Prasenjit Mandal, J. - (1.) CHALLENGE is to the order no.49 dated September 21, 2005 passed by the learned Additional District Judge, First Court, Siliguri in Other Suit No.7 of 2000 arising out of the Misc. Judicial Probate Case No.42 of 1997.
(2.) THE short fact is that the opposite party no.1 herein filed an application under Section 276 of the Indian Succession Act praying for grant of probate of a Will of late Nilima Sengupta, wife of late Nripendra Bhusan Sengupta. That application is being contested and as such it was converted into the Other Suit No.7 of 2000. Several litigations are pending between the parties. Ultimately, the parties settled the disputes. They even filed a compromise application under Order 23 Rule 3 of the C.P.C. in respect of the Other Suit No.7 of 2000. That application filed by the petitioners was rejected by the impugned order. Being aggrieved, this application has been preferred. The question is whether the learned Trial Judge was justified in rejecting the application under Order 23 Rule 3 of the C.P.C. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that this revisional application arose out of a probate matter. There were several suits/cases between the parties and they arrived at a compromise and as such, the petitioners prayed for disposal of the suit being Other Suit No.7 of 2000 on compromise. Now, the question is whether a probate application could be compromised in such a fashion. The probate proceeding either should be allowed or rejected depending upon the evidence to be tendered by the parties. If the party praying for probate fails to adduce evidence in support of the due execution of the Will, the probate proceeding is bound to fail. On the other hand, if the applicant succeeds in proving the due execution of the Will, he will succeed in getting a probate in respect of the Will. If the Will is proved duly, then probate should be granted. Thereafter, compromise in respect of the properties mentioned in the Will may be effected. So, unless and until, the matter of probate is decided finally, the question of compromise of the other suit does not arise. Therefore, the learned Trial Judge has rightly rejected the application under Order 23 Rule 3 of the C.P.C. filed by the petitioner holding that the same is not maintainable either in law or in fact. He has rightly rejected the said application. I am of the view that the learned Trial Judge has not committed any errors of law in rejecting the application under Order 23 Rule 3 of the C.P.C. So, there is no ground for interference with the impugned order. This application, therefore, fails to succeed. It is, therefore, dismissed.
(3.) CONSIDERING the circumstances, there will be no order as to costs.;