Delhi District Court
Col. Biswajit Bandopadhyaya (Retd.) vs The State (Nct Of Delhi) on 23 February, 2022
IN THE COURT OF MS. CHETNA SINGH, ADDITIONAL DISTRICT
JUDGE-06, SOUTH EAST, SAKET COURT, NEW DELHI.
PC No. 33/2017
Date of Instt. 22.07.2017
Date of decision: 23.02.2022
Col. Biswajit Bandopadhyaya (Retd.)
R/o House No. F/74, Road No. 3,
Andrews Ganj, New Delhi. PIN-110049.
... Petitioner
VERSUS
1. The state (NCT of Delhi).
2. State of West Bengal,
through Secretary,
Department of Revenue,
'Nabanna' Howrah,
Kolkata, West Bengal.
3. Ms. Aditi Mukherjee (after Marriage
Ms. Aditi Banerjee - wife of testator)
D/o Shri Gopal Mukherjee
R/o 37, Bonamali Naskar Road,
P.S. Behala, Dist 24 Parganas (South)
Kolkata, West Bengal, PIN-700060.
4. Ms. Sandipa Banerjee (Daughter of testator)
D/o Shri Monojit Banerjee
R/o 37, Bonamali Naskar Road,
P.S. Behala, Dist 24 Parganas (South)
Kolkata, West Bengal, PIN-700060.
5. Shri Debajit
S/o Ms. Aditi Banerjee
PC No. 33/2017 Page No. 1/22
Col. Biswajit Bandopadhyaya v. State and others
R/o 37, Bonamali Naskar Road,
P.S. Behala, Dist 24 Parganas (South)
Kolkata, West Bengal, PIN-700060.
6. Mrs. Swapna Chatterjee (Sister of testator)
C/o Mr. S.K. Chatterjee
Flat No. 3, Ashray Apartment
P.O. Bakshara, Dist. Howrah
West Bengal, PIN-711110.
7. The Director,
Headquarter, Intelligence Bureau,
(Ministry of Home Affairs, Govt. of India),
35, Sardar Patel Marg,
New Delhi. PIN-110021.
8. State Bank of India (Branch Code 10440)
Patel Dham, Manas Marg, Chanakyapuri,
New Delhi. PIN-110021.
... Respondents.
APPLICATION U/S 270 R/W SEC. 273 AND 276 OF THE
INDIAN SUCCESSION ACT FOR GRANT OF PROBATE IN
RESPECT OF WILL DATED 8TH MARCH, 2017 EXECUTED
BY SHRI MONOJIT BANERJEE S/O LATE CHANDRA
BHUSAN BANERJEE IN FAVOUR OF THE PETITIONER.
Present: Sh. Shanti Prakash, Ld. Counsel for petitioner alongwith
petitioner in person.
None for respondents no. 1 and 2.
Respondents no. 3, 4 and 5 ex parte.
Respondent no. 6 has given his no objection.
PC No. 33/2017 Page No. 2/22
Col. Biswajit Bandopadhyaya v. State and others
Ms. Deepti Kathpalia, Ld. Counsel for respondent
no. 7.
JUDGMENT:
1. The present petition for grant of probate in respect of Will dated 08.03.2017 executed by Sh. Monojit Banerjee has been filed with regard to his estate.
2. It is submitted that the testator namely Monojit Banerjee died on 02.06.2017 at Medanta Hospital, Gurugram and the Will dated 08.03.2017 was executed at New Delhi in the presence of two witnesses namely Dr. Vinay Yadav and Sh. Shankar Sharma. It is further stated that the petitioner is also the sole executor of the Will of the testator. The wife of the testator, as per the petition, had already sought divorce from the testator.
