JUDGMENT Banerjee, J. - This is an application under cl. 13 of the Letters Patent for transfer of a suit to this Court. The suit is now pending in the District Court of Alipore. It is a contested probate proceeding and is numbered O. S. No. 44 of 1948. The Rule was obtained from Majumdar, J., on August 2, 1948. By that Rule the Plaintiff has been called upon to show cause why the said probate case should not be removed to this Court to be tried and determined in this Court in the exercise of its Extraordinary Original Civil Jurisdiction. The Rule is now before me for final disposal. 2. The facts relating to the application are shortly these: Barendra Nath Mitter died on or about February 27, 1948. He was a wealthy man and possessed of considerable property, movable and immovable, situated partly within and partly outside the Ordinary Original Civil Jurisdiction of this Court. 3. He left surviving him a widow Haribhabini, a son Sudhirendra and three grandsons, Arunendra, Atinendra and Asokendra by a predeceased son Saratendra. 4. Sudhirendra is the Plaintiff in the said probate case, O. S. No. 44 of 1948. Arunendra, Atinendra, Asokendra and Haribhabini are the Defendants. 5. The Petitioners in the application are the said Arunendra, Atinendra and Asokendra. 6. In April last two separate caveats were lodged by Sudhirendra in the goods of Barendra Nath Mitter. One of the caveats was lodged in the High Court, Original Side. The other was lodged in the District Court of 24-Parganas. 7. On or about May 3, 1948, a suit for partition was instituted in this Court. This suit is numbered 1464 of 1948. The Plaintiffs in the suit are the said Arunendra, Atinendra and Asokendra. The Defendants are the said Sudhirendra and Haribhabini. 8. In the plaint in the partition suit the Plaintiffs allege that Barendra died intestate, and on the basis of intestacy they have claimed a share in the estate left by the deceased. They have also claimed other reliefs in the plaint, which are not material now to be mentioned. 9. It is alleged that there was a talk of compromise. It has failed. 10. The Plaintiffs in the partition suit made an application on May 13, 1948, for the appointment of a Receiver of the estate left by the deceased and for other reliefs. 9. It is alleged that there was a talk of compromise. It has failed. 10. The Plaintiffs in the partition suit made an application on May 13, 1948, for the appointment of a Receiver of the estate left by the deceased and for other reliefs. On the same day an interim order of injunction was made by Majumdar, J. The order, leaving out the portion not material, is in these terms:-- It is farther ordered that the defendants, their servants and agents be and they are hereby prohibited and restrained until the disposal of the application or until further order of this court from alienating or disposing of the movable property including the jewellery lying deposited with the Lloyds Bank Ltd. Calcutta, belonging to the estate of Barendra Nath Mitter since deceased in the petition mentioned. 11. The application was finally heard by Sinha, J., on May 18, 1948. The learned Judge refused to appoint a Receiver, but gave certain directions for the protection of the interests of the parties. 12. In the course of the hearing of that, application on May 18, 1948, Sudhirendra stated in open Court through his Counsel that his father had died leaving a Will and that he had already applied for probate of the Will in the Court of the District Judge, Alipore. 13. In fact, however, there was no application made on that date, for we find that the application was made on May 19, 1948. 14. The Petitioners are contesting the said application for probate. The proceeding has been marked as a contested suit and numbered, as I have said before, O. S. No 44 of 1948, which is sought to be removed to this Court. 15. A copy of the order-sheet in the probate case has been annexed to the affidavit of Sudhirendra affirmed on August 21, 1948, and filed as of records in these proceedings. It appears from the order-sheet that the parties are keenly contesting the probate case as one would naturally expect. The main parties are near relations. It is a fight: between an uncle and a nephew, The estate left by the testator is large. The parties are well equipped. Therefore, the contest is likely to be very keen. 16. The Petitioners' case is that there was no Will. The main parties are near relations. It is a fight: between an uncle and a nephew, The estate left by the testator is large. The parties are well equipped. Therefore, the contest is likely to be very keen. 16. The Petitioners' case is that there was no Will. They have obtained a photo-graphic copy of the said alleged Will, which was placed before me during the hearing of this application. 17. On June 24, 1948, a notice of motion was taken out in the partition suit on behalf of Sudhirendra for stay of the partition suit until the disposal of the probate case in Alipore, and for extension of time for filing written statement in the partition suit. This application for stay was heard by Das, J. His Lordship made the following order, as appears from a copy of the Court minutes which has been handed over to me. The order is this:-- There will be a stay of all farther proceedings In the suit, but this stay is limited to the proceedings in inspection and hearing of the suit only. Written statements to be filed by both the defendant No. 1 and defendant No 2 by Monday week. All affidavits of documents to be filed within a week thereafter, and there will be no inspection at this stage except under further orders of this court. Costs of the application will be costs in the cause. This order will not affect the order of Sinha, J. 18. The Defendants Sm. Haribhabini and Sudhirendra have filed separate written statements. In their written statements they both say that Barendra died leaving a Will, dated June 22, 1947, and that Sudhirendra has been appointed the sole executor. 19. It appears from the pleadings in the partition suit that the main issue in the suit is as to whether the deceased died testate or intestate. 