IN THE HIGH COURT OF JUDICATURE AT PATNA Test Case No.12 of 2009 =========================================================== 1. In The Goods Of Late Smt. Gita Bhattacharya W/O Sri Santosh Kumar Bhattacharya R/O Mohalla- Kalambagh Road, P.S.- Kazi Mohamadpur, Town And Distt.- Muzaffarpur =========================================================== 1. Protosh Kumar Bhattacharya S/O Sri Santosh Kumar Bhattacharya R/O Mohalla- Kalambagh Road, P.S.- Kazi Mohamadpur, Town And Distt.- Muzaffarpur. .... .... Applicant =========================================================== Appearance : For the Applicant : Mr. Laxmi Narayan. Das Mr. Dhruba Mukherjee Mr. S De Mr. Ranjit Sharan Mr. Subhdeep Das For the Interveners : Mr. Neeraj Kumar Mr. Sushanta Kumar Das Mr. Ratna Das Mr. Anil Kumar Mr. S.S.P.Yadav Mr. Barunendra Pd.Singh =========================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH CAV JUDGMENT Date: 07-11-2012 Jayanandan Singh,J. : On 28.09.2012 this Court heard Sri Yadav appearing in support of I.A. No.5575 of 2010, filed on 30.6.2011 by one Smt. Neha under Order 1 Rule 10(2) read with section 151 of the Civil Procedure Code and section 383(1)(c) of the Indian Successions Act, filed with a prayer to intervene in the matter. Claim of the petitioner of this I.A. is that she is a bonafide purchaser of the part of portion of the property covered under the Will. It is stated in the I.A. that her husband Ramesh Kumar had been granted power of attorney on Patna High Court TEST CASE No.12 of 2009 dt.07-11-2012 2 / 9 2 1.10.2009 by Near Relative No.3 Arunab Bhattacharya @ Shibomoy in respect of the property under the Will. Thereafter, Ramesh Kumar executed sale deed in her favour. It is stated in the I.A. that the applicant of the Test Case has filed title suit bearing T.S.No.659 of 2009 in the court of learned Sub-Judge-1, Muzaffarpur and the petitioner has appeared in the said suit. Thereafter she came to know about the Test case and hence she has filed this I.A. for being impleaded as party in the case in order to contest the claim of the applicant. She claims that she is bonafide purchaser of a part of the property under the Will and as such she has a right to appear in this case and contest the validity and genuineness of the will. In support of his submissions, Mr. Yadav has placed reliance on the judgments reported in AIR 1987 Ker 193; AIR 2006 All 75; AIR 2007 Bom 103 and AIR 2008 SC 2058. He further referred to Section 293 of the Limitation Act and submitted that submitted that the main application of the applicant for grant of Letters of Administration was barred by limitation. He also referred to a supplementary affidavit filed earlier in respect of a defect pointed out by the office and also filed written arguments. 2. Applicant has filed objection/counter affidavit to the said I.A., stating that the I.A. by a stranger for being impleaded as party in a Test Case is not maintainable. It is stated that there is no provision Patna High Court TEST CASE No.12 of 2009 dt.07-11-2012 3 / 9 3 in the Indian Succession Act to entertain such an application of a stranger to the family not claiming any interest under the will. In support of his submissions learned counsel placed reliance on judgments reported in 2007(3) PLJR 789 and (2008) 4 SCC 300. 3. The intervener has not filed any caveat or objection in this Test case in terms of section 284 of Indian Succession Act read with Rule 17 of Chapter XI of the Patna High Court Rules. Rule 17 reads as follows:- “17. Any person intending to oppose the issue of a grant of probate or letters of administration must either personally or by his pleader file a caveat before the Registrar. Notice of filing of the caveat shall be given by the Registrar to the petitioner or his pleader in the prescribed form.” (emphasis is mine) 4. In stead, the petitioner has filed the I.A. for being impleaded as a party in this Testamentary Case under Order 1 Rule 10(2) read with section 151 C.P.C. and section 383(1)(c) of Successions Act, which provisions are not applicable in this proceeding. In the circumstances, I.A. is dismissed, however without prejudice to her right to contest in the suit already pending. 