Calcutta High Court
Joydeep Guha vs Gautam Bose on 3 November, 2022
1
IN THE HIGH COURT AT CALCUTTA
(Testamentary and Intestate Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
TS 4 of 2018
In The Goods Of: Sephali Bose (Dec.)
-And-
Joydeep Guha
Versus
Gautam Bose
Mr. Chayan Gupta
Mr. Pourush Bandyapadhyay
Mr. Avijit Dey
.....For the Plaintiff
Heard on : 26.09.2022
Judgment on : 03.11.2022
Krishna Rao, J.:
The plaintiff has filed the instant application for grant of Letters of
Administration of the last Will and testament of the deceased Sephali Bose
dated 07.12.2006 and Codicil dated 18.07.2008. Initially, the said Will and
Codicil was propounded by Joydeep Guha being PLA No. 188 of 2015 in
which Gautam Bose the son of the testatrix had lodged his caveat and filed
affidavit in support of his caveat. On receipt of the caveat and affidavit the
PLA No. 188 of 2015 is converted as Testamentary Suit No. 4 of 2018.
2
As Joydeep Guha did not take any steps to pursue for grant of
probate, Taniya Guha a beneficiary of the said Will and Codicil, had filed an
application being GA No. 5 of 2015 for transposing herself as plaintiff in the
instant suit and accordingly the same was allowed by this Court.
As per the case of the plaintiff, the deceased Sephali Bose was the
owner of both movable properties and immovable properties. On
07.12.2006
, the said Sephali Bose had executed a Will which was duly
registered before the Additional District Sub-Registrar, Alipore and
subsequently on 18.07.2008, the said Sephali Bose had also executed a
Codicil which was also registered before the Additional District Sub-
Registrar, Alipore.
As per the case of the plaintiff by virtue of the said Will and testament,
the proforma defendant namely Joydeep Guha was appointed as executor of
the said Will and testament and the Codicil. In the said Will and Testament,
there are two attesting witnesses namely Gita Guha (Now deceased)and
Surajit Choudhury .One attesting witness, namely Gita Guha died on
13.03.2013.The said Sephali Bose executed the Codicil in presence of three
witness namely Amitabha Sarkar, Surajit Choudhury and Sreemati Sarkar
on 18.07.2008.
Sephali Bose died on 26.12.2014 leaving behind Gautam Bose
(Son/caveator), Taniya Guha granddaughter (plaintiff herein) and Joydeep
Guha grandson (erstwhile executor of the Will). The husband of Sephali
Bose namely R.N. Bose was the pre-deceased of his wife.
Rabindranath Bose, pre-deceased husband of Sephali Bose, Gita
Guha now deceased wife of Late Asis Kumar Guha and pre-deceased
daughter of Sephali Bose were died intestate on 13.01.2000 and 13.03.2013
respectively leaving behind Gautam Bose as her son, Joydeep Guha as her
grandson of the pre-deceased daughter and Taniya Guha as her
granddaughter of pre-deceased daughter.
During the evidence, the plaintiff had adduced three witnesses namely
Surajit Choudhury, Amitabha Sarkar and Taniya Guha (plaintiff herself).
The first witness namely Surajit Choudhury is one of the attesting witness of
the Will and Codicil and the second witness namely Amitabha Sarkar is the
attesting witness to the Codicil dt. 18.07.2008. The witness no. 3 is the
plaintiff who is the beneficiary of the said Will and Codicil.
The first two witnesses namely Surajit Choudhury and Amitabha
Sarkar were cross-examined by the defendant but subsequently the
defendant stop contesting the present suit. The witness no. 2, namely
Amitabha Sarkar was examined before this Court and cross-examined in
part and subsequently the witness no. 2 was cross-examined through
Commission. The Learned Advocate Commissioner had submitted report
before this Court on 18.07.2022 by circulating the report to the Learned
Counsel for the contesting parties but on 18.07.2022 none appeared on
behalf of the defendant and this Court has directed the counsel for the
plaintiff to inform the next date of hearing to the Learned Counsel for the
defendant and accordingly the case was fixed on 03.08.2022 for examination
of witness no. 3 on behalf of the plaintiff. On 03.08.2022, the Learned
Counsel for the defendant had appeared and submits that he is not getting
any instructions from the defendant and prays leave to retire from the
instant case and accordingly the Learned Advocate appearing on behalf of
the defendant had retired from the instant case. On 03.08.2022, the witness
no. 3 was examined and the plaintiff has closed his evidence and
accordingly this Court has fixed the matter on 02.09.2022. Vide order dt.
03.08.2022, this Court has directed the Counsel for the plaintiff to inform
the next date of hearing to the defendant and to file affidavit of service and
accordingly the Counsel for the plaintiff had informed the next date to the
defendant but inspite receipt of the notice, none appeared on behalf of the
defendant on 02.09.2022 accordingly, on the basis of the affidavit of service
filed by the plaintiff, the evidence on behalf of the defendant was closed and
fixed for argument.
