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IN THE HIGH COURT OF CALCUTTA
Sahidullah Munshi, J.
Edwin Bason @ Edwin Edmond Bason (deceased) And Kumar Shankar Sadhu And Others - Appellants
Versus
Naila Samreen Shahab - Respondent
Testamentary Suit No.11 of 2006 With P.L.A. No. 6 of 1996
Decided On : 04-02-2020
The Court held that the Will dated 20th March, 1995 was validly executed by the deceased and was his last Will and Testament. The Court also held that the plaintiffs were entitled to the grant of probate of the Will and that E.O.P.L.A. no. 01 of 2007 was liable to be dismissed.
Fact of the Case:
The deceased, Edwin Bason alias Edmond Bason, executed a Will on 20th March, 1995, appointing the plaintiffs as executors. The defendant, Naila Samreen Shahab, who was a beneficiary under an earlier Will executed by the deceased on 23rd November, 1992, contested the grant of probate of the later Will. The defendant alleged that the later Will was not executed by the deceased, that it was obtained by undue influence, force and/or coercion, and that the deceased did not have testamentary capacity at the time of its execution.
Finding of the Court:
The Court found that the Will dated 20th March, 1995 was validly executed by the deceased and was his last Will and Testament. The Court also held that the plaintiffs were entitled to the grant of probate of the Will and that E.O.P.L.A. no. 01 of 2007 was liable to be dismissed.
Issues: 1) Did the testator have testamentary capacity at the time of making the Will dated 20.03.1995? 2) Was the Will dated 20.03.1995 not executed out of the free will of the Testator, as alleged? 3) Was the Will dated 20.03.1995 obtained by undue influence, force and/or coercion, as alleged? 4) Was the Will dated 20.03.1995 validly executed in accordance with law? 5) Are the plaintiffs entitled to grant of probate of the Will dated 20.03.1995, as prayed for? 6) To what relief, if any, are the plaintiffs entitled?
Ratio Decidendi: The Court held that the Will dated 20th March, 1995 was validly executed by the deceased and was his last Will and Testament. The Court also held that the plaintiffs were entitled to the grant of probate of the Will and that E.O.P.L.A. no. 01 of 2007 was liable to be dismissed. The Court found that the Will was executed by the deceased in the presence of three attesting witnesses, that the deceased was of sound mind and disposing state of mind at the time of its execution, and that the Will was not obtained by undue influence, force or coercion.
Final Decision: The Court directed that Probate of Will and Testament of Edwin Bason alias Edwin Edmond Bason, deceased be granted to the plaintiffs with effect throughout the State of West Bengal. The Court also dismissed E.O.P.L.A. no. 01 of 2007.
JUDGMENT
1. The Court : The present suit arose from the probate petition filed by the plaintiff Kumar Shankar Sadhu praying for grant of probate of the purported Will dated 20th March, 1995 allegedly executed by the deceased Edwin Bason alias Edmond Bason who lately resided at the address mentioned in the cause title of the Probate Petition. Probate Petition disclosed that the deceased, an Indian Christian during his lifetime duly made and published his last Will and Testament dated 20th March, 1995 in English language and character. By the said Will the testator appointed the petitioners/plaintiffs as joint executors/executrix. It is the plaintiffs case that the said Will was duly registered by the Registrar of Assurance, Kolkata. According to the plaintiffs, assets those were left behind by the deceased, are within and outside the Ordinary Original Civil Jurisdiction of this Honble Court.
2. It has been disclosed in the Probate Petition that no person or persons have applied for probate of the said Will or for Letters of Administration with copy of Will annexed or for Succession Certificate in respect of the Estate or effects due to the Estate of the said deceased to any Court in the Union of India According to the plaintiffs execution of the said Will is proved by affidavit of Mr. David Elias Nahoum, one of the attesting witnesses affirmed on 10th November, 1995 and also by signature at the foot of the petition. The said affidavit of David Elias Nahoum has also been annexed with the petition.
3. The grant of probate of the said Will was initially opposed and or contested by one Mohammed Shahabuddin and one Ronald Edwin Armstead in their capacity as Joint Executors of an earlier Will of the said deceased made and published on 23th November, 1992. It is not disputed that both the earlier Will and the said Will are registered documents and by the said Will, the earlier Will was expressly revoked.
4. The cause of lodging of caveat and filing of affidavits in support thereof by the aforesaid Ronald Edmond Armstead by himself and Mohammed Shahabuddin, the probate proceeding (PLA no. 6 of 1996) became a contentious cause and was marked as T.S. No. 11 of 2006. Mohammed Shahabuddin and Ronald Edwin Armstead also filed an application for grant of probate of the earlier Will of the deceased before the learned District Delegate at Alipore being Act XXXIX case No. 111 of 1996. The said proceeding was subsequently transferred to this Honble Court and has been marked as E.O.P.L.A. No. 1 of 2007. Mohammed Shahabuddin, however, expired and his daughter, Naila Samreen Shahab, the only present contesting defendant made an application for being substituted on the basis of her right as a purported residual legatee in terms of the earlier Will and also by reasons of the fact that the other executor of the earlier Will, Ronald Edmond Armstead, was disinclined to act any further. The addition of the present contesting defendant, Naila Samreen Shahab, was, ultimately, allowed and by an order dated 26th September, 2006 read with order dated 16th November, 2006 and 24th November, 2006 passed by a Coordinate Bench of this Honble Court and records were amended. It is on record that subsequently, other surviving executor of the earlier Will, Ronald Edmond Armstead also expired and his name along with that of Mohammed Shahabuddin, who had earlier expired, was deleted by an order dated 26th March, 2007 by an order of a Coordinate Bench. Present suit has been contested only by the defendant Naila Samreen Shahab, who claims to be beneficiary and residual legatee of the earlier Will.
5. Defendant Naila Samreen Shahab has entered appearance and filed written statement through advocate. Issues were framed by an order dated 14th August, 2006 and those are as follows:
1) Did the testator have testamentary capacity at the time of the making the Will dated 20.03.1995?
2) Was the Will dated 20.03.1995 not executed out of the free will of the Testator, as alleged?
3)
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