A Court of probate cannot grant or refuse probate of a Will by consent and without taking evidence.

( 1 ) TWO brothers Sisir Kumar Chandra and Manick Lal Chandra have made this application for injunction restraining their step-mother Sm. Monorama Chandra from selling premises No. 21 Dr. Jagabandhu Lane Calcutta in execution of the decree dated September 7, 1946 passed by this court in Testamentary Suit No. 10 of 1948 (Shyamlal Malakar v. Sm. Monorama Chandra), The petitioners are praying that the order dated March 11, 1969 for sale of premises No. 21 Dr. Jagabandhu Lane, obtained by Sm. Monorama Chandra in execution of the decree dated September 7, 1948 be stayed pending the hearing of the suit

( 2 ) THE suit in which this Interlocutory application has been made was filed by the petitioners on April 29, 1971 against Sm. Monorama Chandra and others, inter alia, for a declaration that the consent decree dated September 7, 1948 passed in Testamentary Suit No. 10 of 1946 by this Court is a nullity and not binding upon the petitioners and the same be set aside or cancelled, stay of execution of the decree, injunction receiver, costs such further or other reliefs.

( 3 ) IN order to decide the question whether I shall in the exercise of my discretion grant temporary injunction, pending the hearing of this suit the circumstances under which this suit has been instituted and this application has been made have to be appreciated.

( 4 ) ONE Kristo Chandra, a Hindu governed by Dayabhaga School of Hindu Law died on May 1, 1946. Before his death he executed a Will on 2nd Baisakh 1363 B. S. corresponding to April 15, 1946. He married thrice. His first wife Matibala died long ago leaving a daughter Parul Bala who is married. He married second time Sm. Elokeshi Bala and had three sons by the second wife, viz. Raj Kumar, Sisir Kumar and Manick Lal. His second wife died. He married third time. His third wife is Sm. Monorama Chandra, the defendant No. 1 in this suit. He had a daughter Sm. Arati Bala by the third wife Sm. Monorama Chandra. The relationship of the parties will appear from the geneo-logical table set out hereunder:-- Kristo Lal Chandra (D. 1. 5. 46)

Mali Bala

1st wife (D) Elokeshi Bala

2nd wife (D) Monorama

3rd wife (Df. 1.)

Farul Bala

(married) Arati Bala

Raj Kumar

(Dft. No. 3.)

Sisir Kumar (Pl. No. 1.)

Manick Lal (PL No. 2.)

( 5 ) BY and under his Will dated April 15, 1946 the testator Krishna Lal Chandra appointed his friend Shyamlal Malakar, as the executor and his third wife Sm. Monorama as the executrix.

( 6 ) I am quoting hereunder the relevant provisions of the Will:"in all I have got five children. By my first wife there is Sm. Parul Bala Dassi who is married. By my second wife I have got three sons: 1st. Raj Kumar Chandra, 2nd Sisir Kumar Chandra, 3rd Manick Lal Chandra. After my death the aforesaid three sons of mine shall get an equal share, i. e. , a third share each in all my movable and immovable properties with rights of transfer (like sale, gift etc.) and shall go on holding and enjoying the same down to their sons, sons' sons and heirs in succession and shall be competent to divide their respective shares amicably or with the help of proper court. XXXXX"by my third wife my daughter's name is Arati Bala Chandra. When she reaches the age of marriage my three sons shall contribute equally the amount of Rs. 200/- out of the income derived from my estate. "my third wife Srimati Monorama Chandra shall get her maintenance and clothings if she lives in my house. On no account shall my sons be entitled to stop her maintenance and clothes. If however my wife has differences of opinion with my sons and if she wishes to live elsewhere, then she shall be entitled to an allowance of Rs. 20/- per month. If she lives with my family then my sons shall bear the expenses of maintaining and clothing her equally but if she takes to bad way then she will get nothing of my property. If my wife treads the path of immorality then she shall get nothing. "i make my wife Sm. Monorama Chandra and Sri Shyam