3. As per the Will, the testator had bequeathed his following assets/properties: -
a) Gratuity, General Provident Fund, leave encashment, Insurance "and all other payments" due to him from his office i.e. Headquarters, Intelligence Bureau (Ministry of Home Affairs, Government of India) 35, Sardar Patel Marg, New Delhi.
b) The amount of the testator lying with the State Bank of India (Branch Code - 10440) Patel Dham, Manas Marg, PC No. 33/2017 Page No. 3/22 Col. Biswajit Bandopadhyaya v. State and others Chankyapuri, New Delhi; SB A/c No. 10933049805, IFS Code SBIN0010440.
c) His 50% share in property "J.L. No. 7, Khatian No. 48, Dag No. 395 within Howrah Municipal Corporation Ward No. 45, PO Buxarah, P.S. Jagacha, Distt. Howrah, West Bengal - 711110 which had been gifted to him by his mother late Mrs. Renuka Banerjee (the remaining 50% of the said property was gifted by the said Late Mrs. Renuka Banerjee to the petitioner). The said property is situated within the jurisdiction of the District Judge, Howrah, West Bengal.
4. It is further averred that the testator at the time of his death was employed in the office of Director, Head Quarter, Intelligence Bureau, (Ministry of Home Affairs), Government of India, 35, Sardar Patel Marg, New Delhi as Assistant Central Intelligence Officer and met with a serious road accident on 04.01.2017 and thereafter expired on 02.06.2017 at Medanta Hospital, due to 'sepsis with multi organ disfunction syndrome'.
5. As per the original Will of the testator, various properties and encashment benefits of the testator has been bequeathed to the petitioner while the testator was suffering from multiple injuries with fracture followed by sepsis. It is stated that the testator was mentally fit and in full control of his faculties while executing the said Will. It is further averred that as the testator was residing with his elder PC No. 33/2017 Page No. 4/22 Col. Biswajit Bandopadhyaya v. State and others brother being the petitioner, who was looking after him during his injuries and keeping in mind his deteriorating health, the testator bequeathed his properties referred to in the Will, to the petitioner. As per the Will, all financial entitlements such as gratuity, general provident fund, leave encashment, insurance, and any other payments to which the testator was entitled which were to be credited in his salary bank account with SBI, were also bequeathed to the petitioner.
6. As per the Will, the testator's estranged wife namely Aditi Banerjee shall have no share or claim in any of his properties or assets as she has been living separately from him since the year 2000. It is stated that the estranged wife of the testator filed a suit for divorce against him in the court on 23.05.2003 and since then she had left the testator alone. As per the Will, all the rights of the testator in respect of all his properties and assets, have been bequeathed upon the petitioner absolutely and forever. It is further clarified in the said Will that "if in the past in any of the official document or nomination form, I had mentioned Ms. Aditi Banerjee as my nominee, her nomination should be cancelled forthwith. I appoint my elder brother Col. Biswajit Bandopadhyaya as the nominee as he has looked after me in my difficult days after she had left me". Hence, the petitioner being the sole executor of the Will filed the present petition for grant of probate in his favour with regard to the assets of the deceased testator.
7. Publication was carried out in the newspaper after notice of the probate petition was issued to the respondent. Publication was PC No. 33/2017 Page No. 5/22 Col. Biswajit Bandopadhyaya v. State and others carried out in newspaper 'Dainik Vishvamitra' for Kolkatta address and in the newspaper 'Statesman' for Delhi address.
8. Despite service, none appeared on behalf of respondent no.1 being the State of NCT of Delhi and respondent no. 2 being the State of West Bengal, to join the proceedings. Notice was also duly served to respondent no.3 (wife of the testator), respondent no.4 (daughter of the testator) and respondent no.5 (son of respondent no.
3). However, none appeared on their behalf despite service and they were proceeded ex-parte vide order dated 11.12.2018.
9. Respondent no.6 appeared and gave her affidavit giving no objection in favour of the petitioner for probate with self attested copy of Aadhaar Card. Respondent no.7 filed reply and respondent no.8 being SBI also filed their statement of account.
Reply/Written statement filed by the respondent no.7
10. Respondent no.7 in their reply/written statement filed the nomination made by the deceased testator of DCRG, CGEGIS and GPF. They admitted the contents of the petition to the extent that the testator had expired on 02.06.2017 and was working with their department at the time of his death. They further gave details as regards his last pay drawn and tenure of service. However, they raised objections with regard to payment of pensionary benefits on the death of the deceased testator citing Rule 50, 51, & 53 CPS, (Pension Rule), 1972. They further cited Rule 5 of GPF (Central Service Rule) 1960, Rule 12 of CCS Leave Rule etc. and raised objections that the claim of PC No. 33/2017 Page No. 6/22 Col. Biswajit Bandopadhyaya v. State and others the petitioner for payment of pensionary dues of the deceased testator is not sustainable considering that the nominee as per record is the wife of the deceased and not the petitioner.
