Calcutta High Court
For The vs Radha Rani Chatterjee .... ... on 25 November, 2022
IN THE HIGH COURT AT CALCUTTA
(Testamentary & Intestate Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
PLA 281 of 2015
IA No. GA 3 of 2022
In The Goods Of :
Ashis Ranjan Lahiri (Dec.)
Mr. Rupak Ghosh
Ms. Madhurima Das
.....For the petitioner
Heard on : 22.11.2022
Judgment on : 25.11.2022
Krishna Rao, J.:
The petitioner has filed the instant application for grant of probate in
respect of the last Will and Testament dt. 21st May, 1980 of the deceased
Ashis Ranjan Lahiri.
The deceased Ashis Ranajan Lahiri had executed a last Will and
Testament by appointing his wife Smt. Sita Lahiri, since deceased as sole
executrix and in the event of his death, his daughter Smt. Monika Sarkar,
the petitioner herein as the sole executrix of his last Will and Testament.
The father of the petitioner expired on 27th March, 1982 leaving behind the
following legal heirs :
i. Sita Lahiri .... Wife (Since deceased)
ii. Smt. Monika Sarkar .... Daughter ( Petitioner herein)
iii. Smt. Shibani Ganguly .... Daughter
iv. Smt. Kanika Bhattacharjee .... Daughter
v. Radha Rani Chatterjee .... Daughter.
The mother of the petitioner died on 28th June, 2014 leaving behind
the above named four daughters. After the death of the father only in the
month of December, 2013 the mother of the petitioner had disclosed the Will
executed by the father of the petitioner on 21st May, 1980.
Before taking appropriate steps for grant of probate by the mother
with respect of the Will, the mother of the petitioner expired. After the death
of the mother, the petitioner has filed the instant application for grant of
probate of the last Will and Testament dt. 21st May, 1980.
While filing the instant application for grant of probate the petitioner
has filed affidavit of assets and affidavit of the one of the attending witness
namely Uttam Bhattacharyya.
None of the legal heirs of the deceased Ashis Ranjan have filed any
caveat and accordingly the petitioner has taken steps for issuance of general
citations and special citations. By way of special citation, the petitioner has
published the notice of the instant case in the English Daily News Paper
namely Statesman and in the Bangla Daily News Paper namely Bartaman
Patrika on 6th August, 2017 but inspite of publication of the notice no caveat
is lodged.
The petitioner has examined two witnesses on commission to prove
the last Will and testament of the deceased Ashis Ranjan Lahiri namely :
i. Uttam Bhattacharyya - The attending witness of the Will.
ii. Smt. Monika Sarkar - The petitioner (Executrix).
Shri Uttam Bhattacharyya during his examination has identified the last
Will and Testament dt. 21st May, 1980 and after identification, the Will is
exhibited as Exhibit - 'A' and the signature of the Testator is exhibited as
Exhibit - 'A/1' and signature of the attesting witnesses are exhibited as A/2,
A/3 and A/4. The witness Uttam Bhattacharyya in his evidence stated that
he was present at the residence of Ashis Ranjan Lahiri when he has
executed the Will. He also stated that at the time of execution of the Will by
Ashis Ranjan Lahiri, three attesting witnesses namely Shib Shankar Saha,
Nemai Kumar Kundu and Tarapada Saha were also present and in his
presence, the said attesting witnesses have signed in the said will at
attesting witnesses. He further stated that except the petitioner other three
daughters were also present at the residence of the deceased. The witness
also stated that at the time of execution of Will Ashis Ranjan was perfectly
healthy state, both physically and mentally.
The petitioner during her evidence has proved the death of her father and
mother and the death certificate of the father is marked as Exhibit - 'B'. She
has also identified the signatures of her father in the said Will and also
stated that her father was in fit state of mind.
In the instant case none of the attesting witnesses were examined to
prove the Will but the petitioner has examined the attending witness namely
Uttam Bhattacharyya.
Section 63 of the Succession Act reads as follows :
"63 Execution of unprivileged Wills. --Every testator, not
being a soldier employed in an expedition or engaged in actual
warfare, [or an airman so employed or engaged,] or a mariner at sea,
shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by his
direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that
it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the Will or
has seen some other person sign the Will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgement of his signature or mark, or of the
signature of such other person; and each of the witnesses shall
sign the Will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary."
Section 68 and 69 of the Evidence Act reads as follows :
"68. Proof of execution of document required by law to be
attested.--If a document is required by law to be attested, it shall not
be used as evidence until one attesting witness at least has been called
for the purpose of proving its execution, if there be an attesting witness
alive, and subject to the process of the Court and capable of giving
evidence:
[Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not being a Will,
which has been registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless its execution by the
person by whom it purports to have been executed is specifically
denied.]
69. Proof where no attesting witness found.--If no such
attesting witness can be found, or if the document purports to have
been executed in the United Kingdom, it must be proved that the
attestation of one attesting witness at least is in his handwriting, and
that the signature of the person executing the document is in the
handwriting of that person."
In the instant case, as none of the attesting witnesses were examined
but the attending witness was examined and the said attending witness has
categorically stated that he was present at the residence of the testator and
in his presence, the testator and the attesting witnesses have put their
signature in the said last Will and Testament.
Considered the last Will and Testament of the deceased Ashis Ranjan
Lahiri, evidence of the attending witness and the evidence of the petitioner,
this Court finds that the petitioner has proved the Will and there is no
circumstances to say any suspicious in the Will dt. 21st May, 1980.
In view of the above, probate is granted to the petitioner in terms of
the last Will and Testament of the deceased Ashis Ranjan Lahiri dt. 21st
May, 1980 subject to completion of all formalities. Will be annex along with
probate.
(Krishna Rao, J.)
