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IN THE MATTER OF THE GOODS OF LATE PRABHAT KUMAR BHATTACHARY versus IN THE MATTER OF THE GOODS OF LATE INDRA NATH BHATTACHARYA

High Court of Judicature at Allahabad

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In The Matter Of The Goods Of Late Prabhat Kumar Bhattachary v. In The Matter Of The Goods Of Late Indra Nath Bhattacharya - TESTAMENTARY SUITS No. 4 of 2006 [2006] RD-AH 12641 (1 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 9

TESTAMENTARY SUIT NO. 4 OF 2006

In the matter of goods of

Late Prabhat Kumar Bhattacharya & Indra Nath Bhattacharya, R/o 95/17, Sarvodaya Nagar, Allahpur, Allahabad

Gulab Singh - Applicant

Hon'ble Sunil Ambwani, J.

1. Heard Shri C.K. Parekh, learned counsel for plaintiff and Shri J. Nagar, Administrator General.

2. Shri Indra Nath Bhattacharya  (deceased) had earlier filed Testamentary Case No. 3 of 1999 for ''Letters of Administration' of the estate  comprising  of only Rs. 2, 20, 600.27 in the shape of  fixed deposits receipts of his  brother late Shri Prabhat Kumar Bhattacharya, a retired Honorary Captain of Indian Army.  Shri Indra Nath Bhattacharya a bachelor expired on 12.1.2000 before the application could be heard. Her sister Miss Basanti Bhattacharya had died on 29.5.1998. Late Shri Indra Nath Bhattacharya (the deceased) was the only surviving heir.

3. The applicant Shri Gulab Singh was a professor in the Moti Lal Nehru Engineering College, Prayag, Allahabad. He retired as Principal of Gwalior Engineering College. It is alleged that the deceased who was known to him left a will dated 19.3.1999, in favour of the applicant.

4. The will, scribed by Shri Devbrat Misra and witnessed by Shri Satya Narayan Singh, son of late Shiv Janam Singh,  resident of U.O. Staff Colony, Moneriko, Allahabad;  and Shri Ram Nath son of late Bhagwanbali R/o H-43 Staff Colony, Moniriko, Allahabad, recites that the testator was old and aged 70 years. He was not married. His sister late  Basanti  Bhattacharya and brother late Prabhat Kumar Bhattacharya were also not married. He has no other near relatives. After he was left alone, Dr. Gulab

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Singh son of late Shri Amba Bahadur Singh serving in Moti Lal Nehru Engineering College, Prayag, Allahabad has looked after him. He  is  well acquainted with the Doctor and his family for about 25-30 years who are close to him. After he had sold his house at Sarvodaya Nagar, Allahabad he stayed with Dr. Sahab  at Mehdauri Colony, Allahabad who was taking care of him and his daily needs. The deceased expressed the wish to give the entire property  inherited by him from his brother and sister to the applicant Dr. Gulab Singh.

5. The notices were issued to the Administrator General and were published in ''Amar Ujala' (Hindi) from Allahabad. An affidavit of service has been filed.

6. Shri J. Nagar, learned Administrator General has put in appearance and has contested the matter. It is stated by him in his reply that as per information collected by his office, the deceased did not execute any will on 19.3.1987 and as such the plaintiff is not entitled to claim administration of his estate with copy of will annexed thereto. The deceased did not leave behind any surviving heirs. The assets of the deceased will as such  vest in the Administrator General. It is further stated that the petition is not in accordance with the provisions of Indian Succession Act 1925,  as it does not disclose any where that the will was executed in a free and disposing mind and further that the petition is not in the form prescribed in the Chapter XXX of the Rules of the Court. The attesting witness has not stated in his affidavit that he had seen the testator signing the will.

7. On the basis of  pleadings, the following issues were struck between the parties  on 22.3.2006;

"(i) Whether the will dated 19.3.1999 executed by Shri Indra Nath Bhattacharya is a genuine document?

(ii) Whether the will dated 19.3.1999 was executed by Shri Indra Nath Bhattacharya in sound and disposing mind?

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(iii) Whether the petition for grant of Letters of Administration filed by the Administrator General is maintainable?

(iv) To what relief the plaintiffs are entitled?"

8. Shri C.K. Parekh has filed  a list of documents. List-A encloses  original/photocopy of bank pass book of accounts held by late Prabhat Kumar Bhattacharya and the fixed deposits receipts. List-B encloses documents in relation to service record of Shri Prabhat Kumar Bhattacharya; application written by Indra Nath Bhattacharya to the bank; identity card of Shri Prabhat Kumar Bhattacharya and Indra Nath Bhattacharya. List-C encloses correspondence between late Indra Nath Bhattacharya and Sri K.P. Singh who became Governor of Gujarat to show the address of late Indra Nath Bhattacharya; List-D contains tax receipt, water tax and house tax including bill relating to the house of late Prabhat Kumar Bhattacharya and documents relating to the transfer of the house in the name Indra Nath Bhattacharya,  and List-E contains the documents in respect of house where deceased Indra Nath Bhattacharya lastly resided and the Bank pass book along with their photocopy as well as photocopy of the bank receipt showing endorsement of name of Gulab Singh or his wife jointly, the bank account, bank pass book relating to the sister of deceased etc to show the closeness of the applicant with deceased.

9. The plaintiff examined himself as PW-1; Shri Rajeev Tripathi  as PW-2; Shri  Deobrat Misra as  PW-3; Shri S.N. Singh, the attesting witness as PW-4 and Shri Ravi Kant Dubey, a person acquainted with the deceased as PW-5. The Administrator General has contested the will. He has not produced any evidence.

