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CALCUTTA HIGH COURT
Ranjit Kumar Bag, J.
Soumitra Dhar and Anr. —Plaintiffs
versus
Ashim Kumar Nandy and Anr. —Defendants
T.S. No.13 of 2012 with T.S. No.20 of 2012
Decided on 29.11.2016.
For the Plaintiffs:Mr. Suman Dutta, Ms. Debjani Ghosh and Ms. Poulami Bose, Advocates
For the Defendants:Mr. A. C. Kar and Mr. D. K. Dey, Advocates
Headnote:(a) Indian Succession Act, 1925 – Section 63 – Attesting witness testifying execution of Will – Defendant also admitting signature of testator – Held, Will executed as per provision of Section 63. (Para 6)
(b) Indian Succession Act – Section 59 – Will – Proving of – Will executed on January 28, 1995 – Defendant contesting execution of Will on ground of suspicious circumstances – Onus to prove due execution and disposing mind of testator shifts to propounder of the Will – Defendant allging not disposing mind of testator – Not mentioning any specific ailment – Evidence establishing disposing and comprehending mind of testator in 1996 – Held, testator had testamentary capacity to execute the Will dated January 28, 1995. (Para 11, 14, 18)
(2002) 2 SCC 85; (2005) 8 SCC 67; 24 CWN 860; AIR 1961 Cal 359; 2009(4) CHN 784 – Relied upon
(c) Section 59 – Will – Execution of – Defendant contesting execution of Will on ground of coercion and undue influence – Not adducing any evidence – Testator dying eight years after execution of Will – Held Will is not vitiated by coercion and undue influence. (Para 19)
(d) Indian Succession Act, 1925 – Section 141 – Plaintiff and defendant both named executoers by testator – Plaintiff requesting defendant to join in probate of Will – Defendant refusing and initited proceedings for probate of an earlier Will – Same held not maintainable – Defendant not being wulling to become joint executor – Held defendant is not entitled to the legacy bequeathed by the testator. (Para 23)
AIR 1973 SC 2583; AIR 2004 Cal 217; (2011) 5 SCC 65 – Relied upon
Result: T. S. No.13 of 2012 is decreed on contest against the defendant.
Certainly. Based on the provided legal document, here are the key points:
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The Court has examined two separate testamentary suits involving the same testator, Shyam Sunder Nandy, and his last Will dated January 28, 1995. The earlier Will dated February 3, 1988 was revoked by the testator in the latter Will (!) .
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The Court found that the Will dated January 28, 1995 was executed and attested in accordance with legal requirements, with evidence establishing due execution and proper attestation (!) (!) .
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The defendant’s claim that the testator lacked testamentary capacity at the time of executing the Will was refuted. The Court observed that the testator demonstrated sufficient understanding of his property and the implications of his Will, including the ability to comprehend and communicate about his assets and obligations, indicating sound disposing mind at the time (!) (!) .
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The defendant’s allegations of coercion and undue influence were not substantiated by evidence. The Court noted the absence of proof that the testator was incapacitated or unable to make independent decisions due to physical or mental ailments at the time of execution (!) (!) .
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The Court held that the testator's reasons for revoking the earlier Will and executing the last Will were valid and supported by the evidence, making the revocation lawful and the subsequent Will valid (!) .
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The defendant did not manifest an intention to act as an executor of the Will dated January 28, 1995, despite being named as a joint executor. He contested the probate, which, under the applicable law, disqualifies him from claiming the legacy under the Will (!) (!) (!) .
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The Court decreed that the plaintiff is entitled to probate of the Will dated January 28, 1995, and the suit for probate of the earlier Will dated February 3, 1988 is dismissed. The defendant is barred from claiming the legacy due to the statutory prohibition under Section 141 of the Indian Succession Act (!) (!) .
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The Court directed that the order be executed promptly, with the necessary formalities completed, and copies of the judgment be provided to the parties (!) .
Please let me know if you require further analysis or specific legal advice related to this judgment.
R.K. Bag, J.—Two Testamentary Suits arose out of two separate applications for grant of probate – one application was filed by Ashim Kumar Nandy for grant of probate of the Will and testament dated February 3, 1988 executed by his father, Shyam Sunder Nandy in respect of his assets and properties which was registered as PLA No.244 of 2010 and another application was filed by Soumitra Dhar (hereinafter referred to as the plaintiff) for grant of probate of the last Will and testament dated January 28, 1995 executed by his grandfather, Shyam Sunder Nandy in respect of his assets and properties, which was registered as PLA No.278 of 2010. While Ashim Kumar Nandy (hereinafter referred to as the defendant) filed an affidavit in support of the caveat in connection with PLA No.278 of 2010, the matter became contentious and PLA No.278 of 2010 was converted to TS No.13 of 2012. On the other hand, PLA No.244 of 2010 was converted to TS No.20 of 2012 when Arati Dhar and Suniti Dey filed two separate affidavits in support of the caveat in connection with PLA No.244 of 2010 and the matter became contentious by the order of the court. Both TS No.13 of 2012 and TS No.20 of 2012 have been taken up for analogous hearing and as such both the above suits are disposed of by this common judgment.
2. One Shyam Sunder Nandy executed one registered Will and testament in respect of his assets and properties on February 3, 1988 and appointed his son – the defendant as the sole executor of the said Will. Subsequently, the said Shyam Sunder Nandy revoked his Will dated February 3, 1988 and executed another registered Will and testament in respect of his assets and properties on January 28, 1995 and appointed the defendant and the plaintiff as the joint executors of the said Will. The said Shyam Sunder Nandy died on July 30, 2003 leaving behind his wife – Parbati Nandy, his son – the defendant, his married daughter – Arati Dhar and his married daughter – Suniti Dey as his legal heirs. Subsequently on June 20, 2010 Parbati Nandy, wife of the deceased testator - Shyam Sunder Nandy expired leaving behind only the defendant and Arati Dhar and Suniti Dey as her legal heirs.
3. The fact of the case made out by the plaintiff is that his grandfather - Shyam Sunder Nandy specifically revoked his earlier registered Will dated February 3, 1988 and executed his last registered Will and testament on January 28, 1995 and appointed his maternal uncle –the defendant and himself as joint executors of the said Will. The plaintiff sent three separate letters dated July 28, 2010, August 10, 2010 and August 24, 2010 to the defendant through his Learned Advocate for joining him in filing application for grant of probate of the last Will and testament of Shyam Sunder Nandy or to renounce the executorship of the Will, so that the plaintiff alone can file the application for grant of probate of the said Will. The defendant did not respond to the said letters of the plaintiff, but he contested the probate proceeding by filing an affidavit in support of the caveat. According to the plaintiff, two other legal heirs of the deceased Shyam Sunder Nandy namely Arati Dhar and Suniti Dey have filed separate affidavits by which they have given consent to the grant of probate of the said Will in favour of the plaintiff. The affidavits filed by Arati Dhar and Suniti Dey in support of the caveat in connection with TS No.20 of 2012 indicate that Shyam Sunder Nandy gifted away entire first floor of the roof top of his residential building in favour of the defendant on October 1, 1986 and thereafter bequeathed his entire assets and properties in favour of the defendant by executing registered Will dated February 3, 1988 and appointed the defendant as the sole executor of the said Will. The specific case of the two daughters of Shyam Sunder Nandy is that the attitude of the defendant towards his parents was totally changed when the defendant constructed his flat on the 2nd floor of the re
