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2016 Supreme(Cal) 1017
IN THE HIGH COURT OF CALCUTTA
Ranjit Kumar Bag, J.
Sudesh Chander Talwar - Plaintiff
Versus
Seema Sarin & Anr. - Defendants
T.S. No. 2 of 2014
Decided On : 15-12-2016
For the Plaintiff :Mr. Dhruba Ghosh, Mr. Anirban Ray, Mr. S.K. Chakraborty, Ms. Nandini Khaitan, Mr. Pratik Shanu and Ms. Namrata De, Advocates.
For the Defendant :Mr. Saikat Basu and Mr. Archan Bhattacharya, Advocates.
The High Court has testamentary jurisdiction to entertain an application for grant of probate of a Will executed by a testator who had a 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, even if the testator bequeathed immovable property situated outside the State of West Bengal.
Headnote:
PROBATE - JURISDICTION - TESTAMENTARY CAPACITY - EXECUTION AND ATTESTATION - FRAUD AND MISREPRESENTATION - DISPOSITION OF PROPERTY - WILL - VALIDITY - GRANT OF PROBATE: 1. The High Court has testamentary jurisdiction to entertain an application for grant of probate of a Will executed by a testator who had a 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, even if the testator bequeathed immovable property situated outside the State of West Bengal. 2. The onus is on the propounder of a Will to prove that the Will was duly executed by the testator and attested by the witnesses whose names appear as attesting witnesses on the Will. 3. The Court will consider the intrinsic evidence reflected in the recital of the Will and the extrinsic evidence reflected in the unchallenged oral testimony of the propounder of the Will to clear doubt about suspicious circumstances alleged by the defendants in making disposition of property by the testator. 4. A Will is not vitiated by fraud, misrepresentation, or undue influence merely because the defendants allege 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. 5. The plaintiff is entitled to get probate of the Will if the execution and attestation of the Will are proved as per the provisions of Section 63 of the Indian Succession Act, the testator had sound disposing mind and testamentary capacity at the time of execution of the Will, there is no existence of suspicious circumstance to cast any doubt on the conscience of the Court about the genuineness of the Will, and the Will is not vitiated by fraud, misrepresentation, and undue influence.
Fact of the Case:
The plaintiff, Sudesh Chander Talwar, filed a suit 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 defendants, Jagdish Chander Talwar and Uday Sarin, filed an application for revocation of grant of probate. The defendants contended that the High Court had no jurisdiction to grant probate of the Will as the testatrix Bhagwati Talwar resided outside the jurisdiction of the Court and that the Will was a manufactured document prepared by the plaintiff and other beneficiaries of the Will in order to deprive the defendants of their legitimate dues.
Finding of the Court:
The Court held that the High Court had testamentary jurisdiction to entertain the application for grant of probate of the Will as the testatrix Bhagwati Talwar had a 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, even though she bequeathed immovable property situated outside the State of West Bengal. The Court further held that the plaintiff had discharged the onus of proving that the Will was duly executed by the testatrix Bhagwati Talwar and attested by the witnesses whose names appeared as attesting witnesses on the Will. The Court also held that the defendants had failed to prove that the Will was vitiated by fraud, misrepresentation, or undue influence. The Court, therefore, decreed the suit in terms of prayer "a" of the plaint and granted probate of the Will to the plaintiff.
Issues: 1. Whether the High Court has jurisdiction to entertain an application for grant of probate of a Will executed by a testator who had a 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, even if the testator bequeathed immovable property situated outside the State of West Bengal? 2. Whether the onus is on the propounder of a Will to prove that the Will was duly executed by the testator and attested by the witnesses whose names appear as attesting witnesses on the Will? 3. Whether the Court will consider the intrinsic evidence reflected in the recital of the Will and the extrinsic evidence reflected in the unchallenged oral testimony of the propounder of the Will to clear doubt about suspicious circumstances alleged by the defendants in making disposition of property by the testator? 4. Whether a Will is vitiated by fraud, misrepresentation, or undue influence merely because the defendants allege 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? 5. Whether the plaintiff is entitled to get probate of the Will if the execution and attestation of the Will are proved as per the provisions of Section 63 of the Indian Succession Act, the testator had sound disposing mind and testamentary capacity at the time of execution of the Will, there is no existence of suspicious circumstance to cast any doubt on the conscience of the Court about the genuineness of the Will, and the Will is not vitiated by fraud, misrepresentation, and undue influence?
Ratio Decidendi: 1. The High Court has testamentary jurisdiction to entertain an application for grant of probate of a Will executed by a testator who had a 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, even if the testator bequeathed immovable property situated outside the State of West Bengal. 2. The onus is on the propounder of a Will to prove that the Will was duly executed by the testator and attested by the witnesses whose names appear as attesting witnesses on the Will. 3. The Court will consider the intrinsic evidence reflected in the recital of the Will and the extrinsic evidence reflected in the unchallenged oral testimony of the propounder of the Will to clear doubt about suspicious circumstances alleged by the defendants in making disposition of property by the testator. 4. A Will is not vitiated by fraud, misrepresentation, or undue influence merely because the defendants allege 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. 5. The plaintiff is entitled to get probate of the Will if the execution and attestation of the Will are proved as per the provisions of Section 63 of the Indian Succession Act, the testator had sound disposing mind and testamentary capacity at the time of execution of the Will, there is no existence of suspicious circumstance to cast any doubt on the conscience of the Court about the genuineness of the Will, and the Will is not vitiated by fraud, misrepresentation, and undue influence.
Final Decision: The Court decreed the suit in terms of prayer "a" of the plaint and granted probate of the Will to the plaintiff.
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 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 plaint
