Succession; Hubert Probhat Pereira Vs. Narayan Adhya [Calcutta High Court, 03-11-2016]

Indian Succession Act, 1925 – Ss. 211, 213  & 307 – the estate of the deceased testator vests in the executor upon the death of the testator irrespective of grant of probate of the Will. Since the property of the testator is vested in the executor of the Will after the death of the testator, it is the duty of the executor of the Will to take recourse to legal remedy for establishment of the right of the legal heirs of the testator without obtaining grant of probate of the Will, so long the executor is not claiming right under the Will.

IN THE HIGH COURT AT CALCUTTA

Ordinary Original Civil Jurisdiction

Present: The Hon’ble Justice Ranjit Kumar Bag

Judgement delivered on: November 3, 2016

C. S. No.427 of 2014

Hubert Probhat Pereira V. Narayan Adhya and Ors.

For Plaintiff: Mr. Biswanath Mitra, Adv., Mr. Rudra Dhar, Adv.; For Defendants: Mr. Amitava Das, Adv. Mr. Subhabrata Das, Adv. Mr. Kaunish Chakraborti, Adv. Mr. Chowdhury Indraneel Harasith, Adv.

R. K. Bag, J. The parties to the suit have been pursuing litigations for more than half century to establish their rights in the property bequeathed by their predecessor-in-interest, Shyamal Kishore Adhya. The Official Trustee of Bengal filed an application in the High Court at Calcutta for grant of probate of the will of Shyamal Kishore Adhya, which became contentious when grant of probate was opposed by his son, Baidyanath Adhya and the application for grant of probate was converted to Testamentary Suit No.21 of 1937. The said Testamentary Suit was decreed on consent in accordance with the terms of settlement, which were made part of the decree dated April 6, 1950. The clause 5 of terms of settlement lays down that the properties mentioned in Schedule “A” of the Will will devolve upon the natural born son of Baidyanath Adhya. Baidyanath Adhya instituted Suit No.1242 of 1952 challenging the consent decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937 and during the pendency of the said suit a male child of Baidyanath was born on October 31, 1952, who was named as Panchanan Adhya. As a result, Baidyanath Adhya did not proceed with the hearing of Suit No.1242 of 1952, which was declared by him in a registered document dated April 1, 1953. Panchanan Adhya, thus, became absolute owner of the property described in Schedule “A” of the terms of settlement which was made part of the decree dated April 6, 1950 in Testamentary Suit No.21 of 1937. The said “A” Scheduled properties are described in the Schedule of the plaint (hereinafter referred to as “the suit property”).

2. The defendants are natural born sons of Baidyanath Adhya, but the defendants were born after the birth of Panchanan Adhya, the eldest son of Baidyanath Adhya. Baidyanath Adhya used to look after and manage the suit property during his life time. He died on July 8, 1971 when Panchanan Adhya was only 19 years old. Smt. Tarakbala Adhya, wife of Baidyanath Adhya and Bholanath Dey, brother-in-law of Baidyanath Adhya used to look after and manage the suit property after the death of Baidyanath Adhya. Tarakbala Adhya died on October 10, 1998. Panchanan Adhya was not aware of the consent decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937 till the month of May, 2014. After the death of Tarakbala Adhya, the defendants started asserting their rights and interests in the suit property by collecting and enjoying the rents and profits arising out of the suit property. Relying on misrepresentation of the defendants, Panchanan Adhya executed documents jointly with the defendants on good faith in respect of Premises No.31, Doctor’s Lane, Kolkata-700014, which is part of the suit property. Panchanan Adhya came to learn about the consent decree passed in Testamentary Suit No.21 of 1937 when the said document was disclosed in the written statement filed in Partition and Administration Suit No.93 of 2005. The defendants denied absolute ownership of Panchanan Adhya in the suit property in the month of April 2014 and also in the month of May, 2014. On August 12, 2014 Panchanan Adhya filed an application being G.A. No.2544 of 2014 in connection with Testamentary Suit No.21 of 1937 based on clause 10 of the terms of settlement dated April 6, 1950, whereby liberty was given to apply in connection with the said suit. Panchanan Adhya filed one joint written statement along with the defendants to contest Partition and Administration Suit No.93 of 2005 out of love and affection for the defendants who happen to be his brothers by full blood. On August 16, 2014 Panchanan Adhya died during the pendency of the application being G.A. No.2544 of 2014 leaving behind a registered will dated August 14, 2014. The plaintiff being the eldest son-in-law of Panchanan Adhya was appointed as executor of the said will of Panchanan Adhya. The plaintiff had taken out an application being G.A. No.2874 of 2014, which was disposed of on September 9, 2014 by granting order in terms of prayer “a” of the said application.

