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2009 DIGILAW 364 (CAL)

Basanta Kumar Ghosh v. Bimal Kumar Nayak

2009-05-11

BHASKAR BHATTACHARYA, JAPAN KUMAR DUTT

body2009
Judgment : BHATTACHARYA, J. (1) This first appeal is at the instance of the defendant in a proceeding for grant of Probate and is directed against the judgment and decree dated 30th May, 2001 passed by the Additional District Judge, Kalna, District-Burdwan in O.S. (Will) Case No. 2 of 1999 thereby granting Probate in favour of the respondents. (2) Being dissatisfied, the one of the defendants, the younger brother of the testator, has come up with the present appeal. (3) The respondents before us, four in number, as executors, filed an application for grant of Probate of the alleged last Will and Testament of one Anil Kumar Ghosh by which the testator bequeathed all his properties in favour of the members of a local club by making the respondents as executors. The present appellant, the brother of the testator, having opposed the grant, the matter became contentious and gave rise to O.S. (Will) Case No. 3 of 1995. (4) In the written statement filed by the appellant, the appellant alleged that the testator never executed the alleged Will and that he was an illiterate person and, he did not know how to sign whereas in the alleged Will, the testator apparently put his signatures. It was further contended that there were different interpolations in the body of the Will by different inks. The appellant further contended that he had very good relation with his elder brother and as such, there was no occasion for the testator to deprive the appellant and his sisters of his properties when he was a bachelor. (5) At the time of hearing, four persons gave evidence in support of the propounder while the appellant and two others deposed in opposing the grant. (6) As pointed out earlier, the learned Trial Judge, by the judgment and decree dated 30th May, 2001, was pleased to grant Probate thereby holding that the execution and attestation of the Will had been duly proved and that the same was not otherwise vitiated so as to refuse the grant. (7) Being dissatisfied, the appellant has come up with the present appeal. (8) Mr. (7) Being dissatisfied, the appellant has come up with the present appeal. (8) Mr. Mukherjee, the learned Advocate appearing on behalf of the appellant, has, at the outset, drawn our attention to the fact that although the alleged Will was executed on 28th September, 1992, one month before the death of the testator, by putting his alleged signature on the Will, it appears from the sale-deed executed earlier, on 4th February, 1991, that the said testator sold a part of his property by putting thumb impression which indicated that the testator was an illiterate person. Mr. Mukherjee further submits that even if we assume for the sake of argument that the testator could write his name, the Will itself would show that the alleged signatures of the testator were taken on some blank papers. Mr. Mukherjee further contends that the testator was a bachelor having one brother and two sisters and all of them were in good terms with him and therefore, there was no justification of the statements made in the Will that none of the brother or sisters ever looked after him and was really looked after by the members of the local club and for that reason, he bequeathed his entire properties in favour of the members of the said local club. Mr. Mukherjee, therefore, prays for setting aside the judgment and the decree passed by the learned Trial Judge granting Probate. (9) Mr. Chatterjee, the learned Advocate appearing on behalf of the respondent, on the other hand, has supported the judgment and decree impugned and has contended that from the evidence on record it has been well established that the Will was duly executed and attested. According to Mr. Chatterjee, there was no just reason for disbelieving the four witnesses who are- not interested in anyway in the subject-matter of the Will and consequently, there was no suspicious circumstance in the execution of the Will. He, therefore, prays for dismissal of the appeal. (10) Therefore, the question that arises for determination in this appeal is whether the learned Trial Judge was justified in granting probate of the Will in the facts and circumstances of the case. He, therefore, prays for dismissal of the appeal. (10) Therefore, the question that arises for determination in this appeal is whether the learned Trial Judge was justified in granting probate of the Will in the facts and circumstances of the case. (11) Before entering into such question, we should bear in mind the well-settled principles which a probate Court is required to follow before arriving at its final conclusion as laid down by the Supreme Court in the case of H. Venkatachala lyengar v. B.N. Thirimajamma and Ors. reported in AIR 1959 SC 443 : "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. There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testators mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appeared be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testators free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter." (12) After hearing the learned Counsel for the parties and after going through the materials on records and keeping in mind the aforesaid principles laid down by the Apex Court, we find that the testator died bachelor. In the Will, which is in Bengali, scribed by P.W.2, a professional scribe attached to the local Registration Office, it was stated that the testator lost his parents in the early childhood and was brought up in the maternal uncles house. In the Will, which is in Bengali, scribed by P.W.2, a professional