1. This revisional application under S. 115 of the Code of Civil Procedure (hereinafter referred to as Code) is directed against the order dated 8th April, 1992 passed by the learned Additional District Judge, 7th Court, Alipore, 24-Parganas (South) in Original Suit No. 11 of 1990 before him, for the reasons stated therein.
2. Smt. Charu Sila Sarkar, since deceased, a Hindu Lady, had executed a Will dated 15th August, 1996 appointing Provash Chandra Banerjee, Smt. Jyotsna Moyee Chowdhury and Sudhangshu Kumar Dutta, Executors/Executrix. The said Sri Provash Chandra Banerjee and Smt. Jyotsna Moyee Chowdhury having since died, the only other surviving Executor Sudhangshu Kumar Dutta had filed application for grant of probate of the said Will and Testament of the said deceased Charu Sila Sarkar. Contention having been raised to the said grant the matter was set down as a contentious cause and had been converted into a regular suit. During the pendency of the said suit the sole surviving Executor Sudhangshu Kumar Dutta had died on 16th July, 1991 whereupon the petitioner Shanti Swarup Sarkar, the universal/residuary legatee in the said Will left by his mother Charu Sila Sarkar, who is the defendant No. 6 in the relevant suit (hereinafter referred to as the petitioner) had filed two applications before the Court below, one for transposing him as a plaintiff in place of the deceased Executor Sudhangshu Kumar Dutta and allow him to proceed with the suit as plaintiff for grant of letters of administration with a copy of the Will under S. 232 of the Indian Succession Act, and the other to have the petition for probate amended by substituting a prayer for letters of administration with copy of the Will annexed in place of the prayer for probate.
3. The Court below by passing the impugned order had rejected both the applications filed by the petitioner for the reasons recorded therein.
4. Aggrieved by the impugned order so passed by the Court below, the petitioner has filed the instant revisional application on the grounds made out therein.
5. I had been addressed at length by the learned Advocates for the contending parties in the instant revisional application. While supporting the impugned order passed by the Court below Mr. Priyabrata Mukherjee, the learned Advocate for the contending defendants-opposite parties (hereinafter referred to as opposite parties), had referred to the decisions of this Court in Sarat Chandra Banerjee v. Nani Mohan Banerjee, (1909) ILR 36 Cal 799; Hari Bhusan Dutta v. Manmatha Nath Dutta, AIR 1919 Calcutta 197 and Haripada Saha v. Gobinda Chandra Saha, (1947) 51 Cal WN 917 to reinforce the same. But on perusal of the aforesaid three decisions I find that the facts and circumstances therein are not applicable to the facts and circumstances herein for the reasons I shall presently discuss.
6. In the case of Sarat Chandra Banerjee v. Nani Mohan Banerjee (1909 ILR 36 Cal 799) on an application by a sole executor for grant of probate, a caveat was entered, and the matter was set down as a contentious cause. Pending the hearing, the executor died. Thereupon his widow and legal representative applied to have her name substituted for his, and to have the petition for probate amended by substituting a prayer for letters of administration with copy of the Will annexed, in place of the prayer for probate. The Court held therein that the application must be refused, as the right to sue had not survived and the suit had abated. In that case the widow and legal representative of the deceased executor was not on record and had sought to be brought on record by substitution.
7. In the case of Hari Bhusan Datta v. Manmatha Nath Datta, (AIR 1919 Cal 197) a residuary legatee under a will applied for grant of Letters of Administration to the estate of the testator with the copy of the Will annexed, and during the pendency of the application died leaving his son as his heir and legal representative. The latter applied to be substituted in the place of his deceased father and to be granted Letters of Administration with the copy of the Will annexed. The Court held therein that the right of the legatee to obtain in grant of administration was a personal right and this right did not devolve on his her. In this case as well the son and the legal representative of the residuary legatee was neither on record and had sought to be brought on record by substitution.
