SYED ABDUL ALIM ABED Vs. BADARUDDIN AHMED

JUDGEMENT

(1.) This is an appeal under Section 3 of the Calcutta Improvement Appeals Act, 1911, from the decision of the President of the Tribunal pronounced under Section 77(1), (6) of the Calcutta Improvement Act, 1911. This section provides that for the purpose of determining the award to be made by the Tribunal under the Land Acquisition Act, 1894, questions relating to the determination of the persons, to whom compensation is payable or the apportionment of compensation may be tried and decided, in the absence of the Assessors, if the President of the Tribunal considers their presence unnecessary, and when so tried and decided, the decision of the President shall be deemed to be the decision of the Tribunal.

(2.) In the case before us, a portion of premises No. 13 Panditia Road was acquired by the Calcutta Improvement Trust by a declaration issued on the 16 November, 1920, under the Land Acquisition Act. A sum of Rs. 46,200-8-10 was awarded by the Collector on account of the land, structures, statutory allowance, damages and capitalised value of the Government revenue. Thereupon three sets of persons appeared on the scene as claimants, with a view to participate in the sum awarded. The first of these was Badaruddin Ahmed who claimed to be the sole owner of the property. The second set consisted of Prafullanath Tagore and Muktakeshi Debi who are mortgagees from Badaruddin Ahmed. The third claimant, called the counter claimant in these proceedings, was Abdul Alim Abed, who claimed to be the owner. The Collector negatived the claim of the person last mentioned and awarded the compensation money to the first two claimants, mortgagor and mortgagees. Thereafter on the 16 August, 1922, a reference was made, under Section 18 of the Land Acquisition Act, at the instance of the counter claimant whose alleged title had not been recognised by the Collector. The reference was received in the Court of the Calcutta Improvement Tribunal on the 18 August, 1922, when notices were directed to issue on the parties concerned and the case was fixed for the 19 September, 1922, for appearance and for filing of written statements. The case was adjourned by the Court on ten occasions1 for want of time and it was finally taken up on the 21 April, 1923, when it was adjourned to the 12 May for peremptory hearing. On that date, as it was laid down in the list, it was again adjourned to the 26 May. On that date, an application was made by the counter-claimant for stay of the trial of the proceedings pending the disposal by the High Court of an application for the grant of Letters of Administration with copy annexed of the Will of one Omer Ali Sarkar. The President of the Tribunal refused the application for stay and held that the question of the genuineness and validity of the alleged Will should be tried by the Tribunal. The counter-claimant thereupon prayed that some time should be given to him to enable him to produce the Will which had been lodged in the High Court. This: prayer was refused and the President stated that even if the document had been produced, it would not have been received. The result was that what was called the apportionment case was dismissed with costs. The counter-claimant has appealed, to this Court and has contended that the order made by the President should be set aside, so that either the proceedings before the Tribunal may be stayed during, the pendency of the probate proceedings in this Court or the question of the genuineness and validity of the Will may be investigated before the compensation money is distributed. The records of the probate proceedings have been placed before us.

(3.) It appears that the property acquired; by the Calcutta Improvement Trust originally belonged to Omer Ali Sarkar who died on the 8 September, 1911. The case for the appellant is that Omer Ali. Sarkar had executed a Will on the 11th, May, 1911. This is denied by the respondent. Omer Ali Sarkar left a sister Abir Jan. The first claimant Badaruddin Ahmed who is the respondent sets up title-under a deed of gift said to have been.: executed in his favour on the 22nd" June, 1$13, by Abir Jan, who, it is asserted, took the property by right of inheritance from her brother, the original owner. The counter-claimant - Abdul Alim Abed - a grandson of Omer AH Sarkar by a daughter Ayesha who is the appellant sets up title as legatee under the alleged Will of Omer Ali Sarkar. On the 27 April, 1923, Abdul Alim Abed made an application to this Court in its testamentary jurisdiction for Letters of Administration with copy of the Will annexed in respect of the estate of Omer Ali Sarkar. The estate was valued in accordance with statutory provisions, and an ad valorem fee of Rs. 2,007 was paid as prescribed in the Court Fees Act. In this application, it was stated that the person named as executor in the Will, one Samiruddin, was of unsound mind, that the applicant was a legatee under the Will and that he had attained his majority on the 30 May, 1918. He claimed, under the Will, the premises No. 13, Panditia Road, and some ornaments. On the 30 April, 1923, Mr. Justice Greaves ordered citation to issue to the executor under Section 16, and a special citation to Abir Jan under Section 69. On the 14 May, 1923, Abir Jan filed caveat and the case is still under consideration. In these circumstances, the respondents have argued that notwithstanding the pendency of the testamentary proceeding in this Court, the Tribunal may, and should determine the question of genuineness and validity of the Will. But before we deal with this matter, we must first consider whether the order of dismissal should stand.