CIVIL APPEAL 2 of 2011 on 11 October 2001

1. Dhruva Jyoti Roy, son of late Rathindra Narayan Roy, resident of Flat No.4/7, House No.68, Pennar Road, Sakchi, Jamshedpur East Singhbhum, Jharkhand-831001

2. Deba Jyoti Roy, son of late Rathindra Narayan Roy, resident of P-6 ITC Colony, Vidyapuri, Lohia Nagar, Patna.

.... .... Applicants

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Appearance :

For the Applicant : M/s Subrateswar De, Ranjit Sharan, Adv.

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CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH

CAV JUDGMENT

Date: 31-08-2012

Jayanandan Singh,J : Applicants have filed this application under sections 273 and 276 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”) for grant of Probate in respect of a registered Will dated 11.10.2001 executed by Late Mani Mala Roy.

2. It is stated in the application that at the time of execution of the Will, testatrix Late Mani Mala Roy was in sound state of health and mind. She had voluntarily executed the Will fully understanding its contents, without any undue influence, in presence of two attesting witnesses, namely, Kuntal Dutta and Iva Dutta. It is stated that the Testatrix was a Hindu governed by the Dayabhaga School of Hindu Law and she used to reside at 1/45, Brahmpur Shib Mandir Road, P.O.

Brahmpur, Kolkata-96. It is stated that the Testatrix died at Kolkata on 6.2.2011 at 6.00 a.m. leaving behind two sons, who are applicants in this case. Her husband predeceased her. Applicant no.1 is the eldest son and applicant no.2 is the youngest son of the testatrix and both have been named as executors of the aforesaid registered Will. A photo copy of the Will has been enclosed with the application. The property mentioned in the first schedule of the Will has been allotted to applicant no.1 and the property mentioned in the second schedule has been allotted to applicant no.2.

3. An affidavit of valuation has been filed by the second applicant Deba Jyoti Roy mentioning the value of the property worth Rs.30,00,000/-. Details of properties have been mentioned in Schedule-A and Schedule A/1 of the application. Expenses of Rs.1000/- towards funeral are mentioned in Schedule-B of the application.

4. Both the attesting witnesses, namely, Kuntal Dutta and Smt.

Iva Dutta have filed separate affidavits along with the application to the effect that both of them had attested the Will as witnesses in presence of the Testatrix and the Testatrix had signed the Will in their presence in her good state of health and sound mind.

5. Probate duty of Rs.30,000/- has been deposited by the applicants vide challan no.110 dated 22.9.2011.

6. Since properties under the Will are situated in Bihar as well as in West Bengal, by order of the Court dated 21.10.2011, general citations were published in the Patna and Kolkata editions of English Daily „The Telegraph‟, Patna edition of Hindi Daily „Aaj‟ and Kolkata edition of Bengali Daily „Bartman‟, and an affidavit to this effect was filed on 15.12.2011 enclosing therewith original copies of the newspapers. However, no affidavit and caveat has been filed in the case by any person in opposition to this application.

7. Applicants have filed Examination-in-Chief on affidavit on behalf of both the attesting witnesses as also on their behalf.

8. Attesting witness no.1, namely, Kuntal Dutta was examined on 24.2.2012. During his Examination-in-Chief, seal cover of the original Will was opened in Court and shown to him. He identified the original Will of the Testatrix Mani Mala Roy executed on 11.10.2001 in favour of her two sons, namely, Dhruva Jyoti Roy and Deba Jyoti Roy. This witness stated that he and his mother were the attesting witnesses. He stated that the Will was signed by the Testatrix in his presence as also in presence of his mother. This witness identified his signature on the last page of the Will, which was marked as Ext.-1. He also identified the signature of Testatrix on every page of the Will, which were marked as Ext.-2 series. This witness stated that he was requested by the Testator to be a witness on the Will. This witness further stated that at the time of execution of the Will, the Testator was mentally fit and capable to understand.

9. Attesting witness no.2 Iva Dutta was examined on 24.2.2012. She reiterated the same thing as narrated by A.W.1 and stated that she had signed on the Will as an attesting witness on the request of the Testatrix Mani Mala Roy, in her presence as also in presence of A.W.1 Kuntal Dutta. This witness identified her signature on the Will, which was marked as Ext.-3.

10. Both the applicants were examined on 30.3.2012. Both of them stated that their mother Late Mani Mala Roy had executed the Will on 11.10.2001 in their favour. She died on 6.2.2011 at her residence at Kolkata. General citations were published in English, Hindi and Bengali newspapers of Patna and Kolkata editions. Both of them have stated that, to the best of their knowledge, no other case was pending against the present Will. Before her death, the Testatrix had handed over the Will to them and after her death, they have filed this case for probate of the Will.

11. In view of the evidence of the witnesses, this Court has perused the original Will of the Testatrix. This Court finds that the Will is a registered deed running in four pages. The Testatrix has executed the Will and put her signature on every page of the Will. This Court also finds that two witnesses have signed the Will as attesting witnesses.

Pradeep/-

The attesting witnesses have identified the signature of the Testatrix on the Will as well as their own signatures which have been marked as Exhibits. Thus, this Court finds that the Will conforms to the requirement of section 263 of the Act.

12. The witnesses have stated that the Will is the last Will of the Testatrix duly executed by her. They have also stated that the Testatrix was in a sound state of mind and body at the time of execution of the Will. This Court further finds that there is nothing on record to show that this Will was not the last document executed by the Testatrix.

13. In the circumstances, this Court is satisfied that the Will is genuine and contains last wishes of the Testatrix, duly executed by her in full consciousness and in a sound state of mind and body and duly attested by the witnesses and it satisfies the requirements of law.

14. As a result, this application is allowed. Let a probate be issued in favour of the applicants in respect of the Will.

(Jayanandan Singh, J)