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2012 DIGILAW 698 (CAL)

Shyamal De v. Arati De

2012-07-27

MRINAL KANTI CHAUDHURI, TAPAN KUMAR DUTT

body2012
JUDGMENT : Tapan Kumar Dutt, J. 1. Today the learned Advocates for the respective parties have completed their submissions. 2. Hearing is concluded. 3. The facts of the case, very briefly, are as follows:- That the appellant had filed an application for grant of probate in respect of the alleged last Will and Testament of one Gora Chand De, since deceased, who died on 27.4.1995. The appellants case was that his father, Gora Chand De, since deceased, during his life time executed the said Will dated 17.5.1994 and it was the last Will and Testament of the said deceased. It appears that the said Gora Chand De died leaving behind his widow (Bhgawati), sons (Radhamadhab, Shyamsundar and Shyamal) and daughter (Dipali). 4. The learned Advocates appearing before this Court did not dispute the fact that Shyamsundar has not traceable for a long time and the eldest son of the said Gorachand, namely, Chaitanya had pre-deceased, the said Gorachand De. The application for grant of probate was registered as O.C. Case No. 3 of 1999 and was placed before the learned Judge, VI Bench, City Civil Court, Calcutta for hearing. 5. The said application for grant of probate was contested by the respondents in the instant appeal who are the successors of the said Chaitnya, since deceased. The respondent no. 1 is the widow of Late Chaitanya De, the respondent no. 2 is the daughter of Late Chaitanya De and the respondent no. 3 is the son of Late Chaitanya De. 6. As it appears, that by the said Will dated 17th May, 1994, the testator (Gora Chand De) had allegedly appointed the appellant herein as the Executor of the Will and bequeathed his properties both movable and immovable to his widow, Smt. Bhagawati De, by way of life interest. It was submitted that on the demise of the said Bhagawati De, Dipali will enjoy rents and profits during her life time or till she is married whichever occurs earliest and the said daughter of the testator will have the life interest only. 7. It was submitted that on the demise of the said Bhagawati De, Dipali will enjoy rents and profits during her life time or till she is married whichever occurs earliest and the said daughter of the testator will have the life interest only. 7. It was further submitted that on the demise of the said daughter the testator had directed and desired that the movable and immovable properties would stand bequeathed to his two sons, namely, Shyamal De and Radhamadhav De absolutely and for ever and the said sons, namely, Shyamal and Radhamadhav will have the right to sell, transfer, assign, lease out or induct tenant. The said Shyamal De was a trustee in respect of the properties and he was also made the executor in the said Will but it will appear from the perusal of the copy of the Will that the respondents herein have been completely excluded. 8. The said application for grant of probate was contested by the respondents herein and the learned Court below by the judgment and decree dated 13th December, 2005 rejected the said application for grant of probate. The learned Court below found that on behalf of the appellant, the appellant himself adduced as P.W.2 and also examined one of the attesting witnesses, that is, Gopal Chandra Das who gave evidence as P.W. 1. It may be recorded here, as submitted by the learned Advocates for both the sides, that the said Gopal Chandra Das happens to be the son-in-law of the testator. 9. It also appears from the records that the respondent no. 1, that is, the widow of Late Chaitanya De examined herself as a witness, being D.W.1. It was the case of the respondents in the said proceeding for grant of probate that the testator was not mentally alert and physically fit at the time of execution of the Will and the signature in the Will is false and the aforesaid testator had no capacity to sign any document. It was the further case of the respondents in the said proceeding that the said Gora Chand De had died intestate on 27.4.95 and the alleged Will dated 17.05.94 is false, frivolous and manufactured one. It was the further case of the respondents in the said proceeding that the said Gora Chand De had died intestate on 27.4.95 and the alleged Will dated 17.05.94 is false, frivolous and manufactured one. However, the learned Court below after examining the materials-on-record found that the P.W.1 (son-in-law of the testator) who signed as attesting witnesses in the Will was quite interested in the matter of execution of the Will by his father-in-law. 10. The learned Court below noted that P.W.2 deposed that before execution of the Will the testator never disclosed his intention to execute the Will to the said witness and that he had no discussion with his father regarding distribution of his fathers properties prior to execution of the Will. Thus, the