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2011 DIGILAW 1417 (CAL)

Manmohan Jhunjhunwala v. Biswanath Jhunjhunwala

2011-11-15

I.P.MUKERJI

body2011
JUDGMENT 1. ON 21st August, 1996 Shree Kishan Jhunjhunwala who resided at 21, Sir Hariram Goenka Street, Calcutta-700 007 (now Kolkata) made and published his last Will and Testament. I will come to the bequests made in this Will and Testament, later. On 1st December, 1998 he died. In the Will the testator had appointed Biswanath Jhunjhunwala one of his sons and Tarun Jhunjhunwala, son of his predeceased son Bikram as the Joint Executors. On or about 2nd July, 2001 the executors verified an application filed in this Court for obtaining probate of the Will. It was numbered as PLA No. 217 of 2001. It appears from the records that along with the said application for grant of Probate, the above propounders, filed inter alia a declaration said to be signed by Manmohan Jhunjhunwala a son of the testator and the present applicant, dated 28th March, 2001. In that document he was identified by an Advocate. It was a declaration of his consent to the grant of Probate to the propounders. In this application the authenticity of this document is challenged, to which I will advert to in detail, later. The above Will was probated in common form by this Court on 18th October, 2001. 2. I am told that on 29th November, 2001 a Deed of Assent was executed by the Joint Executors. 3. NOW, this application G.A. No. 2607 of 2009 has been filed by Manmohan Jhunjhunwala, one of the sons of the testators. It was filed as late as on 16th September, 2009, almost eight years after grant of Probate. It seeks revocation of the grant on many grounds. Some of the important grounds are as follows:- (a) The declaration of consent by Manmohan Jhunjhunwala dated 28th March, 2001 is a forged document. Therefore, this Court ought not to have accepted the consent as true and granted Probate in common form without issuance of citation to the heirs and other persons interested in the estate of the testator including the applicant. (b) The applicant had no knowledge of the Will or the Probate till 10th August, 2009. It came to his knowledge after he got information that the executors or legatees under the Will were trying to mutate their names in the records of Dumdum Municipality. The Dumdum Municipality officials apprised him of the Will and the Probate. (b) The applicant had no knowledge of the Will or the Probate till 10th August, 2009. It came to his knowledge after he got information that the executors or legatees under the Will were trying to mutate their names in the records of Dumdum Municipality. The Dumdum Municipality officials apprised him of the Will and the Probate. (c) The Will of Shree Kishan Jhunjhunwala is forged and brought into existence by the executors. The father never executed any Will. THE WILL: 4. LET me discuss the disposition made by Shree Kishan Jhunjhunwala, by his Will. 5. IN the first two recitals he says that he is the absolute owner of 10, Mall Road, Dumdum and 3, Karbala Mohammad Street, Kolkata- 700 007. IN the next recital he goes on to say that these two properties are let out to tenants. IN the next two recitals he mentions about a decree in his favour dated 20th December, 1984 of which execution is pending. 6. THEREAFTER, he explains why he is not making any bequest in favour of his daughters, the reason being that they are well placed in life. 7. IN the habendumn part he appoints Joint Executors, one being his son Biswanath Jhunjhunwala and the other his grandson Tarun. Then the bequests. He gives a specified portion of 10 Mall Road, Dumdum described in the Sixth Schedule to the Will to the Hindu Undivided family of his son Biswanath. Another specified portion of the same property described in the Seventh Schedule is given to the widow and sons of another predeceased son Atmaram Jhunjhunwala. He bequeaths another portion of the same property described in the Eighth Schedule to the Hindu Undivided Family headed by Tarun, a son of his predeceased son Bikram. Yet another portion of the same property described in the Ninth Schedule is given to the Hindu Undivided Family of Biswanath. There are some other bequests also. 8. NOTHING is given to his other son Manmohan, the present applicant. There is no explanation in the Will why he was being excluded. FORGERY: 9. NOW, the above declaration of consent by Manmohan Jhunjhunwala to the grant of Probate, is challenged by him as being a forgery. In Annexure- 'H' to the affidavit-in-reply, he has relied upon the report of Mr. Purushottam Chatterjee, a document examiner dated 11th August, 2009. There is no explanation in the Will why he was being