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Judgment
(1) PLA No. 88 of 2012 has been filed by one of the joint executors of
a Will dated 28 March, 2011 executed by one Abha Rani Sinha of 2/8B,
Sarat Bose Road, Police Station Ballygunge, Calcutta 700020 who died
on 28 June, 2011. The applicant prays for probate of the said Will in
his favour.
GA No. 2679 of 2012 has been filed by one Dr. Bikash Sinha
claiming to be nephew of and also one of the beneficiaries under the
said Will. The prayers in this application are as follows:-
"(a) The said Mary Catherine Sinha be directed to deposit all moneys withdrawn by her from the joint accounts of the testatrix in various banks and other investments on and after June 28, 2011 with the Registrar, Original Side, High Court, Calcutta;
(b) An order be passed for deposit of the Passport of Mary Catherine Sinha with the Registrar, Original Side, High Court, Calcutta forthwith;
(c) Injunction restraining Mary Catherine Sinha from operating any of the bank accounts or other instruments/accounts wherein her name appears as a joint account holder along with that of the testatrix;
(d) Injunction restraining Anjan Chakraborty and Mary Catherine Sinha who are named as the executors of the Last Will and Testament dated March 28,2011 made by Late Abha Rani Sinha from alienating, selling, depositing of, transferring, dissipating, realizing, withdrawing or howsoever otherwise dealing with any of the assets and properties including bank accounts of the said Testatrix;
(e) Anjan Chakraborty and Mary Catherine Sinha, the executors named in the Last Will and Testament of the testatrix be directed to disclose particulars and details of all bank accounts and other investments whenever the said executors or either of them may be a joint holder of such account/instrument along with the testatrix and to submit an account of all transactions therein since the death of the testatrix viz. June 28, 2011; (f) Your petitioner or such other person as this Hon''ble Court deems fit and proper be appointed Administrator pendent lite over and in respect of the estate of Late Abha Rani Sinha including the assets and properties of the said deceased as mentioned more fully and particularly in the affidavit of assets affirmed by Anjan Chakraborty on 23rd March, 2012 and filed in PLA No. 88 of 2012 which is annexure ''E'' hereto;
(g) Order dated June 11, 2012 passed by this Hon''ble Court be recalled;"
GA No. 3234 of 2012 has been filed by one Mary Catherine Sinha,
the other joint executor of the said Will pray for the following orders:-
"(a) An order be passed directing the Manager of the Indian Bank, Sarat Bose Road Branch to cause the three lockers bearing nos. 240, 13 and 136 to be opened and the valuables, goods and/or articles lying thereat be inventorised and leave be given to your petitioner to take possession thereof;
(b) The affidavit of assets being annexure ''V'' thereto prepared by the petitioner be taken on record and the same be treated as the true and correct affidavit of assets of the said deceased;
(c) Probate of the Will dated 28th March, 2011 be granted to the petitioner and Anjan Chakraborty, being the joint executors in terms of the affidavit of assets being annexure ''V'' hereto jointly"
(2) I propose to dispose of the two applications first before
considering the application for probate.
Re: GA No. 2679 of 2012 (Application of Bikash Sinha) and GA 3234 of 2012 (Application of Mary Catherine Sinha) Contention of Bikash:-
(3) Learned Counsel for the Bikash Sinha (in short ''Bikash'')
submitted that after the death of Abha Rani Sinha (in short ''Abha''),
Mary Catherine Sinha (in short'' Mary'') had been withdrawing
substantial sums of money from the joint accounts held in the names
of Abha and Mary which according to learned Counsel comprise part of
Abha''s estate. From the documents obtained from Anjan Chakraborty
(in short ''Anjan'') being one of the joint executors of Abha''s Will, it
transpired that out of the total sum of Rs. 14,32,01,279/- lying in the
bank accounts in the joint names of Abha and Mary as on the date of
Abha''s death, Mary had withdrawn a sum of Rs. 8,47,46,845/-.
