S. Mukerjee, J.

1. The appellant claims to be the purchaser of property "Padma Bhawan" situated at Raipur Chhatisgarh, which is a part of the estate of late Rani Padmawati Devi, who died intestate on 12-4-1987.

2. It is the contention of the appellant that it had negotiated and entered into a sale deed dated 11-10-1988 for purchase of the said property for a total consideration of Rs. 35 lacs, with the Administrator of the Estate being one of her sons viz. Raja Shivendra Bahadur Singh (now deceased).

3. The appellant is aggrieved of the order dated 17-1-2002 passed by the learned single Judge of this court rejecting appellants application (I.A. No. 490/99) filed under order 1, Rule 10 CPC, with the prayer to be allowed to intervene, or to be made a party in the pending proceedings for grant of letters of administration without Will.

4. The said petition under S. 278 of the Indian Succession Act filed by Shivendra Bahadur Singh for grant of letters of administration to the estate of Rani Padmavati was registered and numbered as Probate case No. 43 of 1987.

5. On 10th May 1988, by an order of learned single Judge of this Court, Raja Shivendra Bahadur Singh was appointed as an Administrator pendente lite.

6. On the purported authority of the said appointment as Administrator pendente lite, Raja Shivendra Bahadur Singh is alleged to have negotiated and entered into sale transaction with the appellant purportedly for the purposes of utilising the sale consideration, for meeting the wealth tax and income-tax dues/liabilities of the estate of late Rani Padmawati Devi. Sale deed is also alleged to have been executed and sale consideration duly received.

7. On the very next day, i.e. on 12-10-1988 on an application filed by another son Ravindra Bahadur Singh, Ld. single Judge restrained the said Administrator (Shivendra Bahadur Singh) from transferring, alienating or parting with possession of the properties, which form subject matter of the estate of Rani Padmavati.

8. It is the case of the appellant that on 21-12-1988 the said Administrator also filed a statement of account in this court, reflecting the receipt of Rs. 35 lacs by the estate on account of sale of Padma Bhawan to the appellant.

9. It is the further case of the appellant that during pendency of those proceedings, and notwithstanding the sale deed already standing in favour of the appellant, the other son Ravindra Bahadur Singh, sold a part of the property known as Padma Bhawan, by a sale deed dated 29-7-1997, to one M/s. Jespur Construction Company Private Limited, for a total consideration of about Rs. 21 lacs. This amount, the appellant claims was not accounted for in the estate of late Rani Padmawati. The sale deed also, in its recital, did not refer to the proceedings pending before the learned single Judge.

10. It is also the case of the appellant that on coming to know about the sale, the Administrator immediately filed an application (I. A. No. 10437/97), wherein by order dated 19-2-1998 learned single Judge restrained the said brother Ravindra Bahadur Singh and other respondent from alienating, disposing or parting with the possession of the properties belonging to the estate.

11. The appellant also claims to have instituted a suit before the Civil Court at Raipur for mandatory injunction and declaration as regards the sale deed alleged to have been executed by Ravindra Bahadur Singh in favour of M/s. Jespur Construction Company Private Limited as being ab initio void. The said suit is still pending before the Civil Court at Raipur.

12. Raja Shivendra Bahadur Singh, the plaintiff and administrator pendente lite before the single Judge, died on 31-12-1998 and thereupon the appellant in order to protect its interests filed the said application (IA 490/99), seeking intervention/implead-ment in the pending probate case.

13. The appellant also preferred another application (I.A. No. 5054/99) for appointment of administrator pendente lite in place of late Shivendra Bahadur Singh.

14. On 30-8-1999 the learned single Judge issued notice on these two applications filed by the appellant viz. I. A. No. 490/99 and I. A. No. 5054/99.

15. It is the case of the appellant that only at that stage the legal heirs of late Raja Shivendra Bahadur Singh filed two applications (I. A. Nos. 12147/99 and 12148/99) for substitution and condonation of delay.

16. Thereafter it appears that the parties to the probate case filed an application under Order XXIII, Rule 3 of the Code of Civil Procedure seeking disposal of the Probate case on the basis of a memorandum of understanding (MOU) dated 26-8-1999, executed amongst them. This application bears IA No. 4812/2000.

17. It is the submission of the appellant that contents of MOU are reflecting a mala fide intent on the part of the respondents, in trying to wriggle out of the sale effected by the then Administator Shivendra Bahadur Singh in favour of the appellant.

18. While the MOU refers to various details regarding this property Padma Bhawan, the crucial fact about the sale deed in favour of the appellant, has been attempted to be brushed under the carpet.

19. On the other hand the sale of part of the property subsequently by Ravindra Bahadur Singh in favour of Jespur Construction Company, has been acknowledged and affirmed and it has also been mentioned that all the surviving legal heirs, have agreed to sell and transfer their respective portions in favour of the same very party, viz. M/s. Jespur Construction Company.