11. No rejoinder to the said WS was filed by the petitioner and evidence was thereafter led.
12. The petitioner examined himself as PW1 being the sole executor of the Will of the deceased testator and relied upon the following documents as per affidavit Ex. PW1/1 :-
Ex. PW1/A ID proof of the petitioner.
Ex. PW1/B Will
Ex. PW1/C and Death certificates of parents of petitioner. Ex. PW1/D Ex. PW1/E Copy of FIR No. 2/2017 dated 04.01.2017.
Ex. PW1/F Certificate issued by Medanta Hospital, the Medicity.
Ex. PW1/F Gift deed
Ex. PW1/H Certificate issued by Dr. K.S. Charak, Senior
Consultant and Chief of General Surgery at Indian Spinal Injuries Centre, Sec-C, Vasant Kunj, New Delhi.
13. PW1 deposed on the lines of the petition and during cross examination, he admitted that the testator was married to Ms. Aditi Banerjee and out of the said wedlock, a daughter namely Sandipa was born. He further admitted that Debojeet Banerjee, who is respondent no.5, is the son of Ms. Aditi Banerjee (respondent no.3) to some other PC No. 33/2017 Page No. 7/22 Col. Biswajit Bandopadhyaya v. State and others person with whom she has been living. He further admitted that no divorce proceedings between the testator and Ms. Aditi Banerjee were filed alongwith this petition. However, he stated that he can produce the record of the same. He denied the suggestion that he is not entitled to the pension benefits or any other benefits of the deceased testator.
14. In his affidavit, PW1 produced the original Will and other documents with regard to the death of the parents of testator and the petitioner and stated that as per the Will Ex. PW1/B, the following assets were bequeathed to him :-
a) Gratuity, General Provident Fund, leave encashment, Insurance "and all other payments" due to him from his office i.e. Headquarters, Intelligence Bureau (Ministry of Home Affairs, Government of India) 35, Sardar Patel Marg, New Delhi.
b) The amount of the testator lying with the State Bank of India (Branch Code - 10440) Patel Dham, Manas Marg, Chankyapuri, New Delhi; SB A/c No. 10933049805, IFS Code SBIN0010440.
c) His 50% share in property "J.L. No. 7, Khatian No. 48, Dag No. 395 within Howrah Municipal Corporation Ward No. 45, PO Buxarah, P.S. Jagacha, Distt. Howrah, West Bengal - 711110 which had been gifted to him by his mother late Mrs. Renuka Banerjee (the remaining 50% of the said property was gifted by the said Late Mrs. Renuka Banerjee to the petitioner). The said PC No. 33/2017 Page No. 8/22 Col. Biswajit Bandopadhyaya v. State and others property is situated within the jurisdiction of the District Judge, Howrah, West Bengal.
15. He further stated that as per the Will of deceased testator, he did not bequeath any assets or properties to respondent no.3 to 5 and the Will has been further proved by the witnesses namely Sh. K.S. Charak, who has been examined as PW2 and who had issued the certificate Ex. PW1/H certifying that the deceased testator was in full control of his mental faculties when he executed the Will on 08.03.2017. The petitioner further examined the attesting witness as PW3 namely Dr. Vinay Yadav who deposed that he had seen the Will Ex. PW1/B containing four pages and the testator was medically examined and found to be fit to execute the Will. He further deposed that the deceased testator signed all the pages of the Will at points A, B, C & D and also impressed his left thumb on all pages of the Will at points E, F, G & H. He further proved the photographs affixed on the Will and also testified that the testator had put his left thumb impression and signed the Will after the Will was read over to him in English and the contents were also translated in Hindi. He also identified his signatures on the Will at point K.