3. The plaintiff filed an application before the City Civil Court at Calcutta being Probate Case No.62 of 2014 for grant of probate of the registered will of Panchanan Adhya executed on August 14, 2014. The plaintiff also continued with the hearing of G.A. No.2544 of 2014 filed by Panchanan Adhya during his life time in connection with the Testamentary Suit No.21 of 1937, which was published in the newspaper in compliance with the direction of the court, but the defendants did not enter appearance for contesting G.A. No.2544 of 2014. On November 17, 2014 Learned Single Judge of this Court disposed of G.A. No.2544 of 2014 by holding that ordinary course of law would follow to decide the rights of the parties in the suit property. The plaintiff specifically asserts that the defendants have no manner of right, title and interest in the suit property except permissive possession in premises no.43, Harakumar Tagore Square, Kolkata-700014 and one shop room in Premises No.79/15B, Acharya Jagadish Chandra Bose Road, Kolkata-700014, which are part of the suit property. The defendants have represented before the occupants of the suit property that they are the owners of the suit property and thereby the plaintiff is unable to pay Municipal Taxes and other fees to Kolkata Municipal Corporation in connection with the suit property. The plaintiff has, thus, instituted the present suit as the executor of the will of Panchanan Adhya for declaration that the son and two daughters of Panchanan Adhya are the absolute owners of the suit property and for permanent injunction restraining the defendants from transferring and/or alienating and/or parting with the possession of suit property and also for permanent injunction restraining the defendants from entering into the possession of the suit property. The plaintiff has also prayed for direction upon the defendants to furnish accounts in relation to the transaction concerning induction of new occupants in the suit property and other ancillary reliefs.

4. The defendants no.1 to 4 have contested the suit by filing joint written statement wherein they have denied and disputed the material allegations made in the plaint. The specific case of the defendants is that the suit property devolved on the defendants and Panchanan Adhya since deceased by virtue of terms of settlement dated April 6, 1950 executed by and between the Official Trustee of Bengal as plaintiff and one Baidyanath Adhya, the father of the defendants and predecessor-in-interest of the plaintiff, as defendants in Testamentary Suit No.21 of 1937. Baidyanath Adhya had no son at the time of entering into the terms of settlement dated April 6, 1950 in Testamentary Suit No.21 of 1937. The clause 5 of the said terms of settlement dated April 6, 1950 lays down that the natural born son of Baidyanath Adhya will be the owner of the suit property described in Schedule “A” of the said terms of settlement. The Official Trustee transferred some portion of the suit property, viz, 21, Prananath Pandit Street, in favour of Baidyanath Adhya under registered deed dated November 22, 1963 by the order dated September 9, 1953 passed in connection with Testamentary Suit No.21 of 1937.

5. According to the contesting defendants, the suit property originally belonged to one Shyamal Kishore Adhya who died on June 11, 1937 by executing one will in respect of his properties including the suit property. The Official Trustee being the executor of the said Will filed an application before the High Court at Calcutta for grant of probate of the said will, which was registered as Testamentary Suit No.21 of 1937, and the said suit was decreed on April 6, 1950 in accordance with the terms of settlement. Baidyanath Adhya acquired life interest in the properties of his father, Shyamal Kishore Adhya as per terms of settlement in the said suit. The probate proceeding was ultimately dismissed in accordance with the terms of settlement arrived at by and between the parties. By virtue of terms of settlement in Testamentary Suit No.21 of 1937 the suit property was devolved upon all the natural born sons of Baidyanath Adhya after his death on July 8, 1971. Baidyanath Adhya clarified his position with regard to the suit property by executing one registered deed of declaration on April 1, 1953 which disclose that if any son or sons are born they will acquire equal share in the suit property. Tarakbala Adhya, wife of Baidyanath Adhya and Panchanan Adhya, father-in-law of the plaintiff and eldest brother of the defendants used to manage and look after the suit property till the demise of Tarakbala Adhya on October 10, 1998. Panchanan Adhya had knowledge about the terms of settlement dated April 6, 1950 in Testamentary Suit No.21 of 1937 and as such he used to collect rent from the occupiers of the suit property along with his brothers i.e. the defendants who acquired the suit property in equal share as natural born sons of Baidyanath Adhya. The rent receipts for collecting rent from the suit property were signed by Panchanan Adhya and the defendants jointly. Two sisters of the defendants filed Civil Suit No.93 of 2005 along with an interlocutory application being G. A. No.1493 of 2005 against Panchanan Adhya and the present defendants, and the same were contested by Panchanan Adhya and the defendants jointly. On April 4, 2006 Learned Single Judge of this court disposed of G.A. No.1493 of 2005 by observing that the defendants and Panchanan Adhya were looking after the suit property and appointed joint special officers to ascertain how the rent of the suit property is being collected from the tenants. On August 2, 1986 the defendants and their elder brother Panchanan Adhya and their mother Tarakbala Adhya sold out their ancestral property situated at premises no.21, Prannath Pandit Street, Calcutta-700019 by executing deeds no.10037 and 10038 and distributed the sale proceeds among all the legal heirs of Baidyanath Adhya including the defendants according to their respective shares. On July 5, 2011 Panchanan Adhya, father-in-law of the plaintiff instituted Title Suit No.1281 of 2011 against the defendants for partition of the suit property and permanent injunction by claiming his joint ownership in the suit property to the extent of 1/5th share along with the defendants. Panchanan Adhya and the defendants executed five separate deeds of agreement in favour of others in respect of part of the suit property in between January, 2013 and May, 2013 which indicates that Panchanan Adhya admitted his undivided 1/5th joint share in the suit property. On November 17, 2014 Learned Single Judge of this court dismissed the application being G.A. No.2544 of 2014 filed by Panchanan Adhya in connection with the Testamentary Suit No.21 of 1937 by observing that the dispute sought to be canvased in the said application by the son-in- law of Panchanan Adhya cannot be decided, as the prayer is not in connection with administration of the estate, but the individual right of a person which he derived or purported to have derived by virtue of the terms of settlement incorporated in the decree of Testamentary Suit No.21 of 1937.

