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2009 DIGILAW 621 (CAL)

Tarit Kumar Chatterjee v. Tapan Kumar Chatterjee

2009-08-18

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : BHASKAR BHATTACHARYA, J (1.) This first appeal is at the instance of the caveator in a proceeding for grant of probate and is directed against the judgment and decree dated 24th April, 2001 passed by the learned Additional District Judge, 7th Court, Alipore, in O. S. No. 7 of 1995 thereby granting the probate of the Will executed by one Smt. Swapna Chatterjee, the mother of the parties. (2.) Being dissatisfied, the caveator has come up with the present first appeal. The respondent No.1, one of the three sons of the testatrix, filed an application for grant of probate of the last Will and Testament of Smt. Swapna Chatterjee dated 20th December, 1985 which was subsequently registered on 31rd January, 1986. (3.) By the said Will written by a deed-writer in Bengali, the testatrix divided her residential house in Behala in three different portions in favour of her three sons. There is no dispute that at the time of execution of the Will, the testatrix had three sons, one married daughter and the husband. The testatrix was alive more than four years after the date of execution of the Will. It was alleged in the application for grant of probate that the said Will was executed in the house of the married daughter of the testatrix situated in Dum Dum. It further appears that the husband and the married daughter of the testatrix were the attesting witnesses to the said Will. The testatrix was literate and she put her signature on the Will in Bengali. (4.) The probate application was contested by the eldest son of the testatrix thereby alleging that the signature of the testatrix appearing on the Will was not her signature and that the same was obtained by practising fraud, undue influence and coercion. In other words, the defence of the appellant was that the Will in question was not the outcome of the free will of the testatrix. (5.) At the time of hearing of the said application the executor, the scribe of the Will, the married daughter, since deceased, and the youngest son gave evidence in support of the application for grant of probate while the appellant alone deposed in opposing the grant of probate. (5.) At the time of hearing of the said application the executor, the scribe of the Will, the married daughter, since deceased, and the youngest son gave evidence in support of the application for grant of probate while the appellant alone deposed in opposing the grant of probate. (6.) The learned Trial Judge, as indicated earlier, by the judgment and decree impugned herein believed the case of the executor and granted probate in favour of the executor. The learned Trial Judge disbelieved the defence version that the Will was vitiated by fraud, undue influence or coercion. Being dissatisfied, the caveator has come up with the present appeal. (7.) Mr. S. P. Mukherjee, the learned Advocate appearing on behalf of the appellant, at the very outset, by drawing our attention to the evidence given by P.W.2, the scribe, submitted before us that we should disbelieve the version of execution of the alleged Will put forward by the executor in view of the fact that the said P.W.2 specifically stated that the alleged Will was executed in the house of the testatrix at Behala, whereas the other witnesses stated that the Will was executed in the house of the married daughter of the testatrix in Dum Dum, According to Mr. Mukherjee, such fact indicates that the tutored witnesses were brought in the witness box for the purpose of proving the Will. (8.) After going through the materials on record, we find that all the witnesses except P.W.2 have specifically stated that the Will was executed in the house of the married daughter of the testatrix at Dum Dum. No suggestion was given to any of those witnesses that the Will was not executed at the said house. Even the appellant as a sole witness, on his behalf, in deposition, did not dispute the signature of her mother on the Will, but his version was that the same was vitiated by fraud, undue influence and coercion. (9.) The Will was executed in the month of December, 1985 whereas the P.W.2 deposed in the year 1988 long 13 years thereafter. (9.) The Will was executed in the month of December, 1985 whereas the P.W.2 deposed in the year 1988 long 13 years thereafter. Therefore, if there was any mistake on the part of the said outsider, a scribe, in giving wrong description of the place of execution of the Will, the same cannot be fatal when execution of the Will has not been disputed by the appellant, but his case is that the same was tainted by fraud, undue influence and coercion. (10) We, thus, ignore that wrong statement made by the P.W.2 as regards the place of execution of the Will. (11.) It is now settled law that the person who alleges fraud, undue influence or coercion must prove such fact. Mere allegation in the pleading that a particular transaction was vitiated by those elements will not be sufficient. Some particulars of fraud, undue influence and coercion should be given. In this case, we find that although those elements were put forward as defence on behalf of the appellant, no particular evidence of fraud, undue influence or coercion was given at the time of deposition. (12.) We find that the husband of the testatrix was alive and he figured as the first attesting witness. The married daughter was totally excluded by virtue of the said Will but in spite of such fact, she figured as attesting witness of the Will and at the same time, gave evidence in support of execution of the Will. It further appears from the Will itself that the testatrix did not exclude any of her sons and all of them were given specific allotment in the residential house at Behala. The grievance of the appellant is that his allotment was not up to the standard and in comparison to his allotment, other two brothers have been given more number of rooms. (13.) After taking into consideration the facts and circumstances of this case and having regard to the fact that no evidence has been adduced alleging any particular instances of the undue influence, fraud or coercion, we are unable to accept the contention of Mr. S. P. Mukherjee appearing on behalf of the appellant that the learned Trial Judge should not have granted probate of the said Will for the above reason. A Probate Court cannot refuse grant of probate merely because the deviation of the property was not equitable. S. P. Mukherjee appearing on behalf of the appellant that the learned Trial Judge should not have granted probate of the said Will for the above reason. A Probate Court cannot refuse grant of probate merely because the deviation of the property was not equitable. (14.) We have already pointed out that the Will in question was presented for registration by the testatrix herself and due execution and attestation has been proved. (15.) Although the appellant tried to contend that the testatrix was not physically fit, we are not impressed by such submission. All the witnesses have stated that she was quite capable of managing her affairs and she understood the contents thereof and it further appears that she was even alive for more than 4 years after the execution of the Will. (16.) On consideration of the entire materials on record we, thus, find no reason to interfere with the judgment and decree passed by the learned Trial Judge. This appeal is, thus, devoid of any substance and is dismissed. (17.) In the facts and circumstances, there will be, however, no order as to costs. (18.) Xerox certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities. Appeal dismissed.