Calcutta High Court (Appellete Side)
Tapan Brahmachari vs Jyotirmoy Sen & Anr on 10 March, 2025
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
10.03.2025.
Item No. 2.
Court No. 13
sp
F.A. No. 72 of 2021
With
I.A. No. CAN 1 of 2019 (Old CAN 8766 of 2019)
And
I.A. No. CAN 4 of 2025
Tapan Brahmachari
Versus
Jyotirmoy Sen & Anr.
Mr. Aniruddha Chatterjee, ld. Sr. Advocate,
Mr. S. Chatterjee,
...For the appellant.
Mr. S.K. Chakraborti.
...For the respondents.
1. The instant appeal is directed against the
judgment and order dated 25th July, 2019 passed by
the Additional District Judge, 1 st Court at Sealdah,
South 24-Parganas in O.S. No. 11 of 2011.
2. By the impugned judgment, the trial Court
dismissed the suit for grant of probate of the last Will
and Testament of one Sri Mangalmoyee Bandopadhyay
@ Samhita Devi @ Mamoni dated 23.02.201986.
3. The Court found that the subject matter of the
Will could not have been owned or standing in the
name of the testatrix as she was a Hindu lady and
ceased to have any interest on the property and had
renounced all worldly affairs.
4. The Court further went on to find that in a Title
Suit being No. 30 of 2010 filed by one of the added
respondents in this proceeding and other devotees of
the said “Ayachak Ashram and Swarupananda
2
Philanthropic Trust”, that the appellant had asserted
that the subject matter of the wing and the assets of
the “Ayachak Ashram and Swarupananda
Philanthropic Trust” were, in fact trust properties. The
Small Causes Court, 1st Court at Sealdah did not have
jurisdiction to entertain a suit for administration of the
trust property in terms of the Code of Civil Procedure,
1908. The suit was dismissed under the provision of
Section 92 of the CPC, in an application under Order
VII Rule 11 of the Code
5. The other facts relevant to the case are, inter
alia, that the “Ayachak Ashram and Swarupananda
Philanthropic Trust” was founded by one popularly
known as “Babamoni”. He published his teachings and
principles in his book called “Akhanda Samhita”.
6. After demise of Babamoni, the testatrix,
Samhita Devi also known as Mamoni, was the person
who ran the affairs of the said Ashram. The said
Ashram has its headquarters in Kakurgachi at Kolkata
and branches all over the country and some parts in
the world.
7. The appellant Tapan Kumar Gupta who also
known as Tapan Brahmachari claimed to be an
adopted son of Samhita Devi @ Mamoni and
propounded a Will executed by Samhita Devi @
Mamoni dated 23rd February, 1986. There were two
independent attesting witnesses to the Will. The Will
contained a schedule of properties. This Court is not
3
concerned with the schedule of the properties or title
and nature and character thereof.
8. In terms of Section 276 of the Indian Succession
Act, 1925, the trial Court was required to ascertain as
to whether the testatrix was of sound mind and in
good health had otherwise execute the Will in question
without coercion and or undue influence. The Will is
required to be attested by two independent witnesses.
9. In the instant case, it is seen that the PW-2, Binoy
Kanti Ray, who was also an advocate by profession. He
has deposed that he had prepared the Will as per the
instructions of Sri Mangalmoyee Bandopadhyay @
Samhita Devi @ Mamoni at Gurudham, P-238, C.I.T.
Road, Police Station- Phoolbagan, Kolkata- 700054. He
was also witness to the will. The Will was executed in
the presence of the witnesses. The Will itself was
proved and the signature of the testatrix was also
proved. He deposed that the Will was executed in
sound mind and in free will by the testatrix.
10. The PW-1, Ananda Kamal Majumder was the
other attesting witness to the Will. He stated in
examination-in-chief before the learned trial Judge
that the Will was handwritten by PW-2, Binoy Kumar
Ray, advocate as per the instructions of Sri
Mangalmoyee Bandopadhyay @ Samhita Devi @
Mamoni. The place of execution was reiterated. The
sound mental capacity and free will of the testatrix
was confirmed.
