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2023 DIGILAW 349 (CAL)

In The Goods Of : Ganadeb Basu, Deceased v. .

2023-03-14

KRISHNA RAO

body2023
JUDGMENT : Krishna Rao, J. 1. The petitioner Indrani Ghosh has filed the instant application being G.A. No. 1 of 2019 in PLA No. 74 of 2019 praying for leave to lodge caveat and affidavit-in-support of caveat by condoning the delay of 17 days. The brother of the petitioner, Shri Bhaskar Basu had filed an application for grant of probate of the last Will and Testament dated 3rd May, 1995 of the deceased Ganadeb Basu. 2. After filing of the application being PLA No. 74 of 2019, citation was served upon the petitioner at 16702, Chestnut Meadow Court, Sugar Land, Texas-77479, USA on 26.09.2019. On receipt of citation at USA, the applicant reached Kolkata on 06.12.2019. After reaching Kolkata, the applicant has filed the instant application on 9th December, 2019. The petitioner has received citation on 26.09.2019 and thus the applicant had to lodge caveat within eight weeks from the date of receipt of Citation i.e. on 21.11.2019 accordingly there is a delay of 17 days. 3. Learned Counsel for the petitioner submits that the petitioner is an aged lady and is residing at USA for years together along with her husband who is also old age person and after getting Citation, the petitioner had managed to travel to India after the husband of the petitioner was declared medically fit to travel on 4th December, 2019. 4. Learned counsel for the petitioner submits that immediately after reaching Kolkata on 6th December, 2019, the petitioner had consulted with her advocate and had filed the instant application on 9th December, 2019. 5. In her application, the petitioner had stated that her father Ganadeb Basu had never executed the alleged Will on 3rd May, 1995. The petitioner further stated in her application that the alleged Will is a forged and fabricated document and her father had never been to the office of the Registrar of Assurance, Kolkata or affix his signature over the said Will. 6. Learned Counsel for the applicant submits that due to the unavoidable circumstances, the applicant could not file her caveat within the prescribed time and if the delay of 17 days is not condoned, the petitioner will be badly prejudiced. 7. 6. Learned Counsel for the applicant submits that due to the unavoidable circumstances, the applicant could not file her caveat within the prescribed time and if the delay of 17 days is not condoned, the petitioner will be badly prejudiced. 7. The respondent had filed affidavit-in-opposition by enclosing an affidavit executed by the applicant before the Oath Commissioner of this Court on 19th July, 2019 wherein the applicant has affirmed the following : “I, Smt. Indrani Ghosh wife of Sri Prabhat Rabi Ghosh by creed Hindu by occupation house wife, aged about 60 years, resident of No. 16 702, Chestnut Meadow Court, Sugar Land, Texas – 77479, U.S.A. at present residing at No.121/1B, Bidhan Sarani, Kolkata – 700 004, do hereby solemnly affirm and say as follows : 1. That Ganadeb Basu, since deceased was my father. 2. That my father said Ganadeb Basu died on 19.03.1998 after making and publishing his last will and testament dated 3rd May, 1995 duly executed and registered on 3rd May, 1995 in the office of the Registrar of Assurance Recorded in Book No. III, Volume No. 1, pages 361 to 376 Being No. 55 for the year 1995 whereby and where under he appointed his son only, Sri Bhaskar Basu as the sole executor. The said Executor namely Sri Bhaskar Basu is my only younger brother. 3. That I do hereby give my full consent and I shall have no objection in any manner if the probate of the said Will of the deceased above named he granted in favour of Sri Bhaskar Basu as Executor and I also waive service of any citation or notice to me. I have got my passport issued by competent authority, a copy of which is annexed and marked “A”. 4. That the Statements made in the foregoing Affidavit are all true to my knowledge. Solemnly affirmed by the said Indrani Ghosh in the Court Sd /- Indrani Ghosh House at Calcutta on this 19th day of July,, 2013.” 8. In the said affidavit, a copy of passport is also enclosed with the signature of the applicant. 9. 4. That the Statements made in the foregoing Affidavit are all true to my knowledge. Solemnly affirmed by the said Indrani Ghosh in the Court Sd /- Indrani Ghosh House at Calcutta on this 19th day of July,, 2013.” 8. In the said affidavit, a copy of passport is also enclosed with the signature of the applicant. 9. Learned Counsel for the respondent submits that the petitioner had the knowledge that the father Ganadeb Basu had executed a Will on 3rd May, 1995 by appointing him as an Executor of the said last Will and Testament and the said Will was also registered and accordingly, after the death of the father, the petitioner had executed an affidavit before the Oath Commissioner of this Court on 19th July, 2019 by giving consent and No Objection for grant of probate to the applicant with respect of the Will dt. 3rd May, 1995. 