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2016 DIGILAW 1020 (CAL)

Sudesh Chander Talwar v. Seema Sarin

2016-12-15

RANJIT KUMAR BAG

body2016
JUDGMENT : R.K. Bag, J. The plaintiff has prayed for grant of probate of the last Will and testament executed by Bhagwati Talwar on January 3, 1995 in respect of her assets and properties. The plaintiff died on November 29, 2006 leaving behind Jagdish Chander Talwar - eldest son, Sudesh Chander Talwar - youngest son, Navina Punj - daughter of predeceased daughter Kuku Narang, Davinder Raj Narang - son of predeceased daughter Kuku Narang, Seema Sarin - daughter of predeceased daughter Neena Sarin and Reema Sarin - daughter of predeceased daughter Neena Sarin as legal heirs. Both the daughters of testatrix Bhagwati Talwar predeceased her. The last Will and testament of Bhagwati Talwar was attested by Sarla Gulati and Bhagwan Das Khaitan since deceased. The testatrix Bhagwati Talwar had permanent place of residence at 8, Dover Park, Ballygunge Circular Road, Kolkata-700019 which is outside the jurisdiction of the City Civil Court at Calcutta, but within the State of West Bengal. The testatrix Bhagwati Talwar left behind her immovable property at 6, Kautilya Marg, Chanakyapuri, New Delhi-110021 (hereinafter referred to as Delhi property) which is situated outside the jurisdiction of the High Court at Calcutta. The movable properties including bank lockers of the testatrix Bhagwati Talwar were situated both within the jurisdiction of the High Court at Calcutta and outside the jurisdiction of the High Court at Calcutta. The plaintiff is appointed as the executor of the last Will and testament of Bhagwati Talwar. The plaintiff has paid ad valorem stamp duty in respect of the declared assets. Accordingly, the plaintiff has instituted this proceeding for grant of probate of the last Will and testament of Bhagwati Talwar. 2. The Court granted probate of the last Will and testament of Bhagwati Talwar on December 18, 2006 on consideration of the consent affidavits filed by all the legal heirs of deceased Bhagwati Talwar. On September 17, 2010 the defendants have filed an application for revocation of grant of probate. On September 10, 2012 the application for revocation of grant of probate was dismissed by Learned Single Judge of this Court. The defendants preferred appeal being A. P. O. No.434 of 2012 by challenging the order of dismissal of application for revocation of grant of probate. On September 10, 2012 the application for revocation of grant of probate was dismissed by Learned Single Judge of this Court. The defendants preferred appeal being A. P. O. No.434 of 2012 by challenging the order of dismissal of application for revocation of grant of probate. On December 4, 2013 Hon'ble Division Bench of this Court allowed the said appeal and revoked the order of grant of probate of the last Will and testament of Bhagwati Talwar. The appellate court directed the defendants to deposit cost of Rs.1 lakh with Learned Registrar, Original Side within specified period of time and made the probate proceeding as contentious. The appellate court also directed Learned Registrar, Original Side to pay the cost of Rs.1 lakh to the plaintiff if the defendants are not successful in the probate proceeding now pending before this Court. The affidavit filed by the defendants pursuant to the leave granted by the Hon'ble Division Bench on January 3, 2014 is treated as affidavit of the defendants in support of the caveat. 3. The defendants nos.1 and 2 have contended in the affidavit that this Court has no jurisdiction to grant probate of the Will of Late Bhagwati Talwar who resided outside the jurisdiction of this Court and who left behind her immovable property at Delhi which is also outside the jurisdiction of the Court. It is contended that the parents of the defendants were permitted to live in Delhi property by the testatrix Bhagwati Talwar. On March 15, 1986 the testatrix Bhagwati Talwar executed one power of attorney in favour of the father of the defendants, by which the father of the defendants was authorised and empowered to look after and manage the entire Delhi property. The defendants have been living in the said property for almost 30 years and the testatrix Bhagwati Talwar openly declared in presence of the plaintiff and other legal heirs of Bhagwati Talwar that the Delhi property will remain with the defendants. The father of the defendants took the initiative to evict the tenants from the ground floor of Delhi property as the father of the defendants was authorised to do so by way of execution power of attorney by the testatrix Bhagwati Talwar. 4. The defendants have specifically denied the execution of the Will dated January 3, 1995 by Bhagwati Talwar. The father of the defendants took the initiative to evict the tenants from the ground floor of Delhi property as the father of the defendants was authorised to do so by way of execution power of attorney by the testatrix Bhagwati Talwar. 