GAYARAM SHAW Vs. TARAK NATH SHAW

JUDGEMENT

(1.) The defendants in a suit for grant of Letters of Administration are the petitioners before us in this revisional application which is directed against an order dated December 6, 1980, passed by the learned Subordinate Judge, First Court, Howrah, in L. O. A. Suit No. 29 of 1965. By the order impugned the learned Judge has allowed an application for substitution on the death of the two original applicants for the grant. It will be necessary to refer to the material facts in order to appreciate the real controversy between the parties now before us and those may be set out briefly as follows.

(2.) Sm. Raj Kumari Debi and Sm. Kunti Debi as residuary legatees applied for grant of Letters of Administration with copy of a Will annexed in respect of the estate of the deceased Sital Shaw. That was registered as L. O. A. Suit No. 91 of 1964 which had been renumbered as 29 of 1965. The prayer for grant was strongly contested by the present petitioners before us who challenged the Will itself. That challenge being overruled there was a grant in favour of the applicants made in the year 1971. The present petitioners preferred an appeal to this court against the said order making the grant being F. A. 431 of 1971. Pending the said appeal Sm. Kunti Debi died on August 14, 1973. Sm. Raj Kumari Debi also died on June 23, 1977. On May 8, 1978, the aforesaid F. A. 431 of 1971 was dismissed.

(3.) In that background on June 27, 1980, an application was filed by the present opposite parties before us for substitution. In the application for substitution the petitioners Nos. 1 to 8 claimed themselves to be the heirs and legal representatives of Raj Kumari Debi, while the petitioners Nos. 7 to 8 claimed themselves to be the heirs and legal representatives of late Kunti Devi. In the application they pleaded that the original applicants for the grant having died it is necessary that the heirs and legal representative of the said applicants should be brought on record and should be allowed to proceed with the suit and take out the Letters of Administration on paying the necessary stamp duty. Such a prayer was made ostensibly under Sections 141, 146 and 151 of the Code of Civil Procedure read with Order 1, Rule 10 or Order 22 of the said Code. This application was again contested by the petitioners as they contested the original application for the grant. They took the stand that such an application is not maintainable in law. That objection having been overruled, the learned Judge has allowed the prayer for substitution and has further directed that the plaint meaning thereby the application for the grant of Letters of Administration be amended accordingly. Feeling aggrieved the petitioners have moved the present revisional application which has been heard on contest by the opposite parties -- the petitioners in the application for substitution.