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IN THE HIGH COURT AT CALCUTTA
RAJASEKHAR MANTHA, AJAY KUMAR GUPTA
Sumit Kumar Kundu, (Madhabi Kundu since deceased) – Appellant
Versus
Subhra Kundu – Respondent
JUDGMENT :
Rajasekhar Mantha, J.
1. The appellants were the defendants in OS Suit No. 11 of 2001. They are aggrieved by the grant of letters of administration in favour of the Respondents by its judgment dated 13th March 2012, passed by the Additional District Judge, 8th Court at Alipore, South 24 Parganas.
I. FACTS OF THE CASE AND PROCEEDINGS IN THE TRIAL COURT
2. One Hridoy Krishna Kundu died in the town of Durgapur, on 31st May 1977. He was a Hindu governed by the Dayabhaga School of Hindu Law. At the time of his death, the deceased left behind two sons and a daughter, namely Gorachand Kundu, Tapan Kumar Kundu, and Jayanti Roy.
3. Gorachand died on 29th March 1992, leaving behind his widow Madhabi Kundu, two sons, Sumit Kumar Kundu and Amit Kumar Kundu, and a daughter Madhuchhanda Kundu.
4. On the 23rd of August, 1999 Hridoy Krishna’s younger son Tapan filed an application (Case No. 341 of 1999) for grant of letter of administration of a holographic handwritten Will and testament of the deceased testator dated 20th October, 1968 under Section 232 of the Indian Succession Act, 1925 before the Learned District Delegate at Alipore (South 24 Parganas Dist). On the application being cited,
A holographic Will is presumed valid unless strong evidence is presented to the contrary. Delays in seeking letters of administration do not invalidate the Will if the right to apply arises from lega....
(1) When a Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between plaintiff and defendant.(2) Genuineness of Will must be proved by proving intention of testator to make....
The propounder of a Will must prove its valid execution and genuine nature, failing which, the Will cannot be upheld.
The absence of an original Will does not invalidate its probate if secondary evidence sufficiently proves its execution and the delay in application is justified.
A will must be executed in accordance with statutory requirements, and any suspicious circumstances must be adequately addressed by the propounder for the will to be validated.
Important Point : A will can be proved through secondary evidence if the original is lost, and Letters of Administration can be granted when no executor is appointed.
The propounder must prove the existence and loss of the original Will to obtain Letters of Administration; reliance on a photocopy alone is insufficient.
The propounders have the onus to prove due execution of a Will as per the requirements of Section 63 of the Indian Succession Act, 1925. When there are suspicious circumstances, a greater onus lies o....
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