Kiran Singh vs Arun Kumar Roy & Ors.

The present application under Article 227 of the Constitution of India is at the instance of a purchaser of a property at Deoghar, which forms part of

the estate of Kamala Prasad Roy (since deceased). The said Kamala Prasad Roy (since deceased) had left a Will. One Dilip Kumr Roy (also since

deceased), being the executor, had applied for probate of the Will. Subsequently the said Dilip Kumar Roy having died, his heirs and other heirs of the

testator were impleaded in the suit.

Thereafter, the suit was directed to be converted into an application for Letter of Administration. Upto this juncture, the matter was pending before

this Court. However, subsequently it was discovered that this Court had no territorial jurisdiction but the City Civil Court at Calcutta had. As such, the

matter was sent to the City Civil Court at Calcutta, where it is now pending. Thereafter, several applications were filed in connection with the said

probate case, bearing Probate Case No. 25 of 2015.

One of such applications was filed by the present petitioner, who is a subsequent purchaser from the executor, who was also the legatee of the said

estate, for being added as a party to the probate proceeding. There were two other applications, one for recalling of the compromise between the

parties to the probate proceeding and another for conversion of the said proceeding to one for Letters of Administration. On a prior occasion, all such

applications were shifted back, behind the back of the present petitioner, and had been disposed of.

The present petitioner having applied for recall, such prayer was allowed and the applications were restored to their original files. However, again

such act was repeated and all the applications were shifted back to an earlier date on the prayer of the other parties to the litigation, behind the back

of the present petitioner. In fact, the probate case was itself disposed of in terms of the compromise petition filed by the parties, other than the present

petitioner.

The petitioner then having filed an application for recalling of such order, which was passed behind the petitioner’s back, the said application was

dismissed by the impugned order dated February 16, 2018. Being thus aggrieved, the petitioner has preferred the present revisional application. There

prima facie appears to be substance in the contention of the petitioner that the applications could not be disposed of in the absence of the petitioner

and without any notice to the petitioner.

More, there may be some doubt as to whether a probate case, which culminates in a judgment in rem, could be compromised in the manner as done.

The present revision requires hearing on such point. Accordingly, the petitioner is directed to serve copies of C.O. No. 807 of 2018 on the opposite

parties with intimation to the opposite parties that the matter will next appear in the monthly list of June, 2018 for hearing.

The opposite parties are restrained from giving effect to the order dated December 20, 2017, passed by the Chief Judge, City Civil Court at Calcutta in

Probate Case No. 25 of 2015, whereby the said probate case was permitted to be withdrawn, till July 15, 2018 or until further orders, whichever is

earlier. Petitioner will file an affidavit of service on the next date of hearing.