BINAPANI KAR CHOWDHURY Vs. SATYABRATA BASU

JUDGEMENT

(1.) This appeal, by special leave, is directed against the judgment and order of the High Court of Judicature at Calcutta in C.O. No. 197 of 2002 whereby the High Court while disposing of the revision preferred by the appellant herein directed that the suit shall not proceed till such time as the Will said to have been executed by Avarani Bose was not probated.

(2.) The facts relevant for the disposal of this appeal as stated by the appellant are as follows :- Late Avarani Bose was the owner of the suit property. The said Avarani Bose executed a registered sale deed in her favour on 23-12-1994 in respect of the suit property. The appellant resides in the first floor. The said Avarani Bose filed Title Suit No. 10 of 1995 in the Court of Civil Judge, (Sr. Division), 8th Court, Alipore for declaration of title in respect of the suit property and for recovery of possession and injunction with respect to first floor of the suit property claiming that she had never sold the suit property to the appellant. The appellant, who was defendant No. 1 in the suit, controverted the allegations in the plaint and asserted that the property was in fact sold to her by the said Avarani Bose on 23-12-1994, and that sale deed was valid and binding on the vendor. The core issue in the suit is whether the said Avarani Bose had sold the suit property by a valid registered sale deed executed on 23-12-1994 in favour of the appellant. The said Avarani Bose died on 13-11-1997. An application was filed under Order XXII, Rule 3 of the Code of Civil Procedure (for short CPC) by respondent No. 1 herein claiming substitution as the legal representative of the deceased plaintiff on the basis of a Will dated 16-5-1996 said to have been executed in his favour by Avarani Bose. He claimed to be the executor and legatee under the said will. The Appellant admits that the first respondent is in possession of a portion of the ground floor of the suit property. (The first Respondent claimed that he was in possession in his own right whereas the appellant claimed that he was the tenant of the ground floor). None else sought to come on record as the Legal Representative of Avarani Bose. Though, the appellant herein objected to the substitution of respondent No. 1 as legal representative of deceased plaintiff, her objections were rejected and respondent No. 1 was brought on record as the legal representative of Avarani Bose. Though the recording of evidence in the suit has been completed, the court has not proceeded to hear arguments and dispose of the suit, in view of the pendency of the probate proceeding, initiated by the first respondent in regard to the will of Avarani Bose. As the matter was pending for long, on 5-10-2001, the appellant filed an application under section 151 of CPC before the trial court praying that the court may proceed with the hearing and decide the suit. The appellant inter alia contended that first respondent herein was deliberately prolonging the probate proceedings, so as to keep the suit against appellant pending as that enabled him to continue to reside in the ground floor of the suit property without paying rents/damages for occupation. The appellant also contended that she is old and is prevented from enjoying the entire suit property as owner, in view of the pendency of the suit. The appellants prayer was rejected by the trial court by order dated 5-10-2001 on the ground that the suit cannot be disposed of till the probate is granted. The appellant therefore moved the Calcutta High Court under section 115 CPC by way of a revision petition. The said revision has been rejected by the High Court by its impugned order of February 7, 2002 holding that if a suit has been initiated by a testator, on his death, the Executor of his will can get substituted, but the Executor must get probate before final disposal of the suit. The said order is under challenge in this appeal.

(3.) The first respondent though served has remained unrepresented. The appellant in her application for early hearing has alleged that the petition for probate filed by the first respondent has been dismissed for default on 7-9-2005. The appellant has not, however, produced the order dismissing the first respondents petition for issuance of probate. The learned counsel for appellant is also not able to state as to whether the said petition for probate has been restored thereafter. In the absence of any material in that behalf, it is not possible for us to take note of the said subsequent event.