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2017 DIGILAW 231 (CAL)

Somanath Banerjee v. Parna Banerjee

2017-03-01

SUBRATA TALUKDAR

body2017
JUDGMENT : 1. In both the above noted applications under Article 227 of Constitution of India two orders passed by the Ld. City Civil Courts at Calcutta are under challenge. 2. In CO 4214 of 2015 the order No. 3 dated 20th January, 2015 passed by the Ld. Chief Judge, City Civil Court at Calcutta (for short the Ld. Chief Judge) in Probate Case No. 64 of 2014 is under challenge. In CO 4215 of 2015 the order No. 52 dated 11th August, 2015 passed by the Ld. 4th Bench, City Civil Court at Calcutta (for short the Ld. 4th Bench) in O. C. Case No. 4 of 2012 in the matter of Mrs. Parna Banerjee & Ors. v. Somnath Banerjee is impugned. 3. By the order impugned dated 20th January, 2015 the Ld. Chief Judge was pleased to, inter alia, hold as follows:- "In my view, before disposal of the instant petition for transfer of the instant case to the 4th Bench of Ld. Judge, City Civil Court, Calcutta it is required to be determined whether the document which has been claimed by the petitioner as will is really a will in the eye of law for granting probate or letters of administration under the Indian Succession Act or not. As such, disposal of the petition dated 07.11.2014 is kept suspended for the present. Fix 09.04.2015 for hearing on the question as to whether the document on which the instant case has been filed can be termed as a will for granting probate or letters of administration under the Indian Succession Act." 4. By the order impugned dated 11th August, 2015 the Ld. 4th Bench was pleased to decide as follows:- "This probate application is an earlier proceeding and the probate case no. 64 of 2014 is a subsequent proceeding. Earlier proceeding cannot be stayed. The court can stay of a suit as per provision u/s 10 & 11 CPC. I have perused the Xerox copy of the will of probate case of 64 of 2014 before the Ld. Judge, City Civil Court, Calcutta. As per Sec 63 of Indian Succession Act, the will executed by testator shall be signed by two or more witnesses and each of whom has seen the testator to sign or affix mark to the will. But there is no attesting witnesses in the will as produced by the defendant before this court today. Judge, City Civil Court, Calcutta. As per Sec 63 of Indian Succession Act, the will executed by testator shall be signed by two or more witnesses and each of whom has seen the testator to sign or affix mark to the will. But there is no attesting witnesses in the will as produced by the defendant before this court today. Therefore, there is a reasonable ground to believe as to whether the said Xerox copy of the alleged will is at all a will. Moreover, the defendant can get the relief as per Section 263 of Indian Evidence Act if probate is granted in favour of the plaintiff. Having considered the above view, I find that there is no justified ground to stay of this suit. Hence, Ordered That the petitioner filed by the defendant is hereby considered and rejected." 5. Mr. Gopal Chandra Ghosh, Ld. Counsel assisted by Mr. Sanjib Kumar Mukhopadhyay, Ld. Advocate for the petitioner submits that both the Ld. 4th Bench and the Ld. Chief Judge materially erred in rejecting the prayer of the present petitioner for analogous hearing of the two proceedings, viz. the O. C. Case and the Probate Case. Mr. Ghosh argues that both the proceedings have their genesis in the alleged Wills executed by Kashinath Banerjee, the common predecessor-in-interest of both the petitioner and the opposite parties (OPs). 6. Mr. Ghosh points out that in Probate Case No. 64 of 2014 the alleged Will of the said testator namely, the Late Kashinath Banerjee dated 15th April, 2006 is under challenge. In O.C. Case No. 4 of 2012 grant of probate has been applied for in connection with another document also alleged to be the Will of the said Late Kashinath Banerjee. 7. The present petitioner applied before the Ld. Chief Judge for transfer of the Probate Case No. 64 of 2014 to the Court of the Ld. 4th Bench to be heard analogously with O.C. Case No. 4 of 2012 since, both the alleged Wills trace their source from the common testator. However, the Ld. Chief Judge by the order impugned dated 20th January, 2015 (supra) has opined that it requires to be determined whether the Will is really a Will fulfilling the conditions for grant of probate or letters of administration under the Indian Succession Act. Mr. However, the Ld. Chief Judge by the order impugned dated 20th January, 2015 (supra) has opined that it requires to be determined whether the Will is really a Will fulfilling the conditions for grant of probate or letters of administration under the Indian Succession Act. Mr. Ghosh argues that the determination of whether the document in issue in Probate Case No. 64 of 2014 is a Will or not requires to be determined along with the proceeding in O.C Case No. 4 of 2012. According to the Ld. Counsel for the petitioner, since a proceeding connected to the common testator is already pending before the Ld. 4th Bench in O.C. Case No. 4 of 2012, in order to avoid multiplicity of proceedings, the Ld. Chief Judge ought to have transferred the issue before the Ld. 4th Bench to be considered analogously. 