Calcutta High Court
Jyoti Prakash Bhattacharjee (Dec) vs Unknown on 10 March, 2025
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
TS/11/2013
IA NO: GA/4/2013 (Old No: GA/1376/2013),
GA/8/2015 (Old No: GA/2930/2015),
GA/10/2016 (Old No: GA/2761/2016),
GA/12/2019, GA/13/2024
IN THE GOODS OF JYOTI PRAKASH BHATTACHARJEE (DEC)
For the Plaintiff : Mr. S. Ghosh, Adv.
Mr. I. karfa, Adv.
Hearing concluded on : 05/03/2025
Judgment on : 10/03/2025
Sugato Majumdar, J.:
This is an application for letter of administration with copy of will annexed
being the last will and testament dated 24/04/1995 of the testator.
Testator Jyoti Prakash Bhattcharjee, since deceased, as stated, executed his
last will and testament on 24/04/1995. The testator last resided at his fixed placed of
abode at 5/27, Jodhpur Park, Kolkata-700068 which is outside the Original Side
Jurisdiction but within the testamentary and intested jurisdiction of this Court. The
testator died on 07/11/2009 at Belle Vue Clinic, Kolkata. Copy of the death
certificate is annexed with the application. In the said last will and testament dated
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24/04/1995, the testator did not appoint any executor/executrix. As such, the
present petitioners being son and widow of the testator filed the instant application
for grant of letter of administration, with copy of the will annexed.
In course of proceeding, widow of the testator breathed her last, as a result of
which the son of the testator became the petitioner.
In course of the proceeding, citations and general citations were issued, two
daughters of the testator, namely, Chandana Sannayal and Ranjana Ghoshal filed
their caveats supported by affidavits. Their caveats were allowed and the proceeding
became contentious. The suit was renumbered as TS 11 of 2013. Affidavits
supporting the caveats were treated as written statements.
Smt. Chandana Sannayal, the Caveatrix stated in the affidavit that on the
night prior to hospitalization for bypass surgery, the testator discussed at length with
the said Caveatrix on the properties owned by the former. On that night in the year
2002, the testator expressed desire not to leave any will in order to ensure equal
distribution of his wealth. Again in the year 2007, the testator expressed his desire
to the instant caveator that his shares shall be equally distributed among the heirs.
Subsequently, on death of the testator the present executor Mr. Bhattacharjee
misbehaved with the instant Caveatrix. It is stated in the affidavit that the instant
will fabricated and forged. It is further stated that the testator was the former
Advocate General of the state of Nagaland. It is very strange that he would not name
any person in the will as executor. In fact, the probate was opposed by the instant
Caveatrix on the ground that the will was forged, fraudulent and invalid.
Another caveat was filed by the other daughter of the testator Ranjana
Ghoshal. The affidavit in support of the caveat was treated as a written statement on
the application being contentious. It is stated that the testator always desired equal
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distribution of his assets among the legal heirs. It is averred in this written
statement, like the other one, that the will in question is a fabricated document and
signatures of the testator was forged. The will is challenged on the ground of fraud
lack of genuineness and authenticity of the same.
According to both the Caveatrix, the probate should not be granted.
Both the parties adduced evidence.
When the instant suit was at the stage of argument another suit was taken up
by the Co-Ordinate Bench, namely, TS 14 of 2018. This suit was a contentious
probate proceeding for grant of probate of another will of the same testator,
professed to be his last will and testament. Since that probate proceeding was
opposed by the present Petitioner, the said proceeding also became a contentious
one. Both the suits were taken up together then. Both the suits are related to
probate and/or letter of administration of the will and testament of the present
testator but there are two different wills.
TS 14 of 2018 was disposed of by the Co-ordinate Bench in terms of judgment
dated 25/07/2024. This Court called for the judgment as well as the original probate
application with original will annexed form the registry to take judicial notice of the
same. Once submitted before this court, the Judgment as well as the original probate
application in TS 14 of 2018 along with the original will was taken judicial notice of.
After adducing evidence, caveats were withdrawn by both the caveatrix and
they were discharged. This was recorded in the Order dated 27/06/2024 by a Co-
ordinate Bench. In fact, in terms of Order dated 28/02/2024, the Co-ordinate Bench
allowed the petition for discharge of the caveat.
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Plaintiff/Executor examined both the attesting witnesses. The attesting
witnesses stated that the testator came to the chamber of the Learned Advocate at 10,
Old Post Office Street, Kolkata – 700001 and put his signatures in the will, thus
executing the same in presence of the attesting witnesses. Both the attesting
witnesses deposed that they were present when the executor signed the will and they
also put signatures in the will, attesting the same, in presence of the testator. The
very thing that the testator came to the chamber at 10, Old Post Office Street, Kolkata
– 700001 shows that he was physically fit and mentally alert. Both the attesting
witnesses identified the signature of the testator as well as their own. According to
them, the testator was physically fit and mentally alert, as deposed. The execution
of the will is proved.
Both the Caveatrix raised a plea that the will was manufactured and signature
is fabricated. It is settled law that the burden of proof that will is fabricated or
manufactured, is on the Caveatrix or caveator, as the case may be. Although caveats
were discharged, yet it can be said that no evidence was adduced to establish that
signature was forged, will was fabricated or manufactured. Therefore, the plea taken
by both the Caveatrix is not proved.
A parallel suit was filed for grant of probate of the last will and testament of
the same testator. This will bears date 05/07/2007. The application for grant of
probate was filed. In the said will, the testator cancelled all other wills, previous
thereto. The probate proceeding became contentious and became numbered as TS
14 of 2018. The probate proceeding was disposed of in terms of judgment dated
25/07/2014 by a Co-ordinate Bench. It was judicially decided that the said will was
fabricated. Therefore, the later will dated 05/07/2007 which, in effect, cancelled the
present will, has been set at naught by judicial verdict. Therefore, this will stands
with as the last will and the testament of the testator.
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An appreciation of evidence, this Court is of opinion that the Plaintiff is able to
establish due execution of the will in terms of Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Therefore, it is a right
case where letter of administration with a copy of will annexed thereto should be
granted.
Let there be order accordingly.
The statement of accounts and inventory shall be filed within six months from
the date of grant.
Department is directed to do needful.
All the pending applications are disposed of.
(Sugato Majumdar, J.)