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2002 DIGILAW 88 (CAL)

Roma Mukherjee v. Phalguni Mukherjee

2002-02-12

ASIT KUMAR BISI, TARUN CHATTERJEE

body2002
JUDGMNET Bisi, J. : The instant appeal arises out of the judgment and decree passed by Shri T. B. Deb the learned Additional District Judge. 11th Court, Alipore on 30.9.86 in O. S. No. 11 of 1981. By the impugned judgment and decree the learned trial Judge decreed the suit and granted Letters of Administration in respect of the Will of late Rash Behari Banerjee. 2. Shri Phalguni Mukherjee the daughter's son of the deceased testator Rash Behari Banerjee filed an application for Letters of Administration. The testator Rash Behari Banerjee died on 21.5.69 leaving his wife Ishwari Debi and two daughters Reba and Rama. Ishwari Debi died subsequently on 27.1.73. As per the case of the plaintiff the said Rash Behari Banerjee prior to his death executed his last will in respect of his properties on 23.7.68 and the same was registered on commission on 29.7.68. By the said Will Sri Shailendra Nath Banerjee and Meghnad Banerjee were appointed as the joint executors. As per the terms of the Will Sri Lal Mohan Mukherjee the father of the plaintiff was appointed as executor in place of Sri Shailendra Nath Banerjee who renounced to be the executor. The other executor Sri Meghnad Banerjee did not apply for probate. After being appointed as executor of the Will in place of Sri Shailendra Nath Banerjee, Lal Mohan Mukherjee who is the father of the present plaintiff applied for probate of the said Will. During pendency of the suit relating to probate of the said Will instituted by him the said Lal Mohan Mukherjee died on 6.5.79 and as such the probate proceeding became infructuous. 3. The plaintiff who is the son of the said Lal Mohan Mukherjee got almost all the properties covered by the said Will of Rash Behari Banerjee and filed the application for obtaining Letters of Administration of the said Will left by the deceased testator Rash Behari Banerjee: 4. Defendant Nos. 2, 4, 5 and 6 opposed the said application for grant of Letters of Administration by filing the respective written statements where in the material allegations contained in the said application were denied. Defendant Nos. 2, 4, 5 and 6 opposed the said application for grant of Letters of Administration by filing the respective written statements where in the material allegations contained in the said application were denied. Their specific case, is that the deceased Rash Behari Banerjee died at the age of 72 and prior to it, since 1966 he had been suffering from high blood pressure and other ailments including severe diabetes which made him completely blind and he became physically and mentally incapacitated to understand and comprehend his affairs and he had no testamentary capacity since about 1967. Taking undue advantage of physical and mental incapacity of the said Rash Behari Banerjee, Lal Mohan Mukherjee the father of the present plaintiff collusively prepared the present Will and procured the signature of the deceased Rash Behari Banerjee without the contents being read over and explained to the said Rash Behari Banerjee. There was no reason or cause for altering the previous Will of Rash Behari Babu and making the new one. There are various suspicious circumstances in respect of the present Will for which the contesting defendants prayed for dismissal of the application for Letters of Administration. 5. On consideration of the evidence of record the learned trial Judge arrived at the finding that the Will was duly executed by the testator and attested by the witness. According to the learned trial Judge the Will was a genuine one and the testator had proper testamentary capacity at the time of execution of the said Will. It is the specific finding of the learned trial Judge that the defendants failed to prove the case of fraud and malpractice as alleged. Consequently the suit was decreed by the trial Court and Letters of Administration in respect of the Will of late Rash Behari Banerjee was granted. 6. Being aggrieved by and dissatisfied with the judgment and decree passed by the trial Court the contesting defendants as appellants preferred the instant appeal assailing the findings of the learned Court below. Consequently the suit was decreed by the trial Court and Letters of Administration in respect of the Will of late Rash Behari Banerjee was granted. 