Mukhopadhyay vs Messrs. Lala
2023 Latest Caselaw 688 Cal/2

OD-3
                               ORDER SHEET

                            IA No.GA 1 of 2023
                                    In
                             PLA 383 of 2021
                    IN THE HIGH COURT AT CALCUTTA
                TESTAMENTARY & INTESTATE JURISDICTION
                              ORIGINAL SIDE

                         IN THE GOODS OF :
             SMT. REKHA CHOWDHURY (NEE SEN), DECEASED

BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE

Date: 16th March, 2023.

Mr. Altamash Alim, Mr. Partha Pratim Mukhopadhyay, Advocates for the applicant.

The Court : By an order dated November 10, 2022 the probate was

granted in favour of the executor by passing an order in terms of prayer (c)

of the petition being PLA 383 of 2021. At the time of issuance of the grant a

defect was noticed by the department which had escaped the scrutiny made

earlier. In the Will dated 13th January, 2016 which is incidentally a

registered Will there is a schedule of an immovable property. The schedule

is otherwise clear and specific to identify the immovable property. However,

in the schedule a plan has not only been referred to but is stated to be

annexed therewith. The plan, however, is not filed with the original Will.

After due diligence the propounder/executor could not locate the plan and

as such has made this application for issuance of the grant without the plan

thereto on 'as is where is basis' in terms of the order dated November 10,

2022.

Under the provision of Section 64 of the Indian Succession Act, 1925

as also under Rule 8 of Chapter XXXV of the Original Side rules of this

Court which the applicant intends to rely upon speaks of incorporation of

papers by reference. This provision is not applicable in the instant case as

the plan referred to in the schedule is not only a mere reference but is said

to be a part of the document. The applicant then tries to make out a case by

relying upon a Division Bench judgment of the Madras High Court reported

in AIR 1963 Madras 1 (P. A. J. Seetharama Raju and Others V. Messrs. Lala

Gopirishna Gokuldoss Agency Department) that the property being clearly

identifiable, the probate should be issued on the basis of the schedule

contained in the Will without insisting upon or treating the plan referred to

therein and said to be annexed as a part of the Will.

Considering the nature of defect in the Will and that the same is a

registered one and the property is going to Bharat Sevasram Sangha, since

the testatrix was a spinster and was survived by only a sister as her legal

heir in intestacy and there is no objection from the said sister, I allow this

application. The department is directed to issue the grant in terms of the

order dated November 10, 2022 on the basis of the Will annexed to the

application for grant being PLA 383 of 2021 without the plan, in view of the

fact that the immovable property is otherwise clearly indentifiable from the

schedule contained as a part of the Will. The grant be issued as

expeditiously as possible.

The application being GA 1 of 2023 is disposed of.

(ARINDAM MUKHERJEE, J.)

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