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Bhavani and Others Vs. Govind Bhargavi and - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Judge
AppellantBhavani and Others
RespondentGovind Bhargavi and
Excerpt:
in the high court at calcutta testamentary & intestate jurisdiction original side pla88of 2012 ga2679of 2012 ga3234of 2012 in the goods of abha rani sinha @ abha sinha (deceased) before for the petitioner : the hon’ble justice arijit banerjee : mr.sabyasachi chaudhury, adv.mr.rajarshi dutta, adv.mr.sayantan bose, adv.ms.sreemoyee purkayastha, adv.for bikash sinha : mr.samit talukdar, adv.mr.p.sinha, adv.mr.ayan de, adv.mr.j.roy, adv.heard on : 23.12.2015, 18.02.2016, 19.07.2017, 05.10.2016, 15.11.2016, 22.11.2016 15.12.2016, 03.01.2017, 10.01.2017 cav on : 16.01.2017 judgment on : 23.08.2017 arijit banerjee, j.:(1) pla no.88 of 2012 has been filed by one of the joint executors of a will dated 28 march, 2011 executed by one abha rani sinha of 2/8b, sarat bose road, police station.....
Judgment:

In The High Court At Calcutta Testamentary & Intestate Jurisdiction Original Side PLA88of 2012 GA2679of 2012 GA3234of 2012 In The Goods of Abha Rani Sinha @ Abha Sinha (Deceased) Before For the petitioner : The Hon’ble Justice Arijit Banerjee : Mr.Sabyasachi Chaudhury, Adv.Mr.Rajarshi Dutta, Adv.Mr.Sayantan Bose, Adv.Ms.Sreemoyee Purkayastha, Adv.For Bikash Sinha : Mr.Samit Talukdar, Adv.Mr.P.Sinha, Adv.Mr.Ayan De, Adv.Mr.J.Roy, Adv.Heard On : 23.12.2015, 18.02.2016, 19.07.2017, 05.10.2016, 15.11.2016, 22.11.2016 15.12.2016, 03.01.2017, 10.01.2017 CAV On : 16.01.2017 Judgment On : 23.08.2017 Arijit Banerjee, J.:(1) PLA No.88 of 2012 has been filed by one of the joint executors of a Will dated 28 March, 2011 executed by one Abha Rani Sinha of 2/8B, Sarat Bose Road, Police Station Ballygunge, Calcutta 700020 who died on 28 June, 2011.

The applicant prays for probate of the said Will in his favour.

GA No.2679 of 2012 has been filed by one Dr.

Bikash Sinha claiming to be nephew of and also one of the beneficiaries under the said Will.

The prayers in this application are as follows:“(a) The said Mary Catherine Sinha be directed to deposit all moneys withdrawn by her from the joint accounts of the testatrix in various banks and other investments on and after June 28, 2011 with the Registrar, Original Side, High Court, Calcutta; (b) An order be passed for deposit of the Passport of Mary Catherine Sinha with the Registrar, Original Side, High Court, Calcutta forthwith; (c) Injunction restraining Mary Catherine Sinha from operating any of the bank accounts or other instruments/accounts wherein her name appears as a joint account holder along with that of the testatrix; (d) Injunction restraining Anjan Chakraborty and Mary Catherine Sinha who are named as the executors of the Last Will and Testament dated March 28,2011 made by Late Abha Rani Sinha from alienating, selling, depositing of, transferring, dissipating, realizing, withdrawing or howsoever otherwise dealing with any of the assets and properties including bank accounts of the said Testatrix; (e) Anjan Chakraborty and Mary Catherine Sinha, the executors named in the Last Will and Testament of the testatrix be directed to disclose particulars and details of all bank accounts and other investments whenever the said executors or either of them may be a joint holder of such account/instrument along with the testatrix and to submit an account of all transactions therein since the death of the testatrix viz.

