Calcutta High Court
Dr. Amalendu Sen vs Unknown on 2 March, 2023
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IN THE HIGH COURT AT CALCUTTA
(Testamentary & Intestate Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
PLA 150 of 2015
In The Goods Of :
Dr. Amalendu Sen, Deceased
Mr. D. Ghosh, Sr. Adv.
Mr. A.K. Dhar, Adv.
Mr. S. Ghosh, Adv.
Mr. A. Basu, Adv.
Mr. S. Bhattacharyya, Adv.
.....For the petitioner
Heard on : 28.02.2023
Judgment on : 02.03.2023
Krishna Rao, J.: -
The petitioner, Dr. Manisha Das, W/o Dr. Biswanath Das had filed the
instant application for grant of Letters of Administration of the Last Will and
Testament of the Testator, Dr. Amalendu through her Constituted Attorney,
Shri Angshuman Das as the petitioner is residing at 97, Copse Hill,
Wimbledon, London SW20 ONJ, U.K.
The testator had executed his last Will and Testament on 10th July,
2009 in presence of two attesting witnesses by appointing the petitioner as
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the executrix of his last Will with respect of his movable and immovable
properties and the said Will is duly registered before the Additional Registrar
of Assurance III, Kolkata on 10th July, 2009.
The testator died on 20th February, 2012 leaving behind the petitioner
as his sole legal heir. The wife of the testator, Smt. Chameli Sen predeceased
the testator of on 4th August, 2006.
By an order dt. 7th August, 2015, this Court had granted Letters of
Administration to the petitioner in terms of prayed (a) of the instant
application. Subsequent to the order dt. 07.08.2015, the Assistant Registrar
(Testamentary Department) brought to the notice of this Court that in
paragraph 9 of the instant application, the petitioner has referred to an
application filed before the District Court at Alipore in relation to a Will
dated 22.06.2011 which appears to be a subsequent Will of which the
present application has been filed by the petitioner for grant of Letters of
Administration and an application for grant of Letters of Administration of
the Will dated 22.06.2011 was pending before the Learned District Court at
Alipore and accordingly by an order dated 07.10.2015, this Court had
recalled the order dated 07.08.0215 and directed that the instant
application shall be shown as pending.
By an order dated 18.04.2016, the original suit Case No. 26 of 2016
pending before the Learned District Court at Alipore in connection with the
Will dated 22.06.2011 was transferred before this Hon'ble Court for
adjudication. After transfer of the said case before this Court, the case was
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renumbered as TS/24/2018 and accordingly by an order dated 09.02.2023,
the said suit was dismissed for default.
TS 24 of 2018 on 09.02.2003, the Counsel for the petitioner prayed for
disposal of the instant application.
The Constituted Attorney, namely Angshuman Das who is also one of
the attesting witness of the last Will and Testament dated 10.07.2009 was
examined before this Court and during this examination, the witness no. 1
stated that the Testator, Dr. Amalendu Sen had executed the Will on
10.07.2009
in his presence as well as in presence of another witness
namely, Tandra Ghosh by appointing the petitioner as the Sole Executrix of
his last Will and Testament. He further stated that the Testator had
executed the Will by possessing good health and fit state of mind. He has
identified the Will, signature of the testator, his signature, signature of the
other attesting witness and the Death Certificate of the Testator. The Will is
marked as Exhibit - 'A', signature of the testator is exhibited as Exhibit -
'A/1', signature of the witnesses have been exhibited as Exhibit - 'A/2' and
Exhibit - 'A/2' and the Death Certificate of the Testator is marked as Exhibit
- 'B'.
The petitioner has filed the instant application for grant of Letters of
Administration as per the last Will and Testament dated 10.07.2009
through her Constituted Attorney in terms of Section 241 of Succession Act
as the petitioner is residing out of the State at the address mentioned above
and there is no other executor within the State.
Section 241 of the Succession Act reads as follows :
"241. Administration, with Will annexed, to attorney of
absent executor.--When any executor is absent from the State
in which application is made, and there is no executor within
the State willing to act, letters of administration, with the Will
annexed, may be granted to the attorney or agent of the
absent executor, for the use and benefit of his principal,
limited until he shall obtain probate or letters of administration
granted to himself."
Initially this Court has granted Letters of Administration to the
petitioner but subsequently the same was revoked by an order dated
07.10.2015 due to pendency of another case in connection with the
subsequent alleged Will dated 22.06.2011 before the District Court at
Alipore. By the order of this Court, the said suit was transferred before this
Court to avoid the conflicting decision and the said suit was registered
before this Court being T.S No. 24 of 2018. The said suit is dismissed for
default on 09.02.2023 and thereafter no steps have been taken by the
plaintiff in the said suit for restoration, accordingly, the petitioner has
pressed this application for hearing.
Considered the submission made by the Counsel for the petitioner
perused the evidence of witness no. 1, original Will and Death Certificate of
the Testator. This Court finds that petitioner has able to prove that the
testator had executed the Will on 10.07.2009 by appointing the petitioner as
sole executrix with respect of his movable and immovable properties while
possessing good health and fit state of mind. There is nothing on record to
create any suspicious circumstances for execution of the Will by the
testator.
In view of the above, the petitioner is entitled to get an order in terms
of prayer (a) of the instant application. The petitioner is directed to furnish a
personal bond of Rs. 2,00,000/- with one surety.
PLA 150 of 2015 is thus disposed of.
(Krishna Rao, J.)