8. In the case of Haripada Saha v. Gobinda Chandra Saha, (1947 (51) Cal WN 917), upon the death of a sole executor during the pendency of probate proceedings it has been held that his heir is not entitled to continue the proceedings by substituting a prayer for grant of letters of administration to him in the place of probate. The Court was of the view that where the sole executor who died during the pendency of the probate proceedings was also the sole legatee, the proper course for his heir was to make a fresh application for a grant to him of letters of administration in his own right under Section 233 of the Indian Succession Act, 1925.
9. The applicants in all the aforesaid three cases, not being on record, the question arose therein whether they could be brought on record by substitution under Order 22 of the Code. There could be no denying that the matters being contentions were govered by the Code, as held in Mst. Tribeni Kuer v. Shankar Tiwari, AIR 1971 Patna 391. A Division Bench of this Court in Brojo Lal Banerjee v. Sharaju Bala Debi, AIR 1924 Cal 864 had as well held that application for Probate should be dealt with as a suit. The Court had held in the aforesaid three decisions, referred to by Mr. Mukherjee, for the reasons discussed threrein, that the right to sue did not survive on the applicants therein, who could not thus be substituted.
10. The facts herein are somewhat different. The applicant Santi Swarup Sarkar herein had already been on record as the Defendant No. 6 in the relevant Suit. He has not sought for bringing him on record by substitution under Order 22 of the Code. He, per-contra, has sought for transposing him as a Plaintiff in place of the Deceased Executor Sadhangshu Kumar Dutta and for allowing him to proceed with the relevant Suit as the Plaintiff, presumably under the provisions of Order 23, Rule 1A of the Code. The question as to whether right to sue survive on the petitioner herein, to my judgment, would not strictly arise here as such. The facts in the aforesaid three decisions, referred to by Mr. Mukherjee, are clearly, therefore, distinguishable from the facts herein. It would seem worth bearing in mind that a decision is an authority on the point on which the Court is called upon to decide. The aforesaid three decisions would not, therefore, be applicable to the facts herein.
11. Mr. Mukherjee had also referred to the decision of the Full Breach of Allahabad High Court in Smt. Mahendra Kaur v. Hafiz Khalil, reported in Full Bench decisions, 1984 at page 31. In paragraph 25 — thereof the decision in Mohan Raj v. Surendra Kumar, AIR 1969 SC 677 is referred to wherein the Supreme Court was called upon to consider the question whether a person, not impleaded as a party in an Election petition, could be added by the Court by resort to Order 1, Rule 10(2) of the Code. The Supreme Court had negatived the argument that when the Act made a person a necessary party and provided that the petition would be dismissed if such a party was not joined, the power of addition of party by applying Order VI, Rule 17, and not Order 1, Rule 10 Code of Civil Procedure, could not be possible. In that case as a well the person concerned was not impleaded as a party in the relevant petition and was not on record, contrary to the facts herein. The aforesaid decision would as well, in my view, be of no avail to the Opposite Parties herein.
12. As against that, a Division Bench of this Court in Chandramani Maity v. Bipin Behari Sasmal, AIR 1932 Cal 206 where the legatee and executor under the codicil revoking a previous Will had applied for grant of probate of the Codicil, the Court granted probate of the Will and refused probate of the codicil which it had found to be not genuine. Against that decision the Legatee preferred an appeal, but during the pendency of appeal the Legatee amde a gift of a legacy she we as to receive under the codicil to certain persons one of whom was also her heir under law. Subsequently, the Legatee died and the donees under the Legatee's deed of gift applied to be substituted in place of the Legatees in appeals. The Court held therein that since the donees were entitled to succeed to the legacy to the Legatee if the codicil were proved they were the legal representatives of the Legatee within Section 2, and were entitled to be substituted in place of the Legatee.
