AMAR CHANDRA ROY Vs. ABANIDHAR ROY

JUDGEMENT

(1.) In this Rule obtained on a revisional application the two plaintiffs of Title Suit No. 26 of 1976 have challenged an order dated January 6, 1978, passed by the learned subordinate Judge, Asansol.

(2.) The present petitioners along with two others, namely, Kartick Chandra Roy and Hem Chandar Roy instituted the aforesaid Title Suit against the defendant opposite parties Nos. 1 and 2, namely, Abani Dhar Roy and Sudhansu Kumar Hazra for a declaration that the plaintiffs are the co-sharer of defendant No. 1 Abani Dhar Roy in respect of the disputed property which is an old colliery named Pahara Gora Colliery. They also prayed for permanent injunction restraining the defendants 1 and 2-the defendant No. 2 being the managing contractor-from interfering with or obstructing the plaintiffs in their possessment, management and in their possessment, management and supervision of the said colliery as the co-owners thereof along with the defendant No. 1. It is not in dispute that during the pendency of the suit, two amongst the 4 original plaintiffs namely, Kartick Chandra Roy and Hem Chandra Roy were transported to the category of defendants when they expressed their intention not to proceed with the suit. After such transposition and during the pendency of the suit Hem Chandra Roy died on November 15, 1977. On November 30, 1977, the present petitioners, that is the remaining two plaintiffs filed an application for substituting the heirs of the said Hem Chandra Roy as on intestacy. An adjournment was sought for by the parties contesting the said application for ascertaining whether the said Hem Chandra Roy had left behind any Will or not and in that background on December 12, 1977, the present petitioner filed a fresh application stating that late Hem Chandra Roy died leaving behind an unregistered Will whereby he purported to give all his properties to his younger son Sunil Chandra Roy and minor Rudra Roy and that hem Chandra had appointed two persons, namely, Khdiram Roy and Khudiram Majhi to be his executors. On this application, the plaintiffs prayed that to meet all contingencies not only the heirs as on intestacy of Hem Chandra Roy be substituted as prayed for in their earlier application dated November 30, 1977, but furthermore the two executors along with the legatees may also be brought on record awaiting grant of probate of the said Will of Hem Chandra Roy. These two applications being opposed the learned Subordinate Judge held that until the probate is obtained in respect of the Will of Hem Chandra Roy or in the alternative an administrator ad litem is appointed further proceedings in the suit should be stayed and no substitution could be stayed and no substitution could be effected as prayed for by the plaintiff/petitioners. Hence, by the impugned order he directed, It is ordered that further proceedings of the suit are stayed until further orders and the plaintiffs are to take step for appointment for an administrator ad litem by the date fixed. To 30/1/78 for further orders. Feeling aggrieved, the plaintiff/petitioners have preferred the present revisional application.

(3.) Mr. Mukherji appearing on behalf of the petitioners has contended that the learned Subordinate Judge refused to exercise his jurisdiction in disposing of the application for substitution on its merits upon an erroneous view of the law the none of the persons sought to be brought on record in place and instead of the deceased Hem Chandra Roy is a legal representative. Mr. Mukherji has rightly drawn our attention to the well known practice followed even in this court under similar circumstances when on the death of a party leaving behind a Will the usual course adopted is to substitute him by his heirs as on intestacy but simultaneously bring on record the executors named in the Will so that once the probate is obtained the others may be struck off. The learned Subordinate Judge, however, relied on an earlier decision of this court in the case of Habibullah v. Ananga Mohan AIR 1942 Calcutta 571 where it was observed. In these circumstances two courses were open to the plaintiffs in the rent suit when Kumudini died, either to apply for postponement of the case till probate was granted to Kumudini's Will and after that event tot substitute the executor or executors who obtained probate, or if that was not feasible or desirable to apply for appointment of an administrator ad litem under section 251 of the Succession Act and to substitute the person so appointed in Kumudini's place. The observations no doubt support the conclusion which was arrived at by the learned Subordinate Judge but in our considered opinion the procedure suggested is not the only procedure to adopt. Indeed the observation relied on by the learned Subordinate Judge is an obiter as would appear from the judgment itself.