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2008 DIGILAW 915 (CAL)

R. S. Lodha v. Laxmi Devi Newar

2008-09-12

KALYAN JYOTI SENGUPTA

body2008
JUDGMENT:- (1.) The Judgment of the Court was as follows: The Court : On 9th May, 2008 in terms of the direction of the Honble Supreme Court this Court took up hearing of the Testamentary Suit being T.S. 6 of 2004 (previously PLA 204 of 2004-In the goods of Priyamvada Devi Birla, since deceased). (2.) Mr. A.K. Mitra appearing with Mr. P. Chatterjee, learned Senior Advocates for the plaintiff/ applicant raised the question of jurisdiction of this Court contending that there has been no lawful assignment of the said testamentary matter. Their basic arguments were noted in the order dated 9th May 2008. Counter-arguments advanced by Mr. S. Pal appearing with Mr. S.P. Sarkar, senior advocates, on behalf of the defendants were also noted. In addition thereto, on several days thereafter detailed arguments were advanced. Before detailed arguments were advanced all the xerox copies of the orders of assignment made by the then Honble Acting Chief Justice had also been supplied to the parties. Presently argument center round in relation to PLA 204 of 2004 now Testamentary Suit (T.S. in short) No. 6 of 2004 on the above question. Mr. A. K. Mitra, learned senior advocate, while referring to the order of assignment in connection with the aforesaid matter, submits that Order dated 30th August, 2004 passed by the Honble Justice Subhro Kamal Mukherjee in connection with G.A. No. 3335 of 2004, having reference to PLA No. 204 of 2004 must be read objectively. He submits that although in the order of release the application for grant of Probate has been mentioned, actually it was not possible for the learned Judge to release the application for grant of Probate on 30th August, 2004 because the same did not and could not appear in the list for hearing and only the interlocutory application in connection therewith being G.A. No. 3335 of 2004 appeared in the list. As such intention of the learned Judge was to release the matter being G.A. No. 3335 of 2004 not to release application for grant of Probate. The order of assignment was obviously passed consequent upon the aforesaid order and this will appear from the docket and the letter written by Mr. N.G. Khaitan. The order of assignment records "the matter now be heard". The order of assignment was obviously passed consequent upon the aforesaid order and this will appear from the docket and the letter written by Mr. N.G. Khaitan. The order of assignment records "the matter now be heard". Obviously, the matter meant and/or related to the said G.A. No. 3335 of 2004 and could not relate to PLA 204 of 2004. If the other orders of assignment are read it will be clear that the intention of the Honble Judge, while releasing the matters, was to release the interlocutory application and not to release the original application. In any event, he contends that the said PLA No.204 of 2004 even if it is assumed that the same was assigned to this Court this matter cannot be heard by this Bench as the status of the Probate proceedings has now been changed from the nomenclature of PLA 204 of 2004 to regular Testamentary Suit on appropriate order being passed by this Court on appropriate application. He has drawn my attention to the relevant provision and portion of the Original Side Rules viz. Chapter XXXV for describing various proceedings adopted by this Court. The PLA, according to him, is used as grant of Probate when there has been no contest at all and once there is contest on setting down the matter as a contentious cause and is treated as regular suit, being Testamentary Suit nomenclature of PLA stands extinguished. Consequently, the effect of order of assignment ceases the moment the said PLA is registered as Testamentary Suit. Since there has been no fresh assignment of Testamentary Suit to this Court this Court cannot hear out this matter. (3.) Mr. S. Pal, learned senior counsel for the defendants, Caveator and Caveatrix, submits that this Court after original matter having been assigned, heard number of proceedings and passed several orders and no one raised the question of jurisdiction. In fact, this Court had passed an order on the application made by the petitioner for treating this application as a contentious cause and by such order the said PLA No. 204 of 2004 was converted to Testamentary Suit. This Court heard out the application for discharge of Caveats at length and the judgment and order of this Court was taken to appeal Courts right from the first appellate Court to the Honble Apex Court. This Court heard out the application for discharge of Caveats at length and the judgment and order of this Court was taken to appeal Courts right from the first appellate Court to the Honble Apex Court. At no point of time, the question of jurisdiction was raised and the Honble Apex Court has decided the matter on