BANASREE NEOGY Vs. SOMA GHOSH

JUDGEMENT

(1.) The Court : This application is for recording the death of the defendant no.3 and for the petitioner to be substituted in place and stead of the deceased defendant no.3 The applicant is the executor of the Will of the defendant no.3, one Mr.Gobinda Neogi, whose name was expunged by an order dated 22nd April, 2016 passed by a learned Judge in GA No.1054 of 2016. The order records that the deceased defendant no.3 was unmarried as on the date of death.

(2.) Learned counsel for the applicant places the Will of the deceased defendant no.3, which reflects the name of the applicant, Sri Abanindra Kumar Pal as the executor who applied for probate of the said Will before the appropriate Court of law. The Will also records that the defendant no.3 was a bachelor and unemployed and that the son of his elder brother, one Gautam Neogy, took care of the defendant no.3. The Will also records that the property in question, which the plaintiff no.1 seeks partition of, belongs to a family deity Sree Sree Iswar Raj Rajeswar Thakur and that the defendant no.3 looked after the deity since the death of his elder brother, Kartick Chandra Neogi. It may be mentioned that the plaintiff no.1 is the daughter of one of the brothers of the defendant no.3. Counsel relies on Order 22 Rule 4 of The Code of Civil Procedure, which deals with the procedure in the case of death of one of several defendants or a sole defendant and provides that where the right to sue survives, the Court shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit if an application is filed to this effect. Section 2(11) defines 'legal representative' as a person who in law represents the estate of the deceased person and includes any person who intermeddles with the estate of the deceased. Counsel further relies on Sections 211 and 213 of the Indian Succession Act, 1925, which provides that the executor or administrator of a deceased person is his legal representative for all purposes and all the properties of the deceased person vests in him. Section 213 provides that no right as executor or legatee can be established unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed. Counsel relies on two decisions, namely, Binapani Kar Chowdhury vs. Sri Satyabrata Basu reported in (2006) 10 SCC 442 and Ajit Kumar Hazra and Ors. vs. Rathindra Nath Roy reported in (1980) 1 CHN 63, which proceed on the right of an executor or a legatee under a Will to come on record as a legal representative of a deceased party.

(3.) The application is opposed by the plaintiff no.1 appearing in person who submits that the applicant, namely, the executor of the Will of the defendant no.3 is a outsider and does not have a right to be made a party in suit for partition of family property. The plaintiff no.1 also submits that the Will of the defendant no.3 is not a genuine document on the ground that different signatures have been used by the defendant no.3 in various proceedings.