A.K.BANERJI, J. - (1.) BY means of this petition under Section 276 of the Indian Succession Act (the 'Act' in short) Hitendu Madhava Bhattacharya (the petitioner) has prayed for the grant of probate of the Will dated 31st October, 1983 alleged to be executed by late Smt. Vasuki Bala Devi (testatrix) in favour of the wife of the petitioner namely, Smt. Jyotsna Bhattacharya.
(2.) BRIEFLY stated the petitioner's case as set out in the petition is that one Devendra Nath Chatterji had executed a Will dated 8.11.1935 for the administration of his properties situate at Varanasi, one of which property was endowed in favour of the diety Sri Radha Govindjee. In the said Will Sri Devendra Nath Chatterji had nominated three executors, out of whom one was Smt. Vasuki Bala Devi, who was his niece. The Will also gave a right to the executors to nominate their successors. Smt. Vasuki Bala Devi executed a Will dated 31st October, 1983 by virtue of which she nominated Smt. Jyotsna Bhattacharya (wife of the petitioner) to be the executor of the Will dated 8.11.1935 in her place and also appointed the said Smt. Jyotsna Bhattacharya as the she wait of the diety. It is stated that Jyotsna Bhattacharya died intestate all of a sudden on 24.6.1991 and, therefore, could not execute any Will or appoint any successor. Consequently, the petitioner as the husband of Smt. Jyotsna Bhattacharya had to file the present petition praying for the grant of probate of the Will dated 31.10.1983.
(3.) NOTICE was issued to Sri Bireshwar Chatterji (opposite party) on whose behalf a short counter affidavit was filed initially stating that the present petition by the petitioner was not maintainable on the ground, firstly, that the original Will dated 31.10.1983 was not filed. Secondly, a Testamentary Case No. 5 of 1991 was filed by Jyotsna Bhattacharya in this Court which was dismissed on 15.3.1991. Thirdly, the petitioner had in different proceedings been asserting the ownership over the property in question and was also claiming that the Will dated 31.10.1983 was in his favour and lastly that the petitioner had no locus standi to file the present petition which was also not maintainable in law. Subsequently a detailed counter affidavit was filed elaborating the grounds mentioned in the short counter -affidavit and giving further details. Rejoinder affidavit to both these counter -affidavits were filed by the petitioner. I have heard Mr. S.K. Misra, learned Counsel for the petitioner and Mr. M.C. Dwivedi, learned Counsel appearing for the contesting opposite party regarding the preliminary objection about the maintainability of the present petition. Mr. Dwivedi has strongly pressed the grounds taken in the counter affidavit regarding the maintainability of the petition. I find force in the said submissions. It is noteworthy that along with the petition a photostat copy of the alleged Will of the testatrix dated 31.10.1983 has been filed. The original is not before the Court. The photostat copy of the Will is not admissible and no probate can be granted on the basis of the said photostat copy. In the counter -affidavit, however, it has been submitted that the original Will be filed whenever demanded by the Court. I am of the view that it is not for the Court to demand the original, if the party is claiming a probate on the basis of the original Will which is in the possession of the said party it has to file the same. It is another matter that the Court permits the original to be kept in a separate sealed cover. The petition is, therefore, technically defective. That apart, it has not been denied that Jyotsna Bhattacharya had filed the Testamentary Case No. 5 of 1991 before this Court for probate of the alleged Will dated 31.10.1983. This petition was dismissed for default. It has been stated in the petition that Jyotsna Bhattacharya died on 24.6.1991. It appears that a restoration application had been filed but the same had not been disposed of when the present petition was filed before this Court. The position therefore emerges is that while on one hand application for restoring the Testamentary Case No. 5 of 1991 was filed and was pending for consideration before the Court, another petition, this time by the husband of Smt. Jyotsna Bhattacharya was filed in effect for the same relief as in Testamentary Case No. 5 of 1991. Further, in the present petition, it was not disclosed that Jyotsna Bhattacharya had filed a petition in respect of the same Will which was dismissed for default by this Court and a restoration application was pending. The petitioner has, therefore, concealed material facts and has not approached this Court with clean hands. On this ground also the relief could be refused to the petitioner. Apart from the same, the prayer made in the petition is also defected inasmuch as no probate of the Will dated 31.10.1983 could be granted either in favour of Smt. Jyotsna Bhattacharya or in favour of the petitioner as in the alleged Will dated 31.10.1983 none of them were appointed executors of the said Will dated 31.10.1983.;