excluded. FORGERY: 9. NOW, the above declaration of consent by Manmohan Jhunjhunwala to the grant of Probate, is challenged by him as being a forgery. In Annexure- 'H' to the affidavit-in-reply, he has relied upon the report of Mr. Purushottam Chatterjee, a document examiner dated 11th August, 2009. Inter alia three specimen signatures of Manmohan Jhunjhunwala, one of which is at the foot of the declaration of consent and which is disputed were placed before this document examiner for examination. The other two signatures were admittedly of Manmohan made on a letter dated 6th September, 2004 by him to the Branch Manager of State Bank of India, Ezrastreet Branch, Kolkata requesting him to attest his signature. Further five specimen signatures seem to have been obtained by the document examiner on 11th August, 2009, from Manmohan. 10. NOW the document examiner has marked the signature in the disputed declaration as 'Q', the two signatures in the letter to State Bank of India as 'A' and 'AT and the five signatures obtained by him on 11th August, 2009 as 'A2', 'A3', 'A4', 'A5' and 'A6'. His report seems to doubt the signature marked with 'Q'. I quote a portion of the report:- "...........In the instant case, I would draw special attention about the line quality in Q signature. From start to end, there are poor line quality which are totally absent in A series signatures. All A series signatures were written with good line quality and with good speed. The cumulative value of the points of differences strongly leads to a case of non-identity beyond any doubt. I have duly considered the nature of agreement also between A series with Q signature and I am perfectly satisfied that they are none of vital nature to be considered in my report. They are mere pictorial agreement at places (due to imitation) and not of vital nature. 11. ON the basis of this report Manmohan alleges that the declaration of consent dated 28th March, 2001 is a forgery. 12. MY impression, on scrutiny of these specimen signatures of Manmohan is that there is considerable discrepancy, even in the signatures admitted by him. I see a vast difference between the signature attested by the bank in 2004 and the five signatures said to have been made before the examiner on 11th August, 2009. 12. MY impression, on scrutiny of these specimen signatures of Manmohan is that there is considerable discrepancy, even in the signatures admitted by him. I see a vast difference between the signature attested by the bank in 2004 and the five signatures said to have been made before the examiner on 11th August, 2009. It is true that each one of these signatures differs with the signature made on the declaration. But when there is so much discrepancy in the admitted signatures, do not place much weight on the report of the examiner. Therefore, I feel no necessity of appointing a Court handwriting expert or calling for a trial on evidence. This is particularly so, in view of the facts discussed below. INORDINATE DELAY: 13. THE Supreme Court has made it plain in the case of Kunverjeet Singh Khandpur v. Kirandeep Kaur andOrs., reported in AIR 2008 SC 2058 that filing of an application for grant of Probate or Letters of Administration is covered by Article 137 of the Limitation Act (See Paragraph 15). Now if an application for grant of probate is covered by Article 137, then an application for revocation of such grant also seems to be covered by that Article. Therefore, an application filed on 16th September, 2009 to revoke a Probate granted on 18th October, 2001 is on the face of it barred by limitation. But the applicant invokes Section 17 of the Limitation Act to submit that he had no knowledge of the grant of Probate because of the fraud of the propounders and that upon acquiring knowledge of the grant of probate while attending mutation proceedings in the Dumdum Municipality as pleaded by him, he forthwith made this application before the Court. 14. SO, the question which is central, is whether the applicant is to be treated as having acquired knowledge of the grant of Probate in August 2009 as pleaded by him. 15. ALTHOUGH not pleaded by the first and the second respondents in their affidavit-in-opposition it was pointed out to me from the records by Mr. S.P. Sarkar, learned Senior Counsel appearing for the said respondents that one firm of Advocates of this Court M/s. Surana and Choudhury had applied for and obtained copies of the records of the probate proceedings. These copies were certified on 30th August, 2004 by an official of this Court. S.P. Sarkar, learned Senior Counsel appearing for the said respondents that one firm of Advocates of this Court M/s. Surana and Choudhury had applied for and obtained copies of the records of the probate proceedings. These copies were certified on 30th August, 2004 by an official of this Court. The certificate is at page 88 of the application. That M/s. Surana and Choudhury had asked for those copies would be evident from the inscription of their name in the copies supplied to them by the Registry, at page 89 of the said application. 