IN THE HIGH COURT AT CALCUTTA TESTAMENTARY AND INTESTATE JURISDICTION ORIGINAL SIDE I.A. No. G.A. 8 of 2023 PLA No. 183 of 2009 IN THE GOODS OF:

Ashim Kumar Sircar, resident of 41/A, Golf Club Road, Calcutta – 700033 and lately residing at No. 8, H.L. Sarkar Road, Bansdroni Police Station, Rejent Park, Calcutta – 700 070 a Hindu Inhabitant, deceased Before: The Hon’ble Justice Apurba Sinha Ray For the Petitioner : Mr. Tapan Coomaar Dey, Adv.

Ms. Shreya Chatterjee, Adv.

Caveatrix in person : Ms. Shyamali Sircar (Ganguly)

CAV On : 28.04.2025

Judgment On : 19.05.2025

Apurba Sinha Ray, J. :-

1. The propounder Himangshu Swin has prayed for grant of

probate of the Last Will and Testament of the deceased Ashim Kumar

Sircar dated 17th August, 2000 in his favour as the sole executor. The

propounder has further submitted that Smt. Arati Sircar, who is the wife of the deceased did not give consent to the prayer for grant of probate and as such special citation and general citation were issued as per direction of the Hon’ble Court but the articles were returned with the remark ‘Not known’. The general citation was served by affixation. However, the Hon’ble Court allowed the prayer for substituted service by way of publication of notice in the two newspapers and accordingly, the same was published in daily newspapers viz., ”Telegraph” and “Bartaman” on 1st October, 2023. In view of such publication in the two newspapers one Shyamali Sircar (Ganguly) having her residential address at 146/C, Swinhoe Lane, Ground Floor, Kolkata – 700042, appeared in person and ultimately lodged a caveat in the department and further submitted an affidavit in support of her caveat.

2. The learned counsel of the propounder, Mr. Dey has submitted that the caveatrix is a stranger to the Will and she has come forward to contest the Will by seeing a publication in the newspaper. She is claiming as the married wife of the deceased and files a caveat. She has failed to submit a single piece of document in support of her alleged claim of marriage with the deceased Ashim Kumar Sircar. She could not produce the death certificate of the deceased. As per her affidavit, marriage took place on 30th November, 1976 and at the fag end of the December, 1977 the deceased left the house and since then she had no connection with the deceased. How the child namely, Indranil Sircar as her son came in the picture is not clear.

3. The deceased, as per submission of the learned counsel of the propounder, expired on 29th March, 2007. The Will was executed on 17th August, 2000. There is no document to show that the caveatrix was present at the “Burning Ghat” and she performed the “Sradh Ceremony”. Nothing is said in this respect in the affidavit-in-support of caveat. The caveatrix is relying on a judgment of the Hon’ble High Court and according to that judgment the Hon’ble Court allowed monthly maintenance in her favour. However, the cause title of the case is shown as “Shyamali Sarkar –Vs- Ashim Kr. Sarkar” but not as “Shyamali Sircar Vs. Ashim Kumar Sircar”. No document is filed regarding court proceeding. It is not proved that the judgment relied upon by the caveatrix relates to her marriage with the deceased. It is also urged that no document has been filed regarding receiving of any monthly maintenance from the part of the deceased.

4. The learned counsel has further submitted that the caveatrix has failed to disclose the “grounds of her objection” to the grant of probate as per provision of Chapter XXXV Rule 25 of the High Court Original Side Rules, which is a mandatory provision. The caveatrix has failed to show her interest in the subject property of the Will and her involvement with the deceased. Therefore, adverse presumption can be taken under section 114(g) of the Indian Evidence Act. Surprisingly, the caveatrix did not file the judgment and decree passed by the Hon’ble Court allowing the restitution of conjugal rights.

5. It is submitted on behalf of the learned counsel of the propound