- (1.) The above appeal is directed against the judgment and order dated 14th June, 2012 passed by the learned Single Judge in the above probate proceedings (PLA 117 of 1986) on two applications being G.A.1270 of 2012 and G.A.1317 of 2012. Both the above two applications were taken out in connection with the above probate proceedings.
(2.) The short fact for which the present appeal has been preferred as follows:- Above deceased namely Dr. Arun Kumar Nandi was a wealthy doctor, before his death by his last Will and testament dated 11th of February 1985 bequeathed and gave away all his properties both movable and immovable to various persons and institutions as mentioned in the Will. It appears by the said testamentary document a trust has been created making various provisions for the beneficiaries. By the said Will one Smt. Jahar Nandi, Sunil Kumar Nandi and one Dr. Gopiballabh Banik were appointed joint executors for obtaining probate of the last Will and testament. After his death in the year 1986 the probate of the said Will was granted to the said joint executors and executrix to fulfil wishes of the said testator. During the lifetime of all the joint executors after obtaining probate the administration of the estate left behind by the deceased, could not be completed. The last surviving executor namely Dr. Gopiballabh Banik in 2011 made an application being G.A.3588 of 2011 for sale of the property being premises No.8, Lower Range, Kolkata-700017 as the University of Calcutta being specified beneficiary of the aforesaid property after death of the wife of testator Smt. Jahar Nandi did not take any step. The Court passed an order on that application being G.A.3588 of 2011 on 14th of February 2012 and gave direction for advertisement once in Telegraph and once in Anandabazar Patrika. Pursuant to the said application various offers were received and this has been recorded in order dated 13th March, 2012. Subsequently various orders were passed thereon intending to complete the sale. However before the said sale could be completed on the application of the surviving executor, she died on 1st March, 2012. On her death one Dr. Deb Kumar Nandi made an application shortly thereafter, being G.A.1270 of 2012 for obtaining Letters of Administration in respect of properties mentioned in clauses (i) and (ii) of the said Will of the testator. In his application he claimed to be the nominee/executor in terms of the Will made by virtue of act of nomination made by last surviving trustee Dr. Gopiballabh Banik. The object of making said application was to complete the sale in terms of the earlier order and to hand over sale proceeds to the University of Calcutta after realization of all costs and expenses for such sale incurred on account of advertisement and making application. Shortly thereafter on 7th May, 2012 the University of Calcutta made application being G.A.1317 of 2012 for appointment of representative of University of Calcutta, the beneficiary of the Will of the said deceased for administering unadministered estate of the testator mentioned in Clauses 5(i) and (ii) of the Will. It appears that both the aforesaid two applications were heard by the learned Trial Judge and passed aforesaid impugned judgment and order. On hearing the learned Trial Judge neither chose Deb Kumar nor representative of the University to appoint Administrator. A Senior practising Advocate of this Court was appointed Administrator to hold the sale of the property. It appears that neither party had any grievance to this order of appointment of independent Administrator.
(3.) However the direction was given by the learned Trial Judge for reimbursement of costs incurred by the said Dr. Deb Kumar Nandi out of the sale proceeds.;