16. The said witness was also cross examined by counsel for respondent no.7 wherein, he stated that he was requested by the brother of the testator i.e. the petitioner and then, he personally went and interacted with the testator with regard to his wishes to execute any Will in favour of the petitioner. He further deposed in detail as regards the formalities carried out with regard to affixation of PC No. 33/2017 Page No. 9/22 Col. Biswajit Bandopadhyaya v. State and others photographs on the Will etc. He denied the suggestion that the testator was not in a sound mind at the time of putting his thumb impressions as well as at the time of signing the Will. He denied the suggestion that the signatures and thumb impressions on the Will were not put in his presence. On being asked court questions, this witness deposed that he had taken due certificate from the primary team treating the patient for verifying that the testator was fit to make a statement and as per his assessment, the testator was oriented as to time, place and person and he understood each and every aspect of the Will including the properties and the details forwarded by it and as regard the person to whom it was bequeathed.
17. No other witnesses were examined by the petitioner. However, liberty was sought by the petitioner for filing certified copy of the divorce proceedings between the testator and his estranged wife. Liberty was also taken by respondent no.7 for leading evidence. Certified copy of divorce proceedings was filed by the petitioner and Section Officer namely Sh. Anil Kumar Aggarwal was examined by respondent no.7 as D7W1 who as per Ex. D7W1/A relied on the following document:-
Ex. D7W1/1 Copy of the pensionary benefits payable to the nominee of Shri Monijit Banerjee.
Ex. D7W1/2 Copy of the annual statement of general provident fund account.
Ex. D7W1/3 Forms of nominations of DCRG submitted by late Shri Monojit Banerjee.PC No. 33/2017 Page No. 10/22
Col. Biswajit Bandopadhyaya v. State and others Ex. D7W1/4 Forms of nominations of CGEGIS submitted by late Shri Monojit Banerjee.
Ex. D7W1/5 Forms of nominations of GPF submitted by late Shri Monojit Banerjee.
Ex. D7W1/6 Copy of rules.
18. This witness was cross examined by counsel for petitioner and was confronted with the divorce decree dated 20.03.2004 Ex.D7W1/P1. The witness admitted that as per the divorce document, the said Ms. Aditi Banerjee can no more be treated as a beneficiary of the deceased testator. No other witness was examined by respondent no.7.
19. Respondent no.6 being the sister of the deceased testator has already given her no objection/affidavit wherein she has stated that she is the respondent no.6 and the real sister of the deceased testator and stated that the deceased testator was staying with the petitioner and after having gone through the contents of the Will, she has no objection if the present petition filed by the petitioner is allowed.
20. I have heard the counsel for petitioner as well as the counsel for respondent no.7 and have gone through the relevant records as well as the written statement filed by respondent no.7.
CONTENTIONS OF THE PETITIONER
21. The main contentions of the petitioner are that:
PC No. 33/2017 Page No. 11/22Col. Biswajit Bandopadhyaya v. State and others
(i) That in view of the last Will of the deceased testator dated 08.03.2017, the petitioner is entitled to all the movable and immovable assets of the deceased testator excluding his wife and daughter as his wife had deserted him and after having produced the divorce decree Ex. D-7W1/C1, the respondent no. 3, 4 & 5 are not entitled to any benefits of the deceased testator and his last Will shall be considered in relation to disposal of his property and assets as per law.
(ii) That the executor has proved the Will and even during the cross-examination of the witnesses nothing questionable could be elicited.
(iii) That in the absence of appearance of the respondents no. 3 to 5 there is no evidence on behalf of the respondents to show that the testator was not in a sound mind or was not maintaining good physical health to execute a valid Will or that it was executed under any suspicious circumstances.
(iv) That there is no evidence that the testator did not have any testamentary capacity and the petitioner has already complied with the requirement of law in so far as the grant of probate is concerned.
(v) That the objections raised by respondent no. 7 are dealt with by the deceased testator in his Will by stating that all previous nominations stand cancelled.
PC No. 33/2017 Page No. 12/22Col. Biswajit Bandopadhyaya v. State and others
(vi) That the petitioner is not claiming the Family Pension and is only claiming the other benefits/retirement benefits as stated in the petition.