June 28, 2011; (f) Your petitioner or such other person as this Hon’ble Court deems fit and proper be appointed Administrator pendent lite over and in respect of the estate of Late Abha Rani Sinha including the assets and properties of the said deceased as mentioned more fully and particularly in the affidavit of assets affirmed by Anjan Chakraborty on 23rd March, 2012 and filed in PLA No.88 of 2012 which is annexure ‘E’ hereto; (g) Order dated June 11, 2012 passed by this Hon’ble Court be recalled;” GA No.3234 of 2012 has been filed by one Mary Catherine Sinha, the other joint executor of the said Will pray for the following orders:“(a) An order be passed directing the Manager of the Indian Bank, Sarat Bose Road Branch to cause the three lockers bearing Nos.240, 13 and 136 to be opened and the valuables, goods and/or articles lying thereat be inventorised and leave be given to your petitioner to take possession thereof; (b) The affidavit of assets being annexure ‘V’ thereto prepared by the petitioner be taken on record and the same be treated as the true and correct affidavit of assets of the said deceased; (c) Probate of the Will dated 28th March, 2011 be granted to the petitioner and Anjan Chakraborty, being the joint executors in terms of the affidavit of assets being annexure ‘V’ hereto jointly” (2) I propose to dispose of the two applications fiRs.before considering the application for probate.

Re: GA No.2679 of 2012 (Application of Bikash Sinha) and GA3234of 2012 (Application of Mary Catherine Sinha) Contention of Bikash:- (3) Learned Counsel for the Bikash Sinha (in short ‘Bikash’) submitted that after the death of Abha Rani Sinha (in short ‘Abha’).Mary Catherine Sinha (in short’ Mary’) had been withdrawing substantial sums of money from the joint accounts held in the names of Abha and Mary which according to learned Counsel comprise part of Abha’s estate.

From the documents obtained from Anjan Chakraborty (in short ‘Anjan’) being one of the joint executors of Abha’s Will, it transpired that out of the total sum of Rs.14,32,01,279/- lying in the bank accounts in the joint names of Abha and Mary as on the date of Abha’s death, Mary had withdrawn a sum of Rs.8,47,46,845/-.

Particulars of the bank accounts along with the credit balances therein as on the date of Abha’s death i.e.28 June, 2011 and as on 31 January, 2012 have been given in the form of a chart at page 10 of the application of Bikash.

(4) On the Bikash’s application an order dated 21 February, 2013 was passed by a Learned Single Judge, operative portion whereof reads as follows:“Mr.Pratap Chatterjee, learned Senior Counsel appearing for Dr.

Bikash Sinha cited Padmanbhan Bhavani and others vs.-Govind Bhargavi and another reported in AIR1975Kerala 83.

That decision tends to hold that if an account is held jointly on the term, either or survivor, on the death of one of the joint holdeRs.it cannot be presumed that the entire balance in the account will go to the other joint holdeRs.Now my prima facie findings.

The above decision did not deal with a particular account and the income therefrom being taxed in the hands of one joint holder.

In this case the bank accounts in Box B have been taxed in the hands of MRS.Mary Catherine Sinha.

On the above evidence, there is a strong presumption that the entire funds in those bank accounts belong to her.

I can come to this conclusion with added confidence because a statement of the bank account was shown to me, which showed that sterling currency belonging to Mary were credited into the bank account, after conversion into Indian currency.

It was said that this amount was received on sale of Mary’s house in Britain.

This assertion could not be controverted.

On the same principle, I hold that MRS.Mary Catherine Sinha is entitled to the account of which Abha Rani Sinha was the fiRs.holder and she was the second holder but income tax returns were filed by her.

Therefore, prima facie, I hold that MRS.Mary Catherine will be allowed to operate these accounts shown in Box B and Box C without any restriction whatsoever.

On the same premises, the accounts which were jointly held by her and her mother-in-law, in which the name of her mother-in-law appeared as the fiRs.holder and taxed in the latter’s hands will be presumed to belong to her mother-in-law and she will be unable to operate those accounts.

The existing interim orders are modified to the above extent.

The above observations are prima facie.

I also know that there are serious disputes between the parties regarding the source and application of the above funds.

Those disputes cannot be resolved in this probate proceeding.

I have made my prima facie observations.

Those will not prevent Dr.