16. IN those circumstances by my order dated 18th July, 2011 I had directed the Registrar, Original Side to depute an officer to make an enquiry and file a report in Court as to which Advocate-on-Record had obtained copies of the probate proceedings and for whom they were acting. 17. THE report of the Registrar was dated 25th July, 2011. Thereafter, this application came up for consideration before me on 26th July, 2011. Liberty was given to the parties to inspect the report of the Registrar. The report of the Registrar stated that these copies were taken by M/s. Surana and Choudhury on 30th August, 2004. In those circumstances by my order dated 10th August, 2011 I directed the said firm of Advocates-on-Record to file an affidavit as to the person for whom they were appearing when they made a requisition for obtaining copies of the proceedings. Such a measure became necessary because the report of the Registrar stated that anyone was entitled to obtain certified copies of proceedings if they were not pending in Court and that in the ledger maintained by the Registry no record of any party was kept. 18. M/s. Surana and Choudhury filed an affidavit. In the affidavit affirmed by one Ashish Choudhury on 24th August, 2011 they referred to two letters dated 2nd December, 2010 and 12th January, 2011. By my order dated 24th August, 2011 I directed this firm of solicitors to allow inspection of these two letters by the Advocates-on-Record of the parties. 19. THE affidavit also stated that they were acting for one Mr. Sawalram Jhunjhunwala. Incidentally Mr. Sawalram Jhunjhunwala was one of the witnesses to the will. They said that they obtained those copies oh the instruction of Mr. Sawalram Jhunjhunwala. 19. THE affidavit also stated that they were acting for one Mr. Sawalram Jhunjhunwala. Incidentally Mr. Sawalram Jhunjhunwala was one of the witnesses to the will. They said that they obtained those copies oh the instruction of Mr. Sawalram Jhunjhunwala. But thee words were conditioned by the expression "as far as I can remember" The requisition slip was stated to be misplaced by the office. What is of great significance is that the application G.A. No. 455 of 2011 was filed on behalf of Manmohan by M/s. Surana and Choudhury on 14th February, 2011. But it is said that on 21st February, 2011 Manmohan Jhunjhunwala disengaged this firm. 20. BY my order dated 24th August, 2011 all parties were given an opportunity of dealing with the said affidavit of M/s. Surana and Choudhury. REASONS: 21. THIS application has to be dismissed for several reasons. 22. ON the Original Side of this Court the procedure governing consideration of an application for grant of Probate is governed by the Indian Succession Act, 1925 read with Chapter XXXV of the Original Side Rules. Now, Section 283 of the Indian Succession Act, 1925 says that the District Judge may if he thinks it proper issue citation to a person claiming to have any interest in the estate of the deceased. Rule 1 of Chapter XXXV of the Original Side Rules defines what is non-contentious business in the testamentary and intestate jurisdiction of our Court. In case of grant of Probate it is so when there is no contention with regard to the right to obtain Probate. However, it does not provide explicitly the procedure to be followed in this case. Nevertheless Rule 33 makes applicable the procedure of the Probate Division of the High Court of Justice in England in cases where there is absence of provision in the Rules. 23. SECTION 283 does not enjoin the District Judge to order issue of citation but gives him the power to do so if he thinks it fit. 24. IT is a long standing practice of our Court to grant probate in common form, when there is no opposition to the grant. 