RAMESH CHANDRA GANGULY Vs. SUDHAMOY GANGULY

JUDGEMENT

(1.) THE short question involved in this Rule is whether an unprobated Will is admissible in evidence in a proceeding other than a probate proceeding. The opposite parties filed Title Suit No. 105 of 1982 in the 5th Court of the learned Munsif at Howrah for eviction of the petitioner treating him to be a licensee in respect of the suit premises. The case as made out by the opposite parties in the plaint inter alia, was that, both the parties were known to each other for quite long time. In or about the year 1978 the petitioner approached the opposite parties for giving him an accommodation in the suit premises as a licensee to which the opposite parties agreed and the petitioner was accommodated as a licensee in respect of the room in the suit premises. The said licensee, however, was revoked by a notice dated January 25, 1982, asking the petitioner to vacate the suit premises on the expiry of the month of March, 1982 but the petitioner did not vacate. The petitioner, contested the said suit by. filing his written statement denying and disputing the case of the opposite parties as made in the plaint and claimed inter alia, that he was a co-sharer in respect of the suit premises in the extent of 8/- annas share; that the suit premises originally belonged to Gopal ganguily and Boto Krishna Banerjee who contributed equally towards the construction of the house on the suit premises. Boto Kisto Banerjee was the brother-in-law of Gopal Ganguly and the opposite parties are the grandsons and grand-daughter of 'smt. Annapurna Debi, one of the sisters of Boto' Kristo Bansrjee, while the petitioner is a son of Gopal Ganguly. Subsequently, the petitioner filed an application for amendment of his written statement introducing a new story regarding the costs of the construction of the said house of which the suit room is a part and stated that the costs were paid by the 'youngest sister of Boto Kristo Banerjee. and her husband and they became owners of moity share in the suit premises. The said youngest sister Smt. Krishna Rani Ganguly was the petitioner's step-mother. The said application for amendment of the written statement was filed after the plaintiffs were examined -in -chief. The plaintiffs filed objection to the said application for amendment but the said amendment application was ultimately allowed. In the said suit the opposite parties wanted to file some documents subsequent to the said ' amendment of the written statement and also wanted to re-call 'the P. W. 1 m order to prove some documents which included an unprobated Will stated to have been executed by the said Boto Krishto Banerjee on August 9, 1948 to which the petitioner objected by filing his written objection. The learned Munsif, however, by the impugned order allowed the said prayer of the opposite parties.

(2.) MR. Mukherjee, the learned advocate appearing on behalf of the petitioner submits that an unprobated Will cannot be admitted into evidence as no right as the executor or the legatee can be established in any Court of law under the said unprobated Will till a Court of competent jurisdiction had granted probate of the said Will and referred -to Section 213 of the Indan Succession Act in support of his said contention. Mr. Mukherjee further contends that a Will can only be proved in a Probate proceeding and that is also to be proved strictly in accordance with Section 68 of the Evidence Act by one of the attesting witnesses to the said Will and referred to the decision in the case of Rammol (Das) Coch v. Hakal Kali Kochini (22 CWN 31. 5) in support of his said contention. Mr. Mukherjee also referred to the decision in the case of Sashi Kumar Baneijee and Ors. v. Subodh Kumar Banerjee, since deceased and after him his legal representatives and heirs, (AIR 1964 SC 529) where the Supreme Court has stated that The mode of proving a Will does not originally differ from proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 6 3 of the Indian Succession Act. . Mr, mukherjee further referred to a decision of the Kerala High Court ip the case of Gee Varghese Gee Varghese and Anr. v. fssaha George and. Ors. (AIR 1971 Kerala 270), in support of his contention reference to Section 21. 3 of the Indian - Succession Act not establish right under a Will unless Probate is granted to it and lastly referred to an unreported judgment of this Court in the case of Bhudeb kumar Dhang and Anr. v. Bijan Behari Dhang, having died his legal representatives Smt, Santi Rani Dhang and Ors. , (FA 125 of 1980) where m. N. Roy and A. C. Sen Gupta JJ, reiterated the view taken by the Supreme Court in Sashi Kumar Banerjee and Ors. case (Supra) that the mode of proving a Will should not ordinarily differ from the mode of proving any other document, with the exception that a Will requires the special requirement of proving attestation in terms of the presumption- under Section 6 3 of the Indian Succession Act. Mr. Mukherjee lastly submitted that in view of the Section 5 7 of the Indian Succession act all Wills executed by a Hindu after 1st January, 192 7 have to be proved as per the provisions of Section 6 3 of the said Act.

(3.) MR. Haldar, the learned advocate appearing on behalf of the opposite parties, however, submits that an unprobated Will can be admitted-into evidence for co-llateral purposes provided, of course, that it is not for proving the rights, of the parties as Executors or legatees under the said Will and referred to the decisions in 18 CWN, 116, 20 CWN 122; 42 CL3 280 and AIR 1. 985 (NOC), 177 (Calcutta ).