ORDER
GA No.921 of 2013 GA No.748 of 2013 GA No.749 of 2013 TS No.18 of 2012 IN THE HIGH COURT AT CALCUTTA Testamentary & Intestate Jurisdiction IN THE GOODS OF: SAJANI DEVI BHARTIA (DECEASED) JAGMOHAN KEJRIWAL & ORS.-VSASHRANT BHARTIA & ANR.
BEFORE: The Hon'ble JUSTICE SOUMEN SEN Date: 24th January, 2014.
Appearance: Mr.Sudipto Sarkar, Sr.Advocate Mr.Abhrajit Mitra, Advocate Ms.Mousumi Bhattacharya, Advocate Mr.C.M.
Ghorawat, Advocate Mr.S.Kanti Chakraborty, Advocate …for the plaintiffs Mr.Pratap Chatterjee, Advocate Mr.Amitesh Banerjee, Advocate Mr.Jishnu Chowdhury, Advocate Mr.Sanjiv Kr.
Trivedi, Advocate Mr.Sandip Dasgupta, Advocate Mr.Arnab Sardar, Advocate …for the defendants Court: The three applications being GA No.921 of 2013, GA No.748 of 2013 and GA No.749 of 2013 are taken up for hearing and are disposed of by this common judgment and order.
The three applications are arising out of a probate application filed by Jagmohan Kejriwal, Uma Shankar Bhartia, Raj Kumar Bartia, Pradip Kumar Khaitan for grant of probate of the last Will and testament dated 8th March, 2007 of Sajani Bhartia in the capacity of joint executors and trustees.
Devi Orders of special and general citation have been issued on 4th November, 2009 pursuant whereof Ashrant Bhartia and Priyal Bhartia filed an affidavit in support of the caveat.
In view thereof, the probate application has been marked as a contentious cause.
Subsequent thereto by an order dated 24 January, 2013 directions have been passed for discovery and inspection.
The probate application was marked as a contentious cause and numbered as TS No.18 of 2012.
Thereafter two applications have been filed by the defendants for alleged offences under Sections 193 to 200 of the Indian Penal Code and for dismissal of the testamentary suit.
The basis of both the applications is that verification of the probate application is false.
petition It was contended that it is unbelievable that the could have been signed by three persons namely the plaintiff Nos.1, 2 and 4 in three different cities on the same date being July 29, 2009.
false.
The verification is also alleged to be The verification is dated July 29, 2009 by the plaintiff Nos.1, 2 and 4 and dated September 9, 2009 by the plaintiff no.3.
The petition also refers a certificate dated September 4, 2009.
Annexure-H to the petition is a certificate dated September 8, 2009.
The petition could not have referred to or enclosed such certificate if it was verified on July 29, 2009.
The affidavit of assets forming a part of the petition is also affirmed on August 25, 2009.
This is also not possible if this petition was verified on July 29, 2009.
It is thus stated that the petitioners have perpetrated upon fraud fraudulent.
the Court and the verification is These allegations have been the basis of both the petitions seeking different reliefs.
The third petition being GA No.921 of 2013 is an application for amendment connection of with the probate the said application.
application The have plaintiffs also filed in a supplementary affidavit affirmed by Govind Ram Goenka on July 5, 2013 disclosing certain documents in support of the amendments prayed for in the said petition.
The petitioners admit that there are explain certain discrepancies and such discrepancies by contending that due to inadvertence on the part of the dealing advocate’s assistant at the time of finalizing the petition, certain mistakes have occurred which are completely unintentional.
In order to explain the conduct of the petitioners and to establish their bona fide, it is stated that after receiving the two several applications for perjury and dismissal as mentioned hereinabove, it occurred to the petitioners that such mistakes have crept in the verification of the petition.
It is stated that although it would appear from the verification of the plaintiff Nos.1, 2 and 4 that they have verified the petition all on July 29, 2009, in fact, the said plaintiffs verified the petition on September 11, 2009, September 12, 2009 and September 14, 2009.
The plaintiff no.3 verified the petition at Calcutta on September 9, 2009.
Thereafter, the papers were sent to Delhi for signature of plaintiff no.2.
The plaintiff no.2 was residing at Delhi.
September 10, 2009 the plaintiff no.4 was at Delhi.
On On September 11, 2009 the petition was handed over to the plaintiff no.4 duly verified by the plaintiff no.2 in Delhi.
September 12, 2009 left for Bombay The plaintiff no.4 on by Kingfisher Airlines departing early in the morning.
The plaintiff no.4 carried the papers 12, with him.