13. Another Division Bench of the Madras High Court in P. Rama Naidu v. Rangaia Naidu, AIR 1933 Mad 114 has held that an Executor who prays for probate prays in form for something which can be granted to no one else. But the essence of the proceedings is that he seeks to establish a Will, not for himself, but as the reperesentative of those who take benefits under it. If he fails in his duty, any of those whom he represents may intervene to carry on the proceedings, having in effect by representation through the executor been a party to the proceedings from the outset. Hence, if in the course of the proceedings in original Court or in appeal the executor drops out through death, it follows that any of those he has represented may similary carry on the proceedings with the unessential modification that the prayer must then be for letters of administration with the Will annexed.
14. Another Division Bench of the Madras High Court in Govind M. Asrani v. Jairam Asrani, AIR 1963 Madras 456 has held as follows:—
“In a pending application for the issue of probate, if the sole executor dies before the proving the Will, it will be competent for a legatee or any person interested, to intervene and continue the proceedings to prove the Will and obtain letters of administration in his own right.
With regard to the substance of the proceedings, there can be no objection to an application for the issue of probate being converted into for the grant of letters of administration with a copy of the Will annexed, on the death of the executor who had died after applying for probate and before it was granted to him. The proceedings taken out either for the grant of probate or letters of administration with the Will annexed are in the interests of the legatee and the question involved in such proceedings will be the same, namely, about the truth and genuineness of the Will. In both the cases it will be open to a person interested to intervene. Final adjudication as to the genuineness of the Will in both cases will operate as a judgment in rem.
15. But it must, at the same time, be recognised that the impleading of the legatee or person interested in the place of the deceased executor would involve an alteration of the petition which was originally filed for the issue of probate, into one for the grant of letters of administration. But that is a technicality not affecting the substance of the matters to be decided in the case.”
16. It would be pertinent to recall in this context that Harrington, J. had similarly observed in the case of Sarat Chandra Banerjee v. Nani Mohan Banerjee, (1909 ILR 36 Cal 799) (supra) that the applicant therein was required to satisfy the Court of two things i) that the is the person to whom Letters of Administration ought to be granted, and ii) that the Will was duly executed. Indeed in ILR (1948) 1 Cal 300 which approved of the decision in (1909) ILR 36 Cal 799 (supra), the learned Judges regarded that such an alter-ration of an application for probate was a mere technicality, which could not invalidate the subsequent grant of letters of administration in the application for Probate. In that case the sole executrix who was also the sole legatee under the Will died during the pendency of Probate proceedings. Her heir, instead of making a fresh application for grant to him of letters of administration in his own right, continued the proceedings initiated by his predecessor and was granted letters of administration with the will annexed. At a later stage when this procedure was assailed, the learned Judges held that was merely a defect of form and not of substance, and they refused to set aside the grant. With regard to the substance of the proceedings there could thus be no objection to an application for issue of probate being converted into one for the grant of letters of administration with a copy of the will annexed, on the death of the executor, who has died after applying for probate and before it was granted to him.
