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HIGH COURT OF CALCUTTA
S. A. Masud
RAJLAKSHMI DASSI BECHULAL DAS - Appellant
Versus
KRISHNA CHAITANYA DAS MOHANTA - Respondent
Testamentary Suit 3 Of 1969
Decided On : JANUARY 13, 1971
WILL - Probate - Delay in making application - Explanation - Genuineness of will - Execution - Testamentary capacity - Naturalness of will - Contradictions in evidence.
Fact of the Case:
The petitioner, Bechulal Das, filed an application for grant of probate of the will of Rajlakshmi Dassi, who died on December 18, 1929. The defendant, Mohanta, challenged the existence and validity of the will. The main issues raised were whether the will was genuine, validly executed, and whether the testatrix had testamentary capacity at the time of execution.
Finding of the Court:
The court found that the will was genuine and validly executed. The attesting witnesses, Durgagati Chakraborty, Sunit Chandra Mitra, and Bechulal Das, testified that Rajlakshmi Dassi had signed the will in their presence and that she was of sound mind at the time of execution. The court also found that the delay in making the application for probate was satisfactorily explained by the petitioner.
Issues: 1. Is the alleged will genuine? 2. Was it validly executed? 3. Did the testatrix have testamentary capacity at the time of execution of the said will? 4. To what relief, if any, is the petitioner entitled?
Ratio Decidendi: The court held that the delay in making the application for probate was not fatal to the petitioner's case, as it was satisfactorily explained. The court also found that the will was genuine and validly executed, and that the testatrix had testamentary capacity at the time of execution. The court further held that the will was not unnatural, as it made provisions for the testatrix's sisters, brother, and the petitioner, who was a distant relation.
Final Decision: The court granted probate of the will to the petitioner as the sole executor.
( 1 ) IN this matter the Will of one Sm. Rajlakshmi Dassi of No 7 Fariapukur Street, now known as Sibdas Bhaduri Street. Calcutta has been challenged by the defendant, hereinafter described as "mohanta. " According to the plaintiff. Bechulal Das, the sole executor, Rajlakshmi executed her will on November 28, 1929 and thereafter on December 18, 1929 she died. Under the said will the testatrix has provided for a life interest in the said premises No. 7 Fariapukur Street in favour of her younger sister Sm. Saraswati Dassi. It is also provided that on the death of Sm. Saraswati Dassi the brother of the testatrix Shri Gopal Chandra Das and his daughter Sm. Jagatomohini Dassi shall enjoy the said property in equal shares during the period of lifetime of each of them. The Will further states that on the death of the said Gopal Chandra Das and Sm. Jagatmohini Dassi 5 persons, i. e. Surendra Nath Das, Ganendra Nath Das, Ananda Nath Das. Dwijendra Nath Ghosh and the plaintiff Bechulal Das will get the said property in equal shares absolutely. The testatrix under the Will also devised to the plaintiff Bechulal Das her 1/3rd share absolutely in a brick built house at. Nabadwip immediately on her death, On December 17, 1933 Saraswati and Jagatmohini separately executed two wills in respect of their respective 1/3rd. share in the Nabadwip property in favour of the said Mohanta. On December 2, 1944 Mohanta made an application in Nadia for probate of the will of Saraswati (probate Case No. 101/1944 ). Some tune in 1947 Gopal Chandra Das died. The plaintiff and Jagatmohini contested the probate proceeding in respect of Saraswati's will and also filed written statement on October 6, 1947 probate was granted to Mohanta in respect of the will of Saraswati and simultaneously a compromise took place. In the said proceedings it was agreed that Mohanta will sell 1/3rd share of Saraswati in premises No. 111, Bowbazar Road. Nabadwip to Bechulal and in fact the sale took place on Oct. 7, 1947 and the probate was granted to Mohanta on October 10, 1947. On March 15, 1958 Jagatmohini died. Mohanta who was also the executor of Jagatmohini's will applied for probate. in the Court at Nadia, Bechulal contested the said probate proceedings and filed a written statement where he mentioned the existence of Rajlakshmi's will. Bechulal contested the said probate proceedings, but towards the later part of the hearing he did not appear and consequently probate was granted to Mohanta on April 9, 1962. On September 20, 1963 Mohanta filed a suit in this court against Bechulal claiming the Calcutta property under the will of Jagatmohini. In the said suit on February 11, 1964 Bechulal filed a written statement. On June 6, 1967 Bechulal made an application before this court for grant of probate to him as the executor to Rajlakshmi's will. On July 29, 1967 probate was granted to Bechulal in common from without special citation in favour of Mohanta. On March 5, 1968 Mohanta's suit appeared in the list of Deb, J. for hearing. Next day Bechulal's solicitor sent a copy of the probate to Mohanta's solicitor stating that under Rajlakshmi's will Mohanta had no right, title and interest in the Calcutta property. On July 30, 1968 on the application of Mohanta the said order for grant of probate of Rajlakshmi's will to Bechulal was revoked by consent. On September 3, 1968 Mohanta entered caveat and the present proceeding before me arises out of Bechulal's original application for grant of probate. Mohanta is seriously challenging the existence and the validity of Rajlakshmi's will. The following issues have been raised and settled:--Issues. 1. Is the alleged will genuine? 2. Was it validly executed? 3. Did the testatrix have testamentary capacity at the time of execution of the said will? 4. To what relief, if any, is the petitioner entitled? in my view the evidence relating to issues Nos. 1. 2 and 3 may conveniently be discussed together.
( 2 ) THE first witness c
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