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2014 Supreme(Cal) 464
IN THE HIGH COURT AT CALCUTTA
Debangsu Basak, J.
IN THE GOODS OF ANIL KUMAR ROY (DECEASED) AND ANITA MUKHERJEE & ANR.
VS.
ALOKA GHOSH
P.L. A. No. 215 of 1994 with G.A. No. 554 of 2013, T.S. No. 3 of 1995
Decided on : August 05, 2014
Advocate Appeared:
For the Petitioner:Mr. Suresh Majumder, Sr. Advocate Mr. Abdul Hamid, Advocate
For the Respondent:Mr. J.K. Chaurasia, Advocate
The High Court's jurisdiction to grant probate or letters of administration under the Indian Succession Act, 1925, as well as under Clause 34 of the Letters Patent, 1965, was not affected in view of the amendment to the City Civil Court (Amendment) Act, 1980, except in cases arising exclusively within the territorial jurisdiction of the City Civil Court, where the deceased had his fixed place of abode and all his assets within its territorial jurisdiction.
Headnote:
WILL PROBATE - JURISDICTION - CITY CIVIL COURT ACT AMENDMENT - SUCCESSION ACT - LETTERS PATENT - [Indian Succession Act, 1925 - Section 300, City Civil Court Act, 1953, Letters Patent, 1965 - Clause 34] - High Court's jurisdiction to grant probate or letters of administration under the Indian Succession Act, 1925, as well as under Clause 34 of the Letters Patent, 1965, was not affected in view of the amendment to the City Civil Court (Amendment) Act, 1980, except in cases arising exclusively within the territorial jurisdiction of the City Civil Court, where the deceased had his fixed place of abode and all his assets within its territorial jurisdiction.
Fact of the Case:
An application for probate of a will was opposed, and the joint executors named in the will applied for its grant. The deceased's daughter opposed the grant, alleging that the will was not the product of her father's free will and was unnatural. She claimed that it was a suspicious document and did not appear to be signed by her father of his own free will.
Finding of the Court:
The court found that the High Court had jurisdiction to entertain the proceedings as the deceased's permanent residence was outside the territorial jurisdiction of the City Civil Court at Kolkata. The court also found that the will was executed in the presence of two attesting witnesses, a well-known Advocate of the Court and a retired Judge of the Court, and that there was no evidence to suggest that the testator did not make the will out of free will and consent. The court held that the allegations made by the defendant in support of her caveat were unsubstantiated.
Issues: 1. Whether the High Court had jurisdiction to entertain the proceedings in view of the amendment to the City Civil Court Act, 1953? 2. Whether the will was executed and published by the deceased? 3. Whether the will was vitiated by any illegality as alleged by the defendant?
Ratio Decidendi: 1. The High Court's jurisdiction to grant probate or letters of administration under the Indian Succession Act, 1925, and Clause 34 of the Letters Patent, 1965, was not affected by the amendment to the City Civil Court (Amendment) Act, 1980, except in cases arising exclusively within the territorial jurisdiction of the City Civil Court. 2. The will was executed in the presence of two attesting witnesses, a well-known Advocate of the Court and a retired Judge of the Court, and there was no evidence to suggest that the testator did not make the will out of free will and consent. 3. The allegations made by the defendant in support of her caveat were unsubstantiated.
Final Decision: The court allowed the application for probate and dismissed the defendant's caveat. The court directed the department to draw up and complete the decree as expeditiously as possible.
DEBANGSU BASAK, J.
An application for grant of probate of a Will was opposed and was marked as a contentious cause. Joint executors named in the last Will and testament of Anil Kumar Roy since deceased applied for the grant of the Will of the said deceased.
The applicants claim that the deceased left behind his Will and last testament dated April 20, 1980. The deceased died seized and possessed of movable and immovable properties described in Schedule A in the affidavit of the joint executors. One of the attesting witnesses has filed an affidavit stating that, the original Will annexed to the application of the joint executors is the Will of the deceased and that such will was signed in presence of the two attesting witnesses and that the attesting witnesses set and subscribed their respective signatures in the presence of the deceased and each other. The attesting witnesses also stated that the testator was of sound mind and made the said Will of his free consent and volition.
One of the daughters of the testator is opposing the grant of the probate of the Will of the testator. According to her, the deceased, her father, had deep love and affection for her and her husband. In fact, the family of her in laws was well-known to her family prior to her marriage. According to her, it was the desire of the father that her husband should marry one of the daughters of the deceased. Sisters elder to her did not marry her husband and, therefore, she was given in marriage to her husband. Subsequent to her marriage she and her husband had extremely cordial relationship with the deceased. It is at the machinations of the youngest sister that ill feelings was sought to be generated between her husband and her father. She narrates diverse incidents taking place in her family with regard thereto. She claims that the Will of the father does not contain the wish of her deceased father and that the alleged Will is not the product of the free will of deceased father and is unnatural. She claims that the alleged Will is a suspicious document and it did not appear to be signed by her father of his own free will.
Three issues were settled by the Order dated February 19, 2013. The settled issues are as follows:-
“1. Does this Hon’ble Court have the jurisdiction to receive, try and determine the instant Testamentary Suit?
2. Was the Will dated April 20, 1980 executed and published by Dr. Anil Kumar Roy (Deceased)?
3. Is the Will dated April 20, 1980 executed by the testator vitiated by any illegality as alleged in paragraph 6 of the Affidavit in support of Caveat of the defendant?”
Anita Mukherjee one of the executors of the Will was examined-in-chief and cross-examined. The surviving attesting witness a well-known Advocate on this Court was examined and cross-examined. When the turn for the defendant came to adduce evidence initially adjournment was sought for on her behalf on the ground that she was required in Spain to look after her daughter there. A date convenient to her was fixed. On April 7, 2014 learned Advocate for the defendant reiterated that, she was still in Spain and a further date may be fixed. The next date of her choice being May 13, 2014 was fixed. Thereafter, there was a change in the learned Advocate appearing on behalf of the defendant. The new Advocate appearing for the defendant prayed for adjournment on the ground that the defendant was medically unfit to give evidence in Court. The matter was adjourned from time to time. On July 16, 2014 when another adjournment was sought for on the same ground, I requested the defendant to adduce evidence on Commission in view of the fact that, she was expressing inability to attend Court for evidence. The defendant was categorical in her submission and stated in no certain terms that, she will not adduce evidence by way of a Commission. I considered such stand of the defendant and closed the evidence on behalf of the defendant on July 16, 2014. The matter was, thereafter, posted
