Calcutta High Court
Somnath Chatterjee vs Sharmila Shetty on 9 September, 2025
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
TS/23/2016
IN THE GOODS OF: USHA BAROOAH (DEC)
-AND-
SOMNATH CHATTERJEE
-VS-
SHARMILA SHETTY
For the Plaintiff : Mr. Ratnanko Banerji, Sr. Adv.
Mr. D. N. Sharma, Adv.
Mr. Anonoy Basu, Adv.
Hearing concluded on : 03/09/2025
Judgment on : 09/09/2025
Sugato Majumdar, J.:
This is an application praying for grant of probate of the last will and
testament of the deceased Usha Barooah.
The Testatrix Usha Barooah was a Hindu having last place of
residence at 2C, Hastings Park Road, Alipore, Kolkata-700027. Prior to her
death, she executed her last will and testament, as averred, on 08/09/2009
appointing the present Petitioner as one of the Executors.
The Testatrix breathed her last on 05/07/2011 at The Calcutta
Medical Research Institute, 7/2, Diamond Harbour Road, Kolkata-700027.
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After her death, the present Executor filed the instant application,
praying for grant of probate of the said last will and testament of the
Testatrix.
Citations were issued.
The younger daughter of the Testatrix who happened to be the sole
Executrix of the will, lodged caveat and also filed affidavit in support of the
caveat. The Caveat was allowed and the probate application became
contentious one. Accordingly, it was renumbered.
The sum and substance of the contentions of the Caveatrix may be
summarized as follow:
a) It is alleged that prior to her death, her mother's physical
condition was not good and she was admitted twice in the
hospital, once on 20th April, 2011 and next in the month of
June, 2011.
b) The Testatrix was long abandoned by her husband, the father of
the Defendant/Caveatrix. The only son being the brother of the
Defendant died in the year 2007. The other daughter was not
living with the Testatrix. It is the Defendant who used to take
care of the Testatrix and accompanied her from time to time
though living in Mumbai.
c) During her lifetime, the Testatrix gifted the Defendant, 221230
shares in the family business of name of B and A Limited. The
Testatrix was also part of an enterprise by the name of Rosa
Ville based in Shilong which she used to run in partnership
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with her elder sister Rosa Kamte. In the year 2010, the
Testatrix had caused the management agreement with her
sister to be amended by a document dated 14th July, 2010 by
which her share in the partnership business would come to be
vested in the Defendant on demise of the Testatrix.
d) The Testatrix always shared her emotions and sentiments with
the Defendant. But the Testatrix never mentioned that she had
prepared a will. On death of the Testatrix, one Hacienda
Properties Pvt. Ltd. informed her that the Testatrix left a will, in
which, the Defendant was the sole Executrix and the present
Petitioner along with one Ranadurjay Ray Chowdhury were
appointed as the Executors.
e) The Defendant/Caveatrix challenged the will on various
grounds firstly, that the will was forged and fabricated.
Secondly, the Testatrix was not physically fit enough to contact
any lawyer for preparing and drafting the will. Thirdly, the
signature of the Testatrix was forged. The attesting witnesses
were complete strangers to the Testatrix and the said attesting
witnesses have no reason or opportunity to be present at the
time of execution of the alleged will. Fourthly, the will was
manufactured after death of the Testatrix in an attempt to
undo, the gift of the said 221230 shares in B & A Pvt. Ltd. by
the Testatrix to the Defendant. It is the present Petitioner,
namely, Somnath Chatterjee who conspired in a various way to
manufacture the present will. It was further contended that in
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order to deprive the Defendant from her legitimate dues, the
alleged will was manufactured and fabricated.
f) It was also alleged that even without admitting but assuming
that the alleged will was executed, it could not have been done
by the Testatrix out of her free will but is result of coercion and
undue influences.
g) In nutshell, the Defendant's contention was that the probate
should be refused.
On the basis of the rival pleadings, the following issues were framed:
1. Whether the instant will is the last will and testament of the
Testatrix?
2. Whether at the time of execution of the will, the Testatrix
was physically fit and mentally alert?
3. Whether the instant will was executed in free mind by the
Testatrix or under coercion, undue influence or other
influences?
4. Whether the instant will was executed in term of the Indian
Succession Act, 1925?
5. Whether there was any suspicious circumstance
surrounding execution of the will? If so, whether the
Plaintiff is able to repel such suspicious circumstance?
6. Whether the Plaintiff is entitled to grant of probate as prayed
for?
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Subsequent to framing of issues, the suit was fixed for witness action.
The Defendant did not appear to adduce any evidence not did cross-
examine the Plaintiff's witness. The Executor being the present Petitioner
was examined as PW 1 Dipendra Narayan Das one of the attesting witnesses
was examined as PW 3 and one Dilip Chatterjee was examined as PW 2.
The Learned Senior Counsel, Mr. Banerjee, appearing for the
Petitioner submitted that even though lot of allegations are there in the
written statement not a single allegation was proved as the Defendant did
not come forward to adduce any evidence. It was further submitted by him
that so far as allegation of forgery, fabrication, undue influence or coercion
are concerned, those must be proved by the Defendant; burden of proof lies
on the person who asserts that. The Defendant, since, did not adduce
evidence, failed to discharge the burden of proof. On the other hand,
Plaintiff's witnesses including the attesting witness proved due execution of
the will. According to the Learned Senior Counsel probate should be
granted.
I have heard the submissions.
Testimony of PW 1 was that the Testatrix kept the matter of will very
"closely guarded secret"; she was in good health and was in sound frame of
mind. It was further deposed that she signed the will out of her own
volition. This witness was the first attesting witness and deposed that the
Testatrix executed the will in his presence and he also signed the will in
presence of the Testatrix. Other attesting witnesses also signed in presence
of this PW 1 and the Testatrix.
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The testimony of PW 1 was corroborated by PW 2. The will was
marked and exhibited. PW 2 explained the circumstances attenuating the
execution of the will. Death certificate of the Testatrix was also adduced in
evidence.
Unchallenged testimony of the witnesses established that the will was
duly executed in accordance with Section 63 of the Indian Succession Act,
1925. The Testimony of the witnesses also repelled any clouds of doubts
surrounding the execution of the will. The plea of the Defendant is not
proved in absence of evidence.
For reasons as aforesaid, this Court is of opinion that due execution of
the last will and testament of the Testatrix Usha Barooah dated 08/09/2009
is duly proved.
Let probate be granted. The instant suit stands disposed of
accordingly.
Accounts and inventory shall be filed within six months.
(Sugato Majumdar, J.)
