Gauhati High Court
Sharmila Vijay Shetty vs B And A Limited And 2 Ors on 26 July, 2021
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GAHC010165772020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/72/2020
SHARMILA VIJAY SHETTY
B-32, TURF VIEW, SETH MOTILAL SANGHI MARG, MUMBAI- 400018
VERSUS
B AND A LIMITED AND 2 ORS
HAVING ITS REGD. OFFICE AT INDU BHAVAN, MAHATMA GANDHI ROAD,
JORHAT, ASSAM- 785001
3:SOMNATH CHATTERJEE
WORKING FOR GAIN AT 113
PARK STREET
9TH FLOOR
POLICE STATION PARK STREET
KOLKATA- 70001
Advocate for the Petitioner : MR K KHANNA
Advocate for the Respondent : MR P GOGOI
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT
Date : 26-07-2021
Heard Mr. M.K. Choudhury, the learned senior counsel assisted by Mr. D.
Das, advocate, appearing for the petitioner as well as Mr. R. Banerjee, the
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learned advocate assisted by Mr. D. Sharma, advocate appearing for the
respondents.
2) Challenge in this petition under article 227 of the Constitution of
India, is to the order dated 07.03.2020 passed by the learned Civil Judge,
Jorhat in Misc(J) Case No. 222/2020, arising out of T.S. No. 41/2012.
3) The present petitioner the daughter of Late Hemendra Prasad
Baruah and is a share holder in the respondent no. 1 Company. This Company is
enlisted with the Bombay Stock Exchange. The petitioner has 38 percent equity
share in the Company.
4) Late Hemendra Prasad Barua, the father of the present petitioner,
instituted a title suit, being T.S. No. 41/2012 against the respondent no. 1
Company, the present petitioner and the respondent no. 2, HDFC Bank Limited,
seeking a declaration that he was the sole and absolute owner of 8, 61, 918
nos. of equity shares of the respondent no. 1 Company, which are lying in the
Demat account bearing no. DP ID IN 301151 and Client ID 26424547.
Hemendra Prasad Barua died during the pendency of the suit and the present
petitioner was the only surviving heir for the said 8, 61, 918 nos. of equity
shares in the Company.
5) In the mean time, the respondent no. 3 Somnath Chatterjeee,
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filed an application before the learned Court below for substitution his name in
place of late Hemandra Prasad Barua, as the plaintiff.
6) According to the petitioner, with the death of Hemendra Prasad
Barua T.S No. 41/2012 stood abated. Since no proper application was filed by
his legal heirs. In response to the petition filed by Somnath Chatterjee, the
learned Court below strait way did not implead him in place of Late Hemendra
Prasad Barua. The learned Court below held that the petition filed by Somnath
Chatterjee should be kept in abeyance because an application for probate, in
respect of the last Will executed by late Hemendra Prasad Barua, was applied
for before the Calcutta High Court.
7) Against the aforesaid order dated 23.12.2013, Somnath
Chatterjee filed a revision petition before this Court which was numbered as
CRP No. 47/2014. It may be mentioned that against the said order dated
23.12.2013, the present petitioner also filed another revision petition before this
Court which was numbered as CRP No. 97/2014.
8) In respect of the aforesaid two petitions, this Court passed a
common judgment on 13.11.2014 and upheld the order passed by the learned
Court below on 23.12.2013.
9) The petitioner pleaded that T.S. No. 41/2012 stood abated on
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29.10.2013, since no proper application was filed by the legal heirs of Hemendra
Prasad Barua. At this point, the petitioner filed an application being Misc(J) Case
No. 22/2020, before the trial Court praying for dismissal of the suit as abated.
The learned Court below issued show cause notices to late Hemendra Prasad
Barua, Mr. Somnath Chatterjee, the respondent no. 1 Company and the HDFC
Bank Limited i.e the respondent no. 2 herein. The petitioner herein was
aggrieved by the aforesaid order and hence the present application has been
filed.