Bikash Sinha or the other Joint Administrator from establishing any right in an appropriate form” (5) Learned Counsel referred to Clause 7 of the said Will which reads as follows:“I have several investments and/or balances with the Banks in deposit accounts, savings accounts etc.(in most of which name of my daughter-in-law MRS.Mary Catherine Sinha has been added as the second/joint holder for the sake of convenience).” Relying on the said Clause learned Counsel submitted that Mary’s contention that the moneys lying in the accounts and investments in which she is the fiRs.holder, belong to her exclusively, is contrary to the Will which states that her name had been included as a joint holder for the sake of convenience only.

(6) Learned Counsel submitted that Abha had made several monetary bequests in her Will, inter alia, to Ram Krishna Mission Vivekananda University and to Mary.

In Clause 7.1(iii) of the Will Abha said that she wanted to ensure that after her lifetime, Mary was adequately secured financially in order to take care of her daily expenses, health and other necessary chores of life.

Abha had bequeathed a sum of Rs.5 crores to Mary in the Will.

Abha was admittedly a joint holder along with Mary of all of the accounts and investments which Mary today is claiming to belong exclusively to her.

As a joint holder, Abha should have been aware of the fact that Mary was well off herself as she is claiming.

There was no need for Abha to make a bequest to Mary in order to take care of herself.

The language of the Will is such that gives the impression that Abha was worried as to how Mary would meet her daily expenses.

This belies Mary’s contention that she was well off and the monies in the joint accounts in which she is the fiRs.holder belong exclusively to her.

(8) In her application being GA3234of 2012 in PLA88of 2012, in paragraph 15, Mary has stated that she received an e-mail dated 10 April, 2012 from Anjan Chakraborty stating that a probate petition had been filed by him in the Calcutta High Court.

In paragraph 17 of the application Mary states that on or about 12 April she was served with a copy of the affidavit of assets affirmed by Anjan.

Even after being served with the affidavit of assets, Mary did not raise any objection thereto.

Bikash filed the application being GA No.2679 of 2012 on or about 26 September, 2012.

Thereafter in or about November, 2012, Mary filed her said application alleging that the affidavit of assets affirmed by Anjan was erroneous and the affidavit of assets prepared by her should be accepted as the true and correct affidavit of assets.

There is no explanation as to why Mary did not immediately object to the affidavit of assets affirmed by Anjan and filed with the probate application.

(9) The Will provides for monetary bequests of Rs.5 crores to Ram Krishna Mission Vivekananda University (out of which Rs.2 crores was already paid during Abha’s lifetime) and Rs.5 crores to Mary.

In the event it is held that the moneys in the bank accounts are exclusive properties of the fiRs.holder, i.e.Mary, Abha’s Will will become unworkable as sufficient moneys to cover all the dispositions will not be available with the executor.

Hence, Abha certainly treated the moneys in all the bank accounts as her exclusive property and the same appears from her conduct.

Further, the Will authorises the executor to operate the bank accounts (Clause 5(a) of the Will).(10) Learned Counsel then submitted that admittedly the moneys which have been withdrawn by Mary were lying in the joint accounts of Abha and Mary.

It is immaterial as to whether or not Mary is the fiRs.holder of the said joint accounts.

What is material is that the said accounts are all joint accounts and none of the joint holders can claim to be the exclusive owner of the moneys lying therein.

A joint bank account is a bank account in the names of two or more individuals (account owneRs.who jointly (equally) share its concomitant rights and liabilities.

Joint holders of a bank account are regarded in law as together making up the ‘owner’.

If a fixed deposit or a savings bank account is in joint names, it does not on the death of one, constitute a gift to the survivor.

There is a resulting trust in favour of the survivor, there being no presumption of intended advancement in favour of the survivor.

The fact that the joint bank accounts in which the name of Mary appeared as the fiRs.holder were taxed in Mary’s hands even during the lifetime of Abha, is of no consequence.

The same might have been done with the consent of Abha and Mary for the purpose of avoiding the rigours of tax laws.

(11) Even assuming but not admitting that Mary had brought her own funds in the joint accounts in which her name appears as the fiRs.holder, by the act of depositing the moneys in the joint names of Abha and herself, Mary constituted the funds as the joint properties of Abha and herself.

