Swagata Dutta vs Ganesh Chandra Dey

R.K. Bag, J. - The plaintiff Swagata Dutta @ Swagata Dutta Bhattacharyya has prayed for grant of probate of the last Will and Testament of the deceased Susanta Bala Dey dated July 29, 2005 in respect of her estate and properties. Susanta Bala Dey died on November 7, 2005 leaving behind Ganesh Chandra Dey � son, Gitasri Dutta � daughter, Suparna Daw � daughter of predeceased daughter Aparna Dey and Nilanjana Halder, daughter of predeceased daughter Aparna Das as legal heirs. The deceased Susanta Bala Dey had permanent place of residence at 5A, Pramanik Ghat Lane, Kolkata 700036 which is outside the jurisdiction of City Civil Court at Calcutta, but within the State of West Bengal. The Will executed by Susanta Bala Dey was attested by Paban Mondal and Ranjit Kumar Sen. The properties bequeathed by the Will are situated partly within the jurisdiction of the Original Side of the High Court at Calcutta and partly outside the jurisdiction of High Court at Calcutta, but within the State of West Bengal. The plaintiff being the executrix of the Will has prayed for grant of probate of the Will by filing consent affidavit of Gitasri Dutta.

The consent affidavit is filed only by the beneficiary of the Will, but defendant Ganesh Chandra Dey has filed affidavit in support of the caveat in order to contest the probate proceeding. The defendant Ganesh Chandra Dey has challenged the genuineness of the Will executed by Susanta Bala Dey in respect of her estate and properties. It is contended that Susanta Bala Dey was suffering from various ailments and she was not mentally fit at the time of execution of the Will on July 29, 2005. The specific contention of the defendant Ganesh Chandra Dey is that the testatrix Susanta Bala Dey was not aware of the contents of the Will as she had no sound disposing mind at the time of execution of the Will on July 29, 2005. Accordingly, the defendant Ganesh Chandra Dey has prayed for dismissal of the suit.

This Court gave ample opportunity to the defendant to contest the suit by adducing evidence. On November 10, 2016 this Court directed learned Counsel for the plaintiff to intimate the Advocate on record for the defendant about the next date of hearing of the suit. Accordingly, learned Counsel for the plaintiff gave notice in writing to the Advocate on record for the defendant on December 9, 2016 but the Advocate on record for the defendant refused to accept the notice as reflected from the affidavit filed on behalf of the plaintiff. Moreover, the Advocate on record for the plaintiff gave one notice to the defendant directly by registered post with acknowledgement due in compliance with the direction given by this Court and the said notice was duly received by the defendant as reflected from the tracking report annexed to the affidavit of service filed on behalf of the plaintiff. The defendant did not avail of the opportunity to cross-examine the witnesses examined on behalf of the plaintiff. Nor has the defendant adduced any evidence in support of the pleading and as such I am compelled to dispose of the instant proceeding. Other legal heirs namely Suparna Daw and Nilanjana Halder received the Writ of Summons but did not enter appearance in this suit.

On the above pleadings the issues settled by the Court on August 29, 2016 are recast as follows;-

Issues

i) Is the Will dated July 29. 2005 duly executed and attested as per provision of law ?

ii) Is the Will dated July 29. 2005 genuine and the signature of the testatrix appearing on the said Will genuine ?

iii) Had the deceased testatrix Susanta Bala Dey testamentary capacity to execute the Will dated July 290. 2005?

iv) Is there any suspicious circumstance at the time of execution of the Will dated July 29, 2005?

v) Has the testatrix Susanta Bala Dey revoked the previous Wills at the time of execution of the Will dated July 29, 2005?

vi) Is the plaintiff entitled to get probate of the Will dated July 29, 2005?

vii) Is the plaintiff entitled to get any other reliefs ?

