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2008 DIGILAW 141 (CAL)

Swapan Kumar Nandan v. Ram Kishore Dubey

2008-01-31

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment Bhaskar Bhattacharya, J. This probate appeal is at the instance of one of the caveators and is directed against judgment and decree dated 16th March, 1992 passed by the learned Additional District Judge, 6th Court, Alipore in Original Suit No.5 of 1985 thereby granting probate of the last Will and Testament of one Tara Sankar Nandan executed on 6th February, 1978 and subsequently registered on 10th February, 1978, before the Registrar, Calcutta. The respondent no.1 before us filed the aforesaid proceedings for grant of probate of a Will alleged to have been executed by Tara Sankar Nandan on 6th February, 1978 and registered on 10th February, 1978 by which the respondent no.1 was appointed the sole executor. By the said Will, the testator gave his undivided share in the Premises No.2, Kansharipara Lane, in favour of the appellant, his only son, and his entire right, title and interest in the Premises No.49, Rupnarayan Nandan Lane, was bequeathed in favour of the respondent no.1, the executor. There is no dispute that the testator died on September 6, 1980 at the Premises No.49, Rupnarayan Nandan Lane, leaving his widow, one son, the appellant before us, and a married daughter. In the Will, the testator lamented that he had no connection with his wife, the son and the daughter for several years in the past and that they had deserted him. It is further mentioned in the said Will that the testator had met the executor in Hardwar during his visit in 1972 and thereafter, he had been residing with the executor as he was looked after and respected as if he was the father of the executor. The probate proceedings were contested by the widow, the son and the daughter of the testator and during the pendency of the proceeding, the widow died. In the written statement filed by the natural heirs of the testator, they specifically asserted that the Will was a forged one and that it did not contain the signature of the testator. It was further alleged that the testator was under the clutches of the executor for the last few years before his death. It, however, was admitted that the testator had no good relation with his wife and children and that he was staying separately with the executor of the Will for the last eight years before his death. It was further alleged that the testator was under the clutches of the executor for the last few years before his death. It, however, was admitted that the testator had no good relation with his wife and children and that he was staying separately with the executor of the Will for the last eight years before his death. Therefore, a case of undue influence was also faintly made out in the written statement. In addition to the above defences, loss of mental equilibrium of the testator was also taken. At the time of hearing of the proceedings, the executor himself, one of the attesting witnesses and the solicitor, who drafted the Will, gave evidence, while the appellant and one of the brothers of the testator deposed in opposing the grant of probate. As pointed out earlier, the learned Trial Judge, on consideration of the materials on record, concluded that due execution and attestation of the Will was proved and that there was no suspicious circumstances surrounding the execution of the Will justifying rejection of the application for grant of probate. Being dissatisfied, the son of the Executor has come up with the present first appeal. Mr Banerjee, the learned senior advocate appearing on behalf of the appellant, by drawing our attention to the evidence given by the three witnesses for the propounder, contended before us that there are inconsistencies in their evidence and there is a reasonable doubt as to the alleged place of execution of the Will. It is further submitted that the claim of the executor as to how he got hold of the Registered Will is conflicting with the evidence given by the Solicitor in whose office the Will was allegedly executed. He further contended that Ext.-4 itself shows that the Registered Will came in the custody of the executor in the year 1978 whereas the Solicitor who drafted the Will expressly stated that the receipt of the Registration was handed over to the executor after the death of the testator in the year 1980. After taking into consideration all those evidences, Mr Banerjee continues, a reasonable doubt arises as to the due execution and attestation of the Will. After taking into consideration all those evidences, Mr Banerjee continues, a reasonable doubt arises as to the due execution and attestation of the Will. Mr Banerjee further contends that only one of the attesting witnesses has been examined but his story of attestation is contrary to the evidence given by the Solicitor who drafted the same and, therefore, attestation in terms of Section 68 of the Transfer of Property Act has not been proved. Moreover, Mr Banerjee described the Will as an unnatural one where the testator had deprived his widow and the children for giving the property to a third party to the family. He, therefore, prays for setting aside the probate granted by the learned Trial Judge. Mr Ghosh, the learned senior advocate appearing on behalf of the executor, on the other hand, has supported the grant of probate and has contended that it would appear from the evidence of the appellant himself that he and his mother and the sister had no connection with the testator in his old age and he used to be looked after by the executor. Mr Ghosh submits that in such circumstances it was not unnatural for a septuagenarian person to give some of the properties to the executor who looked after him in his old age and was helping him in running the business. Mr Ghosh points out that the testator had not totally deprived his son but has given him the ancestral house and only the other house which the testator was holding on the basis of Khashmahal right was given to the executor. Regarding Ext.