Sri Nantu Nantu Bhusan Deb, Son of Late Nagendra Ch.Deb, Vill-Kachubari, P.O. Chandkhira PS Patharkandi, District-Karimganj. Appellant.

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Test. Appeal No. 1/ 2000 Sri Nantu Nantu Bhusan Deb, Son of Late Nagendra Ch.Deb, Vill-Kachubari, P.O. Chandkhira PS Patharkandi, District-Karimganj. Appellant -Versus- 1.Smti Sukla Dhar, wife of Late Dilip Ranjan Dhar, resident of Nilambazar, 2. Shri Debojyoti Dhar Son of Late Dilip Ranjan Dhar, resident of Nilambazar, 3. Srimati Dipanjaja Dhar D/o Late Dilip Ranjan Dhar 4.. Shri Sankar Dhar Son of Late Dhirendra Dhar, resident of Nilambazar, resident of Nilambazar, 5. Smti Babul Bala Deb Wife of Late Kiran Deb, Vill-Jatrapur, Test Appeal No.1 of 2000 Page 1 of 7

2 resident of Nilambazar,. Respondents PRESENT HON BLE MR. JUSTICE N. CHAUDHURY For the Appellant For the Respondents : Mr.HA Sarkar Advocate. : Mr. DN Bhattacharjya Advocate. Date of hearing Date of Judgment : JUDGMENT AND ORDER(ORAL) This appeal under Section 299 of the Indian Succession Act, 1925 has been preferred challenging the probate granted by the learned Additional District Judge, Cachar, Silchar in Testamentary Suit No. 26 of 1988 by the impugned judgment dated Three legal heirs of Late Dilip Ranjan Dhar filed an application under Section 276 of the Indian Succession Act before the learned Additional District Judge, Cachar at Silchar on leading to registration of Misc. (Probat) Case No. 8 of Of course in the petition, deceased Dilip Ranjan Dhar was shown as petitioner No.1. In the application, the name of near relation of the testatrix were mentioned at para-9 as Sri Sankar Dhar Son of Late Dhirendra Test Appeal No.1 of 2000 Page 2 of 7

3 Dhar, Sri Nantu Dey, Son of Late Nagendra Ch. Deb and Smti Babul Bala Deb, widow of Late Kiran Deb. It was stated in the application that Prabashini Dey who was the wife of Late Sachindra Mohan Dey had executed a registered Will on bequeathing all her properties in favour of her brother Dilip Ranjan Dhar. This beneficiary of the Will pre-deceased the testatrix. Subsequently, on , the testatrix also died issueless. About six years after her death, the application for probate was filed by the legal heirs of deceased beneficiary of the Will praying for probate thereof. The near relation of the testatrix mentioned above submitted objection questioning the legality and validity of the Will, genuineness thereof etc. In para-2 of the written objection, it was claimed that the probate application is barred by limitation. It is necessary to mention here that in probate application referred to above there was no explanation as to why the same was not presented within 3 years of arising of the cause of action upon death of the testatrix. However, it was stated in para-11 thereof that petitioner had earlier filed Misc. Case No.14 of 1983 for grant of probate leading to registration of Misc. Case No. 14 of 1983 but the same was dismissed for default on It is not mentioned as to why inspite of seeking remedy for restoration of the application, a fresh application was filed nearly after expiry of six years from the date of death of the testatrix. Be that as it may, no issue was framed on the point of limitation and the learned court having found that the application under Section 276 of the Indian Succession Act had already been opposed, got the same converted into Testamentary Suit No.26 Test Appeal No.1 of 2000 Page 3 of 7

4 of 1988 by operation of Section 295 of the Indian Succession Act. The learned court framed as many as six issues and relegated the parties to lead their respective evidence. The issues framed by the learned trial court are quoted below: (i) As the petition for probat filed according to the provision of law? (ii) Whether the present proceeding is bad for waiver, estopel and acquiescence of the petitioner? deceased? (iii) Whether the present case is bad for defect of valuation of the (iv) Whether the property of the deceased properly described in the alleged Will and probat petition? (v) Whether the disputed Will has been executed by Pravisini Dey, during her life time and, if so whether the same was voluntarily executed by her with free consent? (vi) To what relief, if any, petitioner is entitled? 3. Petitioner appeared to have examined five witnesses including three attesting witnesses and the son of the scribe. The defendants on the other hand examined two witnesses. After perusal of the materials brought on record by way Test Appeal No.1 of 2000 Page 4 of 7

