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
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
3
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.
4
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.
5
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.)
