SUSANTA KUMAR CHOUDHURY Vs. BIRENDRA KUMAR DEB ROY

JUDGEMENT

(1.) It is admitted by the learned counsel of both the parties that the appellant No. 2 Dr. P. K. Choudhury and the respondents Nos. 2 and 4, namely, Shri Nirmalendu Ghosh Choudhury and Shri Mahendra Ghosh Choudhury and the proforma respondent No. 11 Shri Swandip Kumar Choudhury had died. From the report of the Process Surver submitted on 23-7-1990; it has been revealed that the notices upon the respondents Nos. 2 and 4 could not be served as the said respondents were no longer alive at the relevant time when the process server visited the places where the respondents Nos. 2and 4, resided. Now, the sole question issues arises as to whether this appeal is abated or not. Before entering into the merits on this particular issue, it will be partinent to know the facts of this case. The facts of the case in a short compass are as follows :

(2.) The present appellant No. 1 Shri Susanta Kumar Choudhury and the appellant No. 2 Dr. Pradip Kumar Choudhury (now deceased- filed a petition dated 29-6-1984 under Section 276 of the Indian Succession Act, 1925 in the Court of the District Judge, West Tripura, Agartala for grant of probate of the last WILL and testament dated 10-2-1968 said to have been executed by one late Satyendra Kumar Dutta Choudhury son of Late Joykumar Dutta Choudhury a resident of Deshabandhu Chittaranjan Road, Shibnagar, Agartala P. S. East Agartala, West Tripura District who died on 27-1-1970 at G.B. Hospital, Agartala leaving at the time of his death the properties described in the said WILL. The deceased was a bacholor and he by the said WILL bequeathed and devised all his movable and immovable properties including chosen-in-action and trade marks and patent rights unto the appellants (petitioners in Misc. (Probate) 6 of 1984 and one Shri Susanta Choudhry, the pro forma respondent No. 11 jointly as trustees of his said estate for the purpose of establishing and maintaining a Home for poor or orphan boys and girls or children of poor persons of the Hindu Society or un-attached children. Under the said WILL the said trustees i.e. the appellant Nos. 1, 2 and pro forma respondent No. 11 shall be entitled to convert all the properties and the assets of late Satyendra Kumar Dutta Choudhoury into any kind of security or other assets and keep the same invested in such securities as they deem fit in order to carry out the purposes of the trust.

(3.) In the year 1979 the Respondent No. 1 and others instituted Title Suit No. 28 of 1979 in the Court of the Subordinate Judge against Sasanka Mohan Dutta Choudhury (now deceased) and his legal representatives and others for declaration of their over the lands i.e. the properties involved in the said Will and for khash possession by evicting the defendants there from. On asertaining the factum of the filing of T. S. No. 28 of 1979 in the Court of the learned Subordinate Judge on 30-4-1984 the present appellant Nos. 1 and 2 (plaintiffs) filed an application on 2-5-1984 under Order 1, Rule 10(2) and Section 151 of C.P.C. for adding them as party in the said suit. As the learned Additional District Judge by his order dated 28-5-1984 rejected the prayer of the appellants for being added as parties to that suit, the appellants have been constrained to file the petition for probate by the said WILL under Section 276 of the Indian Succession Act, 1925, in the Court of the learned District Judge, West Tripura, Agartala in the prevailing circumstances as stated above.