Calcutta High Court
Sisir Kumar Mitra (Dec) vs Unknown on 19 May, 2010
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
PLA No. 105 of 2007
GA 1544/2009
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
IN THE GOODS OF SISIR KUMAR MITRA (DEC)
BEFORE:
The Hon'ble JUSTICE KALYAN JYOTI SENGUPTA
Date : 19th May, 2010.
The Court :This is an application for revocation of grant of a
testamentary document said to have been executed on January 21, 1981 by
one Sisir Kumar Mitra(since deceased). By this document, Pradip Kumar
Ghosh was appointed an executor of the will and he obtained the grant as
such.
This application has been taken out by one Dipak Mitra
who claims to be the nephew of the said deceased on the ground that the said
deceased, on May 3, 2006 executed the subsequent will revoking all other
testamentary documents executed earlier. There are other grounds for
revocation, but a discovery of the later will after grant is obtained is good
enough to examine this aspect.
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In paragraph 6 of this application, it has been
specifically stated that the deceased had finally made a will and testament as
late as on May 3, 2006. In response to the aforesaid statement, the
propounder of the first will who is the grantee of the probate of this court, has
stated in paragraph 6 as follows:
"In particular I deny and dispute that the will dated
May 3, 2006 ought to get precedence other any other
will and testament as alleged in the said paragraph."
Thus, it is clear that the factual existence of the later
will has not been denied and disputed. Then again, in paragraph 9 the
propounder of the first will has stated as follows:
"I say that in 2006, the said deceased Sisir Kumar
Mitra was 86 years old and became almost infirm and
insane and unable to move without the help of others
and taking advantage of the same, the petitioner has
procured the signature of the testator. I say that the
signature, if any put by the testator, has been put
without proper understanding about the contents of
the same."
The sum and substance of the said allegation is that
the later will was not validly and lawfully executed by the said testator.
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In the application of this nature, according to me
ordinarily factual existence of a will is good enough to entertain this action.
Therefore, I am to see whether the document on the strength of which the
present action has been brought can be said to be a will or not?
In order to become a valid will, prima facie the court
has to examine whether such document has been signed apparently by the
testator or not? Next, whether there has been at least two attesting
witnesses? A xerox copy of the testamentary instrument dated May 3, 2006
has been annexed and I have seen prima facie that two signatures of the two
attesting witnesses are there and a signature of a person, namely Sisir Kumar
Mitra is there. It is also there that this is the last will and/or codicil and he
revokes all other earlier wills. It is also said in paragraph 1 of the said
document that this will have effect after May 3, 2006.
Therefore, all the ingredients of the will are to be
found. I hasten to add that this finding is only for the purpose of examining
whether there has been a last will and testament apparently in order to make
an application for revocation of the grant. Going by the dates, admittedly Mr.
Chatterjee's client's production of the document is a later one. Mr. Chatterjee
submits that in view of the aforesaid admitted position, this court has no
option but to revoke the grant of the same as the ground squarely falls within
section 263 of the Indian Succession Act, 1925. Learned counsel for the
propounder of the first will submits that this court will not automatically revoke
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as there has been a serious challenge against the later will and indeed his
client was not aware of the existence of this document. Therefore, he calls
upon me to examine the genuineness of the will before I pass any order of
revocation.
Having regard to the submissions made by both the
learned counsel, I think that in an extraordinary situation while entertaining
the application for revocation of the will, the court can examine the
genuineness of the will and this can only be done when it is found on the face
of the document that the signature is nothing but a forged and suspicious one
and in that situation the court may refuse to revoke. Section 263 of the
Indian Succession Act has given the discretionary power to the court and the
court is not obliged to revoke whenever any approach is made. The words
"may be" in the section are pointer to support my aforesaid views.
The court will also not examine the genuineness of the
will even when a strong case is made out against the later will when a
comprehensive proceeding in connection with the will has already been
brought before a competent court. Here admittedly Mr. Chatterjee's client has
already made an application for grant of probate in respect of the later will on
citation being issued to the propounder of the first will. I have been informed
that the propounder of the first will has already lodged caveat and has filed
affidavit in support thereof to contest the grant in respect of the later will. The
said proceeding has assumed a contentious character before the appropriate
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court. When the appropriate court is in seisin over the matter, therefore it
would not be proper for me to express any opinion as to the genuineness of
the will or regarding the attestation and execution of the same also. All points
are kept open.
Under these circumstances, I am unable to accept the
submission of the learned counsel for the respondent propounder. Hence, I
revoke the grant. I direct the propounder to surrender the grant forthwith before the Registrar in Insolvency of this court who will keep the same in his custody.
However, this application for grant made in this court will remain pending till the application for grant of the later will is disposed of. In the event for any reason the grant in respect of the later will is refused by the competent court, then the propounder in this case will be entitled to proceed for obtaining a fresh grant. I think that the disputes between the parties should be settled with relation to the testamentary succession as early as possible. Therefore, I request the learned District Judge, 24-Parganas (North) that all possible steps should be taken for early disposal of the matter. It is the desire of this court that testamentary suit bearing Misc. Case No.324 of 2007 (Probate) be disposed of as early as possible, preferebly within a period of six months from the date of production of the copy of this order.
The application is thus disposed of. There will be no order as to costs.
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The Registrar in Insovency and all parties concerned are to act on a photostat signed copy of this order on the usual undertakings.
(KALYAN JYOTI SENGUPTA, J.) tk