6. The defendants have come to know about the existence of the registered will executed by Panchanan Adhya in favour of his son and daughters on August 14, 2014 after receiving the summons of the present suit. The defendants were collecting the rent from the tenant of the suit property jointly with Panchanan Adhya during his life time and they have been paying municipal taxes of the suit property jointly. The plaintiff is trying to grab the property of the defendants by instituting the present suit on false allegation after the death of Panchanan Adhya on the basis of alleged will executed by Panchanan Adhya in favour of his son and two daughters and by appointing the plaintiff as the executor of the said will. According to the defendants, the plaintiff has no cause of action for institution of the present suit and as such the suit is liable to be dismissed.

7. On the basis of the above pleadings the issues framed by this court are recast as follows:

(i) Is the suit maintainable in its present form and in law?

(ii) Is the suit barred by limitation?

(iii) Is the plaintiff entitled to institute the present suit as Executor of Estate of Panchanan Adhya and to represent the Estate of Panchanan Adhya?

(iv) Is the decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937 in accordance with terms of settlement binding upon the defendants?

(v) Has Panchanan Adhya become the sole owner of the suit property described in Schedule “A” of terms of settlement being made part of the decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937?

(vi) Had Baidyanath Adhya any right to transfer or convey right, title, interest of the properties described in Schedule “A” of the terms of settlement being made part of the decree dated April 6, 1950 in Testamentary Suit No.21 of 1937?

(vii) Can the defendants claim ownership in the suit property?

(viii) Are the sons of Baidyanath Adhya born after the birth of Panchanan Adhya being the defendants joint owners of the suit property?

(ix) Is the plaintiff entitled to get the decree for declaration and permanent injunction as prayed for?

(x) Is the plaintiff entitled to get any other reliefs under law and equity?

(xi) Can the registered instrument dated April 1, 1953 executed by Baidyanath Adhya override the decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937?

8. Issues No.(i), (ii), (iii): All these issues are interconnected and as such these are taken up together for convenience of discussion. The plaintiff has instituted this suit for declaration and permanent injunction as an executor of the Will of Panchanan Adhya. The Probate Case No.62 of 2014 instituted by the plaintiff for grant of probate of the registered Will of Panchanan Adhya executed on August 14, 2014 is still pending for adjudication before the City Civil Court at Calcutta. By referring to the provisions of Section 213 of the Indian Succession Act, 1925, Mr. Amitava Das, Learned Counsel for the defendants has argued that the plaintiff cannot institute the present suit as an executor of the Will of Panchanan Adhya for establishment of rights of the legal heirs of the testator before grant of probate of the said Will. He specifically contends that Panchanan Adhya, the testator of the Will of which the plaintiff is the executor, was aware of the consent decree passed on April 6, 1950 in Testamentary Suit No.21 of 1937 when he verified the written statement on February 1, 2011 in connection with Partition and Testamentary Suit No.93 of 2005. He further contends that the right to sue first accrued on February 1, 2011 and the suit was filed on December 17, 2014 and as such the suit is barred under Article 58 of the Limitation Act, 1963. Mr. Das also submits that the plaintiff has made out the case that the suit property is in the possession of the defendants, but the plaintiff has not made any prayer for recovery of possession of the suit property and as such the suit is barred under Section 34 of the Specific Relief Act, 1963. Mr. Das has relied on

# Anjali Mullick v. Mrityunjoy Dey reported in (2004) 2 CAL.L.T. 382 (HC)

in support of his contention that the present suit instituted by the plaintiff is not maintainable in law. Mr. Das has also referred to the decision of

# Clarence Pais v. Union of India” reported in (2001) 4 SCC 325

in support of his above contention.

9. Mr. Biswanath Mitra, Learned Counsel for the plaintiff has referred to the provision of Section 211 of the Indian Succession Act, 1925 and argued that the plaintiff can institute the present suit for declaration and permanent injunction in respect of the property of the testator as the suit property is now vested in the plaintiff after the death of the testator. He has also cited the case of

# Anjali Mullick v. Mrityunjoy Dey reported in (2004) 2 CAL.L.T. 382 (HC)

in support of his above contention. Mr. Mitra has also relied on the decision of

# Surendra Chandra Jena v. Laxminarayan Jena” reported in AIR 1985 Orissa 143

and

# Mohanlal Dungermal Futnani v. Vishanji Dungermal Futnani” reported in AIR 2001 Cal 122

in support of his contention that the suit instituted by the plaintiff is maintainable in law.