8. Mr. Ghosh further argues that the Ld. 4th Bench failed to exercise jurisdiction vested in it by law by holding simpliciter that in view of the provisions of Sections 10 and 11 of the Code of Civil Procedure, the earlier proceeding cannot be stayed. The Ld. 4th Bench also arrived at the conclusion that whether the document in issue is at all a Will is first required to be determined and, ultimately the defendant is entitled to obtain his relief in terms of Section 263 of the Indian Succession Act, if probate is granted in favour of the plaintiff. 9. On the strength of a decision reported in 2005 (12) SCC 505 in the matter of Nirmala Devi v. Arun Kumar Gupta & Ors., Ld. Counsel for the petitioner submits that probate proceedings connected to a common testator can be clubbed together in single suit. Paragraph 4 of the said decision reads as follows:- "4. It has been brought to our notice that settlement is not possible at his stage. Therefore, now remains the question whether the probate proceedings could be clubbed with the suit. Learned counsel for Respondent 1 submitted that the civil suit is of the year 1987 and that despite various orders of the High Court, it has remained pending and the probate proceedings are initiated by the appellant in 1997 regarding the Will of 1984. Be that as it may, the decision in the probate proceedings on the question of proof of the Will will have a direct impact on the suit. Be that as it may, the decision in the probate proceedings on the question of proof of the Will will have a direct impact on the suit. Only on this short ground and without expressing any opinion on the merits of the controversy between the parties, we request the learned District Judge, Gopalganj to make it convenient to dispose of the probate proceedings being Probate Case No. 11 at his earliest convenience and preferably within a period of six months from the date of receipt of a copy of this order at its end. The aforesaid TS No. 27 of 1987 pending in the court of the eight Sub- Judge, Gopalganj shall therefore, stand transferred to the Court of District Judge, Gopalganj and be clubbed with Probate Case NO. 11 of 1997 which is pending in the Court of District Judge, Gopalganj for being tried together. The appeal is accordingly disposed of. No costs." 10. Relying on another decision reported in 2005 (12) SCC 503 in the matter of Balbir Singh Wasu v. Lakhbir Singh & Ors., Mr. Ghosh again relies upon Paragraph 4 thereof which reads as follows:- "4. It is not in dispute that the Civil Judge before whom the appellant had filed the suit for declaration and injunction would not have the jurisdiction to entertain the probate proceedings. According to the learned counsel appearing on behalf of the appellant, nevertheless the principles underlying Section 10 of the Code of Civil Procedure would apply because any decision on the civil suit would non-suit the respondent in the probate proceedings and the issues in the civil suit would overlap the issues which could be raised in the probate proceedings. It does not appear however that a decision on the appellant's civil suit would conclude the probate proceedings because the question whether the probate should be granted or not would still be left to the determined by the High Court where no doubt the decision on the civil court proceedings would be relevant." 11. Arguing for the present OPs/plaintiffs in the suit, Mr. Aniruddha Chatterjee, Ld. Counsel assisted by Mr. Golam Karim Chowdhury, Ld. Advocate submits that the two proceedings, Probate Case No. 64 of 2014 and O.C. Case No. 4 of 2012, are separate proceedings. Accordingly, both the proceedings require to be separately continued on their respective merits. 12. Mr. Arguing for the present OPs/plaintiffs in the suit, Mr. Aniruddha Chatterjee, Ld. Counsel assisted by Mr. Golam Karim Chowdhury, Ld. Advocate submits that the two proceedings, Probate Case No. 64 of 2014 and O.C. Case No. 4 of 2012, are separate proceedings. Accordingly, both the proceedings require to be separately continued on their respective merits. 12. Mr. Chatterjee further points out that O.C. Case No. 4 of 2012 is now at the stage of final hearing. A prayer for analogous hearing of the two proceedings cannot be entertained inasmuch as both the proceedings are not at the same stage. Since the stages are starkly different, O.C. Case No. 4 of 2012 should be allowed to reach its logical outcome. Sri Chatterjee argues that the document relied upon by the present petitioner in Probate Case No. 64 of 2014 is suspect and, therefore cannot be relied upon to stay the hearing in O.C. Case No. 4 of 2012 which is now at a ripe stage. 