Particulars of the bank accounts along with the credit balances therein
as on the date of Abha''s death i.e. 28 June, 2011 and as on 31
January, 2012 have been given in the form of a chart at page 10 of the
application of Bikash.
(4) On the Bikash''s application an order dated 21 February, 2013 was
passed by a Learned Single Judge, operative portion whereof reads as
follows:-
"Mr. Pratap Chatterjee, learned Senior Counsel appearing for Dr. Bikash Sinha cited Padmanbhan Bhavani and others vs.-Govind Bhargavi and another reported in AIR 1975 Kerala 83. That decision tends to hold that if an account is held jointly on the term, either or survivor, on the death of one of the joint holders, it cannot be presumed that the entire balance in the account will go to the other joint holders.
Now my prima facie findings.
The above decision did not deal with a particular account and the income therefrom being taxed in the hands of one joint holder. In this case the bank accounts in Box B have been taxed in the hands of Mrs. Mary Catherine Sinha. On the above evidence, there is a strong presumption that the entire funds in those bank accounts belong to her.
I can come to this conclusion with added confidence because a statement of the bank account was shown to me, which showed that sterling currency belonging to Mary were credited into the bank account, after conversion into Indian currency. It was said that this amount was received on sale of Mary''s house in Britain. This assertion could not be controverted.
On the same principle, I hold that Mrs. Mary Catherine Sinha is entitled to the account of which Abha Rani Sinha was the first holder and she was the second holder but income tax returns were filed by her.
Therefore, prima facie, I hold that Mrs. Mary Catherine will be allowed to operate these accounts shown in Box B and Box C without any restriction whatsoever.
On the same premises, the accounts which were jointly held by her and her mother-in-law, in which the name of her mother-in-law appeared as the first holder and taxed in the latter''s hands will be presumed to belong to her mother-in-law and she will be unable to operate those accounts.
The existing interim orders are modified to the above extent.
The above observations are prima facie. I also know that there are serious disputes between the parties regarding the source and application of the above funds. Those disputes cannot be resolved in this probate proceeding. I have made my prima facie observations. Those will not prevent Dr. Bikash Sinha or the other Joint Administrator from establishing any right in an appropriate form"
(5) Learned Counsel referred to Clause 7 of the said Will which reads
as follows:-
"I have several investments and/or balances with the Banks in deposit accounts, savings accounts etc. (in most of which name of my daughter-in-law Mrs. Mary Catherine Sinha has been added as the second/joint holder for the sake of convenience)."
Relying on the said Clause learned Counsel submitted that Mary''s
contention that the moneys lying in the accounts and investments in
which she is the first holder, belong to her exclusively, is contrary to
the Will which states that her name had been included as a joint
holder for the sake of convenience only.
(6) Learned Counsel submitted that Abha had made several monetary
bequests in her Will, inter alia, to Ram Krishna Mission Vivekananda
University and to Mary. In Clause 7.1(iii) of the Will Abha said that she
wanted to ensure that after her lifetime, Mary was adequately secured
financially in order to take care of her daily expenses, health and other
necessary chores of life. Abha had bequeathed a sum of Rs. 5 crores to Mary in the Will. Abha was admittedly a joint holder along with
Mary of all of the accounts and investments which Mary today is
claiming to belong exclusively to her. As a joint holder, Abha should
have been aware of the fact that Mary was well off herself as she is
claiming. There was no need for Abha to make a bequest to Mary in
order to take care of herself. The language of the Will is such that
gives the impression that Abha was worried as to how Mary would meet
her daily expenses. This belies Mary''s contention that she was well off
and the monies in the joint accounts in which she is the first holder
belong exclusively to her.
