SOUMITRA DHAR Vs. ASHIM KUMAR NANDY

JUDGEMENT

(1.) Two Testamentary Suits arose out of two separate applications for grant of probate - one application was filed by Ashim Kumar Nandy for grant of probate of the Will and testament dated Feb. 3, 1988 executed by his father, Shyam Sunder Nandy in respect of his assets and properties which was registered as PLA No.244 of 2010 and another application was filed by Soumitra Dhar (hereinafter referred to as the plaintiff) for grant of probate of the last Will and testament dated Jan. 28, 1995 executed by his grandfather, Shyam Sunder Nandy in respect of his assets and properties, which was registered as PLA No.278 of 2010. While Ashim Kumar Nandy (hereinafter referred to as the defendant) filed an affidavit in support of the caveat in connection with PLA No.278 of 2010, the matter became contentious and PLA No.278 of 2010 was converted to TS No.13 of 2012. On the other hand, PLA No.244 of 2010 was converted to TS No.20 of 2012 when Arati Dhar and Suniti Dey filed two separate affidavits in support of the caveat in connection with PLA No.244 of 2010 and the matter became contentious by the order of the court. Both TS No.13 of 2012 and TS No.20 of 2012 have been taken up for analogous hearing and as such both the above suits are disposed of by this common judgment.

(2.) One Shyam Sunder Nandy executed one registered Will and testament in respect of his assets and properties on Feb. 3, 1988 and appointed his son - the defendant as the sole executor of the said Will. Subsequently, the said Shyam Sunder Nandy revoked his Will dated Feb. 3, 1988 and executed another registered Will and testament in respect of his assets and properties on Jan. 28, 1995 and appointed the defendant and the plaintiff as the joint executors of the said Will. The said Shyam Sunder Nandy died on July 30, 2003 leaving behind his wife-Parbati Nandy, his son - the defendant, his married daughter - Arati Dhar and his married daughter - Suniti Dey as his legal heirs. Subsequently on June 20, 2010 Parbati Nandy, wife of the deceased testator - Shyam Sunder Nandy expired leaving behind only the defendant and Arati Dhar and Suniti Dey as her legal heirs.

(3.) The fact of the case made out by the plaintiff is that his grandfather - Shyam Sunder Nandy specifically revoked his earlier registered Will dated Feb. 3, 1988 and executed his last registered Will and testament on Jan. 28, 1995 and appointed his maternal uncle - the defendant and himself as joint executors of the said Will. The plaintiff sent three separate letters dated July 28, 2010, Aug. 10, 2010 and Aug. 24, 2010 to the defendant through his Learned Advocate for joining him in filing application for grant of probate of the last Will and testament of Shyam Sunder Nandy or to renounce the executorship of the Will, so that the plaintiff alone can file the application for grant of probate of the said Will. The defendant did not respond to the said letters of the plaintiff, but he contested the probate proceeding by filing an affidavit in support of the caveat. According to the plaintiff, two other legal heirs of the deceased Shyam Sunder Nandy namely Arati Dhar and Suniti Dey have filed separate affidavits by which they have given consent to the grant of probate of the said Will in favour of the plaintiff. The affidavits filed by Arati Dhar and Suniti Dey in support of the caveat in connection with TS No.20 of 2012 indicate that Shyam Sunder Nandy gifted away entire first floor of the roof top of his residential building in favour of the defendant on Oct. 1, 1986 and thereafter bequeathed his entire assets and properties in favour of the defendant by executing registered Will dated Feb. 3, 1988 and appointed the defendant as the sole executor of the said Will. The specific case of the two daughters of Shyam Sunder Nandy is that the attitude of the defendant towards his parents was totally changed when the defendant constructed his flat on the 2nd floor of the residential building and after execution of the Will by his father - Shyam Sunder Nandy on Feb. 3, 1988. The defendant was totally indifferent and negligent in maintaining his parents after execution of the Will by his father - Shyam Sunder Nandy on Feb. 3, 1988. Shyam Sunder Nandy regretted for making Will in respect of his entire assets and properties in favour of the defendant and as such he changed his mind and revoked the Will dated Feb. 3, 1988 and executed fresh registered Will in respect of his assets and properties on Jan. 28, 1995 and appointed both the defendant and the plaintiff as joint executors of the said Will. The plaintiff has prayed for grant of probate of last Will and testament of Shyam Sunder Nandy executed on Jan. 28, 1995 and has prayed for dismissal of T.S. No. 20 of 2012.