10. Learned Counsel for the respondent submits that once the petitioner had executed an affidavit by giving consent for grant of probate as per the last Will and Testament, the petitioner cannot challenged the said Will. 11. Learned Counsel for the respondent had relied upon the following judgments : i. 2012 SCC OnLine Cal 502 (Bharat Kumar Amritlal Sayani & Anr. vs. Jayantilal Kalidas Sayani & Ors.) ii. 2012 SCC OnLine Cal 9673 (Seema Sarin & Anr. vs. Sudesh Chander Talwar.) iii. (2010) 1 SCC 83 (Grasim Industries Limited and Another vs. Agarwal Steel) iv. Reported in Manupatra MANU/WB/1156/2011 (Manmohan Jhunjhunwala vs. Biswanath Jhunjhunwala). 12. On receipt of the affidavit in opposition along with the affidavit of the petitioner, the petitioner has filed her reply. In the reply, the petitioner has stated that she had never given any consent for grant of probate of the alleged Will of father and she had never affirmed any consent affidavit in favour of the respondent. In her reply, the petitioner had stated that the purported consent has been obtained by proud. 13. Heard the Learned Counsel for the respective parties, perused the materials on record and the judgment relied by the respondent. 14. The Indian Succession Act, 1925 and the Original Side Rule of this Court govern grant of probate by this Court. In her reply, the petitioner had stated that the purported consent has been obtained by proud. 13. Heard the Learned Counsel for the respective parties, perused the materials on record and the judgment relied by the respondent. 14. The Indian Succession Act, 1925 and the Original Side Rule of this Court govern grant of probate by this Court. Section 281 of the Indian Succession Act, 1925 provides that an application for grant of probate shall be accompanied by a declaration by one of the attesting witnesses to the Will when such witness is procurable. The language of the Section is that the petition should be verified by one such witness. The form of declaration to be made in this verification is also provided in that Section. The witness must have seen the testator affix his signature or mark on the Will. Our Court followed the practice of an attesting witness swearing and filing an affidavit to this effect. 15. Section 283(1)(c) of the Act gives discretion to the Judge to issue citations upon all persons having an interest in the estate of the deceased. This Citation is called general citation if it is put up in some conspicuous part of the Court house as provided in Section 283 (2) of the Act or it may be a special if it is served individually on all these persons, also contemplated in Section 283 (2). Usually the procedure followed in all courts is that both general and special citations are issued to the persons referred to in Section 283 (1) (c) of the Act. These persons are said to be having a caveatable interest. 16. Our court has developed the practice of granting probate in common form. It follows the English practice of grant of probate in common form with important modifications, as noted in the case of Bharat Kumar Amritlal Sayani vs. Jayantilal Kalidas Sayani reported in (2012) 1 CLT 234 (HC). In the English system for granting of probate in common form, the Executor declares before the Court, the Will that he seeks to propound is the genuine Will of the maker. Believing this assertion to be true, in good faith, the Court grant probate, in common form without issuing notice to any heirs of the deceased or any person interested in his estate. 17. Believing this assertion to be true, in good faith, the Court grant probate, in common form without issuing notice to any heirs of the deceased or any person interested in his estate. 17. In our court when probate is granted in common form, we have modified English system to the requirements of the Indian Succession Act, 1925. In this process, we have developed our practice of granting probate in common form. The adaptation is that issuance of General or Special Citation is dispensed with if all the heirs on intestacy file affidavits consenting to the grant of probate to the Executor. The heirs on intestacy are declared by the executor in the body of the application for grant of probate. Moreover, one of the attesting witnesses to the Will has to file an affidavit making the declaration mentioned in Section 281. In addition, an undertaking has to be filed by the petitioner executor that there are no other persons interested in the grant of probate, apart from the heirs on intestacy mentioned in the application. On receipt of this evidence, the grant of probate in common form is made by this Court. 18. In the present case, the respondent has filed an application being PLA 74 of 2019 for grant of probate as per the last Will and Testament of the deceased father. In the application though the respondent had given the details of the legal heirs of the deceased. In paragraph 7 of the application the respondent has stated that the mother Smt. Minakshi Basu had given her consent on January 18, 2017 for grant of probate of the last Will and Testament of the deceased to the petitioner. Similarly, the petitioner herein and younger sister Smt. Sarbani Banerjee have also given their consent on 19th January, 2013 for grant of probate to the petitioner in terms of the last Will and Testament of the deceased father. 