HUBERT PROBHAT PEREIRA Vs. NARAYAN ADHYA

JUDGEMENT

(1.) The parties to the suit have been pursuing litigation's for more than half century to establish their rights in the property bequeathed by their predecessor-in-interest, Shyamal Kishore Adhya. The Official Trustee of Bengal filed an application in the High Court at Calcutta for grant of probate of the will of Shyamal Kishore Adhya, which became contentious when grant of probate was opposed by his son, Baidyanath Adhya and the application for grant of probate was converted to Testamentary Suit No.21 of 1937. The said Testamentary Suit was decreed on consent in accordance with the terms of settlement, which were made part of the decree dated April 6, 1950. The clause 5 of terms of settlement lays down that the properties mentioned in Schedule "A" of the Will will devolve upon the natural born son of Baidyanath Adhya. Baidyanath Adhya instituted Suit No.1242 of 1952 challenging the consent decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937 and during the pendency of the said suit a male child of Baidyanath was born on October 31, 1952, who was named as Panchanan Adhya. As a result, Baidyanath Adhya did not proceed with the hearing of Suit No.1242 of 1952, which was declared by him in a registered document dated April 1, 1953. Panchanan Adhya, thus, became absolute owner of the property described in Schedule "A" of the terms of settlement which was made part of the decree dated April 6, 1950 in Testamentary Suit No.21 of 1937. The said "A" Scheduled properties are described in the Schedule of the plaint (hereinafter referred to as "the suit property").

(2.) The defendants are natural born sons of Baidyanath Adhya, but the defendants were born after the birth of Panchanan Adhya, the eldest son of Baidyanath Adhya. Baidyanath Adhya used to look after and manage the suit property during his life time. He died on July 8, 1971 when Panchanan Adhya was only 19 years old. Smt. Tarakbala Adhya, wife of Baidyanath Adhya and Bholanath Dey, brother-in-law of Baidyanath Adhya used to look after and manage the suit property after the death of Baidyanath Adhya. Tarakbala Adhya died on October 10, 1998. Panchanan Adhya was not aware of the consent decree dated April 6, 1950 passed in Testamentary Suit No.21 of 1937 till the month of May, 2014. After the death of Tarakbala Adhya, the defendants started asserting their rights and interests in the suit property by collecting and enjoying the rents and profits arising out of the suit property. Relying on misrepresentation of the defendants, Panchanan Adhya executed documents jointly with the defendants on good faith in respect of Premises No.31, Doctor's Lane, Kolkata-700014, which is part of the suit property. Panchanan Adhya came to learn about the consent decree passed in Testamentary Suit No.21 of 1937 when the said document was disclosed in the written statement filed in Partition and Administration Suit No.93 of 2005. The defendants denied absolute ownership of Panchanan Adhya in the suit property in the month of April 2014 and also in the month of May, 2014. On August 12, 2014 Panchanan Adhya filed an application being G.A. No.2544 of 2014 in connection with Testamentary Suit No.21 of 1937 based on clause 10 of the terms of settlement dated April 6, 1950, whereby liberty was given to apply in connection with the said suit. Panchanan Adhya filed one joint written statement along with the defendants to contest Partition and Administration Suit No.93 of 2005 out of love and affection for the defendants who happen to be his brothers by full blood. On August 16, 2014 Panchanan Adhya died during the pendency of the application being G.A. No.2544 of 2014 leaving behind a registered will dated August 14, 2014. The plaintiff being the eldest son-in-law of Panchanan Adhya was appointed as executor of the said will of Panchanan Adhya. The plaintiff had taken out an application being G.A. No.2874 of 2014, which was disposed of on September 9, 2014 by granting order in terms of prayer "a" of the said application.

(3.) The plaintiff filed an application before the City Civil Court at Calcutta being Probate Case No.62 of 2014 for grant of probate of the registered will of Panchanan Adhya executed on August 14, 2014. The plaintiff also continued with the hearing of G.A. No.2544 of 2014 filed by Panchanan Adhya during his life time in connection with the Testamentary Suit No.21 of 1937, which was published in the newspaper in compliance with the direction of the court, but the defendants did not enter appearance for contesting G.A. No.2544 of 2014. On November 17, 2014 Learned Single Judge of this Court disposed of G.A. No.2544 of 2014 by holding that ordinary course of law would follow to decide the rights of the parties in the suit property. The plaintiff specifically asserts that the defendants have no manner of right, title and interest in the suit property except permissive possession in premises no.43, Harakumar Tagore Square, Kolkata-700014 and one shop room in Premises No.79/15B, Acharya Jagadish Chandra Bose Road, Kolkata-700014, which are part of the suit property. The defendants have represented before the occupants of the suit property that they are the owners of the suit property and thereby the plaintiff is unable to pay Municipal Taxes and other fees to Kolkata Municipal Corporation in connection with the suit property. The plaintiff has, thus, instituted the present suit as the executor of the will of Panchanan Adhya for declaration that the son and two daughters of Panchanan Adhya are the absolute owners of the suit property and for permanent injunction restraining the defendants from transferring and/or alienating and/or parting with the possession of suit property and also for permanent injunction restraining the defendants from entering into the possession of the suit property. The plaintiff has also prayed for direction upon the defendants to furnish accounts in relation to the transaction concerning induction of new occupants in the suit property and other ancillary reliefs.