AMIYA KANTI DAS Vs. SEFALIKA ASH

JUDGEMENT

(1.) The appellant is the son-in-law of the caveatrix.

(2.) The appellant is aggrieved by an order passed by Justice Moushumi Bhattacharya in connection with an application filed by the appellant under Order 3 Rules 1 and 2 read with Order 32 Rule 8(f) of the Code of Civil Procedure, 1908 for representing the caveatrix in the probate proceeding.

(3.) The probate is in relation to a Will executed by one Usha Kanta Das on 3rd October, 1975, which was registered with the Registrar of Assurances, Kolkata. This is the second Will of the testator. The first Will executed on 10th September, 1965 was revoked and substituted by the second Will in view of the death of one of the named executors in the Will, namely, Amar Nath Ash. Under the first Will, Amiya Kanti Das and Amar Nath Ash (now deceased) were made joint executors. The first Will was also a registered Will. In the last Will dated 3rd October, 1975, the testator replaced the name of his son-in-law Amar Nath Ash (now deceased) and included his wife Smt. Ushabari Devi (since deceased) as the joint executor along with Amiya Kanti Das, the plaintiff No.1. It was clearly mentioned in the last Will that in the event of death of Ushabari, she would be substituted by Jyotsna Das, the wife of Amiya Kanti Das for discharging the duty of an executor. After the death of Usha Kanta Das, the plaintiff, on being aware of the existence of the Will dated 3rd October, 1975, applied for grant of probate with the consent of both Sefalika Ash (defendant/caveatrix) and Prativa Nandy. Sefalika Ash and Prative Nandy are the daughters of the deceased, Usha Kanta Das. After a considerable delay of about 5 years, the plaintiffs came to know that Sefalika Ash had filed an affidavit in support of a caveat on 19th December, 2012. The application for grant of probate being P.L.A. no. 53 of 2010 was thereafter marked as a contentious cause and a testamentary suit number was assigned. Issues were framed in the suit and after examination of the plaintiffs' first witness (Amiya Kanti Das), the probate proceeding was dismissed by a judgment dated 8th November, 2016 apparently on the ground that the plaintiffs were unable to produce the attesting witness to prove the Will. An appeal preferred therefrom was disposed of by an order dated 26th April, 2017, remanding the testamentary suit for recording the evidence of Rabindralal Ghosh, the attesting witness to the Will, who the plaintiffs had intended to produce before the learned Single Judge. Both the plaintiffs and the caveatrix, namely, Sefalika Ash were represented by their advocates during these proceedings.