KRISHNA KUMAR BIRLA Vs. RAJENDRA SINGH LODHA

JUDGEMENT

(1.) PLA No. 138A of 1990 was filed for grant of probate of a document claimed to be the last Will of Saroj Kr. Chatterjee, since deceased, of 143A Rash Behari Avenue, Calcutta, executed on 31 August, 1988. One Gopal Mitra hereinafter referred to as 'Gopal') had filed a caveat which was found to be defective. By a judgment and order dated 13 June, 2006 passed in GA 349 of 2006 taken out in the probate proceeding, Ashim Kumar Banerjee, J. as His Lordship then was) extended the time for Gopal to file caveat by a week from the date of the order. Such caveat was filed within the time specified and affidavit in support of the caveat was also filed within the time period stipulated under the Rules. Accordingly, PLA 138A of 1990 became a contentious cause and was re-numbered as TS No. 14 of 2006.

(2.) Upon the demise of Gopal, his legal heirs have been substituted as defendants in the present suit. In the course of hearing of the suit, Mr. Gooptu, Learned Counsel appearing for the propounder has raised a point that Gopal had no caveatable interest and accordingly the caveat filed by him should be discharged. Mr. Gooptu further submitted that this point should be decided as a preliminary point.

(3.) On the two issues i.e. whether Gopal had caveatable interest and whether the same should be decided by way of a preliminary issue, I have heard Mr. Gooptu for the propounder and Mr. Ghosh for the defendants at length. However, I will decide the issue of Gopal's caveatable interest at this stage only if I find that it is mandatory to do so in law.