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IN THE HIGH COURT OF CALCUTTA
ARIJIT BANERJEE, J.
In Goods Of Sisir Kumar Bhattacharjee (Deceased) - Appellant
Vs.
Dipti Chatterjee and Others - Respondent
Testamentery Suits No. 15 of 2009
Decided on : 13-11-2018
WILL - Probate of Will - Secs. 61 and 63 of the Indian Succession Act, 1925 - The Will in question is the last Will and testament of Late Sisir Bhattacharjee bearing his genuine signature.
Fact of the Case:
One Sisir Kumar Bhattacharya's sons and daughters contested the probate of their father's Will, claiming it to be the last Will and testament. The main subject matter of the Will was the flat at 12A Southern Avenue, Calcutta, where the testator resided. The sons were bequeathed the property, while the daughters were not given any part of the properties. The sons contested the validity of the Will, alleging that the testator lacked testamentary capacity and that the execution of the Will was obtained by fraud, undue influence, and importunity.
Finding of the Court:
The Court found that the Will was the genuine last Will and testament of Sisir Bhattacharjee, executed in accordance with law. The Court held that the testator had the legal capacity and right to bequeath the property in question as he did by the Will. The Court also found that the Will was executed without any fraud or undue influence and that there were no suspicious circumstances surrounding its execution.
Issues: The issues involved in the case were whether the Will in question was the genuine last Will and testament of Sisir Bhattacharjee, whether the said Will was otherwise valid, whether the Will was executed in accordance with law, and whether the testator had the legal capacity and right to bequeath the property in question as he did by the Will.
Ratio Decidendi: The Court held that the burden of proving the due and valid execution of the Will and the testamentary capacity of the propounder must be established. The propounder must also remove any suspicious circumstances surrounding the execution of the Will by cogent and satisfactory evidence. The Court also emphasized that a Will has to be proved like any other document and that the propounder must explain to the satisfaction of the Court any suspicious circumstances, if any, surrounding the execution of the Will.
Final Decision: The Court granted probate of the last Will and testament dated 12 May, 1997 executed by Late Sisir Kumar Bhattacharjee, with costs of the proceeding incurred by the plaintiff to come out of the estate of the deceased.
ARIJIT BANERJEE, J.
1. One Sisir Kumar Bhattacharya, since deceased, was the owner and resident of a flat situated in the north-east part of the first floor of a three storied building at 12A, Southern Avenue, Calcutta 700025. He passed away on 7 July, 2002 at S.S.K.M. Hospital, Calcutta. His wife had pre-deceased him. He left behind four sons and three married daughters. His sons are Subol, Somnath, Tarun and Goutam. His daughters are Amita, Gita and Namita.
2. On or about 9 January, 2008 Goutam filed PLA No. 6 of 2008 in this Court’s Testamentary and Intestate Jurisdiction praying for probate of a document which he claimed to be the last Will and testament dated 12 May, 1997 executed by Sisir. The Will was written in Bengali language and registered with the District Sub-Registrar, South 24 Parganas, Alipore. Goutam is named as the executor in the said Will.
3. Gita, Namita, Somnath and Tarun had filed caveats and affidavits in support thereof. Accordingly, the probate proceeding became a contentious cause and was registered as TS 15 of 2009. Gita and Namita did not adduce evidence in support of their cases. Somnath and Tarun adduced evidence challenging the validity of the said Will.
4. After considering the issues suggested on behalf of the plaintiff i.e., Goutam and the contesting defendants i.e. Somnath and Tarun, a learned Judge of this Court by an order dated 12 July, 2010 framed the following issues:-
“1. Is the Will in question, i.e. dated 12.05.1997 the genuine last will & testament of Sri Sisir Bhattacharjee?
2. Is the said Will dated 12.05.1997 otherwise valid?
3. Was the above Will executed in accordance with law?
4. Did the testator have legal capacity and right to bequeath the property in question as he did by the Will?
5. To what relief, if any, is the plaintiff entitled?”
5. Evidence was adduced by Somnath, Tarun, Goutam and one Sudhamay Goutam, who was an attesting witness to the Will in question. The other attesting witness namely, Biman Ghosh Dastidar had passed away by the time the probate proceeding was initiated.
6. The main subject matter of the Will is the flat at 12A Southern Avenue, Calcutta where the testator resided. It is a fairly small flat. The testator gave one room to his eldest son Subol and one room to his youngest son Goutam. All other properties were bequeathed to Subol and Goutam in equal shares. Under the said Will no part of the testator’s properties was given to Somnath or Tarun or to the three married daughters.
6. I will first note the grounds on which the defendants/caveators have resisted the Will being admitted to probate.
7. Somnath filed an affidavit affirmed on 3 April, 2009 in support of his caveat. The points taken in the said affidavit can be summarized as follows:-
(i) Goutam shared an in-amicable relationship with the testator.
(ii) The testator did not execute any Will.
(iii) The signature purporting to be that of the testator on the alleged Will is not that of the testator.
(iv) In the alternative, if it is held that the signature on the Will is that of the testator the signature is so placed on the document that it was not intended by the deceased to give effect to the said document as a Will.
(v) The persons purported to have witnessed the Will did not see the deceased sign the said document and/or were not present when the deceased signed the same.
(vi) The purported Will cannot be construed as a testamentary instrument, is vague, uncertain, unclear and no probate can be granted in respect thereof.
(vii) The deceased lacked testamentary capacity.
(vii) Execution of the Will was obtained by fraud, undue influence and importunity.
(viii) Sudhamoy Goutam is an acquaintance of the plaintiff, and they together have jointly perpetrated fraud on the testator.
(ix) At the time of registration of the document, the deceased did not know and/or was not made aware that the document sought to be registered was a Will.
8. The affidavit affirmed by Tarun on 3 April, 2009 in support of his ca
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