4. The defendants have specifically denied the execution of the Will dated January 3, 1995 by Bhagwati Talwar. The specific case of the defendants is that the Will is a manufactured document prepared by the plaintiff and other beneficiaries of the Will in order to deprive the defendants of their legitimate dues. The plaintiff dominated the Will of testatrix Bhagwati Talwar and got the document manufactured when Bhagwati Talwar was suffering from various ailments at her old age and when she was not mentally fit to execute any Will in respect of her estate and properties. The maternal uncles of the defendants being the sons of testatrix Bhagwati Talwar never called upon the defendants to vacate Delhi property and to deliver up possession of the same in favour of the plaintiff and his elder brother. The father of the defendants has spent huge amount of money for maintenance of Delhi property and for making payment of taxes and other dues in connection with the said Delhi property. The further specific case of the defendants is that the plaintiff obtained signature of the defendants on consent affidavits by making representation that those affidavits will be used in connection with the bank lockers standing in the name of testatrix Bhagwati Talwar. It is alleged that the plaintiff never supplied copy of the Will dated January 3, 1995 to the defendants for the purpose of obtaining consent affidavits filed in connection with the probate proceeding for obtaining probate of the Will of testatrix Bhagwati Talwar. It is also alleged that the manner of disposition of properties in the Will dated January 3, 1995 indicates that the testatrix Bhagwati Talwar had no sound disposing mind at the time of execution of the alleged Will dated January 3, 1995. It is the firm conviction of the defendants that the defendants would not have been deprived of Delhi property by their maternal grandmother Bhagwati Talwar due to her deep love and affection for both the defendants, had the contents of the Will dated January 3, 1995 been known to her. It is the firm conviction of the defendants that the defendants would not have been deprived of Delhi property by their maternal grandmother Bhagwati Talwar due to her deep love and affection for both the defendants, had the contents of the Will dated January 3, 1995 been known to her. According to the defendants, the plaintiff is not entitled to get probate of the Will of Bhagwati Talwar dated January 3, 1995 and the suit is liable to be dismissed. 5. The issues settled by this Court on December 10, 2016 are recast as follows: (i) Has this Court jurisdiction to entertain this suit? (ii) Is the last Will and testament of Bhagwati Talwar dated January 3, 1995 duly executed and attested as per provision of law? (iii) Had the testatrix Bhagwati Talwar testamentary capacity and sound disposing mind at the time of execution of the last Will and testament dated January 3, 1995? (iv) Is the last Will and testament of Bhagwati Talwar dated January 3, 1995 vitiated by fraud and misrepresentation? (v) Is the plaintiff entitled to get the order of probate of the Will dated January 3, 1995? 6. Issue No.(i) : Mr. Saikat Basu, Learned Counsel for the defendants nos.1 and 2 contends that the testatrix Bhagwati Talwar bequeathed Delhi property being premises no.6, Kautilya Marg, Chanakyapuri, New Delhi-110021 which is situated outside the jurisdiction of the State of West Bengal and thereby outside the jurisdiction of the High Court at Calcutta. He further submits that the bank lockers of the testatrix are situated partly within the territorial limits of jurisdiction of the City Civil Court at Calcutta and partly outside the jurisdiction of the High Court at Calcutta. The contention of Mr. Basu is that the testamentary jurisdiction of the High Court at Calcutta conferred under Clause 34 of Letters Patent, 1865 is curtailed by 1980 Amendment of the City Civil Court Act, 1953 and thereby this Court has no jurisdiction to grant probate of the Will as prayed by the plaintiff. Mr. Basu has cited the case of "In the goods of : Smt. Tarak Bala Dasi (Deceased)" reported in (1989) 1 CHN 462 : (1989) 1 Cal. L. T. 426 in support of his contention that the High Court has no jurisdiction to grant probate of the last Will and testament of Bhagwati Talwar dated January 3, 1995. 7. Mr. Mr. Basu has cited the case of "In the goods of : Smt. Tarak Bala Dasi (Deceased)" reported in (1989) 1 CHN 462 : (1989) 1 Cal. L. T. 426 in support of his contention that the High Court has no jurisdiction to grant probate of the last Will and testament of Bhagwati Talwar dated January 3, 1995. 