13. In support of his arguments Mr. Chatterjee relies upon the decisions reported in 2013 (4) SCC 333 , In Re: Aspi Jal & Anr. v. Khushroo Rustom Dadyburjor; and 2008 (4) SCC 300 , In Re: Krishna Kumar Birla v. Rajendra Singh Lodha & Ors. After hearing the parties and considering the materials placed this Court arrives at the following findings:- (A) That 2008 (4) SCC 300 is an authority on the maintainability of a caveat able interest in a proceeding for Probate of a Will. A caveat able interest has been defined as an interest in the deceased testator's estate which may be affected by grant of probate and, would depend on the fact situation in each case. A 'caveat able interest' is distinguishable in law from a 'contention'. At Paragraph 110 the Hon'ble Apex Court held as follows:- "110. (A) caveat able interest is not synonymous with the word "contention". A” contention" can be raised only by a person who has a caveat able interest. A 'caveat able interest' is distinguishable in law from a 'contention'. At Paragraph 110 the Hon'ble Apex Court held as follows:- "110. (A) caveat able interest is not synonymous with the word "contention". A” contention" can be raised only by a person who has a caveat able interest. The dictionary meaning of "contention", therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 Act." (B) This Court further respectfully notices that in 2008 (4) SCC 300 , the Hon'ble Apex Court was pleased to, inter alia, specify that in the event a probate is granted persons adversely affected by such grant can take recourse to a proceeding for revocation of the probate under section (u/s) 263 of the Indian Succession Act, 1925. Even the absence of a caveat able interest does not block the right to seek relief u/s 263 (supra). (C) In the facts of the present case there is not one Will or, one set of Wills but, two Wills connected to the common testator. Therefore, to the mind of this Court, the right to seek revocation of the probate upon culmination of one proceeding is not equal to the right to contend that benefits under a purported second 'Will' be equally adjudicated following a real time frame. (D) Again, this Court sitting in constitutional supervisory jurisdiction, cannot inactively watch a situation where two streams flowing out of a common source inexorably part and, never meet. Along with their separate flow paths, the streams shall carry with them the debris of several past, present and potential lives only to scatter the debris far away from each other at sea. (E) Hypothetically, in the considered view of this Court, shoving the question of genuineness of the second purported "Will" to the realm of a separate proceeding in separate Courts would result in avoidable multiplicity of proceedings. Hypothetically again, the culmination of the first initiated proceeding being O.C. Case No. 4 of 2012 would be in the teeth of the yet unresolved issue of authenticity of the 'Will' in Probate Case No. 64 of 2014. The question of the true intentions of the common testator would continue to beg an answer. Hypothetically again, the culmination of the first initiated proceeding being O.C. Case No. 4 of 2012 would be in the teeth of the yet unresolved issue of authenticity of the 'Will' in Probate Case No. 64 of 2014. The question of the true intentions of the common testator would continue to beg an answer. (F) This Court must therefore apropo notice that the unique situation unfolding with 'The Tale of Two Wills' by a common testator requires to be met by applying the propositions laid down by the Hon'ble Apex Court in 2005 (12) SCC 503 and 2005 (12) SCC 505 (supra). The Court called upon to finally rule in O.C. Case No. 4 of 2012, will also be the Court most well equipped to confer its wisdom on the alleged 'Will' in Probate Case No. 64 of 2014. 14. Accordingly, adoption of the classical view on Sections 10 and 11 of the Code of Civil Procedure relied upon by the opposite parties in 2013 (4) SCC 333 (supra), to the safest of reasoning, shall not be apposite to the facts of this case. 15. In the backdrop of the above discussion, the orders impugned dated 20th January, 2015 and 11th August, 2015 stand set aside. 16. The Ld. Chief Judge is requested to transfer the record of Probate Case No. 64 of 2014 to the Court of the Ld. 4th Bench. The Ld. 4th Bench shall proceed to club the two proceedings and dispose of the same subject to its board with reasonable expedition. CO 4214 of 2015 and CO 4215 of 2015 stand accordingly disposed of. 17. There will be, however, no order as to costs. 18. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities. Applications Disposed of.