CONTENTIONS OF RESPONDENT NO. 7:
22. The contentions of respondent no. 7 are that despite the Will dated 08.03.2017, the petitioner is not entitled to the various benefits as the said benefits are only payable to the nominee of the deceased testator who as per the record was Mrs. Aditi Banerjee being the then wife of the deceased testator.
23. After having heard the petitioner as well as respondent no. 7, the main question that arises before this court is whether the petitioner is entitled to grant of probate in respect of Will dated 08.03.2017 executed by Sh. Monojit Banarjee with respect to the movable or immovable properties mentioned in the Will and whether the objections raised by the respondent no. 7 are valid.
24. The petitioner has examined himself and the attesting witness to the Will namely Dr. Vinay Yadav as PW3, who gave the certificate regarding sound state of mind of deceased testator.
25. In this regard it is important to examine the law laid down by Hon'ble Apex Court in Pentakota Satyanarayana and others v. Pentakota Seetharatnan and others (2005)8 SCC, 67 . In PC No. 33/2017 Page No. 13/22 Col. Biswajit Bandopadhyaya v. State and others the said matter, it was held the initial onus to prove the Will is on the propounder and thereafter it shifts.
Since the appellants are the propounders of the Will, the initial onus will be on them to prove execution of the Will. Thereafter, the onus would shift to the respondents. They have to establish their case of under influence or coercion. Then the onus would shift to the appellants to remove the suspicious circumstances, if any. In the instant case, the Will has been duly proved and the High Court and the lower court in their discussion have even held so. It has also been held that the testator was hale and hearty and in a sound state of mind. The Will is a registered will. The attestor and the scribe have been examined to prove the Will. The statement made by P in the written statement is one of the most important factors which authenticates the genuineness of the Will. No evidence has been led in by the respondents to show the exercise of any fraud or undue influence at the time of execution of the Will. No evidence was adduced to show that the testator was not in sound state of mind and in fact, the findings is that he was of sound mind. Thus, the evidence adduced by the appellant propounders is sufficient to satisfy the conscience of the court of law that the Will was duly executed by the testator.
The findings recorded by the High Court and the trial court with regard to the alleged suspicious circumstances are not only contrary to the facts on record but also overlooked the law governing the aspect of proof of Will. Section 68 of the Evidence Act, 1872 deals with proof of execution of document required by law to be attested. Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator the at relevant time was in a sound and disposing state of mind, that he PC No. 33/2017 Page No. 14/22 Col. Biswajit Bandopadhyaya v. State and others understood the nature and effect of the dispositions and put his signatures on the document on his free will. In another words, the onus of the propounders can be taken to be discharged on proof the said essential facts.
In the instant case, there was an unequivocal admission of the Will in the written statement filed by P in the suits filed by S and K. He has also described the appellants as his sons and A as his wife. Such admission cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, the appellants have discharged their burden and established that the Will in question was executed by P and that the same was his last Will. It is true that the registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner provided in Section 68 of the Evidence Act. The Registrar made the following particulars on the Will which was admitted to registration, namely, the date, hour and place of presentation of the document for registration, the signatures of the person admitting the execution of the Will and the signatures of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with the signature and date of document. A presumption by a reference to section 114 of the Evidence Act shall arise to the effect that particulars contain in the endorsement of the registration were regularly and duly performed and correctly recorded. Therefore, the burden to prove the Will has been duly and satisfactorily discharged by the appellants. In such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.
PC No. 33/2017 Page No. 15/22Col. Biswajit Bandopadhyaya v. State and others Even in a case where active participation and execution of the Will by the propounders/ beneficiaries was there, it has been held that that by itself is not sufficient to create doubt either about the testamatory capacity or the genuineness of the Will.
The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to interfere in the normal line of succession and so natural heir will be debarred in every case of the Will. It may be that in some cases they are fully debarred and in some cases partly.
Even if Appellant 1, one of the beneficiary sons from the second wife, was present at the time of registration by mere that fact no case of undue influence, coercion or fraud is made out negate the Will. Moreover, mere presence does not mean that prominent part was played."
