Ashish Dev Roye v. N.A (Uncontested)

JUDGMENT AND ORDER (ORAL)

¶1The instant Civil Revision Application has been filed under Article 227 of the Constitution of India, against the order dated

26.04.2022 of the Learned Court below of the Additional Deputy Commissioner (J), Shillong passed in the Test (probate) Case No. 01(T)

of 2020 and also order dated 18.10.2022, passed in Review Petition No. 01(T) of 2022 in the petition for probate above stated.

¶2In brief, the Court of the Additional Deputy Commissioner (J), Shillong by judgment dated 26.04.2022, had dismissed the petition under Section 276 of the Indian Succession Act, 1925, filed by the petitioner seeking the grant of probate of the last will and testament dated

11.06.2000 of one (L) Debabrata Biswas, in favour of his wife (since deceased) Smti. Arati Biswas, to own the property during her life time, and thereafter, the same to devolve upon his youngest daughter, Smti. Debabani Dev Roye (nee Biswas). The dismissal was on the ground that, the will was hit by the provisions of Section 3(1)(2) read with Section 2(d) of the Meghalaya Transfer of Land (Regulation) Act, 1971, wherein, the Lower Court had held that, if probate was granted, it would involve the transfer of title right and interest over the plot of land in question, which would be in contravention of the above noted sections.

¶3Being aggrieved as the error committed by the Court was apparent, inasmuch as, the matter is one of 'testamentary succession', which is permitted as per Section 3A of the Meghalaya Transfer of Land (Regulation) Act, 1971 (as amended), the petitioner had preferred a Review Application, being Review Petition No. 01(T) of 2022, which

however, was rejected by the Learned Lower Court by order dated

18.10.2022.

¶4I have heard Mr. R. Choudhury, learned counsel for the petitioner.

¶5As the subject matter in issue is very limited, the instant Revision Application is being disposed at the stage of admission hearing itself. It is relevant to note herein, that there is no dispute that, the will in question, bequeaths the property described therein, on the family members of the testator, firstly on his wife and on her demise, on Smti. Debabani Dev Roye (nee Biswas) his youngest daughter. The learned Court below, by the order dated 26.04.2022 passed in the Application, rejected the same, on the grounds as observed earlier in the preceding paragraphs, and also the review petition, it appears without considering Section 3A of the Meghalaya Transfer of Land (Regulation) Act, 1971 (as amended).

¶6Without alluding to other attendant facts, a bare perusal of the impugned orders on the face of the record itself, show that the learned Lower Court had grossly erred in law, in not appreciating the provisions of the Meghalaya Transfer of Land (Regulation) Act, 1971 (as amended), in their correct perspective, and holding that, the said will amounted to a transfer, which is barred by the operation of the Act.

¶7The will in question as noted by this Court, is by way of testamentary succession and as such, will not come within the meaning of 'transfer' as given in Section 2(d) of the Act, but in fact, will be squarely covered by Section 3A (1)(c) of the Act thereof. A scanned copy of the said Sections of the Act as amended, are reproduced hereinbelow;

¶8It can clearly be seen that, Section 3A(1)(c) provides that, transfer by will, created in favour of parents, spouse, son, daughter, etc.,

such as in the instant case is not barred and comes within the exemptions as provided.

¶9In this view of the matter, the impugned orders being patently erroneous in law, interference is called for by this Court in exercise of powers under Article 227 of the Constitution. Accordingly, the impugned orders dated 26.04.2022 and 18.10.2022, are accordingly set aside, and the Revision Application stands allowed.

¶10In view of the facts and circumstances of the case and the findings made herein above, the matter is remanded back to the learned Court of the Additional Deputy Commissioner (J), Shillong, who is directed to issue appropriate orders granting probate to the petitioner of the will in question, as expeditiously as possible.

¶11Lower Court case records to be transmitted back immediately.

Judge

Meghalaya

14.02.2023 "D.Thabah-PS"

Serial No. 04 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG CRP No. 2 of 2023 Date of Decision: 14.02.2023 Shri. Ashish Dev Roye Vs. N.A. (Uncontested) Coram: Hon'ble Mr. Justice H. S. Thangkhiew, Judge Appearance: For the Petitioner/Appellant(s) : Mr. R. Choudhury, Adv. For the Respondent(s) : i) Whether approved for reporting in Law journals etc: ii) Whether approved for publication in press: