Calcutta High Court (Appellete Side)
Yaram Nazneen vs Umesh Koshta & Anr on 7 December, 2021
02. 07.12.2021
Ct. No.21
C.O. 1821 of 2021
Yaram Nazneen
-VS-
Umesh Koshta & Anr.
(Through Video Conference)
Mr. Prabal Kumar Mukherjee,
Mr. Tarak Nath Halder,
...for the Petitioners.
Mr. Balaram Ganguly,
Mr. Kartick Mondal,
Mr. Prasun Mukherjee,
...for the Opposite Party.
Assailing the order dated 06.04.2021 passed by
learned Civil Judge (Junior Division), 1st Court,
Sealdah in Ejectment Suit no. 26 of 2012 rejecting the
application of the petitioner under order 1 rule 10
C.P.C. for addition of party in the said suit as plaintiff
the petitioner has filed the present revisional
application.
Smt. Ranjana Aditya (Dutta Chaudhury) had filed
Ejectment Suit No. 26 of 2012 against her tenant
Subhadra Devi Mahabar on the ground of default and
reasonable requirement, but during pendency of such
suit Ranjana Aditya died on 19.12.2018 leaving
behind the petitioner as her natural legal heir.
2
It is the case of the petitioner Ranjana Aditya was
earlier married to one Biraj Sarkar and out of the said
wedlock the present petitioner was born on
02.11.1981
. Subsequently the said marriage was
dissolved by a decree of divorce in the year 1986.
Thereafter, her mother married Saibal Dutta
Chowdhury and had a son named Saumak from
second marriage.
The petitioner has further alleged on the death
of her mother stranger Umesh Koshta has got himself
substituted as plaintiff in the Eviction suit no. 26 of
2012 filed by her mother claiming as a sole executor
of the will executed by Ranjana during her life time.
Then the petitioner along with her step-father and
half-brother filed Title Suit No. 1329 of 2018 claiming
right, title and interest over the suit property against
Umesh Khosta and such suit is still pending.
She is contesting O.S. No 05 of 2019 for Probate
filed by Umesh Koshta and where she has challenged
the legality and validity of the alleged will of her
mother and such Probate suit is also pending.
The petitioner has alleged she was the one who
performed the last rites of her mother and she used to
collect the rent of the disputed property from the
tenants. If she is not impleaded as co-plaintiff in the
eviction suit filed by her mother, then her interest as a
natural legal heir who is lawfully entitled to inherit the
property would be prejudiced and she would suffer
irreparable loss.
Learned lawyer for the petitioner contended that
order under challenge is devoid of reasoning. While
rejecting the petition under order 1 Rule 10 (2) of the
Civil Procedure Code, the learned Court below has
merely observed "no substantial reason to add an
objector of the will of the original plaintiff as a party to
the eviction suit". Therefore, he prays for setting aside
such order. Learned lawyer refers to a Chandi Charan
Paul vs. Rabindra Nath Adhikary and Another
reported in 2001 (1) CHN 668 in support of his
contention.
On the other hand learned lawyer for the
opposite party contended that learned court below has
rightly passed the impugned order as the original
owner of the property has already bequeathed the suit
property in favour of the opposite party during her life
time. He refers to section 211 and 305 of Indian
Succession Act, and submits that executor need not
wait for the grant of the Probate as being the legal
representative of the deceased for all purpose and title
of the testatrix stands vested in the executor on death
and can prosecute the pending lis and will also liable
for the dues and debts of the deceased to the extent of
the estate of the deceased covered by the will. This
court does not deny such proposition of law.
Moreover, when the executor of the disputed will has
already been substituted as a plaintiff in the ejectment
suit.
The only issue to be looked by this court in the
present revision is whether learned court below has
rightly rejected the petition under1 Rule 10(2) of CPC
filed by the petitioner one of the natural legal heirs of
the deceased landlady of the disputed property to get
herself added as Co-plaintiff.
