In Re: Late Nitai Chand Ghosh; Gautam Ghosh

Kishore Kumar Mandal, J.—The present application is filed under sections 273 and 276 of the Indian Succession Act for grant of probate of the Will dated 23.09.2007 executed by Late Nitai Chand Ghosh (hereinafter to be referred as the ''testator''). The applicant is the son of the testator. According to the applicant, the testator was a Hindu, governed by the Dayabhaga School of Hindu Law and was a permanent resident of flat No. 203, Lily Arcade Apartment, Road No. 13A, Rajendra Nagar P.S. Kadamkuan, Town and Dist. Patna. The testator died at his aforesaid residence on 16.07.2012. While he was alive, the Will was voluntarily executed in the sound state of health and mind fully understanding its contents. There was no undue influence or coercion on the testator. The Will was executed in presence of the four attesting witnesses, namely, Shyamal Mitra (AW-1), Somdut Motilal (AW-2), Amit Sinha (AW-3) and Shyamal Kumar Banerjee. That the wife of Late Nitai Chand Ghosh had predeceased him. In paragraph 6 of the application, it has been stated that the testator left behind the near relatives namely Smt. Rita Sen wife of Subimal Sen and Smt. Moitreyee Kumar wife of Bipin Kumar, both daughters of the testator. The applicant is the only son and has been named as the sole executor of the Will. Details of the assets which are likely to come in the hands of the applicant, are set out in Schedule A appended to the application. The amount of liabilities and other deductions have been set out in Schedule B. It has been asserted that the Will dated 23.09.2007 was the last Will of the testator. No other application for grant of probate or the letters of administration prior to this has been made either to this Court or to any other court. It has thus been prayed to grant probate of the said Will to have its effect throughout the Indian territory.

Notices were issued to the near relatives and general citations were also published in two newspapers; one in English daily ''the Times of India" and another one in Hindi Daily ''Prabhat Khabar'', both published from Patna. The two near relatives cited in the application appeared through their counsel and have filed no objection petition which are part of the records. Pursuant to publication of the general citation no one has appeared and filed caveat.

To Prove the Will the applicant has produced the Will, in original, executed by the testator. Three witnesses, namely, Shyamal Mitra(AW-1) Somdut Motilal (AW-2) and Amit Sinha(AW-3) respectively have been examined-in-chief as the attesting witnesses to the Will in question. The applicant has examined himself as AW-4.

The Will has been marked as Ext. 1. The signatures of the testator on each page of the Will are marked as Ext. 2 series. The signatures of one of the attesting witnesses, namely, Shyamal Kr. Banerjee on each page of the Will have been marked as Ext. 3 series. The signatures of another attesting witness namely Somdut Motilal on each page of the Will have been marked as Ext.4 series. Similarly, the signatures of another attesting witness namely Amit Sinha (AW-3) on each page of the Will have been marked as Ext. 5 series. Signatures of Shyamal Mitra AW-1 on each page of the Will are marked as Ext. 6 series.

Shyamal Mitra (AW-1) in his deposition has supported the statements made in his affidavit filed as examination-in-chief. He knew the testator since last 20 years. The testator had executed the Will on 23.09.2007 on which he signed as one of the attesting witnesses. He has proved the Will as Ext. 1. The testator was in sound state of mental and physical health when the said Will was executed by him. The execution of the Will was voluntary and without any coercion or undue pressure. When the Will was executed three more witnesses namely, Shyamal Kumar Banerjee, Somdut Motilal(AW-2) and Amit Sinha(AW-3) were also present there. The testator had read the contents of the Will in presence of the witnesses. He made few corrections in the Will in his own pen which were authenticated by the testator. The testator thereafter signed on all the pages of the Will in his presence as well as in presence of other attesting witnesses. The signatures of the testator on each page of the Will have been marked as Ext. 2 series. After affixing his signature(s) on the Will Sri Shyamal Kr. Banerjee first signed as attesting witness on the said Will on the request made by the testator and in presence of other witnesses. The signature of Shyamal Kr. Banerjee on each page of the Will has been marked as Ext. 3 series. After Shyamal Kr. Banerjee, Somdut Motilal (AW-2) signed the Will on each page in presence of the testator and other attesting witnesses. He has identified the signature(s) of Somdut Motilal on each page of the Will marked as Ext. 4 series. Thereafter, Amit Sinha (AW-3) on being requested by the testator signed on the Will in presence of the testator and other attesting witnesses. He has identified the signature(s) of Amit Sinha on each page of the will (marked as Ext. 5 series). Thereafter on the request of the testator he signed on each page of the will in presence of the testator and other attesting witnesses. He has identified his signature(s) on each page of the Will (marked as Ext. 6 series). Somdut Motilal (AW-2) in his deposition has stated that Nitai Chand Ghosh whom he knew from before had executed the Will dated 23.09.2007 at his residence. He was called on that day by the testator as he was the resident of the same building in upper floor. When he reached the testator three other persons namely Shyamal Kumar Banerjee, Amit Sinha and Shyamal Mitra were present from before. The testator read the contents of the Will in his presence and having found some mistakes in the Will the testator corrected them and put his initials against each such correction(s). The testator thereafter signed on each page of the Will in his presence as well as in presence of other witnesses present there. He has identified the signature of the testator. After execution of the Will by the testator, Mr. Shyamal Kr. Banerjee signed on the Will as attesting witness in presence of the testator as well as in presence of other witnesses including himself. He has also identified the signature(s) of Mr. Shyamal Kr. Banerjee on each page of the Will. Thereafter he was requested to sign on the Will. He signed the Will in presence of the testator and other witnesses. This witness has identified his signature(s) on each page of the Will. After he was done Amit Sinha, on the request by the testator, signed on each page of the Will in presence of the testator and other witnesses. He has also identified the signature(s) of Amit Sinha on each page of the Will. Shyamal Mitra also signed on each page of the Will in presence of the testator and other witnesses. He has identified the signature(s) of Shyamal Mitra on each page of the Will. This witness has further deposed that the testator was in sound health and mind when the will was executed. He was capable of understanding everything.