Issues No. (i ) & (ii.) : Both these issues are interconnected and as such these are taken up together for convenience of discussion. By filing an affidavit in support of the caveat the defendant has challenged the execution and attestation of the Will dated July 29, 2005, but the defendant has not adduced any evidence in support of the pleadings. The onus is on the plaintiff to prove the execution and attestation of the Will dated July 29, 2005. The propounder of the Will Swagata Dutta Bhattacharyya has identified the signature of the testatrix Susanta Bala Dey on the Will dated July 29, 2005. The attesting witness Ranjit Kumar Sen proved the execution and attestation of the Will by filing an affidavit before this Court, but the said witness is now dead and unable to come to the Court to give evidence. The other attesting witness Paban Mondal has proved execution and attestation of the Will dated July 29, 2005 and the Will is marked as Ext. B. There is nothing on record to disbelieve the oral testimony of the witness Paban Mondal who has proved execution and attestation of the Will marked Ext. B. It has, thus, been established from the evidence of the witness Paban Mondal and the propounder Swagata Dutta Bhattacharyya that the Will dated July 29, 2005 (Ext. B) is duly executed and attested as per provision of Section 63 of the Indian Succession Act. Both the issues are decided in favour of the plaintiff.

Issues No. (iii) & (iv) : Both these issues are inter-related and as such those are taken up together for the brevity of discussion. The defendant has specifically alleged in the affidavit in support of the caveat that the testatrix Susanta Bala Dey was suffering from various ailments at the time of execution of the Will. The defendant has not ultimately turned up before the court to cross examine the witnesses examined by the plaintiff. There is no iota of evidence to indicate that the testatrix Susanta Bala Dey was suffering from various ailments at the time of execution of the Will dated July 29, 2005. Nor is there any shred of evidence to establish that there was existence of any suspicious circumstance which can vitiate the Will dated July 29, 2005. The manner of disposition of the property by the husband of the testatrix before execution of the Will and the manner of disposition of the property under the Will dated July 29, 2005 by the testatrix go to establish that the testatrix had sound disposing mind at the time of execution of the Will marked Ext. B. In view of my above findings issue no. (iii) is decided in the affirmative and issue no. (iv) is decided in the negative.

Issue No. (v) : On perusal of the recitals of the Will dated July 29, 2005 I find that the testatrix suffered from mental torture by her son, daughter-in-law, grand son and grand daughter. The recitals of the Will (Ext. B) further indicate that the testatrix was compelled to live with her youngest daughter Gitasri Dutta to whom the immovable property was bequeathed by her. Since the testatrix was not happy with her son, daughter-in-law and grand son and grand daughter the testatrix revoked the previous Will executed in the year 1981 and 1982 by which she bequeathed her properties to her son. The testatrix had specifically stated in the Will (Ext. B) that her son and daughter-in-law got the previous Wills executed in the year 1981 and 1982 by way of misrepresentation and as such those Wills were revoked by her under the present Will dated July 29, 2005 (Ext. B). In view of my above observation, I can safely hold that the testatrix revoked the previous Wills executed by her in the year 1981 and 1982. So, this issue is decided in favour of the plaintiff.

Issue Nos. (vi) & (vii) : Both these issues are taken up together for convenience of discussion. I have already observed during discussion of the previous issues that the testatrix Susanta Bala Dey executed her last Will and Testament on July 29, 2005 in respect of her estate and property and execution and attestation of the said Will have been proved as per provision of Section 63 of the Indian Succession Act. I have also observed that the testatrix had testamentary capacity and sound disposing mind at the time of execution of the Will dated July 29, 2005. The revocation of the previous Wills executed by the testatrix in the year 1981 and 1982 has been rightly done under the present Will dated July 29, 2005. In the absence of existence of any suspicious circumstance the plaintiff is entitled to get order of grant of probate of the Will as prayed for. Both these issues are decided in favour of the plaintiff.

As a result, the plaintiff do get a decree for grant of probate of the last Will and Testament of the deceased Susanta Bala Dey executed on July 29, 2005 in respect of her estate and properties along with a copy of the Will annexed thereto. The plaintiff is directed to deposit balance amount of ad valorem stamp duty if not already paid, within a period of four weeks from this date. The suit is, thus, decreed in terms of prayer (d) of the plaint.

The department is directed to draw up the decree expeditiously.