23. SECTION 283 does not enjoin the District Judge to order issue of citation but gives him the power to do so if he thinks it fit. 24. IT is a long standing practice of our Court to grant probate in common form, when there is no opposition to the grant. The practice of our Court enables the propounder of the will to annex with the application or file along with it a declaration by each of the heirs of the testator and other 'persons interested in his estate, in the form of an affidavit that he has no objection to the grant of probate to the applicant or propounder. This affidavit is affirmed by a person resident in the city before the Oath Commissioner of our Court and by a person who is not so resident by an affidavit sworn before a notary public. On receipt of such consent, Probate is granted without issue of any citation 25. EVEN after the Division Bench judgment in the case of Southern Bank Ltd. v. Keszrdeo Ganeriwalla and Others, reported in AIR 1958 Cal 377 , such practice is continuing. I do not think that such practice is in conflict with any law or that there is any need of disturbing it. 26. AS I have said earlier the opinion of the handwriting expert is unreliable inasmuch as the admitted signatures of the applicant Manmohan are variable. So I do not place much reliance on such document examiner's report. The declaration of consent does not appear to be a forgery. 27. I am quite firmly of the opinion that M/s. Surana 86 Choudhury had obtained a certified copy of the Probate and copies of other papers on behalf of Manmohan Jhunjhunwala on 30th August, 2004 from the Registry of this Court. This is so because this application G.A. No. 2607 of 2008 for revocation of grant of Probate was filed on 16th September, 2009. On 14th February, 2009 G.A. No. 455 of 2011 was filed on behalf of Manmohan Jhunjhunwala. 28. THE Advocate-on-Record was M/s. Surana and Choudhury. Within a few days the warrant in favour of M/s. Surana and Choudhury was withdrawn by Manmohan. These are indeed very peculiar circumstances but it raises a presumption that M/s. Surana and Choudhury were acting for Manmohan when copies of Probate and other papers were obtained on 30th August, 2004, from the Registry. THE Advocate-on-Record was M/s. Surana and Choudhury. Within a few days the warrant in favour of M/s. Surana and Choudhury was withdrawn by Manmohan. These are indeed very peculiar circumstances but it raises a presumption that M/s. Surana and Choudhury were acting for Manmohan when copies of Probate and other papers were obtained on 30th August, 2004, from the Registry. This presumption could not be rebutted. Although it is stated in the affidavit of M/s. Surana and Choudhury a firm of Advocates that documents forming records of Court were obtained for Sagarmal Jhunjhunwala, I refuse to accept this contention. 29. HAD Manmohan made an application immediately after grant of probate or even a reasonable time thereafter, I would have had no hesitation in directing the probate proceedings to be reopened and the Will proved in accordance with law. But for the reasons above I am firmly of the belief that Manmohan had knowledge of both the will and the probate and that this Will was accepted by him. Therefore, this application after lapse of about eight years should be dismissed on the ground of delay. 30. MOREOVER, the Probate has been acted upon. A Deed of Ascent was executed on 29th November, 2001. The property has also undergone division and transfer. It is not the case where the Court will exercise its discretion to reopen Probate proceedings as had been done in the case of Jyotsana Rajgarhia v. Dipak Kumar Himatsingka and Another, reported in 2003 AIHC 2148. 31. FURTHERMORE, the Jhunjhunwala family resides at the same residence. It is quite unbelievable that the petitioner Manmohan did not know anything of the Will and Probate of which the other brothers and the families were aware. 32. FURTHERMORE, it appears from the affidavit filed on behalf of the respondent Nos. 5, 6 and 7 that Manmohan Jhunjhunwala was given some property during the lifetime of his father Shree Kishan Jhunjhunwala. Manmohan was also given the tenancy of the 1 st and 2nd floors comprising of 3000 sq. ft. in the residential house 21, Sir Hariram Goenka Street, Kolkata - 700 007. 33. THE legatees have already taken steps for mutation of the properties bequeathed and some of them have also sold their shares. 34. FURTHERMORE, the Will does not appear to be suspicious from the above circumstances. 35. ft. in the residential house 21, Sir Hariram Goenka Street, Kolkata - 700 007. 33. THE legatees have already taken steps for mutation of the properties bequeathed and some of them have also sold their shares. 34. FURTHERMORE, the Will does not appear to be suspicious from the above circumstances. 35. FURTHERMORE, since the Will has long been acted upon it would be most inequitable at this point of time to order a trial for the purpose of proving a Will. 36. THEREFORE, G.A. No. 2607 of 2009 is hereby dismissed. Consequently, G.A. No. 455 of 2011 and G.A. No. 2344 of 2011 are also disposed of without passing any orders. In the facts and circumstances no costs are ordered. Urgent certified photocopy of this judgment/order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.