Banamali Mondal (Dec) vs Unknown on 23 July, 2026

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    Calcutta High Court

    Banamali Mondal (Dec) vs Unknown on 23 July, 2026

    Author: Sugato Majumdar

    Bench: Sugato Majumdar

    OD -1 & 2                                                                         2022:CHC-OS:5915
    
    
                                     ORDER SHEET
                        IN THE HIGH COURT AT CALCUTTA
                  TESTAMENTARY & INTESTATE JURISDICTION
                                    ORIGINAL SIDE
    
                                     IA NO. GA/1/2024
                                     In PLA/432/2021
                     IN THE GOODS OF BANAMALI MONDAL (DEC)
                                           WITH
                                     IA NO. GA/2/2025
                                     In PLA/432/2021
                     IN THE GOODS OF BANAMALI MONDAL (DEC)
    
    
    BEFORE:
    THE HON'BLE JUSTICE SUGATO MAJUMDAR
    Date: 23th July, 2026
    
                                                                             Appearance:
                                                                  Ms. Anita Kaunda, Adv.
                                                                 Ms. Anubrata Dutta, Adv.
                                                                          ...for Applicants
    
                                                              Mr. Dyutiman Banerjee, Adv.
                                                                    Mr. Debjit Dutta, Adv.
                                                                          ..for Respondent

    The Court: The Testator herein, late Banamali Mondal expired on 26th

    September, 2020. Prior to his death, he executed his last will and testament on 15 th

    SPONSORED

    September, 2020. An application was made by his daughter for grant of probate of

    the said will and testament of the deceased dated 15th September, 2020, stating

    therein that the Testator left behind him his widow’s mother Smt. Subhashini

    Mondal and spouse Smt. Sumitra Mondal. This Court granted probate in terms of

    order dated 20th July, 2022 of the said will of the Testator dated 15th September,

    2020.

    2

    GA No. 1 of 2024 is an application for revocation of the said probate filed2022:CHC-OS:5915
    by

    one Basanti Mondal claiming to be the widow of the Testator.

    GA No. 2 of 2025 was filed by one Soma Das nee Mondal claiming to be the

    daughter of the Testator.

    Common points in both the applications are that the will was a forged one

    because the Testator died intestate; that Sumitra Mondal named as a wife of the

    Testator in the probate application had deserted him a long ago and got married to

    another person; she has been living separately from the Testator since the year 1999;

    after one year of such desertion, the Testator married Basanti Mondal the Petitioner

    in GA No. 1 of 2024 and out of the said wedlock the other applicant being Soma Das

    was born. There is another son born out of the same wedlock who was a minor at the

    time of death of the Testator. The Executor was well-aware of the marriage yet

    suppressed the fact in the probate application. The Testator died while living with

    one of the applicant, Basanti Mondal. It was pleaded that no citations had been

    issued to the present Petitioners although the Executor was fully aware of the fact

    that Basanti Mondal is the widow of the Testator and Soma Das is the daughter.

    Accordingly, there is common prayer in both the applications that grant of probate

    may be revoked.

    Affidavit-in-opposition was filed where it has been reiterated that at the time

    of death Testator had left behind him three heirs and successors being the Executrix,

    the widowed mother and the spouse. The Executrix being the daughter of the

    Testator and her mother looked after the Testator till his last days and after death of

    the Testator last rights had been performed by the Executrix. It was denied that

    there was any marriage between the Testator and Basanti Mondal. It was also

    admitted that the Basnanti Mondal has been forcefully occupying the residential
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    house of the deceased for which the suit is pending. It was further contended that
    2022:CHC-OS:5915

    the Petitioners have no caveatable interest. It was denied that the Petitioners are

    widow and daughter of the Testator.

    Affidavit-in-reply was filed against the affidavit-in-opposition.

    Affidavit-in-reply was also filed.

    The Learned Counsel for the Petitioners invited attention to various

    documents filed with the applications. Birth registration certificate of Soma Mondal

    shows that she is daughter of Banamali Mondal residing in the same address as that

    of the Testator. Other documents were also referred to. The Learned Counsel also

    referred to one LR Appeal No. 327 of 2023 filed by the Executrix wherein she

    admitted that the present Petitioners are step-mother and step-sister. As submitted

    by the Learned Counsel for the Petitioners, it is admitted by the Executrix that the

    present Petitioners are wife and daughter of the Testator for which citations should

    be issued.

    Mr. Banerjee, the Learned Counsel for the Executrix vehemently argued that

    there is no proof of marriage between the Testator and Basanti Mondal. It was

    further argued that even though it is assumed that she was wife of the Testator the

    marriage was not valid under the Hindu Succession Act. Having invalid or void

    marriage because of subsistence of the first marriage Basanti Mondal is not entitled

    to succeed the estate of the Testator and no citations should be issued. It was further

    argued that the Testator never mentioned the names of the present Petitioners as the

    wife and daughter in the will itself. Section 32 (6) of the Indian Evidence Act, 1872 is

    applicable under which it is clear that the present Petitioners are not the wife or

    daughter of the Testator; had this been so the Testator must have named then in the

    will itself.

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    The Learned Counsel for the Petitioners, in reply, argued that the will itself2022:CHC-OS:5915
    is

    a forged one which cannot be looked upon or relied upon to ascertain the truth. It is

    on the record and admitted in various documents, as disclosed along with the

    applications, that the present Petitioners are widow and daughter of the Testator and

    citations should be issued to them.

    I have heard rival submissions.

    The will was produced by the Executrix and she applied for probate of the

    same. Obviously, the statements contained in the will must be taken to be true by the

    Executrix. The Executrix stated in the affidavit-in-opposition that the Testator had

    been looked after till his last day by the Executor and her mother whereas in the will

    itself, the Testator unequivocally stated that the mother of the Executrix deserted

    him long ago. This is in stark contradiction undermining the veracity of the

    statement of the Executrix. The Executrix stated that Basanti Mondal is in forceful

    occupation of the residential house, without explaining how, inviting a favourable

    consideration of existence of conjugal life. Question of validity or voidness of

    marriage cannot be decided without any evidence, at this stage. There is neither any

    marriage registration certificate of either of the marriage nor any decree of

    dissolution of marriage. This Court is concerned more with the question of

    caveatable interest of the Petitioners.

    On perusal of documents and plea of the parties and after hearing both the

    counsels this court is of opinion that the Petitioners have a caveatable interest and

    citations should be issued to them. Since, the Petitioners have a caveatable interest

    without serving citations to them rendered the proceeding defective. As such, it is a

    just cause where grant may be revoked.

    Both the petitions are allowed accordingly.

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    Grant of probate in terms of order dated 20th July, 2022 passed in PLA 4322022:CHC-OS:5915
    of

    2021 is hereby revoked. There would be further proceeding on service of citation on

    the present Petitioners.

    The matter will appear in the list after four weeks for report on service of

    citations. Liberty is given to serve citations to the Petitioners through the Learned

    Counsels.

    GA 1 of 2024 and GA 2 of 2025 accordingly stands disposed of.

    (SUGATO MAJUMDAR, J.)



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