JUDGMENT Dr. D.Y. Chandrachud, J. 1. Admit. Learned counsel for the Respondents waive service. The appeal is taken up for hearing and final disposal, by consent and on the request of the learned counsel. 2. The appeal arises from a judgment and order of the learned Single Judge dated 27 June 2011. By the judgment which is challenged in appeal, the learned Single Judge dismissed a Notice of Motion that was taken out by the Appellants for being “permitted to be discharged partially and released and/or relieved from the undertaking" recorded in the consent terms arrived at between the parties on 15 January 2004 and for a direction that the undertaking be modified to the extent that the Appellants would withdraw their claim in respect of a property bearing CTS No.421/4. Since the Motion was dismissed by the learned Single Judge, the Appellants at whose behest the Motion was moved, are in appeal. 3. The First and the Second Respondents had instituted a suit before this Court on the Original Side seeking, inter alia, a declaration that a will purported to have been executed by Malti Jal Naoroji on 20 December 1988 and which was sought to be propounded by the Defendant to the suit (Shantabai Ramchandra Joshi), was a fabricated document. According to the First and the Second Respondents, who are the original Plaintiffs, Shantabai Joshi was a rank trespasser in occupation of a servant quarter and was in the employment of the deceased during her life time. The First and the Second Respondents propounded a will dated 19 April 1986 read with a codicil dated 14 April 1989 under which the testatrix had bequeathed to them the land bearing CTS No.421/4 along with structures thereon. The testatrix died on 1 May 1989. A probate has been granted to the First and the Second Respondents of the will dated 19 April 1986 and of the codicil dated 14 April 1989 in January 1995 in Probate Petition No.554 of 1992. Shantabai Joshi purported, during her life time, to propound a will alleged to have been executed by the testatrix on 20 December 1988 under which she claimed to be the sole beneficiary of the property bearing CTS Nos.421/4, 5. Shantabai Joshi purported, during her life time, to propound a will alleged to have been executed by the testatrix on 20 December 1988 under which she claimed to be the sole beneficiary of the property bearing CTS Nos.421/4, 5. On 20 November 1995 Shantabai Joshi filed a testamentary petition (Testamentary Petition No.681 of 1995)for the grant of letters of administration of the will dated 20 December 1988 relating to immovable property bearing CTS No.421/4, 5 admeasuring 2 acres 23 gunthas at Deonar, Mumbai. The First and the Second Respondents filed a suit seeking a declaration and injunctive relief in respect of the alleged will dated 20 December 1988, which was sought to be propounded by Shantabai Joshi, on the Original Side of this Court on 7 June 1996. The First Respondent filed a caveat in the testamentary petition which had been filed by Shantabai Joshi for the grant of letters of administration, following which the testamentary proceedings have been converted into a contested suit. 4. In this background, consent terms were arrived at in the suit instituted by the First and the Second Respondents against Shantabai Joshi. The consent terms were taken on record on 16 January 2004 by the learned Single Judge and the suit was accordingly disposed of. Clause-5 of the consent terms reads as follows: "5. Agreed confirm and declared that the Defendant no.2 have paid to Defendant No.1 a sum of Rs.50,00,000/- (Rupees Fifty lacs only) on or before the execution of these presents in full and final settlement of their claim if any which Defendant No.1 had in respect of the said property pursuant to the said writing dated 20.12.1988 or otherwise." Clause-7 is to the following effect : "7. Defendant no.1 agree and undertake to this Hon'ble Court to withdraw unconditionally the said Petition no.681 of 1995 filed by her." The learned Single Judge while disposing of the suit in terms of the consent terms, accepted the undertakings contained, inter alia, in paragraph 7 of the consent terms. 5. On 12 September 2007, the First and the Second Respondents moved a praecipe before the Court for a direction that the testamentary petition, which had still not been withdrawn by Shantabai Joshi, should be directed to be withdrawn. 5. On 12 September 2007, the First and the Second Respondents moved a praecipe before the Court for a direction that the testamentary petition, which had still not been withdrawn by Shantabai Joshi, should be directed to be withdrawn. Soon thereafter a Motion was filed on 4 October 2007 for the following reliefs : "a) Defendant No.1 be permitted to be discharged partially and released and/or relieved from the undertaking given by her before this Hon'ble Court, recorded in the Consent Terms dated 15th January 2004 in the above suit and the said undertaking be modified to the extent that defendant No.1 undertakes to withdraw her claim in respect of property at Village Deonar, Taluka Kurla bearing CTS No.421/4 in Petition No.681 of 1995." 6. An affidavit-in-support of the Motion was deposed to by Suresh Satam purporting to act as a constituted attorney of Shantabai Joshi. On 5 October 2007, a learned Single Judge of this court dismissed the testamentary petition as withdrawn subject to any orders that may be passed in the Motion that was taken out by Shantabai Joshi. Shantabai Joshi died on 13 December 2007. On 24 January 2008 a Chamber Summons was taken out by Suresh for bringing himself on the record as legal representative of Shantabai Joshi in view of her purported will. The Chamber Summons has been allowed. The Appellants have been brought on record as the heirs of the deceased Shantabai Joshi. 