 23.7.2002 Solemnly affirm Process duly served By Shri N. Syiem P.S. Nazir Shillong 15. Procedure and the manner in regard to method and proof of service is prescribed fully in Civil Court Rules and Orders of Gauhati High Court. Reported by, Sd/- Illigible 23.7.2002 Solemnly affirm Process duly served By Shri N. Syiem P.S. Nazir Shillong 15. Procedure and the manner in regard to method and proof of service is prescribed fully in Civil Court Rules and Orders of Gauhati High Court. The relevant portion is quoted hereunder: 64 (1) A party shall not ordinarily be required to supply an identifier for the purpose of serving a summons or notice or any other process on the Defendant, Respondent, witness or other person whether issued by any subordinate Court or the High Court or receive from Courts outside its jurisdiction and the service officer shall serve the summons, notice or process after due enquiry as to the identity of the person on whom, or the house or property, where, the same is served. The serving officer shall serve in the presence of at least two independent local residents and he shall wherever possible, obtain the endorsement by signature or thumb impression of at least two persons of the locality. Note 1- There being no legal obligation upon a Plaintiff, decree-holder or Appellant to supply an identifier for service of any process, no process-serving peon must return unserved any notice, process or summons merely because no identifier could be had at the place of service. He must make every possible endeavour to find out the person on whom, or the house or property where the process is to be served. Note 2- All process-serving peons may take necessary help of the Gaonburahs, Chowkidars, Dafadars and Panchayat members when they go out for execution of processes generally to rural areas. Wherever possible, a Gaonburah or a Chowkidar or a Dafadar or a Panchayat member as the case may be made a witness for actual service or execution of the process. Note 3- The Nazir should personally scrutinize all cases in which the peon reports that he could not find the person on whom or the house or property where the service was to be made, and he should bring all cases in which the peon appears to be at fault to the notice of the Judge in-charge. Note 3- The Nazir should personally scrutinize all cases in which the peon reports that he could not find the person on whom or the house or property where the service was to be made, and he should bring all cases in which the peon appears to be at fault to the notice of the Judge in-charge. (2) If it appears to the Court that sufficient information is not given as to the identity and place of residence of the person on whom, or the house or property where a process is to be served, or it the Court is satisfied from the declaration of the serving officer or upon his examination an oath that the person to be served or the house or property could not be identified after due diligence and enquiry, it may ask the party concerned to supply an identifier. 65. If the person addressed is absent from his residence at the time of attempted service and there is no likelihood of his returning there within a reasonable time and there is no agent empowered to accept service on his behalf, nor any other person on whom service can be made, service shall be effected in the manner directed in Order 5, Rule 17. The report of the serving officer should state the ground of his belief that the person was absent from his residence at the time of attempted service and that there was no likelihood of his returning within a reasonable time and that there was no agent empowered to accept service nor any other person on whom service could be made; and in any case that on the door of the outer house or some other conspicuous part of which a copy of the process was affixed, was the ordinary residence or place of business of the person address at the time when it was so affixed. 66. 66. If the service is made under Order 5 Rule 15, the report of the serving officer should clearly state, with grounds of his belief that the person was absent from his residence at the time of attempted service and there was no likelihood of his returning within a reasonable time, and that he had no agent empowered to accept the service, and that the person, to whom the process was delivered was an adult male member of his family, and was actually residing with him at the time of such service. 16. To be more precise Order 5 provides for the procedure and the mode in which summons in a suit are to be served. Rule 9 provides for delivery of summons by court. Under Rule 9 the summon is required to be served by delivering or tendering a copy thereof but if the Plaintiff so chooses or the court so desires, the court may serve the summons in the first instance by registered post (acknowledgment) instead of delivery or tendering of the same. Rule 12 lays down that whenever it is practicable, service shall be made on the Defendant in person unless he has an agent empowered to accept service in which case service on such agent shall be sufficient. Rule 15 provides that when Defendant is absent from his residence it may be made on any adult member of his family. Rule 16 imposes a duty on the serving officer to obtain signature of the person to whom the copy of the summon is delivered. Rule 17 provides for effecting service by affixing a copy of summons on the outer door or some other conspicuous post of house in which the Defendant ordinarily resides or carries on business or works for gain. Rule 20 provides for substituted service. 