R.K. Bag, J. - (1.) The plaintiff Swagata Dutta @ Swagata Dutta Bhattacharyya has prayed for grant of probate of the last Will and Testament of the deceased Susanta Bala Dey dated July 29, 2005 in respect of her estate and properties. Susanta Bala Dey died on November 7, 2005 leaving behind Ganesh Chandra Dey - son, Gitasri Dutta - daughter, Suparna Daw - daughter of predeceased daughter Aparna Dey and Nilanjana Halder, daughter of predeceased daughter Aparna Das as legal heirs. The deceased Susanta Bala Dey had permanent place of residence at 5A, Pramanik Ghat Lane, Kolkata 700036 which is outside the jurisdiction of City Civil Court at Calcutta, but within the State of West Bengal. The Will executed by Susanta Bala Dey was attested by Paban Mondal and Ranjit Kumar Sen. The properties bequeathed by the Will are situated partly within the jurisdiction of the Original Side of the High Court at Calcutta and partly outside the jurisdiction of High Court at Calcutta, but within the State of West Bengal. The plaintiff being the executrix of the Will has prayed for grant of probate of the Will by filing consent affidavit of Gitasri Dutta.
(2.) The consent affidavit is filed only by the beneficiary of the Will, but defendant Ganesh Chandra Dey has filed affidavit in support of the caveat in order to contest the probate proceeding. The defendant Ganesh Chandra Dey has challenged the genuineness of the Will executed by Susanta Bala Dey in respect of her estate and properties. It is contended that Susanta Bala Dey was suffering from various ailments and she was not mentally fit at the time of execution of the Will on July 29, 2005. The specific contention of the defendant Ganesh Chandra Dey is that the testatrix Susanta Bala Dey was not aware of the contents of the Will as she had no sound disposing mind at the time of execution of the Will on July 29, 2005. Accordingly, the defendant Ganesh Chandra Dey has prayed for dismissal of the suit.
(3.) This Court gave ample opportunity to the defendant to contest the suit by adducing evidence. On November 10, 2016 this Court directed learned Counsel for the plaintiff to intimate the Advocate on record for the defendant about the next date of hearing of the suit. Accordingly, learned Counsel for the plaintiff gave notice in writing to the Advocate on record for the defendant on December 9, 2016 but the Advocate on record for the defendant refused to accept the notice as reflected from the affidavit filed on behalf of the plaintiff. Moreover, the Advocate on record for the plaintiff gave one notice to the defendant directly by registered post with acknowledgement due in compliance with the direction given by this Court and the said notice was duly received by the defendant as reflected from the tracking report annexed to the affidavit of service filed on behalf of the plaintiff. The defendant did not avail of the opportunity to cross-examine the witnesses examined on behalf of the plaintiff. Nor has the defendant adduced any evidence in support of the pleading and as such I am compelled to dispose of the instant proceeding. Other legal heirs namely Suparna Daw and Nilanjana Halder received the Writ of Summons but did not enter appearance in this suit.;