MOUSUMI BOSE (PAL) Vs. SONALI PAL & ANR

JUDGEMENT

(1.) The Court : This P.L.A. No.124 of 2012 has been filed by Mousumi Bose (Pal) alias Moushami Pal, praying for grant of probate of the last Will and testament dated 7th July, 2009 of the testator Subrata Pal, since deceased. The original Will has been produced before this Court and marked as Exhibit A. A probate application together with affidavit of assets affirmed by Mousumi Bose (Pal) alias Moushami Pal on 4th May, 2012, affidavit of attesting witness affirmed by Amit Paul on 4th May, 2012 and affidavit affirmed by Smt. Ruby Pal on 4th May, 2012, was filed before this Court. Citations were issued and served on the heirs-in-intestacy, namely, Sonali Pal and Souvik Pal. The said heirs of Subrata Pal (since deceased) filed caveat and affidavit in support thereof. The petitioner filed an application on 31st August, 2016 praying for setting the matter down as contentious cause and to prove the proceeding as a suit in which the petitioner is treated as the plaintiff and the caveators, namely, Sonali Pal and Master Souvik Pal are treated as defendants. The said application being G.A. 2645 of 2016 was disposed of by an order dated 27th September, 2016 allowing the petitioner's prayer. Accordingly, the petition for grant of probate was numbered as T.S. 42 of 2016. By the said order dated 27th September, 2016, this Court directed the parties to discover their documents within four weeks after 'Puja' Vacation and to complete inspection forthwith. Since 27th September, 2016 no discovery was made by the defendants in pursuance of the aforesaid order. On 4th April, 2017, the matter was listed but no one appeared for the defendant. On the submission of Mr. Samarjit Ghosh, learned advocate appearing for the plaintiff that, although, there was a direction on 27th September, 2016 while disposing of G.A.2645 of 2016 that the parties would discover their documents within a limited period, the plaintiff discovered the documents but the defendants did not take any inspection. The defendants also did not discover their documents. That being the situation, considering the constraints of the plaintiff, the matter was directed to appear on 26th April, 2017 under the same heading in which it appeared on 4th April, 2017.

(2.) Mr. Samarjit Ghosh, learned advocate appearing for the plaintiff, was directed to serve a notice together with a server copy of this Court's order dated 4th April, 2017 upon the defendants informing them that the matter would appear on 26th April, 2017. In the said order it was made clear that in the event no discovery and/or inspection is made by the date fixed, the matter would thereafter, be listed under the heading undefended suit. The matter appeared on 26th April, 2017 but no one appeared for the defendants. Mr. Ghosh filed affidavit-of-service as directed by Court. Affidavit-of-service filed by Mr. Ghosh revealed that not only service had been effected upon the defendants, they were also notified about the ex parte hearing of the matter but even then they chose not to appear before the Court and, accordingly, an order was passed discharging the caveat.

(3.) Plaintiff led evidence in support of grant of probate. Witness was examined. Documents were proved and it was finally placed for argument on 21st June, 2017. Therefore, it appears from the record that after caveat and affidavit were filed, practically the defendants remained unrepresented all throughout. This Court, in order to enable the defendants to appear, delayed the hearing of the matter but, even then no one turned up for the defendants to contest the probate application.