19. On verification of record PLA No. 74 of 2019, this Court finds that though the respondent had made an averment about the consent of his mother and sisters but no such affidavit of consent was filed along with the application or subsequent thereof. 19. On verification of record PLA No. 74 of 2019, this Court finds that though the respondent had made an averment about the consent of his mother and sisters but no such affidavit of consent was filed along with the application or subsequent thereof. As there was no affidavit of consent on record with regard to the legal heirs of the deceased, citations were issued to all the legal heirs of the deceased and on receipt of citation, the younger daughter of the deceased namely Smt. Sarbani Banerjee had filed a caveat along with affidavit in support of caveat but the petitioner herein has not file her caveat and affidavit in support of caveat and accordingly the petitioner has filed the instant application. 20. The judgements relied by the Learned Counsel for the respondent are in connection with revocation of the probate granted by the Court on the basis of affidavit of consent by the concerned legal heirs. In all the judgements applications were filed after the delay of more than 3 to 8 years and accordingly the Hon’ble Court has not allowed the said application. The facts of the cases relied by the respondent is different from the present case. 21. In the present case though the case of the respondent is that the legal heirs of the deceased father have given consent and the respondent has made an averment in the application being PLA No. 74 of 2019 but the respondent has not enclosed the affidavits of consent relied by the petitioner and accordingly citations were issued to the legal heirs of the deceased father. On receipt of the citations the younger daughter Smt. Sarbani Banerjee had filed her caveat along with affidavit in support of caveat and the petitioner is also intending to file her caveat along with affidavit-in-support of caveat as the petitioner could not file her caveat and affidavit in support of caveat within the time as the petitioner is residing in USA and after receipt of the citation the petitioner came to Kolkata only on 6th December, 2019 and due to which there is a delay of 17 days to file caveat and affidavit in support of her caveat. 22. The petitioner in her application has categorically denied with regard to the execution of the alleged Will by her father on 3rd May, 1995. 22. The petitioner in her application has categorically denied with regard to the execution of the alleged Will by her father on 3rd May, 1995. The petitioner came to know about the affidavit only after receipt of the affidavit in opposition wherein the respondent has enclosed the affidavit alleged to have been executed by the petitioner by giving consent for grant of probate to the respondent in terms of the last Will and Testament dated May 3, 1995. 23. It is found from record that father had executed the alleged Will on May 3, 1995 and father died on 19th March, 1998. The averment made in the application, the mother had given consent on 18th January, 2017 and the petitioner and her younger sister have given consent on 19th January, 2013. The respondent has filed the application for grant of probate being PLA No. 74 of 2019 on 26th February, 2019 but at the time of filing of the application, the respondent has not enclosed the affidavit of consent alleged to have been executed by the mother as well as the sisters. 24. It is true that the practice and procedure adopted by this Court, after receipt of consent affidavit from the heirs, an affidavit or declaration from an attesting witness regarding execution of the Will and an undertaking from the propounder this Court grants probate. In the instant case, the respondent has made an averment about the consent given by the legal heirs of the deceased father but the said consent were not brought on record and accordingly one of the sister had already filed her caveat and affidavit in support of caveat and the petitioner intending to file her caveat and affidavit in support of caveat and is denying with regard to the alleged consent which the respondent is relying upon. 25. 25. The respondent is relying upon the affidavit of consent though the same is not on record in PLA No. 74 of 2019 and the petitioner herein is challenging the execution of the alleged affidavit of consent as well as execution of the alleged Will of the deceased father dated 3rd May, 1995 and thus this Court is of the view that whether the petitioner has filed her affidavit of consent or not and whether the deceased father had executed the alleged last Will and Testament dated 3rd May, 1995 is to be decided at the appropriate stage. This Court is satisfied that the reason for non-filing of caveat and affidavit-in-support of her caveat by the petitioner within the time prescribed under law, accordingly prayers (a) and (b) of the Masters’ Summons is allowed. 26. G.A.1 of 2019 (Old GA 2767 of 2019) is thus allowed.