Mitali Chatterjee vs Suman Chakraborty
2022 Latest Caselaw 5590 Cal

18.08.2022
Item No.13
Court No.32
Avijit Mitra


                                FAT 65 of 2022
                                     with
                              IA No. CAN 1 of 2022
                                     with
                              IA No. CAN 2 of 2022


                           Mitali Chatterjee
                                   - Versus -
                          Suman Chakraborty


                          Mr. Siva Prasad Ghosh,
                          Mr. Amit Halder,
                          Md. Wasim Akram,
                          Mr. Akash Ghosh
                                           ...for the appellant
                          Mr. Anirban Mitra,
                          Mr. Amit Halder,
                          Mr. Akash Ghosh
                                           ....for the respondent

The present appeal has been filed challenging

the judgment and decree dated 23rd February, 2022

passed by the learned Additional District Judge, Fast

Track Court-II, Howrah in probate suit no. 1 of 2016.

By the aforesaid judgment and decree the learned

Court has been pleased to grant probate of the will

made and published by Milan Chakraborty deceased

on 13th November, 2009.

The testator died leaving behind his widow Bela

Chakraborty, one son Suman Chakraborty and two

daughters, namely, Mahua Mukherjee and Mitali

Chatterjee. Both the daughters of deceased testator

are married.

Records reveal that Suman Chakraborty is the

propounder and had applied for grant of probate.

Mitali Chatterjee had objected to the grant whereupon

the aforesaid probate proceedings were treated to be a

contentious cause and tried as a suit and ultimately

probate of the Will executed by the testator on 13 th

November, 2009 was granted.

An application in connection with the aforesaid

appeal being CAN 2 of 2022 has been filed by Mitali

Chatterjee, the appellant above name, inter alia,

praying for an order restraining the respondent from

encumbering the property left behind by the deceased

Milan Chakraborty.

Mr. Ghosh learned advocate appearing in

support of the aforesaid application submits that the

deceased was survived by his widow, two daughters

both of whom are married and one son. Ordinarily, the

aforesaid persons as legal heirs would have been

entitled to the estate of the deceased. Mr. Ghosh

submits that by the aforesaid will, the daughters of the

deceased had been denied their right in the estate of

the deceased. It is the contention of the objector that

the will is unnatural and there are suspicious

circumstances surrounding the will and that the

provisions of Section 63(c) and 281 of the Indian

Succession Act has not been complied with. The will is

not in form as it does not include the schedule of the

property/estate of the deceased.

Mr. Ghosh submits that the respondent on the

basis of the grant is trying to deal with the estate of

the deceased and unless an order is passed injuncting

the respondent from dealing with, encumbering the

immovable property left behind by the deceased which

is situated at 13/2 Behari Lal Chakraborty Lane, P.S

and District- Howrah, a residential house, the

appellant would suffer irreparable loss and would be

seriously prejudiced.

Mr. Mitra, learned advocate appearing on behalf

of the respondent submits that the

appellant/petitioner does not even have a prima facie

case. It is his contention that prior to filing of an

objection in connection with the grant of probate, both

the daughters of the deceased including their mother

Bela Chakraborty, had accorded their consent to the

grant of probate by affirming an affidavit on 16 th

January, 2013. He has also produced a copy of the

aforesaid affidavit executed by both the daughters and

the widow of the deceased.

Drawing our attention to the cross-examination

of the objector/appellant which is at page 32 of the

aforesaid application, he submits that objector has

proceeded on the basis of guesswork and has merely

indicated that the will in question is not genuine. The

learned Judge has taken into consideration not only

the cross-examination of the objector but also the

other relevant factors inter alia including the

deposition of the attesting witness and the deposition

of the respondent. The respondent/propounder had

been able to remove the suspicious circumstances

surrounding the will and proceeding on such premise

the learned Judge has been pleased to grant probate of

the Will executed by the testator on 13 th November,

2009 in favour of his client. He further submits that

the property in question is an immovable property

where his client resides and his client has no intention

at present to deal with or dispose of the same. The

allegations made by the appellant in the aforesaid

application are unfounded and has no basis.

We have considered the submissions of the

parties and the averments made in the application

being CAN 2 of 2022 and the affidavits filed by the

parties. We are of the view that unless appropriate

protection is granted to protect the residential

premises forming part of the estate of the deceased the

same may cause serious prejudice to the appellant. In

the given facts an order restraining the respondent

from creating any third party interest and/or from

dealing with the property, will not create any greater

loss or harm to the respondent, than the loss or

prejudice that the appellant may suffer if such an

order is not passed. The aforesaid order would not

only ensure the protection of the estate pending

disposal of the appeal but the same would also ensure

there is no multiplicity of judicial proceedings.

Accordingly, we direct that the respondent shall

not deal with and/or dispose of the immovable

property of the deceased testator, situated at 13/2,

Behari Lal Chakraborty Lane, Police Station and

District Howrah without obtaining prior leave of this

Hon'ble Court.

The application being CAN 2 of 2022 is

disposed of. Mr. Ghosh, learned advocate appearing

for the appellant submits that he does not want to

proceed with the application being CAN 1 of 2022, the

same is accordingly dismissed.

As Mr. Mitra, learned advocate has entered

appearance on behalf of the respondent, service of

notice of appeal upon the said respondent is dispensed

with.

On the prayer of Mr. Mitra learned Advocate for

the respondent, Lower Court records be called for

through Special Messenger at the cost of the

respondent. Such cost shall be deposited within two

weeks from date.

Immediately, after arrival of the Lower Court

Records, the office shall examine the same and, if

found complete shall issue notice of arrival of Lower

Court Records to the learned advocates appearing for

the appellant and the respondent herein.

As prayed for by Mr. Mitra, liberty is granted to

the respondent to prepare requisite number of

informal paper books-printed, typewritten or

cyclostyled, as the case may be, out of Court, within

four weeks from the date of service of notice of arrival

of Lower Court Records and to file the same after

serving a copy upon the learned advocate appearing

for the appellant.

All formalities regarding preparation of paper

books are dispensed with but the learned advocate for

the respondent is directed to incorporate all the

relevant documents in the informal paper books.

Liberty to mention.

(Raja Basu Chowdhury,J.) (Tapabrata Chakraborty J.)