ISSUE NO. 1

10. The Administrator General contends that paragraph 12 is the only paragraph in the petition regarding execution and attestation of the will. It only states that the will was executed with the sweat will of the testator.

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The affidavit of the attesting witness talks about execution only. Shri Nagar submits that requirement of Section 281 of the Indian Succession Act and affidavit of attesting witness under Chapter XXX Rule 5 of the Rules of the Court has not been complied with. The plaintiff must plead,  that the will was executed in the free and disposing mind and that the attesting witness must affirm in his affidavit that he had seen the deceased scribe his name at the foot of the testamentary paper in the language and character annexed and marked with the affidavit and declared and published the same as his last will attested. The deponent on the request of the deceased and in  presence of each other at the same time subscribed their respective names and signatures at the foot of the testamentary paper as witness. Shri J. Nagar submits that in the absence of statutory requirement, the plaint should be rejected and further the court should not proceed to record to finding on issue No. 1.

11. The submission appears to be two technical to be accepted. There must be necessary averments of  due execution of will and its attestation for the purposes of verifying the bequest.  The court should ensure that the plaintiff  comes with necessary pleadings and annex at least an affidavit of the  attesting witness who has seen  due execution of the will and which proves his presence at the request of the  testator,  and subscription of the signature of the testator in his presence and the other attesting witness. These requirements, however, are not to be put in any specific form or ''mantra' or in specific word failing which the will can not be proved. Where the court finds that the pleadings are sufficient and that necessary averments have been made which are proved by the evidence, the court shall put the will into motion,  to satisfy the wish of the testator.

12. In the present case, Dr. Gulab Singh holds a very respectable position in society. He was a professor in Moti Lal Nehru Engineering College, Prayag, Allahabad and then retired as  a Principal of Gwalior Engineering college. His affidavit proves that he had long association  with

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the deceased, who also had joint accounts with him. After the deceased sold his house he came to live in the house owned by Dr. Gulab Singh. Late Shri Indra Nath Bhattacharya executed will dated 19.3.1999 in his favour in his free will and with sound mind. It is further stated by him that  "he was in sound and disposing mind". In his cross examination  he deposed that the deceased met him at Sangam casually  sitting at a tea shop. The casual  acquaintance between the two slowly and gradually resulted into relationships till his death. Shri  Prabhat Kumar Bhattacharya died on 26.5.1998 in his new house constructed by him in 1994. After the death of Prabhat Kumar,  his sister Miss Basanti Bhattacharya died on the 3rd day i.e. on 29.5.1998, Shri Indra Nath Bhattacharya was deeply disturbed and had expressed his desire to live with plaintiff. The plaintiff gave him option  to live with him  either in his house at Engineering College or at Mehdauri. The deceased accepted to stay at Mehdauri. The plaintiff stated that he was not present when the will was written. He came to know after about 7 or 8 days. Shri Devbrat Misra, the scribe clearly stated that he had written the will on the request of the deceased. At that time the  deceased was in a sound and disposing mind. He was in good health. He used regular works. The will was written at the dictation of Shri Indra Nath Bhattacharya and on his direction it was signed by the witness and the  scribe.

13. Shri S.N. Singh, the attesting witness has proved the will in his deposition. He stated that late Indra Nath Bhattacharya had signed the will after reading it in his presence and in the presence of the scribe Shri Deobrat Misra and the witness Shri Ram Nath. He had  seen Shri Indra Nath Bhattacharya  signing the will. On the direction of the deceased  the witness Deobrat Misra had on signed the will after the deceased had signed it.

14. Shri Ravi Kant Dubey PW-4 stated that he knew the deceased who was a bachelor. He has fixed deposits with Gulab Singh and his wife. He

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met Shri Indra Nath Bhattacharya, when he had gone to the house of Shri Gulab Singh.

15. The will is  proved  to be duly executed by the deceased in his sound and disposing mind, and attested by the witnesses, the issue Nos. 1 and 2 are decided in favour of the plaintiff.

ISSUE NO. 3

16. The Administrator General filed the petition after the suit was dismissed for want of prosecution  and then  waiting for 30 days. The suit was later on restored. Now since the finding on issue Nos. 1 and 2 have been returned in favour of the plaintiff, and it is held that the will dated 19.3.1999 was duly executed and attested by the deceased  and that  the plaintiff is beneficiary, the petition of the Administrator General for grant of letters of administration of Administrator General has become infructuous.

ISSUE NO. 4

17. On the  findings on Issue Nos. 1, and 2 in favour of plaintiff, he is held entitled to the ''Letters of Administration' of the estate and credits of deceased with the will attached.

18. The suit is decreed for grant of ''Letter of Administration' of the assets and credits of the deceased Shri Indra Nath Bhattacharya in favour of the plaintiff. The plaintiff shall pay the court fee after it so determined by the office and is paid to the satisfaction of the Registrar General of the Court.

19. All the original documents filed by the parties except the ''will' shall be returned to the plaintiff. The proceedings in Testamentary Suit No. 5 of

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2006 are consequently dropped. The Administrator General is justified in stating that he had to file the petition as statutory obligation imposed on him and that he is entitled to the costs. The plaintiff shall pay s. 5000/- as cost of the petition and fees of the Administrator General quantified at Rs. 2500/- ( total Rs. 7500/-)  to the Administrator General within a month. The letters of administration shall be granted with the will attached after payment of the court fees and execution of the administration bond.

Dt.11.8.2006

RKP/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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