4
11. Both the witnesses were cross-examined at
length. The respondents, original defendants in the
suit could not demonstrate or prove any suspicious
circumstances surrounding the execution of the Will.
12. The learned trial Judge, however, went on to
hold against the appellant on two-fold grounds. Firstly,
that the testatrix who had renounced worldy affairs
could not have owned any property at all. On this
issue, the Court relied upon a decision of the Patna
High Court in the case of Sri Narain Singh and Ors.
vs. Baleshwar Singh and Ors reported in 1973 SCC
OnLine Pat 153. It appears in paragraph 15 of the
said decision that the claimants had become sadhus
and had renounced the world in a detailed ceremony
and hence did not own or acquire and therefore could
not sale any property in favour of the parties to the
suit.
13. The Trial court however ignored the decision of
the Supreme Court in the Case of Math Sauna and
Ors vs. Kedar Nath @ Uma Shankar and Ors.
reported in (1981) 4 SCC 77. In the said case at
paragraph 8, the Court held that there can be no
presumption that a property used by the Math belongs
only to the Math. The Court found that there could
have been little income left after meeting the
expenditure of the Math. It was therefore held that the
Amauli properties were the self acquired properties of
the Mahant of the Math. There must therefore be a
5
determination based on the evidence on record as
regards actual ownership of the property of a religious
order.
“8. It is urged for the appellants that where a nucleus of
dedicated property exists, the acquisition of additional
property should be attributed to the application of the
nucleus and must, therefore, be regarded as property
belonging to the math or the deity. As has been observed,
there can be no presumption either way. All the facts and
circumstances must be taken into consideration and on a
balancing of the entire evidence it has to be determined
whether the property can be said to belong to the math or
deity or is the personal property of the mahant, the burden of
proof resting on the party who makes the claim. In the
present case, it is difficult to conclude from the material
before us that the total income from the properties belonging
to the math and the deity left any appreciable surplus after
meeting the expenditure on account of bhog, arpan, deepdan,
daily and annual puja and the other obligations specified in
the waqf deed. We are in agreement with the High Court that
the fund from which the Amauli properties were acquired
constituted the personal property of Mahant Shivpher Yati.
On his death in 1917, the fund passed to Mahant
Shivshanker Yati, who in 1921 employed it for the purchase
of the Amauli properties.”
14. What is, however, moot and germane to the
issue in the instant case is that a probate Court
cannot and does not decide the title, nature and
character and ownership of any of the properties that
are subject matter of a bequest under a Will.
15. Reference in this regard is made to the decision
of the case of Kanwarjit Singh Dhillon Vs. Hardyal
Singh Dhillon and others reported in (2007) 11 SCC
357. At paragraph 12 it was held as follows:-
“12.In Chiranjilal Shrilal Goenka v. Jasjit Singh [(1993) 2
SCC 507] this Court while upholding the above views and
following the earlier decisions of this Court as well as of
other High Courts in India observed in para 15 at SCC p. 515
which runs as under:
“15. In Ishwardeo Narain Singh v. Kamta Devi [(1953) 1 SCC
295 : AIR 1954 SC 280] this Court held that the court of
probate is only concerned with the question as to whether
the document put forward as the last will and testament of a
deceased person was duly executed and attested in
accordance with law and whether at the time of such
execution the testator had sound disposing mind. The
question whether a particular bequest is good or bad is not
within the purview of the Probate Court. Therefore, the only
issue in a probate proceedings relates to the genuineness
6and due execution of the will and the court itself is under
duty to determine it and preserve the original will in its
custody. The Succession Act is a self-contained code insofar
as the question of making an application for probate, grant or
refusal of probate or an appeal carried against the decision
of the Probate Court. This is clearly manifested in the
fascicule of the provisions of the Act. The probate
proceedings shall be conducted by the Probate Court in the
manner prescribed in the Act and in no other ways. The
grant of probate with a copy of the will annexed establishes
conclusively as to the appointment of the executor and the
valid execution of the will. Thus it does no more than
establish the factum of the will and the legal character of the
executor. Probate Court does not decide any question of title
or of the existence of the property itself.”
