In The High Court At Calcutta Testamentary And Intestate Jurisdiction Original Side TS3of 2008 PLA206of 1999 In the Goods of: Pratibha Sundari Devi, Deceased And In the Matter of: Saurabh Ghosal -Vs.Smt.
Anupama Roy Choudhury And EOPLA1of 2013 Arising Out of: OS5of 2000 In the Goods of: Pratibha Sundari Devi, Deceased And In the Matter of: Dipendu Kumar Roy Chowdhury -Vs.Sukhendu Roy Chowdhury & ORS.Before : The Hon’ble Justice Arijit Banerjee For the Plaintiffs : Mr.Reetobroto Mitra, Adv.Ms.Nilanjana Adhya, Adv.Ms.DebORS.Dutta, Adv.Heard on : 22/07/2015 & 29/07/2015 CAV On : 29/07/2015 Judgment On : 16/10/2015 Arijit Banerjee, J.: (1) The present proceedings concern two Wills of Lt.
Pratibha Sundari Devi.
She died on 10th June, 1998.
(2) The two Wills alleged to have been executed by the said deceased have surfaced after her demise.
One is a Will dated 16th June, 1996.
The other is a Will dated 8th April, 1997.
(3) The executor named in the Will dated 16th June, 1996 filed an application for probate of the said Will before the Ld.
Alipore Court.
Such probate was granted by an ex parte decree and order dated 21st February, 2001, without citation having been issued to the heirs of the testatrix.
The executor named in the Will dated 8th April, 1997 applied for probate of the said Will in this Court by filing PLA No.206 of 1999.
The applicant for probate before the Ld.
Alipore Court in respect of the 1996 Will being one Dipendu Krishna Roy Chowdhury had filed a caveat in this Court and substantially filed an affidavit in support thereof.
Accordingly PLA No.206 of 1999 was marked as contentious cause and was renumbered as TS No.3 of 2008.
(4) The executor named in the 1997 Will of the deceased filed an application before the Ld.
Alipore Court for revocation of the probate granted in respect of 1996 Will of the deceased.
By a judgment and order dated 20th July, 2011 the said probate was revoked.
(5) The plaintiff in the suit before this court filed an application under Clause 13 of the Letters Patent for transfer of the proceedings pertaining to the 1996 Will of the deceased from the Ld.
Alipore Court to this Court.
By an order dated 24th April, 2013 OS No.5 of 2000 was transferred to this Court and was renumbered as EOPLA No.1 of 2013.
(6) Upon the demise of the propounder of the 1996 Will of the deceased, being the caveator before this court, his wife and only legal representative Smt.
Anupama Roy Chowdhury was substituted in his place and stead.
No affidavit in support of the caveator has been filed by her as the substituted caveatrix.
In the aforesaid factual matrix, both TS No.3 of 2008 and EOPLA No.1 of 2013 have been taken up together for disposal.
(7) In spite of notices having been served on Smt.
Anupama Roy Chowdhury being the defendant in TS No.3 of 2008, nobody appeared at the time of hearing.
I have heard Mr.Reetobroto Mitra, Ld.
Counsel appearing for the plaintiff in TS No.3 of 2008.
RE: TS3of 2008:(8) Although the substituted caveatrix did not file any affidavit, the affidavit filed in support of the caveat by the original caveator Dipendu remains on record.
Mr.Mitra, Ld.
Counsel for the plaintiff submitted that by way of abundant caution he would like to deal with the points raised in the said affidavit of Dipendu.
(9) In the said affidavit in support of the caveat it has been stated that the testatrix was not in a sound mind at the time when she made and published the Will of April 1997.
In response, Mr.Mitra, Ld.
Counsel submitted that no evidence has been led that the testatrix was not in a sound mind at the time of execution of the Will.
On the contrary, Md.Rauf Ali the fiRs.attesting witness, has deposed in his examination-in-chief that the testatrix was mentally sound and physically in good health.
Ld.
Counsel drew this court’s attention to question No.16 of Md.Rauf Ali’s deposition.
He also drew this court’s attention to question Nos.14 and 15 of the deposition of Hirak Banerjee, the second attesting witness who also deposed that the testatrix was in sound mind and was physically fit at the time of making the said Will.
No evidence has been led as to the mental instability of the testatrix and the evidence adduced by the attesting witnesses was not controverted.
As such, the contention that the testatrix did not have the mental capacity to make the Will cannot be accepted.
From the record I find that in the affidavit of Dipendu there is only a bald assertion as regards the mental incapacity or physical ill health of the testatrix.
It is a mere ipse dixit.
adduced to corroborate such statement.
No evidence was On the contrary, the two attesting witnesses clearly deposed that the testatrix was mentally alert and was keeping good health.
In that view of the matter, the fiRs.contention raised in Dipendu’s affidavit stands rejected.
(10) The second point raised in the said affidavit is that the bequest made by the testatrix in the Will dated 8th April, 1997 is an unnatural bequest.
In response Ld.
Counsel submitted that the property in question being No.206 Harish Mukherjee Road, Calcutta being the subject matter of the bequest is admittedly a property inherited by the testatrix from her father.
