Kanai Lal Roy Vs. Swaraswati Roy alias ors

Appellate Division Cases

(Civil)

PARTIES

Kanai Lal Roy…. …………………………..………………………..Appellant

-Vs-

Swaraswati Roy alias Srimati Swaraswati Roy and others…….. Respondents

JUDGES

Md. Ruhul Amin J

M. M. Ruhul Amin J

Md. Tafazzal Islam J

Date of Judgment

31st October 2004

Prayer for probate in respect of the will of her husband. Appeal is allowed

The appellant, Mr. M. K. Rahman did not take his consent in submitting the compromise petition”. Did not reflect actual state of the matter as to fact of representation of the appellant in the matter of compromise of the first appeal in that in the compromise petition the appellant was represented by some other learned Advocate and not by the appellant’s learned Advocate Mr. M. K. Rahman who was engaged to represent the appellant in the First Appeal. The contention so made appears correct since the undisputed position is that while compromise petition was filed before the High Court Division the appellant was shown to have been represented by the learned Advocates md. Mihir Kanti Majumdar and Mr. Swapon Kumar Datta. The appellant categorically asserted before the High Court Division that he had never executed power authorizing the aforesaid learned Advocate to represent him in the First Appeal. From the respondent side this fact was not disputed. So the observation that appellant’s learned Advocate Mr. M. K. Rahman did not take his consent in submitting compromise petition is an inadvertent mistake of the Court (5)

In First Appeal (Probate) No. 246 of 1996, the said appeal was required to be disposed of on merit by the High Court Division (6)

That the First Appeal is sent back to the High Court Division for disposal in accordance with law in place of “The probate case, however, is sent back to the original Court, for hearing the same afresh in accordance with law by giving opportunity to the concerned party to produce the will itself in question and prove it by adducing evidence (8)

ADVOCATES

M. K. Rahman, Advocate, instructed by Chowdhury Md. Zahangit; Advocate-on record For the Appellant Abdul Quaviiin, Senior Advocate, instructed bx Md. Aftab Hossain, Advocateon-Record For the Respondents

JUDGMENT

1. Md. Ruhul Amin J :- The appeal aris(From the Judgment and Order dated August 17, 2002 passed by the Appellate Division in Civil Appeal No. 151 of 2000) es out of a petition seeking review of the judgment dated August 17, 2002 in Civil Appeal No. 151 of 2000. The aforesaid appeal was filed against the judgment dated November 4, 1999 of a Division Bench of the High Court Division in First Appeal (Probate) No. 246 of 1996 allowing the same on compromise and thereby Respondent NO. l’s prayer for probate in

respect of the will of her husband Trailakha Nath Roy was allowed.

2. The First Appeal was filed by the Respondent No. 1 against the judgment and order of May 20, 1996 of the 1st Court of Additional District Judge, Barisal in Probate Case No. 2 of 1992 rejecting the prayer of the Respondent No. 1 seeking probate in respect of the will of the testator as mentioned above. This Division while allowing the appeal i. e. Civil Appeal No. 151 of 2000 observed “although there is a will but unless and until it is proved in accordance with law, on the face of objection raised by any interested party (herein the appellant) a Probate cannot be granted on compromise and it is not permitted by law”. This Division set aside the judgment and order of the High Court Division passed in First Appeal (Probate) No. 146 of 1996 and thereupon sent back the case to the ‘original court’ “For hearing the same afresh in accordance with law bv giving opportunity to the concerned party to produce the will itself in question and prove it by adducing evidence.”

3. It may be mentioned that the High Court Division allowed the First Appeal on compromise. The appellant filed an application before the said Division for vacating the order allowing the appeal alleging fraud in submitting the application for compromise through the learned Advocate other than the learned Advocate engaged by him to contest the appeal on his behalf. In the compromise petition, the appellant herein, was represented by learned Advocate other than the learned Advocate whom the appellant earlier appointed to represent him in the appeal. In the application for recalling of the order of the High Court Division the appellant herein stated that in filing the compromise petition the learned Advocates who were show to have represented him did not consult him. This fact remains unrebutted.

4. This Court while allowing civil appeal No. 151 of 2000 held that in the absence of establishment the genuineness of the probate letter of administration therefore cannot be granted and that law does not permit to grant probate on compromise. It is pertinent to mention that the compromise which said to have been arrived at and in the background where of High Court Division allowed the First Appeal ith the direction to grant probate was not a genuine one, rather it is the definite case of the appellant that the compromise was fraudulent and the application for compromise was filed beyond his knowledge. This

Division upon allowing the appeal i.e. Civil appeal No. 151 of 2000 set aside the judgment of the First Appeal ( Probate) No. 246 of 1996 and while making the order as to

nest step there had occurred an inadvertent mistake in making direction sending the case back to the ‘original Court’ instead of sending the First Appeal (Probate) No. 246 of 1996 to the High Court Division for disposal.

5. In the background of the said inadvertent mistake review was sought for on the contention that after allowing the appeal, Civil Appeal No. 151 of 2000 as the First remained indisposed there ought to have a direction to the High Court Division to dispose

of the First Appeal on merit in accordance with law. It was also contended that the observation in the judgment of the Civil Appeal No. 151 of 2000 ” that the lawyer of Kania Lai, the appellant, Mr. M. K. Rahman did not take his consent in submitting the compromise petition”. Did not reflect actual state of the matter as to fact of representation

of the appellant in the matter of compromise of the first appeal in that in the compromise petition the appellant was represented by some other learned Advocate and not by the appellant’s learned Advocate Mr. M. K. Rahman who was engaged to represent the appellant in the First Appeal. The contention so made appears correct since the undisputed position is that while compromise petition was filed before the High Court Division the appellant was shown to have been represented by the learned Advocates md. Mihir Kanti Majumdar and Mr. Swapon Kumar Datta. The appellant categorically asserted before the High Court Division that he had never executed power authorizing the aforesaid learned Advocate to represent him in the First Appeal. From the respondent side this fact was not disputed. So the observation that appellant’s learned Advocate Mr. M. K. Rahman did not take his consent in submitting compromise petition is an inadvertent mistake of the Court.

6. In the background of the materials on record we are of the view that there has occurred an inadvertent mistake in the ordering portion of the judgment of Civil Appeal No. 151 of 2000 as to sending back the case to the ‘original Court’. In fact while this Division allowed the Civil Appeal No. 151 of 2000 and thereby set aside the judgment and order of the High Court Division passed in First Appeal (Probate) No. 246 of 1996, the said appeal was required to be disposed of on merit by the High Court Division.

7. The learned Counsel representing the respondents in the background of the facts and the circumstances in which the judgment of the First Appeal was set aside finds difficult to take exception to the contention that First Appeal was required to be disposed of on merit by the High Court Division.

8. In the background of the discussions made hereinabove the appeal is allowed and it be read in the ordering portion of the judgment of this Division in Civil appeal No. 151 of 2000 that the First Appeal is sent back to the High Court Division for disposal in accordance with law in place of “The probate case, however, is sent back to the original Court, for hearing the same afresh in accordance with law by giving opportunity to the concerned party to produce the will itself in question and prove it by adducing evidence”.

There is no order as to cost.

Source: III ADC(2006) 473

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