FA 195 of 2005. Case: Rakhal Dhar and Ors. Vs Kumar Kanti Guha and Ors.. High Court of Calcutta (India)
| Case Number | FA 195 of 2005 |
| Counsel | For Appellant: Bhudeb Chatterjee and Basudeb Ghosh, Advs. and For Respondents: P.N. Palit and Pranab Palit, Advs. |
| Judges | Rakesh Tiwari and Shivakant Prasad, JJ. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order IX Rule 9; Indian Evidence Act, 1872 - Sections 65, 73; Indian Succession Act, 1925 - Sections 229, 230, 237, 278 |
| Judgement Date | March 23, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Shivakant Prasad, J.
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The appellants have impugned the judgment and the decree dated 30th September, 2004 passed by learned Additional District Judge, 7th Court, Alipore in Original Suit No. 05 of 1997 as bad in law and in fact, inter alia, on the grounds that learned Trial Judge ought not have held the Will in question as a genuine allegedly executed by late Ashalata Guha Roy on comparing her signature as an expert. Secondly, that testatrix Ashalata Guha Roy died in 1973 and the application for grant for letters of administration was filed in the year 1996. So, learned Judge ought to have held that the plaintiff/respondent has failed to remove the suspicious circumstance arising in the case for such unexplained long delay in filing the said application. Thirdly, that the provision laid down under Section 229 of the Indian Succession Act, 1925 regarding issuance of citation upon the executors have not been complied and finding as to conduct of executors having renounced their executorship are perverse as there is no provision of Section 230 of Indian Succession Act.
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According to the appellants, Ashalata Guha Roy died intestate without any issue leaving behind her husband Bhabatosh Guha Roy, the defendant No. 1 as her only heir now deceased, had inherited and possessed all properties left by Ashalata Guha Roy. The plaintiff/respondent had filed application under Section 278 of Indian Succession Act for grant of letters of administration in his favour on the score that he is adopted son of Ashalata Guha Roy and one of legatees under the Will left by Ashalata Guha Roy. Defendant No. 1 during trial, specifically disputed the claim of the plaintiff as the adopted son of Ashalata Guha Roy and on the genuineness of the Will allegedly left by Ashalata Guha Roy. It is also submitted that the Will has not been probated and some person purporting to be executor filed probate case simply to withdraw the same latter on. The learned Judge granted the letters of administration in favour of the plaintiff/respondent by the impugned judgment on scrutinizing the evidence adduced by the parties to the proceeding. According to the defendant No. 1 Bhabatosh Guha Roy, the plaintiff/respondent was never treated by him and his wife Ashalata Guha Roy as their adopted son because the defendant Bhabatosh Guha Roy, since deceased had number of children begotten out of second marriage with Gouri Guha Roy whom he had married in the year 1964 and further that the properties in question were actually purchased by the said defendant No. 1 in the benam of...
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