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2012 DIGILAW 930 (CAL)

Bibhabati Chattopadhyay @ Bibhabati Chatterjee @ Smt. Bibhabati Devi @ Bibhabati Devi v. .

2012-10-09

ASIM KUMAR RAY

body2012
Judgment :- Asim Kumar Ray, J. The suit was registered on the basis of an order converting the application for probate of a will dated 30-10-1991 allegedly executed by one Smt.Bibhabati Chatterjee @ Bibhabati Chatterjee @ Smt.Bibhabati Devi @ Bibhabati Devi, wife of late Phanindra Chandra Chattopadhyay @ Chatterjee of 62F/1 , Maharaja Tagore Toad, Dhakuria , P.S. Jadavpur , Calcutta-700 031 into a contentions clause. Application was made by the sole executor /propounder Mukul Chandra Chattejeee, younger son of the testratix. Bibhabati died on 20-10-2004. Her husband predeceased her. She was the mother of two sons and two daughters, namely, Kamal Chandra Chattejee who predeceased her and died in 1991, Mukul Chatterjee, Gita Banerjee and Jyotsna Bhattacharjee. On 26.04.2010 Mukul Chandra Chatterjee filed the probate application annexing the original Will typed in Bengal language and character. Gita Banerjee filed an affidavit giving consent to the grant of probate in favour of the propounder and Jyotsna Banerjee has neither filed any caveat nor oppose the grant of probate. English translation of the vernacular Will has also been field with the application. On presentation of the application special citation was issued for service upon the legal heirs of the testatrix. In response, Arati Chatterjee, wife of the predeceased son of the testratix only lodged caveat on 04.11.2008 and subsequently filed her affidavit in support of the caveat. She questions the genuineness of the ill stating that the testatrix was seriously ill and was suffering from paralysis since 2004. She was under medical treatment. She was not in a position to put signature on any document for long time before her death. She has never executed any will or testament. In support of their cases propounder Mukul Chandra Chatterjee examined Paresh Nath Dutta, one of the person signing the Will as witnesses and himself and Caveatrix Arati Chatterjee examined herself as her witness. Original Bengali will dated 30-10-1991 of the testratix , death certificate of the testratix, signature of Gita Banerjee, signature of Paresh Nath Dutta, signature of Mukul Chandra Chatterjee, general power of attorney , signatures appearing on power of attorney and a letter dated 25-2-1991 of Gita Banerjee have been marked as exhibit A, ext. B, ext. C, ext. D, ext. E, ext. F, ext. F1 , ext.F2 and ext. G respectively. No other documentary evidence was adduced by the parties. The suit was taken up for argument. B, ext. C, ext. D, ext. E, ext. F, ext. F1 , ext.F2 and ext. G respectively. No other documentary evidence was adduced by the parties. The suit was taken up for argument. Argument was heard. It was revealed subsequently at the time of writing the judgment that the issues were not framed and recorded. Under that circumstances before proceeding further this Court heard the learned counsels of the parties and on perusal of the pleadings settled, framed and recorded the following issues: 1. Whether the application for grant of probate is maintainable in its present form and in law ? 2. Whether the will was duly executed in accordance with law by the testatrix, since deceased? 3. Whether the caveatrix have made out any case in the affidavit filed by her in support of the caveat lodged by her? 4. Whether the propounder , being the executor of the will is entitled to the reliefs as prayed for ? All the issues are taken up together to avoid repetition for the sake of brevity and convenience. Mr. Sailenndra Chatterjee, learned counsel appearing for the caveatrix has contended that testratix never executed any Will or testament as she was not in a position to put signature on any document for long time before her death due to her serious illness and resultant paralysis. Mr. Dhruba Ghosh, learned counsel appearing for the propounder has contended in support of the prayer for probate. He has contended that the propounder has discharged the onus of proving of due execution of the Will. The Will was registered before the District Sub-Registrar office at Alipore, South 24-Parganas He has submitted that the Will has been duly proved by the witness in accordance with Section 281 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The propounder has deposed as to the mental and physical health of the testatrix at the time she made her Will which has not been contoverted by any evidence by the caveatrix. It is apparent from the document /Ext. A that it was described as a last Will of the testatrix. By it the testatrix disposed of her two storied building situated on cottahs 5 chittacks of land at 62F/1, Maharaja Tagore Road , Kolkata-700 031. The testatrix left the said immovable property to her surviving son , propounder Mukul Chandra Chatterjee. It is apparent from the document /Ext. A that it was described as a last Will of the testatrix. By it the testatrix disposed of her two storied building situated on cottahs 5 chittacks of land at 62F/1, Maharaja Tagore Road , Kolkata-700 031. The testatrix left the said immovable property to her surviving son , propounder Mukul Chandra Chatterjee. The testatrix has expressed her Will further to the effect that the widow of her predeceased son i.e. the caveatrix will get a legacy of