IMPORTANT POINT
(1) Judgment rendered in a probate proceeding would not be determinative of question of title.
(2) Principle of Res Judicata applies as between past litigation and future litigation so also as between two stages in same litigation.

JUDGMENT

Sahidullah Munshi, J.—This suit arises out of P.L.A. 325 of 2001 filed by the executors of the alleged last Will and Testament of the deceased seeking grant of probate of the said Will executed by the deceased on 21st October, 1992 and Codicil to the said Will executed on 21st June, 1998 to leave granted by this Hon’ble Court vide its order dated 14th May, 2013, caveat was permitted to be filed and in support of such caveat affidavit was also filed by the defendants Soumi Majumder and Shantanu Bose on 26th July, 2013, as a result of which the probate application became contentious and P.L.A. 325 of 2001 has been converted into Testamentary Suit. Probate application (now converted into plaint) disclosed that the deceased Reba Mitra, a Hindu governed by the Dayavaga School of Hindu Law, died testate on 27th November, 1998 leaving behind a Will dated 21st October, 1992 being her last Will and Testament in English language and character. The said Will was registered with the Registrar of Assurances, Calcutta on 21st October, 1992. The deceased also executed a Codicil of the said Will on 21st June, 1998. According to the deceased Will and Codicil is proved by the affidavit of Dr. Lalit Kumar Ajitsaria one of the attesting witnesses to the said Will and Codicil. The deceased appointed the plaintiffs and one Lily Rama Subramanyan as the executors of her said Will. The said Lily Ramasubhramanyan, however, expressed her non-willingness to join the application for probate and has renounced her executorship. Particulars of the properties of the deceased has been set out in the affidavit of assets formed on 18th September, 2001 and has been filed with the probate application. The deceased died without any issue and her husband predeceased her. Therefore, there is no legal heir left by the deceased as per Hindu Succession Act, 1956. In such circumstances the executrix/plaintiffs prayed for grant of probate of the Last Will and Codicil of the deceased above named with effect throughout the Union of India.

2. The caveators in their affidavit of caveat contended inter alia that one Kamal Kumar Mitra (since deceased) was fully ceased, possessed and/or sufficiently entitled to the immovable properties being premises no. 13/1, Promotesh Barua Sarani, (formerly known as Ballygunge Circular Road) Kolkata- 700019, during his life time, entered into agreements dated 22.05.1988 with T.K. Ramasubramanyan thereby creating a tenancy in respect of the ground floor flat, a further agreement dated 1st November, 1988 with Sharad Subramanyan to provide the tenants the fittings and fixtures in the ground floor at a monthly charge of Rs.750/- and on 24th February, 1989 a third agreement was executed by and between Kamal Kumar Mitra (since deceased) and the said Sharad Subramanyan following thereto a fourth agreement on 28th April, 1989 with one T.K. Ramasubramanyan (HUF) by virtue of which the former agreed to create a lease in respect of the whole of the terrace of the first floor of the said property at 13/1, Promotesh Barua Sarani, Kolkata- 700019 to enable the latter to construct at his own cost additional floor. The said agreement was for a period of 21 years, commencing from 1st April, 1989 with a clause for renewal for a further period of 21 years after expiry of every period of 21 years.

3. On 19th March, 1991 Kamal Kumar Mitra executed his Last Will and Testament under which he appointed his wife Reba Mitra (since deceased) as executrix and on her death, said Sharad Subramanyan, Subir Kumar Deb and Smriti Kumar Bose (since deceased) would be the executors of his estates. Under the said Will, Kamal Kumar Mitra had given all his movable properties to his wife, Reba Mitra with limited right of life interest therein, that is, the property comprised in premises no. 13/1, Promotesh Barua Sarani hereinafter to be called the ‘said property’ which