Arijit Banerjee, J. - (1.) This testamentary suit and an application filed by the defendant have been heard together. I propose to dispose of the defendant's application first before deciding the issues framed in the suit. Re: G.A. No.1745 of 2013 1. The defendant has taken out this application contending that the plaintiff is holding certain Relief Bonds, Insurance Policies, Shares and Debentures which are in the name of the defendant and/or wherein the defendant is named as the sole beneficiary. The defendant relies on a letter dated 12 January, 2005 written by the plaintiff to her in this regard. The defendant has mentioned the particulars of the said instruments in Annexure - B to the application. The defendant claims delivery of the said instruments to her. 2. It has been submitted on behalf of the plaintiff that the said letter was written when there were talks of settlement going on between the parties but eventually the same did not materialize. It was submitted that the Relief Bonds, Insurance Policies, Shares and Debentures in which the defendant's name appears as the nominee do not belong to the defendant. As the nominee of the testator, the defendant holds such moveable assets or any accrual thereto for the benefit of the person entitled to it under the relevant laws of succession. It was submitted that if the plaintiff succeeds in the testamentary suit, then the said assets of the testator would devolve upon the plaintiff as the sole beneficiary in spite of the defendant being named as nominee in the instruments in question. In this connection learned counsel for the plaintiff relied on the decision of the Hon'ble Supreme Court in Smt. Sarbati Devi and Anr. v. Smt. Usha Devi, 1984 1 SCC 424 in support of the contention that a mere nomination does not have the effect of conferring on the nominee any beneficial interest in the amount payable under a life insurance policy on the death of the assured. The nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. On the death of the policy-holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. A nominee cannot be treated as being equivalent to an heir or a legatee. The amount received under the policy can be claimed by the heirs of the assured in accordance with the law of succession governing them. For the same proposition reliance was also placed on the decision of the Hon'ble Supreme Court in V. N. Khanchandani v. Vidya Lachmandas Khanchandi, 2000 6 SCC 724. 3. It was further submitted on behalf of the plaintiff that the movable assets mentioned in the plaintiff's letter dated January 12, 2005 can be divided into two categories. The first category comprises assets mentioned in the letter which have been subsequently included in the affidavit of assets filed along with the probate petition, i.e., the movable assets belonging to the first category form part of the testator's estate. The second category comprises assets which allegedly are in the name of the defendant, and, therefore, not part of the estate of the testator. As regards the first category of assets, the persons on whom such movable assets would devolve would depend upon outcome of the testamentary suit. By claiming delivery of such assets the defendant is disputing the title of the testator to such assets. This dispute cannot be gone into by the probate Court. In this connection reliance was placed on the decisions of the Hon'ble Supreme Court in the cases of Hem Nolini v. Isolyne Sarojbashini, 1962 AIR(SC) 1471 and Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., 1993 2 SCC 507. 4. As regards the second category of the assets which allegedly are in the defendant's name, it was submitted that the same do not belong to the estate of the testator. Hence, any prayer in respect of such assets made by the defendant cannot be entertained in the instant probate proceeding. 5. I have considered the rival contentions of the parties. I am inclined to accept the submission made on behalf of the plaintiff. As regards the first category of assets there appears to be a dispute as to whether the same belong to the estate of the deceased or to the defendant. This dispute as regards title cannot be gone into by the probate Court since the probate Court does not decide the question of title to properties. As regards the second category of assets, since they are not part of the estate of the deceased, in my opinion, it would not be proper for the Court to entertain any prayer in respect thereof in this probate proceeding. The scope of the present testamentary suit is limited. The Court has to decide only whether or not, the Will which is being propounded by producing an authenticated photocopy thereof, is genuine. If the Will is admitted to probate, consequences will follow in accordance with law. The present application is, in my opinion, beyond the scope of the testamentary suit. I am not inclined to pass any order on this application and the same is dismissed. Interim order, if any, passed on this application, shall stand vacated. Needless to say, if the defendant has any claim to any of the movable properties mentioned in this application, she shall be at liberty to take appropriate steps for enforcing such claim before the appropriate forum in accordance with law. 6. G.A. No.1745 of 2013 is accordingly disposed of. Re: T.S. No.05 of 2007, PLA No.116 of 2004 1. One Pravin Kumar Kothari (hereinafter referred to as "Pravin") operated as a sub-broker at the Calcutta Stock Exchange. He had two children, one son Ashok Kothari (hereinafter referred to as "Ashok") and one daughter Dipti Bavishi (hereinafter referred to as "Dipti"). Till the year 2000 Pravin lived mostly in Calcutta. Both his children had settled down in the United States of America ("U.S.A."). Pravin had done well in life. In October, 1999 Pravin's wife Kushum Kothari, passed away in Ashok's house in Richland Hills, Texas, U.S.A. In April, 2000, Pravin came to Calcutta after a visit to U.S.A. to wind up his affairs. On August 29, 2000 Pravin executed a document which Ashok claims is Pravin's last Will and Testament. In the present proceeding Ashok has prayed that the said Will be admitted to probate.
(2.) Pravin died in Texas, U.S.A., on 10 February, 2004. Ashok applied for probate of the said Will in this Court in April, 2004, by filing P.L.A. No. 116 of 2004. It appears that although the Special Citation issued on 23 April, 2004 was dispatched from the Sheriff's office for being served by registered post on Dipti at her U.S.A. address, the package containing the Special Citation was returned to the Office of the Sheriff, Calcutta High Court with the remark 'refused'. On 23 September, 2004, the said Will of Pravin was probated by this Court. On or about February 7, 2005, Dipti filed G.A. No. 389 of 2005 praying for revocation of grant of probate of Pravin's said Will. By a judgment and order dated February 20, 2006 passed by a Learned Single Judge, the grant of probate was revoked. Ashok's appeal against the said judgment and order was dismissed by a Division Bench of this court by a judgment and order dated 18 August, 2006. Subsequently, Dipti filed an affidavit in support of the caveat which she had lodged. The probate application became a contentious cause and was registered as T.S. No. 5 of 2007. By an order dated 19 June, 2008 a Learned Judge of this Court framed the following issues for adjudication: "1) Whether this court has jurisdiction to receive, try and determine the probate application? 2) Whether on the basis of the copy of the alleged Will a probate can at all be granted? 3) Whether there was any codicil to the alleged Will? 4) If probate can be granted on the basis of the copy of the alleged Will produced by the plaintiff, then whether he is entitled to grant of probate?"
(3.) Evidence was adduced by Ashok, Dipti, one Ganshyam Das Kejriwal (one of the two attesting witnesses) and one Raj Kumar Agarwal (the other attesting witness). By his Will, Pravin bequeathed all his properties movable and immovable, to Ashok and his wife Urvashi, except the amount of Rs.31 Lakhs which Pravin bequeathed to his daughter Dipti.;