- (1.) This is to consider an application filed by Bhagwati Prasad Agarwal and his wife Smt. Madhuri Agarwal.
(2.) The petitioners' case in brief is that one Mrinal Chakraborty by suppressing facts and without complying with the mandatory provisions of Indian Succession Act and the Original Side Rules of this Court relating to testamentary matters obtained probate on 18th December, 1996 in respect of an alleged Will dated 15th September, 1995, alleged to have been executed by one Sita Chakraborty, since deceased. It is claimed by the petitioners that prior to her death Sita Chakraborty made and published her last Will and Testament dated 10th October, 1995 in English Language at Lucknow whereby she appointed Bhagwati Prasad Agarwal, the petitioner No. 1, the sole Executor of the Will bequeathing all her assets to Smt. Madhuri Agarwal, the petitioner No. 2. After the death of Sita Chakraborty an application for grant of probate of the said Will dated 10th October, 1995 was filed by Bhagwati Prasad Agarwal as an Executor thereof in the Court of District Judge, Lucknow. On 20th September, 1996 probate was granted. It is also stated that one Nani Bhusan Chakraborty was the father of Smt. Madhuri Agarwal. Nani Bhusan was the elder brother of Indu Bhusan Chakraborty and Sita Chakraborty was the wife of Indu Bhusan Chakraborty. The petitioner No. 1 is the husband of Smt. Madhuri Agarwal. Sita Chakraborty was the owner of Flat No. C-3 at 3, Middleton Row, Calcutta Municipal Corporation No. A-3/3C, Sir William Jones Sarani, Apsara Co-operative Housing Society Ltd., Calcutta. After getting the probate Madhuri Agarwal caused a letter dated 25.4.1996 to be written by her Advocate to the President/Secretary of the said Apsara Co-operative Housing Society Ltd. to intimate the formalities to be observed by the petitioners for recording of transfer of the said Flat No. C-3 in favour of the petitioner No. 2. In reply dated 10th May, 1996, the Chairman of the said Co-operative Housing Society Ltd. requested the Advocate of the petitioners to submit certain documents to enable them to proceed with the formalities of transfer and recording of the name of petitioner No. 2 as owner thereof. Thereafter the petitioners were surprised by a letter dated 7th January, 1997 written by the Hony. Secretary of the said Co-operative that one Mrinal Chakraborty had obtained an order dated 18th December, 1996 from the Calcutta High Court granting probate in his favour of an alleged Will dated 15th September, 1995 executed by the deceased Smt. Sita Chakraborty claiming himself as the only legal heir of the said Sita Chakraborty and accordingly the said Co-operative expressed its inability to transfer the said Flat in the name of the petitioner No. 2 until such time the order of this Court obtained by the respondent is set aside. The petitioners started searching the records having applied for the certified copies of the relevant records of the instant case and received the same.
(3.) It is stated in the petition that the respondent is not the heir or legal representative of the deceased Sita Chakraborty at all in case Sita Chakraborty died intestate. It is also claimed that the respondent had falsely alleged that his father Makhan Lal Chakraborty since deceased was the brother of late Indu Bhusan Chakraborty. It is claimed that Indu Bhusan had no natural brother by the name of Makhan Lal Chakraborty. It is also stated that Nani Bhusan Chakraborty also known as Nani Gopal Chakraborty was the only natural brother of Indu Bhusan since deceased. It is also stated that in order to avoid issuance of citation and to deprive the petitioners who reside at Lucknow, of the opportunity of contesting the proceeding in respect of the alleged Will the respondent Mrinal Chakraborty falsely alleged that he was the only heir of the deceased Smt. Sita Chakraborty.;