Amit Sinha (AW-3) in his deposition has stated that he knew the testator from before. The testator had executed the Will on 23.09.2007 after reading the contents of the Will before executing the same. At the time of execution of the Will other witnesses namely, Shyamal Kumar Banerjee, Somdut Motilal and Shyamal Mitra besides him were present. He has further stated that the testator requested Shyamal Kr. Banerjee to sign as witness on the Will whereafter Shyamal Kr. Banerjee singed on the Will in presence of the witnesses present there as well as the testator. Somdut Motilal and other witness, on request, signed the Will in presence of the testator and other witness including himself. After Somdut Motilal, he signed the will on all the pages in presence of the testator and other witnesses. He has identified his signature on each page of the Will (Ext.5 series). After him Shyamal Mitra was requested by the testator to sign the Will. Shyamal Mitra also signed the Will in presence of the testator and all the witnesses including himself. This witness has further stated that the testator was in good health and sound mind on the date the Will was executed. There was no external coercion nor the testator was induced into executing the Will.

Applicant Gautam Ghosh has examined himself as AW-4. In his deposition he has stated that the testator was his father who had executed the Will on 23.09.2007. At the time of execution of the Will his father was in sound state of health and mind. The testator had read and understood the contents of the Will before signing the same. He had called in four witnesses to attest the Will namely, Shyamal Mitra, Somdut Motilal, Amit Sinha and Shyamal Kumar Banerjee. He has identified the signatures of his father(the testator) on all the pages of the Will which was made in presence of all witnesses. The four witnesses thereafter signed the Will on each page in presence of the testator and other attesting witnesses. He has also identified the signatures of the witnesses appearing on the Will. Out of four attesting witnesses, three namely Shyamal Mitra, Somdut Motilal and Amit Sinha have deposed in the case supporting the execution of the Will. One attesting witness namely Shyamal Kr. Banerjee had left Patna about 4-5 yeas ago. He had his own house which he sold before leaving Patna. Nobody from his family is presently residing in Patna. The testator was governed by Dayabhaga School of Hindu Law. His father (testator) died on 16.07.2012 at his residence in Patna. The Will executed by him is the last Will and in the same condition in which it was executed by his father. The two daughters of the testator namely Smt. Rita Sen and Smt. Moitreyee Kumar are also the legal heirs of the testator. His mother predeceased his father. He has further stated that his two sisters cited in the application as near relatives on whom notices were issued, have not filed any caveat/objection. To his knowledge, this is the only case seeking grant of probate of the Will executed by his father.

On perusal of the Will (Ext.1) it is seen that the Will is typed and runs in three pages. There are corrections on page two which are authenticated by the initials. The testator had signed on each page of the Will. Four witnesses namely Shyamal Mitra, Somdut Motilal, Amit Sinha and Shyamal Kumar Banerjee have signed on each page of the Will. The testator has declared the same to be his last Will. It has been stated therein that the will take effect after the death of the testator. Details of the property owned and possessed by the testator have also been narrated. It has been stated that the testator is living with his only son namely Gautam Ghosh. One of the flats possessed by him shall be shared jointly by his two daughters. The son will be entitled to one flat. The manner in which the amount standing in his bank account shall be shared by his heirs has also been narrated therein. The evidence brought on record by the applicant demonstrably proves that the Will was executed by the testator on his own will in presence of the witnesses cited therein. The execution of the Will was voluntary. The testator was in sound state of health and mind at the time of execution of the Will inasmuch as after reading the contents of the Will he made certain corrections and authenticated those corrections. He was capable of understanding the consequences. The Will was the last Will of the testator. It is to be noticed here that as per the case of the applicant the Will was executed in presence of four attesting witnesses. Three of them have been produced and examined. They have supported the case put forth by the applicant. One of them namely Shyamal Kumar Banerjee has not been produced and examined in the present proceeding. The applicant AW-4 in his deposition has explained the reasons therefor. The requirement of law has been met as three attesting witnesses have appeared and deposed in this case supporting the case of the applicant. The applicant has, therefore, successfully proved the Will as having been executed by the testator on his own free will attested by more than two witnesses which was the last Will of the testator.

I am thus of the view that Will dated 23.09.2007 is genuine Will and the applicant is entitled to grant of probate of the said Will executed by his father (testator). Accordingly the application is allowed. Let the probate annexing a copy of the last Will and testament be granted in favour of the applicant which shall have the effect throughout the territory of the country.