Phul Bai vs Samaru Ram Sahu & Others

@JUDGMENT-JUDGMENT

Heard.

Sole appellant - Phul Bai has died on 31.12.2016. I.A. Nos. 5, 6 & 7 have been filed for substitution on the basis of Will dated 04-03- 2004 allegedly executed by Ful Bai in favour of applicant (will holder) Ramesh Kumar Sahu and substitution has been sought, application for setting aside abatement and application for condonation of delay have also been filed, which has been replied by the other side stating inter alia that unless the probate is obtained or the Will is declared to be valid, plaintiff would not be entitled for any decree, if any, ultimately to be passed in their favour and there is delay in filing the application for bringing legal representatives of deceased/appellant also.

I have heard learned counsel appearing for the parties. The Supreme Court in the matter of Binapani Kar Chowdhary v. Sri Satyabrata Basu and another (2006) 10 SCC 442  held as under :-

"8. Therefore, with a view to do complete justice between the parties, it is appropriate to direct the trial court (Civil Judge, Senior Division, Alipore), where TS No. 10 of 1995 is pending, to proceed to hear arguments and deliver judgment in the suit. Nothing further will be required, if the suit is to be dismissed. But if the suit is to be dismissed, the trial Court should make it clear that the judgment and decree will come into effect only on the first respondent obtaining and producing the probate of the Will, and till then the decree should be considered only as provisional and not to be given effect. We dispose of this appeal accordingly making it clear that nothing stated above is an expression of any opinion on merits of the case."

Considering the submissions of learned counsel appearing for the parties, and following the decision of the Supreme Court in the matter of Binapani Kar Chowdhary (supra), all the applications are allowed subject to payment of cost of Rs.2,000/- to the respondents. Let the necessary amendments be incorporated in the memo of appeal within three working days.

It is made clear if the appeal is granted in favour of appellant/defendant, the judgment and decree will come into effect only the appellant/defendant obtaining and producing the probate of Will, if not applicable then the Will is declared as valid by the jurisdictional civil court and till then the decree would be provisional decree and should not be given effect to .

With the aforesaid observation, I.A. Nos. 5, 6 & 7 are allowed. Also heard on I.A. No. 8, application for deleting the name of respondent No. 3 from the cause title of memo of appeal.

On due consideration, the application is allowed. Let the necessary amendment be incorporated in the memo of appeal within three working days.

List this case in the week after next for final hearing.