SUSHANTA KUMAR NANDY Vs. PRASANTA KUMAR NANDY

JUDGEMENT

(1.) The Court : In the present case probate is pending. The same is contentious one, because the respective parties are replying on two Wills, one dated 18th December, 1985 and the other is 1st October, 1993. It is pointed out by the learned counsel for the applicant from the relevant portion of the two Wills quoted in paragraph 5 relating to premises No.18, Park Lane, Calcutta-16 that the contents of the two Wills are almost similar though there might be minor discrepancy in the text thereof. Having regard to the expressions used in the two Wills with regard to the disposition of 18, Park Lane, Calcutta it appears that they are almost similar excepting minor discrepancy with regard to allotment of two flats to the other two brothers of the applicant. In one case the allotment was free of cost consisting of 1500 square feet each while in the other it was on payment of consideration for 1000 sq. ft. each. The learned counsel for the applicant therefore, relying upon section 247 of the Indian Succession Act, prays that an Administrator pendente lite be appointed for the purpose of development of the property since the question for development of the property by the applicant is common in both the Wills by the applicant.

(2.) The learned counsel for the opposite parties on the other hand contends that section 247 provides for appointment of Administrator pendente lite except with the power of distribution of the assets or the properties. In the present case according to him a development agreement definitely consists of certain clause for disposal of the property which amounts to distribution of the properties. Therefore, no Administrator pendente lite could be appointed since the same would amount to distribution of the properties. Pointing out from the expressions used in the two Wills, he has contended that until and unless the question is settled once and for all, this question cannot be gone into.

(3.) After hearing the learned counsel for the parties it appears that this question cannot be decided at the present moment since it would be prejudging the issues between the parties. But at the same time the expressions used in the two Wills appear to be identical with regard to the question of development of the said premises No.18, Park Lane by the applicant. The only right that has been reserved in the two Wills, though different from each other, with regard to the entitlement of the other two brothers of the applicant, is that in one Will the other two brothers are entitled to one flat each measuring about 1500 sq. ft. free of cost while in the other Will it is about 1000 sq. ft. upon payment of consideration at the rate of Rs.1000/- per square feet. Apart from this discrepancy the rest of the portion appears to be identical. The applicant has been given right in case of demise of the Testator to develop the property in the Will dated 1st October, 1993. In the other Will also after the demise of the Testator, the eldest son, being the applicant, would develop the properties and in such event the entitlement of the two other brothers though little different, were recorded too.