IMPORTANT POINT
The probate Court, cannot dismiss the probate proceeding at the threshold only on the basis of the objection of the objector that the Will is manufactured, shame, colourable, collusive and fake document.

B.P. Katakey, J.—The petitioner in WP(C) No.6127/2010 has filed this application seeking review of the order dated 20th April, 2011 passed by this Court dismissing the writ petition by giving liberty to her to challenge the order of injunction passed by the probate Court in an appeal to be preferred under Order XLIII Rule 1(r) of the Code of Civil Procedure and also refusing to entertain the writ petition praying for declaration that the Will, which is sought to be probated in the probate proceeding is a manufactured, shame, colourable, collusive and fake document, as the said question cannot be gone into in a writ proceeding, which requires examination of evidences and as such, conveniently be gone into by the probate Court while deciding the probate proceeding instituted by the respondent No.4.

2. The facts relevant for the purpose of consideration and disposal of the review petition may be noticed as under:-

The respondent No.4 in the writ petition as well as in the review petition filed an application under Section 276 of the Indian Succession Act, 1925 (in short, “the Act”) seeking probate of a Will, allegedly executed by Soumendra Mohan Mukherjee, in the Court of the learned District Judge, Sonitpur at Tezpur, which was registered and numbered as Misc. (P) Case No.36/2010. An application seeking injunction under Order 39 Rules 1 and 2 read with Section 151 CPC was also filed, which was registered and numbered as Misc. (J) Case No.37/2010. An ad interim order of injunction was passed on 20th March, 2010. The petitioner on receipt of the notice entered appearance and filed the objections in both the aforesaid two proceedings objecting the prayer for grant of probate as well as the prayer for issuance of injunction. In the objection filed against the prayer for grant of probate, the petitioner inter-alia contended that the Will is manufactured one; was not executed as required under the provisions of the Act; that the Will was drafted after the death of Soumendra Mohan Mukherjee and is a fabricated document and has been manufactured by the applicant seeking probate of the Will; that the marriage between Soumendra Mohan Mukherjee, the testator, and Mitra Mukherjee (respondent No.4) is hit by the provisions of Section 11 of the Hindu Marriage Act, 1955; that there are suspicious circumstances surrounding the execution of the Will. In the show cause filed by the review petitioner against the prayer for injunction, amongst others, it has also been contended that the probate proceeding being not a suit, no temporary injunction under Order XXXIX Rules 1 and 2 read with Section 151 CPC could be granted and as such, entertainment of such injunction petition and grant of ad-interim injunction is wholly without jurisdiction.

3. The probate Court upon hearing the learned counsel for the parties made the ad-interim injunction absolute vide order dated 24th September, 2010. The review petitioner thereafter, filed the writ petition challenging the legality and validity of the ad-interim order of injunction dated 20th March, 2010, order dated 24th September, 2010 making the said order absolute, passed in Misc. (J) Case No.37/2010. The review petitioner also prayed for quashing the Will as manufactured, sham, colourable, collusive and fake document apart from the probate proceeding initially registered as Misc. (P) Case No.36/2010, and was reregistered as T.S. (P) No.43/2010.

4. This Court upon hearing the learned counsel appearing for the parties, vide order dated 20th April, 2011 dismissed the writ petition as an appeal lies against the order of injunction and the question as to whether the Will is manufactured, sham, colourable, collusive or fake document cannot be gone into in a writ proceeding, as for determination of the said question of fact, evidence is required to be led, which can conveniently be done by the probate Court.

5. I have heard Mr. P.K. Bhowmik, learned senior counsel for the petitioner, Mrs. VL Singh, learn