Arijit Banerjee, J.

One Shankar Lal Saraf was a person of substantial means. He died having made and published a Will dated May 11, 2005 wherein he named his wife being the respondent no. 1 in the present proceeding as the sole executrix of the Will. The respondent no. 1 obtained probate of the said Will by an order dated October 7, 2005 passed by this Court in PLA No. 267 of 2005.

About 8 years later one of the daughters of the testator viz. Sweety Todi filed an application for revocation of probate of the said Will being GA No. 173 of 2013. The present application being GA No. 791 of 2013 has been filed by the respondent no. 3 in GA No. 173 of 2013 for deletion of his name from the array of respondents in GA No. 173 of 2013.

The applicant’s case:

The applicant contends that he is not a necessary or proper party to the application for revocation of probate of the said Will. He contends that the petitioner in GA No. 173 of 2013 being Sweety Todi who has applied for revocation of probate does not have any cause of action against the applicant. The applicant was not a party to the probate proceeding and is not concerned with it in any manner. He is neither a legal heir of the testator nor a beneficiary under the said Will. He is not concerned with what the executrix did with the estate of the deceased. His further case is that all transactions during the continuance of probate are valid and even if the probate is subsequently revoked such transactions are not invalidated. Hence, even if he had transactions with the executrix touching the estate of the deceased during the continuance of the probate, just because the probate may be revoked subsequently would not make such transactions bad. In this connection, the applicant relies on the decision of the Hon’ble Supreme Court in the case of Crystal Developers vs. Asha Lata Ghosh reported in 2005 9 SCC 375. The applicant, thus, contends that no liability can be foisted on him and his presence before the court hearing the application for revocation of probate is not at all necessary. He has been unnecessarily dragged into the matter and his name should be deleted from the array of respondents in GA 173 of 2013.

The case of the petitioner (Sweety Todi):

The application has been vehemently opposed by Mr. Pradip Ghosh, Ld. Senior Counsel, appearing on behalf of Sweety Todi. It has been alleged in the affidavit-in-opposition filed by Sweety Todi and also contended in course of submission made on her behalf that several crores of rupees have been diverted from the estate of the deceased to the applicant or to companies controlled by the applicant. This has been done by the respondent no. 1 being the executrix under the undue influence and dictates of the applicant who is the son-in-law of the respondent no. 1. It is contended by reference to Section 63 of the Indian Trusts Act, 1882 that the respondent no. 1 is in a position of a trustee vis-à-vis the estate of the deceased and any estate or property including money of the estate of the deceased which have been diverted to third parties can be traced and followed into the hands of such third persons like the applicant in the present case. In this connection, Mr. Ghosh has relied on the decision of the Privy Council in the case of Guardian Trust and Executrix Co. of New Zealand vs. Public Trustee of New Zealand reported in (1942) 1 ALL. ER. 598.

Mr. Ghosh has further referred to Paruck’s Indian Succession Act, 10th Edition page 935 and has submitted that an executor after receiving notice of intended application for revocation of probate, must stay his hands. He should no pay any legacy bequeathed under the Will. If the legatee threatens him for payment, he should apply for directions from the court. If without taking these precautions he pays any legacy, he does so at his peril and on the subsequent revocation of probate he may be personally liable to make good the loss. Mr. Ghosh has also relied on a decision of the English C