Ketaki Ranjan Bhattacharyya and others vs Kali Prasanna Bhattacharyya and others

Brij Narain, J.C.

This second appeal and connected Civil Appeal No. 10 of 1955 arise out of the same judgment of the learned District Judge, Tripura passed in Civil Appeal No. 11 of 1953'' and Civil Appeal No. 24 of 1951.

It appears that the plaintiffs-appellants of these appeals prayed in suit No. 105 of 1358 T. E. of the Court of the Munsiff of Kailasahar for recovery of actual (Khas) possession of the land described in the schedule annexed to the plaint on declaration of their title and they also prayed for cancelation of the. registered will dated 27th Chaitra 1323 T. E. on the allegation that this Will alleged to have been executed by late Dina Nath Bhattacharyya brother-in-law of the respondent 1 was collusive, void and unprobated. It was also prayed that the kabala (sale deed) dated 17-1-1349 T. E. "Ex. A of suit No. 11 of 1949 executed by Kali Prasanna Bhattacharyya respondent 1 in favour of Prahlad Chandra Malakar was inoperative as Kali Prasanna Bhattacharyya had no right to execute the sale deed, he having remained merely in permissive possession over the lands in suit.

According to the plaintiffs one drone six kanis and odd gandas of lands were made a gift of Brahmattar and Niskar taluk by the then Maharaja of Tripura in 1296 T.E. and the disputed lands appertained to the said Brahmattar and Niskar taluk. These lands belong to Chandra Nath Bhattacharyya and Dina Nath Bhattacharyya, sons of Bhola Nath Bhattacharyya and Chandra Nath Bhattacharyya had one more brother Broja Nath Bhattacharyya. Broja Nath''s con is Biraj Nath Bhattacharyya. Dina Nath Bhattacharyya died issueless on 17th Sravam 1336 T.E. Chandra Nath Bhattacharyya died in 1317 T.E. and Kedar Nath Bhattacharyya died to 1356 T. E. leaving the present appellants 1 to 4 as his sons.

According to the plaintiffs Chandra Nath Bhattacharyya and his brothers lived jointly and so the plaintiffs were the legal heirs of Dina Nath Bhattacharrya also. Kali Prasanna Bhattacharyya respondent 1 is Dina Nath''s wife''s brother and he was given permissive possession over a portion of the Dina Nath''s property. Kali Prasanna Bhattacharyya transferred a portion of this property to Prahlad Chandra Malakar by means of the sale deed dated 17-1-1339 T. E. and he professed to rely on the unprobated Will of 1333 T.E. and so suits Nos. 11 of 1949 (105 of 1358 T.E.) and 15 of 1949 (5 of 1951) had to be instituted.

The defendants contended in both the suits that Kali Prasanna Bhattacharyya respondent 1 was the full owner of the land in question on account of the registered Will dated 27th Chaitra 1339 T. E. vide Exs. B and A and he was legally competent to execute the sale deed dated 17-1-1349 T.E. Ex. A of suit No. 11 of 1949. It was further contended that the plaintiffs'' suit was barred by twelve years'' rule of limitation under Arts. 142 and 144, Indian Limitation Act. The learned Munsiff, Kailasahar did not allow the plaintiffs'' prayer for khas possession but declared their title to eight annas share in suit No. 105 of 1358 T.E. but suit No. 15 of 1949 (5 of 1951) was dismissed.

As against these decisions Prahlad Chandra Malakar brought Civil Appeal No. 24 of 1951 and Ketaki Ranjan Bhattacharyya and others brought Civil Appeal No. 11 of 1953 in the Court of the learned District Judge, Tripura. Both these appeals were heard together and they were decided by one judgment dated 14-2-1955. Appeal No. 24 of 1951 was allowed while appeal No. 11 of 1953 was dismissed on contest and so the plaintiffs have come to this Court in second appeal.

The points involved in these second appeals are: (1) whether the registered Will dated 27th Chaitra 1333 T.E. executed by late Dina Nath Bhattacharyya in favour of Kali Prasanna Bhattacharyya conferred any title on the latter regarding the properties in question and (2) whether the plaintiffs'' suits were barred by twelve years'' rule of limitation under Arts. 142 and 144, Indian Limitation Act.

As regards the first point the Will dated 27th" Chaitra 1333 T.E. has been produced in Court vide Exs. B and A of Civil Suit NO. 5 of 1951 (15 of 1949) and Jyotish Chandra Chakravorty attesting witness has been duly examined.

under S. 68, of Indian Evidence Act even though attestation had not been specifically denied by the present plaintiffs-appellants. The learned Munsiff held that the execution and attestation of the Will were duly proved and so he exhibited this document. The learned District Judge has, after taking into consideration the statement of Jyotish Chandra Chakravorty agreed with the learned Munsiff on this point.

The evidence of this witness has been read over to me during the time of arguments and as the plaintiffs had not specifically denied the attestation of the Will, I agree with the Courts below in holding that this Will was duly proved according to law in the trial Court.

