In The Goods Of: Ashim Kumar Sircar Vs

Apurba Sinha Ray, J

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.

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.

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.

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.

It is submitted on behalf of the learned counsel of the propounder that the caveatrix did not challenge the Will in any manner about its execution including signature, physical, mental capacity of the deceased.

The learned counsel has relied upon several judgments in support of his contention. In the case of Ishwardeo Narain Singh Vs. Kamta Devi & Ors. reported in AIR 1954 Supreme Court 280, the Hon’ble Supreme Court has been pleased to observe that the court of probate is only concerned with the question as to whether the document which was shown as the Last Will and Testament of the deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator was in sound disposing mind or not. It is also laid down therein that the question whether a particular bequest is good or bad, is not within the purview of the probate court.

In the case of Shanti Devi Vs. Anil Kumar Singh reported in AIR 2007 Patna 110 (DB), the Hon’ble Patna High Court has been pleased to observe that the right to file caveat is substantive right of any person who has any interest in the estate of testator. The person claiming to have an interest in the estate of the deceased must have such interest as on the date of lodgment of caveat. In pargraph 6 of the said judgment it has been clearly held that:-

“6. Although citations are to be issued to all persons claiming to have any interest in the estate of the testator and though only a person having some interest in the estate of the testator can file a caveat, but the law governing the field does not for a second suggests that only those who have been cited are entitled to lodge caveat. The logical conclusion, therefore, would be that the person claiming to have interest in the estate of the deceased must have such interest as on the date of lodgment of the caveat.”

In the case of Ratnaprabha Digambar Nemade & Ors. Vs. Kisan Laxmanraon Deshmukh reported in AIR 2015 Bombay 280, it has also been held that the probate court cannot decide complicated issues which are required to be determined by civil court. It has been held therein hereunder:-

“9. In the light of the observations by the Apex Court and the legal position mentioned above, rulings cited by Shri Bhide are not helpful to him to canvass the submission that the present case shall be remanded to the Probate Court. No useful purpose can be served by adhering to such prayer. In my considered opinion the remedy for the litigant raising the more serious and complicated issue as to challenge the validity of the legal right, title, interest of the Testator to dispose of the property which is mentioned in the Will is to file an independent Civil suit in the Competent Civil Court and to get the dispute finally decided in the suit so instituted in the competent Civil Court.

This is so because the Probate Court would have limited jurisdiction to examine and decide the validity of the Will i.e. testamentary disposition only. Propriety of the Will and power of the testator to bequeath the property are two separate issues and one who questions the validity of the right, title and interest of the testator to dispose of the subject property cannot avoid the forum of the competent civil Court in order to get the decision as to the legal right, title and interest of the testator to bequeath the property. Hence I do not find merit in the appeal. The appeal is dismissed with costs.”

Accordingly, the learned counsel has submitted that in view of the above decisions the caveat lodged by Smt. Shyamali Sircar (Ganguly) in the instant proceeding be discharged, and probate with copy of the Last Will and Testament of the deceased dated 17th August, 2000 be granted and issued in favour of the petitioner.

Smt. Shyamali Sircar who is the caveatrix herein and learned counsel of this Hon’ble Court appears in person to defend her caveat from being intruded upon, has submitted that the petition being no. GA 8 of 2023 is defective since the same is required to be filed with affidavit. The testamentary court has to examine the correctness of the Will, genuineness of the witnesses etc. It is not a red carpet area even for a registered Will. There are materials which raise suspicion over the genuineness of the Will.

Smt. Sircar has relied upon the judicial decisions reported in AIR 1962 Supreme Court 567 (Rani Purnima Debi & Anr. Vs. Kumar Khagendra Narayan Deb & Anr.) in support of her contention. The death certificate produced is not a correct one. There is no certificate that the contents of the Will were read over and explained to the testator. No certificate was given by the testator himself.

According to Smt. Sircar the petitioner/propounder is a fraud and a person having intention to grab the properties of others. According to Smt. Sircar, the propounder did not attend the funeral or Sradh Ceremony of the deceased. The probate application was dismissed for default and restored subsequently on 3rd June, 2017 being GA No. 3633 of 2016. This is the third time, the instant matter is being persuaded by the petitioner. The article sent to one ‘Arati Sircar’ returned from her address with the remark “Not Known”. This goes to show that there was no person in the name of Arati Sircar and that is why the postal documents were returned with the endorsement “Not Known”. There was no existence of any person in the name of Arati Sircar, wife of Ashim Kumar Sircar as alleged by the propounder.

