PRADIP KUMAR BHOWMICK Vs. BASANTI DUTTA

JUDGEMENT

(1.) : The facts of the suit in brief are that one Smt. Kalpana Rani Bhowmick, a Hindu governed by Dayabhaga School of Hindu Law died on 2nd day of January, 1992 at 54A, Pratapaditya Road, Kolkata-700026 outside the jurisdiction of this Court after having made and published her last Will and Testament dated 15th March, 1975 corresponding to the 1st day of Chaitra, 1381 B.S. and the said Will was duly registered in the office of the Registrar of Assurance, Calcutta. In the said Will the Testatrix appointed her husband, Jagannath Bhowmick, the sole Executor in order to obtain Probate of the said Will. Before the said Executor obtained probate of the said Will he died intestate on 11-6-1997 at the same residence. The present petitioners being both the sons of the Testatrix and the Executor appointed by her are the ultimate legatees and beneficiaries named in the Will. In the said Will the Executor-husband of the Testatrix was given lifetime estate In respect of the said property covered in the Will. By the said Will the Testatrix bequeathed her estate to the present petitioners jointly and in equal shares subject to the life estate of the Executor. Kalpana died leaving her husband. two sons who are the present petitioners and five daughters namely Smt. Bijoya Das, Smt. Annapurana Ghosh, Smt. Sarbani Guha Mallick, Smt. Basantl Dutta and Smt. Chandana Dey as her legal heirs and they were entitled to inherit the properties left by Kalpana had there been no Will and the deceased would have died intestate. Jagannath Bhowmick, the sole Executor of the Will took her wife Kalpana to have died intestate and so under the impression that he along with the daughters and the petitioners would have inherited the property left by her wife for which he obtained five Deeds of Gifts executed and registered on 21-12-1992 in favour of Jagannath Bhowmick by the respective five married daughters in respect of their respective shares on the property in question. The petitioners did not know about the existence of the said Will which was discovered by them after the death of their father. In the circumstances, the present application was filed for granting Letters of Administration.

(2.) The petition has been contested by Smt. Sarbani Guha Mallick, one of the daughters of the Testatrix by filing an Affidavit in which it is inter alia stated that after the death of her mother who was the absolute owner of the property in question, the said property was managed and controlled by her father Jagannath Bhowmick. It is also stated that after the death of Jagannath, Sarbani along with her four other sisters being proportionately joint owners of the said property executed a power of attorney in favour of her two brothers, the present petitioners in the instant case empowering them to do certain acts. It is again stated that it was only from the special citation that they came to learn about the purported Will to have been executed by their mother Kalpana Rani Bhowmick in favour of their two brothers. Thus, they had no knowledge about the contents and execution of the said Will. Thereafter it further stated, "that the Will, if at all executed is not genuine in nature". It is again stated that the dispositions contained in the said Will are "unnatural, improbable and unfair and has been made under duress" for which the application for grant of probate of the said Will should be dismissed with costs.

(3.) The application filed by the two brothers is also contested by another sister Smt. Basanti Dutta by filing an Affidavit in which it is inter alia stated that the purported Will was not the Will of Kalpana nor was it executed by her or she had no intention to execute the same on her own volition. The purported Will is a very cryptic and clothed with suspicion. It is also stated that at the material point of time Kalpana had no testamentary right or capacity to execute the alleged Will. It is also stated that Kalpana was not the real owner of the property but only a Benamder of the same as she had no independent income of her own. It is also stated that the said Will was not read over and explained to Kalpana by any of the attesting witnesses or by the executor and in such circumstances the application of the two brothers is liable to be rejected.