In this connection learned Counsel relied on the following decisions:(i) Smt.

Dipali Biswas-vs.-Reserve bank of India, AIR2006Calcutta 137.

(ii) Mallesappa Bandeppa Mallesappa, AIR1961SC1268 Desai-vs.-Desai Mallappa alias (iii) Krushanadas Nagindas Bhate-vs.-Bhagwandas Ranchhoddas, AIR1976Bombay 153.

(iv) Padmanabhan Bhavani-vs.-Govindan Bhargavi, AIR1975Kerala 83.

(v) State of Maharashtra-vs.-Pollonji Darabshaw Daruwalla, AIR1988SC88 (vi) Indranarayan-vs.-Roop Narayan, AIR1971SC1962 (vii) Goli Eswariah-vs.-Commissioner of Gift Tax, AIR1970SC1722 (12) Learned Counsel then submitted that whether the money lying in the joint accounts belongs to Mary or not is a contentious issue and has to be decided by way of a civil suit.

In a probate proceeding the said question cannot be gone into.

(13) Mr.Talukdar then submitted that Mary is one of the executors to the last Will of Abha.

As an executor it is her duty to preserve Abha’s estate.

Under Sec.

368 of the Indian Succession Act, 1925, when an executor or administrator misapplies the estate of the deceased or subjects it to loss or damage he is liable to make good the loss or damage so caused.

Mary is thus under an obligation to forthwith refund all withdrawals made by her from the joint accounts held in the names of Abha and herself.

(14) Learned Counsel submitted that it is true that Bikash is only a residuary legatee.

He is a world-renowned scientist and is extremely well off himself.

The present application has not been filed by him merely for extracting money from Mary as she has contended.

Bikash is interested in ensuring that the estate of Abha is not wasted away and is disposed of and administered according to her last wishes.

Hence, appropriate orders should be passed restraining Mary from siphoning of the estate of Abha.

The moneys already withdrawn by Mary should be directed to be kept separately in a bank account.

(15) Learned Counsel further submitted that Abha also left behind huge movable assets apart from the moneys in the bank accounts and investments, including jewellery, paintings, artifacts etc.which are also the subject matter of her Will.

These assets were accretions of Zamindari Estate of the famous Sinha family who are the Zamindars of Paikpara, Kandi.

These assets and accretions of the Zamindari Estate had devolved on Abha and the details of the jewellery, gold ornaments etc.mentioned in the affidavit of assets are correct.

Hence, the amendment of the affidavit of assets sought for by Mary with regard to the various other movable assets, including jewellery etc.should not be allowed.

(16) Learned Counsel finally submitted that Mary’s application being GA No.3234 of 2012 is liable to be dismissed.

If Mary contends that any of her exclusive properties have been included in the affidavit of assets filed with the probate application, she is at liberty to resist the administration of the said properties by filing appropriate civil proceedings at the appropriate stage.

Detailed trial has to be held and extensive evidence has to be taken for determining as to who are the real owners of the properties which Mary is claiming to be her own.

Such detailed trial upon consideration of evidence cannot be done by this Court and hence Mary’s application is liable to be dismissed.

Contention of Mary:(17) Mr.Chaudhury, Learned Counsel appearing for Mary submitted that the execution of the Will in question by Abha is admitted and there is no dispute with regard to the genuineness of the said Will.

(18) Mary and Anjan were named as joint executors in the Will.

Anjan obtained all the details from Mary and also obtained payment of Rs.2.5 lacs from Mary for the purpose of obtaining probate of the Will.

The dispute arose regarding the preparation of the affidavit of assets wherein the personal assets of Mary were shown as the assets of Abha, to which Mary objected.

(19) In the said background, Anjan filed the probate application with the allegation that Mary was not co-operating as a joint executor and also sought orders of injunction on the bank accounts and other reliefs in respect of Mary’s assets.

Undisputedly, Mary is one of the substantial beneficiaries under the Will in question.

(20) In the fiRs.application made by Anjan making allegations against Mary being GA No.998 of 2012, an interim order was passed restraining Mary from withdrawing any amount from the bank accounts or term deposits where Mary was the fiRs.holder.

