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2013 DIGILAW 875 (CAL)

Hari Prakash Gupta v. Raja Ram Shaw

2013-11-29

SUBAL BAIDYA

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JUDGMENT : Subal Baidya, J. 1. This is an application under Article 227 of the Constitution of India wherein it has been stated that the petitioner filed Probate Case No. 68 of 1998 in the City Civil Court at Calcutta for obtaining probate of the Last Will and Testament promulgated and published by Smt. Mongal Devi (deceased), wife of Sri Raja Ram Shaw, the opposite party and the said probate case is spending before the learned Chief Judge, City Civil Court at Calcutta and the said Will was executed and attested on 23rd December, 1993 by the Testatrix who executed by putting her left thumb impression which was identified by her husband Raja Ram Shaw, the opposite party and the said Will was also notarised on the same date of execution and attestation of the same. It has also been stated in the application that the husband of the Testatrix is one of the attesting witnesses of the said Will under probate and he is the first attesting witness and in order to prove the execution and due attestation of the said Will, the attesting witness Sri Raja Ram Shaw has been cited as a witness who has filed his affidavit-of-evidence in examination-in-chief in which he has clearly identified the left thumb impression of the Testatrix and his signature as identifier of the said left thumb impression and also as the attesting witness of the said Will. It is further stated that the application for probate is not a contesting one since the said Sri Raja Ram Shaw is the sole heir and legal representative of the Testatrix and he has filed the said affidavit- of- evidence in support of the petitioner. 2. It has further been stated in the application that the Testatrix in her last Will under probate stated, inter alia, that she executed and registered another Will in the office of the Sub-Registrar of Assurance, Calcutta dated 23.08.1949 in respect of the same property in favour of her husband Sri Raja Ram Shaw. 2. It has further been stated in the application that the Testatrix in her last Will under probate stated, inter alia, that she executed and registered another Will in the office of the Sub-Registrar of Assurance, Calcutta dated 23.08.1949 in respect of the same property in favour of her husband Sri Raja Ram Shaw. It has also been stated that the learned Chief Judge, City Civil Court at Calcutta did not consider the evidence of the husband of the Testatrix who is the identifier of the left thumb impression of the Testatrix, but directed the petitioner to cause production of the said Will dated 23.08.1949 for comparing the left thumb impression of the Testatrix in the Will under probate. It has also been stated that the Testatrix in her Will under probate clearly stated that her right hand was paralysed before the execution of the last Will and that is why she put her left thumb impression in execution of the Will which her husband, her only legal heir, identified. It has also been stated that the Testatrix executed the Will dated 23.08.1949 by signing it when she was young and the last Will under probate was executed at the fag end of her life when her right hand including right side of her body was paralysed and as such she has executed the will by putting her left thumb impression. It has also been stated that the Testatrix, besides the Will dated 23.08.1949, did not execute any other document by putting her signature and also besides the Will under probate, the Testatrix did not execute any document by putting her left thumb impression. It has also been stated that the learned Chief Judge City Civil Court, Calcutta by the impugned order directed for causing production of the Will dated 23.08.1949 with a further direction to the effect that failure on the part of the petitioner to produce the said Will, the probate application Will be dismissed. 3. It has also been stated that the learned Chief Judge City Civil Court, Calcutta by the impugned order directed for causing production of the Will dated 23.08.1949 with a further direction to the effect that failure on the part of the petitioner to produce the said Will, the probate application Will be dismissed. 3. That being aggrieved by and dissatisfied with the impugned order No. 63 dated 18.02.2006 the petitioner has moved this Hon'ble Court by filing the instant application on the ground that there is no challenge in respect of the execution and attestation of the Will under probate and also when the sole legal heir and representative of the deceased Testatrix, the husband as well as the opposite party of the present proceeding being an identifier of the L.T.I. of the Testatrix of the Will as well as the first attesting witness of the said Will has filed his affidavit-of-evidence in examination-in-chief in favour of the present petitioner, the direction of the learned Chief Judge given by the impugned order has caused the failure of justice and not being sustainable in law is liable to be set aside. 4. I have gone through the impugned order, the instant application the xerox copy of the notarised Will under probate and also the xerox copy of the affidavit- of-evidence in examination-in-chief of the husband of the Testatrix submitted in favour of the present petitioner in the probate proceeding. I have also heard the learned advocate for the petitioner who submitted that it is settled principle of law that the execution of a Will can be by putting signature or by putting left thumb impression or even by putting a pen mark in the Will. Perused also the provision of Section 68 of the Indian Evidence Act. 5. It is true that the Will is a document of whose execution requires attestation compulsorily by the attesting witnesses and in order to prove the said Will in a Court of law at least one of the attesting witnesses as per provision of Section 68 of the Indian Evidence Act requires to be examined. The probate proceeding pending in the City Civil Court is not contested by anyone, that is, the Will under probate has not been challenged by anybody. The probate proceeding pending in the City Civil Court is not contested by anyone, that is, the Will under probate has not been challenged by anybody. Rather it is found that the sole legal heir and representatives of the Testatrix died on 19.01.2007, the husband is the identifier of the L.T.I. of the Testatrix in the Will and not only so, the husband of the Testatrix, Raja Ram Shaw is the first attesting witness of the said Will. Going through the affidavit-of-evidence of said Raja Ram Shaw it is established that the execution and attestation of the will under probate has been proved and having no challenge, the said will requires no other proof. So, it is palpable that the learned Chief Judge, City Civil Court, Calcutta did not pass the impugned order according to law and, therefore, it caused failure of justice and the impugned order, therefore, not being sustainable in law is liable to be set aside. 6. In the result, the application under Article 227 of the Constitution of India succeeds and the impugned order no. 63 dated 18.02.2006 passed in Probate Case No. 68 of 1998 pending in the Court City Civil Court of the learned Chief Judge, Calcutta is set aside. 7. The learned Chief Judge, City Civil Court, Calcutta is to proceed for disposal of the probate case without any delay taking into consideration the affidavit-of-evidence of Raja Ram Shaw and also other evidences to be adduced by the petitioner, in accordance with law. 8. The C.O. 1010 of 2006 is, thus, disposed of. 9. The copy of the judgment be transmitted to the Court below for information and proceeding according to law. 10. Urgent photostat certified copy of this judgment be supplied to the petitioner, if applied for, according to rule