20. There are two applications pending in the District Court, Alipore, one for making an inventory in respect of the property left by the deceased, and the other for the appointment of an administrator pendente lite. 21. The learned District Judge by an order dated July 19, 1948, ordered that the two applications might be taken up together. He fixed August 14, 1948, for the hearing of the two applications. 21. The learned District Judge by an order dated July 19, 1948, ordered that the two applications might be taken up together. He fixed August 14, 1948, for the hearing of the two applications. In the mean-time the Petitioners made an application for transfer of the suit and as I have said before, obtained a Rule on August 2, 1948. 22. On behalf of the Petitioners, it is urged that the probate case should be transferred to this Court. As grounds the learned Counsel who appears for the Petitioners, urges (1) that complicated questions of law and fact are involved in the probate case and (2) that the balance of convenience is in favour of proceedings in the Calcutta High Court. 23. Under the first head, learned Counsel on behalf of the Petitioners says that the Will is not genuine, that the testator had no testamentary capacity, that the Will has been procured by undue influence. Learned Counsel contends that these are complicated questions of fact and law which should be tried in the Original Side of the High Court. I do not accept this contention. In almost all probate cases, these questions of fact or law are involved. Hundreds of them are tried by District Judges, and if I may say so with respect, tried with great ability and fairness. If 1 accede to the prayer of the Petitioners on this ground it would logically follow that practically all probate cases pending in the Mofussil would have to be removed to this Court. 24. Under the second head, learned Counsel says that the witnesses are in Calcutta, that the bulk of the property left by the deceased is situated within the Ordinary Original Civil Jurisdiction of this Court, that there is a partition suit pending in this Court, that if the probate case is allowed to proceed in the Court of the District Judge of Alipore, the proceedings would be protracted and the partition suit held up. He sums up by saying that the balance of convenience is in favour of the proceedings in the Calcutta High Court. There is undoubtedly some force in this contention. But the law on this point is this that in order to justify a transfer on this ground it is as a rule necessary that something more should exist than a mere balance of convenience in favour of proceedings in this Court. There is undoubtedly some force in this contention. But the law on this point is this that in order to justify a transfer on this ground it is as a rule necessary that something more should exist than a mere balance of convenience in favour of proceedings in this Court. The Court must be satisfied that either the expense or the difficulties of trial in the Alipore Court would be so great that injustice would be done--in this sense that it would be very difficult, or practically impossible, for the Petitioners, who are applying for transfer, to get justice in the Alipore Court. 25. In re: Norton's Settlement. Norton v. Norton (1908) 1 Ch. 471. 26. It is not necessary for me to deal in detail with the question of the relative expense and convenience of proceedings in this Court and in the Alipore Court, because in my opinion there is in this case involved another principle on which the application may be disposed of. This I shall deal with later on in my judgment. 27. The learned Advocate-General appeal's for Sudhirendra and opposes the application. He is supported by learned Counsel Mr. B.N. Ghose, who appears for Sm. Haribhabini. Along with other grounds which I have already decided in his favour he urges that the suit should not be transferred because the Plaintiff has a right to choose his own forum. He is the arbiter litis. He can choose any forum the law allows him. The Advocate-General continues that Sudhirendra has chosen his own forum in the honest belief that it is the proper forum and that the trial in the Alipore Court would be cheaper than the proceedings here. I do not believe Sudhirendra when he says that one of the considerations which moved him to choose the Alipore Court for the case, is cheapness of the proceedings there, for I find that Sudhirendra took an Advocate of the eminence of Dr. Sen Gupta to the Alipore Court to argue on his behalf an application made by the Petitioners for inventory. There is no dearth of able lawyers in the Alipore Court Sudhirendra has been able to secure the services of some of them. If cheapness of trial was his consideration why did he take Dr. Sen Gupta to argue his case in an application of this type? There is no dearth of able lawyers in the Alipore Court Sudhirendra has been able to secure the services of some of them. If cheapness of trial was his consideration why did he take Dr. Sen Gupta to argue his case in an application of this type? As I have already said the parties are rich, the contest is going to be keen. I can very well surmise that if the trial of the probate case proceeds in the Alipore Court the parries will take eminent Advocates from the High Court to fight their respective cases. The cost in that event will be more than a trial in the Calcutta High Court. It will not be out of place in this connection to quote an observation made by Ameer Ali, J., as long ago as 1896. His Lordship observed, "I am surprised at the statement that the expenses here will be greater than in the Mofussil. This is obviously contrary to the ordinary experience." Harendra v. Sarvamangala I. L. R. 24 Cal. 183 (1896). Whether that observation applies in all cases is a matter of opinion. But I have no doubt that the observation does apply to a case of the type under consideration. In a case of this type, the observation applies with full force now as it did in 1896. 28. I fully agree with the learned Advocate-General, if I may say so with respect that the Plaintiff is the arbiter litis. He has the right to choose his own forum. But this right is subject to control under cl. 13 of the Letters Patent. If the Court feels that for purposes of justice a suit should be transferred, the Court must do it. 29. Apart from balance of convenience there is another principle which is to be borne in mind. If the Court, taking all the facts into consideration, comes to the conclusion that the Plaintiff in commencing an action in a particular Court has not done so on account of any legitimate advantage which a trial in that Court will give him but for purposes entirely foreign to that legitimate purpose then apart from any question as to expense or inconvenience not only has the Court jurisdiction but it is the duly to transfer the proceedings. 