Judgment:
IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE The Hon’ble JUSTICE SANJIB BANERJEE And The Hon’ble JUSTICE SIDDHARTHA CHATTOPADHYAY GA No.1709 of 2016 With APO No.163 of 2017 In TS No.3 of 2007 SUDHINDRA NATH MONDAL (DEC.) AND ANANDAROOP BERA AND ANOTHER -VERSUSSOMNATH MONDAL For the Appellants: Mr Malay Kumar Ghosh, Sr Adv., Mr Debnath Ghosh, Adv., Mr C. S. Banerjee, Adv., Mr Sarosij Dasgupta, Adv., Mr Avijit Dey, Adv. For the Respondent: Mr Dhrubo Ghosh, Sr Adv., Mr Sarathi Dasgupta, Adv., Mr Saumavo Basu, Adv., Mr Suman Kumar Dutt, Adv., Mr Arnab Dutt, Adv. Hearing concluded on: June 29, 2017. Date: July 5, 2017. SANJIB BANERJEE, J.
: – This appeal and the considerable time spent in court over it, it must be confessed bluntly, is as a result of the mess created by the court in the two orders that have been cited by the appellants to claim an undeserving benefit. The matter pertains to a Will and before the facts are noticed and any attempt is made to extricate the matter from the mess, the practice in this court or how the jurisdiction in this field is exercised here needs to be narrated in brief.
2. Upon a petition for the grant of probate or for the issuance of letters of administration with Will being received, there is an initial scrutiny which is conducted by the department. This exercise involves the careful checking of the papers and the averments in the petition, to ascertain whether at least one attesting witness’ affidavit-in-support is presented by the propounder, whether the affidavit of assets tallies with the contents of the petition and the bequests in the Will and the like. After the scrutiny and the resultant corrections, if any, the matter is placed before the judge taking interlocutory matters in the judge’s chambers for an initial direction for service of citations – general and special. In cases where all the heirs of the testator consent to the grant, the special citations may be dispensed with and the matter may immediately progress to the grant. A grant in such manner, where the formal proof of the execution of the Will by way of oral evidence is not insisted upon, is regarded as a grant in common form.
3. However, there is no binding rule that a grant must be made in common form even in situations where all the possible heirs consent to the grant; for the judge may still require the Will to be proved in solemn form notwithstanding the propounder appending consent affidavits of the other heirs and the supporting affidavit of at least one attesting witness.
4. As to the objection to a grant, a caveat may be lodged without even there being any petition for grant of probate or a caveat may be lodged before the receipt of the citation by a person interested in the estate of a deceased, where, upon the petition for probate (or for issuance of letters of administration with Will) being lodged and an intimation in such regard being received by the caveator, an affidavit in support of the caveat needs to be filed within a specified time. Whenever there is an objection, the matter partakes the character of a contentious cause, particularly upon an affidavit in support of the caveat being filed. In the resultant testamentary suit, the petition for the grant of probate (or the issuance of letters of administration with Will) is treated as the plaint and the affidavit in support of the caveat as the written statement. In such a situation a fullfledged trial follows, where the primary – and perhaps, the only – consideration is whether the Will was executed in accordance with law by the alleged testator upon such person being in a fit state of mind and health to execute the document.
5. It is not as if when a matter of grant is not contested or is non-contentious, so to say, that the court (read, the interlocutory judge) does not apply its mind. But the general practice is that if all the heirs of the alleged testator consent to the grant or do not object thereto, the grant is made upon the court noticing due compliance with the formalities, without the court requiring formal proof of the execution of the Will. This is because under Section 263 of the Succession Act, 1925, any person interested in the estate of the alleged testator, if aggrieved by the grant, is entitled to apply and obtain revocation thereof. It is the further practice in this court, as noticed and recognised in the judgment reported at (2017) 1 CHN (Cal) 106 [In the goods of: Nand Bherumal Advani Alias Nandu Advani (deceased)]., that when an application for revocation is received, the court, upon prima facie satisfaction of any ground of revocation having been made out, may require the Will to be proved in course of hearing the application for revocation of grant and render a judgment thereafter. Such procedure abridges the more protracted form of revoking the grant and setting the matter down as a contentious cause for it to be decided at a later stage.
