Md. Ruhul Amin J
Syed JR Mudassir Husain J
Abu Sayeed Ahammed J
Kanai Lal Roy………………Appellant
Roy Swaraswati and ors…………….Respondents
August 17, 2002.
M. K. Rahman, Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record-For the Appellants.
Abdul Baset Majumder, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For Respondent No. 1.
Ex-Parte–Respondent Nos. 2-4.
Civil Appeal No.151 of 1995.
(From judgment and order dated 04.11.1999 passed by the High Court Division in Appeal from Original decree (F.A) Probate No. 246 of 1999).
Abu Sayeed Ahammed J.- 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.
4. Against the judgment and order of the High Court Division granting Probate on compromise said Kanai Lal Roy has filed the leave petition No. 267 of 2000 and obtained the order of granting leave in this appeal to consider the grievance of the petitioner whether the High Court division has jurisdiction to grant the Probate merely on the consent of the parties without the will being proved in accordance with law.
5. It is noticed that the appellant filed in application before the High Court Division for vacating the order of granting probate on compromise stating inter alia that in filing the petition of compromise in the High Court Division, fraud was practiced upon him and also it has been alleged that the lawyer of Kanai Lai, the appellant Mr. M. K. Rahman did not take his consent in submitting the compromise petition. The High Court Division did not lend any importance to the said application and the learned Judges of the High Court Division finding inter alia that the allegation of fraud was concocted one rejected the application for vacating the order of granting the probate and the High Court division further found that the parties voluntarily consented to the terms and conditions of the compromise petition and the High Court Division did not allow the allegation of restoration of the appeal to is its file and number upon vacating its earlier order dated 9.11.1999 granting probate.
6. We have hear the learned Counsels of both parties and upon considering the facts and circumstances of the case and the impugned judgment and order of the High Court Division, we are of the view is that although there is a will but unless and until it is proved in accordance with law, on the face of objection raised by any interested party (herein the appellant) a Probate cannot be granted on compromise and it is not permitted by law.
7. For the reasons and discussions made above, we find merits in the appeal and accordingly the appeal is allowed. The impugned judgment and order of the High Court Division is set aside and order of granting probate on compromise is set aside and it is cancelled. The probate case, however, is sent back to the original court, for hearing the same afresh in accordance with law by giving opportunity to the concerned party to produce the will itself in question and prove it by adducing evidence.
No order as to costs.
Source : 1 ADC (2004) 399