SUDESH CHANDER TALWAR Vs. SEEMA SARIN & ANR.

JUDGEMENT

(1.) The plaintiff has prayed for grant of probate of the last Will and testament executed by Bhagwati Talwar on Jan. 3, 1995 in respect of her assets and properties. The plaintiff died on Nov. 29, 2006 leaving behind Jagdish Chander Talwar - eldest son, Sudesh Chander Talwar - youngest son, Navina Punj - daughter of predeceased daughter Kuku Narang, Davinder Raj Narang - son of predeceased daughter Kuku Narang, Seema Sarin - daughter of predeceased daughter Neena Sarin and Reema Sarin - daughter of predeceased daughter Neena Sarin as legal heirs. Both the daughters of testatrix Bhagwati Talwar predeceased her. The last Will and testament of Bhagwati Talwar was attested by Sarla Gulati and Bhagwan Das Khaitan since deceased. The testatrix Bhagwati Talwar had permanent place of residence at 8, Dover Park, Ballygunge Circular Road, Kolkata-700019 which is outside the jurisdiction of the City Civil Court at Calcutta, but within the State of West Bengal. The testatrix Bhagwati Talwar left behind her immovable property at 6, Kautilya Marg, Chanakyapuri, New Delhi-110021 (hereinafter referred to as Delhi property) which is situated outside the jurisdiction of the High Court at Calcutta. The movable properties including bank lockers of the testatrix Bhagwati Talwar were situated both within the jurisdiction of the High Court at Calcutta and outside the jurisdiction of the High Court at Calcutta. The plaintiff is appointed as the executor of the last Will and testament of Bhagwati Talwar. The plaintiff has paid ad valorem stamp duty in respect of the declared assets. Accordingly, the plaintiff has instituted this proceeding for grant of probate of the last Will and testament of Bhagwati Talwar.

(2.) The Court granted probate of the last Will and testament of Bhagwati Talwar on Dec. 18, 2006 on consideration of the consent affidavits filed by all the legal heirs of deceased Bhagwati Talwar. On Sept. 17, 2010 the defendants have filed an application for revocation of grant of probate. On Sept. 10, 2012 the application for revocation of grant of probate was dismissed by Learned Single Judge of this Court. The defendants preferred appeal being A. P. O. No.434 of 2012 by challenging the order of dismissal of application for revocation of grant of probate. On Dec. 4, 2013 Honourable Division Bench of this Court allowed the said appeal and revoked the order of grant of probate of the last Will and testament of Bhagwati Talwar. The appellate court directed the defendants to deposit cost of Rs.1 lakh with Learned Registrar, Original Side within specified period of time and made the probate proceeding as contentious. The appellate court also directed Learned Registrar, Original Side to pay the cost of Rs.1 lakh to the plaintiff if the defendants are not successful in the probate proceeding now pending before this Court. The affidavit filed by the defendants pursuant to the leave granted by the Honourable Division Bench on Jan. 3, 2014 is treated as affidavit of the defendants in support of the caveat.

(3.) The defendants nos.1 and 2 have contended in the affidavit that this Court has no jurisdiction to grant probate of the Will of Late Bhagwati Talwar who resided outside the jurisdiction of this Court and who left behind her immovable property at Delhi which is also outside the jurisdiction of the Court. It is contended that the parents of the defendants were permitted to live in Delhi property by the testatrix Bhagwati Talwar. On March 15, 1986 the testatrix Bhagwati Talwar executed one power of attorney in favour of the father of the defendants, by which the father of the defendants was authorised and empowered to look after and manage the entire Delhi property. The defendants have been living in the said property for almost 30 years and the testatrix Bhagwati Talwar openly declared in presence of the plaintiff and other legal heirs of Bhagwati Talwar that the Delhi property will remain with the defendants. The father of the defendants took the initiative to evict the tenants from the ground floor of Delhi property as the father of the defendants was authorised to do so by way of execution power of attorney by the testatrix Bhagwati Talwar.