7. Mr. Dhruba Ghosh, Learned Senior Counsel representing the plaintiff contends that Bhagwati Talwar had permanent place of abode at premises no.8, Dover Park, Ballygunge Circular Road, Kolkata-700019 where she used to live with her youngest son Sudesh Chander Talwar and she died in the said residence on November 29, 2006. He further submits that the testatrix Bhagwati Talwar had property at Delhi which is outside the territorial jurisdiction of the State of West Bengal, but she left behind her movable properties in her residence at premises no.8, Dover Park, Ballygunge Circular Road, Kolkata-700019 which is situated outside the jurisdiction of the City Civil Court at Calcutta and within the territorial jurisdiction of the State of West Bengal. 8. Relying on the decision of "Anil Kumar Roy v. Aloka Ghosh" reported in (2014) 3 HCC (Cal) 482: 2014 SCC Online Cal 16984 and by referring to the provisions of Section 270 and Section 300 of the Indian Succession Act, 1925 and Clause 34 of Letters Patent, 1865, Mr. Ghosh submits that this Court has testamentary jurisdiction to entertain the prayer of the plaintiff to grant probate of the last Will and testament of Bhagwati Talwar dated January 3, 1995. The specific contention of Mr. Ghosh is that the testatrix Bhagwati Talwar had permanent place of abode outside the jurisdiction of the City Civil Court at Calcutta, but within the territorial jurisdiction of the State of West Bengal and as such the High Court can invoke testamentary and intestate jurisdiction under Clause 34 of Letters Patent, 1865 to grant probate of the Will of Bhagwati Talwar executed on January 3, 1995, irrespective of the fact that she bequeathed her Delhi property under the said Will. 9. For proper appreciation of the rival contentions made by Learned Counsel representing both parties, it is relevant to quote the provisions of Clause 34 of Letters Patent, 1865, which are as follows: "34. Testamentary and intestate jurisdiction. 9. For proper appreciation of the rival contentions made by Learned Counsel representing both parties, it is relevant to quote the provisions of Clause 34 of Letters Patent, 1865, which are as follows: "34. Testamentary and intestate jurisdiction. And We do further ordain, that the said High Court of Judicature at Fort William in Bengal shall have the like power and authority as that which may now be lawfully exercised by the said High Court, except within the limits of the jurisdiction for that purpose of any other High Court established by Her Majesty's Letters Patent, in relation to the granting of probates of last Wills and testaments, and letters of administration of the goods, chattels, credits, and all other effects whatsoever of persons dying intestate whether within or without the Bengal Division, subject to the orders of the governor-general in Council as to the period when the said High Court shall cease to exercise testamentary and intestate jurisdiction in any place or places beyond the limits of the provinces or places for which it was established: provided always, that nothing in these Letters Patent contained shall interfere with the provisions of any law which has been made by competent legislative authority for India by which power is given to any other Court to grant such probates and letters of administration." 10. It is also pertinent to quote the provisions of Section 270 and Section 300 of the Indian Succession Act, 1925, which are as follows: "Section 270. When probate or administration may be granted by District Judge. - Probate of the Will or letters of administration to the estate of a deceased person may be granted by District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge." "Section 300. Concurrent jurisdiction of High Court. - (1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge. Concurrent jurisdiction of High Court. - (1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge. (2) Except in cases to which Section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindu, Muhammedan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do." 11. It is also necessary to quote relevant portion of the amended provisions of Section 5, Section 21 and Second Schedule of the City Civil Court Act, 1953, which are as follows: "Section 5. Jurisdiction - (1) The local limits of the jurisdiction of the City Civil Court shall be the City of Calcutta. (2) …………………………………………………………. (3) The City Civil Court shall have jurisdiction and the High Court shall not have jurisdiction to try any proceeding under - (i) The Guardian and Wards Act, 1890, …. (iv) The Indian Succession Act, 1925……" "Section 21.- Act to override other law including Letters Patent. - The provisions of this Act shall have effect notwithstanding anything to the contrary in any other law, including in particular the Letters Patent of the High Court." "THE SECOND SCHEDULE Year Number Short Title Amendments 1 2 3 4 1925 39 Indian Succession Act, 1925. (4) Section 300 shall be omitted." 