- (1.) THE present application has been filed by the petitioner praying for recording the death of the plaintiff and to allow petitioner, son of the plaintiff to be substituted in his place and also to amend the cause title in the manner as shown and underlined with red ink in annexure -C to the petition as also for grant of probate in favour of the pe - titioner being executor by tenor and alternative to grant Letters of Administration in favour of the petitioner. Defendant No. 3 Vaswati Konar has opposed the prayer by way of Affidavit -inopposition and the petitioner has sought to meet the contentions of the defendant No. 3 by way of affidavit -in -reply.
(2.) THE learned Advocate for the petitioner Mr. Sudip Ghosh, submits that plaintiff, father of the petitioner, filed an application for grant of probate of last Will and Testament of the deceased Kamala Prasad Roy, grand father of the present petitioner, and obtained probate of such Will but, upon the application for revocation filed by the defendants having been allowed, the probate proceeding was converted into a contentious suit and since then the suit is continuing. He further submits that the parties have adduced their respective evidence and several documents have been marked exhibits and even arguments were advanced at length. Mr. Ghosh then contends that plaintiff died on 19th September, 2012 leaving behind his wife, two sons including the present petitioner and one daughter and during his life time executed his last Will and Testament on 29th June, 2010 wherein petitioner has been appointed as the sole executor and beneficiary of the estate of the plaintiff for which the petitioner has become the sole legatee concerning the estate, consisting of the rights and obligations of the plaintiff. Mr. Ghosh further submits that the present petitioner has been pursuing the present suit for considerable period of time as his father, plaintiff, faced difficulties because of old age, and more over the Will of the deceased Kamala Prasad Roy provided that in case of death of plaintiff during life time of the testator, son or sons of plaintiff would be entitled to all the rights and obligations of the estate of the deceased and accordingly the present petitioner is an executor according to tenor to the Will for which he is entitled to be substituted in place and stead of his father, the plaintiff, since deceased. Alternatively if such prayer for substitution is not allowed, the petitioner, being the legal heir in intestacy of the plaintiff, since deceased, is entitled to Letters of Administration with copy of the Will of the deceased Kamala Prasad Roy. In this connection he has referred to the decisions reported in AIR 1976 AP 306, AIR 1937 Bombay 397 as well as 2010 (2) CHN (Cal) 157.
(3.) MR . Partha Sarathi Bose, learned Counsel for the defendant on the other hand contends that the right of an executor is an exclusive right which cannot be transferred in favour of any person, as probate can be granted only to an executor appointed by the Will. He denies that the evidence in the suit was concluded and arguments were adduced at length. Mr. Bose further submits that the petitioner cannot be entitled to continue with the present proceeding for grant of probate and that the present application is devoid of any merit and should be dismissed. He refers to a decision reported in AIR 1977 Delhi 34. On consideration of the materials on record and submissions of learned Counsels for the parties, I find that the plaintiff, Dilip Kr. Roy, was appointed as sole executor and there are no words contained in the Will which either expressly or by necessary implication entrusted the duty of execution of the Will or the administration of the estate of the deceased to any of the son or sons of Dilip Kr. Roy, the plaintiff, since deceased. The decisions reported in AIR 1976 AP 306 and AIR 1977 Bombay 305 referred to by the learned Advocate for the petitioner do not apply in the facts and circumstances of the present case as in the case before Their Lordships of Andhra Pradesh High Court, upon reasonable construction of the Will it was found that the petitioner therein was appointed to perform the duties of executor and in the case before His Lordship of Bombay High Court, the plaintiff had applied for probate of two Wills made by a testatrix and it was held that defendants had interest in the estate and if he succeeded in proving that the first Will was a forgery, it would be open to him to show that he was the executor according to the tenor of the later Will for which he would have the right to apply for probate of the Will. The decision reported in 2010 (2) CHN 157 referred to by Mr. Ghosh, learned Counsel for the petitioner, is also of no help as therein the defendants did not oppose the prayer of the petitioner but only contended that the petitioners therein may be allowed to proceed with the application for appointment of administrator pendente lite without prejudice to the defen - dants' contentions and for leave to file an additional written statement. Rather the decision reported in AIR 1977 Delhi 34 referred to by Mr. Bose, learned Counsel for the defendant, is pat on the point. Herein His Lordship clearly held that there were no words contained in the Will which either expressly or by necessary implication entrusted the duty of the execution of the Will or the administration of the estate by the deceased to the respondent who was named as the sole beneficiary under the Will and, therefore, the legatee, for which the respondent was clearly not appointed executor in the Will either expressly or by necessary implication and consequently probate could not be granted to him. In the present case as I have already observed above, the plaintiff Dilip Kr. Roy was appointed as sole executor and there are no words contained in the Will which either expressly or by necessary implication entrusted the duty of execution of the Will or the administration of the estate of the deceased Kamala Prasad Roy to any of the son or sons of Dilip Kr. Roy. But rather son or sons of Dilip Kr. Roy were named beneficiaries under the Will in the event of the death of Dilip Kr. Roy during the lifetime of the deceased Kamala Prasad Roy, the testator.;