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2019 DIGILAW 268 (CAL)

IN GOODS OF: DIPALI NIYOGI v. RANJAN NIYOGI

2019-02-26

SHEKHAR B SARAF

body2019
JUDGMENT : SHEKHAR B. SARAF, J. 1. This T.S. No. 41 of 2016 arises from P.L.A. No. 84 of 2009. P.L.A. No. 84 of 2009 has been registered at the instance of Smt. Alpana Patra, seeking grant of probate of the will executed by deceased Miss Dipali Niyogi on 10th June 1987. 2. An earlier application for grant of probate, being P.L.A. No. 2 of 2008, had been rejected by the Court. In relation to P.L.A. No. 2 of 2008, the Court had first directed the Deputy Registrar, on 30th April 2008, to conduct an inquiry as to whether there were any heirs of Bani Niyogi, the testatrix's sister who had died on 3rd October 2005, since in the absence of a will, Bani Niyogi and her heirs would have rightfully inherited Dipali Niyogi's property. It was alleged in the probate application that Dipali Niyogi was a spinster and her only heir was Bani Niyogi, her sister. Bani Niyogi passed away on 3rd October 2005 and she had no heirs since she too died a spinster. Thus, it was claimed in the application that a general citation was published in the newspapers since there were no surviving heirs of Dipali Niyogi. However, the Court found that it would be unable to proceed unless it was confirmed that there were no surviving heirs of Dipali Niyogi. On 7th May 2008, P.L.A. No. 2 of 2008 was dismissed as the executrix was unable to find out who the heirs of Bani Niyogi were. However, the order did not bar fresh application for probate being filed in the future. Costs of 500 GMs were imposed, which was reduced to 100 GMs on appeal. 3. Another application, being P.L.A. No. 84 of 2009, was filed for grant of probate by the executrix. On 27th August 2015, the Court directed the issuance of a general citation and the same was issued by the Testamentary Department on 15th April 2016. The affidavit-of-service, showing that the citation was published in the Sunday editions of 'The Statesman' and the Bengali daily 'Bartaman', was filed and the Department was directed to proceed with the grant of probate. 4. A caveator by the name of Mr. Ranjan Niyogi came forward, who claimed to be the son of the testatrix's brother. The affidavit-of-service, showing that the citation was published in the Sunday editions of 'The Statesman' and the Bengali daily 'Bartaman', was filed and the Department was directed to proceed with the grant of probate. 4. A caveator by the name of Mr. Ranjan Niyogi came forward, who claimed to be the son of the testatrix's brother. On 3rd August 2016, final opportunity was granted to the caveator to file an affidavit-in-support of the caveat by 18th August 2016. It was ordered that, upon such affidavit-in-support being filed, the proceedings would stand converted to a contentious cause and the Department was directed to allot a testamentary suit number to the proceedings. Such affidavit-in- support was filed on 18th August 2016 and the probate application stood converted to a testamentary suit. 5. On 22nd September 2016, the probate petition was dismissed due to the lack of interest shown by the propounder and the application for recall of this order was also dismissed on 10th August 2017. On 15th September 2017, the order of dismissal of the probate petition was set aside subject to payment of costs amounting to 5,000/-. The testamentary suit proceeded, but no one appeared in court on 10th January 2018 for the affidavit-in-support of the caveat and again on 16th February 2018. On 10th December 2018, the testamentary suit was marked as an 'Undefended Suit' since no one had been appearing for the caveator/respondent. 6. The said will has been attested by two witnesses - Bankim Bera and Sasadhar Bhanja. Sasadhar Bhanja is the surviving witness and he has deposed before the Court. The requirement under Section 63 of the Indian Succession Act, which requires the will to be signed by the testator has been duly fulfilled in the present case. Further, under Section 68 of the Indian Evidence Act, at least one attesting witness, if alive, must be called for proving the execution of an attested document. Sasadhar Bhanja has deposed that Dipali Niyogi called him to his house on 10th June 1987 and, when he reached, Bankim Bera (the other attesting witness) and Dipali Niyogi's advocate were already present at her house. He further deposed that the advocate read the will and then Dipali Niyogi signed it first, followed by Bankim Bera and Sasadhar Bhanja. Sasadhar Bhanja has deposed that Dipali Niyogi called him to his house on 10th June 1987 and, when he reached, Bankim Bera (the other attesting witness) and Dipali Niyogi's advocate were already present at her house. He further deposed that the advocate read the will and then Dipali Niyogi signed it first, followed by Bankim Bera and Sasadhar Bhanja. The execution of the will has, thus, been duly proved by the surviving attesting witness and I find no reason to disbelieve the same. 7. Therefore, the plaintiff is entitled to the probate as prayed for. Suit is decreed in terms of prayer (b) to the petition. There shall be no order as to costs.