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2014 DIGILAW 361 (TRI)

Dwijendra Kishore Paul v. Dipak Kumar Nag

2014-11-10

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This appeal under Section 299 of the Indian Succession Act, 1925, read with Section 96 of the Code of Civil Procedure, 1908, is directed against order dated 15.09.2007 passed by the learned Additional District Judge, Court No. 4, West Tripura, Agartala in Case No. Misc. Probate 9 of 2002. 2. Heard learned senior counsel, Mr. S.M. Chakraborty for the appellants and learned senior counsel, Mr. D. Chakraborty for the respondents. 3. Facts necessary for disposal of this appeal may be summarized thus :-- "Respondent No. 1, claiming to be the executor, presented a petition under Section 276 of the Indian Succession Act for granting him probate of a Will dated 31.08.1994 made by the Testatrix, Late Hasi Rani Deb, W/O. Late Nani Gopal Deb of village Hiarmaratilla, Sarbadharma Mission Colony, P.S. West Agartala, District- West Tripura. It is, inter alia, stated by the petitioner that Will dated 31.08.1994 executed by the Testatrix, Late Hasi Rani Deb, was the last Will executed by her and she died on 20.07.1998. The Testatrix by dint of executing the Will, which was registered in the Office of the Sadar Sub Registrar, West Tripura, bequeathed her properties described in the Will and that the Will was executed by her in presence of the attesting witnesses and the scribe of the Will. The predecessor of the present appellants, who was arrayed as respondent No. 5 in the probate petition, only submitted written objection, inter alia, stating that Late Hasi Rani Deb did not execute the Will and thereby did not bequeath her properties to the propounder, i.e. petitioner and that Late Hasi Rani Deb left behind his husband's brother's sons and they were not made parties to the probate petition. Point also raised as to the genuineness and authenticity of the Will. In course of trial, the propounder examined himself as P.W.1 and also examined the scribe of the Will, i.e. Sri Jwahar Lal Roy as P.W.2 and one of the attesting witnesses, Sri Jwahar Lal Banik as P.W.3. The predecessor of the present appellants, Smti. Manju Rani Paul, i.e. the O.P. No. 5, examined herself as D.W.1. The learned Additional District Judge by order dated 15.09.2007, passed in the order sheet of the lower Court record, allowed the probate petition and hence, this appeal." 4. The predecessor of the present appellants, Smti. Manju Rani Paul, i.e. the O.P. No. 5, examined herself as D.W.1. The learned Additional District Judge by order dated 15.09.2007, passed in the order sheet of the lower Court record, allowed the probate petition and hence, this appeal." 4. It is an admitted position that the Testatrix, Late Hasi Rani Deb was a childless widow. It is also an admitted position that Will executed on 31.08.1994 was registered in the Office of the Sadar Sub Registrar on that day itself. 5. Learned senior counsel, Mr. S.M. Chakraborty, appearing on behalf of the appellants has submitted that the probate petition filed by the propounder, i.e. respondent No. 1, was strongly contested by the O.P. No. 5, the predecessor of the present appellants, but the case was registered as Misc. case ignoring the provision of Section 295 of the Indian Succession Act. The case ought to have been registered as title suit and the petitioner should have been treated as a plaintiff and the O.Ps as defendants. Had it been treated as a regular suit as per provision of Section 295 of the Indian Succession Act there should have been issues framed by the trial Court and the matter ought to have been tried as a regular suit. The trial Court did not do so and disposed the petition as a Misc. case by a cryptic order. 6. Learned senior counsel, Mr. D. Chakraborty, appearing for the respondents has submitted that the provision prescribes in Section 295 of Indian Succession Act is procedural and so it is a technical issue. Though the petitioner and the O.Ps were not named as plaintiff and defendants but both side advanced their pleadings and also adduced evidence and after considering the pleadings and evidence the order was passed by the learned Additional District Judge. So, the order may not be interfered and set aside. 7. It is an admitted position that the petitioner and the O.Ps of the probate case were not treated as plaintiff and defendants. That is a technical aspect. Both side placed their pleadings. No issues were framed based on the pleadings. The trial Court, as it appears, by a very cryptic order disposed the matter, which cannot be accepted. Even the evidence on record has not been discussed by the learned trial Judge. It is submitted at the bar that Mr. That is a technical aspect. Both side placed their pleadings. No issues were framed based on the pleadings. The trial Court, as it appears, by a very cryptic order disposed the matter, which cannot be accepted. Even the evidence on record has not been discussed by the learned trial Judge. It is submitted at the bar that Mr. B. Deb Barma, the learned trial Judge has retired in the meantime. A trial Court should not take such an easy course to dispose a case whimsically and mechanically. It must pass an order discussing the pleadings and evidences on record. The impugned order passed by the trial Court, therefore, cannot stand in the eye of law. 8. Next point raised by learned senior counsel Mr. S.M. Chakrabroty is that the Testatrix was a childless widow and she left behind the legal heirs of her brother and sister. The propounder of the Will is the son of her sister. The Testatrix left behind his husband's brother's children, which has been mentioned in the written objection of the appellant, but neither they were made parties in the case nor even a notice was issued. 9. Learned senior counsel, Mr. D. Chakraborty has submitted that as per Section 276 of the Indian Succession Act there is no requirement of making all relatives of the Testatrix as a party in a probate case which is required in a case of Letter of Administration. So, on this ground the order passed by the learned Court below need not be interfered with. 10. It is true that Section 276 of the Indian Succession Act does not prescribe that in an application for probate, the near relatives left behind by the Testatrix has to be made parties. But while the petitioner has arrayed some of the legal heirs of the deceased Testatrix as parties in the probate petition, it is not understood why the others have been left though it is admitted by the petitioner that the Testatrix left behind her husband's brother's sons also as her legal heirs. On perusal of the lower Court record, I find that no step was taken on behalf of the propounder to issue open notice by way of publication in any newspaper or otherwise. The trial Court also did not pass any order to that effect. On perusal of the lower Court record, I find that no step was taken on behalf of the propounder to issue open notice by way of publication in any newspaper or otherwise. The trial Court also did not pass any order to that effect. It is a practice that such a notice is required so that it remains open to all concerned, who are interested to contest the case. This is also an infirmity in the probate case conducted by the trial Court. 11. For the above reasons, I think the order passed by the learned trial Judge should be interfered and set aside and the case should be remanded back to the trial Court for fresh trial after affording opportunity to the petitioner to array any other legal representatives of the deceased Testatrix as parties and further to issue open notice by way of publication in the newspaper and thereafter affording opportunity to the parties to submit their pleadings and evidence in addition to the pleadings and evidence already on record and then to dispose of the petition by a fresh judgment. It is ordered accordingly. The original probate petition was filed in the year 2002. Already 12 years has elapsed in the meantime. So, the trial Court is directed to dispose of the matter on day to day basis within six months from today without fail. 12. Send back the lower court record along with a copy of this judgment.