10. Mr. Mitra has referred to the back history of institution of the present suit in order to refute the allegation that the suit is barred under

# Article 58 of the Limitation Act, 1963

According to Mr. Mitra, Panchanan Adhya, who appointed the plaintiff as the executor of his last Will, acquired absolute right, title and interest in the suit property by virtue of the consent decree passed on April 6, 1950 in Testamentary Suit No.21 of 1937. Clause 10 of the terms of settlement which formed part of the consent decree gave liberty to the parties to apply before the court of law in connection with the said Testamentary Suit. Panchanan Adhya, the eldest son of Baidyanath Adhya had taken out an application being G.A. No.2544 of 2014 in connection with Testamentary Suit No.21 of 1937 praying for his absolute interest in the suit property. The plaintiff was substituted in place of Panchanan Adhya after his death on August 16, 2014 in the said G.A. No.2544 of 2014. On November 17, 2014 Learned Single Judge of this Court dismissed G.A. No.2544 of 2014 without going into the merit of the matter and by giving liberty to the plaintiff to take appropriate steps in accordance with law within a period of 30 days from the date of the order. Learned Single Judge specifically observed in the order dated November 17, 2014 that the time spent in proceeding with the application shall be excluded from the period of limitation in the event any suit is filed by the plaintiff within a period of 30 days from the date of the order. The present suit is instituted on December 17, 2014 which is within the period of 30 days granted by Learned Single Judge for the instant of the suit.

11. Admittedly, the plaintiff has instituted this suit as executor of the Will of Panchanan Adhya for declaration of absolute ownership of the suit property in favour of the legal heirs of the testator and for permanent injunction restraining the defendants from collecting rents from the occupiers of the suit property and for accounts and other ancillary reliefs. The further admitted position is that the application filed by the plaintiff for grant of probate of the Will dated August 14, 2014 executed by Panchanan Adhya is pending for adjudication before the City Civil Court at Calcutta. With the above factual matrix I have to decide whether the present suit instituted by the plaintiff for declaration and permanent injunction is maintainable in law. While Learned Counsel for the plaintiff has referred to the provision of Section 211 of the Indian Succession Act, 1925 to establish that the suit is maintainable in law, Learned Counsel for the defendants has referred to the provision of Section 213 of the Indian Succession Act, 1925 to ascertain that the present suit instituted by the plaintiff is not maintainable in law. It is pertinent to quote the provisions of both

# Sections 211 and 213 of the Indian Succession Act, 1925

which are as follows:

# 211. Character and property of executor or administrator as such

(1) The executor or administrator, as the case may be, of a deceased person in his legal representative for all purposes, and all the property of the deceased person vests in him as such.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.

# 213. Right as executor or legatee when established

(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in Indian has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2) This Section shall not apply in the case of Wills made by Muhammadans or Indian Christians, and shall only apply –

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57; and

(i) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Court at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situate within those limits.”

12. Both Mr. Das and Mr. Mitra have referred to

# Anjali Mullick v. Mrityunjoy Dey reported in (2004) 2 CAL.L.T. 382 (HC)

wherein the court decided whether the executor of a Will can step into the shoes of the deceased testator in a suit for partition during pendency of the probate proceeding. It is relevant to quote paragraph 12 and some portion of paragraph 13 of the judgment delivered by Learned Single Judge, which are as follows:

“12. The character of an executor as such has been described by Section 211 of the Indian Succession Act, 1925. It says that the executor of a deceased person is the legal representative of such deceased person for all purposes. It is well settled that an executor derives his title from the Will by which he is so appointed, and not from the probate, which, when granted (as provided in Section 227 of the Act) establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor as such.

13. The prohibition of Section 213(1) of the Indian Succession Act, 1925 is that an executor qua executor is not entitled to establish in any Court any right claimed under the related Will so long as the competent Court does not grant probate of such Will. An executor as defined in Section 2(c) of the Act is the person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided. It is a moral duty cast on the executor, and it remains as such so long as the executor does not enter into his office. Once he takes positive steps to protect the estate or applies for probate, he enters into the office, and the duty then assumes the character of a legal duty to be discharged by him as legal representative of the deceased person. While till grant of probate the executor as such cannot establish any right claimed under the Will, he however, is not supposed not to discharge his duties as the legal representative of the testator. In the discharge of his duties he can definitely step into the shoes of the testator and act as legal representative in any case or proceeding pending in any Court. By doing so he does not take any step to establish any right claimed under the Will; he also does not make any attempt to establish his legal character, which he need not establish at all in view of recognition given to it of Section 211 of the Act. By seeking his substitution in the pending case or proceeding in place and stead of the testator, the executor neither claims any right under the Will, nor seeks to establish such a right in the Court before which the case or proceeding is pending. What he wants to establish is the right of the testator in the property, which is the subject-matter of the pending litigation, and to establish such right not on the basis of the Will, but independent of the Will.”

In the instant suit the plaintiff has sought to establish the right of the testator in the suit property and it does not want to establish such right on the basis of the Will, but he has instituted the suit as executor of the Will of Panchanan Adhya for establishment of right of the legatees of the said Will in the suit property. The prohibition contained in Section 213(1) of the Indian Succession Act, 1925 cannot be made applicable in the facts of the present case. By virtue of right accrued to the plaintiff under Section 211 of the Indian Succession Act, 1925 the plaintiff can institute the suit as executor of the Will of Panchanan Adhya for establishment of right of the testator or his legal heirs in the suit property, when the plaintiff wants to establish the right not on the basis of the Will, but independent of the Will.

13. In

# Clarence Pais v. Union of India reported in (2001) 4 SCC 325

the constitutional validity of Section 213 of the Indian Succession Act, 1925 was challenged. While upholding the constitutional validity of Section 213 of the Indian Succession Act, 1925 the Supreme Court held in paragraph 6 of the judgment that the bar that is imposed by this section is only in respect of establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity. The plaintiff has not instituted the present suit for establishment of his right as an executor but for establishment of right of the legal heirs of the testator in the suit property for which both parties have been continuing litigations for than last fifty years before different fora. Accordingly, the bar under Section 213(1) of the Indian Succession Act, 1925 cannot be made applicable in the facts of the present case.