-4, Mr Ghosh points out that the date “12th July, 1978” indicated in the receipt, is the date when the Will was entered into the volume of the Registration and in fact, the date of deposit of further amount towards the costs of registration as indicated in the said miscellaneous receipt would appear at the bottom of the said receipt where the figure “22/9” has been indicated and on the reverse side of the application there is a rubber stamp which would show the date, though, such date is not legible. Mr Ghosh submits that there is nothing inconsistent in the evidence of the witnesses for the propounder regarding receipt of the Will from the Registration Office. Mr Ghosh submits that there is nothing inconsistent in the evidence of the witnesses for the propounder regarding receipt of the Will from the Registration Office. Mr Ghosh further submits that the provisions contained in the Will are quite natural having regard to the last part of the life led by the executor and there is no just ground for disturbing the probate granted by the learned Trial Judge. He, therefore, prays for dismissal of the appeal. Therefore, the first question that arises for determination in this appeal is whether the Will in dispute is a forged and fabricated document as contended by the appellant. Before we proceed to answer the question, we propose to follow the well-known observations of the Apex Court through the pen of P.B. Gajendragadkar, J. (as His Lordship then was) in the case of H. Venkatachala Iyengar vs. B.N. Thimmajamma and others reported in A.I.R. 1959 SC 443 where the Supreme Court pointed out the manner of proving due execution and attestation of a Will. Those are quoted below. “What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document enquired by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Section 68 deals with the proof of the execution of the document enquired by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribe by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. However, there is one important feature which distinguishes Wills from other documents. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.” It appears from the Will before us that the same is typed one in English and is executed by the testator by putting signature in both English and Bengali. In several places on the body of the Will, there are corrections and in all those places, the testator has put in his signature in English to approve the alterations. There are nine such alterations supported by the signature of the testator in the body of the Will consisting of three pages. In several places on the body of the Will, there are corrections and in all those places, the testator has put in his signature in English to approve the alterations. There are nine such alterations supported by the signature of the testator in the body of the Will consisting of three pages. It is strange that in spite of specific defence that the signatures appearing of the testator appearing on the Will were forged, no prayer was made on behalf of the appellant for comparing the signatures of the testator appearing on the Will with his admitted signatures although writings of the testator were marked as exhibits on behalf of the appellant and his own uncle appearing as a witness admitted that the testator used to grant rent receipts. It appears from page 61 of the paper book that in cross-examination of the executor, specific suggestion was given on behalf of the appellant to the witness for the propounder that taking advantage of the mental imbalance of Tarasankar Nandan, the executor along with S. N. Bagla and Sagar Dutt Sharma got the Will executed by him. The aforesaid suggestion of mental imbalance of the testator is contradictory to the case of forgery of the signatures of the testator on the Will. The appellant even in his cross-examination went to the extent that his father was an illiterate person although no such case was made out in the written statement and the writings of the testator produced by the appellant falsify his case that the testator was illiterate. We, therefore, hold that the propounder has been able to prove that the Will in question was executed by the testator and that the same did not contain the forged signature of the testator. The next question is whether the testator had the mental capacity to execute the Will. Apart from the bald statement of the appellant, no other material had been produced to show that the testator had no mental capacity at the time of execution of the Will in question. Even the brother of the testator appearing as D.W.-2 did not assert that the testator had no mental capacity to execute the Will. Apart from the bald statement of the appellant, no other material had been produced to show that the testator had no mental capacity at the time of execution of the Will in question. Even the brother of the testator appearing as D.W.