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CALCUTTA HIGH COURT
Ranjit Kumar Bag, J.
Sudesh Chander Talwar —Plaintiff
versus
Seema Sarin and Anr. —Defendants
T.S. No.2 of 2014
Decided on 15.12.2016
For the Plaintiff:Mr. Dhruba Ghosh, Mr. Anirban Ray, Mr. S. K. Chakraborty, Ms. Nandini Khaitan, Mr. Pratik Shanu and Ms. Namrata De, Advocates
For the Defendant:Mr. Saikat Basu, Advocate
For the Defendant No.1 and 2:Mr. Archan Bhattacharya, Advocate
IMPORTANT POINT
When the Will is duly executed and attested and free from any suspicious circumstance, probate has to be granted.
Headnote:(a) Indian Succession Act, 1925 – Section 270 and Clause 34 of Letters Patent, 1865; amended provisions of Section 5 (omitting Section 300 of Act, 1925) and Section 21 and Second Schedule of the City Civil Court Act, 1953 – Testamentary jurisdiction of High court at Calcutta – For granting probate of Will or letters of administration to the estate of a deceased person who had permanent place of abode or had properties within the State of West Bengal – Throughout the State of West Bengal along with the respective District Judges – Except when the deceased had permanent place of residence or had property within the territorial jurisdiction of the City Civil Court at Calcutta. (Para 12)
(b) Letters Patent, 1865 – Clause 34 – Instantly testatrix having permanent place of abode and some movable properties at 8, Dover Park, Kolkata-700019, outside territorial jurisdiction of City Civil Court at Calcutta, but within territorial jurisdiction of State of West Bengal – Held, High Court will have testamentary jurisdiction even when immovable property of the deceased is situated outside State of West Bengal. (Para 18)
(1984) 2 CHN 99; (2007) 1 CHN 843: (2007) 1 Cal. L. T. 227; (2014) 3 HCC (Cal) 482: 2014 SCC Online Cal 16984 – Relied upon
(1989) 1 CHN 462: (1989) 1 Cal. L. T. 426; AIR 2012 Cal 7 – Distinguished
(c) Indian Succession Act, 1925 – Section 63 r/w section 68, Indian Evidence Act, 1872 – The only surviving attesting witness proving the Will – Witness found trustworthy – will held duly executed and attested (Para 19)
(d) Indian Succession Act, 1925 – Section 63 – Proving of Will – Defendants 1 and 2 alleging the Will to be vitiated by fraud, misrepresentation and undue influence – Duty bound to plead particulars of fraud, misrepresentation and undue influence with specific dates and events – Order VI Rule 4, CPC – Miserably failing to do so – Similarly apart from questioning sound disposing mind of testatrix affecting her testamentary capacity, not adducing any evidence to establish the same – Held, testatrix was physically fit and mentally alert at the time of execution of the Will and thereby she had sound disposing mind and testamentary capacity to execute the Will. (Para 21, 22)
(e) Indian Succession Act, 1925 – Section 270 – Will found duly executed and attested – Thus the Will is proved – No suspicious circumstance found vitiating execution of the Will – Plaintiff held entitled to grant of probate. (Para 23)
Result: Probate of the Will granted.
Ranjit Kumar Bag, J.—The plaintiff has prayed for grant of probate of the last Will and testament executed by Bhagwati Talwar on January 3, 1995 in respect of her assets and properties. The plaintiff died on November 29, 2006 leaving behind Jagdish Chander Talwar – eldest son, Sudesh Chander Talwar – youngest son, Navina Punj – daughter of predeceased daughter Kuku Narang, Davinder Raj Narang – son of predeceased daughter Kuku Narang, Seema Sarin – daughter of predeceased daughter Neena Sarin and Reema Sarin – daughter of predeceased daughter Neena Sarin as legal heirs. Both the daughters of testatrix Bhagwati Talwar predeceased her. The last Will and testament of Bhagwati Talwar was attested by Sarla Gulati and Bhagwan Das Khaitan since deceased. The testatrix Bhagwati Talwar had permanent place of residence at 8, Dover Park, Ballygunge Circular Road, Kolkata-700019 which is outside the jurisdiction of the City Civil Court at Calcutta, but within the State of West Bengal. The testatrix Bhagwati Talwar left behind her immovable property at 6, Kautilya Marg, Chanakyapuri, New Delhi-110021 (hereinafter referred to as Delhi property) which is situated outside the jurisdiction of the High Court at Calcutta. The movable properties including bank lockers of the testatrix Bhagwati Talwar were situated both within the jurisdiction of the High Court at Calcutta and outside the jurisdiction of the High Court at Calcutta. The plaintiff is appointed as the executor of the last Will and testament of Bhagwati Talwar. The plaintiff has paid ad valorem stamp duty in respect of the declared assets. Accordingly, the plaintiff has instituted this proceeding for grant of probate of the last Will and testament of Bhagwati Talwar.
2. The Court granted probate of the last Will and testament of Bhagwati Talwar on December 18, 2006 on consideration of the consent affidavits filed by all the legal heirs of deceased Bhagwati Talwar. On September 17, 2010 the defendants have filed an application for revocation of grant of probate. On September 10, 2012 the application for revocation of grant of probate was dismissed by Learned Single Judge of this Court. The defendants preferred appeal being A. P. O. No.434 of 2012 by challenging the order of dismissal of application for revocation of grant of probate. On December 4, 2013 Hon’ble Division Bench of this Court allowed the said appeal and revoked the order of grant of probate of the last Will and testament of Bhagwati Talwar. The appellate court directed the defendants to deposit cost of Rs.1 lakh with Learned Registrar, Original Side within specified period of time and made the probate proceeding as contentious. The appellate court also directed Learned Registrar, Original Side to pay the cost of Rs.1 lakh to the plaintiff if the defendants are not successful in the probate proceeding now pending before this Court. The affidavit filed by the defendants pursuant to the leave granted by the Hon’ble Division Bench on January 3, 2014 is treated as affidavit of the defendants in support of the caveat.
3. The defendants nos.1 and 2 have contended in the affidavit that this Court has no jurisdiction to grant probate of the Will of Late Bhagwati Talwar who resided outside the jurisdiction of this Court and who left behind her immovable property at Delhi which is also outside the jurisdiction of the Court. It is contended that the parents of the defendants were permitted to live in Delhi property by the testatrix Bhagwati Talwar. On March 15, 1986 the testatrix Bhagwati Talwar executed one power of attorney in favour of the father of the defendants, by which the father of the defendants was authorised and empowered to look after and manage the entire Delhi property. The defendants have been living in the said property for almost 30 years and the testatrix Bhagwati Talwar openly declared in presence of the plaintiff and other legal heirs of Bhagwati Talwar that the Delhi property will remain with the defenda