6. Being aggrieved by and dissatisfied with the judgment and decree passed by the trial Court the contesting defendants as appellants preferred the instant appeal assailing the findings of the learned Court below. The appellants averred inter alia that the learned trial Judge did not consider the evidence on record and materials placed before him, that the learned trial Judge ought to have held that the alleged Will was prepared collusively by Lal Mohan Mukherjee the father of the plaintiff and the testator Rash Behari Banerjee was fully blind and incapable of reading the contents of the Will, that the learned Judge ought to have held that the Will was not a genuine one and that the learned Judge grossly erred in not holding that the alleged Will was fraudulent and invalid in view of the fact that nowhere in the Will it was mentioned that the contents of the Will were read over and explained by any person to the testator. 7. The plaintiff' as respondent contested the instant appeal justifying the findings of the learned trial Judge. 8. The following two-fold points arise for consideration in the instant appeal:- (1) Whether or not the learned trial Judge was justified in holding that the testator Rash Behari Banerjee had testamentary capacity to execute the Will in question and that the said Will is a genuine one which was duly executed. (2) Whether or not the learned trial Judge was justified in granting Letters of Administration of the Will in question in favour of the plaintiff/respondent. 9. Being interlinked both the points are taken up together for consideration for the sake of convenience and brevity. 10. It is an indisputable fact that the testator Rash Behari Banerjee died on 21.5.69. As per the case of the plaintiff/respondent prior to his death the said Rash Behari Banerjee executed his last Will in respect of his properties on 23.7.68 and the said Will was registered on 29.7.68. It is quite evident from the contents of the Will that Meghnad Banerjee and Shailendra Nath Banerjee were first appointed as joint executors and trustees and if any of them declines to act as executor and trustee, in that event Lal Mohan Mukherjee would be co-opted in his place. It is quite evident from the contents of the Will that Meghnad Banerjee and Shailendra Nath Banerjee were first appointed as joint executors and trustees and if any of them declines to act as executor and trustee, in that event Lal Mohan Mukherjee would be co-opted in his place. The evidence on record and the circumstances emerging therefrom clearly reveal that Lal Mohan Mukherjee was co-opted as joint executor in place of Shailendra Nath Banerjee as admittedly Shailendra Nath Banerjee refused to act as executor. It is the specific evidence of D.W. 6 Meghnad Banerjee that he did not apply for getting probate of the Will left by Rash Behari Banerjee. It is an admitted fact that Lal Mohan Mukherjee the father of the plaintiff/respondent who was co-opted in place of Shailendra Nath Banerjee as executor in terms of the Will applied for probate of the said Will since the other executor Meghnad Banerjee did not take any step for obtaining probate of the Will. The said application for probate of the Will became contentious and was registered as suit but during pendency of the said suit Lal Mohan Mukherjee died and as such the probate proceeding became in-fructuous. After death of his father the plaintiff/respondent Phalguni Mukherjee filed the application for grant of Letters of Administration in respect of the said Will left by the deceased testator Rash Behari Banerjee in view of the fact that almost all the properties left by the deceased testator were bequeathed to him on the basis of the said Will. 11. The pivotal issue involved in the instant appeal is whether or not the deceased testator Rash Behari Banerjee had proper testamentary capacity to execute the Will in respect of which Letters of Administration had been granted by the learned trial Judge. 12. Admittedly the Will was a registered one and the signatures of the testator appearing in the Will are of late Rash Behari Banerjee. It is settled law that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. It has been so held by the Supreme Court in the case of (1) Shashi Kumar Banerjee and Ors. It has been so held by the Supreme Court in the case of (1) Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee reported in AIR 1964 SC 529 and in the case of (2) smt. Indu Bala Bose and Ors. v. Maninda Chandra Bose and Another reported in AIR 1982 SC 133 . 13. Let us now turn to the evidence on record, P.W. 1 is the typist who typed the Will, P.W. 2 Ashoke Kumar Dutta who is a solicitor was one of the attesting witnesses of the Will. It is quite evident from his testimony that Rash Behari Banerjee executed the Will in his presence. It is quite clear from the evidence of P.W. 2 that the other attesting witness Sri Tarak Nath Mitra who drafted the Will is dead. The evidence of P.W. 2 indicates in clear terms that the said Will was duly executed by the testator Rash Behari Banerjee and attested by the attesting witnesses. The evidence of P.W. 2 remains unshaken in cross-examination. P.W. 1 had specifically stated that the executant was quite hale and hearty at the time of