-2 did not assert that the testator had no mental capacity to execute the Will. Simply because a person, more than two years after the execution of a Will, committed suicide, such fact does not suggest that he had no sufficient mental capacity to execute a document or understanding the implication of a Will. Apart from the aforesaid fact, it appears that immediately after the death of the testator, the appellant filed a suit for dissolution of partnership against the executor in respect of a teashop in the name of the testator. The plaint and the entire deposition of the appellant in that suit have been marked as exhibits in this proceeding but in those proceedings, no allegation of mental incapacity of the testator had been alleged. We, therefore, find that the plea of absence of mental capacity of the testator at the time of execution of the Will in question has not been established. The next question is whether due attestation of the Will has been proved. One of the attesting witnesses to the Will has appeared as PW-1 and has proved attestation. Similarly, the PW-3, the scribe in whose presence the Will was executed and attested had been examined and he has proved the execution and attestation of the Will by the testator and the attesting witnesses respectively. We do not find any material inconsistencies between the evidence adduced by the witnesses for the propounder so as to disbelieve the execution and the attestation of the Will. The witnesses of execution and attestation are in this case all disinterested witnesses in the sense that they have in no way been benefited by the Will and the evidence having been given in the year 1988, long ten years after the execution of the Will, there may be minor discrepancy in their evidence. The last question is whether the provisions contained in the Will are unnatural and whether there is any suspicious circumstances surrounding the execution of the Will in question. The last question is whether the provisions contained in the Will are unnatural and whether there is any suspicious circumstances surrounding the execution of the Will in question. As pointed out by the Supreme Court in the case of Indubala Bose vs. Manindra Chandra Bose reported in A.I.R. 1982 SC 133, any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. In this case, it has been proved beyond doubt that the testator for last several years before his death had no connection with his wife and children. It appears from the depositions of the appellant in the previous proceedings initiated by him for dissolution of partnership, which has been marked as exhibit in this case, that the appellant admitted that although the testator wanted to maintain relationship, it was the appellant and his mother who did not like to keep such relation. In such a situation, the testator got support from the executor who treated him as a son treats his father and even helped him in running his business. There was joint account in the bank of the testator and the executor. In such circumstances, if the testator bequeathed one of his houses to the executor by giving the other one to his son, such decision of the testator cannot be said to be unnatural. Any normal person placed in a position of the testator who was deserted by his wife and children and looked after and respected by a third party in his old age would as a gratification of the comfort given to him by the third party bequeath part of his property, if not full, in favour of such person. As observed in the case of Uma Devi Nambiar vs. T.C. Sidhan reported in 2004 A.I.R. SCW 1385, the circumstances of depriving the natural heirs by itself should not raise any suspicion because the whole idea behind the execution of the Will is to deviate from the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. It may be that in some cases they are fully debarred and some cases partly. Similarly, once we find that the signature appearing in the Will is that of the testator and that he had no lack of mental capacity to execute the Will, we cannot presume any suspicious circumstances surrounding the execution of the Will. We are not at all convinced by the submission of Mr Banerjee that the receipt Ext-4 discloses that the same was dated 12th July, 1978. We have seen the West Bengal Form No.1564, the proforma of miscellaneous receipt. It does not provide any place for denoting the date. In fact, in the said receipt, the description of the document for which the additional charge was given was indicated by referring to the Will entered into the Registration Book on July 12, 1978. Moreover, the Ext-4 was not the original receipt of registration as sought to be argued by Mr Banerjee, but was a miscellaneous receipt showing payment of further amount apart from the amount paid at the time of registration. The executor could not hold the receipt of registration after receiving back the registered document. By production of Ext-4, the executor wanted to show that he paid the balance amount at the time of receiving back the original Will from the Registration Office. Thus, there is no suspicious circumstance in production of the Ext-4 and the same was really dated 22/9 as indicated in the bottom of the said document meaning September 22, 1980 as stated by the executor in his deposition. We, on consideration of the entire materials on record, thus, conclude that the propounder has proved due execution and attestation of the Will in question and consequently, find no merit in this appeal. The appeal is, therefore, dismissed. In the facts and circumstances, there will be, however, no order as to costs.