17. While advancing the argument, the learned Counsel, appearing on behalf of the Appellant has referred the following decisions in support of his contentions viz; (1992) 2 GLR 445 (Sushill Kumar Saha v. Juran Chandra Saha) 1996 (1) GLT 187 : (1996) 1 GLR 474 (Sunanda Choudhury v. Ashok Kumar Choudhury) 2003 (3) GLT 63 : (2003) 3 GLR 626 (Pukhrambam Budhichandra Singh v. Th Nilamani Singh) AIR 2004 Delhi 405 (Ravi Datt v. Chuni Lal) (2002) 5 SCC 377 (Sushil Kumar Sabharwal v. Gurpreet Singh and Ors.) AIR 1992 Gaul 21 (Shila Nath Mallick and Ors. v. Balabhadra Sutradhar Ors.) 18. The case reported in (1992) 2 GLR 455 has squarely support the case in hand. This Court has dealt with regard to service of the summons as required under Order 5 Rule 12, 17 and 19 of the Code of Civil Procedure. The relevant paragraphs 8 and 9 are quoted hereunder: 8 The Process Server claimed to have served the summons on the Petitioner as he was identified by the wife of the opposite party. The two other witnesses, who were present; one was a close relation of the opposite party and other one against whom a case was pending. The trial Court accepted the service of summons immediately on the next day without ascertaining all these facts, even ignoring the provisions of law the Court is required to follow. I am dazen to see the manner in which the summons were served. Immediately after two days of filing the suit, the process server served the summons and the Court accepted it without further enquiry. These facts cannot be said to be beyond suspicion. The Trial Court should not have accepted the summons the manner in which it was done. The Appellate Court also over looked all these facts and the provisions of law and rejected the petition for restoration of the suit. The Courts below thus failed to exercise the jurisdiction-vested in them for not accepting the petition for setting aside the ex parte decree. 9. Under Rule 64(1) of the Civil Rules and Orders (Vol-I) also requires the service of summons in presence of at least two independent local witnesses. In Form No. (P) 1-A of Civil rules and Orders (Vol-II), page 258, Note 3 mentions that such service must be in presence of at least two independent local witnesses. These were not at all considered by the Courts below. The order sheet, notice alleged to have been served on the wife of the Petitioner and the report of the process server in the present case would show that learned trial Court's accepting the notice of summons, as duly served, cannot be accepted by this Court, in view of the decisions of this Court as indicated above. 19. The case referred to and reported in (1996) 1 GLR 475 (Supra) relates to Section 5 of the limitation Act in an appeal filed under Section 28 of the Hindu Marriage Act. 19. The case referred to and reported in (1996) 1 GLR 475 (Supra) relates to Section 5 of the limitation Act in an appeal filed under Section 28 of the Hindu Marriage Act. The Division Bench of this Court while dealing with the case has occasioned to deal with Order 5 Rule 19 of the Code of Civil Procedure. The Division Bench has held that Order 5 Rule 19 of the Code is mandatory, however in a different context which is not applicable in the instant case. 20. The case reported in (2003) 3 GLR 626 (Supra) this Court has dealt with the mode of service of the summons on the Defendant effected through the father of the Defendant. The father is living in a separate house and not in good terms with the Defendant. The trial Court passed ex-parte decree. Application under Order 9 Rule 13 for setting aside the decree filed, rejected. On revision petition being filed under Section 115 of the Code, the impugned order was set aside and the trial Court directed to rehear the case on merit. 21. The case relied on by the learned Counsel reported in AIR 2004 Delhi 405 (Supra) relates to service of summons as provided under Order 5 Rule 14 and 15 of the Code. In that case, the process server went only on one occasion to the house of the Defendant. He did not go again to find out, whether Defendant would be available at some other time. Refusal by wife to accept summons on behalf of Defendants. The court has held that the summons was not properly affected on Defendant. The facts differs from the case in hand. 22. In Sushil Kumar Sabharwal (Supra), while dealing with the question under Order 9, Rule 13 and Order 5 Rule 17 and 18, the Apex Court held that, court, before exercising its discretion of passing ex-parte decree, must be satisfied that due service of summons was "proved." Summons have to be duly served in due time. Relevant para 12 of the aforesaid case is quoted below: 12. The provision contained in Order 9 Rule 6 Code of Civil Procedure is pertinent. It contemplates three situations when on a date fixed for hearing the Plaintiff appears and the Defendant does not appear and three courses to be followed by the Court depending on the given situation. Relevant para 12 of the aforesaid case is quoted below: 12. The provision contained in Order 9 Rule 6 Code of Civil Procedure is pertinent. It contemplates three situations when on a date fixed for hearing the Plaintiff appears and the Defendant does not appear and three courses to be followed by the Court depending on the given situation. The three situations are: (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the court may make an order that the suit be heard ex-parte. The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being "proved" that the summons was duly served when and when alone, the court is conferred with a discretion to make an order that the suit be heard ex-parte. The date appointed for hearing in the suit for which the Defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or casual approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a Defendant suffering an ex-parte decree or proceedings in the suit wherein he was deprived or hearing for no fault of his. If only the trial Court would have been conscious of its obligation case on it by order 9 Rule 6 Code of Civil Procedure, the case would not have proceeded ex-parte against the Defendant-Appellant and a wasteful period of over eight years would not have been added to the life of this litigation. In the instant case, the Notice alleged to have been served upon the Defendant/Appellant and the acceptance of the same by the court, is not tenable, in the facts and circumstances of the case. The trial Court ought to have taken recourse to other methods, the manner and the procedure prescribed under the law, before accepting the summons on Defendant. The learned trial Court has accepted the service of summons in haste and hence, the same cannot be sustained. 