7. By the impugned order of the learned Single Judge, the Motion taken out for variation of the consent terms has been dismissed. 8. Learned counsel appearing on behalf of the Appellants submits that the First and the Second Respondents propounded a will of the testatrix Malti Jal Naoroji dated 19 April 1986 read with the codicil dated 19 April 1989. Probate has been granted. The subject matter of the will is CTS No.421/4. According to the First and the Second Respondents, CTS No.421/5 had been sold by the deceased testatrix during her life time. Probate has been granted. The subject matter of the will is CTS No.421/4. According to the First and the Second Respondents, CTS No.421/5 had been sold by the deceased testatrix during her life time. When the consent terms were entered into on 15 January 2004, the claim of Shantabai Joshi in respect of CTS No.421/4 was settled against the payment of an amount of Rs.50.00 lakhs and by Clause-7 of the consent terms, she unconditionally agreed to withdraw the testamentary petition which had been filed by her for seeking a probate of the purported will dated 20 December 1988 Learned counsel submitted that the subject matter of the testamentary petition instituted by Shantabai Joshi pertains not only to CTS No.421/4 but also CTS No.421/5. Hence, it is urged that particularly having regard to the ambit of the testamentary petition, Clause-7 of the consent terms must be construed to mean that Shantabai Joshi agreed and undertook to withdraw her testamentary petition only insofar as it pertained to CTS 421/4. On these grounds, it was submitted that the learned Single Judge was not justified in dismissing the Motion. 9. On the other hand, it has been urged on behalf of the First and the Second Respondents that : (i) The Appellants have no locus to institute or pursue the Motion since the power of attorney of which inspection was granted to the First and the Second Respondents affirms the reference to the payment of Rs.50.00 lakhs in terms of the consent terms and empowers the constituted attorney to distribute the balance out of the amount which was paid over; (ii) The Court exercising testamentary jurisdiction has no concern with the title of the property. The will which was sought to be propounded by the Appellants in testamentary petition No.681 of 1995 dated 20 December 1988 was diametrically contrary to the will dated 19 April 1986 read with the codicil dated 19 April 1989 which was propounded by the First and the Second Respondents. The will which was sought to be propounded by the Appellants in testamentary petition No.681 of 1995 dated 20 December 1988 was diametrically contrary to the will dated 19 April 1986 read with the codicil dated 19 April 1989 which was propounded by the First and the Second Respondents. Hence, when Shantabai Joshi agreed and undertook unconditionally to withdraw her testamentary proceedings, there was no question of her reserving the right to pursue the petition in relation to a part of the property of the deceased testatrix; (iii) Once consent terms have arrived at between the parties to the suit, it is not open to the Appellants claiming as legal representatives of the deceased First Defendant to the suit to resile from the consent terms or to seek an order modifying the consent terms. Significantly there is no allegation that the consent terms are obtained by coercion or fraud; (iv) The suit instituted by the First and the Second Respondents seeking a declaration in regard to the will purportedly executed on 20 December 1988 has been disposed of. What the Appellants seek in substance is the revival of their testamentary proceedings in relation to the same will dated 20 December 1988 in respect of which the claim of Shantabai Joshi was unconditionally agreed to be withdrawn. 10. The rival submissions now fall for consideration. 11. The First and the Second Respondents have admittedly obtained a probate in respect of the will of the deceased testatrix dated 19 April 1986 read with the codicil dated 14 April 1989. The will which Shantabai Joshi sought to propound was in respect of CTS No.421/5 and purported to state that the testatrix had not executed any will except that will. The First and the Second Respondents instituted a suit on the Original Side of this Court, inter alia, against Shantabai Joshi seeking a declaration that Shantabai Joshi was a maid servant of the deceased testatrix and was a rank trespasser who had fabricated the purported will dated 20 December 1988. In paragraph 7 of the plaint it was averred that on 30 March 1996 an Advocate's notice had been issued to Shantabai Joshi stating that all the properties belonging to the deceased testatrix situated in Mumbai had been included in the probate dated 31 January 1995 obtained by the First and the Second Respondents. In paragraph 7 of the plaint it was averred that on 30 March 1996 an Advocate's notice had been issued to Shantabai Joshi stating that all the properties belonging to the deceased testatrix situated in Mumbai had been included in the probate dated 31 January 1995 obtained by the First and the Second Respondents. Moreover, it was stated that the property bearing CTS No.421/5 sought to be mentioned in the purported will dated 20 December 1988 had in fact been sold and disposed of by the testatrix during her life time by a registered deed of conveyance. A