RATAN KUMAR SHARMA Vs. JAGDISH MULCHANDANI

JUDGEMENT

(1.) The background facts leading to this situation is that by an order dated 2nd May, 2017 the proceedings was treated as contentious cause and it was numbered and registered as Testamentary Suit No. 12 of 2017. It is contended that with the consent of the friends and well wishers of the petitioners, parties have mutually settled their disputes and differences and have agreed to grant of probate of the Will in terms of Memorandum of the Understanding dated 2nd April, 2018 as annexure marked with letter "B". It has been mutually agreed in Terms of the Memorandum of Understanding that the four surviving sons of the Testator would accept their respective share, right, title and interest in respect of the property at H-2, Block H, also known as 12, Bankim Mukherjee Sarani, New Alipore, Kolkata 700053 in the ratio that Shri Bhimandas Mulchandani, Shri Jagdish Mulchandani, Dr. Rajesh Mulchandani, and Shri Naresh Mulchandani would have 30%, 18%, 26% and 26% share therein respectively. However, daughters of the testator have not claimed any share in the property.

(2.) In view of said terms of settlement, petitioners have prayed for grant of probate of last Will and Testament dated 21st April, 2009 of the deceased Narayandas Mulchandani that the Memo of undertaking as an attachment. It would appear from the order dated 8th May, 2018 that the contentious cause was to be disposed of by Memorandum of Settlement arrived between the parties with the said ratio of share in the property left by the testator, however, this Court understands from the observation in the last paragraph at page 9 of the said order that although the grant of probate is not opposed by the caveator as all the objections are withdrawn by the caveator and the caveat was discharged, nevertheless, the Will has to be proved in solemn form as the conscience of the Court as to the genuineness of the Will has to be cleared in the event the Will is proved in solemn form, the terms contained in the Memorandum of Settlement shall form part of the order.

(3.) It is submitted by Mrs. A. Rao, learned Counsel for the plaintiff that since parties to the suit have entered into Memorandum of Understanding in the terms of settlement, the case becomes, contentious cause and there is no impediment in law in granting probate of the Will as the testament of the testator in terms of mutual understanding between the parties and the Memorandum of Settlement dated 2nd April, 2018 as an attachment.