The Patna High Court, while dismissing a suit seeking enforcement of a will, held that as the defendants, in spite of cross-examination of the plaintiff’s witnesses at their instance, did not appear to participate in the proceeding, the Court can proceed against them as if they were present.
Brief Facts:
The testatrix was a professor at Banaras Hindu University. The plaintiff herein was her student and the testatrix looked upon him like her son. By the passage of time, there developed a mother-son relationship between the two. As the testatrix had no relative of her own, the testatrix bequeathed all her properties to the plaintiff by executing a Will dated 10.11.2005. After her death, the plaintiff filed the present application for probate. Defendant no. 1 claimed to be the widow of Late Asharam Chatterjee, who was the pre-deceased brother of the testatrix.
Contentions of the Plaintiff:
The Learned Counsel for the Plaintiff submitted that no evidence whatsoever was produced on behalf of the caveatrix that she was married to the pre-deceased brother of the testatrix. There was not any wedding photograph, marriage registration certificate, or any photograph, wherefrom it could appear that she had been a part of the family of the Chatterjees at any point of time whatsoever.
Contentions of the Defendant:
The Learned Counsel for the Defendant submitted that the alleged Will was procured by the plaintiff by fraudulent means and the Will is not a genuine one. The age of Dr. (Miss) Aparna Chattopadhyay was 76 years at the time of her death and at that time, the deceased did not have any sense of understanding because of depression and loneliness. As the testatrix on her death bed was not in a position to understand the consequences of her action, the tentative propounder cannot claim right over the property which the deceased had never inherited.
Observations of the Court:
The Court noted that the defense was unable to lead any contrary evidence to displace the materials brought on record from the side of the plaintiff. No evidence was laid to disprove the affidavit of assets. When the genuineness of a Will is challenged before a Testamentary Court, the Judge dealing with the matter shall put himself in the armchair of the testator and consider whether, in the facts and circumstances of the matter, the testator/testatrix could have taken such a decision. The intention of the testator/testatrix is to be checked and verified by the concerned Judge. The Court remarked that there are sufficient materials from which it transpired that the plaintiff was her student and there was a good and close relation between the two.
The Court observed that when the defendants in this case were allowed to cross-examine, and they cross-examined the witnesses of the plaintiff at length accordingly, their subsequent absence cannot deter the Court from pronouncing its final judgment. As the defendants, in spite of cross-examination of the plaintiff’s witnesses at their instance, did not appear to participate in the proceeding, the Court can proceed against them as if they were present.
The decision of the Court:
The Patna High Court, dismissing the suit, held that there is nothing on record to disbelieve the genuineness of the Will.
Case Title: Ram Ekbal Dubey v Maya Chatterjee & Ors.
Coram: Hon’ble Justice Apurba Sinha Ray
Case no.: T.S. No. 12 of 2023
Advocate for the Plaintiff: Mr. Swarnendu Ghosh
Advocate for the Defendant: Mr. Indrajit Sen
Read Judgment @LatestLaws.com
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