IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE PRESENT:

THE HON’BLE JUSTICE SOUMEN SEN &

THE HON’BLE JUSTICE BISWAROOP CHOWDHURY FAT 106 OF 2017 Shibasish Chatterjee -vs.-

Sri Debasish Chatterjee & Anr.

For the Appellant : Mr. Sounak Bhattacharya Mr. Sounak Mondal Mr. Abhirup Halder Mr. Anirban Saha Roy For the Plaintiff/ : Mrs. Shohini Chakrabarty Respondent No.1. Mr. Suprabhat Bhattacharyya Ms. Prajaaini Das Last Heard On: - January 31, 2025 Judgment on: - March 07, 2025 Biswaroop Chowdhury, J:-

1. The Appellant before this Court is a defendant in a suit for grant of Letter of Administration and is aggrieved by the Judgment dated 17.01.2017 passed by Learned Additional District Judge 16th Court at Alipore in O.S. 21 of 2012.

2. The case of the plaintiff/respondent no. 1 before the Learned Trial Court may be summed up thus:

A. One Balai Chandra Chatterjee since deceased son of Late Tulshi Charan Chatterjee was the permanent resident of Flat No. 2B Ground Floor, premises no. 406, NSC Bose Road, P.S. Jadavpore now Patuli, Kolkata-700047 within the jurisdiction of this Court.

B. That Balai Chandra Chatterjee since deceased executed a Will on 22.11.1995 and it was registered in the office of A.D.S.R. Alipore on 22.11.1995 and recorded in Book No. III Volume No. 13 pages 86 to 90 being no. 370 for the year 1995 of A.D.S.R.

Alipore.

C. That by the aforesaid Will the testator bequeathed the flat no.

2B of premises no. 406 NSC Bose Road in favour of the plaintiff subject to right of residence for life of his wife Anjali Chatterjee (defendant no. 1) and also directed that cash money if any lying will be divided amongst his wife and two sons dis-

proportionately.

D. That the testator named and appointed his youngest son Sri Shibasish Chatterjee (Defendant no. 2 as Sole Executor of the said Will and Testament to have the same probated from the competent Court of law without furnishing any security at the cost of his two sons.

E. That the testator died on 19.04.2000 leaving behind his wife and two sons as his legal heirs. The plaintiff sometime after the death of his father Balai Chandra Chatterjee asked his younger brother the named executor (defendant no. 2) for obtaining probate of the Will dated 22.11.1995 but he on one pretext or the other avoided the matter.

F. The plaintiff further by letter dated 26.11.2011, 27.12.2011 and

30.01.2012 asked his younger brother the named executor for obtaining probate with further intimation that in the event he is not interested in the matter in such event plaintiff will file Letters of Administration of the Will.

G. That the deceased testator was a Hindu governed by the Dayabhaga School of Hindu Law and also by the present Hindu Succession Act, i.e. the Act XXXIX of 1925.

H. That the deceased testator has left behind at the time of his death the following persons as his heirs and near relations:-

i) Smt. Anjali Chatterjee – widow wife (defendant no. 1) of Late Balai Chandra Chatterjee of Flat No. 2 B, Ground Floor 40 C NSC Bose Road, P.S. – Jadavpur, Kolkata-700047.

ii) Sri Debasish Chatterjee Elder son (plaintiff) of Late Balai Chandra Chatterjee of Flat No. 2 B, Ground Floor 406 NSC Bose Road, P.S. – Jadavpur, Kolkata-700047 and also of Kumrakhali South Sonarpur Station Road, Kolkata-700103.

iii) Sri Shibasish Chatterjee younger son (defendant no. 2) of Late Netai Chandra Chaterjee of Saptanir Apartment Flat No.

6, 2 Kali Mandir Road, 2/29A Azadgarh, Kolkata-700040.

I. That the amount of Assets which is likely to come to the plaintiff’s hand as plaintiff/beneficiary of the Will is valued at Rs. 1,90,000/- which has been described in the Schedule hereunder and also in the affidavit of Assets.

J. That to the best of the plaintiff’s knowledge, belief and information no application has been filed by anybody in the Learned Court or in any other Court for grant of probate or Letter of Administration in respect of the said Will of Late Balai Chandra Chatterjee.

K. That no Estate duly clearance is