26. It was further held in Prem Nath Chopra Thr. LRs vs. Arun Chopra & Ors, 209 (2014) DLT 144 DB that:
"88. The nature of proof required to prove a will is not different from those required to prove other documents except the requirement of attestation prescribed under Sector 63 of the Indian Succession Act. The proof is to be tested on the usual satisfaction of a prudent mind. What distinguishes a will from other document is that the testator would not be available to testify the same as his last will. This introduces an element of solemnity in the decision. Even then the Court has to proceed with the enquiry in the same manner as is done in respect of any other document. The propounder is called upon to show by satisfactory evidence that (i) the will was signed by the testator in the presence of two attesting witnesses; (ii) at the relevant time he was in sound and disposing state of mind; (iii) he understood the nature and effect i.e., the content of the disposition; (iv) he put the signature to the document of his own free will.PC No. 33/2017 Page No. 16/22
Col. Biswajit Bandopadhyaya v. State and others The onus of the propounder can be said to be discharged on proof of the above essential facts.
89. However, in a case surrounded by suspicious circumstances viz.: the disposition may appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or there may be indications that the disposition was not the result of the testator's free will and mind, such suspicious circumstances make the initial onus very heavy; and unless satisfactorily discharged, the Court would be reluctant to treat the document as the last will of the testator. Where the propounder takes a prominent part in the execution of the will conferring benefit upon him, that is a suspicious circumstance attending the execution of the will; the propounder is required to remove the doubt by clear and satisfactory evidence. In other words the propounder must satisfy the conscience of the Court that the document is the last will and testament of the testator.
91. As the wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in the highest degree, position or to the same extent as before the illness in order to enable him to validly make his will. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property; memory to remember the relations and persons normally having claims on his bounty and has also a judgment. As observed by their Lordships of Privy Council in the decision reported as AIR 1945 PC 174 Judah Vs. Isolyne Shrojbashini Bose & Anr., the fact that the testator was unwell when he executed the will is a long way from saying that he had no testamentary capacity. The testator PC No. 33/2017 Page No. 17/22 Col. Biswajit Bandopadhyaya v. State and others does not have to be found in perfect state of health to have his will declared valid. It is sufficient to prove that he was able to outline the manner in which his estate was to be disposed of.
92. The general principles governing the presumption of due execution and attestation are, if a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim 'omnia presumuntur rite esse acta' applies, unless it is clearly proved that the will in fact, was not duly executed. The Court of probate has long being accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced where no suspicion of fraud has occurred.
27. It was further held in Sridevi & Ors vs. Jayaraja Shetty & Ors. (2005) 2 Supreme Court Cases 784 that:
"14. The propounder of the will has to show that the will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. DW2, the scribe, in his testimony has categorically stated that the will was scribed by him at the dictation of the testator. The two attesting witnesses have deposed that the testator had signed the will in their presence while in sound disposing state of mind after understanding the nature and effect of dispositions made by him. That he signed the will in their presence and they had signed the will in his presence and in the presence of each other. In cross-examination, the appellants failed to elicit anything which could persuade us to disbelieve their PC No. 33/2017 Page No. 18/22 Col. Biswajit Bandopadhyaya v. State and others testimony. It has not been show that they were in any way interested in the propounders of the will or that on their asking they could have deposed falsely in court. Their testimony inspires confidence. The testimony of the Scribe (DW2) and the two attesting witnesses (DWs. 3 & 4) is fully corroborated by the statement of handwriting expert (DW5).
The will runs into 6 pages. The testator had signed each of the 6 pages. Handwriting expert compared the signatures of the testator with his admitted signatures. He has opined that the signatures on the will are that of the testator. In our view, the will had been duly executed.
28. Thus, in the absence of any objection from any of other respondents and as per the criteria laid down in judgments above, the Will dated 08.03.2017, has been duly proved by the attesting witness and by the petitioner. The attesting witness has given a detailed testimony with regard to the soundness of the mind of the deceased testator at the time of execution of the Will. Despite cross- examination no contradictions could be elicited from PW3 or from PW1. PW2 also duly proved the certificate with regard to the deceased testator being in full control of his mental faculties while executing the Will dated 08.03.2017.
