Full Judgment
ORDER
SHEET GA No.2705 of 2013 PLA No.292 of 2012 IN THE HIGH COURT AT CALCUTTA Testamentary and Intestate Jurisdiction ORIGINAL SIDE IN THE GOODS OF : JIBENDRA NATH BISWAS (DEC) AND IN THE MATTER OF : SMT.
LAGNAJITA SAHA AND SWADESH GHOSH & ORS.BEFORE: The Hon'ble JUSTICE PATHERYA Date :
10. h September, 2013.
Mr.Mr.Mr.Mr.Mr.Mr.Mr.S.K.Kapoor, Sr.Adv.Arindam Sinha, Adv.Suman Dutt, Adv.Sukrit Mukherjee, Adv.Soumabho Ghose, Adv.D.Mukherjee, Adv.S.Abedin, Adv.…for the petitioner The Court : This application has been filed for revocation of grant of probate to the estate of Jibendra Nath Biswas.
Jibendra Nath Biswas died on 5th November, 1991 leaving behind surviving his widow and two sons.
In October, 2012 PLA 29.of 2012 was filed for grant of probate of the last will and testament of the testator dated 4th November, 1991.
The said application for grant was filed by the respondent No.2 and the beneficiary thereunder is the respondent No.1.
Consent affidavits were executed by the respondent Nos.5 to 7 and on basis thereof on 7th January, 2013 probate has been granted.
It is only after filing of title suit No.204 of 2013 before the Sealdah Court that the petitioner has come to know of the grant of probate in favour of the respondent No.1.
On search being made the petitioner came to know that the Title Suit has been filed against its security guards.
The will which is dated 4th November, 1991 and is just one day before the demise of the testator is a doubtful document.
The said document could not have been executed as prior to June, 2003 an agreement of tenancy was entered into between the applicant herein and legal heirs and representatives of the alleged testator.
The petitioner has been in possession of the said premises and is carrying on construction thereat.
By obtaining the said probate the respondents have sought to nullify the rights of the petitioner herein.
Hence the instant application has been filed and order sought.
No notice of this application has been served on the respondents as the petitioner apprehends steps being taken prejudicial to its interest.
Having considered the facts of this case the agreement of 2003 is between the legal heirs and representatives of Jibendra Nath Biswas and the petitioner herein by which a tenancy was created in favour of the petitioner.
On the same date an agreement of assignment was also entered into between the same parties.
The agreement for construction or reconstruction was also entered into on the same date and it is pursuant to this agreement that the petitioner has started construction on the said premises.
Therefore the said premises is in the possession of the petitioner since 2003.
The respondent Nos.1 and 2 while alleging execution of a will by the deceased testator are seeking to deprive the petitioner herein prima facie of its right under the said agreement without cancellation thereof by the respondent Nos.5 to 7.
By virtue of the probate granted the rights of the petitioner herein will be nullified.
Accordingly, there will be an order of injunction restraining the respondents from giving any effect and/or further effect to the probate granted on 7th January, 2013 in PLA 29.of 2012 till 20th September, 2013.
Matter is made returnable on 18th September, 2013.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(PATHERYA, J.) TR/