Indian Oil Corporation Ltd. & Ors. vs Saila Rani Ghosh & Ors.

In this appeal CAN 2158 of 2018 was filed by the appellant, Indian Oil Corporation Ltd. seeking substitution of Saila Rani Ghosh, the deceased respondent. After hearing Mr. Sur, learned Advocate for the appellants, Mr. Sadananda Ganguly, learned Advocate for the substituted respondent, Tapan Kumar Ghosh and Mr. Saptangshu Basu, learned Senior Advocate for the applicants, by an order dated 4th September, 2018, I allowed the substitution of the legal heirs and representatives of the deceased respondent Saila Rani Ghosh but having regard to the objection raised by Mr. Ganguly on behalf of the substituted respondent Tapan Kumar Ghosh with regard to the document being a letter dated 06.02.2018, written on behalf of Mr. Basu's client that only two persons should be substituted in whose favour a Deed of Gift was executed by the deceased, liberty was granted to Mr. Ganguly to file objection. While the application for substitution being CAN 2158 of 2018 was disposed of, the other application being CAN 2493 of 2018 filed by Mr. Basu's client for addition of those two persons who allegedly acquired absolute interest in the suit property, by virtue of two Deeds of Gift executed by the deceased Saila Rani Ghosh as far back as in the year 2011, was kept pending. After substitution was allowed, the department incorporated the changes but liberty was given to Mr. Ganguly to bring on record his objection with regard to addition of the said two persons as per application being CAN 2493 of 2018 filed by Mr. Basu's client for addition of the said two persons, namely, Rabindranath Ghosh and Soumyadipta Ghosh, being one son and one grandson respectively of the deceased. In that view of the matter, the application being CAN 2493 of 2018 was kept pending which was directed to be considered after fling objection by Mr. Ganguly's client. Mr.Ganguly's client has filed objection and it has been taken up today for further consideration. In the meantime, Mr. Basu has also filed an application being CAN 9439 of 2018 for appropriate orders wherein he has made a prayer for deleting the names of the other legal heirs and representatives of Saila Rani Ghosh those have already been substituted by order dated 04.09.2018 and to further direct the department to make necessary correction in the cause title accordingly.

Appellant filed the application being CAN 2158 of 2018 seeking substitution of the legal heirs of the Saila Rani Ghosh and particulars whereof had been mentioned in paragraph 9 of his application. He has filed the application in usual course making a prayer under Order 22 Rule 4 of the Code of Civil Procedure and considering such prayer to be bona fide and legal, on 4th September, 2018 substitution was allowed.

An objection has been raised by Mr. Ganguly that once substitution has been allowed the same cannot be reopened for the purpose of recalling the said order. He submits that at best Mr. Basu can argue for filing review application. However, in my view, since both CAN 2158 of 2018 (substitution) and CAN 2493 of 2018 were heard together and only substitution was allowed on 04.09.2018, prayer for addition under CAN 2493 of 2018 is to be considered now.

