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IN THE HIGH COURT OF CALCUTTA
Arijit Banerjee, J.
Pravin Kumar Kothari (deceased) & Ashok Kothari - Appellant
Versus
Dipti Bavishi - Respondent
General Application No. 1745 of 2013; Testamentary Suit No. 5 of 2007; P L A No. 116 of 2004
Decided On : 17-08-2020
WILL - PROBATE - COPY OF WILL - EXECUTION - MENTAL CAPACITY - SUSPICIOUS CIRCUMSTANCES - GRANT OF PROBATE - Section 237 of the Indian Succession Act, 1925 - Section 63 of the Indian Succession Act, 1925 - Section 64 of the Evidence Act, 1872 - Section 65 of the Evidence Act, 1872 - In the instant case, the plaintiff sought probate of a photocopy of the Will of the deceased, Pravin Kothari. The defendant, Dipti Bavishi, Pravin's daughter, contested the probate application, alleging that Pravin never executed a Will, that the document produced by the plaintiff was a manufactured document, and that there were suspicious circumstances surrounding the execution of the Will. The Court held that the plaintiff had discharged his onus of proving the Will in accordance with the law laid down by the Hon'ble Supreme Court by complying with the provisions of the Indian Succession Act and the Evidence Act. The Court further held that the photocopy of the Will being a certified/authenticated copy of the original through mechanical process is admissible in evidence under Section 65 of the Evidence Act since the original is lost. The Court also held that there was no evidence to support the defendant's contention that Pravin lacked the mental capacity to execute the Will or that there were suspicious circumstances surrounding the execution of the Will. Accordingly, the Court admitted the Will to probate.
Fact of the Case:
Pravin Kothari, a sub-broker at the Calcutta Stock Exchange, executed a Will on August 29, 2000, bequeathing all his properties, movable and immovable, to his son Ashok and Ashok's wife Urvashi, excepting Rs.31,00,000/- which he bequeathed to his daughter Dipti. Pravin died in Texas, U.S.A., on 10 February, 2004. Ashok applied for probate of the said Will in this Court in April, 2004. Dipti filed G.A. No. 389 of 2005 praying for revocation of grant of probate of Pravin's said Will. By a judgment and order dated February 20, 2006 passed by a Learned Single Judge, the grant of probate was revoked. Ashok's appeal against the said judgment and order was dismissed by a Division Bench of this court by a judgment and order dated 18 August, 2006. Subsequently, Dipti filed an affidavit in support of the caveat which she had lodged. The probate application became a contentious cause and was registered as T.S. No. 5 of 2007.
Finding of the Court:
The Court held that the plaintiff had discharged his onus of proving the Will in accordance with the law laid down by the Hon'ble Supreme Court by complying with the provisions of the Indian Succession Act and the Evidence Act. The Court further held that the photocopy of the Will being a certified/authenticated copy of the original through mechanical process is admissible in evidence under Section 65 of the Evidence Act since the original is lost. The Court also held that there was no evidence to support the defendant's contention that Pravin lacked the mental capacity to execute the Will or that there were suspicious circumstances surrounding the execution of the Will.
Issues: 1) Whether this court has jurisdiction to receive, try and determine the probate application? 2) Whether on the basis of a copy of the alleged Will a probate can be granted? 3) Whether there was any codicil to the alleged Will? 4) If probate can be granted on the basis of a copy of the alleged Will produced by the plaintiff, then whether he is entitled to grant of probate?
Ratio Decidendi: The Court held that the plaintiff had discharged his onus of proving the Will in accordance with the law laid down by the Hon'ble Supreme Court by complying with the provisions of the Indian Succession Act and the Evidence Act. The Court further held that the photocopy of the Will being a certified/authenticated copy of the original through mechanical process is admissible in evidence under Section 65 of the Evidence Act since the original is lost. The Court also held that there was no evidence to support the defendant's contention that Pravin lacked the mental capacity to execute the Will or that there were suspicious circumstances surrounding the execution of the Will.
Final Decision: The Court admitted the Will to probate.
JUDGMENT
Arijit Banerjee, J. - This testamentary suit and an application filed by the defendant have been heard together. I propose to dispose of the defendant''s application first before deciding the issues framed in the suit.
Re: G.A. No.1745 of 2013
1. The defendant has taken out this application contending that the plaintiff is holding certain Relief Bonds, Insurance Policies, Shares and Debentures which are in the name of the defendant and/or wherein the defendant is named as the sole beneficiary. The defendant relies on a letter dated 12 January, 2005 written by the plaintiff to her in this regard. The defendant has mentioned the particulars of the said instruments in Annexure - B to the application. The defendant claims delivery of the said instruments to her.
2. It has been submitted on behalf of the plaintiff that the said letter was written when there were talks of settlement going on between the parties but eventually the same did not materialize. It was submitted that the Relief Bonds, Insurance Policies, Shares and Debentures in which the defendant''s name appears as the nominee do not belong to the defendant. As the nominee of the testator, the defendant holds such moveable assets or any accrual thereto for the benefit of the person entitled to it under the relevant laws of succession. It was submitted that if the plaintiff succeeds in the testamentary suit, then the said assets of the testator would devolve upon the plaintiff as the sole beneficiary in spite of the defendant being named as nominee in the instruments in question. In this connection learned counsel for the plaintiff relied on the decision of the Hon''ble Supreme Court in Smt. Sarbati Devi and Anr. v. Smt. Usha Devi, (1984) 1 SCC 424 in support of the contention that a mere nomination does not have the effect of conferring on the nominee any beneficial interest in the amount payable under a life insurance policy on the death of the assured. The nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. On the death of the policy-holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. A nominee cannot be treated as being equivalent to an heir or a legatee. The amount received under the policy can be claimed by the heirs of the assured in accordance with the law of succession governing them. For the same proposition reliance was also placed on the decision of the Hon''ble Supreme Court in V. N. Khanchandani v. Vidya Lachmandas Khanchandi, (2000) 6 SCC 724 .
3. It was further submitted on behalf of the plaintiff that the movable assets mentioned in the plaintiff''s letter dated January 12, 2005 can be divided into two categories. The first category comprises assets mentioned in the letter which have been subsequently included in the affidavit of assets filed along with the probate petition, i.e., the movable assets belonging to the first category form part of the testator''s estate. The second category comprises assets which allegedly are in the name of the defendant, and, therefore, not part of the estate of the testator. As regards the first category of assets, the persons on whom such movable assets would devolve would depend upon outcome of the testamentary suit. By claiming delivery of such assets the defendant is disputing the title of the testator to such assets. This dispute cannot be gone into by the probate Court. In this connection reliance was placed on the decisions of the Hon''ble Supreme Court in the cases of Hem Nolini v. Isolyne Sarojbashini, (1962) AIR SC 1471 and Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., (1993) 2 SCC 507 .
4. As regards the second category of the assets which allegedly are in the defendant''s name, it was submitted that the same do not belong to the estate of the testator
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