Rs. 50,000/-and her two children Rs. 25,000/-each. The two daughters of the testatrix were also given Rs. 50,000/-each by the testatrix in her Will. The testatrix bequeathed her pension fund with United Bank of India to the Bharat Sevashram Sangha. All the four pages of the Will bear the signature of the testatrix. At the last page of the will Paresh Nath Dutta, Advocate and Binoy Dutta signed as witnesses. Witness Paresh Nath Dutta has stated in his evidence that he prepared/drafted the last instrument of will of Bibhabati at her request. Bibhabati knew that he used to practice law i.e, why she requested him to prepare her will. They were neighbour too. He along with Bibhabati went to the office of Registrar at Alipore. Bibhabati made her signatures on the will in his presence in the office of Registrar at Alipore. Bimal Dutta another witness of the will and Mukul Chandra Chatterjee son of Bibhabati were also present at the time of his signature on the will as witness. He has identified the signatures of the testatrix and Bimal Dutta, his elder brother. He has further stated that Bibhabati Chattopadhyay put her thumb impression on the instrument also in his presence. The Registrar put his signature too on the will in his presence. He has also deposed stating that Bibhabati Chattopadhyay was between 72 to 75 years old at the time of making her will. She was mentally and physically fit and sound and her memory was O.K . Bibhabati Chattopadhyay signed the document after understanding the purport of the same. Witness Paresh Nath Duta was subjected to cross-examination and his evidence regarding execution of the instrument by the testatrix as well as registration of the document at the office of the registrar at Alipore remained uncontroverted. Bibhabati Chattopadhyay signed the document after understanding the purport of the same. Witness Paresh Nath Duta was subjected to cross-examination and his evidence regarding execution of the instrument by the testatrix as well as registration of the document at the office of the registrar at Alipore remained uncontroverted. Section 68 of the Indian Evidence Act, 1872 provided that if a document is requried 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. Section 63 (C) of the Indian Succession Act, 1925 provides that a will shall be attested by two or more witnesses. On plain look of the will we notice that the will has been attested by two witnesses. To prove the due execution of the will the propounder was required to examine at least one of the attesting witnesses. Admittedly, that requirement has been fulfilled. One of the attesting witnesses Paresh Nath Dutta has been examined. His evidence stood as it is on cross-examination to show that the will was duly executed. Propounder in course of his evidence has stated that his father Phanindra Nath Chatterjee died in the year 1970 and since then the testatrix lived with him and his family. The elder son Kamal Chandra Chatterjee used to work in Ghaziabad and used to reside there with his family. The children of Kamal Chandra Chatterjee are Rahul Chattejee and Shrabani Joshi. They are well placed in their lives as will apparent from the evidence of the propounder. They look after their mother, the caveatrix. There is evidence to the effect that all other grand children of the testatrix are also doing well in life and the relationship between the members of the family are otherwise cordial. The will was executed in the year 1991 and duly registered on 30-10-1991. Admittedly, the testatrix died in 2004 which is nearly 13 years after execution of the will. There is no substantive evidence from the side of the caveatrix to show as to what sorts of serious illness which Bibhabati was suffering from. There is no evidence to the effect to substantiate the claim of the caveatrix that Bibhabati was suffering from paralysis since 2004 and was under medical treatment. There is no substantive evidence from the side of the caveatrix to show as to what sorts of serious illness which Bibhabati was suffering from. There is no evidence to the effect to substantiate the claim of the caveatrix that Bibhabati was suffering from paralysis since 2004 and was under medical treatment. The caveatrix did not tender any evidence to support her claim that her mother-in-law never executed any will or testament and she was not in a position to put signature on any document for long time before her death. There is no evidence from the table of the caveatrix to disprove the signature of the testatrix and even there was no attempt to do show. The evidence of the propounder and attesting witness to the effect that the testatrix was mentally and physically sound having good health at the time when she made her will has not been controverted by any evidence of the caveatrix. True, it is that the Will in question is a registered one. Propounder has satisfactorily discharged his onus of proving that it was duly executed by Smt.Bibhabati Chatterjee @ Bibhabati Chatterjee @ Smt.Bibhabati Devi @ Bibhabati Devi and attested by Paresh Nath Dutta and Bimal Dutta. Under the circumstances, I am of the view that the Will demands admission to probate. For the reasons placed above, I answer all the issues in the affirmative, allow the probate application and order that probate as prayed for shall be granted . Cost of the probate application shall be paid out of the fund or properties left by the testatrix.