5 of evidence, the learned trial court was satisfied that the Will was duly executed by the textatrix in favour of Late Dilip Ranjan Dhar being in sound and disposing state of mind. In arriving at this finding, the learned trial court has considered the deposition of the attesting witnesses and the deposition of the son of scribe who identified the handwriting of his father. This judgment dated has been brought under challenge in the present appeal. 4. I have heard Mr. HA Sarkar, learned counsel for the appellant and Mr. DN Bhatacharya, learned counsel for the respondents. I have also perused the deposition of the witnesses and the exhibits adduced by them. However, it appears that the appeal can be disposed of on a short point as follows: Whether the probate application is barred by limitation? 5. Admittedly testatrix died on The first probate application was filed immediately within one year, leading to registration of Misc. Case No.14 of 1983 but the same was dismissed for default on for want of steps on behalf of the petitioner. This dismissal, therefore, appears to be either under the provision of Order IX Rule 2 or Order IX Rule 3 of the Code of Civil Procedure. Once a proceeding is dismissed under Order IX rule 2 or Rule 3, plaintiff has option either to file application for setting the dismissal aside or it may bring a fresh suit under rule 4 of Order IX. But filing of fresh suit under Order IX rule 4 is subject to the law of limitation. This means that such a fresh suit is permissible provided it is not barred by limitation on the date of its re-institution. Here in Test Appeal No.1 of 2000 Page 5 of 7

6 this case the limitation started running from the date of death of testatrix on and it expired 3 years thereafter on Institution of the fresh suit on , therefore, was beyond the statutory period of 3 years from the date of accrual of cause of action. In the meantime, Hon ble Supreme Court had already laid down in the case of Kerala State Electricity Board vs- T.P. Kunhalumma reported in (1976) 4 SCC 634 that an application for probate has to be filed within a period of 3 years from the date of accrual of cause of action i.e. the date of death of the testator/testatrix. Relying on this judgment, this court passed a judgment in the case of Kamakhya Prasad Gupta vs-jibon Lal Gupta reported in (2010) 6 GLR 467 holding that a probate application made beyond the period of 3 years from the date of death of the testatrix is barred by limitation. However, in that judgment, this court gave an option to the petitioner for furnishing sufficient cause for failure to bring the application in time on the ground that till a contention is raised, a probate application continues to remain an application and it gets converted into a proceeding in the nature of a suit only after the same is contested. If the dismissal of a suit is on the date of hearing under Rule 8 of Order IX CPC in that event filing of fresh suit is barred because of Rule 9 of Order IX CPC and a plaintiff is only entitled to file an application for setting the dismissal aside by showing sufficient cause for non-appearance on the date of hearing. Although there is a mention in para-11 of the probate application that the petitioner had failed to take steps on the date of hearing, it is not clear as to whether the dismissal for default was under Rule 2 or Rule 3 or Test Appeal No.1 of 2000 Page 6 of 7

7 under Rule 8 of Order IX of the Code of Civil Procedure. Giving benefit of doubt to the petitioner if it is accepted it was dismissed under Rule 2 or rule 3 of Order IX CPC, in that event choice of instituting a fresh proceeding may be permissible under Rule 4 of Order IX. But in that event it ought to have been within the statutory period of limitation. At all events whether it was dismissed on hearing stage or for non-taking of steps, petitioner having opted for institution of fresh proceeding, the same became not maintainable because of bar of limitation and so the whole trial conducted before the learned trial court leading to granting of probate in favour of the legal heirs of the beneficiary became without jurisdiction and illegal. Before parting it is necessary to keep on record that the will dated was allegedly executed in favour of Dilip Ranjan Dhar who predeceased the testatrix. After his death, admittedly no fresh will was made and so a question would naturally arise as to whether Will itself become infructuous on the death of beneficiary. However, this question did not arise in this case because the proceeding itself is barred by limitation. Consequently, the appeal stands allowed and the impugned judgment and order granting probate is set aside. 5. No order as to cost. 7. Send down the records. JUDGE Nivedita Test Appeal No.1 of 2000 Page 7 of 7