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2013 DIGILAW 74 (CAL)

Swarup Debnath v. Sabita Debnath

2013-02-07

HARISH TANDAN

body2013
JUDGMENT HARISH TANDON, J. These two revisional applications are at the instance of the rival parties challenging the self-same order i.e. Order No.14 dated February 17, 2011 passed by learned Civil Judge (Junior Division) Barrack pore, District 24 Parganas North in Miscellaneous (Succession) Case No. 14 of 2010 by which an application for stay of the succession proceeding till the disposal of the probate proceeding is allowed subject to a deposit of Rs. 5 lakhs. Shorn of fact, one Ganesh Chandra Debnath since deceased was seized and possessed of various movable and immovable properties. The said deceased was married to Smt. Sabita Debnath being the petitioner in C.O. No. 1576 of 2011 and opposite party in C.O. 1065 of 2011 (herein after referred to as opposite party for sake of convenience), according to Hindu Ritual and Rites. One male child namely Arijit Debnath is born from the said wedlock. The said deceased during his lifetime purportedly executed and registered his last Will and Testament dated 13th July, 2004. The testator died on 14th November, 2009. Swarup Debnath (herein after referred to as the petitioner for the sake of convenience) applied for grant of probate as an executor to the said Will before the District Delegate Judge, Barasat which was registered as Miscellaneous Case No. 166 of 2010. Subsequently, the opposite party filed an application for grant of Succession Certificate being Miscellaneous (Succession) Case No. 14 of 2010 in respect of various debts, securities and assets of the said testator. The petitioner took out an application for stay of the said Succession Certificate Proceeding on the pretext that the said Will covered both movable and immovable properties of the testator. By the impugned order, the trial court allowed the said application subject to deposit of five lakhs as security within 31st March, 2011. Impugning the said order, the present revisional applications are filed by the rival parties. Mr. Partha Sarathi Das, the learned Advocate appearing for the petitioner submits that the trial court, after having found that the Will includes the movable property as well, could not have imposed the condition for deposit of a sum of Rs. 5 lakhs for staying the Succession Proceeding. He further submits that the intention of the testator, as would be reflected from the Will, is to include the movable assets and pending the probate proceeding, the Succession Certificate Proceeding cannot run simultaneously. 5 lakhs for staying the Succession Proceeding. He further submits that the intention of the testator, as would be reflected from the Will, is to include the movable assets and pending the probate proceeding, the Succession Certificate Proceeding cannot run simultaneously. Lastly he submits that the affidavit of assets filed by his client in the probate proceeding includes debts, securities and monies left by the testator at the time of his death. Mr. Shiba Prasad Ghosh, the learned Advocate appearing for the opposite party submits that the Court could not have passed an order of stay in as much as the purported will relates to a specific immovable property and the movable properties are excluded there from. It is further submitted that the Court could not have held that the movable properties are also included in the said will. He further submits that Section 90 of the Indian Succession Act restricts the applicability of the Will containing a description unless contrary intention appears therein. To buttress such submission, he placed reliance upon a judgment of the Privy Council in case of The Attorney General of New Zealand vs. The New Zealand Insurance Co., Ltd. & Ors. reported in 41 CWN 321, in case of Gnambal Ammal vs. T. Raju Ayyar & Ors. reported in AIR 1951 SC 103 and in case of Ittianam & Ors. vs. Cheri chi reported in (2010) 8 SCC 612 . Having considered the respective submissions, the rival parties have laid their claim on the basis of testamentary and intestacy succession. The petitioner claims on the strength of the Will as an Executor and sole legatee; whereas the opposite party being the widow founded her claim on the basis of an intestacy succession. The proceeding initiated by the opposite party under Part X of the Indian Succession Act, 1925 for grant of the succession certificate in respect of her debt or security being the movable properties. Section 370 of the said Act creates an embargo on the Court to grant the succession certificate in respect of any debt or security where the holder of the said debt or security died leaving and publishing the will, bequeathing those to the person named therein. Section 370 of the said Act creates an embargo on the Court to grant the succession certificate in respect of any debt or security where the holder of the said debt or security died leaving and publishing the will, bequeathing those to the person named therein. Section 371 of the said Act confers power upon the district Judge within whose jurisdiction, the deceased being the holder of such debt or security ordinarily resided at the time of his death or in absence thereof within whose jurisdiction any part of the property is found. The application for such certificate is required to be made in the manner prescribed under Code of Civil Procedure relating to signing and verification of the plaint. Against the order granting, refusing or revoking a certificate, an appeal lies to the High Court under Section 384 (1) of the said Act. Sub-Section 3 thereof, however, makes an order passed by the District Judge under Part X to be final subject to the provisions contained under Sub-Section 1 of the provisions as to reference and revision by the High Court and as to review of the judgment under the Code of Civil Procedure, 1908. The cumulative effect of the aforesaid provisions leaves no room to hold that the negative word implied under