23. The trial Court ought to have taken recourse to other methods, the manner and the procedure prescribed under the law, before accepting the summons on Defendant. The learned trial Court has accepted the service of summons in haste and hence, the same cannot be sustained. 23. The case reported in AIR 1992 Gau 121 (Supra) would show that this Court has set aside the ex-parte decree, holding that the ex-parte decree cannot be passed merely on process server's report. The obligation on the Court rests to make an enquiry about willful absence of the Defendant. The facts of the case relates to non-appearance of the Defendant in the court, and the court's readily accepting the report of the process server, without making any enquiry or examining the process server or other witnesses, to ensure the correctness of the process server's report, that he had served the summons by hanging it on the dwelling houses of the Defendants, at once heard and decreed the suit ex-parte without taking into account of the provision laid down in Order 5 Rule 17 and 19 and Order 9 Rule 6(1) of the Code which safeguards the interest of Defendants. The case referred to above squarely covers the instant case. Therefore, this Court agrees with the law laid down by this Court as referred to above. 24. The question now arises, as to whether in view of the decision referred to above, the Rules quoted and the manner and the procedure prescribed under Civil Court Rules and Orders of High Court, in regard to service of summons on the Defendant, the same can be accepted as valid notice. In the order sheet, the notice served on the wife Swaraswati, dated 19.7.2002 and the report of the process server would indicate that the learned trial court accepted the notice holding that the summon is duly served without following the due procedure, manner prescribed by law. A close scrutiny of the signature of Smti Swaraswati would show that, she has singed the summons as acknowledged in capital letter, and she perhaps could not properly spell the word wife because there is over writing and the report of the process server cannot be termed as complete as provided under Civil Court Rules and Orders and/or as provided under Rule 5 of the Code. 25. 25. Apart from the flaw as indicated above, the learned court below has not examined either title Petitioner or the wife or the process server in order to ascertain the factum of service of notice of summons on Swaraswati. The learned court has failed to adopt any other procedures prescribed under Order 5 of the Code. In absence of other procedures adapted and/or followed in the instant case, this Court is inclined to hold that the notice alleged to have been served on Smti. Swaraswati cannot be termed as valid summon served on the Petitioner. 26. Now the next question arises as to whether the Appellant has shown sufficient cause for setting aside the order dated passed ex-parte. The statement made in the application dated 27.4.2004 would show that he has shown sufficient cause for setting aside the ex-parte order. The statements, made particularly from paragraphs 11 to 16 of the application would show that he made a categorical statement that the summon has not been duly served upon him. In the instant case, the summon was served on his alleged wife Smti. Swaraswati, and admittedly it was not served upon the Petitioner and the Petitioner has made out a case, that the necessary proof of service is required under the Rule was not given before the court and the court proceeded ex-parte under Rule 6 of Order 9 of the Code without following the mandatory provision as provided under Order 5 Rule 19 of the Code, and therefore, this Court holds that the Appellant has shown sufficient cause for setting aside the judgment and order dated 21.4.2003 passed in Probate Misc. Case No. 28(T) 81 by the learned Additional Deputy Commissioner, Shillong and accordingly the order dated 23.9.2004 passed in Civil Misc. Application No. 5(T) 2004 by the learned Additional Deputy Commissioner, Shillong is set aside. 27. In the result FAO No. 5 (SH) 2004 is allowed by setting aside the order dated passed in Civil Misc. Application No. 5(T) 2004 passed by the learned Additional Deputy Commissioner, Shillong and consequently the judgment and order dated 21.4.2003 passed in Probate Misc. Case No. 28(T) 1981 by the Additional Deputy Commissioner, Shillong is also set aside and the learned Additional Deputy Commissioner, Shillong, is directed to take the case afresh and decide the case in accordance with law. 28. Case No. 28(T) 1981 by the Additional Deputy Commissioner, Shillong is also set aside and the learned Additional Deputy Commissioner, Shillong, is directed to take the case afresh and decide the case in accordance with law. 28. Considering the facts stated hereinabove the parties will bear their own costs. 29. The Registry is directed to transmit the case records immediately.