(8) In her application being GA 3234 of 2012 in PLA 88 of 2012, in
paragraph 15, Mary has stated that she received an e-mail dated 10
April, 2012 from Anjan Chakraborty stating that a probate petition had
been filed by him in the Calcutta High Court. In paragraph 17 of the
application Mary states that on or about 12 April she was served with a
copy of the affidavit of assets affirmed by Anjan. Even after being
served with the affidavit of assets, Mary did not raise any objection
thereto. Bikash filed the application being GA No. 2679 of 2012 on or
about 26 September, 2012. Thereafter in or about November, 2012,
Mary filed her said application alleging that the affidavit of assets
affirmed by Anjan was erroneous and the affidavit of assets prepared by her should be accepted as the true and correct affidavit of assets.
There is no explanation as to why Mary did not immediately object to
the affidavit of assets affirmed by Anjan and filed with the probate
application.
(9) The Will provides for monetary bequests of Rs. 5 crores to Ram
Krishna Mission Vivekananda University (out of which Rs. 2 crores was
already paid during Abha''s lifetime) and Rs. 5 crores to Mary. In the
event it is held that the moneys in the bank accounts are exclusive
properties of the first holder, i.e. Mary, Abha''s Will will become
unworkable as sufficient moneys to cover all the dispositions will not
be available with the executor. Hence, Abha certainly treated the
moneys in all the bank accounts as her exclusive property and the
same appears from her conduct. Further, the Will authorises the
executor to operate the bank accounts (Clause 5(a) of the Will).
(10) Learned Counsel then submitted that admittedly the moneys
which have been withdrawn by Mary were lying in the joint accounts of
Abha and Mary. It is immaterial as to whether or not Mary is the first
holder of the said joint accounts. What is material is that the said
accounts are all joint accounts and none of the joint holders can claim
to be the exclusive owner of the moneys lying therein. A joint bank
account is a bank account in the names of two or more individuals (account owners) who jointly (equally) share its concomitant rights and
liabilities. Joint holders of a bank account are regarded in law as
together making up the ''owner''. If a fixed deposit or a savings bank
account is in joint names, it does not on the death of one, constitute a
gift to the survivor. There is a resulting trust in favour of the survivor,
there being no presumption of intended advancement in favour of the
survivor. The fact that the joint bank accounts in which the name of
Mary appeared as the first holder were taxed in Mary''s hands even
during the lifetime of Abha, is of no consequence. The same might
have been done with the consent of Abha and Mary for the purpose of
avoiding the rigours of tax laws.
(11) Even assuming but not admitting that Mary had brought her own
funds in the joint accounts in which her name appears as the first
holder, by the act of depositing the moneys in the joint names of Abha
and herself, Mary constituted the funds as the joint properties of Abha
and herself. In this connection learned Counsel relied on the following
decisions:-
(i) Smt. Dipali Biswas-vs.-Reserve bank of India, AIR 2006 Calcutta
137.
(ii) Mallesappa Bandeppa Desai-vs.-Desai Mallappa alias
Mallesappa, AIR 1961 SC 1268.
(iii) Krushanadas Nagindas Bhate-vs.-Bhagwandas Ranchhoddas, AIR
1976 Bombay 153.
(iv) Padmanabhan Bhavani-vs.-Govindan Bhargavi, AIR 1975 Kerala
83.
(v) State of Maharashtra-vs.-Pollonji Darabshaw Daruwalla, AIR
1988 SC 88.
(vi) Indranarayan-vs.-Roop Narayan, AIR 1971 SC 1962.
(vii) Goli Eswariah-vs.-Commissioner of Gift Tax, AIR 1970 SC 1722.
(12) Learned Counsel then submitted that whether the money lying in
the joint accounts belongs to Mary or not is a contentious issue and has
to be decided by way of a civil suit. In a probate proceeding the said
question cannot be gone into.
(13) Mr. Talukdar then submitted that Mary is one of the executors to
the last Will of Abha. As an executor it is her duty to preserve Abha''s
estate. Under Sec. 368 of the Indian Succession Act, 1925, when an
executor or administrator misapplies the estate of the deceased or
subjects it to loss or damage he is liable to make good the loss or
damage so caused. Mary is thus under an obligation to forthwith
refund all withdrawals made by her from the joint accounts held in the
names of Abha and herself.
