SRI. SWARUP DEBNATH Vs. SMT. SABITA DEBNATH

JUDGEMENT

(1.) THESE two revisional applications are at the instance of the rival parties challenging the self -same order i.e. Order No. 14 dated February 17, 2011 passed by learned Civil Judge (Junior Division) Barrackpore, District 24 Parganas North in Miscellaneous (Succession) Case No. 14 of 2010 by which an application for stay of the succession proceeding till the disposal of the probate proceeding is allowed subject to a deposit of Rs. 5 lakhs. Shorn of fact, one Ganesh Chandra Debnath since deceased was seized and possessed of various movable and immovable properties. The said deceased was married to Smt. Sabita Debnath being the petitioner in C.O. No. 1576 of 2011 and opposite party in C.O. 1065 of 2011 (herein after referred to as opposite party for sake of convenience), according to Hindu Ritual and Rites. One male child namely Arijit Debnath is born from the said wedlock. The said deceased during his lifetime purportedly executed and registered his last Will and Testament dated 13th July, 2004. The testator died on 14th November, 2009. Swarup Debnath (herein after referred to as the petitioner for the sake of convenience) applied for grant of probate as an executor to the said Will before the District Delegate Judge, Barasat which was registered as Miscellaneous Case No. 166 of 2010.

(2.) SUBSEQUENTLY , the opposite party filed an application for grant of Succession Certificate being Miscellaneous (Succession) Case No. 14 of 2010 in respect of various debts, securities and assets of the said testator. The petitioner took out an application for stay of the said Succession Certificate Proceeding on the pretext that the said Will covered both movable and immovable properties of the testator.

(3.) MR . Partha Sarathi Das, the learned Advocate appearing for the petitioner submits that the trial court, after having found that the Will includes the movable property as well, could not have imposed the condition for deposit of a sum of Rs. 5 lakhs for staying the Succession Proceeding. He further submits that the intention of the testator, as would be reflected from the Will, is to include the movable assets and pending the probate proceeding, the Succession Certificate Proceeding cannot run simultaneously. Lastly he submits that the affidavit of assets filed by his client in the probate proceeding includes debts, securities and monies left by the testator at the time of his death.