(emphasis supplied)
That being the position and in view of the nature of
allegations made in the plaint, we do not find any reason as
to how the High Court as well as the civil court could come to
a conclusion that after the probate of the will executed by
late S. Kirpal Singh was granted, the suit for declaration for
title and injunction on the above allegation could not be said
to be maintainable in law. The High Court also while holding
that the suit was not maintainable, in view of the probate
granted of the will of late S. Kirpal Singh had relied on a
decision of this Court, as noted hereinearlier, in Rukmani
Devi [(1985) 1 SCC 144] . We are not in a position to agree
with the High Court that this decision could at all be
applicable in the facts and circumstances of the present case.
A plain reading of this decision would not show that after the
grant of probate by a competent court, the suit for title and
permanent injunction cannot be said to be maintainable in
law. What this Court held in that decision is that once a
probate is granted by a competent court, it would become
conclusive of the validity of the will itself, but, that cannot be
decisive whether the Probate Court would also decide the
title of the testator in the suit properties which, in our view,
can only be decided by the civil court on evidence. It is true
that the probate of the will granted by the competent Probate
Court would be admitted into evidence that may be taken
into consideration by the civil court while deciding the suit for
title but grant of probate cannot be decisive for declaration of
title and injunction whether at all the testator had any title to
the suit properties or not.”
16. Applying the aforesaid, this Court is of the view
that the learned trial Judge has committed error in
ignoring the mandate of Section 276 of the Indian
Succession Act, 1925 and entering into the question of
the propriety, nature and character and title of the
testator to the properties being subject matter of the
Will. In a proceeding for grant of probate, more so
when it is contested, a Court is required to decide as
to whether the testator has physical and mental
7
capacity and soundness of mind to execute the Will in
question. The Will must be attested by two
independent witnesses and there must be no
suspicious circumstances surrounding the execution
of the Will.
17. In the instant case, each of the aforesaid
ingredients of Section 276 of the Indian Succession
Act, 1925 having been fulfilled. The trial Court erred in
refusing probate of the Will and Smt. Samhita Devi @
Mamoni dated 23rd February, 1986. The execution of
the Will has been duly proved by the two independent
witnesses, PW-1 and PW-2 who are the scribed and
attesting witnesses. The respondents have not even
suggested any suspicious circumstances in execution
of the Will in question.
18. In such circumstances, this Court is of the view
that the impugned judgment and order dated 25 th
July, 2019 passed by the Additional District Judge, 1 st
Court at Sealdah in O.S. No. 11 of 2011 is erroneous
and is liable to be set aside. There shall be a probate of
the last Will and Testament of Sri Mangalmoyee
Bandopadhyay @ Samhita Devi @ Mamoni dated 23 rd
February, 1986.
19. Let the records of O.S. 11 of 2011 along with the
records of T.S. 30 of 2010 be returned back with a
direction to grant probate along with a copy of this
judgment to the trial Court below.
8
20. It is absolutely made clear that this Court has
not decided or pronounced upon, in any way or in
whatsoever manner, upon the title of the testatrix and
the nature and character of the properties that are
subject matter of the Will in question. The issue raised
by the respondents that the properties are trust
properties and not the personal properties of Sri
Mangalmoyee Bandopadhyay @ Samhita Devi @
Mamoni, the testatrix, are left open to be decided in
independent proceedings that may be taken out by the
parties as they may be advised.
21. With the aforesaid observations, F.A. 72 of 2021
along with all connected applications shall stand
disposed of.
22. All parties are directed to act on a server copy of
this order duly downloaded from the official website of
this Court.
(Rajasekhar Mantha, J.)
(Ajay Kumar Gupta, J.)
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