merit. Similarly, application for Administrator pendente lite was also heard by this Court in connection with the aforesaid testamentary suit, at that time also question of jurisdiction was not raised. The judgment and order passed by this Court in the application for Administrator pendente lite was taken to Appeal Court and before the Appeal Court question of jurisdiction was not raised. Now, at this stage, for oblique motive to frustrate the order of the Supreme Court this point has been taken. (4.) Mr. S. Pal, learned counsel, submits that from the language of the order dated 30th August, 2004 passed by the Honble Justice Subhro Kamal Mukherjee in connection with PLA No. 204 of 2004 it would be evident clearly that His Lordship was pleased to release the application for grant of Probate. Whether it was released by mistake or not cannot be questioned by anyone else or before any forum except the forum, which has passed such order. In any view of the matter, the entire matter together with the order was placed before the then Honble Acting Chief Justice, and the Honble Acting Chief Justice while noting the said order passed order of assignment on the Administrative Side for hearing of the application for grant of probate by this Court on 31st August, 2004. It will appear from the docket and accompanying letter of request for assignment that this was passed in relation to and connection with the said order dated 30th August, 2004. It is true that in the signed copy of minutes of the order two matters were mentioned viz. G.A. No. 2721 of 2004 and PLA No. 204 of 2004 but there has been no mention of the application being G.A. No. 3335 of 2004. The specific words for release have been used in connection with the application for grant of Probate. As such, there cannot be any doubt the order of release was passed in connection with the application for grant of probate and irrespective of the matter being in the list. The specific words for release have been used in connection with the application for grant of Probate. As such, there cannot be any doubt the order of release was passed in connection with the application for grant of probate and irrespective of the matter being in the list. That is why several orders were passed by this Court from time to time subsequently for hearing of the matter finally and in fact on death of original caveatrix application for substitution was made and such application was allowed by this Court. While responding to argument of Mr. Mitra, Mr. Pal further submits that the order of assignment was for hearing out of the application for grant of Probate whether on contest or without contest. If the application is to be heard on contest then it has to be setdown as contentious cause adopting the procedure provided in Chapter 35 of the said Rules. He further contends that the conversion of an application for grant of Probate into a Testamentary Suit under the procedure of this Court does not lose the character of application for grant of Probate. Therefore, this Court is competent to decide the application for grant of Probate lawfully. It is true that two different nomenclatures have been provided in the Rule in two different stages firstly when an application for grant of Probate is made in case of non-contest-P.L.A and in case of contest Testamentary Suit (TS). According to him, because of description in two different ways and in different stages this application cannot be treated as different proceedings. This is used for convenience and procedural sake. In support of his submission he has referred to the decisions reported in AIR 1944 Patna 144, AIR 1956 Bombay 45 and AIR 1984 Cal 16 . (5.) Mr. P. Chatterjee, learned senior advocate while replying to the said argument has relied on a decision reported in AIR 1938 Sind 36 to persuade me that the moment testamentary application partakes the character of a regular suit it is a separate and independent proceedings. (6.) I have gone through the entire records and all the orders of assignment. At the present moment, the question is whether the PLA No. 204 of 2004 now T.S. No. 6 of 2004 has been lawfully assigned to this Court or not. (6.) I have gone through the entire records and all the orders of assignment. At the present moment, the question is whether the PLA No. 204 of 2004 now T.S. No. 6 of 2004 has been lawfully assigned to this Court or not. Therefore, I think it fit to reproduce the text of the order of release passed by the Honble Justice Subhro Kamal Mukherjee on 30th August 2004: "I am not inclined to take up this application for grant of Probate on my personal ground (emphasis supplied). Let this matter go out of my list and be placed before the Honble Acting Chief Justice for passing necessary order." (7.) It appears that on 31st August, 2004 Mr. N.G. Khaitan while writing on behalf of his clients, Shri Krishna Kumar Birla, Shri Basant Kumar Birla, Shri Ganga Prasad Birla, Shri Yashovardhan