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Santosh Kumar Ghose Vs. Gour Mohan Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 7 of 1956
Judge
Reported inAIR1959Cal291
ActsSuccession Act, 1925 - Section 295
AppellantSantosh Kumar Ghose
RespondentGour Mohan Ghose and ors.
Appellant AdvocateApurbadhan Mukherjee and ;Amar Nath Roy Choudhury, Advs.
Respondent AdvocateRam Mohan Bhattacharjee, Adv.
DispositionAppeal allowed
Cases Referred and Jagadish Chandra v. Upendra Chandra
Excerpt:
- .....1952 and prays that the solenama filed by the applicant sm. sushilabala dassi may be cancelled and grant letters of administration to the applicant. as security was not furnished by the originalpetitioner, the case should have been dismissed orstruck off. but it was wrongly adjourned sine dieunder order no. 8 dated 23-3-46. the said orderno. 8 is vacated. put up on 30-5-53 for final orderin presence of pleaders, when the present application will also be heard.' this order no. 10 in the act 39, case no. 8 of1946 is dated 19-4-1953. it is followed by orderno . 11, dated 30-5-1953, which is in these terms :'petitioner files a petition and prays for dismissal of the case. ordered, that the case be dismissed for non-prosecution with liberty to the petitioner to apply afresh.' in pursuance of.....
Judgment:

P.N. Mookerjee, J.

1. This appeal arises out of a proceeding which was originally for the grant of probate of the Will of one Giribala Dasi, later on converted into one for grant of Letters of Administration in respect of the said Will on the death of the original executor applicant. The Letters of Administration have been granted by the court below. But to the grant has been annexed a compromise or agreement, to which the appellant, who was the plaintiff in the court below, objects.

2. The will in question was said to have been executed by one Giribala Dasi. Under the Will, the present appellant was the sole legatee in respect of Giribala's properties which have been enumerated in the schedule of the application for the grant. The Will is dated 30th Jaistha, 1350, B. S. The alleged testator Giribala died on (Sic). Under the Will, the appellant's father Keshab Chandra Ghosh was the sole executor. Keshab applied for probate of the Will in Act VIII case No. 6 of 1944 in the court of the District Judge, 24-Parganas. He, however, died during the pendency of that case and thereupon the said case abated. Thereafter, his wife Sm. Sushilabala Dasi, who was the mother of the present applicant, applied for grant of Letters of Administration in respect of Giribala's Will on behalf and as natural guardian of the present ap pellant and that application was registered as Act 39, Case No. 8 of 1946. The said case was con tested by the present respondents through their mother as their natural guardian who entered a caveat, challenging inter alia the genuineness of the Will. Eventually, however, a compromise was arrived at between the parties to the said proceeding, under which the properties of Giribala were to be divided between the appellant on the one hand and the respondents on the other equally and the court accepted the said compromise and directed issue of Letters of Administration 'on compromise.' Security, however, as ordered by the court, was not furnished by the appellant's mother Sushilabala and the matter remained pending until 19-4-1953, when the present appellant, on attaining majority, filed a petition praying for cancellation of the solenama and grant of Letters of Administration to him. Thereupon the court recorded the following order :

'Santosh Kumar Ghose the sole legatee in the Will puts in a petition stating that he has attained majority in June, 1952 and prays that the solenama filed by the applicant Sm. Sushilabala Dassi may be cancelled and grant Letters of Administration to the applicant.

As security was not furnished by the originalpetitioner, the case should have been dismissed orstruck off. But it was wrongly adjourned sine dieunder order No. 8 dated 23-3-46. The said orderNo. 8 is vacated. Put up on 30-5-53 for final orderin presence of pleaders, when the present application will also be heard.'

This order No. 10 in the Act 39, Case No. 8 of1946 is dated 19-4-1953. It is followed by orderNo . 11, dated 30-5-1953, which is in these terms :

'Petitioner files a petition and prays for dismissal of the case. Ordered, that the case be dismissed for non-prosecution with liberty to the petitioner to apply afresh.'

In pursuance of this order and in terms thereof, the appellant made his present application on 24-6-1954, for grant of Letters of Administration to the estate of Giribala Dasi, deceased. Contest having been raised, the matter was ultimately heard as a contested proceeding in O. S. No. 52 of 1954 by the learned Additional Subordinate Judge, 2nd. Court, Alipore, to whom the case was transferred by the learned District Judge and, eventually, by his order dated 5-8-1955, the learned Subordinate Judge granted Letters of Administration to the pre sent appellant with the copy of the Will annexed, annexing further thereto the solenama or its certified copy showing the terms of agreement between the parties arrived at and filed in Case No. 8 of 1946. Because of this last annexure, the appellant feels aggrieved and he has come up to this Court for an order that the last portion of the above order directing annexure of the solenama or its certified copy, should be deleted.

3. The learned Subordinate Judge proceeded upon the view that as the solenama was made a part of the grant on the previous occasion which failed simply because security was not furnished by the then applicant, it should form a part of the present grant too, he being of the opinion that, if the security, had been duly furnished, the grant would have been issued, annexing the said solenama, and the present appellant would have been bound by the same. In support of his view, he relied on two decisions of this Court reported in Kunja Lal Choudhury v. Kailash Chandra, 14 Cal WN 1068 and Jagadish Chandra v. Upendra Chandra, 48 Cal WN 294. In our opinion, in the circumstances of this case, neither of the said two decisions can have any application. In view of order No. 11 dated 30-5-1953, which we have quoted above, the previous proceedings was obliterated save and except that the solenama remained on its record. The appellant was, given permission to apply afresh for grant of Letters of Administration. That can be only on the footing that the previous proceeding for the grant could have no legal effect so far as 'the grant of Letters of Administration is concerned. In the present proceeding, Giribala's Will was proved and Letters of Administration had necessarily to be granted upon such proof of the said Will and, in deed, they should be so granted. The solenama, if it has any effect on the legal rights of the parties, may be enforced in proper proceedings. But it can certainly not be made an annexure to the grant of Letters of Administration in the present case.

4. We would, accordingly, delete the impugned portion of the learned Judge's order and direct the Letters of Administration of Giribala's Will be granted to the appellant with a copy of the said Will annexed and without any further annexure. We may make it clear, however, that it will be open to the respondents to enforce any right they may have on the basis of the solenama, referred to above, in any appropriate proceeding.

5. Subject to the above observations, this appeal is allowed, the order of the learned Subordinate Judge, annexing the solenama or its certified copy to the grant, is discharged and Letters of Administration in respect of Giribala's Will are directed to be granted and issued to the appellant with simply a copy of the said Will annexed.

6. In the circumstances of this case, we direct the respondents to pay to the appellant the costs of this appeal which we assess at the consolidated figure of Rs. 100/- including paper book costs.

Sarkar, J.

7. I agree.


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