P.W.1, Surajit Choudhury who is one of the attesting witness of the
Will and the Codicil has categorically stated that "in course of my usual
visits at Mrs. Sephali Bose's house she mentioned to me that she desire to
make a fresh Will in favour of her granddaughter Taniya Guha in
supersession of earlier will and Codicil thereof. He further stated that she
mentioned to him that he should be one of the witnesses to this Will. On
appointed date and time, he came to their house and having entered the
room, he found all others were sitting in the said room, he met with all
others, Mrs. Sephali Bose then her daughter Late Gita Guha and her two
grand children Joydeep Guha and Taniya Guha and the learned lawyers
were also present. He also stated that Sephali Bose went through the Will
which was written in English and at that time she turn on pages and went
back to pages to reads once more. After having read all the pages, she
signed each pages of the Will. He also stated that after signing of Mrs. Bose
in the Will, Mrs. Gita Guha read this Will and signed the Will then he has
read and signed the Will. The witness Surajit Choudhury has identified the
signature of Mrs. Sephali Bose in the said Will which was encircled in the
red colour. He has also identified his signature in the said Will which was
encircled in the blue colour. He further stated that she was very much
mentally alert as she used to have chat with him regarding the Will. He
further stated that he could see that she was in very much normal mental
health and there was no doubt whatsoever with regard to her health. The
Will has exhibited as Exhibit - "A" and signature of Sephali Bose was
marked as Exhibit- "A1" and his signature was marked as Exhibit - "A2".
He further stated that in the year 2008 in course of his usual visit to
their house, she mentioned to him that she wanted to make certain
modification in the Will and accordingly on the appointed date, he went to
her house and he also found people sitting around including Mrs. Sephali
Bose. He further stated that Mrs. Sephali Bose went through the Codicil
which were written in English and then she signed on each of the pages of
the Codicil, thereafter Amitabha Sarkar had also signed in the said Codicil
and he had also signed as witness and thereafter Sreemati Sarkar has also
signed in the said Codicil as witness. He further stated that thereafter the
Registrar Officials have taken the said document to complete the formalities.
The Codicil was marked as Exhibit - "B" and signature of Mrs. Sephali Bose
was exhibit as Exhibit - "B-1" and signature of the witness was exhibited as
Exhibit "B-2". He further stated that Sephali Bose was mentally and
physically fit at the time of execution of the Codicil. The said witness was
cross-examined but during the cross-examination nothing adverse was
brought on record to create any suspicious circumstances for execution of
the Will and the Codicil. The witness no. 2, Mr. Amitabha Sarkar who is the
witness of the Codicil has stated that Mrs. Sephali Bose informed him that
she made a Will on 07.12.2006 and now she is going to make a Codicil to
the said Will and at that time she informed him that she imposed all her
properties to her granddaughter Taniya Guha and she requested him to be
the witness of the Codicil. He further stated that as per her request on
18.07.2008, he along with his wife went to the house of Mrs. Sephali Bose
and found that Mrs. Sephali Bose was sitting along with her lawyer and he
also seen the peoples from the Registrar Office and Mr. Surajit Choudhury.
He has also stated that Mrs. Sephali Bose wrote the Codicil in English and
she signed the Codicil and he has signed as witness and then Mr.
Choudhury and his wife have signed as witness in the said Codicil. He has
also stated that Mrs. Sephali Bose was physically and mentally fit at the
time of execution of the Codicil. He was cross-examined at length but
nothing was brought on record to create any suspicious for execution of the
Codicil.
Witness no. 3, Taniya Guha who is the plaintiff and the beneficiary of
the said Will and Codicil was examined as witness no. 3 and during her
examination-in-chief, she has categorically stated that her grandmother and
grandfather were residing in Delhi and his uncle Gautam Bose along with
his family members were also resided with them but the behavior of the
uncle and aunt towards her grandfather and grandmother was very bad.
She has further stated that due to the bad behavior of her uncle and her
aunt towards her grandfather and grandmother, her grandfather and
grandmother have decided to relocate in Kolkata at her residence. He has
further stated that there was strained relationship between her uncle
Gautam Bose and her grandparents. During her examination, certain
documents were exhibited as Exhibit - "C" to Exhibit - "J" which are the
correspondence exchange between Sephali Bose and the defendant which
clearly shows that Sephali Bose was possessing good mental health and was
also fully conversant and capable of communicating in English.
The defendant by filing the affidavit and by cross examine the witness
nos. 1 and 2 has taken the plea that the testatrix was illiterate and did not
understand English and her mental and physical condition was not good
but during the cross-examination of the witnesses no.1 and 2 nothing was
brought on record to prove his defense. The defendant has also not
produced any witness to support of the plea taken in the affidavit and
during the cross-examination of the witness no. 1 and 2. The defendant has
not come forward to examine himself or any person as his witness in
support of his plea.
After going through the pleadings, the evidence of the witness
particularly, the witness nos. 1 and 2, this court finds that the plaintiff has
able to prove that the testatrix had executed the Will and the Codicil while
possessing good physical and mental health in presence of the witnesses
and the same was duly registered before the Sub-Registrar.
In view of the above, Letters of Administration is granted in favour of
the plaintiff in terms of the Will dt. 07.12.2006 and the Codicil dt.
18.07.2008 subject to furnishing bond of Rs. 5,00,000/- with two sureties.
TS 4 of 2018 is thus disposed of.
(Krishna Rao, J.)