(14) Learned Counsel submitted that it is true that Bikash is only a
residuary legatee. He is a world-renowned scientist and is extremely
well off himself. The present application has not been filed by him
merely for extracting money from Mary as she has contended. Bikash
is interested in ensuring that the estate of Abha is not wasted away
and is disposed of and administered according to her last wishes.
Hence, appropriate orders should be passed restraining Mary from
siphoning of the estate of Abha. The moneys already withdrawn by
Mary should be directed to be kept separately in a bank account.
(15) Learned Counsel further submitted that Abha also left behind
huge movable assets apart from the moneys in the bank accounts and
investments, including jewellery, paintings, artifacts etc. which are
also the subject matter of her Will. These assets were accretions of
Zamindari Estate of the famous Sinha family who are the Zamindars of
Paikpara, Kandi. These assets and accretions of the Zamindari Estate
had devolved on Abha and the details of the jewellery, gold ornaments
etc. mentioned in the affidavit of assets are correct. Hence, the
amendment of the affidavit of assets sought for by Mary with regard to
the various other movable assets, including jewellery etc. should not
be allowed.
(16) Learned Counsel finally submitted that Mary''s
application being GA No. 3234 of 2012 is liable to be dismissed. If Mary contends that any of her exclusive properties have been included in
the affidavit of assets filed with the probate application, she is at
liberty to resist the administration of the said properties by filing
appropriate civil proceedings at the appropriate stage. Detailed trial
has to be held and extensive evidence has to be taken for determining
as to who are the real owners of the properties which Mary is claiming
to be her own. Such detailed trial upon consideration of evidence
cannot be done by this Court and hence Mary''s application is liable to
be dismissed.
Contention of Mary:-
(17) Mr. Chaudhury, Learned Counsel appearing for Mary submitted
that the execution of the Will in question by Abha is admitted and
there is no dispute with regard to the genuineness of the said Will.
(18) Mary and Anjan were named as joint executors in the Will. Anjan
obtained all the details from Mary and also obtained payment of Rs.
2.5 lacs from Mary for the purpose of obtaining probate of the Will.
The dispute arose regarding the preparation of the affidavit of assets
wherein the personal assets of Mary were shown as the assets of Abha,
to which Mary objected.
(19) In the said background, Anjan filed the probate application with
the allegation that Mary was not co-operating as a joint executor and also sought orders of injunction on the bank accounts and other reliefs
in respect of Mary''s assets. Undisputedly, Mary is one of the
substantial beneficiaries under the Will in question.
(20) In the first application made by Anjan making allegations against
Mary being GA No. 998 of 2012, an interim order was passed restraining
Mary from withdrawing any amount from the bank accounts or term
deposits where Mary was the first holder. By an order dated 11 June,
2012, the earlier order was modified by permitting the joint executors
to operate the bank accounts and deal with the term deposits jointly
held in which Mary''s name appeared as the first holder, upon condition
that Mary would maintain accounts. Since the Will was not disputed as
the only natural heir of Abha being her son had pre-deceased her, the
application was disposed of by directing the joint executors and the
department to take expeditious steps to obtain probate of the Will.
However, no steps were taken by Anjan to obtain probate of the Will.
(21) Learned Counsel submitted that Anjan having failed to obtain
prohibitory orders in respect of the Mary''s bank accounts, he has set
up Bikash who is a residuary beneficiary under the Will. In his
application, Bikash has made the same allegations that Anjan had
made in his application. He submitted that paragraphs 10, 12 and 16
of Bikash''s application containing the allegations against Mary are identical with those of Anjan''s earlier application and have been
affirmed by Bikash as ''information received from Anjan Chakraborty''.
