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2000 Supreme(Cal) 13
High Court Of Calcutta
Bhaskar Bhattacharya
JIBAN KUMAR DAS - Appellant
Versus
BIJOY KUMAR MUKHERJEE - Respondent
C. O. 3194 Of 1997
Decided On : 01/05/2000
A.J.Sen Gupta, N.Pal, SUBROTO BOSE
A person who will be affected by the grant of probate can alone contest a probate proceeding.
Headnote:
Probate - Necessary Party to Probate Proceeding - A person who entered into an agreement for purchase of the property with the testatrix is not a necessary party to a proceeding for grant of probate of a Will alleged to have been executed by the testatrix.
Fact of the Case:
The petitioner, an adopted son and executor to the estate of Meera Devi, applied for being substituted in pending appeals after Meera Devi's death. The opposite party, who had entered into an agreement for purchase of the property with Meera Devi, applied to be added as a party in the probate proceeding, contending that the Will was forged and the petitioner was not an adopted son of Meera Devi.
Finding of the Court:
The court found that the opposite party, who entered into an agreement for purchase of the property with the testatrix, was not a necessary party to the probate proceeding. The court held that the probate court is required to decide whether the Will was the last Will duly executed by the testator, and that a person who will be affected by the grant of probate can alone contest a probate proceeding.
Issues: The sole question was whether a person who entered into an agreement for purchase of the property 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.
Ratio Decidendi: The court emphasized that a probate court is required to decide whether the Will in question was the last Will duly executed by the testator, and that a person who will be affected by the grant of probate can alone contest a probate proceeding.
Final Decision: The court set aside the order adding the opposite party to the probate proceeding and rejected the application filed by the opposite party. The revisional application was allowed with no costs.
( 1 ) INSTEAD of hearing the application filed by the petitioner being CAN No. 9571 of 1999, the main revisional application was heard on merit with the consent of the learned advocates for the parties.
( 2 ) THIS revisional 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 revisional 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 party 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 is 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 Devi 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 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 stand 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 representation 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 property 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 governed but it will devolve 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 contest 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 f
