SUDHINDRA NATH MONDAL Vs. SOMNATH MONDAL

JUDGEMENT

(1.) This appeal and the considerable time spent in court over it, it must be confessed bluntly, is as a result of the mess created by the court in the two orders that have been cited by the appellants to claim an undeserving benefit. The matter pertains to a Will and before the facts are noticed and any attempt is made to extricate the matter from the mess, the practice in this court or how the jurisdiction in this field is exercised here needs to be narrated in brief.

(2.) Upon a petition for the grant of probate or for the issuance of letters of administration with Will being received, there is an initial scrutiny which is conducted by the department. This exercise involves the careful checking of the papers and the averments in the petition, to ascertain whether at least one attesting witness' affidavit-in-support is presented by the propounder, whether the affidavit of assets tallies with the contents of the petition and the bequests in the Will and the like. After the scrutiny and the resultant corrections, if any, the matter is placed before the judge taking interlocutory matters in the judge's chambers for an initial direction for service of citations - general and special. In cases where all the heirs of the testator consent to the grant, the special citations may be dispensed with and the matter may immediately progress to the grant. A grant in such manner, where the formal proof of the execution of the Will by way of oral evidence is not insisted upon, is regarded as a grant in common form.

(3.) However, there is no binding rule that a grant must be made in common form even in situations where all the possible heirs consent to the grant; for the judge may still require the Will to be proved in solemn form notwithstanding the propounder appending consent affidavits of the other heirs and the supporting affidavit of at least one attesting witness.