(22) In GA No. 2679 of 2012 i.e. Bikash''s application, initially, by an
order dated 3 January, 2013 a ceiling on withdrawal by the joint
executors was imposed and the same was subsequently modified by the
order dated 21 February, 2013 when Mary filed GA No. 3234 of 2012
disclosing in detail from the respective income tax returns as to which
accounts pertain to Abha and which accounts pertain to Mary. Details
of the funds were also disclosed and in that background, three
schedules were handed over which have been referred to as Box-A,
Box-B and Box-C in the order dated 21 February, 2013. Box-A contains
details of accounts exclusively of Abha and shown in her income tax
returns. Box-B contains particulars of details of bank accounts and
term deposits where Mary is the first holder. All such accounts shown
in Box-B have been declared in the income tax returns of Mary. In Box-
C, the particulars of a single joint account is mentioned where
notwithstanding the fact that Abha was the first holder, the same was
actually shown in the income tax returns of Mary. In the order dated
21 February, 2013, the Learned Judge, prima facie, held that Mary
would be allowed to operate the accounts shown in the Box-B and Box- C without any restriction and she was directed not to operate the
accounts shown in Box-A.
(23) Against the order dated 21 February, 2013, an appeal was
preferred and by an order dated 13 March, 2013, the undertaking given
by Mary through learned Senior Counsel was recorded in the manner
mentioned in the order. The appeal was disposed of by an order
dated 1 July, 2014 whereby the earlier order of 13 March, 2013 was
confirmed and the two applications were directed to be heard
expeditiously.
(24) Learned Counsel then submitted that the only issue in Abha''s
application is incorrectness of the affidavit of assets filed by Anjan
along with the probate application. He submitted that savings bank
account No. 408765413 held with Indian Bank where Mary is the joint
account holder, has all along been shown in the income tax returns of
Mary though Abha was the first holder and the said account has been
taxed in the hands of Mary. The funds in the said account belong
exclusively to Mary. Income tax returns of both Abha and Mary have
been disclosed by Mary, which would corroborate this submission. In
this connection Learned Counsel also relied on correspondence
exchanged between Mary and Abha on one hand and Indian Bank on the
other hand (pages 186-190 of Mary''s application). Reliance was also placed on Form No. 26AS being Mary''s tax statement under Sec. 203 AA
of the Income Tax Act for the financial year 2007-08 (page 183 of
Mary''s application). The said account is the one mentioned in Box-C in
the order dated 21 February, 2013.
(25) The particulars in respect of the accounts mentioned in Box-B
primarily relate to savings account No. 025-246448-006 held with the
HSBC Bank and some fixed deposits and term deposits wherein Mary is
the first holder and Abha was the second holder. The said particulars
have been stated in details in paragraphs 18(b) and 18(f) of Mary''s
application. The source of funds from sale of the property in United
Kingdom and investment in Meryll Lynch and subsequent transfer
thereof to HSBC bank has been explained in the said paragraphs, made
with the supplementary affidavit filed by Mary.
(26) Regarding the accounts mentioned in Box-A, there is no dispute
that the same have all along been shown in the tax returns of Abha and
actually form part of the estate of Abha.
(27) On the basis of the aforesaid submission, Learned Counsel
submitted that the affidavit of assets filed by Anjan is to be rectified
in the manner indicated in red ink in Annexure-V to Mary''s application.
He submitted that after such rectification, probate of Abha''s Will may
be granted.
(28) Learned Counsel further submitted that Abha all along
maintained three separate lockers in Indian Bank, Sarat Bose Road
Branch bearing Nos. 240, 13 and 136. The said three lockers stood in
the names of Abha as the first holder and Mary as the second holder.
After coming from England, instead of taking separate lockers, Mary
shared the lockers with Abha. Abha had already distributed her
jewellery during her lifetime and the balance was given to Mary. The
lockers, therefore, not only contain jewelleries given to Mary by Abha
but also personal jewellery of Abha. The valuables lying in the said
three lockers have not been inventorized till date. The Manager of
Indian Bank, Sarat Bose Road Branch, should be directed to cause the
said three lockers to be opened and inventorize the articles lying
therein and Mary should be given possession of the same.
