LEGJIN TSHERING Vs. RINCHEN CHAPKHANWALLA

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated September 7, 2005 dismissing O.C. Suit No. 75 of 1998. The appeal was admitted on July 25, 2011. The earlier Division Bench (consisting one of us Justice Soumen Sen) while admitting the appeal remanded the matter to the Civil Judge (Senior Division), Darjeeling for deciding issues Nos. 5 and 6 afresh in view of a finding arrived at by the Division Bench that the Trial Judge could not have made out a third case based on a family arrangement and, accordingly, findings arrived at by the Trial Judge in respect of Issues Nos. 5 and 6 were set aside.

(2.) The learned Civil Judge (Senior Division), Darjeeling in deciding issue Nos. 5 and 6 held that the Partition Deed (Exhibit 7) is in effect a deed of family settlement. It was further held that the substituted plaintiff also could not produce the Will allegedly executed by the original plaintiff on 28th May, 1991 and so long as the alleged Will in favour of the substituted plaintiff is not probated or letters of administration obtained in respect thereof the sale deed under consideration in relation to the suit property would be valid.

(3.) During the pendency of the appeal, the substituted plaintiffs obtained the probate. Accordingly, the suit was remanded to the Civil Judge (Senior Division) for a decision on issue Nos. 5 and 6 after taking into consideration the grant of probate and the observation made by this Court that it was not open for the Civil Judge (Senior Division) to make out a case of family arrangement which was not the case of either of the parties.