DR. SUDHANYA KUMAR BARDHAN Vs. SAMARENDRA KUMAR BARDHAN

JUDGEMENT

(1.) This P.L.A. No.48 of 2005 was filed by Sachindra Kumar Bardhan praying for grant of probate to the Will and Testament dated 7th September, 1997 of the deceased Dr. Sudhanya Kumar Bardhan. A caveat was lodged by Samarendra Kumar Bardhan, who, subsequently filed affidavit in support of the caveat and the P.L.A. was converted into a contentious cause and re- numbered as T.S. No.10 of 2014. In the petition the propounder has made out a case that one Dr. Sudhanya Kumar Bardhan residing at 11/1A, Benoy Bose Road under Bhawanipore Police Station, Kolkata - 700025, executed his last Will and Testament on 7th September, 1997. By the said Will he appointed his eldest son Sachindra Kumar Bardhan, the propounder, as executor of the last Will. The Will was written in English language and the original Will has been annexed to the probate petition. The Will was executed by the deceased-testator in presence of two attesting witnesses - 1) Prabhu Shaw of 1, Harish Mukherjee Street, Kolkata - 700025 and 2) Partha Sarathi Bardhan of 16N, Nandalal Jew Road, Kolkata - 700026. The signature of the deceased on the said Will was attested by the above-mentioned attesting witnesses. According to the propounder, the execution of the said Will is proved by the affidavit of Prabhu Shaw and also by his declaration. According to the plaintiff, the deceased left behind him surviving his heirs and legal representatives under the Hindu Law, who would have inherited the estate of the deceased had he died intestate. He has mentioned the names of such legal heirs and representatives in the probate petition. The plaintiff has set forth in the affidavit of assets, both movable and immovable which the deceased possessed at the time of his death and which has come to the possession of the heirs.

(2.) The defendant, Samarendra Kumar Bardhan, one of the sons of the deceased-testator, has stated that his father died on 11th November, 1997 leaving behind him surviving his legal heirs. He is the second son of the testator. According to the defendant, his father was not in a position to sign any documents for last 15 years. According to him, the testator never made any Will, however, if at all made, the same has not been executed by his father in his free will and consent rather undue influence and fraud has been practiced to obtain his father's signature on the alleged Will. It is the case of the defendant that since the testator of the alleged Will was blind and had no capacity to take any decision freely without being influenced by anybody and, accordingly, whatever is written in the alleged Will is not the true reflection and/or in conformity with the family settlement made by the testator that is, his father in his favour during his lifetime. It is specifically objected that Dr. Bardhan died on 11th November, 1997 and after expiry of long 8 years this probate application has been filed. The defendant filed a caveat upon receipt of citation from this Hon'ble Court.

(3.) The plaintiff has adduced as many as three witnesses. First of such witnesses, Sachindra Kumar Bardhan, deposed on 26th November, 2014. Cross-examination was concluded on 5th May, 2015. This witness is a Doctor by profession and was 70 years old on the day of deposition. He deposed in his examination-in-chief that his father, Dr. Sudhanya Kumar Bardhan, executed the Will on 7th September, 1997 and he died on 11th November, 1997. He deposed that at the time of death of late Dr. Bardhan, the Will was in his custody but a copy of the Will was circulated to him by the learned advocate who prepared the said Will and, ultimately, in December, 2004, he found the original Will which was kept in a drawer of the deceased-testator. The witness deposed that his father late Dr. Bardhan continued his medical practice till his death and he was physically and mentally alert at the time of execution of the Will. He deposed that he was residing in the same house where the testator used to reside and as a doctor he was of the opinion that his father was mentally and physically alert. The witness identified the Will executed by his father. He stated that there are four signatures on the said Will. He deposed that his father's signature appears on the Will and he identified the same and encircled the same with red ink. He also identified the signature of one Arun Roy, another attesting witness, signed on the Will. The witness also identified the signature and encircled the signature of Arun Roy in red ink. The witness also identified the signature of another attesting witness, namely, Prabhu Shaw and encircled the signature of Prabhu Shaw in red ink. The witness identified the signature of one Partha Sarathi Bardhan, his brother and identified his signature by encircling the same in red ink. He, however, deposed that Mr. Partha Sarathi Bardhan is no more alive. The witness also identified the signature of Mr. Suranjit Ghosh who was an advocate and, according to the witness, he had drafted the Will. The witness encircled the signature of Sri Suranjit Ghosh in red ink. The witness deposed that at the time of execution of the Will he was present at the place where the Will was executed and he narrated the fact and time when the Will was executed. He confirmed that his father signed on the Will in his presence. He also deposed that apart from him, his younger brother, Mr. Partha Sarathi Bardhan and Mr. Prabhu Shaw, witnessed the execution of the Will. He also deposed that he saw the attesting witnesses putting their signature on the Will. In cross-examination, the said witness, Sachindra Kumar Bardhan deposed in answer to question no.57 that the testator informed the names of the persons whom he disclosed about the Will. In answer the witness deposed that Sachindra Kumar Bardhan, Samarendra Kumar Barthan, Partha Sarathi Bardhan, Subrata Kumar Bardhan and others that is, the sisters Mamata Bardhan, Namita Bardhan, Sushama Bardhan and Pratima Bardhan. He further deposed that the testator informed all his sons and daughters. In answer to question no.63 whether all his sons and daughters except caveator are supporting the executor for obtaining the probate the witness deposed 'yes'. In question no.68 in cross- examination the witness deposed that the testator was an M.B.B.S. and was a medical practitioner till his death and on the date of his death he was about 78 years of age.