IMPORTANT POINT
The Probate Court cannot adjudicate on the title of the testator or the validity of a Deed of Settlement; it is limited to authenticating the Will.

JUDGMENT :

HARISH TANDON, J.

1. The application for probate filed by the appellant is dismissed by the Probate Court on 25th July, 2011 which is a subject matter of challenge in the instant appeal.

2. The probate relates to a Registered Will dated 13.07.1999 executed by one Durgabala Dasi bequeathing the property mentioned therein in favour of the beneficiaries named therein. The said testatrix appointed the appellant as executrix to the said Will who was obligated to take a probate of the same and act in terms of the wish and desire of the said testatrix. The said application for probate was filed before the District Delegate, Howrah which was registered as Probate case no. 143 of 2005 wherein the heirs and legal representatives who would otherwise inherit the estate of the said testatrix in case of intestacy were mentioned. After the service of the general and special citation, the caveat was lodged by the Respondent nos. 1 to 3 and an affidavit in support of the said caveat was also filed. Since the District Delegate has no jurisdiction and powers to decide the contested proceeding, it was relegated to the District Judge and ultimately was transferred to the 1st Additional District Judge, Court, Howrah who decided the said proceeding after being converted into a contentious cause upon holding that the Will under scrutiny has prevailed over the Deed of Settlement dated 25.09.1970.

3. The facts discerned from the record is required to be adumbrated in order to determine whether the Probate Court can go into such question simplicitor on the ground that the objectors have taken such plea. The property originally belonged to one Kali Charan Santra who was admittedly the father of the testatrix. The said owner had four sons namely, Atul Krishna Santra, Fatik Santra, Dulal Santra and Netai Santra and one daughter Durgabala Dasi, the testatrix herein. The said Kali Charan Santra executed a Deed of Settlement dated 25.09.1970 and settled his property in favour of three sons namely, fatik Santra, Dulal Santra and Netai Santra. Since the Atul Krishna Santra was kept outside the purview of the purported Deed of Settlement, the said son after the death of the Kali Charan Santra filed Title Suit no. 32 of 1973 in the Court of 2nd Sub-Judge, Howrah against the other brothers and the testatrix for decree for declaration that the purported Deed of Settlement dated 25.09.1970 is illegal, invalid and void and consequent thereupon the relief in the form of a partition by separating the shares of the co-sharers was also prayed therein. The said suit was ultimately dismissed on contest. For the purpose of record it is made clear that the said testatrix never appeared and contested the said suit. The Atul Krishna Santra preferred a first appeal i.e., TA 145 of 1978 before the District Judge, Howrah challenging the said judgment and decree of dismissal of the said suit which was transferred to the Court of a 2nd Additional District Judge at Howrah for final disposal. The 1st Appellate Court allowed the said appeal on contest as a resultant effect, the purported Deed of Settlement dated 25.05.1970 was declared invalid, illegal and void with further declaration that the property owned and possessed by said Kali Charan Santra devolved upon his heirs and legal representatives in equal shares. The aforesaid three sons who contested the suit as well as the first appeal filed a second appeal being SA 757 of 1980 before this Court which was initially admitted under Order 41 Rule 11 of the Code of Civil Procedure. During the pendency of the second appeal, one of the appellant namely, Dulal Santra died and his heirs and legal representatives were substituted therein. It further transpires that during the pendency of the said second appeal the other parties also died and the respective heirs and legal representatives were also substituted. Ultimately, the substituted parties in the second appeal entered into a compromise and the compromise petition containing th