Calcutta High Court (Appellete Side)
Sri Susanta Kumar Jana And Others vs Sasanka Sekhar Jana And Others on 6 August, 2021
6th August,
(AK)
C.O. 354 of 2021
Sri Susanta Kumar Jana and others
Vs.
Sasanka Sekhar Jana and others
(Via video conference)
Mr. Amit Baran Dash
... For the Petitioners.
Mr. Sadananda Ganguli
Mr. Kallol Kumar Maity
...For the Opposite party nos.1 & 2.
Learned counsel appearing for the petitioners
contends that the probate court acted without jurisdiction
in rejecting the petitioners' application for being added as
parties to the probate proceeding, in view of the
petitioners claiming direct interest in a portion of the
bequeathed property by virtue of a purported gift deed
executed by the testator during his lifetime in favour of
the petitioners.
Learned counsel submits that the probate court
erroneously misinterpreted the judgments cited before it
and came to the conclusion that the interest of the
petitioners is adverse to the testator.
On the other hand, it is contended that the
petitioners only claim through the testator by way of a
deed of gift and, as such, have direct interest in the
property-in-dispute.
Learned counsel cites a Division Bench judgment of
this court reported at 86 C.W.N 783 [Golok Chandra Bera
vs. Golapi Bewa and others] as well as the judgments of
the Supreme Court, including Krishna Kumar Birla vs.
Rajendra Singh Lodha and others, reported at (2008) 4
SCC 300 and G. Gopal vs. C. Baskar and others, reported
at (2008) 10 SCC 489, in support of the proposition that
even a person having a slight interest in the estate of a
testator has a caveatable interest and can be impleaded
as a party to the probate proceeding.
Learned counsel next relies on a Division Bench
judgment of this court, reported at 2008 (1) CHN 563
[Jagdish Prasad Tulshan, since deceased, Saroj Agarwalla
vs. Malati Tulshan] in support of the proposition that a
person establishing prima facie interest in the estate of
the testator should be permitted to contest the claim and
the conclusive proof of such interest is not necessary.
Even if the testator had given some benefit to a
third party who is otherwise not an heir according to
intestate succession, does not confer any right upon such
a third-party to lodge a caveat in the matter, unless he
claims interest in the estate of the deceased otherwise
than by way of the Will sought to be probated.
Learned counsel appearing for the opposite party
nos. 1 and 2 controverts the petitioners' contentions and
submits that the petitioners, as rightly held by the
probate court, claim an interest adverse to that of the
testator and are not necessary parties to the probate
proceeding, since they do not have any caveatable
interest.
It is further contended that, in the present case, the
petitioners have staked claim to a portion of the property,
which is the subject-matter of the Will, by dint of a
purported gift deed executed by the testator, which claim
is not in support of the probate proceeding but is rather
an independent claim of title.
Upon a perusal of the materials annexed to the
revisional application, it is clear that the claim of the
petitioners is based on their alleged title on the basis of a
gift deed allegedly executed by the testator prior to his
demise. Hence the following propositions can be inferred.
First, the petitioners merely claim independent title
to the suit property, which cannot be decided by a
probate court, since it is entirely within the domain of a
regular civil court to decide such an issue.
Secondly, insofar as the execution of the Will and
grant of a probate is concerned, the petitioners' claim is
squarely adverse to that of the testator inasmuch as the
petitioners' contention signifies that the testator did not
have title in a portion of the suit property at the time of
his demise, since a gift deed was executed in their favour.
It may also be noted that the petitioners claim a
minuscule share in the suit property by virtue of the
purported gift deed.
As such, in any event, the petitioners do not have
even the slightest caveatable interest for the purpose of
being impleaded in a probate proceeding.
It is well-settled that the limited scope of
examination of a probate court is to enquire into the
validity of the execution of the Will and whether the
provisions of the Indian Succession Act were complied
with in executing the Will and also during grant of a
probate.
Such being the restricted conspectus of the probate
court, the petitioners' claim of title regarding a portion of
the property-in-dispute does not entitle the petitioners to
be impleaded in the probate proceeding, either as
necessary or proper parties.
Hence, the revisional application fails.
Accordingly, C.O. No.354 of 2021 is dismissed on
contest, thereby affirming Order No.38 date January 18,
2021 passed by the Additional District and Sessions
Judge, Second Court at Contai in Other Suit No. 08 of
2016.
There will be no order as to costs.
Urgent website certified copies of this order, if
applied for, be given to the parties upon compliance of all
necessary formalities.
(Sabyasachi Bhattacharyya, J.)
