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TMI Blog2003 (11) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff as a legatee under the 1st Will and Testament of the deceased, Smt. Bijali Prova Basu and in respect of which probate has been obtained by the defendant, granted by the learned 3rd Court of the Additional District Judge, at Alipore in O.S. No. 2 of 1977; c) For according in respect of the income and expenditure of the estate of the deceased, in the hand of the defendant, as an executor and also as administrator pendente lite; d) For a decree for ₹ 5,000/- which the plaintiff assessee for the present for accounting and for a further decree which might be found to be due to the plaintiff, after final accounting, if necessary, by appointment of an Advocate Commissioner, on payment of the additional amount of the court-fees ; e) For a decree for permanent/mandatory injunction requiring the defendant to allow the plaintiff to take separate electric connection and install a meter in his name in the proportion in the occupation of the plaintiff; f) For permanent injunction restraining the defendant from disturbing plaintiff's peaceful possession user and enjoyment; g) For appointment of Receiver ; h) For injunction restraining the defendant from dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of law and/or direction containing in the said last Will and Testament of the said deceased and/or of the learned Court giving due share to the plaintiff in the suit properties and/or rendering true and faithful accounts before the learned Probate Court or to the plaintiff in respect of the income and expenditure of the estate of the said deceased, simply to keep the learned Probate Court and also the plaintiff quite in dark. The plaintiff craves leave to file an application before the learned Probate Court as and when required and bona fide advised. 8. That the defendant although is being requested by the plaintiff for completion of the administration of the estate of the deceased and also to hand over the due share of the plaintiff to which the plaintiff is legally entitled to under the Will as a beneficiary/ legatees as per provisions made wherein, the defendant most illegally fraudulently, maliciously for illegal gain had been and has been withholding completion of the administration of the estate of the deceased intentionally and further has not been given any assent to the due administration thereof.................". 5. The factual part of the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the appellant/defendant about his administration ship under the Will within the arms of Indian Succession Act, 1925. Section 141 of the Indian Succession Act, 1925 speaks as follows : "141. Legatee named as executor cannot take unless he shows intention to act as executor.--If a legacy is bequeathed to a person who is named an executor of the Will, he shall not take the legacy unless he proves the Will or otherwise manifests an intention to act as executor". 7. Such section clearly indicates that there is a specific bar against a legatee to get legacy unless and until he fulfils the terms and conditions under Section 141 of the Act, The words '............shall not take.,..........' is comparable with the words 'shall not be able to take' when it is conditional with the other parts of the section. Admittedly plaintiff did not discharge such functions. It is just like a reciprocal promise. Unless you cultivate land you cannot get the crops. When a person died after creating a Will it would be sincere desire of the Court of law to give respect to his/her intention and to protect his/her interest because such person is no more in this world to fight for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are needed to be looked into for the plaint for the purpose of coming into conclusion under Order 7 Rule 11 of the Code of Civil Procedure. The purpose is not to wait for an indefinite period in deciding the cause if the cause is available from the face of the plaint. There it was also held that for the purpose of deciding an application under Rules 11(a) and 11(d) and Order 7 of Code of Civil Procedure the averments in the plaint are germane. It is also an admitted position that either this case is hit by Clause (a) or Clause (d) or by both. Therefore, no mistake has been committed by the learned Judge of Court of first instance in entertaining the application under Order 7 Rule 11 of the Code of Civil Procedure. Now the question of 'try' and 'determine' will have to be discussed. Although the question of 'try' is mainly attached to the question of entertainability but determination is a question of finding. Therefore, such question is now necessary to be discussed. 