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Sm. Annapurna Kumar Vs. Subodh Chandra Kumar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 398 of 1959
Judge
Reported inAIR1970Cal433
ActsSuccession Act, 1925 - Sections 263, 283 and 298
AppellantSm. Annapurna Kumar
RespondentSubodh Chandra Kumar
Appellant AdvocateApurbadhan Mukherjee and ;Kanan Kumar Ghose, Advs.
Respondent AdvocateMukul Gopal Mukherjee, Adv.
DispositionAppeal allowed
Cases ReferredMt. Sheopati Kuer v. Ramakant Dikshit
Excerpt:
- .....therefore, received special citation. what is more, it would appear, that during the life time of sarat, annapurna was abducted by some persons, and there was a sessions case over it, in which sarat deposed, and he quite categorically and emphatically claimed annapurna to be his wife. there are also letters written by subodh's brothers to annapurna addressing her as mamima or in other words as the uncle's wife. there is also evidence to show that annapurna had been paying rents for some hooghly properties, and there is some evidence also to show that she is in possession of some portion at least of the hooghly properties. in the circumstances, even if it be found that she was not entitled to a compulsory citation, she was a person who was claiming some interest in the properties as the.....
Judgment:

S.K. Chakravarti, J.

1. This is an appeal by one Annapurna Kumar whose application for revocation of the grant of Letters of Administration to the respondent Subodh Chandra Kumar was dismissed by the learned District Judge, Hooghly. It appears that the properties were left by one Sarat Chandra Kumar who died intestate on -14-4-36. On the 16th of February 1939 his widowed mother Rakhalmani filed an application for Letters of Administration, and objections were filed by Subodh and his brothers, who happened to be the sons of the sister of Sarat. Their case was that the grant of Letters of Administration was unnecessary. The case ended in a compromise on the 14th of September, 1940 and an order was made for grant of Letters of Administration jointly to Rakhalmani and Subodh on their furnishing security. Subodh did not furnish any security and Rakhalmani alone did so, and on the 11th of April 1944, Letters of Administration were issued to Rakhalmani. On the 25th of May, 1955, Subodh applied for revocation of the grant made to Rakhalmani on the ground that Rakhalmani had sold away a portion of the estate without the Court's permission. During the pendency of the Subodh's application for revocation, Rakhalmani died on the 15th of April 1956. On the 24th of September, 1956 Subodh applied for grant of Letters of Administration on the ground that Rakhalmani was dead, and that by mistake, Letters of Administration were not issued to him. In the meantime, on the 4th May, 1956 the present appellant Annapurna ?ent a registered letter through her Solicitor to Subodh claiming the possession of Calcutta properties left by Sarat on the ground that she was Sarat's widow and as such entitled to the same. In spite of that, Subodh did not implead her as a party in his application for the grant of Letters of Administration. On the 4th of March, 1957 the Court granted the Letters of Administration to Subodh ex parte on the ground that he was the surviving grantee. On the 2nd of April, 1957 Annapurna filed the instant application for revocation of the grant on the ground that she was the widow of Sarat and should have received special citation, but that everything was done without citing her at all. In spite of the pendency of that application for revocation, on the 5th of July, 1957, the Court granted Letters of Administration to Subodh. Annapurna moved this Court, and this Court pointed out that Subodh had made some incorrect statements in his application to the effect that by mistake of the Court, Letters of Administration were not issued to him whereas, in fact, they were not issued to him because he had not furnished security. This Court also questioned the propriety of issuing Letters of Administration so many years after the death of the deceased, and opined that the property should have been completely administered by this time. However, this Court refused to interfere inasmuch as this Court could not find that what the learned Judge did, amounted to irregularity or illegality in the exercise of jurisdiction, and thereafter the learned District Judge on the evidence came to the conclusion that Annapurna was not the legally married wife of Sarat, and in fact, was a prostitute, and as such has no locus standi to maintain her application for revocation, and dismissed that application. Hence this appeal.

2. We are of opinion that the question whether Annapurna was the legally married wife of Sarat should not have been canvassed in such details in a Court of limited jurisdiction, namely, the Probate and Letters of Administration Court. It is well settled now that any interest, however slight, and even the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. Even in a case where the person is not entitled to get a compulsory citation, but the citation is discretionary, the absence of citation to such a person, also would invalidate the grant in certain circumstances. This actually has been laid down in the case of Mt. Sheopati Kuer v. Ramakant Dikshit, reported in AIR 1947 Pat 434 and it has followed two decisions of this Court reported in : AIR1927Cal207 . In this particular case, we have already pointed out that Subodh's application for grant of Letters of Administration was made, after he had got notice through his Solicitor, that Annapurna claimed to be the widow of Sarat. Even before that, his evidence would disclose, that he was aware that Annapurna was claiming the properties as the widow of Sarat. She should have, therefore, received special citation. What is more, it would appear, that during the life time of Sarat, Annapurna was abducted by some persons, and there was a sessions case over it, in which Sarat deposed, and he quite categorically and emphatically claimed Annapurna to be his wife. There are also letters written by Subodh's brothers to Annapurna addressing her as Mamima or in other words as the uncle's wife. There is also evidence to show that Annapurna had been paying rents for some Hooghly properties, and there is some evidence also to show that she is in possession of some portion at least of the Hooghly properties. In the circumstances, even if it be found that she was not entitled to a compulsory citation, she was a person who was claiming some interest in the properties as the widow of Sarat, and there was a possibility of her interest in the properties left by Sarat, and in the circumstances, without going into the vital question as to whether Annapurna was the legally married wife of Sarat, the Court below should have revoked the grant, and considered granting it only in presence of Annapuma. In this view of the matter, the order passed by the learned District Judge cannot stand, and must be, and hereby is, set aside.

3. More than 33 years have passed since the death of Sarat, and we do not see any reason for the grant of Letters of Administration to his properties at this late stage, specially in view of the fact that the real contention between the parties is as to whether Annapurna is the legally married wife of Sarat, and, as such, entitled to inherit all the properties left by him. If she is not the legally married wife, then Subodh and his brothers, being the sister's sons, would get the properties. This is a point which, as we have already pointed out, should be found out in a proper suit before a competent Court, and, not before a Court of limited jurisdiction like the Court of Probate or Letters of Administration. As a matter of fact, the learned District Judge should have taken action under Section 298 of the Indian Succession Act, and for the above reasons, refused to grant any Letters of Administration.

4. We, therefore, allow this appeal, set aside the judgment and decree passed by the learned District Judge, decree the suit for revocation, and dismiss also the application for Letters of Administration in the circumstances stated above. The aggrieved party may approach the ordinary civil Court for adjudication of his or her rights to the properties left by Sarat.

5. Each party will bear its own costs in this Court.

6. It may be noted in this connection that we have not passed any opinion as to whether Annapurna is the legally married wife or not or Sarat. If the respondent had already acted under the Letters of Administration issued to him by the learned District Judge, he must submit his proper account and get full and complete discharge from the Court of the learned District Judge and he will also surrender the Letters of Administration to the Court below forthwith.

S.K. Datta, J.

7. I agree.


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