Section 370 makes it clear that the grant of the probate or letter of administration shall prevail over the succession certificate. The proceeding for succession certificate is regulated by the procedure applicable to the court of a district judge which necessary implies that the Code of Civil Procedure shall regulate the succession certificate proceeding. Since the power to review is also reserved which further strengthens the inevitable conclusion that the district judge is guided by the Code of Civil Procedure in entertaining the proceeding for succession certificate. Therefore, it cannot be said that the district judge is denuded of its power to stay the succession certificate proceeding till the disposal of the proceeding for probate or letter of administration. Mr. Ghosh was very much vocal in placing reliance upon Section 90 of the Succession Act in contending that if the testator/testatrix have conveyed his/her intention in the will by putting description of the property intended to be bequeath therein, unless a contrary intention appears there from, it would be deemed to refer to comprise the property so described. Mr. Ghosh was very much vocal in placing reliance upon Section 90 of the Succession Act in contending that if the testator/testatrix have conveyed his/her intention in the will by putting description of the property intended to be bequeath therein, unless a contrary intention appears there from, it would be deemed to refer to comprise the property so described. The aforesaid proposition is not applicable at the present stage, in as much as, the probate proceeding has been converted into a contentious cause on objection raised by the opposite party having entertained by the Court. The Supreme Court in case of Ittianam & Ors. (supra) held that Section 90 is based upon Section 24 of the English Wills Act and create a legal fiction by using a deeming provision in these words: “13. Section 90 of the Act uses the legal fiction “deemed” and that is used with the specific purpose of raising a presumption against intestacy. Therefore, on an analysis of the provisions of Section 90 it is clear that the property described in the will shall be deemed to refer to and comprise the property answering that description at the death of the testator. 14. In the context of Section 90, the word “comprise” will obviously mean “to include, embrace, to comprehend compendiously, to contain, to consist of, to extend, cover” (see Shorter Oxford Dictionary on Historical Principles, p. 386). In Webster’s Dictionary the word “comprise” means to “include and contain, consist of and embrace”. (Webster’s Comprehensive Dictionary, Encyclopedic Edn., p. 269.) Therefore, on a plain reading of the section, the meaning is clear. It is, that in the absence of a contrary intention in the will, the description of the properties in the will shall be deemed to refer to and include the property answering that description at the death of the testator. 15. It is well known that when the legislature uses a deeming provision to create a legal fiction, it is always used to achieve a purpose. In state of Travancore-Cochin v. Shanmugha Vilas Cashew nut Factory, the Constitution Bench opined, when a legal fiction is created, one is led to ask at once for what purpose it is created ( see AIR p. 343, para 38).” The other judgment cited by Mr. Ghosh are not of much relevance in the present context. In state of Travancore-Cochin v. Shanmugha Vilas Cashew nut Factory, the Constitution Bench opined, when a legal fiction is created, one is led to ask at once for what purpose it is created ( see AIR p. 343, para 38).” The other judgment cited by Mr. Ghosh are not of much relevance in the present context. In case of Gnambal Ammal(supra), the Apex Court held that while construing the Will, the words used therein cannot be compared with other Will as the intention varies from one to another. While considering the language of the Will, It should bear in mind the surrounding circumstances, the position of testator, his family relationship, the probability that he would use words in particular sense by putting itself into the testator’s armed chair. There is no dispute to such proposition of law. Such stage has not reached as yet. In case of The Attorney General of New Zealand (supra), the Privy Council held that the disposition by virtue of the Will must be in favour of ascertained or ascertainable persons or objects. It is apparent from the aforesaid will that it does not contain the description of the movable properties but depicts the immovable properties only. One could not find from the simple reading of the said will that the testator has specifically bequeathed his movable property to the named legatees. It is only in Clause-4 of the said will, it is intended that the executor should obtain the probate of the immovable and movable properties. I am afraid that in the above factual backdrop, Section 90 of the Indian Succession has any applicability. The Trial Court has taken a pragmatic approach and have stroked the balance by putting a condition for grant of stay which cannot be said to be unreasonable, irrational, whimsical and/or capricious. The Court dealing a matter relating to grant of the succession certificate had no occasion to make any finding as to whether the movable or the specific immovable properties included within the will or not. Any finding which has an impact on the other proceeding should have been avoided. The revisional Court can supply the reasoning if the conclusion arrived by the Court below is justified. Both the revisional applications are disposed of on above findings. However, there shall be no order as to costs. Any finding which has an impact on the other proceeding should have been avoided. The revisional Court can supply the reasoning if the conclusion arrived by the Court below is justified. Both the revisional applications are disposed of on above findings. However, there shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.