SOUMITRA BANERJEE vs ARUP KUMAR CHATTERJEE AND ORS

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION

Present : Hon’ble Justice Rajasekhar Mantha
And
Hon’ble Justice Rai Chattopadhyay

F.A. No. 319 of 2007 (FAT 2466 of 2007)

Soumitra Banerjee
Versus
Arup Kumar Chatterjee and others

For the appellant : Mr. Debasis Sur,
Mr. Mrinmoy Chatterjee,
Mr. Dilip Kumar Das,
Mr. Amitava Chatterjee

For the substituted
respondent nos.1(a) to 1(g) : Mr. Piyush Chaturvedi, Sr. Adv.
Mr. Dilip Kumar Maity,
Mr. Binayak Chaturvedi.

For the respondent
nos.7(a) to 7(c) and 8 : Ms. Tina Biswas


Heard on : 15.05.2026
Judgement on : 15.05.2026.

Rajasekhar Mantha, J:-

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1. The appeal is directed against a judgement and order dated 15
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July, 2006 passed by the learned Additional District Judge, 1 Court at
Hooghly in Revocation Misc. Case No. 9 of 2002.

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2. By the said judgement, the appellant’s application for revocation of
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letters of administration, granted by the 1 Court in favor of the
respondents in L. A. Case No. 5 of 1976 vide the judgment and decree
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dated 5 June, 2000, was rejected.
3. The brief facts relevant to the case are that the letters of
administration were applied for by the respondents in respect of the will
and testament of Satadal Basini Devi. The beneficiary under the will was
Santi Sudha Devi. It was further mentioned in the will that in the event
the beneficiary Santi Sudha Devi predeceased the testatrix, her legal heirs
would become the beneficiaries. The appellant was not bequeathed any

property under the said will.
4. After the death of the testatrix Satadal Basini Devi, Santi Sudha
Devi and/or her legal heirs applied for letters of administration of the said
will under Act XXXIX of L. A. Case No. 207 of 1974, subsequently
renumbered as L. A. Case No. 5 of 1976. Notice was served and citations
were issued on the appellant and/or predecessor-in-interest, namely, her
father. A vakalatnama was filed by the father of the appellant along with
her brother, one Durga Das Bhattacharya. The father of the appellant was
the brother of the testatrix.

5. The appellant, however, did not contest the original case for letters
of administration. The trial Court rejected the prayer for grant of letters of
administration.

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6. The respondents herein thus preferred the first appeal FA 53 of
1987 before this Court. In the said appeal, a co-ordinate Bench of this
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Court by judgment and decree dated 21 September, 1999 directed the
trial Court to grant letters of administration. Accordingly, the trial Court
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being the 1 Court of Additional District Judge, Hooghly at Chinsurah
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granted letters of administration to the respondents vide order dated 5
June, 2000 in L.A. Case No. 5 of 1976.
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7. The appellant did not challenge the order dated 21 September,
1999(supra) and instead filed the Revocation case (Revocation Misc. Case
No. 9 of 2002), which was rejected by the impugned judgment herein.
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Thus, the parent judgment and order dated 21 September, 1999 (supra)
has remained unchallenged and hence has attained finality.
8. Learned counsel for the appellant has argued that the notice of the
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appeal FA 53 of 1987 was not served on him. The said order dated 21
September, 1999 passed in the said appeal therefore stands vitiated. The
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impugned order dated 5 June, 2000 passed in L.A. Case No. 5 of 1976,
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has been passed in compliance with the said order dated 21 September,
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1999. The impugned order dated 5 June, 2000, therefore, deserves to be
set aside.

9. Sub-rule 4 of Rule 14 under Order 41 of the Code of Civil Procedure
prescribes that notice of any incidental proceedings to an appeal need not

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be served on a party, who was duly served before the 1 Court and did not

contest the same.
10. The Appellate Side Rules of this Court particularly Rule 2A under
Chapter 5 prescribes that notice need not be served in the First and
Second appeals before this Court, on a party who did not participate in
the proceedings in the trial court, despite service of notice. Rule 2A under