Under Section 15(2)(a) of the Hindu Succession Act, such property inherited from the father by any Hindu lady shall devolve in the absence of any son or daughter or children of any pre-deceased son or daughter, on the heirs of the father of such Hindu lady.
In this connection Mr.Mitra relied on a decision of the Hon’ble Apex Court in the case of Bhagat Ram (dead) by LRs.-vs.-Teja Singh (dead) by LRs.Reported in (2002) 1 SCC210 Mr.Mitra states that the beneficiary under the Will in question, Sashanka Sekhar Ghoshal is the son of the sister of the testatrix and the only legal heir on the father’s side of the testatrix.
Hence, the bequest under the Will is not an unnatural bequest.
I am in agreement with Mr.Mitra’s submission.
Had the testatrix died intestate, her estate would have devolved on her father’s heirs since admittedly she inherited the property forming the subject matter of the Will in question, from her father.
This is what is prescribed by Section 15(2)(a) of the Hindu Succession Act, 1956 and clarified by the Hon’ble Supreme Court in the case of Bhagat Ram (supra).While explaining the rationale behind Section 15 of the Hindu Succession Act, the Hon’ble Supreme Court observed that the source from which a Hindu female inherits the property is always important and that would govern the situation.
Otherwise, persons who are not even remotely related to the person who originally held the property would acquire right to inherit that property.
That would defeat the intent and purpose of Section 15(2) of the Act which gives a special pattern of succession.
Hence, I find nothing unnatural with the bequest under the Will in question.
The second point of objection raised in Dipendu’s affidavit is also rejected.
(11) The third point taken in the said affidavit is that the signature on the Will in question is not that of the testatrix.
Ld.
Counsel for the plaintiff submitted that no evidence has been led by the original caveator or the substituted caveatrix on this issue.
On the contrary, the two attesting witnesses have deposed that they were personally present and had seen the testatrix sign the Will.
In this connection this Court’s attention was drawn to question Nos.10 to 12 of the deposition of Hirak Banerjee and question Nos.11 and 15 of the deposition of Md.Rauf Ali.
I am in agreement with the submission of Mr.Mitra.
There is only a bare allegation in the affidavit in support of the caveat that the signature on the Will is not that of the testatrix.
Absolutely no evidence has been adduced in support of such assertion.
On the other hand, the two attesting witnesses have unequivocally deposed that the testatrix singed the Will in their presence.
Hence, the third contention of the Dipendu is also rejected.
(12) The only other point raised in the said affidavit is that the Will is not attested by any family member.
This is a point which is noted only to be rejected.
There is no requirement in law that a Will is to be attested by a family member of the testator/testatrix.
The only requirement under Section 63 of the Indian Succession Act is that the Will shall be attested by two or more witnesses, each of whom has seen the testator sign the Will.
(13) In view of the aforesaid, none of the contentions raised in Dipendu’s deposition has any substance.
I have carefully gone through the Will in question.
It is a cogently worded document clearly expressing the intention of the testatrix as to how the property in question shall devolve.
It is signed by the testatrix and attested by two witnesses who have clearly deposed that the testatrix signed the Will in their presence and that the testatrix was in good health and her mental faculties were alert at the time when the Will was executed.
Such evidence is uncontroverted.
The bequest made by the Will is not unnatural and had the testatrix died without making a Will, the property in question would have devolved on the same person who is the beneficiary under the Will, by operation of Section 15(2)(a) of the Hindu Succession Act.
No case has been made out that execution of the Will is shrouded in suspicious circumstances.
All the requirements of law for making and publishing a valid Will are satisfied.
(14) In view of the aforesaid I see no reason for withholding grant of probate in respect of the Will dated 8th April, 1997 made and published by Pratibha Sundari Devi.
Accordingly, the Will is admitted to probate.
Probate in respect of the said Will of the deceased dated 8th April, 1997 is granted to the petitioner as the sole executor named in the said Will limited to the estate mentioned therein with effect throughout the State of West Bengal without furnishing any security thereof.
Let the costs of this proceeding come out of the estate of the deceased.
TS No.3 of 2008 is accordingly disposed of.
Re: EOPLA No.1 of 2013 (15) This application for probate of the Will of the deceased dated 16th June, 1996 has not been prosecuted or pressed.
Nobody appeared in support of this application.
(16) In any event, in view of this court having admitted to probate the subsequent Will of the deceased dated 8th April, 1997, the earlier Will dated 16th June, 1996 cannot have any validity.
EOPLA No.1 of 2013 is accordingly dismissed.
(17) Both TS No.3 of 2008 and EOPLA No.1 of 2013 are accordingly disposed of.
(Arijit Banerjee, J.) Later: In view of the judgment and order dated 16th October, 2015 passed in TS No.3 of 2008 and EOPLA No.1 of 2013, the administrator pendente lite appointed by the order dated 6th January, 2003 is discharged subject to his filing proper accounts and a comprehensive report as to what duties he has discharged.
Such accounts and report are to be filed on 23rd November, 2015 when this matter will appear in the list as ‘To be Mentioned’.
Certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Arijit Banerjee, J.)