10) I have given my anxious consideration to the submission of the
learned counsels. It may be mentioned here that Mr. Somnath Chatterjee was
named the sole executor of the Will executed by late Hemendra Prasad Barua,
who died on 31.07.2013, and therefore, he has filed an application before the
Hon'ble Calcutta High Court seeking probate and it is still pending.
11) The respondents pleaded that according to section 211 of the
Indian Succession Act, 1925, Sri Somnath Chatterjee, being the sole executor of
the last Will executed by Late Hemendra Prasad Barua, is his legal
representative for all purposes and all properties of the deceased person vests
in him. Referring to section 213 of the Indian Succession Act, 1925, the
respondents herein pleaded that when the probate would be given to the
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executor, then his right as executor or legatee could be established in any Court
of law.
12) Section 211 and section 213 of the Indian Succession Act 1925
are quoted as under:
"211. Character and property of executor or administrator as
such-(1) The executor or a administrator, as the case may be, of a
deceased person is his legal representative for all purposes, and
all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muhammadan,
Buddhist[Sikh, Jain or Parsi] or an exempted person, nothing
herein contained shall vest in an executor or administrator any
property of the deceased person which would otherwise have
passed by survivorship to some other person.
213. Right as executor or legatee when established - (1) No right
as executor or legatee can be established in any Court of justice,
unless a Court of competent jurisdiction in [India] has granted
probate of the Will under which the right is claimed, or has
granted letters of administration with the Will or with a copy of an
authenticated copy of he Will annexed.
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(2) This section shall not apply in the case of wills made by
Muhammadans [or Indian Christians] and shall only apply-(i) in
the case of Wills made by any Hindu, Buddhist, Sikh or Jaina
where such Wills are of the classes specified in clauses (a) and (b)
of section 57 and (ii) in the case of Wills made by any Parsi dying,
after the commencement of the Indian Succession (Amendment)
Act, 1962(16 of 1962), where such Wills are made within the local
limits of the [ordinary original civil jurisdiction] of the High Courts
at Calcutta, Madras and Bombay and where such Wills are mad
outside those limits, in so far as they relate to immovable property
situated within those limits]"
13) When Mr. Somnath Chatterjee filed an application in TS No.
41/2012, he was not armed with probate because his application for probate
was pending before the Calcutta High Court. Therefore, in view of the law laid
down in section 211 and 213 of the Indian Succession Act, 1925, the learned
Court below passed a direction whereby the TS No. 41/2012, was kept in
abeyance and that order was challenged before this Court, and this Court while
disposing of CRP No. 47/2014 and CRP No. 97/2014 upheld the order of the
learned Court below.
14) Thereafter, the petitioner file another application before the
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learned Court below praying for passing an order that with the death of
Hemendra Prasad Barua and since his legal heirs did not file any application for
impleading them in place of the deceased, the suit TS No. 41/2012 stood
abated. The learned Court below issued notice to the other side. By filing the
present revision petition, the petitioner has challenged the said order of the
learned court below.
15) This Court has already agreed that till the probate is granted to
Mr. Somnath Chatterjee, TS No. 41/2012, should be kept in abeyance.
Therefore, this Court is of the opinion, that the act of filing the petition before
the learned Court below seeking an order that the TS No. 41/2012 stood
abated, is contrary to the spirit of the order passed by this Court in CRP No.
47/2014 and CRP No. 97/2014. I am constrained to hold that the petition Misc
(J) 22/2020 filed by the petitioner is a misleading one.
16) Moreover, the Court issued notice only for hearing the respondent
of the other side. It is the basic tenet of natural justice that both sides deserve
to be given an opportunity of being heard. This Court finds that while passing
the order, for issuing notice to the other side, the learned Court below did not
commit any error. This Court is again constrained to hold that the present
revision petition has been filed unnecessarily.
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Under the given circumstances of the case, this Court finds that the
present revision petition is devoid of merit and therefore the petition stands
dismissed and disposed of accordingly. No cost.
JUDGE
Comparing Assistant