Next arises the question as to whether this Will cannot be read in evidence on account or its being unprobated. It was contended, before, me by the learned Advocate for the appellants that unprobated Will could not confer any title under the old Tripura laws and it has been urged that as a stamp has been prescribed under the Stamp Act for the probate and probate has been granted in an earlier case also by the Tripura High Court (vide Appeal No. 10 of 1323 T.E., ''Sadullah v. Mst. Shaoann Bibi'') it should be inferred that unprobated Will cannot confer any title on Kail Prasanna Bhattacharyya.

Section 213, Indian Succession Act runs as follows;

(1) No right as executor or legatee tan 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 the Will annexed.

(2) This section shall not apply in the case of Wills made by Mahammadans, and shall only apply in the case of Wills, made by any Hindu, Buddhist, Sikh or Jains where such Wills are of the classes specified in cls. (a) and (b) of S. 57.

7a. Section 57 is in Chap. I, Part VI, Indian Succession Act, which relates to testamentary succession and it runs as follows:

The provisions of this Part which are set out in Sch. in shall, subject to the restrictions and modifications specified therein, apply-

(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and

(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after 1-1-1927, to which those provisions are not applied by cls. (a) and (b):

Provided that marriage shall not revoke any such Will or codicil.

As a result of the new cl. (c) which has been added by the Indian Succession Amendment Act, 18 of 1929 from 1-1-1927 all Wills made by Hindus, Jaina, Sikhs or Buddhists in any part or British India on or after 1-1-1927 must be reduced to writing, signed and attested. But all Wills made by a Hindu, etc., before 1-1-1927, outside the areas governed by the Hindu Wills Act i.e., outside the province of Bengal and the Presidency-towns of Madras and Bombay, were valid even if made orally or unattested.

The Will in question was not executed within the province of Bengal or the Presidency-towns in Madras and Bombay and as it was executed in the year 1923 A. D" it could be relied upon by Kali Prasanna Bhattacharyya and his transferee even though the Will had not been reduced to writing, signed and attested.

Section 213(2) clearly lays down that the provisions of cl. I would apply to Wills made by any Hindu where such Wills are of the classes specified in cls. (a) and (b) of S. 57. The Will in question is clearly not of a class covered by cls. (at and (b) of S. 57 and so it would not be inadmissible in evidence as a document of title simply because it was not probated.

The learned Advocate for the appellants has not been able to produce before me any enactment or clear rule enforced in the old Tripura State which might go to show that a Will could not be taken in evidence unless it was probated. The mere fact that a probate could be taken in certain cases on payment of prescribed stamp or that in one case probate had been granted inspite of the objection of the opposite party and this objection was overruled by the Tripura High Court, would not. go to establish the broad proposition that the old Will of 1923 A. D. would not be admissible in evidence unless probate was obtained.

I have already shown above that such a Will did not require attestation or even writing in Tripura State and so I agree with the learned District Judge in holding that Kali Bhattacharyya and Prahlad Chandra Malakar were entitled to rely on the Will in question in these suits.

Regarding the second point it is established from the evidence of Ketaki Ranjan Bhattacharyya plaintiff and Biraj Nath Bhattacharyya that they had admitted in previous suit No. 5 of 1951 that respondent 1 had been in possession over the disputed properties from 1336 T. E. on-wards which means that the respondent 1 has been in open and adverse possession for over twenty-three years. The certificate Ex. E and the chalan Ex. D as well as kabala (sale deed) dated 23-2-1358 T. E. Ex. C go to show that cess dues regarding the land in question were recovered from respondent 1 and in the kabala Ex. C Ketaki Ranjan Bhattacharyya appellant himself mentioned that the land towards the north belonged to respondent 1.

All these documents go to show that respondent 1 was in open and adverse possession over the land in question for a very long period from 1923 A. D. onwards and as there is no evidence on behalf of the appellants to prove that Kali Prasanna. Bhattacharyya was ever in permissive possession the Will in question Ex. B can be read in evidence for collateral purposes to show that respondent 1 was never in permissive possession.

It is settled law that an unprobated Will can be looked at for all collateral purposes vide - ''Basant v. Gopal'', AIR 1915 Cal 207 (A) and -. ''Surbomungola v. Mohendro Nath''. 4 Cal 508 (B). Kedar Nath Bhattacharyya and Biraj Nath Bhattacharyya, son of Broja Nath Bhattacharyya never laid claim to this property and all these facts �o to establish that the present suits were time barred both under Art. 142 and under Art. 144, Indian Limitation Act.

Biraj Nath Bhattacharyya aonears to have been n. necessary party to he suit but as the plaintiffs'' suits have already failed on other solid grounds, the question of non-joinder does not deserve any serious consideration in view of the provisions of O. 1, R. 9, C. P. C.

The result Is that both these second appeals have no force and they are hereby dismissed with costs to the respondents, A copy of this judgment will be placed on the record of Second Civil Appeal No. 10 of 1955.