12. On perusal of the above provisions of law it appears that the High Court can exercise testamentary and intestate jurisdiction under Clause 34 of Letters Patent, 1865 to grant probate and letters of administration in respect of the estate of deceased person who lived within the territorial jurisdiction of the State of West Bengal, provided the said jurisdiction is not curtailed by any law enacted by competent legislature. While Section 270 of the Indian Succession Act has given jurisdiction to the District Judge to grant probate of the Will or letters of administration to the estate of a deceased person who had permanent place of abode or who had property within the territorial jurisdiction of the District Judge, the same authority to grant probate of the Will or letters of administration to the estate of the deceased is also given to the High Court under Section 300 of the Indian Succession Act, 1925. By 1980 Amendment of the City Civil Court Act, 1953, Section 300 of the Indian Succession Act, 1925 has been omitted and the legislature has given jurisdiction to the City Civil Court at Calcutta exclusively to grant probate of the Will or letters of administration to the estate of a deceased person who had permanent place of abode within the territorial jurisdiction of the City Civil Court at Calcutta or had property within the territorial jurisdiction of the City Civil Court at Calcutta. It is relevant to point out that the territorial limit of original jurisdiction of the High Court at Calcutta coincides with that of the territorial jurisdiction of the City Civil Court at Calcutta. The natural corollary is that testamentary jurisdiction of the High Court at Calcutta conferred under Clause 34 of Letters Patent, 1865 is curtailed by the City Civil Court Act, 1953, for grant of probate of the Will or letters of administration to the estate of a deceased person who had permanent place of residence or had property within the territorial limit of the City Civil Court at Calcutta. However, the testamentary jurisdiction of the High Court at Calcutta can be exercised throughout the State of West Bengal along with the respective District Judges for granting probate of Will or letters of administration to the estate of a deceased person who had permanent place of abode or had properties within the State of West Bengal, except when the deceased had permanent place of residence or had property within the territorial jurisdiction of the City Civil Court at Calcutta which is also the original jurisdiction of the High Court at Calcutta. 13. Now, I would like to deal with some cases including the cases cited by Learned Counsel representing both parties. In "In the goods of : Smt. Tarak Bala Dasi (Deceased)" (supra) cited by Mr. 13. Now, I would like to deal with some cases including the cases cited by Learned Counsel representing both parties. In "In the goods of : Smt. Tarak Bala Dasi (Deceased)" (supra) cited by Mr. Basu, the testatrix died having place of abode within the territorial jurisdiction of the City Civil Court at Calcutta and had immovable property situated within the jurisdiction of the City Civil Court at Calcutta. Accordingly, it is held by Learned Single Judge of this Court that the High Court cannot exercise testamentary jurisdiction in the said case under Clause 34 of the Letters Patent, 1865 and as such the application for grant of probate of the Will was not entertained by the High Court. It is relevant to quote paragraph 35 of the said report, which is as follows: "35. I also agree with Mr. Roy in his interpretation that the High Court can entertain the application for probate of the Will bequeathing the property which is situated within the limits of the State or Bengal Division as contemplated in the Letters Patent, but outside the jurisdiction of the City Civil Court after the said Amendment Act." 14. In "Pandraj Kunjilal Sadh (Deceased) v. Santosh Kumari Mahendra Kumar Sadh" reported in AIR 2012 Cal 7 the question arose for determination before the Hon'ble Division Bench of our High Court is whether the High Court has original testamentary jurisdiction to grant probate of the Will and testament executed by a Hindu, when the testator died outside the State of West Bengal leaving behind property situated within the territorial limit of the Original Side of the High Court at Calcutta. It is held by the Hon'ble Division Bench that after 1980 Amendment of the City Civil Court Act, 1953 the High Court in exercise of its testamentary jurisdiction cannot entertain and dispose of an application for grant of probate of a Will executed by a Hindu, who died outside the State of West Bengal, and had property within the territorial limit of Original Side of the High Court. The ratio of the above two decisions is not applicable in the facts of the present case where the testatrix had permanent place of abode within the State of West Bengal, but outside the limit of territorial jurisdiction of the Original Side of the High Court, though the testatrix owned and possessed immovable property outside the State of West Bengal. 