KARTICK CHANDRA SHAW Vs. RANJITA PAL

JUDGEMENT

(1.) This rule is directed against an order passed by the District Judge, Midnapore, adding the opposite party No, 8 to contest the Will on the ground that he has acquired by virtue of a deed of agreement executed by two heirs of the testator in respect of the property which the testator left behind (sic). The case of the petitioner in this application is that on 6th Feb., 1973 the petitioner as executor of the Will of late Upendranath Shaw filed an application for grant of the probate of the Will dated 29th Oct., 1969 left by late Upendra Nath Shaw before the District Delegate, namely, the Second Court of the learned Munsif, Contai giving rise to J. Misc. Case No. 13 of 73 but the case having been contested by the opposite parties Nos. 1 and 2, the said application for grant of probate was returned to the petitioner for presentation before the learned District Judge, Midnapore. In the said application for grant of probate it was stated that Upendra Nath died at his residence on 6th Dec., 1971 leaving a Will duly executed by him on 29th Oct., 1969. It is stated that the Will was an outcome of free Will of the testator and was executed and attested in accordance with law. It is further stated that the petitioner herein was appointed executor. In the said application the opposite parties Nos. 1 to 7 were named as near relatives of the testator, opposite parties Nos. 1 and 2 being the two daughters, the opposite party No. 3 being the widow and the opposite parties Nos. 4 to 7 being the other four sons. Initially the opposite parties Nos. 1 and 2, the daughters of the testator contested the application for grant of iprobate on the ground that the testator has no capacity and alleging exercise of fraud, undue influence and coercion on the testator by the legatees. The other heirs of the testator however did not challenge the Will. It is further stated that the opposite parties Nos. 1 and 2 filed application for injunction restraining the petitioner and opposite parties Nos. 3 to 7 from alienating the properties mentioned in the schedule of the application for grant of probate. The said application was contested by the petitioner and other eons of the testator and the learned District Judge rejected the application for temporary injunction. Subsequent to that, the opposite parties Nos. 1 and 2 also filed an application before the Subordinate Judge who was hearing the matter on transfer that they are not going to oppose this application for grant of probate and on such application being filed the learned Subordinate Judge fixed 23rd Sept., 1975 for hearing ex parte the application for grant of probate. On 22nd Sept., 1975 however the opposite party No. 8 filed an application for permission to contest the probate proceeding on the ground that he has acquired an interest by virtue of two deeds of agreements for sale executed in his favour by opposite parties Nos. 1 and 2 on 28th March, 1973 on receipt of Rs. 6,000 agreeing to sell three plots of land with structures standing thereon. It is stated that the premises was occupied by the opposite party No. 2 as a tenant at a monthly rental of Rs. 35. It is further stated that in view of the agreement for sale the opposite party No. 8 has acquired an interest in the estate of the deceased and is entitled to contest the Will for grant of a probate under Section 283 of the Indian Succession Act. It must be stated that the agreement for sale, which is annexed to the affidavit-in-opposition is admittedly an unregistered document the Court below having allowed the application of the opposite party No. 8 to contest the probate proceeding, the petitioner herein moved this application and obtained the present rule.

(2.) Mr. Roy Chowdhury on behalf of the petitioner contended that the agreement for sale cannot and does not create any interest in the immoveable property and the relief by way of specific performance is discretionary to the Court and as such the right does not create any right whatsoever in the estate of the deceased and therefore the application filed by the opposite party for addition of party in the probate proceeding for the purpose of challenging the Will is not maintainable. Secondly Mr. Roy Chowdhury contended that the opposite party No. 8 may have some interest under the agreement for sale but he has no interest in the estate of the deceased at all and as such the application by him is not maintainable. Thirdly it is contended by Mr. Roy Chowdhury that the bare possibility of filing the suit would not give the party concerned an Interest sufficient to oppose the probate of the Will. Mr. Roy Chowdhury further contended that a document, creating an interest in an immoveable property must be registered. An agreement for sale even if registered cannot create an interest in the immoveable property.

(3.) Mr. Roy Chowdhury further contended that the application of opposite party No. 8 is premature because if he has an interest he can after the grant of probate pray for revocation of the grant and the Court has no power to thrust a party on the propounder if he does not want to make (him) a party in the proceeding,