KANAI LAL ROY Vs. ROY SWARASWATI

JUDGEMENT

(1.) This appeal is at the instance of the contesting defendant and is directed against the impugned judgment and order dated 04.11.1999 passed by a Division Bench of the High Court Division in the First Appeal (Probate) No. 246 of 1996, allowing the appeal on compromise and granting probate upon the disputed will and thereby setting aside the judgment and order dated 20.05.1996 passed by the Additional District Judge, 1st Court, Barisal in Probate Case No. 02 of 1992, refusing to grant probate of the last will of Trailakha Nath Roy made in favour of the respondent No. 1, Swarashati Roy wife of him.

(2.) Facts in this case, in short, are that Trailakha Nath Roy was the husband of the respondent No.1 Swarashati Roy. Swarashati Roy and her son Bolai Roy used to look after the property of the said testator, Trailakha Nath Roy during his old age till his death. Trailakha Nath Roy made a will on 25.5.1990 and he died on 12.01.1991. Swarashati Roy was named as the executrix in the said will. Swarshati Roy and her son Bolai Roy filed Probate Case No. 2 of 1992 in the Court of the District Delegate Judge who is also the Additional District Judge, Barisal who refused to grant probate by his judgment and order dated 20.05.1996 upon the said will on contest by the parties in that case.

(3.) Against the said judgment and order of the District Delegate Judge First Appeal No. 246 of 1996 was filed, before the High Court Division by the present appellant who was contesting in the said probate case, In the High Court Division, the parties filed a compromise petition in the said First Appeal, and the High Court Division granted the probate as was prayed for, by the compromise petition and in the terms of the compromise. It is noticed that the appellant herein contested in the probate case in the original Court contending inter alia that the will itself was not genuine and it was a forged and fabricated one created by the respondent No.1. Swarashati Roy. Respondent No.1 and her son Bolai Roy, the respondent No. 2 after death of the said testator of the will. Upon haring the parties the trial court refused granting of probate by its judgment and order dated 04.11.1999. But in the compromise petition before the High Court Division on 18.11.1999 it was stated that the parties being relatives, on the advice of their common relatives and according to the instruction of their common well wishers the parties have compromised the matter out side the court and the parties would not contest the appeal before the High Court Division. In the compromise petition prayer was made to allow the appeal and to grant probate upon the said will and accordingly the compromise petition was accepted by the High Court Division and the First Appeal (Probate) No. 246 of 1996 was allowed on 30.11.1999 making the terms and conditions of the compromise petition as part of the judgment and order and thereby it set aside the judgment and order of the trial Court who refused to grant Probate and in terms of compromise the Probate was granted by the High Court division in favour of said Swarashati Roy, the executrix of the will, respondent No. 1.