15. In "Sailendra Nath Sarkar (Deceased)" reported in (1984) 2 CHN 99 the deceased died having a place of abode and leaving assets within the territorial jurisdiction of the District of Howrah and as such the High Court had jurisdiction to entertain and try testamentary proceeding relating to the estate of the deceased under Clause 34 of Letters Patent, 1865. It is relevant to quote some portion of paragraph 37 of the judgement, which is as follows: "37. … The necessary effect of the above amendment and omission, in my view, is that the power and jurisdiction of the High Court in the testamentary or intestate matter under the provision of Indian Succession Act have been totally taken away and partially under Clause 34 of the Letters Patent in cases arising exclusively within the territorial jurisdiction of the City Civil Court, i.e. where the deceased had his fixed place of abode and has also left all his assets within the territorial jurisdiction of the City Civil Court. High Court's jurisdiction under Clause 34 of Letters Patent in respect of cases arising outside the territorial jurisdiction of the City Civil Court has not been affected. Further, omission of Section 300 of the Indian Succession Act cannot in my view, be interpreted to mean that High Court's jurisdiction exercisable under Clause 34 of the Letters Patent in cases arising outside the territorial limit of the City Civil Court has been curtailed. ………" 16. In "Prabir Kumar Das v. Jayanti Das" reported in (2007) 1 CHN 843 : (2007) 1 Cal.L.T. 227 the testator had permanent place of abode within the jurisdiction of the District Judge, North 24-parganas, which is outside the jurisdiction of the City Civil Court at Calcutta, but within the territorial limit of State of West Bengal and as such the High Court had testamentary jurisdiction to entertain the application for grant of probate of the Will. It is relevant to quote paragraph 15 of the Judgement, which is as follows: "15. It is relevant to quote paragraph 15 of the Judgement, which is as follows: "15. The said Act of 1953 was enacted to minimize the load of the High Court in its Original Side and not for the purpose of ouster of its jurisdiction within the City of Calcutta or otherwise. The object of the Bill was to ensure speedy administration of justice in the City of Calcutta. Section 5 (1) of the said Act of 1953 limits the jurisdiction of the City Civil Court within the City of Calcutta. By amendment of sub-Section (3) the matters under Indian Succession Act, 1925 were given exclusively to the City Civil Court to the exclusion of the High Court. By that amendment the provisions of Section 300(1) of the Succession Act was made inapplicable within the City of Calcutta. In the instant case, testator was having his permanent place of abode within the jurisdiction of the District Judge, 24-Parganas (North). Hence, the probate application could also be filed before the District Judge, 24-parganas (North). In such view of the matter by dint of Section 300(1) read with Clause 34 of the Letters Patent the High Court retained its concurrent jurisdiction with the District Judge, 24-parganas (North) to entertain this application." 17. In "Anil Kumar Roy v. Aloka Ghosh" (supra) cited by Mr. Ghosh, the deceased had permanent residence at 11, Bagchi Road, Kolkata-700029 which is outside the territorial jurisdiction of the City Civil Court at Calcutta, but within the territorial jurisdiction of the State of West Bengal. Learned Single Judge of this Court held that the High Court has testamentary jurisdiction to entertain the application for grant of probate of the Will of the deceased. 18. By applying the test laid down by our High Court in "Anil Kumar Roy v. Aloka Ghosh" (supra), "Sailendra Nath Sarkar (deceased)" (supra), and "Prabir Kumar Das v. Jayanti Das" (supra), I can safely hold that this Court has testamentary jurisdiction to entertain the application for grant of probate of the Will of Bhagwati Talwar who had permanent place of abode at 8, Dover Park, Kolkata-700019 and had some movable properties in the said residence of the deceased, which is outside the territorial jurisdiction of the City Civil Court at Calcutta, but within the territorial jurisdiction of the State of West Bengal. The testamentary jurisdiction of the High Court under Clause 34 of the Letters Patent, 1865 will not be ousted even when the immovable property of the deceased is situated at Delhi outside the State of West Bengal, as the deceased had permanent place of residence and movable properties within the territorial jurisdiction of the State of West Bengal, but outside the limit of territorial jurisdiction of the City Civil Court at Calcutta. Accordingly, this issue is decided in favour of the plaintiff. 19. Issue No.