Question: Is it possible for a court to grant probate in respect of a will on the basis of compromise between the parties, and more so, if such compromise is against the terms of the will?
Answer: It is not permissible. A court cannot grant probate which is against the terms of the will. In fact, in this regard, it is pertinent to point out the observations of a Division Bench of the Calcutta High Court in the case of Uma Addhya v. Biren Mondal, AIR 2006 Cal 200 : (2006) 2 CHN 680:
“After hearing the learned counsel for the parties and after going through the aforesaid materials, it is found that there was an error on the face of the order sought to be reviewed in setting aside the order of revocation without arriving at its own conclusion as regards the legality and propriety of the order impugned in the appeal and making the compromise a part of probate originally granted.”
“It is now settled law that the Probate Court is a court of conscience and the duty of the Probate Court is only to adjudicate whether the will in question was the last will and testament of the deceased, whether the same was duly executed and attested, whether the same was executed without being vitiated by force, fraud, undue influence, etc. and whether the testator had the required mental capacity to execute the will. Apart from those questions, a Probate Court cannot go into the question of title of the testator nor can the court grant a probate which is at variance with the terms of the will.”
Likewise, in the case of Paresh Chandra Majhi v. Biswanath Majhi, 2009 SCC OnLine Cal 1641 : (2009) 3 CHN 612 (DB), it was held by another Division Bench of the Calcutta High Court:
“What is more surprising is that the Probate application, although became contentious, was disposed of in terms of compromise which is not permissible under the law of the land.”
“In the case before us, it appears from the certified copy of the relevant order-sheet that Probate was granted solely on compromise and the same was made part of the decree which is not permissible.”
In the case of A.E.G. Carapiet v. A.Y. Derderian, AIR 1961 Cal 359, a Division bench of Calcutta high court observed as under:
“A court of Probate always shies at terms of settlement. A Court of Probate is said to be a Court of Conscience which is not to be influenced by private arrangements of the parties. Either it grants probate to a Will or it rejects such grant. For such, a court, it is said, there is no middle path for a happy compromise. The rule of law is stated to be that there can be no probate by consent. Either it is grant or refusal. The Court has to be satisfied in each case whether the Willproposed is truly the Will of a capable testator or not. It is not concerned with any other arrangement. It has been said over and over again that there is no such thing as conditional probate or an amended probate. It is either all or nothing. That seems to be sensible enough law.”
However, in view of a uniform practice followed by the court, in the above case of A.E.G. Carapiet v. A.Y. Derderian, the Calcutta high court directed that the probate be granted of this Will and allowed the terms of settlement between the parties to be recorded with the decree in a separate schedule.