14. In

# Surendra Chandra Jena v. Laxminarayan Jena reported in AIR 1988 Orissa 143

the beneficiaries of the Will executed by the plaintiff prayed for transposing them as plaintiff from their existing status of defendants no.12 to 14 after the death of the plaintiff during pendency of the suit. The prayer rejected by the subordinate Judge was allowed by the High Court by making observation that the executor of the Will is not required to wait for grant of the probate but can ipso facto prosecute the lis being the legal representative of the deceased testator by virtue of the provision of Section 211 of the Indian Succession Act. This decision has not much relevance in the present suit where the executor of the Will has instituted the suit for establishment of right of the legal heirs of the testator in the suit property.

15. In

# Mohanlal Dungarmal Futnani v. Vishanji Dungarmal Futnani reported in AIR 2001 Cal 122

the question arose for consideration before the Hon’ble Division Bench of our High Court is whether a reference to the arbitrator for construction of an unprobated Will is contrary to law. The Hon’ble Division Bench has observed in Paragraph 29 of the judgment as follows:

“29. We have also quoted above sub-Section (1) of Section 213 of the Indian Succession Act. In our view, by no stretch of imagination can it be said that a reference to the arbitrator for construction of an unprobated Will is contrary to law. Section 213of the Indian Succession Act does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the Will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of justice unless probate or letters of administration had been obtained of the Will under which the right is claimed.”

16. I have already observed that in the present suit the plaintiff has sought to establish right of the legal heirs of the deceased testator in the suit property and as such the bar under Section 213 of the Indian Succession Act has no manner of application in the instant suit. Baidyanath Adhya, father of the testator Panchanan Adhya was a party to the consent decree passed on April 6, 1950 in Testamentary Suit No.21 of 1937. The clause 10 of terms of settlement which formed part of the consent decree passed in Testamentary Suit No.21 of 1937 lays down that liberty is given to the parties to apply before the court in connection with the decree of the said Testamentary Suit. By virtue of the said liberty Panchanan Adhya filed an application being G.A. No.2544 of 2014 in connection with the said Testamentary Suit No.21 of 1937. The plaintiff was substituted in place of Panchanan Adhya after the later’s death on August 16, 2014 for continuation of hearing of G.A. No.2544 of 2014. Ultimately on November 17, 2014 the said G.A. No.2544 of 2014 was dismissed by Learned Single Judge with the observation that the plaintiff can institute the suit for appropriate relief within a period of 30 days from the date of the order. The present suit has been instituted within the prescribed period of 30 days from the date of the order passed by Learned Single Judge in connection with G.A. no.2544 of 2014. So, I am unable to accept the contention made on behalf of the defendants that the present suit is barred under Article 58 of the Limitation Act, 1963.

17. On conjoint reading of Section 211 and Section 307 of the Indian Succession Act, 1925 there cannot be any manner of doubt that the estate of the deceased testator vests in the executor upon the death of the testator irrespective of grant of probate of the Will. By following the proposition of law laid down by the Hon’ble Division Bench of our High Court in “Mohanlal Dungarmal Futnani v. Vishanji Dungarmal Futnani” (supra) and the decision of Learned Single Judge in “Anjali Mullick v. Mrityunjoy Dey” (supra) I would like to hold that Section 213 of the Indian Succession Act only says that no right as an executor or legatee can be established in any court of law unless probate or letters of administration has been obtained of the Will under which the right is claimed. Section 213 of the Indian Succession Act does not lay down that no person can claim as a legatee or an executor unless he obtains probate or letters of administration of the Will under which he claims. Since the property of the testator is vested in the executor of the Will after the death of the testator, it is the duty of the executor of the Will to take recourse to legal remedy for establishment of the right of the legal heirs of the testator without obtaining grant of probate of the Will, so long the executor is not claiming right under the Will. In view of my above findings, I am unable to accept the contention made on behalf of the defendants that the present suit is barred under Section 213 of the Indian Succession Act, 1925. Since the plaintiff has prayed for declaration and permanent injunction, the present suit cannot be barred under Section 34 of the Specific Relief Act as contended on behalf of the defendants. All the above issues are, thus, decided in favour of the plaintiff.

18. Issues No.(iv), (v), (vi) and (xi): All these issues are interlinked and as such these are taken up together for convenience of discussion. There is no dispute that the suit property originally belonged to Shyamal Kishore Adhya who died on June 11, 1937 by executing one Will in respect of his properties including the suit property. It is also not disputed that the official Trustee of Bengal was appointed as the executor of the said Will.