(ii): The defendants no.1 and 2 have specifically denied the execution and attestation of the Will dated January 3, 1995. The onus is on the propounder of the Will to prove that the last Will and testament of the deceased Bhagwati Talwar was executed by her and attested by the witnesses whose names appear as attesting witnesses on the said Will. Admittedly, it is established from the evidence on record that out of two attesting witnesses - Bhagwan Das Khaitan died in the year 1986 and only the witness Sarla Gulati is alive. The witness Sarla Gulati is examined on commission and the report of the commission is accepted by the Court. This witness Sarla Gulati is family friend of the deceased Bhagwati Talwar and she used to frequent to the house of Bhagwati Talwar when she lived in Calcutta. The witness Sarla Gulati has stated in evidence that she left Calcutta in the year 1997 and stayed abroad till 2006 and thereafter she started living in Bombay. The reply to question no.72 and question no.208 given by the witness Sarla Gulati indicates that the deceased Bhagwati Talwar was not very fluent in English, but she could read and write in English. The tenor of testimony of the witness Sarla Gulati in general and the reply given to question no.195 by the witness Sarla Gulati go to establish that the Will dated January 3, 1995 was duly executed by the deceased Bhagwati Talwar and attested by both Bhagwan Das Khaitan and the said witness Sarla Gulati. The tenor of testimony of the witness Sarla Gulati in general and the reply given to question no.195 by the witness Sarla Gulati go to establish that the Will dated January 3, 1995 was duly executed by the deceased Bhagwati Talwar and attested by both Bhagwan Das Khaitan and the said witness Sarla Gulati. The witness Sarla Gulati has not only identified the signatures of the deceased Bhagwati Talwar, Bhagwan Das Khaitan and herself on the Will dated January 3, 1995, but also proved in which manner and in what order the testatrix Bhagwati Talwar and attesting witnesses including herself signed on the said Will in the residence of Bhagwati Talwar at 8, Dover Park, Kolkata-700019. The Will dated January 3, 1995 executed by Bhagwati Talwar and attested by two witnesses including Sarla Gulati has been admitted into evidence and marked Exhibit-A and the signatures of both the testatrix and the attesting witnesses have been identified and marked Exhibit-A series. The attesting witness Sarla Gulati has stated that after execution of the Will she rarely got the opportunity to speak to Bhagwati Talwar as she left Calcutta in 1997 and was also suffering from various ailments, which ultimately was diagnosed as cancer. On consideration of the entire oral testimony of the witness Sarla Gulati, I am of the view that the witness is trustworthy and she has proved the execution and attestation of the Will of the deceased Bhagwati Talwar dated January 3, 1995 (Exhibit-A). This issue is, thus, decided in favour of the plaintiff. 20. Issues No.(iii) & (iv): Both these issues are inter-related and as such these are taken up together for convenience of discussion. The defendants no.1 and 2 have alleged in the pleading that the Will dated January 3, 1995 is a manufactured document prepared by the plaintiff and other beneficiaries of the Will in order to deprive the defendants of their legitimate dues. It is further alleged that the deceased Bhagwati Talwar was suffering from various ailments at her old age and she had no sound disposing mind at the time of execution of the Will dated January 3, 1995. It is further alleged that the deceased Bhagwati Talwar was suffering from various ailments at her old age and she had no sound disposing mind at the time of execution of the Will dated January 3, 1995. It is also alleged that the deceased Bhagwati Talwar had deep love and affection towards both the defendants and she openly declared that the Delhi property would be given to the defendants where they have been living along with their parents for more than 30 years. The manner of disposition of Delhi property in favour of the sons in the Will dated January 3, 1995 by the deceased Bhagwati Talwar indicates that there are suspicious circumstances in execution of the alleged Will and the deceased Bhagwati Talwar was not aware of the actual disposition of property under the Will dated January 3, 1995. 