Calcutta High Court
For vs Dwarkadas Kalliandas And Others) And ... on 18 November, 2019
1 GA No. 885 of 2019 With PLA No. 81 of 2019 GA No. 1569 of 2019 IN THE HIGH COURT AT CALCUTTA Testamentary and Intestate Jurisdiction Original Side IN THE GOODS OF:
BATUK NATH BHATTACHARJEE, DECEASED For Petitioner : Mr. Sakya Sen, Sr. Advocate Mr. Sankarsan Sarkar, Advocate Ms. Somali Bhattacharya, Advocate For Caveator : Mr. Siva Prosad Ghosh, Advocate Hearing concluded on : November 19, 2019 Judgment on : November 19, 2019 DEBANGSU BASAK, J. :-
This is an application at the behest of an applicant applying for Letters of Administration seeking an order for protection and preservation of the estate of the deceased.
Learned advocate appearing in support of the application submits that, till such time the application for grant of letters of administration is disposed of, it is imperative that the Court takes suitable measures to protect the estate of the deceased. He submits that, the estate of the deceased is not safe with the caveatrix. 2 Caveatrix obtained loan from the bank against mortgage of a valuable property belonging to the deceased. Caveatrix is likely to deal with the estate of the deceased inappropriately so as to make the assets of the estate unavailable on grant of the letters of Administration. In support of his contentions, learned Advocate for the petitioner relies upon AIR 1933 Bombay 342 (Pandurang Shamrao Laud and Others vs. Dwarkadas Kalliandas and Others) and AIR 1952 Cal 418 (In the goods of: Borendra Nath Mitter). He submits that, the fact that there are two proceedings in respect of the immovable property of the deceased. One of the proceedings is by the bank for recovery of claim against the caveatrix. The other is a suit for partition filed by one of the sisters of the deceased. He submits that, the fact that there does not exist any interim protection in the suit for partition does not disentitle the petitioner herein from obtaining the reliefs as prayed for.
Learned advocate appearing for the caveatrix submits that, the purported Will is a forgery. He submits that, the deceased died on April 4, 2004. Thereafter, in a suit filed by the petitioner, the petitioner did not disclose the existence of the purported Will right up to the appeal stage. He relies upon AIR 2015 Supreme Court 246 3 (State of Orissa vs. Fakir Charan Sethi) and submits that, there is a serious allegation of forgery. The story made out by the petitioner of discovery of the alleged Will is concocted and should not be relied upon. He submits that the petitioner failed to obtain any interim order in any of the earlier proceedings. Having failed to do so, the petitioner has made this frivolous application for grant of Letters of Administration on the basis of a purported Will. He submits that, his client should be allowed to have the purported Will examined by way of a handwriting expert. To such effect, his client made an application which is GA 1569 of 2019.
The petitioner before Court applied for Letters of Administration, of a writing claimed to be the last will and testament of Batuk Nath Bhattacharjee since deceased. Such application was registered as PLA 81 of 2019. While applying for Letters of Administration, the petitioner claimed that, the will of Batuk Nath Bhattacharjee, since deceased, was discovered by the petitioner in the month of February, 2019.
The application for Letters of Administration discloses a writing dated March 16, 1999 claimed to be the will of the deceased. Caveatrix denies the validity and legality of the purported will. She 4 claims that the deceased did not execute any will. The applicant for the Letters of Administration is the nephew of the deceased while the caveatrix is the daughter of the deceased. The application for grant of Letters of Administration is yet to be finally decided. There are two interim applications made by the respective parties in the application for grant of Letters of Administration. One of the interim applications is GA No.885 of 2019 by which, the applicant for the grant of Letters of Administration seeks protection and preservation of the estate of the deceased.
Pandurang (supra) is of the view that, a Receiver is appointed as a matter of course pending a bona fide litigation in an Ecclesisticial Court to determine the right to probate for administration unless a special case for not doing so was made out.
In the goods of Borendra Nath Mitter (supra) is of the view that, when the property involved in the application for grant of probate is in the danger of falling into the hands of person who has nothing to do with it, then it would be appropriate for the Court to collect the effects of the estate.
The Will is disputed. Application for grant of the Letters of Administration is yet to be finally decided. The issue of forgery of the 5 will is still at large. At this stage, since there exist a Will of a deceased person and there is a pending application for grant of Letters of Administration, without a conclusive finding being arrived at by a Court of competent jurisdiction that, the Will of the deceased is a forgery or that the document claimed to be the will of the deceased is declared not to be the Will of the deceased, a Court in seisin of a proceeding is required to protect the estate so as to prevent the estate falling into hands of persons who are not entitled thereto. It cannot be said at this stage that, the application for grant of the Letters of Administration is not bonafide.
In the facts of the present case, there is a suit for partition filed at the behest of the sister of the deceased. The suit for partition is on the basis of the deceased having died intestate. There is a suit filed by the petitioner in respect of family company, which involved the immovable property belonging to the deceased. Such suit was dismissed on appeal. Again such suit proceeded on the basis that, the deceased died intestate. The issue as to whether the deceased died intestate or not was not an issue in any of the two proceedings not above. It was not held conclusively by any Court of competent 6 jurisdiction that, the deceased died intestate. At least there is no material on record at this stage to hold otherwise.
In such circumstances, the property of the deceased requires protection and preservation till the application for grant of Letters of Administration is finally decided.
Fakir Charan Sethi (supra) concerns a suit which involved documents which were forged. In the facts of that case, it was held that, where there is an allegation of forgery, the matter must be thoroughly investigated by the Court to arrive at the truth.
The stage for deciding the allegation of forgery finally is yet to arrive. The trial of the application for grant of Letters of Administration is yet to commence. The estate of the deceased requires protection in the interregnum. In such a case, it would be appropriate to restrain the applicant for the grant of Letters of Administration as well as the caveatrix from selling, encumbering and/or creating third party interest over and in respect of the estate of the deceased.
So far as the application made at the behest of the caveatrix for having the Will of the deceased examined by a handwriting expert is concerned, in my view, it would be appropriate to allow such 7 application. The Court is informed that, the caveatrix filed affidavit in support of the caveat. In such circumstances, the department is directed to register PLA No.81 of 2019 as a contentious cause. PLA No. 81 of 2019 be treated as a Testamentary Suit.
There will be a cross order for discovery of documents in the suit to be made within a fortnight from date. Plaintiff will prepare the Judges brief of documents immediately thereafter. Parties are at liberty to mention the Testamentary Suit for early hearing.
The caveatrix is at liberty to appoint a handwriting expert to examine the original Will of the deceased as accompanying the application for grant of the Letters of Administration.
The Registrar, Original Side is directed to allow the handwriting expert appointed by the caveatrix to examine the Will, in his presence. It is clarified that, parties are at liberty to lead evidence with regard to Will, the allegation of forgery and the report of the handwriting expert, if any, in accordance with law at the trial. It is further clarified that, this order will not prevent the bank from proceeding against the estate of the deceased. 8
Old GA No.885 of 2019 new GA No. 1 of 2019 and Old GA No. 1569 of 2019 new GA No. 3 of 2019 in PLA No. 81 of 2019 are disposed of.
[DEBANGSU BASAK, J.]