Admittedly, the official Trustee of Bengal filed an application before the High Court at Calcutta for grant of probate of the said Will, which became contentious when grant of probate was opposed by Baidyanath Adhya, the son of Shyamal Kishore Adhya and the application for grant of probate was converted to Testamentary Suit No.21 of 1937. The said Testamentary Suit was disposed of in accordance with the terms of settlement which formed part of the decree. Baidyanath Adhya and the Official Trustee of Bengal were parties to the consent decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937. It appears from the terms of settlement of the said consent decree (Exhibit-1 and Exhibit-A) that Baidyanath Adhya will have life estate in the suit property from the date of death of his father Shyamal Kishore Adhya. It also appears from clause 5 and clause 6 of the terms of settlement of the said consent decree (Exhibit-1 and Exhibit-A) that if a natural son is born to Baidyanath, he will be entitled to the suit property absolutely, in default of which suit property will devolve upon Saileswar and Probhabati who happen to be other legal heirs of Syhamal Kishore Adhya. The copy of the decree dated April 1, 1953 passed in Suit No.1242 of 1952(Exhibit-L) goes to establish that Baidyanath Adhya instituted the said suit against official Trustee of Bengal, Probhabati Devi and Saileswar for declaration that the decree passed on April 6, 1950 in Testamentary Suit No.21 of 1937 was void and without jurisdiction and for permanent injunction and appointment of receiver. The order passed in Suit No.1242 of 1952(Exhibit-L) indicates that Baidyanath Adhya did not proceed with the hearing of the said suit due to birth of his natural son, Panchanan on October 31, 1952. It appears from the evidence on record that all the defendants are also natural born sons of Baidyanath Adhya, though Panchanan was the eldest son of Baidyanath. The specific case made out by the plaintiff in the instant suit is that Panchanan Adhya became absolute owner of the suit property on his birth as per clause 5 of the terms of settlement which formed part of the consent decree dated April 6, 1950 in Testamentary Suit No.21 of 1937. On the other hand, the specific case made out by the defendants is that the defendants have also acquired equal share with Panchanan in the suit property after the death of Baidyanath Adhya who had acquired life estate in the suit property by virtue of clause 5 of the terms of settlement which formed part of the consent decree dated April 6, 1950 in Testamentary Suit No.21 of 1937. The dispute between Panchanan, predecessor-in-interest of the plaintiff and the defendants hinges upon interpretation of clause 5 of the terms of settlement which formed part of the consent decree in Testamentary Suit No.21 of 1937. The moot point for consideration of the court is whether a natural son of Baidyanath Adhya will be construed as his eldest son Panchanan to the exclusion of all other natural sons of Baidyanath who took birth subsequent to the birth of Panchanan, or whether all natural sons of Baidyanath will become owners of the suit property along with Panchanan in equal share, as all of them are natural sons of Baidyanath. What was the intention of Baidyanath Adhya at the time of execution of terms of settlement with the Official Trustee of Bengal can be deciphered from the intrinsic evidence reflected in the recitals of the terms of settlement as well as the Will of Shyamal Kishore Adhya and from the extrinsic evidence reflected in the subsequent activities of Baidyanath Adhya in dealing with the suit property. I would like to refer to the evidence on record in order to ascertain whether Baidyanath Adhya had the intention to make his eldest son Panchanan absolute owner of the entire suit property after his death or to allow all his sons to become absolute owners of the suit property in equal share after his death. Before dealing with the evidence on record it will not be out of place to consider what interest Baidyanath Adhya acquired in the suit property by virtue of acquiring “life estate” in the said property under the terms of settlement which formed part of the consent decree in Testamentary Suit No.21 of 1937. Clause 2 and Clause 5 of the terms of settlement which formed part of the consent decree dated April 6, 1950 in Testamentary Suit No.21 of 1937 are as follows:

“Clause 2. Baidyanath will have a life estate in the properties set out in Schedule “A” hereto (copy out part II of Schedule to the Will) as from the date of the death of Shyamal Kishore Adhya. Clause 5. If a natural son is born to Baidyanath he will be entitled to the properties in Schedule “A” hereto absolutely.”

19. On perusal of clause 2 of the above terms of settlement incorporated in the consent decree (Exhibit-A and Exhibit-1) it appears that Baidyanath Adhya acquired life estate in the suit property from the date of death of his father Shyamal Kishore Adhya. The meaning of “life estate” given in Black’s Law Dictionary (9th Edition) is as follows: “An estate held only for the duration of a specified person’s life, usually the possessor’s. Most life estates – created, for example, by a grant “to Jane for life” – are beneficial interests under trusts, the corpus often being personal property, not real property.” Mr. Biswanath Mitra, Learned Counsel for the plaintiff has relied on

# Radhaswami Charitable Society v. Authorised Officer” reported in (1971) II Madras Law Journal 35

and

# Sriman Probahan Mitra v. Madhuri” reported in AIR 1985 Cal 368

in order to impress upon the court that Baidyanath Adhya had no authority to deal with the suit property as he had only life estate in the suit property. In “Radhaswami Charitable Society” (supra) the court did not deal with the term “life estate”. The Madras High Court dealt with the term “limited owner” defined in Section 3(28) of the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 and as such the said decision cannot have any bearing on the facts of the present case. In “Sriman Probahan Mitra v. Madhuri” (supra) the Hon’ble Division Bench of our High Court dealt with the validity of agreement for sale in respect of the property of the testator bequeathed to his wife for life time and then to his son and then to son’s wife and then to their son. The agreement for sale of the suit property was found to be invalid by the court as the agreement for sale was executed by the life interest holders who were given mere right of residence in the suit property. The facts of the said case are clearly distinguishable from the facts of the present case and as such the ratio of “Sriman Probahan Mitra” (supra) cannot be made applicable in the facts of the present case. In my view Baidyanath Adhya had the right to hold the suit property during his life time after the death of his father Shyamal Kishore Adhya by virtue of clause 2 of the terms of settlement incorporated in the consent decree passed in Testamentary Suit No.21 of 1937.

