Calcutta High Court (Appellete Side)
Sri Asish Kumar Nanda And Others vs Sri Shyamal Kumar Rana And Others on 4 August, 2023
04.08.2023.
Item No. 07
Court No. 13
pk F.A. 97 of 2009
Sri Asish Kumar Nanda and others
Versus
Sri Shyamal Kumar Rana and others
Ms. Shohini Chakrabarty,
Mr. Arijit Sarkar
...For the appellants.
Mr. S. P. Pahari
... For the plaintiffs/respondents.
1. The appeal is directed against judgement and
order dated 27.08.2008 passed by the Civil Judge
(Senior Division) at Contai, Purba Medinipur in Title
Suit No. 146 of 2001.
2. The first appellant, Asish Kumar Nanda and
other five appellants, namely, Debasish Nanda,
Snehasish Nanda, Soudamini Nanda, Santi Panigrahi
and Tutu @ Tapati Tripathi have claimed ¼ share in
the suit property comprising in about 25 decimals of
land.
3. The said ¼ share originally belonged to
Jadabendra Sen and Debendra Sen, who had 1/8
share each. Debendra was childless and had
bequeathed by will, his 1/8 share in favour of the two
sons of Jadabendra, namely, Sailendra Sen and
Sitanath Sen. The will was probated.
4. In the impugned judgement, the court below
refused to recognise the shares of the
appellants/defendant nos. 3 and 5 (ka) to 5 (ana) on
the sole ground that they have not been able to
produce a copy of the probate obtained by Sailendra
Sen and Sitanath Sen in respect of the will of
Debendra Sen.
5. The Court, however, found proved and recorded
as exhibits, the application under Section 276 of the
Indian Succession Act, 1925 and the judgment
allowing probate. The decree of probate, however, was
the only missing link.
6. The appellants/defendant nos. 3 and 5 (ka) to 5
(ana) have been admitted by the plaintiffs and the
other parties as shareholders by purchase from
Jadabendra and his sons of their entire ¼ share in the
suit property.
7. Admittedly, partition of the suit property
comprising of 25 decimals of land was being held and
possessed jointly by the shareholders and/or their
legal heirs being Ramesh Sen, Asutosh Sen, Sachindra
Sen and Jadabendra Sen and Debendra Sen.
8. Even in the evidence, the legal heirs of other co-
sharers in the property have admitted that the
appellants/defendant nos. 3 and 5 (ka) to 5 (ana) in
the suit have ¼ share in the suit property.
9. In view of the above clear and unequivocal
evidence and the fair judicious submissions of Mr. S.
P. Pahari, learned advocate for the respondents, this
Court is of the view that the learned Court below may
have committed error in denying the shares of the
appellants/defendant nos. 3 and 5 (ka) to 5 (ana) in
the suit property.
10. The impugned judgement and preliminary
decree dated 27th August, 2008 shall stand modified to
include the ¼ share in the suit property in favour of
the appellants/defendant nos. 3 and 5 (ka) to 5 (ana).
11. The impugned judgement is set aside in part to
the extent indicated herein above.
12. Let the Commissioner of Partition be appointed
by the Court below within a period of seven days from
the date of receipt of a copy of this order.
13. The Commissioner shall submit a report to the
Court below within a period of three weeks from
appointment. All other formalities thereafter shall be
completed by the Court below. After receipt of report of
the Commissioner of Partition, final decree may be
passed by the court below in accordance with law as
expeditiously as possible.
14. F. A. 97 of 2009 is allowed and disposed of.
15. In view of disposal of the appeal, all pending
applications are also disposed of.
16. The Lower Court Records shall be sent back to
the Court below immediately by special messenger.
Cost of such special messenger shall be put in by the
appellants/defendant nos. 3 and 5 (ka) to 5 (ana) by
08.08.2023.
17. All parties are directed to act on a server copy of
this order duly downloaded from the official website of
this Court.
(Rajasekhar Mantha, J.)
(Supratim Bhattacharya, J.)