10. Mr. Bagchi, learned Counsel appearing for the respondent himself contended that point of demurrer under Order 7 Rule 11 of the Code of Civil Procedure is not the new one. From the Privy Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court jurisdiction is not to be easily inferred. From another judgment reported in [2000]2SCR937 [State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao(D) by Lrs. and Ors.] it has been shown that although factually the appeal was dismissed but a guideline under paragraph 5 therein is given which is necessary for due consideration. It was held that when exclusion of jurisdiction of the Civil Court is not readily inferred presumption is to be drawn in favour of existence rather than exclusion of jurisdiction of the Civil Court to try civil suit. The test adapted in examining questions i.e. (i) whether the legislative intent to exclude arises explicitly or by necessary implication and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. Thereafter he cited a decision reported in [2002]3SCR1122 (I.T.I, Ltd. v. Siemens Public Communications Network Ltd.) which has no manner of application in the present case. Section 36 of Arbitration and Conciliation Act, 1996 provides for the enforceability of the Code of Civil Procedure in case of Arbitrator's award in the same manner as if it was a decree o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this issue whether the institution of a civil suit at this juncture is impliedly barred under Section 9 of the Code of Civil Procedure or not. 13. To understand this, scope and ambit of the Indian Succession Act, 1925 is to be looked into as to whether such Act is not sufficient to meet the requirement of an aggrieved party or whether the situation is such that the Indian Succession Act, 1925 cannot be said to be comprehensive so that a civil suit is required to be filed for the purpose of coming to a conclusion. My reading of Indian Succession Act, 1925 is that it is a complete Code by itself. Although in certain cases it implies that the Code of Civil Procedure will be principally applicable but that does not necessarily mean that the civil suit is the outcome to meet the necessities. Section 216 of the Indian Succession Act speaks as follows : "216. Grantee of probate or administration alone to sue, etc., until same revoked.--After any grant of probate or letters of administration, no other than the person to whom the same may have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, throughout the State in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court functioning on behalf of a dead person who cannot carry out the proceedings. This is the crux of the case to understand as to why civil suit cannot be allowed and why a proceeding under the provisions of the Indian Succession Act, 1925 will be initiated. If the suit is allowed to continue now it will be a suit against the Court because the Administrator is working as a representative of the Court. Even in that case leave to sue is required from the Court. But then leave to sue will not help the plaintiff unless legacy is ready for transfer. Therefore, no suit lies but necessary application lies to take cognizance of the matter before the appropriate Court against any illegality done by such Administrator. The Court is not powerless to revoke such authority process of revocation is much more easier than the process of suit. Mr. Bagchi relied upon a judgment reported in (Vithal v. Narayan). Such judgment says although the assent of the executor is necessary to complete legatee's title to his legacy, the executor is not entitled to withhold his consent arbitrarily, and if he does so the legatee is competent to bring a suit to recover the property bequeathed to him by j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not so as has been pointed out before the Court. The ratio is that it will be a dangerous proposition to be laid down as way of law that any individual or authority can ignore the order of the Civil Court by assuming the authority upon itself to decide that the order of the Civil Court is one by quorum non-judice. The appropriate Court in such case is for the person aggrieved first to approach the Civil Court inviting its attention to the relevant provisions of law and call it upon to the question of its own jurisdiction and to vacate or recall its order if it be one which he did not have jurisdiction in law to make. 18. Coming back to the situation afresh I have to hold that the scope and ambit of the law is to be understood on the basis of two tests : (i) Whether the legislative intent to exclude arises explicitly or by necessary implication? and (ii) Whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it ? I have no other alternative but to hold that legislative intention speaks that one should approach the appropriate Court under the Indian Succession Act, 1925. From the inception till today t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but under Clause (a) yet I do not find any reason to distinguish such features from one another when it is open for the Court to make an immediate justice having balancing factors in a given situation. Mr. Mitra relied upon a judgment reported in [1978]1SCR742 (T. Arivandandam v. T. V. Satyapal and Anr.) where it is clear that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the Trial Court should exercise its power under Order 7 Rule 11 of the Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled. The Trial Court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. He also cited the judgment reported in AIR1998SC634 (L.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors.) in its paragraph 12. There I find Court observed that a plea of rejection of plaint can be taken at any stage of the proceeding irrespective of any fact whether any written statement has been filed or issues are framed etc. It is well-settled by now. I do not find any further necessity to disc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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