20. I have already observed that Baidyanath Adhya acquired life estate in the suit property after the death of his father Shyamal Kishore Adhya. The court need not decide in this suit whether the transfer or sell of the suit property by Baidyanath Adhya during his life time had any legal validity, particularly when the activities of Baidyanath Adhya in dealing with the suit property subsequent to execution of terms of settlement in Testamentary Suit No.21 of 1937 may be considered to ascertain whether he intended to ensure absolute ownership of his eldest son, Panchanan in the suit property or absolute ownership of all his natural sons including Panchanan in the suit property as desired by his father Shyamal Kishore Adhya in his last Will and Testament before his death on June 11, 1937. It is pertinent to point out from clause 4 of the last Will of Shyamal Kishore Adhya (Exhibit- T) that Shyamal Kishore Adhya desired that the suit property would devolve upon the male child or male children of Baidyanath and his legally married wife, if such child or children are born in future, in default of which the suit property would devolve upon his daughter – Prabhabati and the son of his widowed daughter – Saileswar in equal share. The terms of settlement executed by Baidyanath Adhya and Official Trustee of Bengal in Testamentary Suit No.21 of 1937 reflect that Baidyanath fulfilled the desire of his father – Shyamal Kishore Adhya while he incorporated clause 5 of the terms of settlement in the said Testamentary Suit. It is categorically mentioned in the Will of Shyamal Kishore Adhya that the suit property would devolve not on one son or the eldest son, but on all male children of Baidyanath and his legally married wife.

21. On April 1, 1953 Baidyanath Adhya executed one registered document (Exhibit-3) in respect of the suit property. It appears from the recitals of the said document (Exhibit-3) that Baidyanath Adhya has mentioned in unambiguous term that the suit property except premises no.21, Prananath Pandit Street will be vested absolutely in his son Panchanan and other sons who may be born subsequently, subject to his life estate in the said property. Mr. Mitra, Learned Counsel for the plaintiff has strenuously argued that the declaration by Baidyanath Adhya by a registered document cannot override the consent decree passed in Testamentary Suit No.21 of 1937. I fully agree with the submission made by Mr. Mitra, but the declaration made by Baidyanath Adhya in the registered document (Exhibit-3) may be considered by the court to ascertain the intention of Baidyanath that the suit property would devolve upon all his natural sons including Panchanan after his death.

22. The question may arise why Baidyanath Adhya did not deal with premises no.21, Prananath pandit Street in the registered document (Exhibit-3). It appears from the copy of the registered deed dated November 22, 1963 executed by and between the Official Trustee of West Bengal and Baidyanath Adhya (Exhibit-2) that Baidyanath Adhya acquired premises no.21, Prananath Pandit Street after selling out part of the said property to meet the arrears of revenue on the basis of the order passed by the court on September 9, 1953 in connection with Testamentary Suit No.21 of 1937. The said property was subsequently transferred by all sons and wife of Baidyanath Adhya by two separate deeds dated August 2, 1986 (Exhibit-6), but I am not inclined to consider the sale of the said property by all the legal heirs of Baidyanath Adhya as an intention on the part of his legal heirs to deal with the suit property jointly, as the said property was acquired by Baidyanath Adhya separately from the official Trustee of West Bengal by the order of the court on September 9, 1953 in connection with Testamentary Suit No.21 of 1937.

23. It appears from the evidence on record that Baidyanath Adhya died on July 8, 1971 when Panchanan Adhya, the eldest son of Baidyanath was only 19 years old. Let us now scan the evidence adduced by the parties to the suit to ascertain how Panchanan Adhya and his brothers who happen to be the defendants of the instant suit dealt with the suit property. The oral testimony adduced by the plaintiff and the witness Sagarika Ghosh goes to establish that after the death of Baidyanath Adhya, his wife Tarakbala and his brother- in-law Bholanath Dey used to look after and manage the suit property. The specific plaint case is that Panchanan Adhya was not aware of the consent decree dated Arpil 6, 1950 passed in Testamentary Suit No.21 of 1937 till the month of May 2014. Two sisters of Panchanan – Puspa Dutta and Jaya Barua instituted Partition and Administration Suit No.93 of 2005 against Panchanan Adhya and the defendants before the High Court at Calcutta for partition of the suit property. It appears from copy of the written statement (Exhibit-Q) filed by Panchanan Adhya and the defendants in the said partition suit that Panchanan Adhya acquired the suit property by virtue of the consent decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937. Since the said written statement was supported by an affidavit of Panchanan Adhya dated February 1, 2011, I am unable to accept the contention made on behalf of the plaintiff that Panchanan Adhya was not aware of the consent decree passed in Testamentary Suit No.21 of 1937 till the month of May’ 2014. Having full knowledge about the consent decree passed in Testamentary Suit No.21 of 1937 Panchanan Adhya instituted Title Suit No.1281 of 2011 against the present defendants for partition of the suit property. The copy of orders passed in the said Title Suit No.1281 of 2011 (Exhibit-7) indicate that the said partition suit instituted by Panchanan Adhya against his brothers was dismissed for default on December 18, 2014. Having full knowledge about the consent decree passed in Testamentary Suit No.21 of 1937, Panchanan Adhya not only instituted the Title Suit No.1281 of 2011 against his brothers i.e. the defendants for partition of the suit property, but also sold out premises no.31, Doctor’s Lane (part of the suit property) along with the defendants jointly by executing five separate registered deeds and accepted the sale proceeds in equal 1/5th share along with the defendants. The copy of said five registered deeds dated 21.01.2013, 11.05.2013, 21.01.2013, 11.05.2013 and 11.05.2013 (Exhibit-8 series) go to establish that the said suit property was sold out by Panchanan Adhya and the defendants jointly by receiving sale proceeds in equal 1/5th share. It transpires from the series of receipts showing payment of property tax to Kolkata Municipal Corporation in respect of the suit property (Exhibit-10 series) that Panchanan Adhya and the present defendants have jointly paid the property tax to Kolkata Municipal Corporation in respect of the suit property. The copy of the rent receipts by which Panchanan Adhya and the defendants have collected rent from the tenants of the suit property have been admitted into evidence and marked Exhibit-4 series. The said rent receipts (Exhibit-4 series) clearly indicate that Panchanan Adhya and his brothers i.e. the defendants have jointly collected rent from the tenants of the suit premises from the year 1998 till the year 2010. It has, thus, been established from the intrinsic and extrinsic evidence on record that Baidyanath Adhya had the intention all along to ensure vesting of absolute ownership of the suit property in all his natural sons including Panchanan in equal share. It is also established from the evidence on record that Panchanan all along dealt with the suit property by treating his joint 1/5th share in the said property with the defendants during his life time.