21. The defendants no.1 and 2 are duty bound to plead the particulars of fraud, misrepresentation and undue influence with specific dates and events as per provision of Order 6, Rule 4 of the Code of Civil Procedure. On close scrutiny of the entire pleading of the defendants no.1 and 2, I cannot persuade myself to hold that the defendants have pleaded with specific dates and events the particulars of fraud, misrepresentation and undue influence as laid down in the provisions of Order 6, Rule 4 of the Code of Civil Procedure. What has been urged by the defendants is that the Will is manufactured by the plaintiff and other beneficiaries of the Will in order to deprive the defendants of their legitimate dues. The defendants have failed to adduce any iota of evidence to discharge the initial onus to the effect that the plaintiff and other beneficiaries of the Will got the opportunity to dominate the Will of the deceased Bhagwati Talwar when she lived with her youngest son, Sudesh Chander Talwar (propounder of the Will) at 8, Dover Park, Kolkata-700019. So, the defendants have miserably failed to prove that the Will dated January 3, 1995 executed by the deceased Bhagwati Talwar (Exhibit-A) is vitiated by fraud, misrepresentation and undue influence. 22. So, the defendants have miserably failed to prove that the Will dated January 3, 1995 executed by the deceased Bhagwati Talwar (Exhibit-A) is vitiated by fraud, misrepresentation and undue influence. 22. Now, the question for consideration of the Court is whether the deceased Bhagwati Talwar had testamentary capacity and sound disposing mind at the time of execution of the Will dated January 3, 1995 and whether there are suspicious circumstances which will cast doubt on the conscience of the Court to grant probate of the Will in favour of the plaintiff. The defendants have not adduced any shred of evidence to establish that the deceased Bhagwati Talwar was suffering from various ailments or that she was not mentally alert at the time of execution of the Will dated January 3, 1995. On the contrary, it appears from the materials on record that the deceased Bhagwati Talwar was alive for about 10 years after execution of the Will dated January 3, 1995, as she died on November 29, 2006 (Exhibit-G). The plaintiff Sudesh Chander Talwar has specifically replied to question no.46 that her mother Bhagwati Talwar was physically fit and mentally alert in the month of January, 1995. The plaintiff Sudesh Chander Talwar had tried to give an explanation in the evidence why her mother Bhagwati Talwar gave her daughter Neena Sarin share in Delhi property with rider that the legal heirs of Neena Sarin namely the defendants no.1 and 2 will not inherit the share of their mother Neena Sarin in Delhi property, if Neena Sarin predeceased her mother Bhagwati Talwar. It is relevant to point out that the testatrix Bhagwati Talwar did not give any share in Delhi property to Navina Punj and Devinder Raj Narang, children of Kuku Narang - another predeceased daughter of the said Bhagwati Talwar, though they have been living in Delhi. The unchallenged statement of the plaintiff Sudesh Chander Talwar in reply to question no.56 indicates that the defendants no.1 and 2 have been living along with their father Uday Sarin in the 1st floor of Delhi property and the Jagdish Chander Talwar - eldest son of Bhagwati Talwar and the plaintiff have possession over the ground floor of the said Delhi property. The reply given to question no.57 by the plaintiff Sudesh Chander Talwar during examination-in-chief indicates that the husband of Bhagwati Talwar who happens to be the maternal grandfather of the defendants no.1 and 2 constructed one house for Neena Sarin - predeceased daughter of Bhagwati Talwar in Greater kailash, New Delhi and the said house was sold out by the husband and daughters of Neena Sarin immediately after her death. Moreover, the plaintiff Sudesh Chander Talwar has categorically stated in reply to question no.98 during cross-examination that Neena Sarin, predeceased daughter of Bhagwati Talwar was granted permission to live in the 1st floor of Delhi property as she was not comfortable with her in-laws in Calcutta and her husband Uday Sarin (father of the defendants no.1 and 2) was not able to take adequate care of Neena Sarin and the entire expenses for living in Delhi property was given to Uday Sarin in cash. The above aspects of the evidence given by the plaintiff Sudesh Chander Talwar remain unchallenged in spite of elaborate cross-examination on behalf of the defendants no.1 and 2. On an analysis of the above evidence it appears that the testatrix Bhagwati Talwar could not repose faith on the husband and daughters of Neena Sarin as they sold out the property constructed by the husband of Bhagwati Talwar for Neena Sarin in Greater Kailash, New Delhi immediately after the death of Neena Sarin. The other reasons weighed with Bhagwati Talwar for depriving the legal heirs of deceased Neena Sarin from the share in Delhi property in case Neena Sarin predeceased the testatrix Bhagwati Talwar is that the husband of Bhagwati Talwar was not able to take care of Neena Sarin when she was not comfortable with her in-laws in Calcutta. In my view the above reasons weighed with the testatrix Bhagwati Talwar for giving share of Delhi property to her daughter Neena Sarin equally with her two sons, but to deprive the legal heirs of Neena Sarin from the share