A defendant can take inconsistent and contradictory pleas in the same proceeding in support of their defense.

JUDGMENT

Bibek Chaudhuri, J. - This is an appeal under Section 341 of the Code of Criminal Procedure challenging the Order No. 24 dated 10th July, 2018 passed by the Learned additional District Judge, 3rd Court at Barasat in Misc. Case No. 1728/2017 arising out of O.S. 39/2015, thereby dismissing appellants' application under Section 340 of the Code of Criminal Procedure.

The background of the present appeal may be summarized in the following words: -

One annapurna Ghosh, since deceased, was the absolute owner of premises No.189, Bangur avenue, Block-C, Kolkata - 700 055 (hereinafter described as the premises in suit). It is the case of the appellants that during her lifetime she executed her last testament and Will on 7th august, 2014 bequeathing the premises in suit jointly to his youngest son and younger daughter in equal share. It was also provided in the Will that the bequeathees would pay a sum of Rs.50 lacks to the elder son of the testator, namely Somnath Ghosh either in lump sum or by installment within a period of 2 and 1/2 years from the date of execution of the Will. after the death of the testator, the legatees being the joint executors of the Will proposed to pay a sum of Rs.50 lacks as per direction made in the Will to the respondent. However, the respondent on one pretext or the other neglected and refused to accept the said amount of money. after the death of the testator on 10th October, 2014, the respondent started making obstruction and hindrance over the peaceful enjoyment of the premises in suit by the appellants. On 14th November, 2014 the respondent wrote a letter to the appellants requiring them to disclose how and in what manner they proposed to pay the said sum of Rs.50 lacks. The appellants gave reply to the said letter describing mode and manner of the said sum. Series of transactions went on between the parties. The appellants made several proposals for payment of the said sum to the respondent but he on one pretext or the other did not receive the said amount. Subsequently, the respondent filed a suit in the 3rd Court of the learned Civil Judge (Junior Division) at Sealdah which was registered as Title Suit No. 34 of 2015 praying for declaration that the plaintiff/respondent has a specific charge of Rs.50 lacks over the said premises and the appellants are not entitled to deal with the said premises exclusively until the fulfillment of the obligation in terms of the Will. The respondent also prayed for permanent injunction in the said suit against the appellants restraining them from entering into any agreement to any third party for developing the said premises and further restraining them from interfering with the respondent's right to access to the said premises till payment of the said sum of Rs.50 lacks.

During the pendency of the aforesaid suit, the appellants filed an application for grant of probate in respect of the last Will and testament dated 7th august, 2014 executed by the testator before the Learned District Delegate at Barasat. after service of notice, the respondent duly appeared in the said probate proceeding and filed an application for inspection of the Will. Since the probate proceeding became contentious, it was transferred to the Learned District Judge at Barasat who, in turn, transferred the said suit which was registered as O.S. 39/2015 to the 3rd Court of the Learned additional District Judge at Barasat for disposal. In the meantime, the appellants filed an application under Section 151 of the Code of Criminal Procedure in Title Suit No. 34 of 2015, inter alia, praying for a direction upon the respondent to accept the entire sum of Rs.50 lacks.

It is further stated by the appellants that even in probate proceeding the appellants tried to pay the entire sum of Rs. 50 lacks to the respondent. In O. S. 39/2015 the appellants filed an application under Section 151 of the Code of Civil Procedure making similar prayer for direction upon the respondent to accept the said sum of Rs.5