Birla, Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta requested to the Registrar, High Court, Original Side, in view of the aforesaid order of release to place the matter before the Honble Acting Chief Justice. It is appropriate to mention that in the letter of request it was mentioned that application for setting down the application for grant of Probate as contentious cause appeared in the list. On the aforesaid date when the same was taken up for hearing, the learned Judge directed this matter to go out of list simultaneously with passing order of release of application for grant of probate. (8.) It is very clear in the said order that the said application being G.A. No. 3335 of 2004 was out listed because of release of the application for grant of Probate itself. The matter was thereafter placed on 31st August 2004 before the then Honble Acting Chief Justice. In the docket the Registrar, Original Side mentioned signed copy of minutes of the order dated 30th August, 2004 with original papers viz. petition for grant of Probate, affidavit of service, order sheet file and original paper Nos. 1A, 1B, 1C, 1D, 1E, 2,3,4,5,6,7,8,9 and letter dated 31st August, 2004 of Mr. N. G. Khaitan and affidavit of assets and seven Nos. of office copy of caveat notice in PLA No. 204 of 2004. The Honble Acting Chief Justice, having noted and considered the aforesaid position passed order of assignment with the words "let the matter be now heard by Justice K.J. Sengupta". N. G. Khaitan and affidavit of assets and seven Nos. of office copy of caveat notice in PLA No. 204 of 2004. The Honble Acting Chief Justice, having noted and considered the aforesaid position passed order of assignment with the words "let the matter be now heard by Justice K.J. Sengupta". I am unable to accept the contentions of Mr. Mitra that the Honble Justice Mukherjee intended to release the said application being no. 3335 of 2004 as it appeared in the list and the Probate application could not be released as it was not in the list. Such contention is patently absurd as application bearing No.3335 of 2004 was made out of list. I cannot correct the mistake of the order alleged to have been committed by another Court as suggested by Mr. Mitra. I am to go by the exact words of the order. Order of assignment was passed in relation to the said order dated 30th August, 2004 by which the application for grant of Probate, which is original proceedings, was released. Obviously when parent proceedings was released interlocutory and off-shoot proceedings will stand released under the practice and procedure of this Court. Had there been any mistake this could have been brought to the attention of the particular learned Judge but not otherwise. Moreover, it is difficult to swallow the story at this stage that no such order was passed by Justice Mookherjee, if it were so otherwise all the parties including Mr. Mitras clients would not have made number of interlocutory application subsequently before me. Indeed several orders were passed on those application, including appointment of Joint Special Officer for making inventory of the assets and properties, for appropriate orders, for protection and preservation of valuable movables which include gold, ornament, jewelry. Therefore, there cannot be any mistake in understanding of all the parties with regard to assignment of the original application qua jurisdiction of this Court. Therefore, I hold that the application for grant of probate being PLA No. 204 of 2004 was assigned to this Court. Thereafter this Court, by appropriate order admittedly, on having found contest, directed to set down the matter as contentious cause and as such the same was registered as regular Testamentary Suit. Therefore, I hold that the application for grant of probate being PLA No. 204 of 2004 was assigned to this Court. Thereafter this Court, by appropriate order admittedly, on having found contest, directed to set down the matter as contentious cause and as such the same was registered as regular Testamentary Suit. Now the question remains whether after setting this matter down as a contentious cause and in view of change of nomenclature from PLA to Testamentary Suit the order of assignment ceases to have any effect or not. According to me, as rightly argued by Mr. Pal, the then Honble Acting Chief Justice has assigned the application for grant of Probate and such application has to be heard by this Court. Obviously, this has to be done in accordance with practice and procedure as laid down by this Court. Chapter XXXV of Original Side Rules provides amongst other methodology for hearing of an application for grant of Probate. Application for grant of Probate can be heard by the Court with contest and without contest. It is heard on contest after caveat being lodged followed by affidavit in support of caveat being filed and lastly setting down the matter as contentious cause. Procedure for hearing on contest is provided by Rule 28 of Chapter XXXV of the said Original Side Rule, which is set out as Under. "28. Procedure on affidavit being filed.