24. Now, the question for consideration of the court is how clause 5 of the terms of settlement incorporated in the consent decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937 will be interpreted. I have already pointed out that clause 5 of the terms of settlement lays down that if a natural son is born to Baidyanath he will be entitled to the suit property. If “a natural son” is interpreted to include the eldest son of Baidyanath and to exclude “all other natural sons” born after the eldest son, Panchanan, the interpretation will lead to absurdity. If a natural son excludes other natural sons of Baidyanath, except the eldest son, Panchanan, the interpretation will not only lead to absurdity, but will also unsettle the settled position pursued by the parties for more than half century. That apart, if the court interprets that a natural son will only mean the eldest son of Baidyanath, the said interpretation will be against the intention of Baidyanath and his father – Shyamal Kishore Adhya and also against the intention of his eldest son Panchanan, who all along treated the suit property as his joint property having equal 1/5th share with his brothers i.e. the defendants. In my view, “a natural son born to Baidyanath” described in clause 5 of the terms of settlement incorporated in the consent decree of Testamentary Suit No.21 of 1937 will include “all natural sons born to Baidyanath.” The logical inference of my above observation is that Panchanan Adhya did not become the sole owner of the suit property described in Schedule “A” of the terms of settlement being made part of the decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937. In view of my above findings, I have no hesitation to hold that Baidyanath Adhya had the right to transfer or convey right, title and interest in respect of part of the suit property namely 21, Prananath Pandit Street as the same was acquired by Baidyanath Adhya by virtue of the order passed by the court in connection with Testamentary Suit No.21 of 1937. The upshot of my entire above observation is that the decree passed in Testamentary Suit No.21 of 1937 in accordance with the terms of settlement is binding on both the parties. As a result, issue no.(iv) is decided in the affirmative and issues no.(v) and (xi) are decided in the negative and issue no.(vi) is decided in part in the affirmative.

25. Issues no.(vii) and (viii): Both the issues are taken up together for brevity of discussion. In view of my findings made on the issues discussed above I can safely hold that all the sons of Baidyanath including Panchanan have acquired right, title and interest in the suit property jointly in equal 1/5th share. So, each of the defendants being four brothers of Panchanan Adhya are entitled to joint ownership in the suit property along with Panchanan Adhya in equal 1/5th share. Both the issues no.(vii) and (viii) are, thus, decided in favour of the defendants.

26. Issues no.(ix) and (x): Both these issues are interconnected and as such these are taken up together for brevity of discussion. I have already observed during discussion of the issues no.(iv), (v), (vi) and (xi) that Panchanan Adhya has acquired 1/5th share in the suit property jointly with the defendants. The plaintiff being the executor of the Will of Panchanan Adhya has instituted the suit for declaration and permanent injunction and for accounting and other ancillary reliefs. The plaintiff being legal representative of the estate of Panchanan Adhya as the executor of the Will of Panchanan Adhya is entitled to get the decree for declaration of his 1/5th joint share in the suit property. The plaintiff is also entitled to get permanent injunction restraining the defendants from interfering with the joint 1/5th share of the plaintiff in the suit property. Both the issues no.(ix) and (x) are, thus, decided partly in favour of the plaintiff.

27. Accordingly, the plaintiff do get decree for declaration of 1/5th joint share in the suit property. The defendants are restrained by order of permanent injunction from interfering with the joint possession of the plaintiff to the extent of his 1/5th share in the suit property. The suit is, thus, decreed in part, but without any cost. The decree be drawn up expeditiously. The Receiver appointed in connection with this suit is discharged with direction to submit the statement of accounts before the parties to the suit through their Learned Advocates within a period of four weeks from the date of this order.

The urgent xerox certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.

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