It has come on record the petitioner who was
born as a Hindu got herself converted to Islam after
marriage and adopted Muslim name Yaram Nazneen.
In view of Section 26 of Hindu Succession Act,1956 a
Hindu who converts to another religion is not
disqualified from inheriting the property of any of
his/her Hindu relatives, but his/her children who do
not follow Hindu religion are disqualified. Here, the
petitioner who ceased to be a Hindu due to her
conversion to Islam after marriage is not disqualified
to inherit the property left behind by her deceased
mother Ranjana Aditya along with other Class I legal
heirs, provided her mother had died intestate without
leaving any will.
In the present case it has come on record the
deceased Ranjana Aditya had left behind a will
executed in favour of a stranger Umesh Kostha. The
executor/ beneficiary has already filed for Probate of
the last will of Ranjana Aditya, the mother of the
petitioner in O.C. No.05 of 2019 and the present
petitioner and others are contesting the said Probate
Suit by filing written objection and where they have
challenged the legality and validity of the will.
It has also come on record those legal heirs of the
deceased has filed another Title Suit being No.1320 of
2018 against the alleged executor, for declaration of
their title over the disputed property
In view of the aforesaid circumstances two
situation is likely to arise in future:- (1) In case the
Probate case succeeds and reach its finality, then it
can be safely held deceased Ranjana Aditya by
executing the will in question bequeathed the property
mentioned therein in favour of the stranger executor
beneficiary mentioned in the will depriving her natural
legal heirs.
(2)In case the disputed will is proved to be false,
illegal, invalid and ineffective then her legal heirs as
per Hindu Succession Act, will inherit the property left
behind by her.
In the second scenario mentioned above if the
natural legal heirs are not made party in the eviction
case filed by the original deceased landlady against
tenant, then they will be deprived of their rights over
the rent of the suit property and such situation
germinates multiplicity of cases between the natural
legal heirs and the executor of the will and if the will is
declared to be void by court of law.
Keeping in view such facts, the petitioner the
daughter of the deceased landlady is a proper party to
be impleaded in the eviction suit along with the
executor of the will in question.
Having regards to the discussion made above, this
court is of view the impugned order suffers from
illegality and material irregularity for rejecting the
application of the petitioner merely on the ground that
no substantial reason was found to add an objector of
the will as a party to the eviction suit.
Therefore, the order impugned is set aside and
application of the petitioner under order 1 Rule 10 (2)
Code of Civil Procedure, 1908 is allowed. Let the
petitioner be added as a Plaintiff in the Ejectment Suit
No.26 of 2012. The Learned court below is directed to
do needful.
Since the fate of the Probate Case No.05.2019 is
likely to affect the of rights of both the present
petitioner as well as that of Umesh Kosta the alleged
executor of the will, to maintain the Ejectment Suit
No.26 of 2012 and also the maintainability of another
Title Suit No.1329 of 2018 for declaration of title with
consequential relief filed by the present petitioner and
others against Umesh Kosta, the executor, this court
direct the Learned Additional District Judge, Fast
Track 2nd Court at Sealdha to dispose of Original
Suit No.5 of 2019 pending in his court at the
earliest in any event within six months from the
date of communication of this order and
restraining itself from granting adjournments to
the parties without any justification.
Registry is directed to send copy of this order to
Learned Additional District Judge, Fast Track 2nd
Court at Sealdha, for compliance.
Accordingly, C.O. no. 1821 of 2021 stands
dismissed.
Interim order, if any, stands discharged.
There will be no order as to costs.
In view of the order made above affidavits are not
invited. Allegations made shall be deemed to be denied.
All parties shall act in terms of the copy of the
order downloaded from the official website of this Court.
Urgent Xerox certified photocopies of this
judgment, if applied for be given to the parties upon
compliance of the requisite formalities.
(Kesang Doma Bhutia, J.)
