HIRAK ROY Vs. S K ROY

JUDGEMENT

(1.) F. A. A. 516/89, F. M. A. T. 61/89 and C. O. T. 3460/89 have ait been assigned to us disposal.

(2.) F. M. A. 516/89 was directed against an order dated april, 30, 1988 passed by the District Delegate, Alipore, 4-Parganas, in Act XXXIX Case No. 384/83. This appeal has been filed by Hirak Roy who is the Executor to the last 111' and testament of Smt. Giri Bala Devi. F. M. A. T. 34 61/8? which has now been renumbered as F. M. A. 212/90 has been referred by Dr. S. K. Roy @ Sushil Roy, A. C. Roy @ Anil 3y and Smt. Bani Roy impugning an order dated 30th July, 1989 passed by the. District delegate in the self same case ejecting the application filed by the appellants under section 247 of the Indian Succession Act regarding appointment of any one of them as Administrator pendente lite for selling the 1/4th undivided share at premises no. 73, Dr. Meghnath Saha Sarani in respect of which the appellants ere the beneficial or the legatees under the Will of of their mother, Smt. Giri Balm Devi 'and of which Hirak roy was the Executor. The learned District Delegate came 3 a finding that the Executor Hirak Roy did not make any retention delay in the Probate proceeding and there was 3 necessity in appointing any one of the appellants as administrator Pendente lite or as receiver as prayed for by them and thus rejected their application. Cross objection tender No '3460/89 has been filed by the self same appeal, Dr. S. K. Roy, Anil Chandra Roy and Smt. Bani Roy arising their cross objection in respect of F. M. A. 516/89, on tending, inter alia, that the application for injunction as filed by the appellant Hirak Roy before the District delegate was not maintainable in law and the learned District delegate acted illegally and with material irregularity in passing an order regarding maintenance of Status in respect of 1/4th undivided share in the disputed premises for which cross-objectors were the legatees under the Will, thus restraining them from disposing of the property thereby allowing the Executor to acquire an unlawful gain since he continued in possession in the said premises and the to put an embargo on the cross objectors in disposing of the property.

(3.) BEFORE we decide the matter on merits, it would be necessary for us to traverse; the facts of the case, late puma Chandra Roy owned a the use-property at 73, Southern avenue now known as Dr. Meghnath Saha Sarani. He died intestate" 16. 8. 58 giving behind him surviving his widow, sm. Giri Bala Devi, two sons,, Dr. S. K. Roy @ Sushil Kumar roy, Anil Chandra Roy and one daughter Smt. Bani Roy. Smt. Giri Bala Devi had thus 1/4th -undivided share in the said property. Smt. Giri Bala Devi executed her last Will and testament on 2nd February, 1974, whereby she bequeathed amongst other things her undivided 1/4th share in the house-property to her two sons, Sushil Kumar Roy and Anil Chandra roy and her only daughter, Stmt. Bani Roy absolutely, making certain other disposition in respect of her moveable properties. She made her grand-son Hirak Roy who is now a member of the High Judicial Service, the Executor to her Will. The said Smt. Giri Bala Devi died testate on 2nd March, 1983. The Will is not contentious. On 20th November, 1983, hirak Roy, son of Anil Chandra Roy, filed an application in the court of the District delegate at Alipore, South 24-Parganas for grant of probate of the Will without security. The said case was registered as Act Case No. 384/83. Admittedly, 3/4th share, though undivided, belonged to Sushil kumar Roy, Anil Chandra Roy and Smt, Bani Roy as direct heirs of Late Puma Chandra Roy and even with regard to 1/4th undivided share of Smt. Giri Bala, there is no dispute that these three persons, S. K. Roy, A. C. Roy and Smt. Bani Roy are the sole legatees or beneficiaries as regard the house-property is concerned. It has been averred and there is also no denial to that effect, that there is no debt payable by the testatrix, Smt. Giri Bala Devi. Dr. S. K. Roy, Anil Chandra Roy and Smt. Bani Roy have also expressed their readiness and willingness to pay the Probate duty that might be legally assessed by the appropriate authority.