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IN THE HIGH COURT OF CALCUTTA
Sahidullah Munshi, J.
In Goods of : Budhmal Kulthia and Sampat Devi Kulthia – Appellant
Vs.
Sudha Soni and Another – Respondents
Testamentary Suit No. 6 of 2013, P L A No. 168 of 2010
Decided On : 03-12-2018
WILL - PROBATE - Indian Succession Act, 1925, Section 63 - The court granted letters of administration of the Will and Testament dated 26th October, 2002 of the deceased Budhmal Kulthia as sole beneficiary under the Will and Testament of the said deceased with effect throughout the Union of India. The court found that the testator had put his thumb impression on each page of the Will and that the attesting witness had identified the thumb impression, complying with the requirements of Section 63 of the Indian Succession Act, 1925. The court also dismissed the allegations of fraud and undue influence raised by the defendants, holding that the onus was on the defendants to prove such allegations, which they failed to do. The court concluded that the Will was genuine and that the plaintiff was entitled to the grant of letters of administration as the sole beneficiary.
Fact of the Case:
The plaintiff filed a petition for letters of administration of the Will and Testament dated 26th October, 2002 of the deceased Budhmal Kulthia as sole beneficiary under the Will and Testament of the said deceased. The defendants, who were the daughters of the deceased, raised allegations of fraud and undue influence in the creation of the Will.
Finding of the Court:
The court found that the Will was genuine and that the plaintiff was entitled to the grant of letters of administration as the sole beneficiary. The court dismissed the allegations of fraud and undue influence raised by the defendants, holding that the onus was on the defendants to prove such allegations, which they failed to do.
Issues: The issues framed in the suit were: (1) Is the last Will and Testament dated October 26, 2002 duly executed and attested as per provision of law? (2) Is the last Will and Testament dated October 26, 2002 fabricated, manufactured and vitiated by fraud as alleged in the written statement? (3) Is the plaintiff entitled to get the order of grant of probate in respect of the last Will and Testament of Budhmal Kulthia dated October 26, 2002? (4) Is the plaintiff entitled to get any other reliefs?
Ratio Decidendi: The court held that the testator had put his thumb impression on each page of the Will and that the attesting witness had identified the thumb impression, complying with the requirements of Section 63 of the Indian Succession Act, 1925. The court also dismissed the allegations of fraud and undue influence raised by the defendants, holding that the onus was on the defendants to prove such allegations, which they failed to do.
Final Decision: The suit was decreed in terms of prayer (c) of the plaint, and the plaintiff was granted letters of administration of the Will and Testament dated 26th October, 2002 of the deceased Budhmal Kulthia as sole beneficiary under the Will and Testament of the said deceased with effect throughout the Union of India.
Sahidullah Munshi, J.
P.L.A. No. 168 of 2010 was filed by the propounder Smt. Sampath Devi Kulthia, the plaintiff, praying for letters of administration of the Will and Testament dated 26th October, 2002 of the deceased Budhmal Kulthia as sole beneficiary under the Will and Testament of the said deceased with effect throughout the Union of India.
2. It is the case made out by the propounder that Budhmal Kulthia, the deceased, who was during his lifetime and at the time of his death a Hindu inhabitant governed by Mitakshara School of Hindu Law, departed his life at 81, Muktaram Babu Street, Kolkata-700007 on 4th April, 2004 as is evident from a death certificate annexed to the petition and marked with the letter 'A'. Prior to the death of the deceased he made and published his last Will and Testament in Hindi language and character on 26th October, 2002 in respect of his assets and properties whereby the said deceased declared the plaintiff as the sole beneficiary and legatee to the said last Will and Testament dated 26th October, 2002. The plaintiff has filed the original Will in Hindi language and character together with English translation thereof duly certified to be the English translation of the Will in Hindi by an interpreting officer of this court. The said translation of the original Will is marked as Annexure 'B' to the petition. The original Will in Hindi has been tendered in evidence and has been marked as Exhibit 'A'. From the translated copy of the Will it appears that the testator has put his thumb impression (LTI) on the first page of the will (Rs. 10 stamp paper) and thereafter on plain pages being page nos. 2, 3 and 4 being part of the original Will. The testator declared that he put his thumb impression on the will out of his own accord 'as a signature'. The original Will appears to have been signed by the following persons after the signature of the testator that is, (1) Jagdish Prasad Soni, (2) Om Prakash Jadhia, (3) Rajkumari Bhama, (4) Sudha Soni, (5) Dr. Sarat Kr. Das.
3. Lti of the testator has been attested by Shri A.K. Biswas, Notary, Government of India on 26th October 2002. The deceased stated in the will that had he died intestate he would have the following heirs (a) Sampath Devi Kulthia, wife of Late Ashoke Kr. Kulthia, a pre-deceased son of the testator. (b) Smt Kiran Soni, Wife of Shri Sachin Soni and daughter of late Ashoke Kr. Kulthia and Smt. Sampat Devi Kulthia (propounder), (c) Smt. Rajkumari Bhama @ Bharma @ Soni, wife of Ramesh Kr. Bharma, a married daughter of the testator. (d) Smt. Sudha Soni, wife of Shri Pawan Kumar Soni, the married daughter of the testator.
4. Although, two daughters of the deceased signed the will as witnesses but on their refusal to give consent to the letters of administration in favour of the propounder, citations were issued. Initially the defendants did not file any caveat but subsequently on their prayer this court by its order dated 6th September 2016 while disposing of G.A 2669 of 2016 granted liberty to the defendant to contest the probate proceeding subject to payment of cost and the defendants filed their respective caveats in modification of the order dated May 16, 2012 whereby the court held that proceedings be treated as a non-contentious cause with regard to Rajkumari Bhama, who had not filed any caveat in response to the general citation issued earlier. But however, Smt. Sudha Soni was granted liberty to file her affidavit in support of the caveat by 4th June 2012. Affidavits were filed and the suit was treated to be a contentious one. It is notable that although affidavits have been filed in support of their caveat but the defendant never appeared before the court and deposed in box in support of their affidavits. Therefore, it is a case where no evidence has been laid in support of the pleading.
5. However, in absence of the evidence the affidavit which the defendants have filed can be glanced through for the purpose of disposal of this case
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