Smt. Sircar has relied upon certain souvenir and identity card in support of her contention that she is the married wife of the deceased and she has filed a suit for restitution of conjugal rights and the same being dismissed, she moved the Hon’ble High Court and the High Court was pleased to allow the appeal and subsequently the Hon’ble Court was further pleased to grant alimony/monthly maintenance in her favour. The above decision of Hon’ble Court was reported in a law journal. According to her, when the Hon’ble High Court has recognized her as the wife of the deceased there is no need for producing any other document in support of her contention. However she has also submitted several documents such as (i) Photograph of Caveatrix identified/endorsed by the Learned Registrar, Original Side of this Hon'ble Court dated 13-9-89, (ii) IDENTITY CARD No. 5545. ENROLMENT No. F/921/926/88 issued by BAR COUNCIL OF WEST BENGAL, (iii) IDENTITY CARD issued by PRESIENCY SMALL CAUSES COURT BAR ASSOCIATION, (iv) IDENTITY CARD issued by ALIPORE BAR ASSOCIATION, (v) AADHAR CARD issued by the GOVERNMENT OF INDIA, (vi) MEMBERSHIP ID CARD (PRONAM) Issued by KOLKATA POLICE FORCE, (vii) VOTER IDENTITY CARD issued by the ELECTION COMMISSION OF INDIA, (viii) IDENTITY CARD issued by the HIGH COURT CLUB, (ix) Enrolment Certificate No. ECN 9646442 dated 21-7-92 issued by PROFESSION TAX OFFICER, WEST BENGAL, (x) "Bartoman" daily Newspaper 13th April, 2007 10-pages edition, particular relevant page No.2, Column-3, 1 item under heading "Sangbad" caused to be published by the Caveatrix expressing her gratitude in respect of persons attended at the Sradh Ceremony of the Caveatrix's husband. According to her, she has caveatable interest in the property and therefore she has legal right to lodge the caveat against the prayer for grant of probate to the petitioner.

After considering rival contentions of the parties and also the case laws, it appears to me that there is no doubt about the law of the land to the effect that probate court is entrusted by the statute to look into genuineness and correctness of the Will and also the truthfulness of the execution process of such Will. It is also settled principle of law that a minutest interest of a person in the property entitles him or her to lodge a caveat before the concerned probate court.

Therefore, the said person is under an obligation to show his interest, however, minutest may be, available in his or her favour in the property and if that be so, the probate court should allow him or her to lodge caveat.

In this case, it is true that no wedding card nor any photograph of alleged marriage between the deceased and the caveatrix has been produced but certain identity card issued by Bar Council of West Bengal in favour of the caveatrix contains the name of Ashim Sircar as husband of the caveatrix. The said documents are old documents and therefore they have acquired some importance due to passage of time. The publication in newspaper shows that the caveatrix published a notice showing her gratitude to the persons who attended the Sradh Ceremony of the deceased. This newspaper is also of the year 2007. The judicial decision between the caveatrix (who was named as Shyamali Sarkar, and not as Shyamali Sircar, and Ashim Sircar) shows that the relationship of caveatrix with the deceased was considered by the Hon’ble Court and thereafter the deceased was directed to pay the maintenance in favour of the said Shyamali Sarkar. However, whether that was paid or not at the instance of the deceased may not be very much important at this stage since the caveatrix has been able to show in the said proceedings that she claimed the deceased as her husband and, further, in that reported decision, the Hon’ble Court observed that the order dismissing the suit for conjugal right was set aside in appeal by the Hon’ble Court. Therefore, I find that there are sufficient materials at this stage to show prima facie that the caveatrix has a caveatable interest in the property. There is no document showing that there was any divorce proceeding between the concerned persons at the relevant point of time nor there was any document showing that the said decision of the Hon’ble High Court allowing the maintenance to the caveatrix was challenged before any higher forum. The challenge to the said decision on the ground that parties therein are “Sarkar’ and not as “Sircar” does not appealing since the factual matrix as adverted by the caveatrix are akin to the present one.

Needless to mention, undoubtedly, the probate court is under a duty to ascertain whether the Will was genuinely executed by the testator having a sound state of disposing mind at the relevant point of time or not. The propounder has failed to show that the deceased’s alleged wife Arati Sircar is still alive or not. If the petitioner was so much close with the deceased, he must know the address or whereabouts of Smt. Arati Sircar. However, it appears that the propounder is not a relative of the deceased, whereas the caveatrix at least prima facie show that there was a relation of husband and wife, may be for a short tenure, between them and further she was able to show that such relationship was not terminated by a decree of divorce. The probate court cannot decide whether a lady is the wife of a person out of a relationship but when the caveatrix was able to show that the propounder is not a relative of the deceased and further as per certain documents she was appeared to be the wife of the deceased, I think that the caveatrix should be allowed to contest this probate proceeding. Further, it is not correct that the caveatrix did not disclose the grounds of her objection. It is found from the relevant affidavit in support  of  her  caveat  that  she  has  stated  in  paragraph  5(f)  as hereunder:-

“(f) I most respectfully state and submit that the instant application for grant of Probate has been made by playing fraud upon this Hon’ble Court. The petitioner in the instant PLA has in collusion and connivance with interested person manufactured the said alleged Will.”

Therefore, I do not find any gross infirmity in the affidavit in support of caveat lodged by the caveatrix.

Accordingly, the petition I.A. No. GA 8 of 2023 is dismissed on contest but without any order as to costs. The department is directed to treat the caveat as written objection to the application for probate.

Accordingly, I.A. No. GA 8 of 2023 is, thus, disposed of.

Liberty to mention.

Urgent Photostat certified copies of this Judgment, if applied for, be supplied to the parties on compliance of all necessary formalities.