By an order dated 11 June, 2012, the earlier order was modified by permitting the joint executors to operate the bank accounts and deal with the term deposits jointly held in which Mary’s name appeared as the fiRs.holder, upon condition that Mary would maintain accounts.

Since the Will was not disputed as the only natural heir of Abha being her son had pre-deceased her, the application was disposed of by directing the joint executors and the department to take expeditious steps to obtain probate of the Will.

However, no steps were taken by Anjan to obtain probate of the Will.

(21) Learned Counsel submitted that Anjan having failed to obtain prohibitory orders in respect of the Mary’s bank accounts, he has set up Bikash who is a residuary beneficiary under the Will.

In his application, Bikash has made the same allegations that Anjan had made in his application.

He submitted that paragraphs 10, 12 and 16 of Bikash’s application containing the allegations against Mary are identical with those of Anjan’s earlier application and have been affirmed by Bikash as ‘information received from Anjan Chakraborty’.

(22) In GA No.2679 of 2012 i.e.Bikash’s application, initially, by an order dated 3 January, 2013 a ceiling on withdrawal by the joint executors was imposed and the same was subsequently modified by the order dated 21 February, 2013 when Mary filed GA No.3234 of 2012 disclosing in detail from the respective income tax returns as to which accounts pertain to Abha and which accounts pertain to Mary.

Details of the funds were also disclosed and in that background, three schedules were handed over which have been referred to as Box-A, Box-B and Box-C in the order dated 21 February, 2013.

Box-A contains details of accounts exclusively of Abha and shown in her income tax returns.

Box-B contains particulars of details of bank accounts and term deposits where Mary is the fiRs.holder.

All such accounts shown in Box-B have been declared in the income tax returns of Mary.

In BoxC, the particulars of a single joint account is mentioned where notwithstanding the fact that Abha was the fiRs.holder, the same was actually shown in the income tax returns of Mary.

In the order dated 21 February, 2013, the Learned Judge, prima facie, held that Mary would be allowed to operate the accounts shown in the Box-B and Box- C without any restriction and she was directed not to operate the accounts shown in Box-A.

(23) Against the order dated 21 February, 2013, an appeal was preferred and by an order dated 13 March, 2013, the undertaking given by Mary through learned Senior Counsel was recorded in the manner mentioned in the order.

The appeal was disposed of by an order dated 1 July, 2014 whereby the earlier order of 13 March, 2013 was confirmed and the two applications were directed to be heard expeditiously.

(24) Learned Counsel then submitted that the only issue in Abha’s application is incorrectness of the affidavit of assets filed by Anjan along with the probate application.

He submitted that savings bank account No.408765413 held with Indian Bank where Mary is the joint account holder, has all along been shown in the income tax returns of Mary though Abha was the fiRs.holder and the said account has been taxed in the hands of Mary.

The funds in the said account belong exclusively to Mary.

Income tax returns of both Abha and Mary have been disclosed by Mary, which would corroborate this submission.

In this connection Learned Counsel also relied on correspondence exchanged between Mary and Abha on one hand and Indian Bank on the other hand (pages 186-190 of Mary’s application).Reliance was also placed on Form No.26AS being Mary’s tax statement under Sec.

203 AA of the Income Tax Act for the financial year 2007-08 (page 183 of Mary’s application).The said account is the one mentioned in Box-C in the order dated 21 February, 2013.

(25) The particulars in respect of the accounts mentioned in Box-B primarily relate to savings account No.025-246448-006 held with the HSBC Bank and some fixed deposits and term deposits wherein Mary is the fiRs.holder and Abha was the second holder.

The said particulars have been stated in details in paragraphs 18(b) and 18(f) of Mary’s application.

The source of funds from sale of the property in United Kingdom and investment in Meryll Lynch and subsequent transfer thereof to HSBC bank has been explained in the said paragraphs, made with the supplementary affidavit filed by Mary.

(26) Regarding the accounts mentioned in Box-A, there is no dispute that the same have all along been shown in the tax returns of Abha and actually form part of the estate of Abha.

