ORDER
SHEET APD1552011 TS32006 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE SISIR BANERJEE Versus SHRIMATI SUJATA SENGUPTA BEFORE: The Hon'ble MR.BANERJEE, ACTING CHIEF JUSTICE The Hon’ble Jusitce ARIJIT BANERJEE Date : 17th July, 2014.
Mr.S.N.Sanyal, Advocate Ms.Lovely Ghosh, Advocate for the appellant.
Mr.Sakya Sen, Advocate Ms.Nilanjana Adhya, Advocate Mr.Supratim Basu, Advocate for the respondent.
The Court : The testatrix, Bakul Banerjee, was a spinster.
She was having her own house at AB-124, Salt Lake City, Sector-1, Calcutta – 700 064 where she breathed her last.
She had three brothers and one married sister.
She had her mother surviving her.
The mother subsequently died.
She bequeathed her property and all her assets to her sister Smt.Sujata Sengupta.
She made Sadhan Ranjan Banerjee as the executor who subsequently declined to act.
Out of three brotheRs.two subsequently came to this Court and prayed for condonation of delay in lodging the caveat.
Such application was allowed at the appellate stage and two brothers were allowed to contest the probate proceeding.
Since the executor subsequently declined to act any further, the proceeding was converted into an application for Letters of Administration to the legatee Smt.Sujata Sengupta.
Subsequently, the proceeding was converted into a contentious cause.
On a combined reading of the affidavit in support of the caveat and the available evidence that Sr.Sisir Banerjee deposed before the learned single Judge, we find, the case of the caveators as made out is, the premises no.AB124, she, in fact, jointly owned with her brotheRs.The lady did not have sufficient resource to build the said house and her brothers also contributed.
Hence, she could not have bequeathed the said property exclusively to her sister to the exclusion of the brotheRs.This case, in our view, would have no leg to stand.
We are concerned with the application for Letters of Administration with a copy of the Will annexed.
The Will would bequeath all her properties and assets to Smt.Sujata Sengupta.
Whatever might be the worth of her properties and whatever might be the title that she would have in respect of the properties, would be of no consequence.
We are only to authorise the legatee by giving her the Letters of Administration of the estate of the testatrix as per her last wish expressed in the Will.
We are only concerned whether the propounder or the applicant, as the case may be, was successful in proving the execution of the said Will.
Under Section 63 of the Indian Succession Act, every testator shall execute his Will according to the rules that would, inter alia, provide, he has to sign or affix his mark to the Will and the said Will shall be attested by two or more witnesses each of whom must see the testator signing or affixing his mark to the Will and each of the witnesses shall sign the Will in presence of the testator but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.
Section 68 of the Indian Evidence Act, 1872 would provide, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
On a combined reading of the two provisions as stated above, our understanding of the law on the subject is, in any case of the like nature one has to prove, testator/testatrix, as the case may be, signed the Will in presence of the attesting witnesses and the attesting witnesses signed the Will in presence of the testator meaning thereby, all three must sign one after the other and each one must be present while other two would be signing.
With this mindset, may we examine the evidence of the attesting witnesses.
We find, both of them filed affidavit proving their signatures and the signature of the testatrix.
One of the attesting witnesses, Santosh Kumar Mitra, in reply to question nos.12, 13, 14 and 15, would identify the signature of the testatrix as well as other attesting witnesses.
He would also depose when, testatrix had put her signature on the Will, both the attesting witnesses were present in the same room along with the testatrix.
After the testatrix had put her signature, he signed the Will.
The testatrix and the attesting witnesses were in the same room when the other attesting witness had put his signature in the Will.
This is sufficient to prove the attestation.
Mr.Sanyal appearing for the appellant/caveator would refer to the evidence of the appellant to the extent, he was driven out from the house in 1994 and since then he was residing at Asansol.
After getting the news of ailment of the testatrix, he attempted to see her.
However, the security people did not allow him to enter into the house.
This would be found at page 69 of the paper book.
The appellant also deposed, their sister was under complete clutches of the legatee being the other sister.
However, such was the feeling of the appellant without having any proof.
In this regard we may refer to his answer to question nos.109 and 113 appearing at pages 79-80 of the paper book.
The testatrix was mentally alert and physically stable as we find from the reply of the other attesting witness in question no.30 who was medical practitioner treating her during her ailment.
In such circumstances, we are of the view, the learned Judge rightly granted the Letters of Administration.
The learned Judge while granting the Letters of Administration observed, “validity of the Will has not otherwise been questioned”.
Mr.Sanyal appearing for the appellant could not confront such observation of His Lordship.
The appeal fails and is hereby dismissed.
There would be no order as to costs.
(BANERJEE, ACJ.) (ARIJIT BANERJEE, J.) sd/