30. In re: Norton's Settlement. Norton v. Norton (1908) 1 Ch. 471. 31. 30. In re: Norton's Settlement. Norton v. Norton (1908) 1 Ch. 471. 31. Now, let us test the facts of this case in the light of this principle. Sudhirendra knew that his father had left a Will. He on his own admission has been appointed the sole executor. In an estate of tins extent one would expect Sudhirendra to act more promptly than he has done to obtain a representation to the estate of the deceased particularly when there are so many suits and proceedings pending concerning the estate. 32. Sudhirendra does not make any application for probate till May 19, 1948. What is his explanation? It is this. He says after the sradh ceremony of the deceased he was arranging to apply for probate of the Will, when a suggestion was made to him by a relation of the Petitioners, that heavy ad valorem duty payable for probate of the Will could be avoided if all parties concerned would execute a deed of trust by way of family arrangement incorporating in substance the provisions of the Will of the deceased. No particulars have been given as to when the suggestion was made or when negotiation for the family arrangement, if any, terminated. In any event we find that Sudhirendra files caveats towards the end of April, 1948. He does rot make his application for probate of the Will in the Alipore Court which according to him is the proper forum for that purpose. I am not satisfied with the explanation given by Sudhirendra as to the cause of his delay in applying for probate. Then again as I have already said, he makes an incorrect statement in Court on May 18, 1948. Sudhirendra as I have already said curing the hearing of the application before Sinha, J., stated through his Counsel in Court that he had already applied for probate of the Will in the Alipore Court. But that statement is not correct. He applied for probate on May 19, 1948. He seeks to explain the discrepancy by swearing as follows:-- I say that on the morning of the 18th May all necessary papers for the application for the probate were ready and made over by me to my pleader for filing and when the application was called on before his Lordship the Hon'ble Mr. Justice Sinha. I was under the impression that the application had already been filed. Justice Sinha. I was under the impression that the application had already been filed. 33. I cannot accept this explanation of Sudhirendra. He is a man of experience. He has experience in litigations. It is impossible to believe that he did not know that making over of papers to a pleader does not necessarily mean that the pleader would take or has taken a particular step. In any event Sudhirendra before he made such an incorrect statement in Court ought to have ascertained the correct facts. The circumstances in which Sudhirendra made the statement are also significant. The application for Receiver was pending in Court and in fact it had come up for hearing before Sinha. J. Sudhirendra had everything to lose if a Receiver was appointed, for the estate is admittedly in his possession. I apprehend Sudhirendra made that incorrect statement in Court in the belief that it would have some effect on the fate of the application favourable to him. I need not say anything mote on this part of the case. 34. I have carefully considered the facts of this case. I am unable to give credit to Sudhirendra when he says that he chose the Alipore Court for the probate case in the honest belief that it was the proper forum or that a trial in the Alipore Court would be cheaper than in the Original Side of the High Court. On the other hand, I have come to the conclusion that the Alipore Court was not chosen for the purpose of any legitimate advantage which Sudhirendra might gain by so doing, but for a purpose entirely foreign to it. Reaching that conclusion, I must grant the prayer for removal of the probate case to the High Court. I am not unmindful of the observations of Warrington, J., in a case of this type. In Egbert v. Short (1907) 2 Ch. 212 his Lordship said:-- The jurisdiction which I am asked to exercise is one which as has been frequently said is to be exercised by the court with extreme caution; and further it is one which the court ought not to exercise if by so doing an injustice will be caused to the plaintiff; and the real question which I have to decide is whether by preventing what, in my judgment is a grievous injustice to the plaintiff. If I should be doing bo then I think it would be my duty to refuse this application. 35. In this case, taking all the facts into consideration, I am convinced that by making the order which I am going to make, I would not be doing any injustice to the Plaintiff in the probate case. The witnesses would be available in Calcutta. It does not make much difference if they are examined in Alipore or in Calcutta. The partition suit is pending in the High Court, Original Side, where the main issue is the only issue in the probate case. The expenses of the trial in the Calcutta High Court, in the circumstances of the case would not be greater than the trial if it tikes place in the Alipore Court. 36. Before I conclude, I must mention one matter. The learned Advocate-General has commented on the prolixity of the petition and the affidavit in reply. I entirely agree with what he has said. To mark my disapproval of the two documents, I disallow a portion of the costs for their preparation. I direct that not more than half the costs of preparation of the two documents will be allowed to the party concerned on taxation be it attorney and client taxation or party and party taxation. This, however, does not make any difference to the ultimate fate of the application. 37. I, therefore, order that the suit be removed to this Court and be tried and determined in this Court in the exercise of its Extra-Ordinary Original Jurisdiction. I reserve the costs of all parties.