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Chandramani Maity Vs. BipIn Behari Sasmal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal206,136Ind.Cas.543
AppellantChandramani Maity
RespondentBipIn Behari Sasmal and ors.
Cases ReferredSarat Chandra Banerjee v. Nani Mohan Bainerji
Excerpt:
- .....devolves on the death of the party suing. now one of the applicants, amala dassi is an heir of the deceased chandramani, being her daughter; and if the codicil is proved (as we will, for our present purpose, assume) then she will succeed to the legacy of rs. 10,000 given to chandramani as to her stridhan. then we have it that in august 1930 chandramani executed a deed of gift of the legacy in favour of all the applicants, and if the [codicil is proved, all these persons are entitled to succeed to the legacy to chandramani. they are therefore clearly within the definition of legal representative,' in section 2 of the code.4. it is true that the right to obtain probate of a will does not survive: sarat chandra banerjee v. nani mohan bainerji [1909] 36 cal. 799 but in an appeal in a case.....
Judgment:

1. One Radha Krishna Maity died in 1926 leaving a will of which probate was applied for by the opposite party. His widow Chandramani Maity produced a codicil by which the original executor appointed under the will was removed and she became legatee for Rs. 10,000 due to the deceased on account of his life policy. Both the will and the codicil were the subject of the suit before the lower Court and the learned District Judge granted probate of the will, and refused probate of the codicil which he found not to be genuine. Against that decision the present appeal was preferred by Chandramani and during the pendency of the appeal she made a gift of the legacy she was to receive under the codicil to the two sets of applicants before us. She died on 21st January last and the present applications are made, one by one. Sachindra Nath Maiti, a grandson of Radha Krishna Maiti, and Amala Dassi, his daughter and. the other by one Anilbaran Maity, another grandson of Radha Krishna by another son, for substitution in place of the deceased appellant and for permission to carry on the appeal.

2. The applications are opposed and it is argued by the opposite party respondent in the appeal that the right to sue in the present suit does not survive to the applicants and that therefore they are not entitled under the law to be substituted in the place of the deceased appellant. It should be mentioned that under the codicil the first executor was a son of the testator, named Barendra Nath Maity, who predeceased him, and that the next executor was Sachindra Nath Maity, one of the applicants before us, and the executor after him, as named in the will, was Chandramani, the widow of the testator. When Chandramani applied for probate of the codicil, Sachindra Nath who was the executor named in the codicil before her renounced his appointment as executor and so, in a sense, opposed the application,' as the learned Judge says, but it is not clear in what sense he did so. However the fact remains that ho renounced his position as executor under the council.

3. The only question therefore we will [have to consider is whether the applicants arc; entitled to be substituted in place of the deceased appellant under Order 22, Civil P.C. Under Rule 3 of that order, where the sole plaintiff (or appellant) dies and the right to sue survives, the Court shall cause the legal representatives of the deceased plaintiff (or appellant) to be made parties. ' Legal representative' is defined in Section 2 as a person who in law represents the estate of a deceased person, and includes any person where the party sues in a representative character and on whom the estate devolves on the death of the party suing. Now one of the applicants, Amala Dassi is an heir of the deceased Chandramani, being her daughter; and if the codicil is proved (as we will, for our present purpose, assume) then she will succeed to the legacy of Rs. 10,000 given to Chandramani as to her stridhan. Then we have it that in August 1930 Chandramani executed a deed of gift of the legacy in favour of all the applicants, and if the [codicil is proved, all these persons are entitled to succeed to the legacy to Chandramani. They are therefore clearly within the definition of legal representative,' in Section 2 of the Code.

4. It is true that the right to obtain probate of a will does not survive: Sarat Chandra Banerjee v. Nani Mohan Bainerji [1909] 36 Cal. 799 but in an appeal in a case where the judgment appealed against may operate as one in rem, different considerations will arise. In the event of the codicil being proved, the Court may pass appropriate orders for the administration of the estate of the deceased.

5. We are of opinion that these applications should be allowed, and we accordingly direct that the substitution be mad(c) as prayed for. There will be no order as to costs.


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