JUDGMENT AND ORDER (ORAL)

Date : 23-11-2021 Heard Mr. J. Ahmed, learned counsel appearing for the Petitioner and Mr. A.C. Sarma, learned senior counsel assisted by Mr. G. Bharadwaj appearing on behalf of the Respondent Nos. 1 & 3.

2. This petition under Article 227 Of the Constitution of India is filed challenging the order dated 07/03/2020 passed by the Munsiff No. 2, Barpeta in Misc.(J) Case No. 205/2019 arising out of Title Suit No. 108/2019, whereby the suit has been stayed till the disposal of Misc.

(Probate) Case No. 2/2019 pending before the District Judge, Barpeta.

3. The brief facts of the case is that the Respondent No. 1 filed an application seeking probate in respect to a Will dated 19/04/2013 of one Lt. Kironmoyee Das before the District Judge, Barpeta. In the said application seeking probate, it has been specifically mentioned that Lt. Monoranjan Das gifted the said plot of land described in Schedule-A in favour of his wife Lt. Kiranmoyee Das by execution of a registered Gift Deed No. 2678/94 dated 31/08/1994. It is also the specific case of the Respondent No. 1 that Lt. Kironmoyee Das during her life time had sold a part of Schedule A land to one Raju Bhagawati vide the registered Sale Deed No. 499/2011 dated 08/03/2011. After the said sale Lt. Kiron Moyee Das had 1 Katha 10 Lechas of land with her residential house standing thereon, which was specifically described to the application seeking probate and by executing a Will on 19/04/2013 Lt. Kiron Moyee Das bequeathed the said Schedule B land with the standing house thereon in favour of Smt. Rupyoti Das, who was the daughter of the testatrix. The said probate proceeding has been registered and numbered as Misc. (Probate) Case No. 2/2019 and the same was filed on 6th of May, 2019.

4. The petitioner appeared in the said probate proceedings upon receipt of notice and filed his written objection wherein while denying the contents of the petition seeking probate, he stated that he had no knowledge about the execution of the Gift Deed No. 2678 dated 31/08/1994 as well as the Will bearing Deed No. 5-3 under Sl. No. 1525 dated 09/06/2009 and he came to learn about the same only when he received the summons in respect to Misc. (Probate) Case No. 2/2019. He further stated that he also came to know about the registered Deed No. 499/2009 dated 08/03/2011 executed in favour of Raju Baghawati when he received the summons as well as also the unregistered Will dated 19/04/2013. On the basis of the averments made in the written objection the petitioner who was the respondent No. 2 in Misc. (Probate) Case No. 2/2019 sought for rejection of the Probate suit. At this stage, it may be relevant to mention that prior to filing of the written objection by the petitioner in the Probate proceedings, he instituted a suit being Title Suit No. 108/2019 before the Court of Munsiff No. 1, Barpeta. In the said suit, i.e. Title Suit No. 108/2019, the petitioner as plaintiff sought for the following reliefs, which for the sake of convenience is quoted herein below :-

“ A. To declare that the plaintiff have right, title and interest over the “B” Schedule land out of “A” Schedule land of the plaintiff on the other hand the main defendant No. 1 have right, title and interest over the “c” Schedule land.

Out of “A” schedule land of the plaint.

B. To declare that the defendant have no legal right, title and interest and possession over the “B” schedule land by illegal dispossession of the plaintiff from the suit land.

C. To decree of evicting the defendants from the “B” schedule suit land and deliver khas possession of the suit land in favour of the plaintiffs.

D. Decree for declaration that the Regd. Gift Deed No. 2678/94 dated on

31.08.1994, Regd. Will No. 5-3 under serial No. 1525 dated on 09.06.2009 and regd. Sale Deed No. 499/2011 dated 08.03.2011 and un Regd. will dated on

19.04.2013 are illegal, in operative null and void hence said gift deed, will’s and sale deed are liable to be cancelled and accordingl