Calcutta High Court
Jiban Kumar Das vs Bijoy Kumar Mukherjee on 5 January, 2000
Equivalent citations: (2000)1CALLT560(HC)
Author: B. Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT B. Bhattacharya, J.
1. Instead of hearing the application filed by the petitioner being CAN No. 9571 of 1999, the main revlslonal application was heard on merit with the consent of the learned advocates for the parties.
2. This revlslonal application under section 115 of the Code of Civil Procedure is at the instance of an applicant for grant of probate and is directed against order dated November 20, 1997 passed by the District Delegate, Howrah in Probate Case No. 39 of 1997 thereby adding the present opposite party in the said probate proceeding.
3. The sole question that arises for determination in this revlslonal application is whether a person who has entered into an agreement for purchase of the property covered by the Will with the testatrix is a necessary party to a proceeding for grant of probate of a Will alleged to have been executed by the testatrix.
4. There is no dispute that the opposite party filed a suit for specific performance of the contract for sale against Meera Devi, the testatrix which was decreed with a direction for refund of the earnest money. The opposite party has preferred a first appeal and the same is pending. Similarly, Meera Devi, filed a suit for declaration against the opposite parly that the disputed agreement was in substance a loan but the said suit having been dismissed, Meera Devi had preferred an appeal and the same ts also pending.
5. During the pendency of the aforesaid two appeals, Meera Devi having died, the petitioner herein, describing himself to be an adopted son and executor to the estate of Meera Devl by virtue of a Will alleged to have been executed by Meera Devi applied for being substituted in those two appeals.
6. The opposite party having got information of the execution of the aforesaid Will from the application of the petitioner in those pending appeals, came up with an application for being added as a party in the the probate proceeding contending that the Will was a forged one and the petitioner was not an adopted son of Meera Devi.
7. As mentioned earlier, the learned District Delegate has allowed such application which has been impugned by the petitioner in this revisional application.
8. Before I proceed to decide the question of locus standi of the opposite party to oppose the grant, it should be borne in mind that a probate court is required to decide whether the Will In question was the last Will duly executed by the testator, whether the same was duly attested by at least two witnesses and whether the testater had mental capacity to execute the Will. The Probate Court is also entitled to consider whether the execution of the said Will was vitiated by fraud, undue Influence, coercion, false represention or by mistake. Apart from the aforesaid questions, a Probate Court cannot go Into the question whether the testator had title or possession, over the properly covered by the Will. Therefore, when a Will has been probated by a competent court, it implies that the Will was the last Will of the testator and that the same was duly executed by the testator of his own free Will and accord having full mental capacity to understand the contents of the Will and that the same was duly attested by at least two witnesses. The probate granted by a testamentory court does not indicate that the testator had title to the property covered by the will. The probate merely denotes that the estate of the testator covered by the Will shall not devolve upon the natural heirs according to the ordinary law of the land by which the testator was goverrted but it will devlove upon the person or persons according to the wish of the testator reflected in the body of the will.
9. The above propositions of law make it abundantly clear that a person who will be affected by the grant of probate can alone conlest a probate proceeding.
10. Applying the aforesaid test to the fact of the present case, I find that the opposite party, who entered into an agreement for purchase of the properly with the testatrix cannot be affected by the grant of probate.
11. In the event the Wilt is probated, he will pursue his remedy against the executor or legatee, whereas in case of intestacy, he will proceed against the natural heirs of the testatrix according to the law of the land by which the testatrix is governed. But in none of the aforesaid cases his right is affected in any way.
12. The learned District Delegate, In my opinion, acted illegally and with material irregularity In holding that the opposite party has interest in the subject matter of Will.
13. The expressions "all persons claiming to have any Interest in the estate of the deceased" appearing in section 283 of the Indian Succession Act, in my view, should be interpreted as implying a real Interest which is or is likely to be adversely affected by the grant of probate. (See Savita De v. Neeraj Estate reported in 1999(1) CHN 65)
14. The order impugned is thus set aside. The application filed by the opposite party for being added in the probate proceeding is rejected. The revlslonal application is thus allowed.
No costs.
15. Application allowed