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2008 DIGILAW 737 (CAL)

Sukumar Adhikary v. Dipu Rani Adhikary

2008-07-24

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment :- (1.) THIS appeal is at the instance of an Executor in the proceedings for grant of probate and is directed against the judgment and decree dated 19th February, 2002 passed by the Additional District Judge, First Court, Hooghly, in Probate suit No. 107 of 1988 thereby dismissing the said proceedings. (2.) THE appellant before us filed an application for grant of probate of an unregistered Will dated 4th November, 1987 alleged to have been executed by one Chandi Charan Ghosh by which his entire property was given to his youngest daughter, the wife of the Executor. (3.) IT appears from record that the deceased was suffering from liver cancer and was admitted in B. R. Singh Hospital from 7th October, 1987 till 7th November, 1987 and ultimately, died on 15th November, 1987. The said Chandi charan Ghosh had married twice. There are two children through his first wife and further two children from the second wife. According to the Executor, the will was scribed by one Sailendra Nath Das, a deed writer, on the oral instruction of the testator taken down by him in writing and such Will was executed on 4th November, 1987 in the hospital itself where two co-patients figured as attesting witnesses. (4.) THE application for probate having been contested by the children of the first wife of the testator, it was converted into a regular suit. In the written statement, it was alleged that the testator had no mental or physical capacity to execute any Will at that point of time and that the same was a fabricated one. (5.) AT the time of hearing, the Executor figured as P. W.-1 and according to him, he knew nothing about the execution and attestation of the Will and the same was handed over to him by the scribe 3 or 4 days after the release of the testator from the hospital in his presence. The youngest daughter, the sole beneficiary under the Will, appeared as P. W.-2 and she claimed that her father was quite capable of execution of the Will on 4th November, 1987. D. W.-3 is the alleged scribe of the Will who stated that he earlier knew the testator as he had previously prepared some deeds executed by the testator. The youngest daughter, the sole beneficiary under the Will, appeared as P. W.-2 and she claimed that her father was quite capable of execution of the Will on 4th November, 1987. D. W.-3 is the alleged scribe of the Will who stated that he earlier knew the testator as he had previously prepared some deeds executed by the testator. According to him, the testator sent a letter through a person named Biswanath Roy to him asking him to meet at B. R. Singh Hospital where he gave him instruction to write the Will. Such instruction was taken down by him in writing and after one or two days, the Will was prepared and the testator after going through the contents of the same executed the Will. According to the said witness, he put his signature as both witness and scribe and Sudhir Kumar Patra and Sarajit Kumar bhattacharjee, two co-patients, hospitalised at that point of time, were the other attesting witnesses of the said Will. D. W.-4 claimed to be an acquaintance of the testator and according to him, he went to see the testator in his last days in the hospital and at that time, he was quite capable of understanding everything. (6.) THE son and daughter of the first wife of the testator appeared as the witnesses for the respondent and they controverted the evidence given by the witnesses for the Executor. (7.) THE learned Trial Judge on consideration of the materials on record disbelieved the witnesses for the Executor and concluded that the appellant had failed to prove due execution and attestation of the said Will. (8.) BEING dissatisfied, the Executor has come up with the present appeal. After hearing the learned counsel for the parties and after going through the materials on record we agree with the learned Trial Judge that the appellant had failed to prove due execution and attestation of the Will. We find that nobody on behalf of the propounder could disclose the whereabouts of the two attesting witnesses who were co-patients at the relevant point of time at the B. R. Singh hospital. It appears from the evidence given by the scribe that he requested the doctors and nurses to be attesting witnesses but they refused to become such attesting witnesses. Such fact rather supports the case of the caveators that he was physically unfit to execute any Will. It appears from the evidence given by the scribe that he requested the doctors and nurses to be attesting witnesses but they refused to become such attesting witnesses. Such fact rather supports the case of the caveators that he was physically unfit to execute any Will. The testator allegedly executed the Will eleven days prior to his death and he was suffering from liver cancer. In our view, the alleged scribe having admitted in his evidence that the testator gave him prior instruction, which was noted down by him, it was his duty to produce such written note. We are further surprised to see from the original Will that the said will contained the alleged signature of the testator only on the right-hand corner of the pages but there was no signature after the completion of the Will. It was quite unusual that in a Will written in Bengali, after completion of the Will, the testator would not put his signature as mark of his execution. It is, therefore, apparent that the said Will was manufactured based on the signatures earlier taken on the right-hand corner of the pages for some other purpose but at that point of time, the testator was not in a position to put further signature at the end of the document. (9.) ALTHOUGH in his examination-in-chief, the Executor stated that the P. W.-3 handed over the Will to him in the house of his father-in-law 3 or 4 days after his release from the hospital in his presence, in cross-examination, he stated that he saw the Will for the first time after the death of his father-in-law in a box when they were searching the old papers. He further stated that he saw the scribe for the first time in the hospital whereas the scribe in his evidence said that on the two occasions he visited the hospital, he did not find the son, the daughter or the son-in-law of the testator. It is therefore apparent that both the Executor and the scribe told deliberate false story before the Court of the execution of the Will and such inconsistency came out in the cross-examination. It is therefore apparent that both the Executor and the scribe told deliberate false story before the Court of the execution of the Will and such inconsistency came out in the cross-examination. It is absurd to suggest that the scribe would hand over the Will to the Executor when the evidence of the (10) EXECUTOR is that he and his wife regularly visited the hospital and brought back the testator from the hospital four days before his death. In normal circumstances, the testator himself should have handed over the Will to his son-in-law if he really intended to make him the Executor of the Will when the said son-in-law was visiting the hospital everyday. The statement of the Executor that he discovered the Will from a box after the death of his father-in-law falsified the entire case made out in the proceedings including the deposition of the alleged scribe-cum-attesting witness. (11.) ALTHOUGH, Mr Rakshit, the learned advocate appearing on behalf of the appellant by relying upon the decision of a Division Bench of this Court in the case of K. C. G. Verghese vs. K. T. Rajendran reported in 2003 (2) CHN 144 tried to convince us that the scribe in this case should be treated to be attesting witness and we should grant probate on the basis of his evidence, we are not at all impressed by such submission. It is apparent that the said scribe was a person set up by the Executor as he could not even tell the whereabouts of the other two attesting witnesses nor could he produce the written note prepared by him based on the alleged oral instruction given by the testator. No explanation has been given why those two attesting witnesses were not examined. Even the person who allegedly conveyed the letter written by the testator to him was not examined. We, therefore, disbelieve the evidence of the alleged scribe. (12.) ON consideration of the entire materials on record, we, thus, find no merit in this appeal and the same is accordingly dismissed. In the facts and circumstances, there will be, however, no order as to costs.