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2001 DIGILAW 102 (CAL)

Gobindalal Nath v. Motilal Nath

2001-02-23

ASHIM KUMAR BANERJEE, SAMARESH BANERJEA

body2001
Judgment Banerjee, J.: 1. The present appeal bas been filed by the appellant being aggrieved by the judgment and decree passed by the Additional District Judge, Alipore dated July 22, 1978, inter alia, granting letters of administration of the will of one Banshinath Nath, since deceased in favour of the respondent. 2. Banshinath made a Will disposing all of his moveable and immoveable assets on October 30, 1935 wherein all his properties including moveable and immoveable were given to his younger daughter. In law, Nanibala to be enjoyed by her during her life time without any right to dispose of the same and thereafter, to Smt. Panchimani Devi being the daughter of the said Nanibala, simultaneously, as and by way of life interest. It was provided in the said Will that after the death of Nanibala and Panchimani, respondent No.1 being the Son of Panchimani would be entitled to acquire the said properties as an absolute owner thereof. By the said Will Banshilal deprived his elder daughters in.-law for the reasons stated in the said Will. 3. However, since the said branch did not chose to contest the said testamentary proceedings the Same is not relevant for our consideration. 4. The said Will was duly attested by several attesting witnesses including one Atul Chandra Ghosh who was the only attesting witness living at the point of time when the said testamentary proceeding was heard by the learned Additional District Judge. It also appears that the said Will has been duly registered under the provisions of Indian Registration Act. 5. The appellant is the younger brother of the respondent being the second son of Panchimani. 6. We are told that Panchimani had other issues being defendant Nos. 2, 3 and 4 in the said suit. In the written statement appellant challenged the Will, inter alia, on the ground that he had no knowledge of the alleged Will and the respondent No.1 did never shown the said Will to the appellant. It has been alleged that there had been a partition suit pending for division of the property amongst the parties on intestacy. Two sisters being the defendant Nos. 3 and 4 almost towed the line of the appellant No. 1 and contended that Banshilal had died intestate. It has been alleged that there had been a partition suit pending for division of the property amongst the parties on intestacy. Two sisters being the defendant Nos. 3 and 4 almost towed the line of the appellant No. 1 and contended that Banshilal had died intestate. Both the written statements did not specifically challenge the Will, rather the usual grounds of challenge to an Will are conspicuously absent in both the written statements. 7. In the evidence, the respondent examined him self and the Tulsi Charan Nath one of the nephews of Banshilal. It was the case of the respondent in deposition that the Will was executed and registered by Banshilal at the time when respondent was one year old. He heard about the Will before but he saw it for the first time when he discovered the same after the death of his father. 8. Atul, being the only surviving attesting witness did not come to the witness box. According to the respondent No.1, Atul was not mentally fit to depose. Tulsi claimed to have been present at the time of execution of the Will. The appellant No. 1 examined himself, according to him, he had never any knowledge about the Will. They were enjoying the property as if they acquired the same through intestate succession. According to Gobinda, Atul was hale and hearty and was able to depose. He had been deliberately not bought by Motilal. 9. The learned Judge of the Court below granted the letters of administration heavily retying on a decision of this Court reported in 58 Calcutta Weekly Notes page 271, that since the Will was a registered document and more than 30 years old the statutory presumption available under Section 90 of the Indian Evidence Act, 1872 should be taken into consideration. According to the learned Judge, since presumption as to execution and attestation of the Will is available to Motilal, unless the same is rebutted by Gobinda, the Will is bound to be accepted and letters of administration must be given. 10. As we have said both the written statements are cryptic. The evidence are not adequate on the part of Gobinda. 11. Before us the appellant sought to assail the judgment principally on two grounds :- 1. Will is unnatural ; 2. 10. As we have said both the written statements are cryptic. The evidence are not adequate on the part of Gobinda. 11. Before us the appellant sought to assail the judgment principally on two grounds :- 1. Will is unnatural ; 2. Since the Will is unnatural, there should be heavy onus on Motilal to prove the execution and attestation of the Will. In absence of such onus being discharged Motilal is not entitled to have letters of administration on the said Will. 12. To elaborate the first ground Mr. Milan Bhattacharjee, learned Advocate, appearing on behalf of the appellant, submitted that Banshilal by his Will wanted to dispose of his properties in favour of the branch of Nanibala. Gobinda being the second son of Panchimani in that event should get a share in the said property. No reason has been given as to why Motilal had only been selected as the absolute owner under the said Will. 13. This ground of Shri Bhattacharjee has no basis whatsoever. At the time of execution of the said Will Motilal was one year old and he was the only issue of Panchimani at that point of time. It is an admitted fact that neither Gobinda nor his sisters were born on the day when the Will was executed and as such question of unnaturality in the said Will by dint of their exclusion does not and/or cannot arise. Moreover, neither there was any pleadings to the said effect challenging the said Will on the ground of unnaturality nor any evidence has been laid on the said score. 14. Hence, we hold that such ground is without any basis, and is not tanable. 15. With regard to the second ground taken by the appellant before us, we find no reason in support thereof as we have just now held that the Will is not an unnatural one as erroneously submitted by and on behalf of the appellant. Neither there has been any pleadings with regard to suspicious circumstances nor any evidence has been laid to the said effect. Attempt has been made to assail the said Will on the ground that the attestation and custody of the said Will were not proved. Neither there has been any pleadings with regard to suspicious circumstances nor any evidence has been laid to the said effect. Attempt has been made to assail the said Will on the ground that the attestation and custody of the said Will were not proved. It is true that according to the degree of proof required in the case of testamentary proceedings specifically with regard to attestation and custody of the Will, the respondent failed to discharge his onus. The respondent himself was one year old at the time of execution, the on1y living person who could come to support the Will is the sole surviving attestating witness who has chosen not to come to depose. However, we are not going into such question as we find that the same may not be relevant herein in the facts and circumstances of this case. 16. The appellant, however, could not make any convincing submission by distinguishing the said Division Bench Judgment reported in the case of (I) Saral Chandra Mondal v. Panchanan Mondal reported in Volume 58 Calcutta Weekly Notes page 271. In the said case, it was sought to be contended that the provisions of Section 90 of the Indian Evidence Act should not be made applicable in the case of Will in view of the fact that the same requires heavy onus to be discharged by the propounder. Such submission was negated by the Division Bench. While interpreting Section 90 of the said act of 1872, the Division Bench was of the view that it should be more applicable in the case of a Will in view of the fact that it is based on impossibility of obtaining living testimony to the signing or the handwriting of a document when the executor cannot be made available to prove the execution. 17. We feel, following the Division Bench of our Court in the case of Sara I Chandra Mondal (supra), had it not been a registered Will being more than 30 years old, the present deposition on behalf of the propounder could not be said to be adequate in granting letters of administration. In the instant case, the factum of registration has not been denied. The authenticity of the registered document has not been denied. In the instant case, the factum of registration has not been denied. The authenticity of the registered document has not been denied. Hence, presumption is bound to be in favour of granting the letters of administration and the learned Judge of the Court below has rightly applied the ratio of the said Division Bench Judgment while granting of letters of administration. In this back drop, the appeal fails. The order of the Additional District Judge in granting the letters of administration being dated July 22, 1978 is confirmed. The appeal is dismissed with no order as to costs. Banerjea, J.: I agree.