Amitabh Kejriwal vs Raj Kumari Kejriwal And Anr

Debangsu Basak, J

The Court : This is an application under Clause 13 of the Letters Patent, 1865 for transfer of a Probate Case No.265 of 2018 filed by the respondent no.1 before the District Delegate at Alipore to this Hon'ble Court for trial.

Learned advocate appearing for the petitioner submits that, the petitioner is the elder son of the deceased. The respondent no.1 is the mother of the petitioner and the widow of the deceased. The respondent no.1 filed an application being PLA No.318 of 2013 before this Hon'ble Court in respect of the goods of the deceased. Such PLA No.318 of 2013 was subsequently converted into a testamentary suit being Testamentary Suit No.11 of 2014 as the probate proceeding was contested. In the testamentary suit, the petitioner applied for removal of the executor being the respondent no.1. In such application, an order dated March 16, 2017 was passed which permitted the petitioner to proceed with the testamentary suit since the respondent no.1 was not proceeding therewith. On appeal, the Division Bench by the order dated October 31, 2017 allowed the petitioner to proceed with the testamentary suit in the event the respondent no.1 was not proceeding therewith. The petitioner thereafter came to learn that the respondent no.1 filed an application for grant of a probate of a Will which is said to be later than the Will in respect of which the testamentary suit is pending before this Hon'ble Court. He submits that the later Will was put into place for the purpose of denying the valuable rights of the petitioner. In any event, the proceedings in the two fora will lead to conflict in judicial decisions. The defence of the respondent no.1 in the testamentary suit will be grounds in the subsequent probate proceedings. Therefore, according to him, the subsequent probate proceedings should be transferred to this Hon'ble Court and Alipore Court being more consistent to authorise for expeditious disposal.

Learned advocate appearing for the respondent no.1 submits that, the respondent no.1 was appointed as the executor in both the Wills. Subsequent to the filing of the probate petition before this Hon'ble Court, the respondent no.1 as the executor came to learn about the subsequent Will of the deceased. Consequently, the respondent no.1 applied before the District Delegate at Alipore for grant of probate of such Will. He submits that, the same was done so in view of the expenses involved in proceedings in the High Court. Moreover, he draws the attention of the Court to the directions issued by the Division Bench in the order dated October 31, 2017. He submits that the petitioner was granted liberty to mention the testamentary suit for early disposal. The petitioner did not do so. Consequently, according to him, the petitioner is not entitled to any relief.

The parties herein claim that the deceased died testate. The parties claim that the Will of the deceased in respect of which the probate proceeding was initiated before this Hon'ble Court was registered. The petitioner is the eldest son of the deceased. The respondent no.1 is the widow of the deceased. The respondent no.2 is the younger son of the deceased. The respondent no.1 applied for grant of probate of the Will of the deceased dated July 18, 2007 before this Hon'ble Court which was initially registered as PLA No.318 of 2013. The probate proceeding was contested. Such probate proceeding was converted to a testamentary suit and Testamentary Suit no. 11 of 2014 was allotted in respect of such Will. Subsequent to the probate proceedings becoming contested, the petitioner herein applied for seeking leave to carry the probate proceeding and pursue the petition for grant of probate as one for letters of administration with the Will annexed since the respondent no. 1 was not proceeding with the probate. Such application, being GA 1195 of 2015 was disposed of on March 16, 2017 by granting such leave to the petitioner. The respondent no. 1 preferred an appeal therefrom. Such appeal, being APO 436 of 2017 was disposed of by an order dated October 31, 2017. The operative portion of the order dated October 31, 2017 is as follows :

"Accordingly, the order impugned dated March 16, 2017 insofar as it gives the carriage of proceedings in Testamentary Suit No. 11 of 2014 to the respondent no. 1 herein is set aside and the appellant is requested to take immediate appropriate steps for the prosecution of the matter with due diligence. It is made clear that in the event either the appellant or the first respondent mentions the matter before the appropriate Bench, the appropriate Bench would post the matter on a date convenient to it. It is also made clear that if further lack of interest is shown by the appellant herein to proceed with the matter, it will be open to the first respondent to apply again on the same basis notwithstanding the present order."

Subsequent to such order dated October 31, 2017, the respondent no. 1 applied before the District Delegate at Alipore being Probate Case No. 265 of 2018. The respondent no. 1 claims that there is a later Will of the deceased dated May 10, 2013.

There are therefore two Wills of the deceased. The first Will is registered and the same is the subject matter of Testamentary Suit No. 11 of 2014. The petitioner herein has a right to carry on such proceeding pursuant to the order of the Division Bench dated October 31, 2017, in the event the respondent no. 1 does not proceed with the same. The petitioner has applied by way of GA 1676 of 2019 to proceed with Testamentary Suit No. 11 of 2014.

The respondent no. 1 having filed a separate probate proceeding in respect of the second Will of the deceased, the respondent no. 1 is unlikely proceeded with Testamentary Suit No. 11 of 2014. The second probate proceeding, being Probate Case no. 265 of 2018 pending before the learned District Delegate at Alipore if left pending at such forum, is likely to give rise to conflict in judicial decisions.

In such circumstances, it would be appropriate to transfer the Probate Case No. 265 of 2018 pending before the learned District Delegate at Alipore to this Hon'ble Court for trial. There will be an order in terms of prayer (a) of the petition with the Rule in terms of prayer (a) being made absolute since the parties were heard for completion of affidavits.

ALP 11 of 2019 is disposed of accordingly without any order as to costs.