in Delhi property in case Neena Sarin predeceased the testatrix Bhagwati Talwar. In my view the above reasons weighed with the testatrix Bhagwati Talwar for giving share of Delhi property to her daughter Neena Sarin equally with her two sons, but to deprive the legal heirs of Neena Sarin from the share in Delhi property in case Neena Sarin predeceased the testatrix Bhagwati Talwar. The intrinsic evidence reflected in the recital of the Will dated January 3, 1995 (Exhibit-A) may be considered for gathering intention of the testatrix in disposition of her estate and properties, and the extrinsic evidence reflected in the unchallenged oral testimony of the propounder of the Will can also be taken into consideration for clearing doubt about suspicious circumstances alleged by the defendants no.1 and 2 in making disposition of property by the testatrix. In view of my above observation, I can safely hold that there is no suspicious circumstance to cast any doubt on the genuineness of the Will dated January 3, 1995. The evidence on record clearly indicates that the testatrix Bhagwati Talwar was physically fit and mentally alert at the time of execution of the Will dated January 3, 1995 and thereby she had sound disposing mind and testamentary capacity to execute the Will dated January 3, 1995 (Exhibit-A). Issue no.(iii) is, thus, decided in the affirmative and issue no.(iv) is, thus, decided in the negative. 23. Issue no.(v) : I have already observed during discussion of previous issues that the execution and attestation of the Will of Bhagwati Talwar on January 3, 1995 have been proved as per provision of Section 63 of the Indian Succession Act. I have also observed that the testatrix Bhagwati Talwar had sound disposing mind and testamentary capacity at the time of execution of the Will dated January 3, 1995. It has also been established from the evidence on record that there is no existence of suspicious circumstance to cast any doubt on the conscience of the Court about the genuineness of the Will dated January 3, 1995. It has also been proved from the evidence on record that the Will dated January 3, 1995 is not vitiated by fraud, misrepresentation and undue influence. So, the plaintiff is entitled to get probate of the Will dated January 3, 1995 executed by the deceased Bhagwati Talwar in respect of her estate and properties. 24. It has also been proved from the evidence on record that the Will dated January 3, 1995 is not vitiated by fraud, misrepresentation and undue influence. So, the plaintiff is entitled to get probate of the Will dated January 3, 1995 executed by the deceased Bhagwati Talwar in respect of her estate and properties. 24. It appears from the judgement and order dated December 4, 2013 passed by the Hon'ble Division Bench in A. P. O. No.434 of 2012 that the present defendants deposited a sum of Rs.1 lakh as cost with the Registrar, Original Side and the disbursement of the said cost will abide by the result of the probate proceeding. The Registrar, Original Side was directed to deposit the said sum of Rs. 1 lakh in an interest bearing Fixed Deposit Account with any Nationalised Bank with option to renew the same from time to time until further order from this Court. It is specifically laid down in the said order of the appellate court that the said sum of Rs.1 lakh will be appropriated by the plaintiff as cost in addition to any other cost that may be imposed by this Court, in the event the contesting defendants are not successful in the probate proceeding. Since the defendants are not successful in the probate proceeding, the plaintiff is entitled to get the said cost of Rs.1 lakh deposited with Learned Registrar, Original Side along with interest accrued thereon within a period of four weeks from this date. This issue is, thus, decided in favour of the plaintiff. 25. As a result, the plaintiff do get decree for grant of probate of the last Will and testament dated January 3, 1995 executed by the deceased Bhagwati Talwar in respect of her estate and properties along with a copy of the Will annexed thereto. Learned Registrar, Original Side will disburse cost of Rs.1 lakh deposited with him by the defendants no.1 and 2 in compliance with the order of the appellate court along with interest accrued thereon within a period of four weeks from this date. The plaintiff will deposit balance amount of stamp duty, if any, within a period of four weeks from this date. The suit is, thus, decreed in terms of prayer "a" of the plaint. The department is directed to draw up the decree expeditiously. The plaintiff will deposit balance amount of stamp duty, if any, within a period of four weeks from this date. The suit is, thus, decreed in terms of prayer "a" of the plaint. The department is directed to draw up the decree expeditiously. The urgent xerox certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities. Suit decreed.