Protik Prakash Banerjee, J. - (1.) The short question raised for decision in this writ petition is who is entitled to have his name recorded in the Municipal Assessment Book of the Kolkata Municipal Corporation on the death of the last recorded Assessee - his legal heir on intestacy or, even pending probate of the will, in a contentious proceeding, the named executor? The consequential question which falls for decision is whether the executor is entitled to obtain an order quashing any recording made in favour of the legal heir on intestacy by the respondent No. 1, in its Municipal Assessment Book, without any order being communicated to the executor dealing with his objections to such recording?
(2.) The brief facts necessary for answering the questions are all on record, and either cannot be or were not disputed from the bar, which is why no affidavit was called for by the court. These facts are noticed in the two paragraphs which follow.
(3.) The writ petitioner is the named executor of the will of Late PijushKanti Roy Choudhury. The deceased was his brother. During his lifetime, the said PijushKanti Choudhuri applied for and obtained allotment of Plot No. P-153 in Scheme VII-M, from the Calcutta Improvement Trust (now the Kolkata Improvement Trust). Though he paid the full earnest money and the consideration for it, for reasons best known to him, the deed of conveyance was registered in the name of his wife, the Private Respondent (respondent No. 5). However, he constructed a building on the said plot then numbered P-153/A, pursuant to a sanctioned plan, from his own funds. The marriage was not blessed with any issue. These are no longer res integra and the respondent No. 5 is estopped by judgement and records from challenging these facts. This is because during his lifetime, Pijush Kanti Roy Choudhury sued his wife, inter alia for a declaration that the said property belonged to him and not to his wife. The reason for filing the plaint was averred in the plaint to be an apprehension in the mind of the plaintiff, since deceased, that since he and his wife had not had any children, in the event that she died intestate, according to the principles of Hindu law, he would not inherit any part of the said property. The wife (respondent No. 5) was the defendant in that suit. The suit was decreed ex parte on June 13, 2005 in Title Suit No.113 of 2004 by the competent civil Court. It has not been alleged to have been challenged. Copies of the plaint and the ordersheet including the decree have been enclosed as Annexure "P1" to the writ petition.;