SIDDHARTHA CHATTOPADHYAY, J. - (1.) Challenging the legal pregnability of the Order dated 27.07.2015 passed by the learned Additional District Judge, 4th Court, Barasat, in O.S. No. 11 of 2015, the petitioner has come before this Court with a prayer to set aside the same.
(2.) According to the petitioner he came to learn from a reliable source that the Will sought to be probated was executed by the testator Gopal Chandra Sha in respect of the property over which the testator at the time of execution of Will had no right, title, interest and possession over any portion of the property because there was a registered deed of partition dated 31.03.1936 by virtue of which that Prafullya Kumar Sha got a portion of the property in one hand and Gopal Chandra Sha and Nityananda Sha on the other hand and they were being represented by their mother. This was in regard to entire property lies within Manirampore Mouza. While Prafullya Kumar Sha, being in actual possession of entire property of Manirampore Mouza, had executed a Will on 27.11.1960 bequeathing his entire property in favour of his wife Smt. Parul Bala Sha to the extent of her life interest and her daughter Bharati Sha. After the death of Prafullya Kumar Sha, the said Bharati Sha filed a probate case bearing Misc. Case No. 279 of 2001 in the Court of learned District Delegate, Barasat and Vide Order No. 6 dated 10.07.2002, the said probate was granted in their favour and certificate of probate was issued on 23rd August, 2002. In between the demise of Prafullya Kumar Sha and filing of probate application of said Smt. Parul Bala Sha, Smt. Bharati Jana (Sha) jointly transferred specific land measuring about 2 cottahs 1 chitak of Mouza Manirampur by registered sale deed bearing No. 6181 of 1992 in favour of Subodh Chandra Das, who happens to be the predecessor in interest of the present petitioners. After the death of Subodh Chandra Das, the petitioners being the wife, daughters and son stepped into the shoes of their predecessor-in-interest. According to the petitioner, the present probate suit which has been filed by the opposite party relates to same property. It is their apprehension that there right, title and interest will be highly affected if the probate is granted in favour of the plaintiff/opposite party in respect of the property of Manirampore Mouza, which has been lawfully owned by the present petitioners.
(3.) It appears from the impugned order dated 27.07.2015 that the learned Additional District Judge, 4th Court, Barasat, held that whether the Will executed by Gopal Chandra Sha was duly executed and attested in accordance with law or not and whether at the time of execution of the Will the testator was of sound mind or not that will be considered. This part of his logic is absolutely correct. But the learned Court below failed to construe that for the purpose of execution of a Will the probate petitioner has to show that the testator had the right to execute such Will in respect of the properties left by him.;