DIPAK DAS Vs. NEMAI DAS

JUDGEMENT

(1.) Late Narendra Krishna Das died leaving him surviving his widow Lilabati Das, seven sons and one daughter. Two of the sons namely, Priobrata Das and Mohanlal Das died intestate as bachelor. After their death, Lilabati became the owner of the 1/3rd share in the property left by her husband (1/9th from husband and 1/9th each from two pre-deceased sons). The other shareholders were her five sons and one daughter. Youngest one Nemai Das did not have sufficient means of livelihood as we find from the Will of Lilabati. Lilabati bequeathed her all belongings including the 1/3rd share in the family property to her son Nemai Das to the exclusion of her other children being Tushar Kanti Das, Sashanka Sekhar Das, Dipak Das, Bholanath Das and Smt. Krishna Bairagi. Nemai applied for a probate. Bholanath and Krishna supported the Will. The Will was a registered one. Dipak, Tushar Kanti and Sashanka Sekhar appeared in Court after the notice of citation had been published in newspaper. They raised verbal objection and took time to file written objection. The learned District Judge treated the probate application as a contentious cause to be treated as a regular civil suit and transferred it to the Court of Additional District Judge, Barasat. From the Lower Court Record it appears, at least on four occasions the caviators took time to file written objection. However, they did not ultimately file any such objection. The matter was placed before the Additional District Judge in due course when no one appeared on behalf of the caviators. The learned Judge, upon considering the evidence of the propounder as also the attesting witnesses and considering the consent given by some of the co-sharers, granted probate in favour of Nemai on November 30, 2002. On March 3, 2003 Dipak filed an application under Order 9, Rule 13 of the Code of Civil Procedure on his behalf as well as on behalf of Tushar Kanti and Sashanka Sekhar, inter alia, claiming that they were under misconception that the matter would be amicably settled between the parties as assured by Nemai. They were also misguided by their lawyer who had advised them not to come to see him unless regular writ of summons had been served upon them like a civil suit. Similar plea was taken in the application for condonation of delay made under Section 5 of the Limitation Act. Nemai filed objection. According to him, the alleged causes shown by Dipak were not just and sufficient. Dipak filed affidavit-in-reply admitting that they were misguided by their lawyer. The learned Judge dismissed the application. Hence, this appeal.

(2.) Mr. Bidyut Kumar Banerjee, learned senior advocate appearing on behalf of the appellants contended before us that under Section 295 of the Indian Succession Act the procedure laid down in the Code of Civil Procedure applicable for a civil suit would be applicable in case of probate proceeding. Hence, the learned advocate was under the misconception that a writ of summons would be served calling upon the caveators to file written statement. The caveators also were under bonafide belief that Nemai would settle the dispute out of Court as assured by him. Mr. Banerjee further contended that the specific plea of assurance was taken in the application as well as in the affidavit-in-reply. No specific suggestion on that score was given by Nemai while cross-examining Dipak. According to him, a liberal approach should be taken in an application under order 9 Rule 13 of the Code of Civil Procedure particularly when the litigants were misguided as referred to above. He relied on the following decisions to support his contention.

(3.) Mr. Chittapriya Roy Chowdhury, learned counsel appearing for Nemai on the other hand contended that Dipak was the sole objector. Although he took the name of Tushar Kanti and Sasanka Sekhar they did not come forward to support Dipak either by filing any separate pleading or by adducing evidence. Mr. Roy Chowdhury further contended that the alleged assurance as pleaded by Dipak would not justify the prolonged delay. He contended that the probate proceeding was filed on July 5, 2000. The appellants miserably failed to justify the delay caused during the period between 2000 to 2002. Probate was granted after about two and half years of filing the said proceeding. He prayed for dismissal of the appeal.