-Upon the affidavit in support of the caveat being filed (Notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall, by order of a Judge upon application by summons be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as an deemed a pliant filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code (Forms Nos. 14 and 15)." (9.) It could be seen language, of last sentence of the aforesaid Rule is almost same with that of section 295 of Indian Succession Act, 1925. The said provision still remains unchanged irrespective of new nomenclature. PLA is given at initial stage and Testamentary Suit subsequently on contest. 14 and 15)." (9.) It could be seen language, of last sentence of the aforesaid Rule is almost same with that of section 295 of Indian Succession Act, 1925. The said provision still remains unchanged irrespective of new nomenclature. PLA is given at initial stage and Testamentary Suit subsequently on contest. Probate has to be granted examining legality and validity of the will on hearing and hearing may be with contest or without contest as the situation will demand. The intention of the Honble Acting Chief Justice is for hearing out the application for grant of Probate by this Court. Therefore, because of conversion of PLA into regular Testamentary Suit the effect of assignment does not cease and for that matter no separate assignment is required. (10.) The application for grant of Probate or Letters of Administration is not a suit in real sense as suit is filed with the presentation of a plaint. Legal debate is settled long time back that merely because an application for grant of Probate or Letters of Administration at a subsequent stage converted into a suit under the law does not become a suit. A Division Bench of Bombay High Court reported in AIR 1956 Bom 45 while interpreting Rule 692 of Rules of Bombay High Court has held in paragraph 9 amongst others: Therefore, in our opinion, it is very difficult to accept the alternative contention put forward by Mr. Desai that the Probate proceedings in this case become a suit when the defendant filed his affidavit in support of his caveat and section 86 come into operation." (11.) In case of Balai Lall Banerjee and Ors. v. Debaki Kumar Ganguly, reported in AIR 1984 Cal 16 the Division Bench of this Court in paragraph 13 enunciated in this context as follows: "The fact that a contentious proceeding is classified as a suit, in our view, does not make much of a difference. If the proceeding is to culminate in a decree there ought not to be any distinction between a contentious or non-contentious proceeding. In the case of a suit within the meaning of the Civil P. C. the final adjudication whether contested or ex parte must invariably be followed by a decree. If the proceeding is to culminate in a decree there ought not to be any distinction between a contentious or non-contentious proceeding. In the case of a suit within the meaning of the Civil P. C. the final adjudication whether contested or ex parte must invariably be followed by a decree. To hold that a contentious proceeding for the grant of Probate only shall be treated as a suit and, therefore, required to be followed by a decree, while a non-contentious proceeding ending with an order for grant need not be followed by a decree seems to be against common sense. If it is a suit, it is so for all practical purposes -whether contentious or otherwise. In our view, therefore, the provisions in section 295 is merely for the purpose of classification. The provisions for the application of the Civil P. C. as far as may be is intended only to indicate the procedure to be followed in disposing of an application for grant of Probate or Letters of Administration as the case may be." (12.) The Division Bench in that case faced a problem whether the Memorandum of Appeal without being accompanied by any formal drawn up decree in case of a separate proceedings is maintainable or not. While expressing above statement of law that the Probate proceeding does not culminate in decree and it results in either grant or no grant of probate, therefore, formal drawing up of decree even if in a contentious cause is not required. (13.) A Division Bench of the Patna High Court had reported in AIR 1944 Patna 144 while dealing with this case had taken the same view following the Division Bench of this Court quoted above. The Patna High Court also faced the same problem on reference being made by the learned single Judge whether a decree should accompany Memorendum of Appeal in preferring an appeal against an order of grant of Probate in a contentious proceedings or not. Another Division Bench of the Patna High Court while examining various sections of Indian Succession Act, 1925 particularly Section 295 in paragraph 8 held amongst others as follows: ".............Nowhere