Smt. Kaberi Chakraborty vs Smt. Sreejita Mitra Chakraborty
2022 Latest Caselaw 8148 Cal

8.12.2022

Ct. no. 652 sb C.O. 1871 of 2022

Smt. Kaberi Chakraborty Vs.

                               Smt. Sreejita Mitra Chakraborty


                   Mr. Shamit Sanyal
                   Ms. P. Banerjee                  ...for the petitioner

                   Mr. Subhankar Das
                   Mr. G.C. Banerjee
                   Mr. Bikram Sarkar
                                                ...for the opposite party

This is an application under Section 24 of the Code

of Civil Procedure seeking transfer of Probate case no. 6

of 2022, presently pending before the learned Chief

Judge, City Civil Court, Calcutta to the court of learned

District Judge, Barasat or any other court having

competent jurisdiction at Barasat, North 24 parganas.

The petitioner contended that the petitioner got

married with one Tirthankar Chakraborty since deceased

in the year 2010 and due to said wedlock, a female child

was born who is now aged about four years and is in the

custody of the petitioner. Petitioner alleged that after the

death of the husband of the petitioner, the opposite party

and her men and agents did not allow the petitioner to

enter the house of her deceased husband and on the

other hand, the opposite party made a complain before

the Hasnabad police station with lot of allegations

against the petitioner. Due to the unfortunate and

untimely demise of her husband she was forced to live at

her parent's house and was denied accesses to her

belongings and her husband's belongings at her

matrimonial home. Surprisingly during this period the

petitioner received a copy of probate application being

probate case no. 6 of 2022, which discloses that a

probate case has been initiated by petitioner's mother-in-

law in the court of Chief Judge, City Civil Court, Calcutta

mentioning her present address at Behala, Kolkata. The

petitioner states that she is unemployed and it is difficult

for her to travel such a long distance alone to contest the

said probate proceeding. She is also custodian of minor

child aged about four years and she further submits that

learned City Civil Court, Calcutta has no territorial

jurisdiction to try the aforesaid probate proceeding being

probate case no. 6 of 2022.

The petitioner further submits that the opposite

party's permanent residence is at Taki, North 24

parganas and the present address of petitioner as given

in the cause title of the said suit is not her residential

place. Furthermore, all the properties being the subject

matter of probate proceeding are situated at Taki, North

24 parganas and as such City Civil Court, Kolkata does

not have any jurisdiction to try the case The petitioner

wants to contest the aforesaid probate suit and therefore

the petitioner has prayed for aforesaid transfer.

Learned counsel for the opposite party submits

that the opposite party is presently aged about 66 years

and she is presently residing in Behala, Kolkata and as

such it would be inconvenient for her, if the case is

transferred as sought for in the application. she further

submits that part of the movable properties in

connection with probate suit are within the jurisdiction

of City Civil Court, Calcutta and the immovable property

in connection with said probate suit situates within the

jurisdiction of Barasat. In this context, she relied upon

judgment of cases reported in (2008) 3 SCC 659 and

C.O. 1792 of 2019 passed by this court. Accordingly, she

submits that the City Civil Court, Calcutta has

jurisdiction to try the case and opposed the prayer for

aforesaid transfer.

I have considered the submissions made by both

the parties also considered the convenience and

inconveniences as pleaded by the parties. The moment

the probate proceedings become contentious, it partake

the character of a suit. Section 276 of the Indian

Succession Act provides for the territorial jurisdiction of

probate proceeding. This states that the territorial

jurisdiction of the court to entertain an application for

probate depends upon the fact whether the deceased at

the time of his death had a fixed place of abode or

residence within the local limit of the jurisdiction of the

Judge before whom the application is made. Here it is

not disputed that the permanent place of abode or

residence of the deceased is at Taki, Hasnabad, North

24 parganas which is also evident from the death

certificate of the deceased. It is also not disputed that the

immovable property in connection with the will, in

respect of which grant of probate has been prayed for,

situates within the jurisdiction of Barasat Court. When

the statute has specified fixed place of jurisdiction of a

particular case, then in my considered opinion, the

prayer for transfer made by the petitioner is justified and

it would be appropriate for the ends of justice to allow

such prayer. The case law cited by opposite party

reported in (2008) 3 SCC 659 is a reiteration of broad

propositions, as to what may constitute the ground for

transfer. C.O. 1792 of 2019 relates to transfer of a

matrimonial proceeding initiated by husband for

dissolution of marriage against wife, where guiding

principle is convenience of wife who has no earning,

should be of paramount consideration, which is not

squarely applicable in the present context. In view of the

facts of the case, the prayer made by the petitioner is

allowed.

In view of above, learned Chief Judge, City Civil

Court, Calcutta is hereby directed to withdraw the

probate case no. 6 of 2022 presently pending before the

court of Chief Judge, City Civil Court, Calcutta and to

transmit the same to the court of learned District Judge,

Barasat, North 24 parganas within a period of three

weeks from the date of communication of the order.

The transferee court shall serve fresh notice upon

both the parties intimating the next date of hearing

before proceeding further with the aforesaid suit.

The department is directed to send a copy of the

order to the learned Chief Judge, City Civil Court,

Calcutta and learned District Judge, Barasat, North 24

parganas.

Accordingly, C.O. 1871 of 2022 is disposed of.

Urgent photostat certified copy of this order, duly

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)