BABY DEY Vs. SHRI BIRENDRA KR. DUTTA

JUDGEMENT

(1.) CLAIMING to be sole executrix, named in the last will of one Ananta Kumar Dutta of 21, R.K. Chatterjee Road, P.S. Kasba, Kolkata -700 042 dated August 16, 2000, Baby, one of Ananta's children, filed an application dated May 17, 2002 seeking probate with effect throughout the Union of India.

(2.) THE application was registered under P.L.A. No. 206 of 2002. Case stated in it, briefly, is this. Ananta, who died on March 26, 2001, was governed by the Dayabhaga school of Hindu law. On August 16, 2000 he executed his last will at 21, R.K. Chatterjee Road, P.S. Kasba, Kolkata - 700 042 in presence of four attesting witnesses one of whom was Timir Dutta, his youngest son. A declaration dated May 17, 2002 duly signed by Timir is an annexure to the application that is also accompanied by an affidavit affirmed by Timir on May 17, 2002. Ananta was survived by his three sons and three daughters, namely, Birendra, Ashoke, Timir (the sons), and Rekha, Subhra, Baby (the daughters). It is necessary to issue special citation to Birendra, Ashoke, Rekha and Subhra.

(3.) CASE stated by Birendra and Subhra, in the affidavit, is as follows. At the time of death Ananta was eighty -six. He was a permanent resident of village -Madhubati, post office - Balarambati, police station - Singur, in the district -Hooghly, but used to visit 21, R.K. Chatterjee Road, the residence of his eldest son Birendra, and stay there. Because of bad behaviour of Baby and her husband, he suffered a mental setback and was not in a normal state of mind. The Will, if actually executed by him, then Baby and her husband Madan must have dictated its execution; this is apparent from the fact that Baby has been named as its sole beneficiary. The attesting witnesses, except Timir, were unknown to Ananta. Their signatures were obtained by Baby's husband with the help of some political person and through his own| physician. Ananta had his own family doctor who used to treat him during his lifetime. It has been falsely claimed that the Will was executed at 21, R.K. Chatterjee Road. On August 16, 2000 Ananta was not staying at 21, R.K. Chatterjee Road. The Will was never executed at 21, R.K. Chatterjee Road Hence the question of visiting the premises by the attesting witnesses does not and cannot arise. Mr. N.C. Chowdhury never visited the premises. He signed as an attesting witness at the request of his junior, Mr Anil Bera, who is the draftsman of the Will. Mr. Jayanta Kr. Deb another attesting witness was not present either when the Will was executed. The residential plot, the bequest, allotted by the State of West Bengal to Ananta, who did not comply with the terms and conditions of the lease, could not be disposed of by him by executing a Will.