VASUKIBALA DEVI Vs. STATE

JUDGEMENT

(1.) BY means of this petition under Section 276 of the Indian Succession Act (the 'Act' in short) Hitendu Madhava Bhattacharya (the petitioner) has prayed for the grant of probate of the Will dated 31st October, 1983 alleged to be executed by late Smt. Vasuki Bala Devi (testatrix) in favour of the wife of the petitioner namely, Smt. Jyotsna Bhattacharya.

(2.) BRIEFLY stated the petitioner's case as set out in the petition is that one Devendra Nath Chatterji had executed a Will dated 8.11.1935 for the administration of his properties situate at Varanasi, one of which property was endowed in favour of the diety Sri Radha Govindjee. In the said Will Sri Devendra Nath Chatterji had nominated three executors, out of whom one was Smt. Vasuki Bala Devi, who was his niece. The Will also gave a right to the executors to nominate their successors. Smt. Vasuki Bala Devi executed a Will dated 31st October, 1983 by virtue of which she nominated Smt. Jyotsna Bhattacharya (wife of the petitioner) to be the executor of the Will dated 8.11.1935 in her place and also appointed the said Smt. Jyotsna Bhattacharya as the she wait of the diety. It is stated that Jyotsna Bhattacharya died intestate all of a sudden on 24.6.1991 and, therefore, could not execute any Will or appoint any successor. Consequently, the petitioner as the husband of Smt. Jyotsna Bhattacharya had to file the present petition praying for the grant of probate of the Will dated 31.10.1983.

(3.) NOTICE was issued to Sri Bireshwar Chatterji (opposite party) on whose behalf a short counter affidavit was filed initially stating that the present petition by the petitioner was not maintainable on the ground, firstly, that the original Will dated 31.10.1983 was not filed. Secondly, a Testamentary Case No. 5 of 1991 was filed by Jyotsna Bhattacharya in this Court which was dismissed on 15.3.1991. Thirdly, the petitioner had in different proceedings been asserting the ownership over the property in question and was also claiming that the Will dated 31.10.1983 was in his favour and lastly that the petitioner had no locus standi to file the present petition which was also not maintainable in law. Subsequently a detailed counter affidavit was filed elaborating the grounds mentioned in the short counter -affidavit and giving further details. Rejoinder affidavit to both these counter -affidavits were filed by the petitioner.