17. For much the same reasons discussed in aforesaid decisions of the Madras High Court, with which I am in complete agreement, Madras view seems to me to be more acceptable. If it is competent for a legatee to file fresh application for grant of Letter of Administration in a case where the Executor dies during the pendency of a probate proceedings, I wonder why a legatee, already on record as a defendant in a probate proceedings, as in the instant case before us, would not be competent to continue the proceedings for grant of Letters of Administration, in place of grant of probate, by transposing him as a plaintiff in the suit, treatment the relevant proceedings to have been instituted from the date of filing the relevant applications for transposing him as a plaintiff and for amendment of the plaint for the said purpose, in the light of the observations of the Supreme Court in B. Banerjee v. Anita Pan (Smt), AIR 1975 SC 1146. The Supreme Court in the said decision has held, in the facts and circumstances therein, that where two interpretations are possible that which validates the statute and shortens letigation should be preferred to the one which invalidates or proliferates. Their Lordships therein were satisfied that, as far as possible, courts must avoid multiplicity of litigation. Any interpretation of a statute which will obviate purposeless proliferation of litigation, without whittling down the effectiveness of the protection for the parties sought to be helped by the Legislation, should be preferred to any literal, pedantic, legalistic or technically correct alternative. Their Lordships were conscious that in shortening litigation, in the manner directed therein they were straining language to the extent of interpreting the expression “institution of the suit” as amounting to filing fresh pleadings. By that construction no violence to the language was done, but, on the other hand, public justice and social gain was promoted. It has further been observed as follows in the said decision:
“Ruinous protraction of litigation, whoever may temporarily seem to benefit by delay, bankrupts both in the end and inflicts wounds on society by sterile misue of money. Tenant passengers who prolong their expensive flight on the litigation rocket, are buying tickets for financial crash, dugged though they be by the seeming blessings of law's delays. Courts, by interpreting the expression ‘institution of suits’ cannot authorize reincarnation, all over again, of litigation for eviction. We save the tenant by applying it to pending cases and save him also from litigative waste.”
18. As already indicated above, the petitioner had already been record as defendant No. 6 in the relevant suit. He has sought for transposing him as plaintiff in view of the date of the sole surviving Executor in the pending probate proceedings, as already indicated above, presumably under Order 23, Rule 1A of the C.P Code which reads as follows:
“Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.”
19. True it is, the relevant suit has neither been withdrawn nor abandoned by the plaintiff, since deceased. But he has certainly dropped out from the suit by his death which, in my view, amounts to involuntary abandonment from the suit. According to Concise Oxford Dictionry the word ‘Abandon’ means “to give up completely or before completion, forsake or desert” etc. According to Black's Law Dictionary the expression ‘Abandon’ means “to desert, surrender, forsake, or cede” etc. As already indicated above, the plaintiff in the relevant suit having since died, he must be deemed to have involuntarily given up (the cause) completely before completion of the relevant suit and had ceded therefrom. By the same very interpretative process exreised by the Supreme Court in the decision in B. Banerjee v. Anita Pan (Smt) (AIR 1975 SC 1146), I feel that in order to shorten the litigation in the instant cause I may as well strain language to the little extent of interpreting the expression “Abandoned” in Order 23, Rule 1A of the C.P Code to mean “abondened by death as well. By such construction no violance would be caused to the language but on the other hand justice shall be provided. The following observation of the Supreme Court in AIR 1969 SC 1267 (Jai Jai Ram Manoharlal v. National Building Material Supply, Gurgaon) seems worth bearing in mind in this context:
“Rules of procedure are intended to be a handmaid to the Administration of Justice. A party cannot be refused just relief merely because of some mistake, negligance, inadvertence or even infraction of the rules of procedure.”
20. In view of the discussions above, it seems to me that the petitioner's relevant application for transposing him as plaintiff and for allowing him to proceed in the relevant suit, in the facts and circumstances herein, should have been allowed by the Court below and the prayer for amendment of the plaint, the way sought for, should also have been allowed the court below. By rejecting the petitioner's relevant two relevant applications therefor the Court below seems to me to have failed to exercise the jurisdiction vested in it and had acted with material irregularity. The impugned or her passed by it could not thus be sustained. The instant Revisional Application should, accordingly, succeed.
21. In the premises above, the instant Revisional Application succeeds and be accordingly allowed. The impugned order passed by the court below be hereby set aside. The relevant two applications filed by the petitioner before the court below stand allowed. Let the plaint in the court below be accordingly amended. The petitioner be permitted to proceed with the relevant suit, and the court below is directed to dispose of the same accordingly to law.
22. In the facts and circumstances of the matter, I make no order as to this hearing.
23. If any application for urgent xerox certified copy of this Judgment and Order is made by any of the parties, the Department concerned shall cause the same to be supplied at the earliest.
Revision allowed.