IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Rajasekhar Mantha &

The Hon’ble Justice Ajay Kumar Gupta F.A. No. 274 of 2013 With I.A. No. CAN 10 of 2024 Sumit Kumar Kundu (Madhabi Kundu since deceased) & Ors.

Versus Subhra Kundu & Ors.

For the Appellants : Mr. Debajyoti Basu, Sr. Adv.

Mr. Diptomoy Talukdar, Adv.

Mr. Shirshania Roy, Adv.

Mr. Dibyendu Ghosh, Adv.

For the Respondents : Mr. Suman Dutt, Sr. Adv.

Mr. Siddhartha Banerjee, Adv.

Mr. Paritosh Sinha, Adv. Mr. Amitava Mitra, Adv.

Ms. Urmi Sengupta, Adv. Mr. Naman Agarwal, Adv.

Hearing concluded on : 2nd July, 2025 Judgment on : 7th July, 2025 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, the Appellants, Madhabi, Sumit, Amit and Madhuchanda objected to the grant of letters of administration. The daughter of the Testator, Jayanti Roy did not object to the application.

5. Consequently, Case No. 341 of 1999 was converted into Original Suit (OS)

No. 11 of 2001.Defendant no.4, Madhuchanda Kundu, and defendant no. 5, Jayanti Roy, did not contest the proceedings.

6. During the pendency of the suit, Tapan died on 25th September, 2008. His widow, Subhra, son Samrat, and daughter Samapika were substituted in his place.

7. The defendants/appellants contended as follows in the Written Statements:-

a. The Will propounded by the Plaintiff/Respondent was forged, fabricated, manufactured and fictitious.

b. The deceased had never executed any Will.

c. The deceased was not in a proper frame of mind during the last days of his life. He had severe old age ailments and was an imbecile. He did not have the capacity to understand the contents of any documents, much less the capacity to execute a Will.

d. The Will could not have been written by the Testator in his own handwriting. The handwriting and signature are not that of the Testator.

8. It is further contended that there were suspicious circumstances surrounding the execution of the Will in the following manner.

a. The publication of the Will after 31 years of the alleged execution is itself a suspicious circumstance.

b. The property of the deceased at 13/3/3 Swinhoe Street, Kolkata, now known as Anil Maitra Road, Kolkata 700019, and the landed properties at Shantipur in the District of Nadia, acquired by the Testator, have been voluntarily mutated in the names of the Gorachand Kundu, Jayanti Roy and the original plaintiff Tapan Kundu, sometime during 1985-86.

c. The deceased, during his lifetime, did not disclose the execution of any Will. The Will does not deal with a large number of movable properties, jewellery, furniture, and articles worth Rs. 20 lakhs and Rs. 2 lakhs cash of the deceased.

9. Based on the above pleadings, the Trial Court framed the following issues:-

“1. Is the suit maintainable in its present form and prayer?

2. Is this suit bad for defect of parties?

3. Has this