execution of the Will. In our view the evidence of P.W. 2 who was one of the attesting witnesses of the will is of considerable importance in this case. P.W. 3 is Dabaprasad Mookherjee. The testator Rash Behari Banerjee was his mother's sister's husband. His evidence goes to show that Rash Behari Banerjee was mentally and physically alert even before his death. P.W. 4 is the plaintiff Fhalguni Mukherjee. He was not in India at the relevant time. However it is evident from his evidence that though the testator had been suffering from diabetes it was not so serious. He denied that the testator was stone blind. It has pertinently been pointed out by the learned trial Judge in his judgment that no suggestion was given in cross-examination to P.W. 4 that the testator had no testamentary capacity to execute the Will. P.W. 5 Gobinda Chandra Kundu was attached to the estate of the testator as accountant. His evidence indicates that in the year 1375 B.S. (corresponding to 1968) Rash Behari Banerjee executed a deed of lease in favour of Hazi Hazarat Ali regarding Ratanpur Hat. P.W. 5 Gobinda Chandra Kundu was attached to the estate of the testator as accountant. His evidence indicates that in the year 1375 B.S. (corresponding to 1968) Rash Behari Banerjee executed a deed of lease in favour of Hazi Hazarat Ali regarding Ratanpur Hat. It is noteworthy in this context that the disputed Will was executed by Rash Behari Banerjee in the same year and as such the evidence of P.W. 5 indicates that in 1968 the said Rash Behari Babu had got full capacity to execute deed. 14. The learned Advocate for the appellants contended that the executant Rash Behari Banerjee was blind at the time when the Will is stated to have been executed by him. He drew our attention to the certified copy of the evidence of Rash Behari Banerjee in T.S. No. 327 of 1961 of the Court of 1st Munsif, Maida which was admitted in evidence in this Court and marked HC Exhibit 'A' and pointed out (vide page 7 of the certified copy of the deposition) that in answer to question No.5 Rash Behari Banerjee stated on oath that he was blind. The specific question being question No. 5 in the said deposition which was asked to Rash Behari Banerjee in the course of his evidence in the said suit was as follows- "That I put it to you that they erected the said room 12 years ago-It is true ?" The answer given was as follows- "It is absolutely false. I am blind, I came to know about their false words from my employee and I was surprised." The learned Advocate for the appellants laid much emphasis on the words 'I am blind' which find place in the above noted answer of Rash Behari Banerjee. He drew our attention to Section 33 of the Indian Evidence Act and argued that the evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a subsequent judicial proceeding the truth of the facts which it states when the witness is dead. On careful perusal of the evidence of Rash Behari Banerjee. as evident from the said document we find that the term 'blind' appearing in the relevant portion of the aforesaid evidence as pointed out above does not indicate physical blindness of Rash Behari Banerjee.-It only signifies his ignorance about the particular incident. On careful perusal of the evidence of Rash Behari Banerjee. as evident from the said document we find that the term 'blind' appearing in the relevant portion of the aforesaid evidence as pointed out above does not indicate physical blindness of Rash Behari Banerjee.-It only signifies his ignorance about the particular incident. The learned Advocate for the respondent had pertinently drawn our attention to question No. 22 and question No. 27 in the certified copy of the deposition of Rash Behari Banerjee in the aforesaid title suit which had been marked as HC Exhibit 'A'. It is quite clear on perusal of question No. 22 that the certified copy of the relevant document referred to therein was shown to Rash Behari Banerjee at the time of his deposition. Furthermore, question No. 27 clearly reveals that copy of the document relating to service of the plaint as mentioned therein was shown to Rash Behari Banerjee who was asked to answer whether it was correct and Rash Behari Banerjee answered in affirmative. It had rightly been argued by the learned Advocate for the respondent that had Rash Behari Banerjee been blind at the time of the said deposition, such questions could not have been asked to him. So from the said• testimony of Rash Behari Banerjee given in the above noted suit it can in no way be inferred that Rash Behari Banerjee was at all blind. 