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CALCUTTA HIGH COURT
Soumen Sen and Smita Das De, JJ.
Prabir Roy in place of
Sukti Sanyal (since deceased) – Appellant
versus
Amit Kumar Roy and Ors. – Respondents
FAT 241 of 2012
Decided on 16.7.2025
For the Appellant:Mr. Ajoy Krishna Chatterjee, Sr. Advocate, Mrs. Shohini Chakraborty and Mr. Arijit Sarkar, Advocates
For the Respondents:Mr. Gopal Chandra Ghosh, Sr. Advocate, Mr. Rajkrishna Mondal and Mr. Sunandana Saha, Advocates
IMPORTANT POINT
A trust can be validly created by Will of any testator – Where a trust is declared by a Will, or author of trust is himself to be trustee, no transfer of property is necessary.
Headnote:
Indian Succession Act, 1925 – Section 2(h) – Indian Trusts Act, 1882 – Section 3 – Will – A Will or testament is declaration in a prescribed manner of intention of person making it, with regard to matters which he wishes to take effect upon or after his death – Most essential characteristic of a Will is that it should relate to property of testator which he wants to dispose of – If declaration contains no reference to disposal of property but merely provides for a successor, it will not constitute a Will – A trust can be validly created by Will of any testator – However, it has to comply with all provisions of Indian Succession Act, 1925 in order to be a valid trust and such a Will has to be signed by at least two attesting witnesses – Where a trust is declared by a Will, or author of trust is himself to be trustee, no transfer of property is necessary. (Paras 47, 52 and 55)
Result: Appeal dismissed.
JUDGMENT
Soumen Sen, J.—The true nature and purport of a document described as a Will of one Smt. Meghamala Roy (hereinafter referred to as a “testatrix’’) is the issue to be decided in this appeal. The appellant, Sukti Sanyal is the executrix of the last Will and testament of the testatrix. The appellant was appointed as one of the members of the Advisory Committee by the testatrix in the said Will. Prabir Roy was another member of the Advisory Committee.
2. In view of the death of Smt. Sukti Sanyal during the pendency of the appeal, Prabir Roy was substituted in her place by the order dated 2nd September 2024 rejecting the objection of the respondents inter alia on the following reasoning:—
“5. This Court has carefully considered the rival submissions advanced by the parties. This Court is of the clear and unequivocal view that the applicant Probir Roy before this Court is but a member of a proposed committee who was to act as an advisor to the Trust created by the settler/husband of the testatrix. The applicant before this Court is only coming on record to pursue the appeal to ensure that the interest of the beneficiary of the trust created by the husband of the testatrix is duly protected. There is no conflict of interest between the applicant before this Court and the actual beneficiary.”
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10. Since the sole executrix under the Will in question has died during the pendency of this appeal, the appeal shall be treated as one, challenging refusal to grant letters of administration instead of the probate as was refused by the Court below. The amendments proposed in the schedule to the application for amendments being CAN 10 of 2023 is allowed.”
3. The learned Single Judge dismissed the probate proceeding on the ground that there is no bequeath of any of the properties by the testatrix and accordingly, there is no bequest in favour of the beneficiaries. The Will only refers to the constitution of an Advisory Committee and provides the line of Succession to the office of the trustees.
4. This order is under challenge.
5. Before we advert to the argument made on behalf of the respective parties we may briefly indicate the background facts for proper appreciation. The testatrix is the wife of the Shri Biren Roy, a famous industrialist. Mr. Roy was known for his charitable and philanthropic activities and during his lifetime he has created the trust by a name of Biren Roy Charitable Trust in which he was the settler. The trust contains various movable and immovable properties and also a line of Succession. However, the said trust deed provides that after the death of Shri Biren Roy, his wife namely the testatrix would be the sole trustee of the said trust. Consequently, upon the death of Shri Biren Roy, the testatrix became the sole trustee of the said trust. Thereafter, due to her old age she decided to create a Will for certain philanthropic purposes namely creation of a medical unit and a memorial library in the name of her late son Ronjon Roy.
6. In the Will she has referred to the purpose of the creation of the said medical unit which will cater to the needs of the residents of Behala and the public at large would be the beneficiary. She appears to have been influenced by her husband and dedicated her life for public and charitable cause. She has appointed one Smt. Sukti Sanyal as the executrix of the said Will.
7. The testatrix during her lifetime, after the execution of the Will registered the Will on commission and the registered Will was exhibited in the proceeding.
8. The present substituted appellant is a member of the proposed committee to administer to estate left behind by the husband of the testatrix as would appear from the order dated 2nd September, 2024 mentioned aforesaid. The probate proceeding is contested by Shri Samaren Roy, Smt. Susama Mukherjee and Smt. Anima Banerjee. However, during the pendency of the pro