(27) On the basis of the aforesaid submission, Learned Counsel submitted that the affidavit of assets filed by Anjan is to be rectified in the manner indicated in red ink in Annexure-V to Mary’s application.

He submitted that after such rectification, probate of Abha’s Will may be granted.

(28) Learned Counsel further submitted that Abha all along maintained three separate lockers in Indian Bank, Sarat Bose Road Branch bearing Nos.240, 13 and 136.

The said three lockers stood in the names of Abha as the fiRs.holder and Mary as the second holder.

After coming from England, instead of taking separate lockeRs.Mary shared the lockers with Abha.

Abha had already distributed her jewellery during her lifetime and the balance was given to Mary.

The lockeRs.therefore, not only contain jewelleries given to Mary by Abha but also personal jewellery of Abha.

The valuables lying in the said three lockers have not been inventorized till date.

The Manager of Indian Bank, Sarat Bose Road Branch, should be directed to cause the said three lockers to be opened and inventorize the articles lying therein and Mary should be given possession of the same.

(29) As regards the application filed by Bikash, learned Counsel submitted that once it is established that the money and the accounts in question belong exclusively to Mary and do not form part of the estate of Abha, Bikash’s application is liable to be rejected.

Bikash is only a residuary legatee and would be only entitled to a part of the estate of Abha only if something remains after giving effect to the earlier bequests.

(30) Learned Counsel referred to Clause 7 of the Will wherein Abha stated that in most of the accounts Mary’s name had been added as the second joint holder for convenience.

Hence, according to him, no situation is envisaged where accounts of Mary being the fiRs.holder would be treated as an asset of Abha because of simply being named as the second holder.

He further submitted that in terms of the bequests and clause 7.1(ii) of the Will, out of a sum of Rs.5 crores, Rs.3 crores have already been donated to Ram Krishna Mission during the lifetime of Abha.

A sum of Rs.2 crores is outstanding.

Mary is entitled to a sum of Rs.5 crores from the estate of Abha in terms of Clause 7.1(iii) of the Will.

After the bequests mentioned in Clauses 7 to 10 of the Will are given effect to, Bikash gets 35 per cent of the residual assets, if there be any residuary.

(31) Learned Counsel submitted that the real reason of Bikash being instigated by Anjan to create a contest in a matter where there is absolutely no dispute, is an attempt to obtain some money on the purported pretext of settling the matter as it is evident that the residuary legatee would not receive any fund in the event two prior bequests are given effect to including the disbursement of a further sum of Rs.2 crores to Ram Krishna Mission and disbursement of Rs.5 crores to Mary out of the assets of Abha.

For this oblique purpose, the assets of Mary have been sought to be included in the affidavit of assets annexed to the probate application.

(32) Learned Counsel finally submitted that it is absurd to suggest that by reason of the name of Abha being mentioned in the joint accounts, the same becomes part of Abha’s estate by operation of law.

It has been demonstrated by placing reliance on the income tax returns of Abha and Mary as to how they themselves treated such accounts.

The other submission of Learned Counsel for Bikash that the money lying in the accounts of Mary has been obtained from the joint family properties of her husband is without any basis and bereft of any particulaRs.On the basis of the aforesaid submissions, learned Counsel submitted that the application of Bikash should be rejected and the application of Mary should be allowed.

Court’s View:(33) I have carefully considered the rival contentions of the parties.

(34) In short, the contention of Bikash is that Mary withdrew various sums of money from the joint accounts held in the name of Mary and Abha.

The moneys that she withdrew belonged to Abha and accordingly formed part of Abha’s estate and hence Mary must pay back/deposit all such moneys withdrawn by her.

Learned Counsel for Bikash relied on several decisions as regards the effect of demise of one of the joint holders of a Bank account.

In Indranarayan-vs.-Roop Narayan (supra).the Hon’ble Apex Court in paragraph 23 of the judgment observed as follows:“23.

In Guran Ditta v.

Ram Ditta, ILR55Cal 944: AIR1928PC172 the Judicial Committee held that the deposit made by a Hindu of his money in a bank in the joint names of himself and his wife, and on the terms that it is to be payable to either or the survivor, does not on his death constitute a gift by him to his wife.

