DHARANIDHAR DUTTA Vs. GIRIJA SHANKAR DUTTA

JUDGEMENT

(1.) THE present suit was filed originally as Test Case No.5/2006 being an application for grant of probate in favour of the applicant-plaintiff, Smt.Shefali Mukherjee with respect to the will dated 22.11.2000 of late Renuka Chatterji, her mother. It was claimed that the said registered Will dated 22.11.2000 was the last will of late Renuka Chatterji. THE same was executed and voluntarily signed in a sound state of health and mind and after fully understanding the contents without any undue influence of anybody in the presence of two witnesses, namely, Ranjay Nandi and Ibha Banerjee. THE further case of the applicant- plaintiff is that the testatrix was a Hindu governed by the Dayabhag School of Hindu Law and was a permanent resident of Park Road, P.S. Kadamkuan, Town and District-Patna. At the time of execution of the will she had one son and four married daughters and the subject matter of the will was the three storied building along with outhouse situated at Park Road, Kadamkuan, Patna. It was further stated in the application that the said Renuka Chatterjee died at Magadh Hospital, Patna on 14.3.2002 at 6.15 A.M. THE applicant- propounder of the will, Smt. Shefali Mukherjee, has been named as the sole executor of the Will. As many as seven near relatives were named in the application, including the only son and two surviving daughters, the daughter-in-law, the grand son (son of son) and two other grand sons being sons of the deceased daughter. General citation was published in two news papers and special citation was also taken out and served upon seven near relatives mentioned in the application. Near Relative No.7, who is the grandson(daughter's son) of the Testatrix appeared through vakalatnama and filed his No Objection petition for grant of probate in favour of the applicant. However, Near Relative No.1, the son of the testatrix, also appeared and filed his caveat and objection petition opposing the grant of probate. THE application was, accordingly, converted into the present Testamentary Suit. THE plaintiff examined three witnesses on her behalf, namely, P.W.1, Ranjay Nandi, P.W.2, Ibha Banerjee, the two being the attesting witnesses, and she also got herself examined as P.W.3. THE original will was produced and marked as Ext.1,; Exts.2/1 to Ext.2/8 are the signatures of the Testatrix on every page of the Will, Exts.3 to 3/5 are the signatures of the attesting witness Ranjay Nandi, P.W.1 on every page of the Will, and Exts.4 to 4/5 are the signatures of the attesting witness Ibha Banerjee, P.W.2 on every page of the Will.

(2.) THE defendant, Sidheshwar Chatterji, also examined three witnesses, in support of his case, including himself as D.W.1, D.W.2 Raj Kumar and D.W.3 Suresh Prasad. On a consideration of the respective cases of the plaintiff and defendant, the following issues were framed:-

(3.) THE defendant has examined himself as D.W.1. He has stated that the testatrix was a semi literate lady and she could sign on the dictates of others. He has denied that she executed any will on her own. He has also alleged that the Will in question had been executed by the plaintiff and Mrs. Mithun Chatterji, his wife. He has also alleged that the Will was not drafted or typed on the instructions of his mother nor she called any one to attest the alleged Will nor any one attested it in her presence. He has stated that she lost her power of understanding since October, 1999 and was not in a position to understand the contents and effect of any document or deed. He has, however, stated that the testatrix was ailing since 1998 and being regularly treated by the Doctor. Nobody other than him served his mother. He has further stated that his mother had expressed her wish not to dispossess him from the ground floor of the main building where he has been living, whereas in the alleged Will he has been allotted outhouse which is in dilapidated condition and in rainy season its ground floor becomes inundated. He has stated that his mother had no exclusive title to the property under the Will and it is surrounded by suspicious circumstances. In cross examination, he has denied that his mother was a student of Bethal School of Kolkata, which is English medium school and asserted that his mother knew only Bengali Language. He has, however, admitted that she had Bank Account which she used to operate by putting signature on cheque. On being shown page 4 of the will he has admitted that his mother had opened a joint account in her name along with his wife for meeting the education expenditure of his son in the Post Office in the year 2000. He has admitted that his mother was operating the pension account till last day of her life. He has accepted that he was in the Indian Revenue Service and in the normal course would have retired in the year 2010, but he has denied that he was dismissed from service, stating that he took voluntary retirement. On a question by the Court whether he can produce his order of voluntary retirement, he has however said that it was not possible as he had taken voluntary retirement way back in the year 1994. He has further stated that he was not getting any pension after voluntary retirement on serving the Department for 19 years. He has also denied that there was any departmental proceeding against him before his taking voluntary retirement. He has denied that he had accompanied his mother and sister at the time of registration of the Will to the Registry Office nor that he had taken them in the Car. He, however, admitted that on the day the Will was executed, he was present in his house. On question by the Court, he stated that he was present when the Will was being executed but did not object to his mother while executing the Will. He has further denied that his sister was not interested in the property or that she has no lure for this property because she owns a huge property in America as well as in Kolkata. He has, however, stated that she has already got citizenship of U.S.A. He has further stated that he did not know as to why his mother created such a Will nor did he know the state of her mind and also he did not know as to whether the Will was created on account of his mental problem. He has denied that he is still under treatment for some mental disease. He has further accepted that the property is in two parts; the main building and the out-house and he has been given entire outhouse under the Will and further that even in the main building he has been given his right, of course along with his wife, sister and son. He has also admitted that he was gifted exclusively property at Varanasi by his parents. He further stated that he does not know the attesting witnesses.