Jatindra Nath Biswas (Dec) vs Sirupa Biswas
2023 Latest Caselaw 2520 Cal/2

                         IA No. GA 2 of 2022
                        APOT No. 178 of 2023
                                 with
                          TS No. 10 of 2021
                 IN THE HIGH COURT AT CALCUTTA
                          In appeal from its
               ORDINARY ORIGINAL CIVIL JURISDICTION
                  CIVIL APPELLATE JURISDICTION



                             In the matter of:
                        Jatindra Nath Biswas (Dec)
                                   And
                              Sirupa Biswas
                                  Versus
                             Supratik Biswas



Before:
The Hon'ble Justice I. P. MUKERJI
            And
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 5th September 2023

                                                                   Appearance:
                                               Mr. Rahul Karmakar, Advocate
                                            Mr. Asif Sohail Tarafdar, Advocate
                                            Mr. Sounak Mukherjee, Advocate
                                                              for the appellant
                                                    Mr. Ayan Boral, Advocate
                                                       Mr. I. B. Jha, Advocate
                                                   Mr. A. KI. Ghosh, Advocate
                                                            for the respondent

The Court: We admit the appeal.

After hearing learned counsel for the parties we are in a position

to dispose of the appeal dispensing with all formalities.

Jatindra Nath Biswas executed his alleged last will and

testament on 23rd March 2014. He died on 21st May 2019. The appellant,

Sirupa Biswas, is his widow and propounder of this alleged will as

executrix. By this alleged will the testator had bequeathed his entire

properties to the propounder and his younger son, Pradipto Biswas

residing in the United Kingdom.

The elder son, Supratik Biswas, who was excluded from

succession challenged this alleged will by filing a caveat and thereafter

an affidavit in support thereof. The proceeding is now numbered as a

contentious cause after filing of the affidavit in support of the caveat.

At this stage, the appellant made an application for the

amendment of the application for probate. Several paragraphs were

sought to be added by way of proposed amendments.

The testator's illness of cancer and that he was in a fit mental

state at the time of execution of the will and that the elder son/caveator

did not look after his father were sought to be stated. The United

Kingdom had granted him tourist visa to visit his younger son was a

proof of the fact, it was stated.

On the objection raised by the respondent the learned single

judge in his impugned judgment and order dated 25th April 2023 found

the proposed amendment to be untenable and dismissed the application.

Hence this appeal.

On examination of the proposed amendments we find that they

may be irrelevant. The propounder is required to present the last will and

testament before the court for its evaluation that it was properly

executed, attested with full mental capacity and is otherwise genuine.

What is stated in the proposed amendment is fact with evidence, as a

kind of response to the affidavit in support of the caveat. In our opinion,

they are superfluous and should have no repercussion on the

proceedings.

We make it clear that each and every fact sought to be urged by

the proposed amendment has to be proved before the appropriate court.

In those circumstances, we modify the impugned judgment and

order dated 25th April 2023 by allowing the above amendments, subject

to our observation.

The department is directed to carry out the amendments as

prayed for within two weeks of communication of this order.

Let a copy of the amended plaint be served by the advocate-on-

record for the appellant/plaintiff on his counterpart for the

respondent/defendant within 15th September 2023.

Liberty is given to the caveator to file an additional written

statement by 29th September 2023.

The appeal (APOT 178 of 2023) and the connected stay

application (IA No. GA 2 of 2023) are disposed of.

(I. P. MUKERJI, J.)

(BISWAROOP CHOWDHURY, J.)

R. Bose