On September 2009, the plaintiff no.1 verified the petition at Bombay and thereafter returned the papers to the plaintiff no.4.
The plaintiff no.4 returned to Calcutta from Bombay by Kingfisher Airlines departing at around 5:20 p.m.on September 13, 2009.
The plaintiff no.4 thereafter verified the petition at Calcutta on September 14, 2009.
The plaintiffs admit that the verification of the plaintiff nos.1, 2 and 4 dated July 29, 2009 have been done mistakenly.
The plaintiffs have referred truthfulness to statements the made boarding in the passes to application prove for amendment.
of the It was submitted that so far as verification of Raj Kumar Bhartia is concerned, there is no dispute with regard to the said fact and the other dates mentioned in the verification of the other three plaintiffs were mentioned incorrectly.
However, such mistake was committed by the dealing assistant of the advocate.
Sarkar, learned Senior Counsel appearing on Mr.Sudipto behalf of the plaintiffs submitted that the said date namely, July 29, 2009 as the date of verification of the three plaintiffs occurred due to mistake committed by the dealing assistant since he had inadvertently relied upon the dates of affirmation notary public which were all done on July 29, 2009.
before the Mr.Sarkar referred to the notarial certificates along with affidavits of the attesting witnesses.
He says that all the said affidavits have been affirmed before the notary public on July 29, 2009.
It is submitted that it was this date which had inadvertently found place in the verification of the said three plaintiffs and there has been no mala fide intention in mentioning the said dates.
Mr.Sarkar referred to Section 281 of the Indian Succession Act, 1925 which requires that the application for grant of probate shall also be verified by at least one of the witnesses.
The petition for probate under Section 280 of the Indian Succession Act is required to be verified by the petitioneRs.In the instant case the attesting witnesses have already verified the petition and at least one of the plaintiffs who is one of the executors of the Will have verified the petition on September 9, 2009 which is not in dispute.
The conduct, according to Mr.Sarkar, shows that such mentioning of wrong dates in the verification clause is purely unintentional, accidental and the petitioners would be allowed to rectify the said defects.
Mr.Pratap Chatterjee, learned Senior Counsel appearing with Mr.Amitesh Banerjee and Mr.Jishnu Chowdhury submitted that this amendment application has been filed in order to make the pending applications infructuous.
It is stated that the petitioners have failed to explain the discrepancies in dates and because of the fraudulent conduct as elaborately stated in the applications, the said application however, not Chatterjee.
for amendment inclined to should accept the be dismissed.
submission made I am, by Mr.It is true that there have been some lapses on the part of the plaintiffs in filing the applications for grant of probate insofar petition.
as it relates to verification of the said The petitioners should have been more cautious and careful in filing a proper application.
The verification should not have been made in a casual manner and the defect can even result in the dismissal of the plaint.
Order 6 Rule 15 Sub-Rule (3) of the Code of Civil Procedure requires that the verification shall be signed by the person making it and he shall state the dates on which and the place at which it was signed.
In respect of the three of the plaintiffs, no doubt, there have been some lapses insofar as it relates to the fulfillment of the requirement of Order 6 Rule 15 Sub Rule (3) of the Code of Civil Procedure.
However, having regard to the explanation offered in the petition for amendment as well as having regard to the fact that the petition has been duly verified by one of the executors on a date which is not in dispute and by the attesting witnesses, the plaint as it mistake stands could had occurred proceed.
due to Moreover, the casual it appears manner in that such which the concerned advocate has dealt with the matter without realizing the implication of Order 6 Rule 15 Sub-Rule (3) of the Code of Civil Procedure.
This could have been fatal in a given situation calling for dismissal.
However, for the reasons I have recorded and in view of the fact that directions have been passed with regard to discovery and inspection of documents as early as in January 2013, I am inclined to allow the application for amendment.
not any prejudice to the defendants.
Such amendment shall also Accordingly, there shall be an order in terms of prayers (a) and (b) of GA No.921 of 2013.
Such amendment shall be carried out within a period of three weeks from date and the plaintiffs shall supply a copy of duly amended and re-verified thereafter.
plaint to the defendants within two weeks The plaintiffs shall pay costs of Rs.10,000/- to the defendants as a condition precedent for availing the benefit of this order.
Such cost shall be paid within a week from date.
In the event cost is not paid, the order of amendment passed shall stand recalled.
In view of the order passed in GA No.921 of 2013 allowing amendment, GA No.748 of 2013 and GA No.749 of 2013 are dismissed.
Department and all parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(SOUMEN SEN, J.) B.Pal/S.
Kumar A.R.(C.R.)