SAHIDULLAH MUNSHI,J. - (1.) In this testamentary proceeding Ms. Rakhi Sein, being one of the daughters of the legatee Dwarika Nath Sein, has filed this application praying for leave to intervene in the proceeding. She also prayed for an order of injunction against the said legatee Dwarika Nath Sein from dealing with and/or disposing of any of the properties mentioned in the affidavit of assets attached to the petition. The relevant provision of the Will at page 30 says "I give devise and bequeath all the movable and immovable properties in favour of Sri Dwarika Nath Sein excepting one of my immovable property which is lying situate at 9A, Short Street, Kolkata which I bequeath the said entire premises to my very beloved loving grand daughters (daughters of Dwarika Nath Sein), namely, Miss Rumi Sein, practicing Lawyer of the Calcutta High Court and Miss Rakhi Sein who is a student of Class XII. I have a family deity Sree Sree Lakshmi Narayan Jew Thakur which was installed by Jaharlal Seal the father of my mother-in-law. Since my marriage with Rajendra Nath Sein I have seen my mother-in-law and her mother is looking after the Seva Puja of my aforesaid family deity and in their absence I have done the same and accordingly I direct that after my death my daughter-in-law (Dwarika's wife) Smt. Rekha Sein will perform the daily seva puja of my family deity and the expenses which will he incurred, that will be provided by my aforesaid grand daughters namely Rumi and Rakhi Sein after my death."
(2.) On a cursory reading of the said provision of the Will, it prima facie appears that the applicant has a right to intervene in the proceeding. However, Mr. Kar appearing for the propounder plaintiff makes vehement objection that the applicant has no right to intervene in the matter. Mr. Dev appearing in support of the application for injunction has further pointed out that being a legatee, the said Dwarika Nath Sen has already entered into an agreement in respect of premises No. 38, Colootola Street, Kolkata-700073. Mr. Dev submits that the premises being 38, Colootola Street, Kolkata-700073 has been included in the affidavit of assets and since the property is included in the affidavit of assets, being the legatee, he has no right to transfer the same. He has drawn attention of this Court to the provision of section 213 of the Indian Succession Act, which says that a legatee cannot consider himself to be the owner unless probate is granted. However, the legality of the agreement has yet to be gone into in detail and this could be done only after exchange of affidavits. Although Mr. Deb's perceived apprehension regarding disposal of the property under Will cannot be ignored because even handing over possession of the property may cause serious prejudice to the party having benefit under the 'Will'. Looking at the age of the suit which is of the year 2011, this Court intends to dispose of the suit itself at an early date.
(3.) Be that as it may, it is needless to mention that if a transfer is made during the pendency of the proceeding, the same cannot be treated to be an absolute transfer. The petitioner has a right to challenge the same and the same is bound by the doctrine of lis pendens. If the petitioner acts any further on the basis of the memorandum of the agreement dated 7th December, 2015 during the pendency of the probate proceeding and without taking the leave of this Court, the same will be subject to the result of this proceeding. Save what is mentioned above at this stage, I refrain from granting any interim injunction against the legatee inasmuch as it is yet to be finally decided as to whether the petitioner shall be added as a party or not.;