TaxTMI 
TaxTMI 
2017 (8) TMI 1727
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....egistrar, 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 Administr....
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....e 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 v. Govind Bhargavi and another reported in AIR 1975 Kerala 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 curr....
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.... 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 first holder belong exclusively to her. 8. In her application being GA 3234 of 2012 in PLA 88 of 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 ....
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.... 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 v. Reserve bank of India, AIR 2006 Calcutta 137. (ii) Mallesappa Bandeppa Desai v. Desai Mallappa alias Mallesappa, AIR 1961 SC 1268. (iii) Krushanadas Nagindas Bhate v. Bhagwandas Ranchhoddas, AIR 1976 Bombay 153. (iv) Padmanabhan Bhavani v. Govindan Bhargavi, AIR 1975 Kerala 83. (v) State of Maharashtra v. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88. (vi) Indranarayan v. Roop Narayan, AIR 1971 SC 1962. (vii) Goli Eswariah v. Commissioner of Gift Tax, AIR 1970 SC 1722." 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 adm....
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....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 first 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 first 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 wit....
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.... 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 first 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 unde....
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....ash 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 first 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 attem....
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....Judicial Committee in Pandit Shambhu Nath Shivpuri v. Pandit Pushkar Nath, 71 Ind App 197 : AIR 1945 PC 10" 35. In Padmanabhan Bhavani v. 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 int....
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.... the wish of the testator reflected in the Will. The same view has been expressed in the case of Jiban Kumar Das v. Bijoy Kumar Mukherjee, (2000) 1 CLT 560 (HC). 39. 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 CWN 914, 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 Test....
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....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: PLA 88 of 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 unnat....