Chapter V of Appellate Side Rules reads as follows :
“2A. In the case of First and Second Appeals from decrees in which
the note given in the memorandum of appeal by the filing advocate
under clause (h) of Rule 2 of this Chapter, discloses that the number
of respondents to the appeal who did not appear in the lower court is
five or more, excluding minor or lunatic respondents, the office shall
put up the same on the Lawazima List of the Registrar immediately
or as soon as possible after the registration of the First Appeal, or
after the admission of the Second Appeal under Order XLI, Rule 11
of the Civil Procedure Code, 1908, as the case may be, with the
necessary office note, so that the Registrar may, in exercise of his
powers under Rule 2(26) of Chapter II of these Rules, pass suomotu
the order under Order XLI, Rule 14(3) of the Civil Procedure Code in
the presence of the advocate for the appellant, for dispensing with
service of notice of appeal on the respondents who had not
appeared in the court below.”
Emphasis applied
11. A plain reading of Rule 2A (supra) indicates that it is wider than
sub-rule 4 of Rule 14 under Order 41 of the Code of Civil Procedure. The
Civil Procedure Code Order 41 Rule 14(4) dispenses with service of only
incidental proceedings in connection with an appeal where such party did
not participate in the trial court proceedings despite being served.
12. Rule 2A of the Appellate Side Rules (supra) prescribes that no
notice is required to be served even in the main proceeding of First and

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Second appeal before this Court, on such party, who did not participate in
the proceeding before the trial court despite being served.
13. The expression ‘who had not appeared in the court below’ in Rule
2A(supra) indicates that a party must actually participate in and contest
proceedings before the trial Court for being mandatorily eligible to be
served with the notice of an appeal, preferred against any order passed in
such trial proceedings. Hence, mere filing of a vakalatnama without
actually participating in the trial in person or by a counsel would render a
party a non-appearing respondent within the meaning of Rule 2A (supra)
since any order passed in such proceedings by the trial Court would be an
ex parte order.
14. The object and purpose behind the aforesaid Rule 2A is explicit and
clear. A person who does not participate in a proceeding before a trial
court despite notice must be deemed to have consented to the prayers
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made by the applicant before the 1 Court.

15. Admittedly the appellant herein and/or their predecessors had filed
a vakalatnama in the principal case for grant of letters of administration
being Act XXXIX of L.A Case No. 207 of 1974 renumbered as L. A. Case
No. 5 of 1976. The appellant however has never participated in the
hearing of the main L. A. Case No. 5 of 1976. Thus, applying the Rule 2A
of Chapter 5 of the Appellate Side Rules, no notice was required to be
served afresh by a Co-ordinate Bench while disposing of F.A 53 of 1997.

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16. When a respondent has not been served with a notice of appeal, his
remedy is prescribed under and lies in Order 41 Rule (21) of the CPC. It
enables a respondent to apply for re-hearing of the appeal, when notice of
the appeal was not duly served on him or he was prevented by any
sufficient cause to take part in the appeal. Thus, an application under
order 41 Rule 21 was required to be filed by the appellant herein. Rule 41
Rule 21 of the CPC is set out below:-
Order 41 21. Re-hearing on application of respondent against whom ex
parte decree made.—Where an appeal is heard ex parte and judgment is
pronounced against the respondent , he may apply to the Appellate
Court to re-hear the appeal; and, if he satisfies the Court that the
notice was not duly served or that he was prevented by sufficient cause
from appearing when the appeal was called on for hearing, the Court
shall re-hear the appeal on such terms as to costs or otherwise as it
thinks fit to impose upon him.
Emphasis applied
17. When the Code has prescribed a remedy for a situation, it is only that
provision of the code that should be invoked for remedying the situation
and no other. Thus, the instant first appeal is barred by reason of the
existence of a specific provision under order 41 Rule 21 of the CPC. The
existence of Order 41 Rule 21 in the Code bars the appellant from raising

the plea of no service of the memo of appeal in this first appeal.

18. Learned counsel for the appellant has argued that the signature of
Nilima Banerjee, the original appellant, was fraudulently obtained on
blank documents by her brother Durga Das Bhattacharya, son of
Promotha Mohan Bhattacharya. The said Nilima Banerjee, however, in
paragraph no. 8 of the revocation application on page no. 39 of the paper

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book, has stated that her brother Durga Das Bhattacharya has obtained
her signature on a vakalatanama. The purpose of the said vakalatnama
was however not disclosed to her. The character of the document on
which she lent her signature therefore was clearly known to her. She
understood the consequences of the said document .
19. The plea advanced by the learned counsel for the appellant has its
origin in the plea of non-est factum . The expression “ Non est factum ”
essentially means that a person who had signed on a document was not
aware of its content or the purpose for which the same is going to be

used.

