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2021 DIGILAW 19 (MEG)

Rupa Paul v. Satyajit Paul

2021-04-15

H.S.THANGKHIEW

body2021
JUDGMENT : 1. This is an application under Article 227 of the Constitution of India seeking appropriate directions for early listing and for disposal of Probate Misc. Case No. 12 (T) of 1995 which is pending before the Court of Additional to the Deputy Commissioner, Shillong, which was remanded by order dated 05.07.2012 passed in RFA No. 2 (SH) of 2010 for reconsideration, by the then Gauhati High Court, which was the jurisdictional High Court over Meghalaya. 2. This application has been preferred by the wife of Late Ashok Baran Paul who is stated to have expired on 14.06.2019 and the Death Certificate has been annexed to the application. The reasons as stated in the application is that the matter could not be disposed due to the fact that the records were untraceable. 3. This Court after issuance of notice to the respondents by order dated 14.12.2019, requisitioned the records of the Probate Misc. Case No. 12 (T) of 1995 which were received on 29.06.2020. Thereafter the respondent No. 1 had entered appearance and though notice was effected upon the respondents Nos. 1 to 3, none entered appearance. As far as respondent No. 4 is concerned, though notice was issued on 2 (two) occasions, the said notice was returned unserved with a note “not known” as per the office note dated 17.12.2020. Thereafter, on verification it transpires that, the last known address of respondent No. 4 on which notice was addressed to was the last known correct address but for reasons unknown the notice remained unserved. 4. Faced this situation and on the submissions of the learned counsel for the petitioner and for the respondent No. 1 and considering the long delay in the disposal of the probate matter, this matter is being disposed of today itself to avoid any further delay. 5. The order dated 05.07.2012 passed in RFA No. 2 (SH) of 2010 by which the matter was remanded for the sake of convenience is reproduced herein below: “RFA No. 2 (SH) of 2010 BEFORE THE HON’BLE MR. JUSTICE N. KOTISWAR SINGH 05.7.2012 Heard Mr. K. Paul, learned counsel appearing for the appellant and Mr. R. Debnath, learned counsel appearing for all the respondents. In this appeal, the appellant is challenging the order dated 27.9.1995 passed by the learned District Judge/Additional Deputy Commissioner, East Khasi Hills District, Shillong in Probate Misc. JUSTICE N. KOTISWAR SINGH 05.7.2012 Heard Mr. K. Paul, learned counsel appearing for the appellant and Mr. R. Debnath, learned counsel appearing for all the respondents. In this appeal, the appellant is challenging the order dated 27.9.1995 passed by the learned District Judge/Additional Deputy Commissioner, East Khasi Hills District, Shillong in Probate Misc. Case No. 12 (T) of 1995 granting probate of the Will and testament in respect of the father of the appellant as well as the respondent No. 1 on various grounds. One of the grounds taken is that the appellant never received any notice from the Court in connection with the aforesaid proceeding before the Additional Deputy Commissioner in Probate Misc. Case No. 12 (T) of 1995. In this connection, this Court has perused original records. As per the original records, it is found that the notice issued to the appellant had been received with the signature “Ashok Baran Paul”, which the learned counsel appearing for the appellant submits is not the signature of the appellant but a forged one. In view of the above position, it is felt that it would be appropriate for the court below to re-examine whether the appellant had indeed received the said notice as indicated in the record and to find out whether the signature bearing the name of “Ashok Baran Paul” on the summons notice is the signature of the present appellant. In the event, the learned Court below comes to a conclusion that the aforesaid signature bearing “Ashok Baran Paul” dated 25.6.1999 on the summons notice on record is not the signature of the appellant, it can not be said that notice had been served to the appellant. In the event of such finding, the order dated 27.9.1995 passed by the learned District Judge/Additional Deputy Commissioner, East Khasi Hills District, Shillong in Probate Misc. Case No. 12 (T) of 1995 cannot stand and the Court below would be required to re-hear the entire matter afresh by giving notice to all the parties. However, if the Court below comes to the conclusion that the aforesaid signature found in the notice for service is indeed the signature of the appellant, it is to be held that the appellant was duly served with notice in the said proceeding. However, if the Court below comes to the conclusion that the aforesaid signature found in the notice for service is indeed the signature of the appellant, it is to be held that the appellant was duly served with notice in the said proceeding. In the event, the appellant would be at liberty to approach this Court again to agitate other issues taken against the order dated 27.9.95 passed by the learned District Judge/Additional Deputy Commissioner, East Khasi Hills District, Shillong in Probate Misc. Case No. 12 (T) of 1995. It is also provided that during the pendency of consideration by the lower Court below as directed, the status-quo as on today as regards the immovable property of the shop/stall No. 116E at Bara Bazar, Shillong shall be maintained by the respondent No. 1, who is stated to be in possession thereof. It is submitted at the Bar that the Court of Additional Deputy Commissioner, East Khasi Hills District, Shillong, is not functioning at present. In view of that, the records may be sent to the Court of the Deputy Commissioner (Judicial), Shillong, which shall proceed with the matter as directed above.” 6. A perusal of the order indicates that the entire purport of the order is only with regard to ascertaining the fact as to whether it was Ashok Baran Paul (since deceased) who has affixed his signature dated 25.06.1999, on the summons on record and if it is deemed or found that the same is not so, as per the order above mentioned, the entire matter is to be reheard. 7. As such, in view of the facts and circumstances of the case, this matter is disposed of with the direction that the said Probate Misc. Case No. 12 (T) of 1995 be taken up and disposed of as expeditiously as possible preferably within a period of 3 (three) months after receipt of a copy of this order. To shorten the proceedings, the parties who are appearing before this Court today are put to notice to appear before the Court of the Additional Deputy Commissioner, East Khasi Hills District, Shillong on 26.04.2021. 8. Needless to add, other procedural matters such as substitution or any other incidental applications will be dealt with by the probate Court in the course of disposal of the said probate case. 9. Matter accordingly stands disposed of. 10. Records to be send back immediately. 11. 8. Needless to add, other procedural matters such as substitution or any other incidental applications will be dealt with by the probate Court in the course of disposal of the said probate case. 9. Matter accordingly stands disposed of. 10. Records to be send back immediately. 11. No cost.