The main legal point established in the judgment is the right to seek revocation of the probate under Sec 263 of the Indian Succession Act and the requirement of attesting witnesses for the execution of a will as per Sec 63 of the Indian Succession Act.

1. In both the above noted applications under Article 227 of Constitution of India two orders passed by the Ld. City Civil Courts at Calcutta are under challenge.

2. In CO 4214 of 2015 the order No. 3 dated 20th January, 2015 passed by the Ld. Chief Judge, City Civil Court at Calcutta (for short the Ld. Chief Judge) in Probate Case No. 64 of 2014 is under challenge.

In CO 4215 of 2015 the order No. 52 dated 11th August, 2015 passed by the Ld. 4th Bench, City Civil Court at Calcutta (for short the Ld. 4th Bench) in O. C. Case No. 4 of 2012 in the matter of Mrs. Parna Banerjee & Ors. v. Somnath Banerjee is impugned.

3. By the order impugned dated 20th January, 2015 the Ld. Chief Judge was pleased to, inter alia, hold as follows:-

"In my view, before disposal of the instant petition for transfer of the instant case to the 4th Bench of Ld. Judge, City Civil Court, Calcutta it is required to be determined whether the document which has been claimed by the petitioner as will is really a will in the eye of law for granting probate or letters of administration under the Indian Succession Act or not. As such, disposal of the petition dated 07.11.2014 is kept suspended for the present.

Fix 09.04.2015 for hearing on the question as to whether the document on which the instant case has been filed can be termed as a will for granting probate or letters of administration under the Indian Succession Act."

4. By the order impugned dated 11th August, 2015 the Ld. 4th Bench was pleased to decide as follows:-

"This probate application is an earlier proceeding and the probate case no. 64 of 2014 is a subsequent proceeding. Earlier proceeding cannot be stayed. The court can stay of a suit as per provision u/s 10 & 11 CPC.

I have perused the Xerox copy of the will of probate case of 64 of 2014 before the Ld. Judge, City Civil Court, Calcutta.

As per Sec 63 of Indian Succession Act, the will executed by testator shall be signed by two or more witnesses and each of whom has seen the testator to sign or affix mark to the will. But there is no attesting witnesses in the will as produced by the defendant before this court today. Therefore, there is a reasonable ground to believe as to whether the said Xerox copy of the alleged will is at all a will.

Moreover, the defendant can get the relief as per Section 263 of Indian Evidence Act if probate is granted in favour of the plaintiff.

Having considered the above view, I find that there is no justified ground to stay of this suit.

Hence,

Ordered

That the petitioner filed by the defendant is hereby considered and rejected."

5. Mr. Gopal Chandra Ghosh, Ld. Counsel assisted by Mr. Sanjib Kumar Mukhopadhyay, Ld. Advocate for the petitioner submits that both the Ld. 4th Bench and the Ld. Chief Judge materially erred in rejecting the prayer of the present petitioner for analogous hearing of the two proceedings, viz. the O. C. Case and the Probate Case. Mr. Ghosh argues that both the proceedings have their genesis in the alleged Wills executed by Kashinath Banerjee, the common predecessor-in-interest of both the petitioner and the opposite parties (OPs).

6. Mr. Ghosh points out that in Probate Case No. 64 of 2014 the alleged Will of the said testator namely, the Late Kashinath Banerjee dated 15th April, 2006 is under challenge. In O.C. Case No. 4 of 2012 grant of probate has been applied for in connection with another document also alleged to be the Will of the said Late Kashinath Banerjee.

7. The present petitioner applied before the Ld. Chief Judge for transfer of the Probate Case No. 64 of 2014 to the Court of the Ld. 4th Bench to be heard analogously with O.C. Case No. 4 of 2012 since, both the alleged Wills trace their source from the common testator. However, the Ld. Chief Judge by the order impugned dated 20th January, 2015 (supra) has opined that it requires to be determined whether the Will is really a Will fulfilling the conditions for grant of probate or letters of administration under the Indian Succession Ac