There is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife.

The same view was expressed by the Judicial Committee in Pandit Shambhu Nath Shivpuri v.

Pandit Pushkar Nath, 71 Ind App 197 : AIR1945PC10?? (34) In Padmanabhan Bhavani-vs.-Govindan Bhargavi (supra).the Kerala High Court after discussing several decisions including those of the Hon’ble Apex Court observed as follows:“From the above discussion the following propositions emerge (i) A deposit made by a Hindu of his money in the joint names of himself and his wife or any other person, on the terms that it is payable to either or survivor, does not on his death constitute a gift by him to the other person.

(ii) In such a case without any declaration of trust, there is a resulting trust in favour of the depositor in the absence of any contrary intention or unless it can be proved that an actual gift of the amount was intended.

(iii) The principle of English Law that a gift to a wife is presumed, where money belonging to the husband is deposited at a Bank in her name or where a deposit is made, in the joint names of both husband and wife has no application in India.

In other words, there is no presumption in India of an intended advancement as there is in England.

(iv) The burden of proving a contrary intention or gift is on the person who seeks to rebut the resulting trust in favour of the person who makes the deposit.

(v) This burden could be discharged either by proving that there was a specific gift or that the owner of the money had a general intention to benefit the claimant and that it was in pursuance of that intention that he made the deposit in the claimant’s name or transferred the deposit to the joint names of himself and the claimant.

(vi) In the absence of such proof the amount under the deposit will form part of the owner’s estate on his death and will be partible among the heirs.” (35) On the contrary, the short contention of Mary is that bank accounts have been shown in the affidavit of assets filed with the probate application, the moneys lying wherein belong exclusively to Mary and hence should be deleted from the affidavit of assets.

Learned Counsel has relied on several documents to try and substantiate his contention that Mary is the sole and exclusive owner of the moneys in the said bank accounts.

(36) I have noted the arguments of learned Counsel for Bikash and Mary in extenso.

However, I need not deal with the same in detail for the reasons stated hereinafter.

(37) A probate court is required to decide whether the Will in question was the last Will of the testator, whether the same was duly attested by at least two witnesses and whether the testator had mental capacity to execute the Will.

The Probate Court has also the jurisdiction to consider whether execution of the Will was vitiated by fraud, undue influence, coercion etc.being practised upon the testator or whether the Will was executed by the testator under some mistake or induced by false representation.

It is settled law that a Probate Court is not entitled to go into the question as to whether or not the testator had title or possession in respect of the property covered by the Will.

The probate granted by a Testamentary Court does not establish that the testator had title to the property covered by the Will.

As observed by a Learned Single Judge of this Court in Smt.

Sabita Dey-vs.-Neeraj Estate PVT.Ltd., 1999 (1) CHN65 the probate merely denotes that the estate of the testator will not devolve upon the natural heirs according to the ordinary laws of succession by which the testator was governed but will devolve upon the beneficiaries of the Will according to the wish of the testator reflected in the Will.

The same view has been expressed in the case of Jiban Kumar Das-vs.Bijoy Kumar Mukherjee, (2000) 1 CLT560(HC).(38) As early as in 1948 it was held by a learned Judge of this Court in the case of In The Goods of Musstt.

Suraj Bai (Deceased).52 CWN914 that a proceeding for probate under the Indian Succession Act is not a proper suit, although it is marked as a contentious cause under our Rules.

In such a proceeding, the only question which the Court is called upon to determine is whether the Will is true or not and whether the person making the Will had a sound disposing mind and it is completely outside the Court’s purview to determine any question of title with regard to the properties covered by the Will.

It is not the duty of the Probate Court to consider any issue as to the title of the testator to the property with which the Will in question purports to deal or as to what disposing power the testator may have possessed over such property or as to the validity of the bequests made.

It would be most injudicious to upset the settled practice of this court which has been uniformly followed since a long time and for the Testamentary Court to embark on the adjudication of difficult questions as to the ownership of the properties bequeathed by a Will.