scribe attached to the local Registration Office, it was stated that the testator lost his parents in the early childhood and was brought up in the maternal uncles house. According to the version of the Will, the brothers and the sisters of the testator kept no relation with him and in his last days of his life, the members of the local club looked after him and made all arrangements for his treatment. It was further stated therein that he in the last part of his life came in contact with a widow whom he wanted to give the status of his wife but she left her by cheating him and making him a destitute. The said Will is executed by putting signature in every page of the Will in Bengali. The attesting witnesses proved due execution and attestation of the Will. The specific defence of the appellant on the other hand is that the testator was illiterate and was unable to even write his own name and in support of such contention, a registered sale-deed executed by the testator one year prior to the date of execution of the Will has been marked as Exbt.A. It appears from the said document that the testator sold some immoveable property by putting thumb impression. The said deed has been written by none else than the son of the P.W.2, the scribe of the disputed Will. The P.W.2 in his deposition admitted that if a literate person executes any deed by putting thumb impression, a note is to be given why the executants did not put his signature. In Exbt.A, there was, however, no such explanation. Not a single document has been produced by the propounder of the Will wherefrom any signature of the testator is available and at the same time, no document written by the testator been proved. In the absence of any such document and on the face of Exbt.A, the deed admittedly executed by the testator one year prior to the date of execution of the alleged Will, we find substance in the contention of Mr. Mukherjee that the suspicion surrounding the due execution of the Will has not been dispelled by the executors. In the absence of any such document and on the face of Exbt.A, the deed admittedly executed by the testator one year prior to the date of execution of the alleged Will, we find substance in the contention of Mr. Mukherjee that the suspicion surrounding the due execution of the Will has not been dispelled by the executors. Even no document has been produced to show that the members of the local club ever made any treatment of the testator in his last days. (13) According to the executors, the testator went to the Sherista of the P.W.2 in the Registry Office which was situated quite at a distant place from the place of residence of the testator. It was also admitted that the testator wanted to register the said Will. But no satisfactory evidence has been given why the deed was not presented for Registration although the same was allegedly executed in the premises of the Registration Office. The P.W.2 stated that he maintained a draft of the Will but the said draft was not produced. The P.W.4, an attesting witness to the Will, in examination-in-chief, stated that he could not say whether the testator was illiterate or not, nevertheless, proved the execution of the Will by the alleged signature of the testator. (14) We have gone through the Will in question. It appears that the Will was written on demy papers and on each of the three pages of the Will, there were signatures of the testator in Bengali but before such signature, in a different ink the digit 1 in Bengali was written as if he was the first signatory on such paper. We fail to appreciate why the Bengali digit "1" should be written in a different ink before the place meant for putting signature of a testator on the each pages of the Will. The aforesaid fact indicates that the Will was prepared on papers which already contained such signature. At the same time, the fact that the testator executed a sale-deed by putting thumb impression without recording any explanation as to why he did not put his signature itself raises strong ground to believe the ease of the appellant that the testator could not write even his name. At the same time, the fact that the testator executed a sale-deed by putting thumb impression without recording any explanation as to why he did not put his signature itself raises strong ground to believe the ease of the appellant that the testator could not write even his name. Although the P.W.3 asserted that the testator used to write him letters he expressed his inability to produce those letters on the plea that he found no reason to retain those letters. (15) On taking into consideration the aforesaid facts and the further fact that the Will was not registered although executed in the premises of the Registration Office itself raises a strong ground to accept the contention of the appellant that the Will was subsequently manufactured. (16) We find that the learned Trial Judge did not take into consideration those aspects of the case. We are of the opinion that the executors failed to dispel the suspicious circumstances in the matter of the execution of the Will in question. No satisfactory evidence has been produced to show that the members of the club, the beneficiaries under the Will, ever looked after the testator or bore the cost of any medical treatment of the testator. Not a single prescription or the receipt showing purchase of medicine has been exhibited to justify the statement made in the Will. (17) We, therefore, set aside the probate granted by the Trial Court and hold that the executors failed to prove due execution and attestation of the Will in question. The appeal is thus allowed. (18) In the facts and circumstances, there will be, however, no orders as to costs.