(29) As regards the application filed by Bikash, learned Counsel
submitted that once it is established that the money and the accounts
in question belong exclusively to Mary and do not form part of the
estate of Abha, Bikash''s application is liable to be rejected. Bikash is
only a residuary legatee and would be only entitled to a part of the
estate of Abha only if something remains after giving effect to the
earlier bequests.
(30) Learned Counsel referred to Clause 7 of the Will wherein Abha
stated that in most of the accounts Mary''s name had been added as
the second joint holder for convenience. Hence, according to him, no
situation is envisaged where accounts of Mary being the first holder
would be treated as an asset of Abha because of simply being named as
the second holder. He further submitted that in terms of the bequests
and clause 7.1(ii) of the Will, out of a sum of Rs. 5 crores, Rs. 3 crores
have already been donated to Ram Krishna Mission during the lifetime
of Abha. A sum of Rs. 2 crores is outstanding. Mary is entitled to a
sum of Rs. 5 crores from the estate of Abha in terms of Clause 7.1(iii)
of the Will. After the bequests mentioned in Clauses 7 to 10 of the
Will are given effect to, Bikash gets 35 per cent of the residual assets,
if there be any residuary.
(31) Learned Counsel submitted that the real reason of Bikash being
instigated by Anjan to create a contest in a matter where there is
absolutely no dispute, is an attempt to obtain some money on the
purported pretext of settling the matter as it is evident that the
residuary legatee would not receive any fund in the event two prior
bequests are given effect to including the disbursement of a further
sum of Rs. 2 crores to Ram Krishna Mission and disbursement of Rs. 5
crores to Mary out of the assets of Abha. For this oblique purpose, the assets of Mary have been sought to be included in the affidavit of
assets annexed to the probate application.
(32) Learned Counsel finally submitted that it is absurd to suggest
that by reason of the name of Abha being mentioned in the joint
accounts, the same becomes part of Abha''s estate by operation of law.
It has been demonstrated by placing reliance on the income tax returns
of Abha and Mary as to how they themselves treated such accounts.
The other submission of Learned Counsel for Bikash that the money
lying in the accounts of Mary has been obtained from the joint family
properties of her husband is without any basis and bereft of any
particulars. On the basis of the aforesaid submissions, learned
Counsel submitted that the application of Bikash should be rejected
and the application of Mary should be allowed.
Court''s View:-
(33) I have carefully considered the rival contentions of the parties.
(34) In short, the contention of Bikash is that Mary withdrew various
sums of money from the joint accounts held in the name of Mary and
Abha. The moneys that she withdrew belonged to Abha and
accordingly formed part of Abha''s estate and hence Mary must pay
back/deposit all such moneys withdrawn by her. Learned Counsel for
Bikash relied on several decisions as regards the effect of demise of
one of the joint holders of a Bank account. In Indranarayan-vs.-Roop Narayan (supra), the Hon''ble Apex Court in paragraph 23 of the
judgment observed as follows:-
"23. In Guran Ditta v. Ram Ditta, ILR 55 Cal 944: AIR 1928 PC 172, the Judicial Committee held that the deposit made by a Hindu of his money in a bank in the joint names of himself and his wife, and on the terms that it is to be payable to either or the survivor, does not on his death constitute a gift by him to his wife. There is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife. The same view was expressed by the Judicial Committee in Pandit Shambhu Nath Shivpuri v. Pandit Pushkar Nath, 71 Ind App 197 : AIR 1945 PC 10"
(34) In Padmanabhan Bhavani-vs.-Govindan Bhargavi (supra), the
Kerala High Court after discussing several decisions including those of
the Hon''ble Apex Court observed as follows:-
"From the above discussion the following propositions emerge (i) A deposit made by a Hindu of his money in the joint names of himself and his wife or any other person, on the terms that it is payable to either or survivor, does not on his death constitute a gift by him to the other person. (ii) In such a case without any declaration of trust, there is a resulting trust in favour of the depositor in the absence of any contrary intention or unless it can be proved that an actual gift of the amount was intended. (iii) The principle of English Law that a gift to a wife is presumed, where money belonging to the husband is deposited at a Bank in her name or where a deposit is made, in the joint names of both husband and wife has no application in India. In other words, there is no presumption in India of an intended advancement as there is in England. (iv) The burden of proving a contrary intention or gift is on the person who seeks to rebut the resulting trust in favour of the person who makes the deposit. (v) This burden could be discharged either by proving that there was a specific gift or that the owner of the money had a general intention to benefit the claimant and that it was in pursuance of that intention that he made the deposit in the claimant''s name or transferred the deposit to the joint names of himself and the claimant. (vi) In the absence of such proof the amount under the deposit will form part of the owner''s estate on his death and will be partible among the heirs."
