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2007 DIGILAW 278 (CAL)

GITA SARKAR ALIAS GITA GHOSH v. KALIPADA GHOSH

2007-04-10

PRABUDDHA SANKAR BANERJEE

body2007
( 1 ) THIS revisional application is one under Section 115 of the Civil procedure Code and alternatively under Article 227 of the Constitution of india and is directed against Order dated 12. 9. 2005 passed by the learned additional District Judge, 4th Bench, Barasat in connection with Misc. Case no. 7 of 2005. ( 2 ) THE said Misc. case arose out of O. S. No. 35 of 1998. ( 3 ) THE present Opposite Party filed the said suit for grant of probate with respect to Will executed by his father Nepal Chandra Ghosh, the testator as per Section 276 of Indian Succession Act. ( 4 ) THE present petitioner filed the case as he was made executor in the said Will in question. It is to be mentioned here that probate suit was filed by the executor who was the son of the executor and in that application he took the specific plea that he is the only legal heir of the testator. ( 5 ) THE present petitioner filed caveat and contested the said suit. ( 6 ) BY order dated 27. 4. 2005 the said probate suit was allowed. ( 7 ) SUBSEQUENTLY, the present petitioner filed one application under order 47 Rule 1 of Civil Procedure Code praying for review of the said order passed by the learned Additional District Judge. ( 8 ) BY the order impugned the learned Additional District Judge, 4th court, Barasat dismissed the said application which was numbered as Misc. Case No. 7 of 2005. ( 9 ) BEING dissatisfied with the said order of the learned Additional district Judge, the instant revision has been preferred by the present petitioner who filed the application for review before the Court below. ( 10 ) MR. Sabyasachi Bhattacharya learned Counsel for the petitioner challenged the order impugned mainly on the ground that the Court committed error in holding the present petitioner not to be the daughter of the testator. Mr. Bhattacharya also challenged the impugned order on the ground that the Court did not consider that in the judgment dated 27. 4. 2005, the learned Judge did not discuss the issue Nos. 1 and 2 properly and without giving any reason he disposed of those two issues though subsequently he took different view In deciding other issues. Accordingly, Mr. Mr. Bhattacharya also challenged the impugned order on the ground that the Court did not consider that in the judgment dated 27. 4. 2005, the learned Judge did not discuss the issue Nos. 1 and 2 properly and without giving any reason he disposed of those two issues though subsequently he took different view In deciding other issues. Accordingly, Mr. Bhattacharya submitted that the learned Trial Judge committed error in rejecting the application for review of the judgment dated 27. 4. 2005. ( 11 ) IN course of his argument Mr. Bhattacharya contended that the court committed error in passing the judgment in connection with probate suit mainly on the ground that the opposite party who claimed to be the daughter of the testator did not produce any other witness to corroborate her and disbelieved the evidence of D. W. 2. It was further contended on behalf of the present petitioner that subsequently the opposite party of that suit got one newspaper in which it has been stated specifically that the testator died on 24 5. 1996 leaving one son and one daughter and name of the daughter has been specifically mentioned. That has been published in 'pratidin' where this petitioner has been mentioned as the only daughter (Gita Sarkar ). As such, Mr. Bhattacharya prayed for passing appropriate order so that the Court can dispose of the review application afresh after giving an opportunity to the present petitioner to prove the said publication of the newspaper as per law. ( 12 ) THE said pleas were strongly opposed by Mr. Chattopadhyay, learned Counsel for the Opposite Party, who challenged the maintainability of the instant revisional application. Mr. Chattopadhyay took the specific plea that as per Section 299 of the Indian Succession Act, any order passed by the learned Additional District Judge under the provision of Indian succession Act, is appealable and as the present petitioner did not prefer any appeal against the impugned order, the Court should dismiss the revisional application being not maintainable. ( 13 ) IN support of his claim he relied upon cases in between H. H. Dodda Gangadharaiah v. V. H. Channabasavaiah and Anr. , reported in AIR 1970 Mysore 139 and Ladulal and Anr. v. Mahendra Kumar and Anr. , reported in air 1973 Rajasthan 238. On the basis of those reported cases mr. Chattopadhyay contended that the instant revisional application is not maintainable. , reported in AIR 1970 Mysore 139 and Ladulal and Anr. v. Mahendra Kumar and Anr. , reported in air 1973 Rajasthan 238. On the basis of those reported cases mr. Chattopadhyay contended that the instant revisional application is not maintainable. ( 14 ) TO meet this plea, Mr. Bhattacharya drew the attention of the court to the provision of Order 47 Rule 7 of Civil Procedure Code and on the basis of the same he contended that if any application under Order 47 rule 1 is rejected no appeal lies. ( 15 ) I have gone through the cases as referred by Mr. Chattopadhyay. It is seen from the said reported cases that the Hon'ble High Court of Mysore and Rajasthan opined that appeal lies against any order passed under Indian succession Act. ( 16 ) THE instant review application was one under Order 47 Rule 1 of civil Procedure Code and if the same is rejected, no appeal lies as per provision of Order 47 Rule 7. ( 17 ) IN view of the said position, I am of clear opinion that the revisional application is maintainable. ( 18 ) NOW let us come to other pleas as raised by Mr. Bhattacharya which he took in course of his argument. I have already stated that mr. Bhattacharya took the specific plea that the learned Judge was inconsistent in passing the judgment dated 27. 4. 2005 as he did not discuss issue Nos. 1 and 2 properly. ( 19 ) I have gone through the judgment. ( 20 ) THE said two issues were not agitated at the time of argument and accordingly, the learned Trial Judge came to the conclusion that suit was maintainable and the present petitioner who filed the objection had locus stand! to contest the suit. Accordingly, the said plea as taken by mr. Bhattacharya cannot be accepted. ( 21 ) MR. Bhattacharya also took the plea that it was error on the part of the Learned Trial Judge in disbelieving the case of the Opposite Party of that case. e. the present petitioner on the basis of her sole evidence. ( 22 ) I have gone through the judgment minutely. ( 23 ) IT is clear that the Court considered all the pleas as raised before the Court at the time of argument and also considered the evidence-on- record. e. the present petitioner on the basis of her sole evidence. ( 22 ) I have gone through the judgment minutely. ( 23 ) IT is clear that the Court considered all the pleas as raised before the Court at the time of argument and also considered the evidence-on- record. The Court also considered that there was one publication in the paper. ( 24 ) AFTER considering all the materials, which were available before the Court, the Court passed the final judgment on 27. 4. 2005. ( 25 ) IT has become settled proposition of law that under Article 227 of the Constitution the revisional Court should not look into the matter consisting question of fact. In the instant case, the plea as raised by Mr. Bhattacharya is purely question of fact and as such, this Court should not decide the same. ( 26 ) CONSIDERING the pleas as raised by learned Counsel for the parties and also considering the materials-on-record, I am of clear opinion that there was no error on the part of the learned Trial Judge in rejecting the review application. The learned Trial Judge also considered whether the Will was executed out of free volition of the testator and the answer was in the affirmative. Accordingly, this revisional is dismissed on contest being devoid of any merit without any cost. Urgent xerox certified copy of this order be given to the parties within 10 days from the date of this order on proper application. .