6. So much for the procedure adopted in both non-contentious and contentious testamentary matters in this court, to the extent relevant for the matter at hand.
7. The petition for grant of probate in this case was received on or about February 23, 2001. The Will was propounded by a son of the testator. A daughter of the testator lodged a caveat upon being specially cited and by August, 2001 the matter had turned contentious with the affidavit in support of the caveat being lodged. An agreement was arrived at, in May, 2008, between the brother and the heirs of the sister upon the sister’s death, which was reduced to the form of a document of consent. The terms of settlement executed by the propounder and the caveator were presented in court, whereupon the following remarkable order came to be made on December 17, 2008: “The Court: In terms of the Terms of Settlement filed in Court let probate be granted. Leave is granted to the applicant to file the Vakalatnama in the department. Department and all parties concerned are to act on a xerox signed copy of this order on the usual undertakings.”
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8. The formal grant followed in due course on September 3, 2009. By then, however, an application for revocation of the grant was filed by two persons claiming interest in the estate. Such application was dealt with and disposed of by the following, equally remarkable, order of June 17, 2010: “This application is taken out by one Sanjay Kumar Sharma and Sudha Sharma for revocation of grant of probate in respect of the last Will and Testament of one Sudhindra Nath Mondal, since deceased. It is stated that by an agreement the executor and beneficiary agreed to and did create tenancy right in favour of Mr. Ghosh’s client in respect of the first floor of the building and premises being EC-31 at Salt Lake City. Then again by written agreement dated 6th April, 2001 the executor/beneficiary agreed to assign for valuable consideration of the said tenanted portion of the petitioner. According to him, by consent of the parties, the probate has been obtained and in terms of settlement recorded in the court the plaintiff as well as the caveator has settled their disputes as well as settled the property in question intending to deprive the right, title and interest of Mr. Ghosh’s client. Under such circumstances, I think that Mr. Ghosh’s client has got locus to make this application since the way the probate has been granted has obviously affected his client’s interest. A copy of the grant has been produced before me and Mr. Chowdhury, learned advocate appearing for the propounder plaintiff very fairly submits that the probate has been granted based on the terms of settlement and such terms of settlement has been made part of the grant. He also fairly states the position of law in this regard, as probate cannot be granted by consent of the parties or on any terms of settlement. The learned counsel for the caveator cannot dispute the above proposition. As from the grand it appears that the probate has been granted on the basis of the terms of settlement arrived at and by consent, therefore this grant is defective in form. Accordingly, by consent of the parties, I revoke the same. I have gone through the contents of the Will as well as the documents and the affidavit affirmed by one of the attesting witnesses, who has proved the Will, and since the caveator does not want to contest the grand, fresh grant of probate is required to be issued. Accordingly, matter may be placed before appropriate Bench. Mr. Chowdhury, learned counsel and Mr. M.S Saha Roy, learned counsel, submit that they have settled their dispute outside the court by entering into an agreement containing the terms of settlement. I merely record the aforesaid dispute has been resolved in accordance with the terms of settlement which has been filed earlier. I make it clear that the aforesaid terms of settlement will be binding on the propounder and the caveator and none else. In view of this situation, I clarify that Mr. Chosh’s client’s right, title and interest is not affected by the agreement between the executor/plaintiff and the caveator. It would be open for Mr. Ghosh’s client to take steps in accordance with law, as may be advised. Let a copy of the grant of the probate be kept on record. Department is directed to draw up fresh grant as early as possible. The application is disposed of accordingly. All parties concerned are to act on a singed photocopy of this order on the usual undertakings.”
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9. As is evident from such order, it was held that since the probate was granted on the basis of the terms of settlement, the grant was defective. Indeed, it was non est. The grant was, therefore, revoked with the observation that a fresh grant would be necessary and the matter was directed to be placed before the appropriate bench. However, the terms of settlement were found to be “binding on the propounder and the caveator and none else.”
