Calcutta High Court (Appellete Side)
Ketan Garach vs Ramesh Garach And Others on 20 April, 2016
1 20.04.2016
.
Item No. 29C.O. 1251 of 2016 Ketan Garach Vs. Ramesh Garach and others.
Mr. Jishnu Chowdhury, Mr. Mohit Gupta.
... for the petitioner.
Mr. Probal Kumar Mukherjee, Mr. Sukanta Chakraborty, Mr. Sakabda Roy, Mr. Anirban Saha.
... for the opposite parties.
Two rival Wills, both marked as contentious cause, are directed to be heard analogously by the impugned order dated 23rd February, 2016.
The impugned order records that both sides through their learned counsels consented to the consolidation of both suits, as recorded in the order dated 7th August, 2015. The petitioner almost after a month filed an application for recalling of the word 'consent' from the order dated 7th August, 2015.
Mr. Jishnu Chowdhury, learned counsel appearing on behalf of the petitioner submits that if the later Will is decided on merits then the authenticity of the first Will is immaterial and there can be only one Will under which the parties were derived their benefits. Mr. Chowdhury has referred to an unreported judgment of this Court in Priyamvada Devi Birla (G.A. No. 3879 of 2004 arising out of PLA No. 242 of 2004), where it has been observed 2 that if the probate is granted in the later instrument the former instrument will automatically fail. Per contra, Mr. Probal Kumar Mukherjee, learned senior counsel appearing on behalf of the opposite parties has referred to a Division Bench judgment of this Court in Jagdish Prasad Tulshan (D) by LR vs. Yasheel Jain, reported at AIR 2007 Cal 218 (para 21), where the Hon'ble Division Bench has referred to an earlier Division Bench judgment of this Court in Usharani Roy vs. Hemlata Roy, reported at AIR 1946 Cal 40 wherein it was held that in such an eventuality two separate proceedings should be heard analogously by giving opportunities to the contesting claimants to contest those proceedings by lodging separate caveat in the proceedings.
The ground of inconvenience of trial was sought to be agitated in this proceeding. It appears that the Trial Court did not find any inconvenience to decide both the proceedings as there will be common witnesses and in the event the second Will is not proved there will be a rehearing of the first Will and that would consume time.
In view thereof, the approach adopted by the Trial Court for analogous hearing of both the probate proceeding does not suffer from any illegality.
The revisional application is, accordingly, dismissed. However, there shall be no order as to costs.
ab (Soumen Sen, J.)