20. The appellant claims that he was unaware of the MOU till the order dated 26-5-2000 was passed by the learned single Judge and copies of the application under Order XXIII, along with copy of MOU, were served upon the appellant.

21. The appellant is aggrieved of the order of the learned single Judge by which the application for intervention/impleadment (IA No. 490/99), was dismissed by the learned single Judge on the sole ground that the probate case being only a proceeding for grant of letters of administration, the rights of the appellant (applicant), if any, could not be decided in the said proceedings and therefore the application could not be entertained and merited dismissal.

22. We have heard counsel for the parties who have and also filed their respective synopsis along with the photocopy of the case law relied upon by them. Learned counsel for the appellant has relied upon Smt. Annapurna Kumar v. Subodh Chandra Kumar, AIR 1970 Cal 433 [LQ/CalHC/1969/224] , Sima Rani v. Puspa Rani, AIR 1978 Cal 140 [LQ/CalHC/1977/131] and Dimmiti Pullaya v. Abdebolu AIR 1962 AP 140 [LQ/TelHC/1961/101] (FB) in support of his proposition that any interest, however slight and even the bare possibility of an interest is sufficient to entitle a party to oppose a testamentary paper.

23. He also relied upon Rama v. Rangayya reported as AIR 1933 Mad 114 [LQ/MadHC/1932/182] for the proposition that a petition for probate stands on a footing similar to that of a representative suit and therefore it would be right in principle to extend the analogy by holding that any legatee or beneficiary may, on a proper case being made out, intervene at any stage and claim to come on the record.

24. Another judgment relied upon by the appellant is Sisir Kumar v. Manorama Chandra reported as AIR 1972 Cal. 283 [LQ/CalHC/1972/9] for canvassing the proposition that a probate court cannot pass a decree in terms of private agreement between the parties. In that case it was held that a Court of probate, is 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 there is no middle path of a "happy compromise."

25. The rule of law is that there can be no probate by consent. Either it is a grant or a refusal. The Court has to be satisfied in each case whether the Will propounded, is truly the will of a capable testator or not. It is not concerned with any other arrangement.

26. The respondents on the other hand have tried to distinguish the cases relied upon by the appellant by contending that all those were cases where, certain persons were allowed to intervene or were impleaded but all were cases of family members, and as such those decisions are no authority for the proposition that a third party purchaser such as the appellant-herein, could apply to be made a party in probate proceedings.

27. During the hearing of the matter, we drew the attention of both the parties to the provisions of S. 307 of the Succession Act, which made the permission of the court to be mandatory for purposes of transfer of property by an administrator. Both the parties were heard on this aspect.

28. While the respondents claim that the transaction was void, the appellants relied upon Firm A.L.A.R. v. Maung Thewe, AIR 1923 Rangoon 69, in support of the proposition that such a transaction is only voidable and not void.

29. Having given our anxious consideration to all relevant aspects of the matter, we feel that as soon as it is established that a person or legal entrity, has an interest in the estate, it would be permissible to the said party to apply to the concerned court, for being permitted to intervene or being impleaded as a party even in the testamentary proceedings since the judgment of the court in probate proceedings is a judgment in rem, and not a judgment in personam.

30. Except for the person having such an interest, in many cases there is no one else who can effectively represent or safe-guard his interest, and it could well be that by inadvertence, or design, or collusion the case may be pleaded or pursued by the remaining or surviving legal heirs, in a manner so as to unjustly deprive the third party of their lawful rights.

31. In this case we find that prima facie credible material has come on record in the form of payment of Rs. 35 lacs by the appellant to the then interim Administrator Shivendra Bahadur Singh, which amount was also reflected in the statement of account filed by the said interim Administrator before the single Judge of this Court.

32. All other objections of the respondents would be a matter for adjudication by the learned Single Judge after the appellant is permitted to intervene or impleaded as a party.

33. In the above circumstances, we allow the appeal and set aside and reverse the order dated 17-1-2002 passed by the learned single Judge, and allow the application (I.A. No. 490/99) to the extent that the appellant shall be entitled to participate in the proceedings in order to enable it in safeguarding its interests and that also to the extent of that part of the estate of Rani Padmavati, which is the subject matter of the sale deed dated 11-10-1988 as alleged to have been executed by late Shivendra Bahadur Singh in favour of the appellant, including the legal capacity of late Shivendra Bahadur Singh, as an Administrator Pendente Lite to enter into the sale deed with the appellant, and also in relation to the legal effect of the said transaction, making it clear that the appellant shall not be entitled in any manner to intervene or interfere with, or participate in the pending probate case qua the remaining estate.

34. Appeal is accordingly allowed to the above extent.

35. The parties are left to bear their own costs.

Appeal allowed.