20. It is now well settled both in English and Indian Law that such plea is
available to illiterate persons and those considered and accepted as
“ pardanasin ”. Such plea is also available to illiterate widows of a
substantial and advance age.
21. The aforesaid plea is however not available to the appellant herein
against Durga Das Bhattacharya since the former was educated and not
under any compulsion or duress. She did not fall in any such category to
avail the plea of non-est factum. There is further no evidence on record to
indicate any steps initiated by the appellant against her brother.

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22. The plea of ‘non-est factum’ was discussed by the House of Lords in
Saunders Vs Anglia reported in (1970) 3 ALL ER 961. Following the
said opinion, the Hon'ble Supreme Court in Ramathal&Ors. v. K.
Rajamani (Dead) through Lrs&Anr, reported 2023 INSC 737,
summarized the principles of “ non est factum’ as follows:-
19. The ingredients of the plea of non est factum as laid down not only in
the case of Bismillah (supra) are existing in the present case, but also the
three parameters as can be deduced from Saunders(supra) were in
existence in the present case as well. The aforementioned test for a
successful plea of non est factum requires that:
A. The person pleading non est factum must belong to "class of
persons, who through no fault of their own, are unable to have any
understanding of the purpose of the particular document because
of blindness, illiteracy or some other disability". The disability must
be one requiring the reliance on others for advice as to what they
are signing. As Lord Pearson had aptly put:
“In my opinion, the plea of non est factum ought to be
available in a proper case for the relief of a person who for
permanent or temporary reasons (not limited to blindness or
illiteracy) is not capable of both reading be and sufficiently
understanding the deed or other document to signed. By
“sufficiently understanding” I mean understanding at least to
the point of detecting a fundamental difference between the
actual document and the document as the signer had believed
it to be.”
B. “The "signatory must have made a fundamental mistake as
to the nature of the contents of the document being signed",
including its practical effects. Lord Wil berfore has succinctly
put this aspect:
“In my opinion, a document should be held to be void (as
opposed to voidable) only when the element of consent to
it is totally lacking, that is, more concretely, when the
transaction which the document purports to effect is
essentially different in substance or in kind from the
transaction intended”
C. The document must have been radically different from one
intended to be signed. As Lord Reid Remarked in the judgement:
“There must, I think, be a radical difference between
what he signed and what he thought he was signing —

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or one could use the words “fundamental” or “serious”
or “very substantial.” But what amounts to a radical
difference will depend on all the circumstances.”
Emphasis applied
23. Thus, one of fundamental principles for application of the plea of ‘ non-
est factum’ is that the executor or signatory of a document did not have
knowledge of the nature and character of the document so executed. The
party aggrieved thus ought to make a pleading on misrepresentation as
regards the character of the document, not merely the contents thereof.
24. On the contrary, in paragraph no.8 of the revocation application, the
original appellant has admitted that she signed on a vakalatnama
brought before her by the said Durgadas. The appellant thus identified
the said document brought before her as vakalatnama. Clearly therefore,
she was aware of the character of the document. Thus, she cannot take
refuge under the plea of ‘ non-est factum’ .

25. In paragraph no. 13 of the revocation application, the original
appellant has pleaded that the testatrix could have never deprived her of
the properties, bequeathed to the respondents by the said will. The
reason offered is that the testatrix, being the sister of the father of the
original appellant, has brought her to the property so bequeathed and
has further promised her that the said property would be given to her on
the death of the testatrix.
26. The appellant therefore by necessary implication has admitted that the
testatrix could execute such a will and bequeath properties to the

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respondents. It is just that she expected to receive the property, where
she is staying, from the testatrix in any such will. The expectation of the
appellant cannot take the force of a suspicion surrounding a will. Thus,
the sole plank on which the will was challenged was an expectation of the
appellant arising out a stray emotion.

27. This Court is therefore not inclined to accept the second argument
advanced by the learned counsel for the appellant as indicated herein
above .
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28. In any event the order of the Co-ordinate Bench dated 21
September, 1999, which directed the trial court to grant letters of
administration to the respondents, remains unchallenged. The appellant
therefore could not have maintained the revocation case before the trial
court in the first place.
29. For the reasons stated above, the F. A. 319 of 2007 fails and is hereby
dismissed. Consequently all connected pending applications, if any, are

also dismissed.
30. The impugned judgment and order rejecting the prayer for revocation
of letters of administration granted in favour of the respondents, is hereby
confirmed.
31. There shall be, however, no order as to costs.

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32. All parties shall act on the server copy of this order duly downloaded
from the official website of this Court.

( Rajasekhar Mantha, J. )

I agree



( Rai Chattopadhyay, J. )