5. On that very day, the parties in the main case filed their written arguments in support of the application and submitted that, in case the I.A. of the intervener is not found maintainable, this Court may also dispose of the main case as there is no contest by any of the Patna High Court TEST CASE No.12 of 2009 dt.07-11-2012 4 / 9 4 near relatives for grant of prayer of the applicant made in the main application and they had no further arguments to advance. In the circumstances, this Court has taken up the main case also for final disposal. 6. From the application, this Court finds that the applicant has filed the same under sections 273 and 276 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”) for grant of letter of administration in respect of a registered Will dated 05.05.1998 executed by Late Smt. Gita Bhattacharya. 7. It is stated in the application that the Will was executed by the testatrix Late Gita Bhattacharya along with her husband Santosh Kumar Bhattacharya. It is stated that half of the property mentioned in the Will was purchased by Santosh Kumar Bhattacharya and the rest half was purchased by the testatrix, vide separate sale deeds. Testatrix died on 30.1.2004. Another executant of the Will, namely, Santosh Kumar Bhattacharya was alive and he sold the property of his share to different persons in the year 2008 and 2009. Therefore, it is stated that this application is for grant of letter of administration with respect to the half portion of the remaining property mentioned in the Schedule of the Will in the name of the testatrix. 8. It is stated in the application that at the time of execution of the Will, testatrix Late Gita Bhattacharya was in sound state of Patna High Court TEST CASE No.12 of 2009 dt.07-11-2012 5 / 9 5 health and mind. She had voluntarily executed the Will after fully understanding its contents, without any undue influence, in presence of two attesting witnesses, namely, Yadavendra Sharan Singh and Jagatdhar Dogra. It is stated that the Testatrix was a Hindu governed by the Dayabhaga School of Hindu Law and she was permanent resident of Mohalla- Kalambagh Road, P.S.- Kazi Mohammadpur, Town and district- Muzaffarpur. It is stated that the Testatrix died at her permanent residence at Muzaffarpur on 30.1.2004 at 8.30 a.m. leaving behind her husband, sons, grand sons and grand daughters. 9. Husband of the Testatrix, namely, Santosh Kumar Bhattacharya died during the pendency of this application on 26.4.2010 and his name was expunged from the list of Near Relatives by order of this Court dated 14.5.2010. Applicant Protosh Kumar Bhattacharya is the eldest son of the testatrix as well as legatee of the Will. The valuation of the property under the Will, for which letter of administration is sought to be granted, is mentioned in Schedule- A as Rs.25 lakhs. Expenses of Rs.1000/- towards funeral are mentioned in Schedule-B of the application. 10. One of the attesting witnesses, namely, Jagatdhar Dogra has filed affidavit along with the application to the effect that he had attested the Will as witnesses in presence of the Testatrix and the other attesting witness Yadvender Narain Singh. The Testatrix had Patna High Court TEST CASE No.12 of 2009 dt.07-11-2012 6 / 9 6 signed the Will in their presence in her good state of health and sound mind. 11. Probate duty of Rs.30,000/- has been deposited by the applicant vide challan no.283 dated 14.12.2009. 12. By order of the Court dated 18.12.2009, general citations were published in the Patna edition of English Daily „Hindustan Times‟ and Patna edition of Hindi Daily „Aaj‟, and an affidavit to this effect was filed on 25.12.2009 enclosing therewith original copies of the newspapers. Special citations were also issued to the Near Relatives. 13. Applicant examined three witnesses including himself in support of his case. A.W.1 Jagatdhar Dogra is the attesting witness. A.W.2 Protosh Kumar Bhattacharya is the applicant himself. A.W.3 Arnab Bhattacharya @ Shivomoy is Near Relative No.3. 14. A.W.1 Jagatdhar Dogra was examined on 3.8.2012 During his Examination-in-Chief, seal cover of the original Will was opened in Court and shown to him. He identified the original Will of the Testatrix Geeta Bhattacharya executed on 5.5.1998 along with Santosh Kumar Bhattacharya. He was the attesting witness. Original Will was marked as Ext.1. He stated that the Will was signed by the Testatrix in his presence as also in presence of Yadavendra Sharan Singh, another attesting witness. Signature of Testatrix was marked Patna High Court TEST CASE No.12 of 2009 dt.07-11-2012 7 / 9 7 as Ext.