aforesaid provision says that once the proceeding becomes contentious, the proceeding will be treated as a regular suit, it only says as nearly as may be the proceeding shall take the form of regular suit. The proceeding becomes a suit in form only and not in substance. The use of words as nearly as may be in the section clearly shows that the legislature never intended that the contentious proceeding should exactly be the same as the suit. The contentious proceeding is not a suit under the ordinary law. By virtue of section 295 the said proceeding takes the form of a regular suit for the limited purpose of applying to it the provisions of the Code of Civil Procedure. The proceeding retains its character as proceeding and does not in point of fact becomes a regular suit." (14.) In paragraph 11 of the said judgment the aforesaid Bench observed as follows: "Thus, in my considered opinion, contentious proceeding is not a suit in the point of fact and substance. On the other hand, for the purpose of classification of the proceeding after it becomes contentious, it is treated as suit in form only. An order passed in such a proceeding is not a decree nor there is any requirement in law to draw up a decree after a contentious proceeding is decided by passing a final order." (15.) In paragraph 13 while noting and following a Full Bench judgment of the Allahabad High Court reported in AIR 1963 All 153 it was iterated as follows: The order on a petition for Letters of Administration under section 278 of the Act is not a decree as the order is not passed in a suit. Proceedings for Letters of Administration under the Act are not commenced by institution of a plaint. On the other hand, as section 278 of the Act shows, they are commenced by an application or a petition. The decision appealed against is described in section 299 as an order and not a decree." (16.) Various decisions of various High Courts reported in AIR 1956 Raj 119 , AIR 1967 Orissa 41, and AIR 1989 Mad 111 have been noted and followed on the same issues. In all these cases noted above it was also held that the contentious proceeding for grant of Probate or Letters of Administration is not a regular suit and the order passed in the said proceedings is not a decree. In all these cases noted above it was also held that the contentious proceeding for grant of Probate or Letters of Administration is not a regular suit and the order passed in the said proceedings is not a decree. (17.) While summing up the aforesaid principles of law laid down by the several High Courts including this Court it appears to me that once application for grant of Probate is filed it does not lose its original character and remains the same. Only the method of trial is changed when there has been contest. Section 295 as well as the Rule 28 Chapter XXV of the Original Side Rules only facilitate the Court to deal with the matter following the procedure for trial of application for grant and nothing else. Hence, the decision cited by Mr. Chatterjee of Sind High Court reported in AIR 1938 Sind 36 has no application in view of the authoritative pronouncement by all the High Courts as stated above. Moreover, the Full Bench decision of the Allahabad High Court as noted by Patna High Court seems to be contrary to what has been held by the aforesaid decision of Sind High Court. The said Full Bench decision has followed the procedure adopted by this Court while in the said case as referred to above this Court has taken a different view altogether. Moreover, this Full Bench decision (Sindh High Court) nowhere has laid down that the application for grant of Probate or Letters of Administration is treated to be a different proceedings in character as there being contest. Therefore, the aforesaid judgment is of no assistance. To summarize entire subject it appears to me the Honble Acting Chief Justice assigned to hear and dispose of the application for grant of probate and in what manner and method is to be done, is exclusive authority of the Court concerned for object unlike regular suit, is either to grant probate or refuse to grant. In view of the aforesaid discussion I am of the view that the contention of Mr. Mitra and Mr. Chatterjee is unacceptable and I hold that the order of assignment of the Honble Acting Chief Justice was and is for application for grant of Probate and as the same having been treated as contentious cause the effect of order of assignment does not cease. Mitra and Mr. Chatterjee is unacceptable and I hold that the order of assignment of the Honble Acting Chief Justice was and is for application for grant of Probate and as the same having been treated as contentious cause the effect of order of assignment does not cease. Therefore, the suit has to be heard and tried by this Court and by this Court alone. Now, parties will be at liberty to take steps either judicially or, administratively if permissible in law, as may be advised. Application fails