Calcutta High Court
Chitralekha Bhatacharjee (Dec.) vs Unknown on 7 December, 2016
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
OD-136
GA No.2364 of 2016
PLA No.98 of 2013
GA No.2641 of 2016
GA No.2649 of 2016
IN THE HIGH COURT AT CALCUTTA
Testamentary and Intestate Jurisdiction
ORIGINAL SIDE
IN THE GOODS OF:
CHITRALEKHA BHATACHARJEE (DEC.)
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 7th December, 2016.
Appearance:
Mr. Dhruba Ghosh, Sr. Adv.
Mr. R. K. Mitra, Adv.
Mr. S. Ghosh, Adv.
Mr. S. Dhar, Adv.
Mr. I. Karfa, Adv.
Ms. J. Sengupta, Adv.
Utpal Bose, Sr. Adv.
Mr. Debdut Mukherjee, Adv.
Mr. Meghajit Mukherjee, Adv.
The Court : GA No.2364 of 2016 is an application by the propounder for setting the matter down as a non-contentious cause.
It has become a fashion now to apply for a petition for grant of probate to be set down as a non-contentious cause. Ordinarily, it would be non-contentious 2 business and would not be required to be specified as such and only the contentious cause would have to be specifically marked as contentious upon an objection being received and such objection being supported by an affidavit.
For whatever it is worth, GA No.2364 of 2016 was filed to, possibly, expedite the grant. The petition for grant of probate was made in 2013 and till such time that the application for setting the matter down as non-contentious was made, no caveat had been lodged.
GA No.2641 of 2016 and GA No.2649 of 2016 are applications by two daughters of the alleged testator seeking leave to lodge their caveat and file affidavits in support thereof. The earlier of the two applications has also appended a copy of a proposed affidavit in support of the caveat, though no caveat has yet been lodged.
The executor is the sole legatee under the alleged Will. The executor is a son of the testator and the brother of the would-be objectors. The executor claims that the sisters have also objected to the grant in respect of the father's Will. According to the executor, the father's Will provided for his widow and his son to be the only major legatees. The two sisters have challenged the authenticity of the Will and the testamentary suit is pending. The executor, who is also the propounder of the father's Will for which letters of administration with Will have been sought since no executor was named, has been examined in the suit pertaining to the father's Will.
According to the executor, the mother died during the pendency of the challenge to the father's Will and the mother has bequeathed her entire estate to her son. The executor claims that the objections that have been filed or are proposed to be filed are only for the purpose of delaying matters and to spite the executor herein. The executor submits that it is inconceivable that the sisters would have fought with the 3 mother in Court and the mother would have left her estate or any part thereof to such daughters.
It appears that the would-be objectors had earlier mentioned the matter for extension of time to lodge their caveat, but the formal applications were filed only on or about August 31, 2016. It is not in dispute that one of the sisters had been cited in 2013 itself and the other early in 2014. There could have been no reason for the matter being delayed till August 31, 2016 for applications to be filed thereafter.
In view of the conduct of the would-be objectors, it is necessary that such persons be put on terms before they are permitted to lodge their caveat or file any affidavit in support thereof to contest the grant.
Accordingly, GA No.2641 of 2016 and GA No.2649 of 2016 are disposed of by directing the applicant in either case to furnish security of Rs.5 lakh in favour of the Registrar, Original Side within six weeks from date, whereupon the applying applicant will be entitled to lodge the caveat within a week of the deposit and file the affidavit in support thereof within a further week. In default of such deposit being made, the defaulter would not be entitled to lodge any caveat. In the event the Registrar is not in receipt of the deposit within the time indicated in this order, the Registrar will ensure that the petition for grant is expeditiously processed as a non-contentious cause in accordance with law.
If the deposit is made, the Registrar will invest the money by way of a fixed deposit with any nationalised bank having its branch within the vicinity of this Court. The amount will be held to the credit of the testamentary suit which will then be marked as a contentious cause. In the event the probate is granted, the entire amount of the deposit, together with the interest accrued thereon, will be made over to the propounder. 4 In the event the probate is not granted, the relevant caveator will be entitled to withdraw the entire deposit together with the interest thereon.
In the light of the order made on the later applications, no further order need be made on GA No.2364 of 2016 which is also disposed of.
There will be no further order as to costs.
Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) bp.