copy of the letter dated 30 March 1996 was annexed at Exhibit-J to the plaint. Shantabai Joshi, therefore, was clearly on notice of the fact that the probate which had been granted to the First and the Second Respondents by this Court in respect of the will dated 19 April 1986 and the codicil dated 14 April 1989 covered all the properties belonging to the testatrix in Mumbai and that CTS No.421/5 had been alienated by the testatrix during her life time. Now, it is in this background that the suit instituted by the First and the Second Respondents was settled and a decree was passed by this Court on 16 January 2004 in terms of the consent terms. By Clause-7 of the consent terms, Shantabai Joshi agreed and undertook to withdraw unconditionally her testamentary petition (Testamentary Petition No.681 of 1995). The testamentary petition sought letters of administration in respect of a purported will dated 20 December 1988 and the schedule of properties annexed to the petition specifically covered both CTS Nos.421/4 and 421/5. Consequently, by unconditionally agreeing to withdraw her testamentary petition, Shantabai Joshi gave up her claim under the will dated 20 December 1988. Obviously the will dated 20 December 1988 (which states that it was the only will which was executed by the testatrix) could not co-exist with the will dated 19 April 1986 read with codicil dated 14 April 1989. There was a conscious agreement on the part of Shantabai Joshi to give up her claim in the testamentary petition. 12. Obviously the will dated 20 December 1988 (which states that it was the only will which was executed by the testatrix) could not co-exist with the will dated 19 April 1986 read with codicil dated 14 April 1989. There was a conscious agreement on the part of Shantabai Joshi to give up her claim in the testamentary petition. 12. Once consent terms had been arrived at between the parties and the suit has been decreed in terms thereof, it is not open to one party to seek an order of the Court to give effect to its unilateral decision to resile from a part of the consent terms. The Appellants sought to take a discharge partially and be released and/or relieved from the undertaking furnished by Shantabai Joshi to the Court and that the undertaking should be confined to a withdrawal of Shantabai Joshi's claim in regard to CTS No.421/4. This is clearly not permissible since it would enable the party to the consent terms to unilaterally resile from a portion of the consent terms. That apart, the undertaking was to withdraw the testamentary proceedings which had been instituted for seeking letters of administration in respect of a purported will dated 20 December 1988. It is trite law that the testamentary court is not concerned with a question of title : In a petition for probate or for the grant of letters of administration, the Court is concerned with the authenticity of the will which is sought to be propounded by the propounder of the will. A question on title is alien to the proceedings for probate or for the letters of administration. What Shantabai Joshi sought to assert during her life time was the genuineness of the will dated 20 December 1998 and that was the claim which she gave up by entering into consent terms, particularly Clause-7 thereof. It was clearly not open to the Appellants to seek a modification of the consent terms by instituting a Motion to that effect. 13. It was clearly not open to the Appellants to seek a modification of the consent terms by instituting a Motion to that effect. 13. During the course of hearing learned counsel for the First and the Second Respondents questioned the locus of the Appellants on the basis that the power of attorney executed by Shantabai Joshi in favour of Suresh Satam on 8 April 2004 (of which inspection has been given to the First and the Second Respondents) in fact affirms the consent terms that were arrived at on 16 January 2004; the payment of Rs.50.00 lakhs to Shantabai Joshi in pursuance thereof and authorizes the constituted attorney to distribute the proceeds so received. Faced with this, learned counsel for the Appellants has sought to rely upon an earlier power of attorney dated 26 March 2003. Evidently the earlier power of attorney was entered into prior to the execution of the consent terms dated 15 January 2004. It has been submitted before the Court that the subsequent power of attorney dated 8 April 2004 authorizing Suresh Satam as a constituted attorney cannot be pressed in aid even to move the proceedings before the court in the Motion. Be that as it may, we have considered the merits of the Motion and have found that there was no substance therein. 14. The learned Single Judge has devoted a considerable amount of effort in arriving at a finding that during her life time, the testatrix had alienated CTS No.421/5 by a registered deed of conveyance. For the purposes of these proceedings it is not necessary for the Court to dwell upon that aspect of the matter since in our view, the judgment of the learned Single Judge can be affirmed though for the reasons which we have indicated above. 15. For the reasons indicated above, we hold that the Motion taken out by the Appellants seeking a variation of the consent terms was misconceived and was liable to be dismissed. 16. Consequently we find no merit in the appeal. The appeal shall accordingly stand dismissed. 17. In view of the dismissal of the appeal, the Motion taken out in the appeal being Notice of Motion No.1116 of 2003 will not survive and is accordingly disposed of. There shall be no order as to costs.