LALIT KUMAR BOSE Vs. CHARU BALA SAHA

JUDGEMENT

(1.) THIS rule was obtained against an appellate order passed by the Additional District Judge, Howrah, affirming four orders passed by the munsif, 3rd Court, Howrah, as a Thika controller in Misc. Case No. 102 of 1961 under section 5 of the Calcutta thika Tenancy Act. The facts relevant for the present purpose are briefly as follows : the opposite party No. 1 filed an application under section 5 of the Calcutta Thika Tenancy Act against the father of the petitioner, for eviction on the ground that the land was required for her own occupation for the purpose of build on the land or otherwise developing the land by discontinuing let out to thika tenants. The application was allowed by the Thika Controller on 14th September, 1963. The thika tenant filed an appeal which was dismissed on 28th April, 1964. Thereafter a Commissioner was appointed to determine the valuation of the structures, and the commissioner submitted his report on 5th August, 1967. The Controller fixed 19th August, 1967 for hearing of objection, if any, against the Commissioner's valuation. No objection was filed by the tenant. On the 19th August, 1967 the Commissioner's report was accepted by the Controller in the presence both the parties. Subsequently the tenant file an application on 22nd August, 1967 for reconsideration of the Commissioner's report regarding the valuation. This application was fixed for hearing on 1st September, 1967. In the meantime the Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions)Ordinance (5 of 1967) was promulgated with the result that the proceeding remained stayed till 30th October, 1969. In the meantime the tenant Phani bhusan Bose died on or about 2nd january, 1969. On 13th December, 1969 the opposite party No. 1 filed an application for substitution of the petitioner and his sister, who are respectively the son and daughter of Phani Bhusan Bose, alleging that they were the heirs and legal representatives of the deceased tenant. It appears, that by an order dated 3rd February, 1970, the Controller held that the Miscellaneous Case had abated as no application for substitution was filed within 90 days of the death. On 14th February, 1970, the opposite Party No. 1 filed an application praying for an order for substitution after condoning the delay. This application was allowed on 19th february, 1970, by the Controller. It appears, that this order was passed exparte without notice to the petitioner or to the other heir of the deceased tenant. It further appears that on 18th March, 1970, it was brought to the notice of the Controller that the order dated 19th February, 1970, was passed ex parte and the petitioner had no opportunity to file any objection to the application filed by the opposite party for substitution of the heirs and legal representatives of the deceased tenant after condoning the delay. By order No. 112 dated 18th march, 1970 the learned Controller afforded an opportunity to the petitioner to file his objection. Thereupon the petitioner filed an objection stating various grounds in support of his contention that the substitution as prayed for should not be allowed. This objection was considered by the learned controller, who by order No. 114 dated 31st March, 1970, overruled the objection. The petitioner filed 4 appeals before the District Judge against 4 different orders made by the Controller. These appeals were heard together by the learned Additional District Judge, who dismissed the appeals and affirmed the order of the Controller. Against the said order of the Lower Appellate tribunal the petitioner has obtained the present rule.

(2.) MR. Dutt, learned Advocate appearing in support of the Rule, has, in the first place, contended that in view of the provisions of section 211 of the indian Succession Act the executor or the administrator of the deceased tenant was his legal representative, and as such he ought to have been impleaded as a party to the present proceeding and it was not open to the opposite party No. 1 'to substitute the petitioner and his sister, who are the natural heirs of their father. It was stated that a letters of administration case is pending in the court of the District Delegate, howrah, in respect of the Will alleged to have been executed by the petitioner's father in respect o his property, including the disputed property. It was contended that under the terms of the said Will the petitioner was not a legatee but a bequest had been made in favour of the petitioner's sons. In view of this provision in the Will it was contended that the tribunals below were wrong in allowing the opposite party's application for substitution of the petitioner in place of his deceased father. Reliance was placed on a bench decision of this Court in Nawab kajeh Habibullah and ors. v. Babu Aranga Mohan Roy and ors. , AIR 1942 calcutta 571 and it was argued that the executor or the administrator of the deceased was his legal representative and he ought to have been substituted in place of the deceased tenant. In my view the decision in that case does not help the petitioner in the present case. The facts in that case were that one Kumudini was the eight annas owner of a tenure, which fell Into arrears. The superior landlord brought a Kent Suit against Kumudini and her cosharer. During the pendency of that suit Kumudini died leaving a Will by which she appointed five persons as executors. While that Rent Suit was pending four of the executors applied for Probate and the remaining executor was at first opposing the grant. The said four executors ultimately renounced, and probate was granted to the other executor only. This was after the decree had been passed in the Rent suit. At all material stages of that suit none of the executors named in the will had obtained probate. Though in their application filed in the Rent Suit by the abovementioned four executors they stated that they were in possession of the estate of Kumudini, there was no evidence before the court to that effect. Therefore, the question arose whether the executors could at that stage be substituted in the Rent Suit as the legal representatives of Kumudini. Their Lordships held that the executors could not be substituted. It was further held that if the executors had been substituted and a decree obtained that decree would not have bound the estate of kumudini as they had not then obtained probate. In this connection their lordship observed as follows :

(3.) IN the present case there is no evidence that the executor had intermeddled with the estate. On the other hand it appears from the order passed by the Controller that although the petitioner was given an opportunity to file his objection against the prayer for substitution he did not disclose any of the particulars as to who was the exetors of the administrator, or as to the persons in whose favour bequest had been made by the Will. In the absence of these particulars it cannot be said that the opposite party No. 1 should have substituted the executor in place of the deceased father of the petitioner. Moreover, according to the petitioner's own case no portion of the property in dispute has been be quested in his favour. He has, therefore, no interest in. the disputed property. Therefore, there is no reason why the order passed by the tribunals below should be interfered with at his instance.