(39) In the case of MRS.Hem Nolini Judah (Since Deceased)-vs.-MRS.Isolyne Sarojbashini Bose, AIR1962SC1471 our Apex Court observed that questions of title are not decided in proceedings for the grant of probate or letters of administration.

Whatever happens in probate proceedings would not establish the title to the property covered by the Will in favour of anybody.

(40) From the aforesaid authorities it is absolutely clear that the Probate Court has no authority or jurisdiction to decide questions of title.

If a Will purports to deal with a property which belongs not to the testator but to somebody else, the remedy of that person is to approach the Civil Court to establish his right of ownership in respect of such property.

Such person cannot seek to enlarge the scope of the probate proceeding by applying before the Probate Court to exclude his/her property from the affidavit of assets.

Such person has to establish his/her right to such property in an appropriately constituted civil suit following due process of law.

Even if I grant probate of the Will executed by Abha, which I propose to do, the same will not conclusively establish that the properties mentioned in Abha’s Will or in the affidavit of assets, belonged to Abha.

It would be open to Mary to approach the Civil Court to establish her right in respect of the moneys in the concerned bank accounts of which she claims exclusive ownership.

It is not a corollary or a consequence of grant of probate of a Will that the properties mentioned in the Will or in the affidavit of assets filed with the probate application belonged absolutely and exclusively to the author of the Will.

(41) Similarly, if Bikash is aggrieved by withdrawal of moneys by Mary from the joint accounts held in the name of Abha and Mary because according to him such moneys belonged to Abha and should form part of Abha’s estate, then Bikash has to approach a Civil Forum to establish his case and to obtain an order directing Mary to return such moneys to Abha’s estate.

Such issue cannot be considered in a probate proceeding.

(42) I am of the firm and clear opinion that the rival claims made by Bikash and Mary in their respective applications are completely beyond the scope and ambit of the present probate proceeding.

I would be transgressing my jurisdiction as a Probate Court if I venture to adjudicate upon such disputed rival claims of Bikash and Mary.

I reiterate that it will be open to both of them to establish their respective claims in an appropriately constituted proceeding before the Civil Forum.

(43) In view of the aforesaid, I am unable to pass any order in GA Nos.2679 of 2012 and 3234 of 2012 except to the extent hereinafter stated.

Re: PLA88of 2012 (44) The Will of Abha of which probate has been applied for is dated 28 March, 2011.

It is a well-drafted Will and clearly mentions the manner in which Abha wanted her estate to be administered.

The beneficiaries have been identified with sufficient precision.

The language of the Will is unambiguous and clearly indicates that Abha was fully conscious as to how she was devising/bequeathing her properties.

She stated that the said Will was her last Will.

The Will has been witnessed by three persons.

There does not appear to be any suspicious circumstances surrounding the execution of the Will.

Over and above all, nobody has come forward to challenge the validity or authenticity of the said Will.

There is nothing unnatural about the Will.

No caveat was filed by anybody.

As per the certificate of the Registrar, Original Side, Testamentary and Intestate Jurisdiction issued on 4 April, 2012, there is no intimation from any other High Court or any District Court in India of grant of probate of any Will or letters of administration of the property and credits of Abha Rani Sinha.

(45) In view of the aforesaid, I find no reason to withhold grant of probate of the said Will.

(46) However, I am not inclined to grant probate in favour of Anjan alone who is one of the joint executors named in the Will.

Mary is the other joint executor named by Abha in her said Will.

Further, in Mary’s application being GA No.3234 of 2012 she has prayed for probate of the said Will in favour of the joint executors being Anjan and herself.

(47) Accordingly, the Will dated 28 March, 2011 made and published by Abha Rani Sinha is admitted to probate.

Probate in respect of the said Will of the deceased is granted to Anjan Chakraborty and Mary Catherine Sinha being the joint executors named in the said Will limited to the estate mentioned therein with effect throughout the Union of India without requiring the joint executors to furnish any security therefor.

Costs of PLA No.88 of 2012 shall come out of the estate of the deceased.

(48) PLA No.88 of 2012 and the two GA Nos.being 2679 of 2012 and 3234 of 2012 are accordingly disposed of.

(48) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.

(Arijit Banerjee, J.)


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