IMPORTANT POINT
Probate of Will – Where due execution of Will is not established, Probate can be refused.

JUDGMENT

Sugato Majumdar, J.—This is a contentious probate proceeding.

2. Deceased Gour Lal Mitra who was the Testator in the instant suit, was a Hindu and last resided at premises no. 5/1A, Raja Rajballav Street, Kolkata-700003. The said Gour Lal Mitra breathed his last on the 3rd day of June, 2005 in his residence. Prior to death, the Testator executed a will, said to be the last will and testament, dated 28th February, 2001 which was registered in Book No. III, Volume No. 3, Pages 292 to 302, Being No. 153 for the year 2001 at the office of the Registrar of Assurances, Kolkata. The Petitioner was appointed as the Executor.

3. On death of the Testator, the present application was filed by the Petitioner, praying for grant of probate of the said last will and testament dated 28/02/2001.

4. Citations were issued, following which several caveats were lodged, supported by respective affidavits in support of caveats. The Caveators and the Caveatrixes are one of the sons of the Testator and his daughters are the Caveatrixes. The present Petitioner is one of the sons of the Testator, the other being the Caveator.

5. Caveats were allowed and the affidavits in support of caveats were treated as written statement. The suit was renumbered and the Caveators as well as Caveatrixes became the Defendants.

6. The contention of the written statement filed by the original Defendant No. 1, Shyamal Kumar Mitra may be summarized as follow:—

a) The Testator, Gour Lal Mitra, at the time of his death, had only transferrable interests in respect of the premises no. 9, Nobin Chandra Boral Lane, Kolkata-700012.

b) Adhar Kumar Mitra, since deceased, father of late Gour Lal Mitra was the absolute owner and was in possession of the following properties at the time of his death:—

(i) 5/1A, Raja Rajballav Street, Kolkata – 700003.

(ii) 5/2A, Raja Rajballav Street, Kolkata – 700003.

(iii) 5/2B, Raja Rajballav Street, Kolkata – 700003.

(iv) 5/2C, Raja Rajballav Street, Kolkata – 700003.

(v) 5/2D, Raja Rajballav Street, Kolkata – 700003.

(vi) 5/2E, Raja Rajballav Street, Kolkata – 700003.

(vii) 5/2F, Raja Rajballav Street, Kolkata – 700003.

(viii) 6/1, Raja Rajballav Street, Kolkata – 700003.

(ix) 11C, Gokul Mitra Lane, Kolkata – 700005.

(x) 15, Gokul Mitra Lane, Kolkata – 700005.

(xi) 17, Gokul Mitra Lane, Kolkata – 700005.

(xii) 11A, Raja Dinendra Street, Kolkata – 700009.

(xiii) 11D, Gokul Mitra Lane, Kolkata – 700005.

(xiv) 11B, Raja Dinendra Street, Kolkata – 700009.

c) Adhar Kumar Mitra, prior to his death, executed one of will on 21/04/1944 which had been registered on 28/04/1944 in the office of the Registrar of Calcutta. In terms of the will, the said Adhar Kumar Mitra, since deceased, bestowed life interests on his two sons, namely, Gour Lal Mitra and Netai Lal Mitra, Prativa Bala Mitra being widow of one pre-deceased son Bhupendra Lal Mitra and two daughters, namely, Sushama Bose and Rajlaxmi Dutta.

The said Adhar Kumar Mitra appointed his two surviving sons as the managers of his estate; it was provided that the daughter-in law would get Rs.25/- per month from the estate of Adhar Kumar Mitra. The will further provided that, apart from payment of maintenance to the two daughters and widow daughter-in-law, the granddaughter shall be entitled to Rs.10/- per month till marriage. It was further provided in the will that on death of the two sons of Adhar Kumar Mitra, the estate would absolutely vest on the sons and daughters of Gour Lal Mitra and Nitai Lal Mitra whereby and whereunder the said sons and daughters would be the absolute owner of the estate in equal shares. Thus, it is pleaded in the written statement that Adhar Kumar Mitra specifically mentioned in his will that his sons Gour Lal Mitra and Nitai Lal Mitra would not be able to dispose of by way of mortgage, transfer or gift of any of the immovable properties and anything done contrary to this stipulation should be treated as void.

d) The said Adhar Kumar