15. Defendant No.4 Subrata Mukherjee (D.W. 3) stated in his' evidence that his grandfather Rash Behari Banerjee became completely blind in the year 1967 and had no power to comprehend. As per his version the said Rash Behari Banerjee was under the treatment of Dr. A. K. Roy. But, the said Dr. A. K. Roy was not examined by the contesting defendants who alleged the blindness. It had rightly been pointed out by the learned trial Judge in his judgment that in order to prove blindness it was the duty of the defendants who alleged about stone blindness to examine the said doctor who is alleged to have treated blindness of Rash Behari Banerjee. In the instant case we find that the contesting defendants who are the appellants failed to discharge the onus of proving blindness of the testator Rash Behari Banerjee by adducing any credible evidence. In the instant case we find that the contesting defendants who are the appellants failed to discharge the onus of proving blindness of the testator Rash Behari Banerjee by adducing any credible evidence. It has already been pointed out that the certified copy of deposition of Rash Behari Banerjee adduced in the particular title suit marked as HC Exhibit 'A' on which whole-hearted emphasis was laid by the learned Advocate for the appellants to prove blindness of the testator cannot reveal physical blindness of the testator Rash Behari Banerjee for the reasons already cited. The evidence of P.W. 2 Ashoke Kumar Dutta who is attesting witness of the Will as discussed above clearly proves that the testator himself went through the contents of the Will prior to execution. The evidence of D.W. 5 Dr. Shailendra Kumar Saha who is stated to have treated the testator Rash Behari Banerjee does not indicate anything to show blindness of Rash Behari Banerjee. 16. Having regard to the aforesaid facts and circumstances and evidence on record we find no convincing proof of blindness of the testator Rash Behari Banerjee at the time when the Will was executed and as such the contention raised by the appellants regarding blindness of the testator Rash Behari Banerjee at the material point of time when the Will was executed can in no way be countenanced. 17. From the evidence of D.W. 2 Panna Lal Das we find that till September 1967 the testator had capacity to understand everything. But, there is no evidence to suggest that the testamentary capacity of the testator Rash Behari Banerjee was nil from September 1967 till July 1968. 18. The learned trial Judge pertinently referred to the documents marked Exhibits 3, 4(a) and 14 which were filed in Act 39 Case No. 138/75 wherefrom it appears that both the joint executors admitted due execution and registration of the Will by the testator Rash Behari Banerjee. It is significant to note in this context as well that D.W. 4 Rama Mukherjee who is present appellant No. 1 filed an application in Act 39 Case No. 138/75 which was marked as Exhibit-4(b) wherefrom it is quite evident that genuineness of the Will was practically admitted by her and she raised no objection to grant of probate of the Will executed by her father Rash Behari Banerjee. 19. 19. On going through the contents of the Will and considering the circumstances and materials-on-record we find no suspicious circumstances surrounding execution of the Will. An abortive endeavour was made on behalf of the appellants to show exercise of undue influence by Lal Mohan Mukherjee the father of the respondent Fhalguni Mukherjee at the time of execution of the Will by the testator Rash Behari Banerjee. From the evidence on record pointed out above it is quite clear that the testator Rash Behari Banerjee had testamentary capacity to execute the Will at the relevant time when the Will was executed. Had it been the fact that the Will was prepared at the instance of Lal Mohan Mukherjee he himself could have been appointed as sole executor or at least one of the joint executors at the time of execution of the said Will by the testator. But, Lal Mohan Mukherjee was not at all benefited by the said Will. Furthermore, it has clearly been recited in the Will that if the present respondent Fhalguni Mukherjee marries any foreign lady or any woman of different caste he will not get any property of the testator. If at all Lal Mohan Mukherjee the father of the present respondent Fhalguni Mukherjee had any role to play in the matter of creation of the said Will such condition could not have been incorporated therein. 20. From all that has been stated above we are clearly of the view that the testator Rash Behari Banerjee having testamentary capacity executed the Will and that the said Will is a genuine one which was duly executed and attested. The learned trial Judge was justified in granting Letters of Administration of the Will in favour of the plaintiff/respondent. There is no merit in the instant appeal. The appeal is accordingly dismissed. The judgment and decree passed by Sri T. B. Deb the learned Additional District Judge 11th Court, Alipore, on 30.9.86 in O. S. No. 11 of 1981 are affirmed. There will be no order as to costs. Chatterjee, J. : I agree.