Therefore, the application is taken up for consideration. Order 22 Rule 4 prescribes the procedure in case of death of one of several defendants or of sole defendant. Such a course has been adopted by the appellant for filing the application for substitution. In an application for substitution it is the natural course that legal heirs and representatives of the deceased are to be brought on record to represent the estate of the deceased. In this case, Saila Rani Ghosh died on 05.01.2018. A letter was addressed to the appellant on behalf of Mr. Basu's client that Saila Rani Ghosh died on 5th January, 2018 leaving behind surviving the five legal heirs and representatives, namely, Rabindra Nath Ghosh, Tapan Kumar Ghosh (as sons) Kabita Ghosh, Sabita Ghosh and Jayanti Ghosh (as daughters). In the later part of the said letter, it was pointed out that Saila Rani Ghosh before her death and during her life-time executed two registered Deeds of Gift in respect of the suit property which is the subject matter of the Second Appeal being S.A.T. 1760 of 2005, both dated 11th November, 2011. Mr. Basu contends that although the said letter was addressed to the appellant and it pointed out that the property in suit had already been gifted in favour of the two persons, namely, Rabindra Nath Ghosh and Soumyadipta Ghosh, there was no scope for the appellant to bring other heirs on record of Saila Rani Ghosh. Therefore, he has filed these applications one for addition of these two persons in place of the deceased either by way of substitution on the basis of the said Gift Deeds or simply by addition. According to Mr. Basu, the other persons sought to be substituted cannot be on record inasmuch as they have no right, title and interest in respect of the suit property because of the Deed of Gift executed by Saila Rani Ghosh. Since the principle in substitution under Order 22 Rule 4 follows the substitution of legal heirs and representatives so there was nothing wrong in passing the order dated 4th September 2018 to bring on record the said legal representatives of the deceased respondent, Saila Rani Gosh. Mr. Basu further submits that after the Gift Deed was executed mutation has already been commenced in 2015 before the concerned Municipality. Therefore, according to him, the parties in whose favour the gift was executed they should only be brought on record and none else. This submission, if is to be accepted, then the principle under Order 22 Rule 4 is to be given a go-bye. It is natural that when a person dies his legal representatives would be brought on record and the question arises whether a particular legal heir has no right, title and interest in the suit property or not cannot be decided or should not be decided in the application for substitution. In this case it is not understood as to why the names of Rabindra Nath Ghosh and Soumyadipta Ghosh were mutated only in 2015, although, admittedly, the Deed of Gift was executed in their favour in 2011. The Second Appeal was filed before this Court in 2005. Therefore, if the Deed of Gift was executed in 2011 during all these years the said two persons, Rabindra Nath Ghosh and Soumyadipta Ghosh could have filed application under Order 22 Rule 10 of the Code but did not file any such application before this Court. Record reveals otherwise. It appears from the record that an application being CAN 7431 of 2014 was filed on behalf of the Saila Rani Ghosh for injunction. This application was affirmed by Soumyadipta Ghosh on 22nd July, 2015 but reasons not known as to why even after execution and registration of the Deed of Gift in 2011, such an application was filed by Saila Rani Ghosh before this Court praying for an order of injunction. Therefore, it is still doubtful whether Saila Rani Ghosh really intended to act on the basis of the said Deed of Gift. Mr. Ganguly, learned advocate appearing for one of the legal heirs, namely, Tapan Kumar Ghosh submits that the deceased, Saila Rani Ghosh also left a Will, and in that Will his client is a beneficiary with others. The said Saila Rani Ghosh died only on 5th January, 2018 and mourning period being not yet over it is unexpected that any Probate proceeding can be lodged by the executor before any appropriate Court. He further points out that his client has filed a suit being Title Suit no.9 of 2019, praying for cancellation of the aforesaid two Deeds of Gift executed by Saila Rani Ghosh in favour of Rabindra Nath Ghosh and Soumyadipta Ghosh. The said suit is pending. However, Mr. Basu submits that his client has not yet received summons. Be that as it may, the suit is pending challenging the propriety of the said two Gift Deeds. If at this stage, while considering an application for substitution, this Court acts on the basis of the said Deed of Gift, this will adversely affect the interest of Mr. Ganguly's client in the pending suit. If balancing is to be made then the balance of convenience also favours Mr. Ganguly's client inasmuch as if the natural heirs and legal representatives are brought on record, the said Rabindra Nath Ghosh or Soumyadipta Ghosh cannot be prejudiced in any manner. Even after the disposal of the suit, if it is found that Mr. Ganguly's client has no interest in the suit property, they can be non-suited at that time in this appeal or even during the pendency of the appeal. If they are added as respondents being the natural heirs of the deceased, they cannot also take different stand in the appeal against their own interest in the suit which was filed by their predecessor-in-interest for eviction of the appellant. On the contrary, if other natural heirs are altogether left out from the appeal, their interest may not be well preserved at the hands of Rabindra Nath Ghosh and Soumyadipta Ghosh. Therefore, this is not the stage when the other natural heirs should be non-suited while allowing the application for substitution. The possibility of multiplicity of proceeding can also not be ruled out.

Considering all these aspects, it is not desirable to exclude the legal heirs and representatives of the deceased at this stage from the appeal. However, this substitution of Mr. Ganguly's client and other natural heirs are subject to the outcome of the suit being Title Suit No.9 of 2019.

It also cannot be overlooked that there is a Will left by the deceased and even before grant of Probate he has a right to agitate before the Court about his interest in pursuance of the Will. Therefore, in this way Mr. Tapan Kumar Ghosh cannot be excluded from being added as a party in place of deceased Saila Rani Ghosh. Accordingly, these applications are disposed of together holding that the order dated 4th September, 2018 shall remain in force. The department has rightly brought them on record.

In view of the observation, the application being CAN 2493 is rejected so far as the prayer for addition made by Soumyadipta Ghosh only because Rabindra Nath Ghosh as a legal heir has already been substituted by order dated 04.09.2018.

A prayer for stay has been made by Mr. Basu.

Mr. Ganguly makes serious objection to the order granting stay.

However, in order not to stand in the way of testing order in higher Court, I grant 15 days stay of that part of my order whereby I have rejected the claim of Mr. Soumyadipta Ghosh for being added as party under CAN 2493 of 2018, and I also refuse to stay other parts of this order.

Since Mr. Basu submits that the Second Appeal arising from eviction suit, is otherwise ready and very short question is involved, let this appeal be listed in the February list in usual course.