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2011 DIGILAW 1280 (CAL)

Helpline Estates Pvt. Ltd. v. Rumi Sein

2011-09-14

B.BHATTACHARYA, SAMBUDDHA CHAKRABARTI

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JUDGMENT 1. INSTEAD of hearing the application for stay, we propose to hear out the appeal itself by treating it as on the day's list as this appeal can be disposed of on a pure question of law and the plaintiff-respondent No. 1 has already entered appearance. 2. THIS appeal is at the instance of defendant No.3 in a suit for declaration and injunction and is directed against Order dated June 30, 2011 passed by a learned single Judge of this Court by which His Lordship dismissed an application filed by the present appellant for rejection of the plaint (G.A. 1102 of 2011). Being dissatisfied, the defendant No.3 has come up with the present appeal. 3. THE plaintiffs, three in number, filed C.S.No.41 of 2011 alleging that the plaintiff No. 1 is the executrix to the estate of one Saila Bala Sen who was the original owner of the property and plaintiff No.2 is one of the legatees under the said Will along with plaintiff No.1. According to the plaintiffs, plaintiffs Nos.1 and 2 after the death of the testatrix have sold the property in favour of plaintiff No.3 who has thus acquired title to the same, but the defendants who have no right, title and interest in the property are trying to disturb the possession of the plaintiff No.3. 4. IN such a suit, the defendant No.3 came up with an application for rejection of the plaint on the ground that before grant of probate of the Will allegedly executed by Saila Bala Sen, the plaintiffs could not file the said suit being barred by section 213 of the Indian Succession Act. The learned single Judge by the order impugned has turned down such prayer on the ground that section 213 of the Indian Succession Act does not stand in the way of a plaintiff instituting a suit on the basis of a right acquired by virtue of Will of somebody before grant of the probate, but no right can be conferred in the suit on that basis so long probate is not granted. 5. IN the case before us, the defence of the defendant No.3 is that the testatrix during her lifetime conveyed the property in his favour through her constituted attorney and, thus, the property is not even the subject matter of the estate of Saila Bala Sen. 6. 5. IN the case before us, the defence of the defendant No.3 is that the testatrix during her lifetime conveyed the property in his favour through her constituted attorney and, thus, the property is not even the subject matter of the estate of Saila Bala Sen. 6. IN the facts of the present case, in our opinion, the learned single Judge was quite justified in holding that even the plaintiff No.3 having asserted title on the basis of a Will which is yet to be probated, but the probate of which has already been applied for, the suit is very much maintainable. But no final decree can be passed in favour of the plaintiff No.3 so long probate is not granted. It is a settled law that for the purpose of disposal of an application for rejection of plaint, the Court will presume all the statements made in the plaint to be true and if we presume all the averments made in the plaint to be true, in that case, it is not barred by any law for the time being in force. We have already pointed out that the learned single Judge has correctly interpreted the effect of section 213 of the Indian Succession Act and we find no reason to interfere with the correct order passed by the learned single Judge. 7. THE appeal, is, thus, devoid of any merit and is dismissed. We make it clear that we have not gone into the other portion of the common order dealing with other application being G.A.778 of 2011. 8. IN view of the disposal of the appeal itself, the connected application has become infructuous and the same is disposed of accordingly. Photostat certified copy of this order be made available to the parties upon compliance of usual formalities. Appeal dismissed.