ARATI PAUL Vs. REGISTRAR HIGH COURT ORIGINAL SIDE

JUDGEMENT

(1.) THE petitioner asks for a Writ in the nature of mandamus on the Registrar of this Court directing him "to recall, cancel and withdraw the filing of the pretended award dated April 1, 1963 as a judgment in suit No. 1045 of 1947 as part of the record of this Court. THE petitioner is the plaintiff in the said suit and the respondents Nos. 3, 4 and 5 are the defendants. THE dispute between the brothers and sister relate to the estate left by their father Srish Chandra Paul who died intestate in 1946 leaving considerable properties. Apart from the plaintiff who is the youngest daughter and is still unmarried, Sris had other daughters who are married and one of whom has died since. THE widow of Srish, Pramila Sundari Dasi died on January 13, 1958 after having instituted the above suit and after executing a Will whereby she left her entire estate to the plaintiff her youngest daughter and the respondent No. 3 her youngest son, to the total exclusion of her two other sons and the other daughters. THE suit instituted by Pramila Sundari was a suit for cancellation of a deed of gift executed by her in favour of her three sons in respect of one item of immoveable property situate in Calcutta of which she was the exclusive owner, and for partition of the estate left by her deceased husband. THE agreement between Pramila Sundari and her three sons which purports to record the partition of the bulk of the estate left by Srish has also been chal-lenged in the said suit. During the pendency of the suit Pramila Sundari died leaving a Will as indicated before and by an order of this Court her youngest daughter Arati was transferred from the category of defendant to be the sole plaintiff in place and stead of the deceased mother. She also propounded her mother's Will which was contested by her two brothers Balai and Kanai. THEreupon the testamentary proceedings became a contested cause and was marked and numbered Testamentary Suit No. 12 of 1962. Both the Testamentary Suit and the other suit came up before me for trial. What happened thereafter will appear from the judgment delivered by me on April 1, 1963 hereunder set out.

(2.) BY my said judgment, both the suits were disposed of. I pronounced in favour of the Will, upheld the agreement recording the partition of the bulk of the estate and passed a partition decree declaring the shares of the respective parties in the different properties as under:

(3.) THE instant application is an application under Article 226 of the Constitution for an order in the nature of mandamus on the Registrar of this Court. THE object is to prevent the filing of the preliminary decree passed by me on April 1, 1963. THE preliminary decree has been described as a "pretended award" not even an award. THE application was made before Binayak Baner-jee, J. on September 5, 1963, who refused to issue a rule and dismissed the application in limine with the following observation: