Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 74 (CAL)

Parimal Das v. Narayan Chandra Sarkar

2016-01-21

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. Challenging the legal pregnability of the Order dated 27.07.2015 passed by the learned Additional District Judge, 4th Court, Barasat, in O.S. No. 11 of 2015, the petitioner has come before this Court with a prayer to set aside the same. 2. According to the petitioner he came to learn from a reliable source that the Will sought to be probated was executed by the testator Gopal Chandra Sha in respect of the property over which the testator at the time of execution of Will had no right, title, interest and possession over any portion of the property because there was a registered deed of partition dated 31.03.1936 by virtue of which that Prafullya Kumar Sha got a portion of the property in one hand and Gopal Chandra Sha and Nityananda Sha on the other hand and they were being represented by their mother. This was in regard to entire property lies within Manirampore Mouza. While Prafullya Kumar Sha, being in actual possession of entire property of Manirampore Mouza, had executed a Will on 27.11.1960 bequeathing his entire property in favour of his wife Smt. Parul Bala Sha to the extent of her life interest and her daughter Bharati Sha. After the death of Prafullya Kumar Sha, the said Bharati Sha filed a probate case bearing Misc. Case No. 279 of 2001 in the Court of learned District Delegate, Barasat and Vide Order No. 6 dated 10.07.2002, the said probate was granted in their favour and certificate of probate was issued on 23rd August, 2002. In between the demise of Prafullya Kumar Sha and filing of probate application of said Smt. Parul Bala Sha, Smt. Bharati Jana (Sha) jointly transferred specific land measuring about 2 cottahs 1 chitak of Mouza Manirampur by registered sale deed bearing No. 6181 of 1992 in favour of Subodh Chandra Das, who happens to be the predecessor in interest of the present petitioners. After the death of Subodh Chandra Das, the petitioners being the wife, daughters and son stepped into the shoes of their predecessor-in-interest. According to the petitioner, the present probate suit which has been filed by the opposite party relates to same property. After the death of Subodh Chandra Das, the petitioners being the wife, daughters and son stepped into the shoes of their predecessor-in-interest. According to the petitioner, the present probate suit which has been filed by the opposite party relates to same property. It is their apprehension that there right, title and interest will be highly affected if the probate is granted in favour of the plaintiff/opposite party in respect of the property of Manirampore Mouza, which has been lawfully owned by the present petitioners. 3. It appears from the impugned order dated 27.07.2015 that the learned Additional District Judge, 4th Court, Barasat, held that whether the Will executed by Gopal Chandra Sha was duly executed and attested in accordance with law or not and whether at the time of execution of the Will the testator was of sound mind or not that will be considered. This part of his logic is absolutely correct. But the learned Court below failed to construe that for the purpose of execution of a Will the probate petitioner has to show that the testator had the right to execute such Will in respect of the properties left by him. 4. Here the main controversy lies. In the interest of the academic discussion this can be said that the object of rule under Order 1 Rule 10 is to enable the Court at any stage of the suit to add a person, as a party when it is unable effectually and completely to adjudicate upon and settle all the questions involved in the suit in the absence of that person. Where the questions raised by the parties in their respective pleadings reveal that the direct interest of another person is involved in the subject matter of litigation and it would affect the rights of the person, who is behind the screen, he should be held to be a necessary party to the suit and must be impleaded as such. It is perhaps needless to say that the parties whose interests would be ultimately affected by the litigation are entitled to come on record to protect their interest, when those are jeopardized by the person already on record. It is perhaps needless to say that the parties whose interests would be ultimately affected by the litigation are entitled to come on record to protect their interest, when those are jeopardized by the person already on record. In the instant case, the present petitioner has come before the learned Court below that he has acquired the right, title and interest on the strength of a registered deed executed by their predecessor and the said predecessor got the property on this strength of a Will which was ultimately probated by a competent Court. Although the transfer was made when the former probate suit was pending. It is well settled principle of law that in testamentary proceedings a person or legal entity who has interest in the estate can be permitted to be intervened. 5. The test of application of this rule is to see who will be affected mostly if the present probate is granted in respect of a property in respect of which a registered deed is there. So in my considered view, the present petitioners are the necessary parties to the probate proceeding. The learned Court below lost sight of one thing i.e. whose right would be affected highly if he is not allowed to participate in the proceeding. This apart, duty of the Court is to minimize the litigation and not to invite litigation. 6. In the result, the order passed by the learned Additional District Judge, 4th Court, Barasat, is hereby set aside. The instant revisional application stands allowed but without cost. The learned Court below would permit the present petitioners to be a party in the probate proceeding and thereafter he shall dispose of the case in accordance with law. 7. I make it clear that the learned Court below should not be influenced by any of the observation made above. The observation made above is absolutely for the purpose of disposal of this application. 8. Let a copy of this order be sent to the learned Court below for their information and taking necessary action in accordance with law. 9. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.