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2014 DIGILAW 12 (CAL)

Sarmistha Guha v. Gouri Guha

2014-01-10

PRASENJIT MANDAL

body2014
JUDGMENT : 1. Heard the learned advocates of both the sides. 2. This application is at the instance of the defendant and is directed against the order No. 83 dated 21.08.2013 passed by the learned District Judge at Jalpaiguri in O.C. Suit No. 2 of 2006 thereby allowing two applications, one under Order 6 Rule 17 of the CPC and the other under Order 22 Rule 3 of the CPC. 3. The predecessor-in-interest of the opposite parties instituted a misc. case being. Misc. Case No. 291/05 for obtaining probate in respect of the Will left by his mother contending, inter alia, that he was the sole executor of the Will. 4. The matter has become a contentious and as such, the said misc. case has been converted into Other class Suit No. 2/06 and the defendant/petitioner herein is contesting the said suit by filing a written statement denying the material allegations contained in the plaint. 5. The plaintiff had adduced evidence and the evidence on behalf of the plaintiff had been closed. Thereafter, the matter was fixed for adducing evidence on behalf of the defendant/petitioner herein. At that stage, the original plaintiff died and subsequently, one of the defendants, namely, Amiya Sindhu Guha also expired and at that stage, the heirs of the executor i.e. the heirs of the original plaintiff took steps for amendment of the plaint and regularization of the suit by way of substitution of the respective parties. 6. So far as the substitution in respect of the deceased defendant is concerned, there is no dispute but the dispute is with regard to the application for amendment of the plaint and the application for substitution of the heirs of the deceased plaintiff under order 22 Rule 3 of the CPC, By the impugned order, the learned Trial Judge allowed both the applications and fixed the next date for adducing evidence. Being aggrieved, this application has been preferred. 7. Upon hearing the learned advocates of both the sides, and on going through, the materials on, record, I find that the facts recorded above are not in dispute. By the proposed amendment, the heirs of the deceased plaintiff have wanted to change the suit for probate into one for grant of letters of administration. 8. 7. Upon hearing the learned advocates of both the sides, and on going through, the materials on, record, I find that the facts recorded above are not in dispute. By the proposed amendment, the heirs of the deceased plaintiff have wanted to change the suit for probate into one for grant of letters of administration. 8. By the application under Order 22 Rule 3 of the CPC, the heirs of the deceased plaintiff have wanted to be substituted on the ground that the original plaintiff was not only the sole executor of the Will but also one of the legatees. 9. While assailing the impugned order, Mr. Bidyut Kumer Banerjee, learned Senior advocate appearing for the defendant/petitioner herein has contended that, by the proposed amendment, the nature and character of the suit is being changed from one probate proceeding to one under the letters of administration. Not only that the heirs of the executor cannot be substituted as done by the learned Trial Judge. The heirs of the original plaintiff are required to file a fresh application for grant of letters of administration. 10. In support of his contention, Mr. Banerjee has relied on the decision of Haripara Saha v. Gobinda Chandra Saha, reported in 51 C.W.N. 917 wherein it has been held that the Sole executor—The sole legatee—Death pending probate proceedings—His heir allowed to continue letters of proceedings and granted administration—Proper procedure for the heir—Fresh application in his own right under section 233—Irregularity merely formal— Residuary legatee how constituted—Existence of other legatee not required by section 102—Object of legislature in mentioning both the universal legatee and the residuary legatee in sees 232 and 235. 11. Mr. Banerjee, has also relied on the decision of Bihar State Electricity Board v. Prabha Aggarwal, reported in (2000) 9 SCC 713 and thus, he has contended that the party to a review proceedings, which ultimately dismissed, held, had a right to directly file letters patent appeal against the judgement dismissing the review petition—Division Bench of High Court (Patna) erred in disposing of the appellant's appeal as not maintainable on the ground that application for leave to appeal was not filed—Matter remanded to be decided on merits. 12. On the other hand, Mr. Sabyasachi Bhattacharjee, learned advocate appearing for the opposite party Nos. 12. On the other hand, Mr. Sabyasachi Bhattacharjee, learned advocate appearing for the opposite party Nos. 1 & 2 has supported the impugned order and in support of his contention, he has relief on three decisions, namely, the decision of Shambhu Prasad Agarwal v. Bhola Ram Agarwal, reported in (2000) 9 SCC 714 , the decision of Sudip Mukherjee, reported in, 2005 (1) CLJ (Cal) 142 and the decision of Santi Swarup Sarkar v. Pradip Kumar Sarkar, reported in AIR 1997 Calcutta 197 wherein it has been observed that the Court should not be too much technical in dealing with the situation particularly where many years already lost in litigation. The prayer for grant of letters of administration could well be entertained when the sole executor died and the application for substitution had been made by a beneficiary. 13. Having due regard to the submissions of the learned advocates of, both the sides and on going through the materials on record, I find that Mr. Sabyasachi Bhattacharjee, has referred to the decisions of the Hon'ble Apex Court in Shambhu Prasad Agarwal (supra), wherein it has been clearly indicated that the High Court erred in dismissing revision petition of appellant heirs and confirming the Trial Court's dismissal of their applications for substitution and amendment of legatee's probate petition into one for grant of letters of administration. Those applications were allowed. 14. In the instant case, the sole executor was one of the sons of the testatrix and he was also one of the beneficiaries under the Will. So, after his death, when the heirs of the original plaintiff filed an application for substitution, according to the decision of the Hon'ble Apex Court inShambhu Prasad Agarwal (supra) they are entitled to be substituted and they are also entitled to file an appropriate application for amendment for conversion of the suit, i.e. from probate proceedings into one for grant of letters of administration. 15. Relying on the said judgement, a Single Bench of this Hon'ble Court has held in the case of Sudip Mukherjee reported in 2005 (1) CLJ (Cal) 141 to the effect that upon the death of executor before proving the Will—Legatees entitled to letters of administration—Inherent power of Court—Application for conversion of the prayer for probate to an application for grant of letters of administration by the legatee—Allowed. 16. 16. Relying on the decision of the Hon'ble Apex Court in Shambhu Prasad Agarwal (supra), another Single Bench of this Court has held in the case of Santi Swarup Sarkar reported in AIR 1997 Calcutta 197 that the residuary legatee who was the defendant in suit, seeking to transpose as plaintiff and proceed with the suit for grant of letters of administration by making suitable amendment in plaint is admissible. This decision is also based on the decisions of the Hon'ble Apex Court, such as, (1975) 1 SCC 166 : AIR 1975 SC 1146 : AIR 1969 SC 677 : (1969) 1 SCC 869 : AIR 1969 SC 1267 and so on. 17. So, the conversion of the suit, from probate proceedings into one for grant of letters of administration, when the evidence on behalf of the plaintiff had already been closed and the suit is at the stage of recording of evidence on behalf of the defendant, in my view the Court should take a liberal approach and the technicalities should not be a bar in granting the reliefs sought for by the heirs of the original plaintiff. So, by the impugned order, the learned Trial Judge has rightly addressed the issue and he has rightly allowed the application for amendment of the plaint and the application for substitution. 18. In my view, the learned Trial Judge has rightly allowed the applications filed by the legal heirs of the sole executor cum one of the legatees of the Will, who died during the pendency of the probate proceeding at the close stage. 19. In that view of the matter, I am of the opinion that there is no scope of interference with the order impugned at all. 20. The revisional application is, therefore, dismissed. 21. There shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties at an early date.