-3 series. Yadavendra Sharan Singh had also put his signatures on the Will as an attesting witness in his presence. He stated that Yadavendra Sharan Singh is dead now. This witness identified his signature also, which was marked as Ext.-5. This witness stated that he was requested by the Testatrix to be a witness on the Will. On her request, this witness had put his signature on the Will. He identified his own signature on the Will, which is marked as Ext.-4. This witness stated that at the time of execution of the Will, the Testatrix was mentally fit and capable to understand. 15. A.W.2 Protosh Kumar Bhattacharya is the applicant himself. In his Examination-in-Chief, this witness stated that he is the eldest son of Geeta Bhattacharya and Santosh Kumar Bhattacharya. Both of them are now dead. The Will was executed by both of them. This witness further said that after execution of the Will, his father sold the property of his share to other persons. He stated that the present application has been filed for grant of letter of administration with respect to the property of Geeta Bhattacharya only. This witness said that at the time of execution of Will, Testatrix was mentally and physically sound and she was capable to understand. She along with his father had gone to the office of the Registrar for registration of the Will. This witness further said that the Testatrix died in 2004 and his father died in 2010. Patna High Court TEST CASE No.12 of 2009 dt.07-11-2012 8 / 9 8 16. A.W.3 is Arnab Bhattacharya @ Shibomoy. This witness stated that Testatrix Late Geeta Bhattacharya was his grand mother. His father Late Gopal Krishan Bhatacharya had predeceased his grand mother. This witness stated that he and his mother has no objection if letter of administration is granted in favour of applicant Protosh Kumar Bhattacharya. 17. In view of the evidence of the witnesses, this Court has perused the original Will of the Testatrix. This Court finds that the Will is typed on ten pages. The Testatrix has put her full signature in English on every page of the Will. This Court also finds that both the attesting witnesses, namely, Jagatdhar Dogra and Yadavendra Sharan Singh have signed on the Will. One attesting witness Jagatdhar Dogra has identified the signature of the Testatrix on the Will as well as his own signature, which have been marked as exhibits. Another attesting witness Yadavendra Sharan Singh has died and hence, his evidence could not be recorded. Thus, this Court finds that the Will conforms to the requirement of section 263 of the Act. 18. The witnesses have stated that the Will is the last Will of the Testatrix duly executed by her. They have also stated that the Testatrix was mentally and physically fit at the time of execution of the Will. This Court further finds that there is nothing on record to show that this Will was not the last document executed by the Patna High Court TEST CASE No.12 of 2009 dt.07-11-2012 9 / 9 9 Testatrix for management of her property and the same is not the genuine Will duly executed by her in her full senses, without any undue influence and coercion and no caveat also has been filed by any near relative or by any person, whatsoever, in this case to oppose the prayer of the applicant for grant of letter of administration. 19. As stated earlier, list of assets and schedule of funeral expenses are annexed with the application as Schedule-A and B respectively. Original Will was filed in the Court separately in a sealed cover. In the circumstances, this Court finds that the application filed by the applicant under sections 273 and 276 of the Act is in accordance with the requirements of law. 20. In the circumstances, this Court is satisfied that the Will is genuine and contains last wishes of the Testatrix, duly executed by her in full consciousness and in a sound state of mind and body and duly attested by the witnesses and it satisfies the requirements of law. 21. As a result, this application is allowed. Let a letter of administration be issued in favour of the applicant in respect of the properties covered by the Will. Pradeep/- (Jayanandan Singh, J)