Sg Ct. 8 vs Mamata Chakraborty & Anr
2022 Latest Caselaw 696 Cal

                                                FA 58 of 2018
Item-4   18-02-2022
                                        Animesh Chakraborty
 sg        Ct. 8                                Versus
                                      Mamata Chakraborty & Anr.

                                         (Through Video Conference)


                            Mr. Anirban Banerjee, Adv.
                                                  ...for the appellant

                            Ms. Shreshtha Gupta, Adv.
                                                  ...for the respondents

We have heard the learned Counsel for the parties.

The appeal is arising out of a judgment and decree dated

11th December, 2017 passed by the learned Civil Judge (Senior

Division) and District Delegate at Serempore, Hooghly with

regard to the grant of probate in favour of the appellant.

The appellant is the nephew of the deceased propounder. It

appears that the propounder suffered 30% burn injury and she

was hospitalized on 13th October, 2016 at 11:30 AM and

discharged on 25th October, 2016. The alleged Will was claimed

to have been executed on 17th October, 2016. The propounder

died within seven and half-hours of her discharge from the

Nursing Home on 25th October, 2016. Although, the mother and

the sister of the executor had filed affidavit on consent, but the

learned Judge refused to grant probate on the ground that the

executor had failed to remove the suspicious circumstances

surrounding the execution of the said Will.

While we agree with the learned Trial Judge that the

executor had failed to remove the suspicious circumstances

surrounding execution of the said Will as the Will was not

proved in course of the provision of the Act - doctor was not

examined and the circumstances under which the Will was

executed also not being property explained as admittedly the

propounder had suffered 30% burn injury and may not be in the

proper frame of mind to execute the said Will. However, one

thing which might have missed the attention of the learned Trial

Court was that the persons who would have ordinarily succeeded

to the said estate but for execution of the Will were not

mentioned in the petition and the statement appearing at

paragraph 6 is completely misleading. The heirs of the husband

who would have ordinarily succeeded to the said estate of the

propounder were confidently left out in the petition and no

citation was issued to them.

On such consideration, we uphold the order of the learned

Trial Judge and give our additional reasons to sustain the said

order.

The appeal stands dismissed.

Urgent photostat certified copy of this order, if applied for

be supplied to the parties upon compliance of all requisite

formalities.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)