(35) On the contrary, the short contention of Mary is that bank
accounts have been shown in the affidavit of assets filed with the
probate application, the moneys lying wherein belong exclusively to
Mary and hence should be deleted from the affidavit of assets.
Learned Counsel has relied on several documents to try and
substantiate his contention that Mary is the sole and exclusive owner
of the moneys in the said bank accounts.
(36) I have noted the arguments of learned Counsel for Bikash and
Mary in extenso. However, I need not deal with the same in detail for
the reasons stated hereinafter.
(37) A probate court is required to decide whether the Will in
question was the last Will of the testator, whether the same was duly attested by at least two witnesses and whether the testator had
mental capacity to execute the Will. The Probate Court has also the
jurisdiction to consider whether execution of the Will was vitiated by
fraud, undue influence, coercion etc. being practised upon the testator
or whether the Will was executed by the testator under some mistake
or induced by false representation. It is settled law that a Probate
Court is not entitled to go into the question as to whether or not the
testator had title or possession in respect of the property covered by
the Will. The probate granted by a Testamentary Court does not
establish that the testator had title to the property covered by the
Will. As observed by a Learned Single Judge of this Court in Smt.
Sabita Dey-vs.-Neeraj Estate Pvt. Ltd., 1999 (1) CHN 65, the probate
merely denotes that the estate of the testator will not devolve upon
the natural heirs according to the ordinary laws of succession by which
the testator was governed but will devolve upon the beneficiaries of
the Will according to the wish of the testator reflected in the Will.
The same view has been expressed in the case of Jiban Kumar Das-vs.-
Bijoy Kumar Mukherjee, (2000) 1 CLT 560 (HC).
(38) As early as in 1948 it was held by a learned Judge of this Court in
the case of In The Goods of Musstt. Suraj Bai (Deceased), 52 CWN
914, that a proceeding for probate under the Indian Succession Act is not a proper suit, although it is marked as a contentious cause under
our Rules. In such a proceeding, the only question which the Court is
called upon to determine is whether the Will is true or not and
whether the person making the Will had a sound disposing mind and it
is completely outside the Court''s purview to determine any question of
title with regard to the properties covered by the Will. It is not the
duty of the Probate Court to consider any issue as to the title of the
testator to the property with which the Will in question purports to
deal or as to what disposing power the testator may have possessed
over such property or as to the validity of the bequests made. It would
be most injudicious to upset the settled practice of this court which
has been uniformly followed since a long time and for the
Testamentary Court to embark on the adjudication of difficult
questions as to the ownership of the properties bequeathed by a Will.
(39) In the case of Mrs. Hem Nolini Judah (Since Deceased)-vs.-Mrs.
Isolyne Sarojbashini Bose, AIR 1962 SC 1471, our Apex Court
observed that questions of title are not decided in proceedings for the
grant of probate or letters of administration. Whatever happens in
probate proceedings would not establish the title to the property
covered by the Will in favour of anybody.