. To clarify the position, the order recorded that the applicants for the revocation of the grant would not be affected by the terms of settlement executed by the propounder and the caveator. Two of the sentences contained thereafter in the order of June 17, 2010 have been harped upon by the appellants and the second of such sentences makes little sense in the context of what precedes it in the relevant order: “Department is directed to draw up fresh grant as early as possible.”
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10. The appellants are the son and daughter, respectively, of the now deceased daughter of the testator who had lodged the caveat. The appellants had executed the terms of settlement which were taken on record by the order dated December 17, 2008.
11. The appellants refer to the principle enunciated in the famous judgment reported at AIR1961Cal 359 (A. E. G. Carapiet v. A. Y. Derderian), particularly that a grant of probate cannot be made by the consent of parties as it is the duty of the court to satisfy itself whether the Will proposed was truly the Will of a capable testator or not. It may be profitable to notice the following passage from paragraph 28 of the report:
“28. …. A Court of Probate is said to be a Court of Conscience which is not to be influenced by private arrangements of the parties. Either it grants probate to a Will or it rejects such grant. For such a court, it is said, there is no middle path for a happy compromise. The rule of law is stated to be that there can be no probate by consent. Either it is grant or refusal. The Court has to be satisfied in each case whether the Will proposed is truly the Will of a capable testator or not. It is not concerned with any other arrangement. It has been said over and over again that there is no such thing as conditional probate or an amended probate. In is either all or nothing. That seems to be sensible enough law.”
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12. The appellants have also referred to a judgment reported at 12 Cal LJ91(Saroda Kanto Dass v. Gobindo Mohan Das) for the proposition that an agreement or compromise as regards the genuineness or execution of a Will cannot be regarded as a lawful agreement within the meaning of such expression in Order XXIII Rule 3 of the Code of Civil Procedure, 1908.
13. Two aspects of the matter are of paramount significance: in the consent terms admittedly executed by the appellants herein recording that they “withdraw the Affidavit in support in (sic, of) Caveat filed by them and confirm that they shall not contest the Probate of the Will …”.; and, the appellants being parties to the application for revocation of the grant and being represented at the hearing thereof as recorded in the order dated June 17, 2010, but not preferring an appeal therefrom.
14. Upon the appellants herein voluntarily relinquishing their right to contest the genuineness or the veracity of the Will or its execution as evident from the unequivocal words in the first clause of the consent terms taken on record by the order dated December 17, 2008, the appellants waived whatever objection they may have had to the grant of probate of the Will and the challenge that was abandoned cannot be wished away nor the challenge resurrected in any manner or form. To boot, the order of June 17, 2010 emphasised that the consent terms were binding on the propounder and the caveator though it would be of no effect qua any other person interested in the estate of the testator. Such observation in the order, made in proceedings to which the appellants herein were parties and were also represented, completely sealed their fate, particularly in the wake of such order not being questioned by the appellants.
15. The clear words of the first clause of the terms of settlement do not permit the appellants herein to question the veracity of the Will, whether as to its execution or as to its contents. Whatever may have been the arrangement arrived at by the appellants with the propounder, that would not affect the unconditional and voluntary relinquishment by the appellants of their right to contest the Will or the grant of probate in respect thereof. The legal effect of the abandonment of the challenge is that the appellants can no longer have any manner of interest in respect of the Will, the grant of probate in respect thereof or even the lack of it.
16. The position as of now is that it is not necessary to go into any issue regarding the Will, or its veracity or the grant or the lack of it to be looked into at the behest of the appellants. If proceedings are brought, raising the same issues as have been attempted to by the appellants, by any other demonstrating the slightest of interest in the estate of deceased, the court will be called upon to address the same and extricate itself from the mess of its own creation. But these appellants do not require to be given any answer as they are precluded from raising any question in respect of the Will or the grant of probate in respect thereof or the lack of it.
17. As a consequence, the appeal and the application therein, APO No.163 of 2017 and GA No.1709 of 2016, fail and the order impugned dated September 16, 2015, insofar as it dismisses the application of the appellants, is affirmed. The appellants will pay costs assessed at Rs.50,000/- to the West Bengal State Legal Services Authority within a fortnight from date.
18. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (Sanjib Banerjee, J.) I agree. (Siddhartha Chattopadhyay, J.)