29. The only contention/objection of respondent no. 7 is with regard to the separated wife of the deceased testator being mentioned as a nominee in the documents Ex. D7W1/3, D7W1/4 and D7W1/5. However, respondent no. 7 has herself relied upon Rules Ex. D7W1/6 wherein as per Rule 2 of the GPF Rules, Rule 2 Sub Rule (1) Clause (C) define "Family" means as under:
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(i) in the case of a male subscriber, the wife or wives, parents, children, minor brothers, unmarried sisters, deceased son's window and children and where no parents of the subscriber is alive, a paternal grandparent:
Provided that if a subscriber proves that his wife has been judicially separated from him or has ceased under the customary law of the community, to which she belongs to be entitled to maintenance she shall henceforth be deemed to be no longer a member of the subscriber's family in matters to which these rules relate unless the subscriber subsequently intimates, in writing to the Accounts Officer that she shall continue to be so regarde;.
30. The petitioner has already led evidence with regard to the separation of the wife of the deceased testator namely Mrs. Aditi Banarjee, who had filed a suit for divorce against him in the court of appropriate jurisdiction on 23.05.2003. In this regard, divorce decree Ex. D7W1/P1 was also placed on record and the objecting respondent no. 7 admitted that as per the divorce documents, said Mrs. Aditi Banarjee can no more be treated as the beneficiary of the deceased testator as she has been judicially separated from him. Thus, it is clear that she can no longer be treated as family as per the Rule above mentioned.
31. Even otherwise, the deceased testator as per his Will had clarified that "if in the past in any of the official document or nomination form, I had mentioned Ms. Aditi Banerjee as my nominee, PC No. 33/2017 Page No. 20/22 Col. Biswajit Bandopadhyaya v. State and others her nomination should be cancelled forthwith. I appoint my elder brother Col. Biswajit Bandopadhyaya as the nominee as he has looked after me in my difficult days after she had left me".
32. In this regard, it is settled law that the circumstances of depriving the natural heir should not raise any suspicion because the whole idea behind the execution of the Will is to interfere in the normal line of succession and so the natural heir will be debarred in every case of the Will. It may be that in some cases they are fully debarred and in some cases partly. (Pentakota's case) supra.
33. Even otherwise, since Mrs. Aditi Banerjee had sought a divorce from the deceased testator, she does not fall within the definition of family as per the GPF Rules and as the Will dated 08.03.2017 is the last Will and testament of the deceased testator and as it has been proved to be duly and validly executed and not surrounded by any suspicious circumstances, the objection raised by respondent no.7 falls.
34. The other respondent i.e. respondent no. 6 has also given her no objection being the real sister of deceased testator.
35. Thus, in view of the above discussion, the petition is allowed and the petitioner being named executor of the Will dated 08.03.2017 is entitled to grant of the probate of the Will dated 08.03.2017 Ex. PW1/B of testator late Sh. Monojit Banerjee. The probate with copy of the Will Ex. PW1/B will be issued to the petitioner on the prescribed Form VI but it would be subject to (i) PC No. 33/2017 Page No. 21/22 Col. Biswajit Bandopadhyaya v. State and others filing of appropriate stamp/court fee; (ii) furnishing of administration bond and surety bond by the petitioner, both of which can be filed within a period of six months from today; (iii) petitioner will furnish full and true inventory of the properties and credits of the testatrix, and exhibit the same in the court within six months from the date of grant of certificate on prescribed Form No. 178 and; (iv) to render true account of the said properties and credits within one year on prescribed form no. 179.
36. Further, it is made clear that allowing of the present petition for grant of probate will not tantamount to any declaration of title of the deceased to the estate which finds mention in the Will.
37. The petition was accompanied with the original Will which shall remain part of the judicial file in terms of Section 294 of the Indian Succession Act, 1925 and it will not be returned to the petitioner.
38. File be consigned to record room after due compliance.
Pronounced in open court:
Dated: 23.02.2022. (Chetna Singh), Addl. District Judge-06, South East, Saket Court, New Delhi.PC No. 33/2017 Page No. 22/22
Col. Biswajit Bandopadhyaya v. State and others