(40) From the aforesaid authorities it is absolutely clear that the
Probate Court has no authority or jurisdiction to decide questions of
title. If a Will purports to deal with a property which belongs not to
the testator but to somebody else, the remedy of that person is to
approach the Civil Court to establish his right of ownership in respect
of such property. Such person cannot seek to enlarge the scope of the
probate proceeding by applying before the Probate Court to exclude
his/her property from the affidavit of assets. Such person has to
establish his/her right to such property in an appropriately constituted
civil suit following due process of law. Even if I grant probate of the
Will executed by Abha, which I propose to do, the same will not
conclusively establish that the properties mentioned in Abha''s Will or
in the affidavit of assets, belonged to Abha. It would be open to Mary
to approach the Civil Court to establish her right in respect of the
moneys in the concerned bank accounts of which she claims exclusive
ownership. It is not a corollary or a consequence of grant of probate
of a Will that the properties mentioned in the Will or in the affidavit of
assets filed with the probate application belonged absolutely and
exclusively to the author of the Will.
(41) Similarly, if Bikash is aggrieved by withdrawal of moneys by Mary
from the joint accounts held in the name of Abha and Mary because according to him such moneys belonged to Abha and should form part
of Abha''s estate, then Bikash has to approach a Civil Forum to
establish his case and to obtain an order directing Mary to return such
moneys to Abha''s estate. Such issue cannot be considered in a probate
proceeding.
(42) I am of the firm and clear opinion that the rival claims made by
Bikash and Mary in their respective applications are completely beyond
the scope and ambit of the present probate proceeding. I would be
transgressing my jurisdiction as a Probate Court if I venture to
adjudicate upon such disputed rival claims of Bikash and Mary. I
reiterate that it will be open to both of them to establish their
respective claims in an appropriately constituted proceeding before
the Civil Forum.
(43) In view of the aforesaid, I am unable to pass any order in GA Nos.
2679 of 2012 and 3234 of 2012 except to the extent hereinafter stated.
Re: PLA 88 of 2012
(44) The Will of Abha of which probate has been applied for is dated
28 March, 2011. It is a well-drafted Will and clearly mentions the
manner in which Abha wanted her estate to be administered. The
beneficiaries have been identified with sufficient precision. The
language of the Will is unambiguous and clearly indicates that Abha
was fully conscious as to how she was devising/bequeathing her properties. She stated that the said Will was her last Will. The Will
has been witnessed by three persons. There does not appear to be
any suspicious circumstances surrounding the execution of the Will.
Over and above all, nobody has come forward to challenge the validity
or authenticity of the said Will. There is nothing unnatural about the
Will. No caveat was filed by anybody. As per the certificate of the
Registrar, Original Side, Testamentary and Intestate Jurisdiction issued
on 4 April, 2012, there is no intimation from any other High Court or
any District Court in India of grant of probate of any Will or letters of
administration of the property and credits of Abha Rani Sinha.
(45) In view of the aforesaid, I find no reason to withhold grant of
probate of the said Will.
(46) However, I am not inclined to grant probate in favour of Anjan
alone who is one of the joint executors named in the Will. Mary is the
other joint executor named by Abha in her said Will. Further, in
Mary''s application being GA No. 3234 of 2012 she has prayed for
probate of the said Will in favour of the joint executors being Anjan
and herself.
(47) Accordingly, the Will dated 28 March, 2011 made and published
by Abha Rani Sinha is admitted to probate. Probate in respect of the
said Will of the deceased is granted to Anjan Chakraborty and Mary Catherine Sinha being the joint executors named in the said Will
limited to the estate mentioned therein with effect throughout the
Union of India without requiring the joint executors to furnish any
security therefor. Costs of PLA No. 88 of 2012 shall come out of the
estate of the deceased.
(48) PLA No. 88 of 2012 and the two GA Nos. being 2679 of 2012 and
3234 of 2012 are accordingly disposed of.
(48) Urgent certified photocopy of this judgment and order, if applied
for, be given to the parties upon compliance of necessary formalities.