SANTI SWARUP SARKAR Vs. PRADIP KUMAR SARKAR

JUDGEMENT

(1.) This revisional application under S. 115 of the Code of Civil Procedure (hereinafter referred to as Code) is directed against the order dated 8th April, 1992 passed by the learned Additional District Judge, 7th Court, Alipore, 24-Parganas (South) in Original Suit No. 11 of 1990 before him, for the reasons stated therein.

(2.) Smt. Charu Sila Sarkar, since deceased, a Hindu Lady, had executed a Will dated 15th August, 1996 appointing Provash Chandra Banerjee, Smt. Jyotsna Moyee Chowdhury and Sudhangshu Kumar Dutta, Executors/ Executrix. The said Sri Provash Chandra Banerjee and Smt. Jyotsna Moyee Chowdhury having since died, the only other surviving Executor Sudhangshu, Kumar Dutta had filed application for grant of probate of the said Will and Testament of the said deceased Charu Sila Sarkar. Contention having been raised to the said grant the matter was set down as a contentious cause and had been converted into a regular suit. During the pendency of the said suit the sole surviving Executor Sudhangshu Kumar Dutta had died on 16th July, 1991 whereupon the petitioner Shanti Swarup Sarkar, the universal/residuary legatee in the said Will left by his mother Charu Sila Sarkar, who is the defendant No. 6 in the relevant suit (hereinafter referred to as the petitioner) had filed two applications before the Court below, one for transposing him as a plaintiff in place of the deceased Executor Sudhangshu Kumar Dutta and allow him to proceed with the suit as plaintiff for grant of letters of administration with a copy of the Will under S. 232 of the Indian Succession Act, and the other to have the petition for probate amended by substituting a prayer for letters of administration with copy of the Will annexed in place of the prayer for probate.

(3.) The Court below by passing the impugned order had rejected both the applications filed by the petitioner for the reasons recorded therein.