learned Court below found that the evidence of P.W. 2 was quite in contradiction to the evidence of P.W.1, who deposed that his father-in-law disclosed before him the intention to execute the Will and that the sons of the testator were present at the time of execution of the Will and in fact such sons of the testator handed over the typed Will to the testator for his signature and also that the testator had consulted with the said P.W.1 and also the testators sons before the execution of the Will. 11. The learned Trial Court found that denial of any share of the properties to the respondents and the manner in which the impugned Will was executed and the contrary evidences of P.Ws. 1 and 2 definitely cast doubt as to whether the said Will was executed by the testator out of his own volition or not. 12. The learned Trial Court found that in the instant case it appears from the evidence on record that the propounder took prominent part in the execution of the Will and there were unfair and unjust disposal of the property by the testator which cast suspicion about the genuineness of the Will. The said learned Court below also found that out of three attesting witnesses, two of them did not adduce any evidence in the case, i.e. the learned Advocate and the Doctor concerned. The said learned Court below also found that out of three attesting witnesses, two of them did not adduce any evidence in the case, i.e. the learned Advocate and the Doctor concerned. It appears from the perusal of the copy of the Will that there were three attesting witnesses, one of such attesting witnesses was Gopal Chandra Das (son-in-law of the Testator) and the second attesting witness was Shri Debdas Mukherjee, the learned Advocate, who, it appears from the copy of the Will, is practising in the City Civil Court and the third attesting witness was Dr. Prasanta Kr. Sarkar. 13. However, the learned Court below found that the evidence of P.Ws. 1 and 2 were insufficient to prove the due execution of the said Will and the appellant has failed to produce independent attesting witnesses mentioned in the Will to remove such suspicion. Ultimately, the learned Court below has rejected the said application for grant of probate. 14. The appellant herein has filed the present appeal challenging the impugned judgment and decree passed by the learned Court below. 15. The learned Advocate appearing on behalf of the appellant submitted that the respondent no. 1, two or three years after marriage, has been living separately even though her residence is in the same holding. 16. The said learned Advocate also emphasizes the fact that the testator during his lifetime had filed the Ejectment Suit against the respondent no. 1. 17. The said learned Advocate also submitted that the properties in question belonged to the testator and the testator had every right to dispose of his properties in any manner he liked and successive life-estate can also be created by a testator. 18. The said learned Advocate cited Mullas Principles of Hindu Law (16th Edition) and referred to Article 274 therein in support of his contention that the testator could have disposed of his ancestral property in the same way he can dispose of his acquired property. He also referred to Article 381 of the said Mullas Principles of Hindu Law wherein it has been stated that a Hindu may create successive life-estates or any other estate for a limited term, provided the donee is a person capable of taking under the deed or will. 19. He also referred to Article 381 of the said Mullas Principles of Hindu Law wherein it has been stated that a Hindu may create successive life-estates or any other estate for a limited term, provided the donee is a person capable of taking under the deed or will. 19. The said learned Advocate cited a decision reported at 19 C.W.N. 1295 (Muktanath Roy Choudhury v. Jitendra Nath Roy Choudhury) in support of his contention that it is not necessary that each of the attesting witnesses to a Will should prove the same facts and that in the instant case the said Gopal Chandra Das, an attesting witness, came and gave evidence. 20. The said learned Advocate cited another decision reported at AIR 1992 Calcutta 341(On the death of Aamal Dasgupta, Ashok Dasgupta and Ors. v. Dwijendra Lal Dasgupta and Ors.) in support of his aforesaid contention that only one of the attesting witnesses could prove the said Will. There is no dispute with regard to such proposition of law. 21. The said learned Advocate cited another decision reported at AIR 1985 Calcutta 349 (Sm. Chinmoyee Saha v. Debendra Lal Saha and Ors.) and referred to paragraph 6 of the said reports. In paragraph 6 of the said reports, the Hon'ble Court was pleased to observe that onus of proving the Will is on the propounder and in the absence of suspicious circumstances, surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator, as required by law, is sufficient to discharge the onus. The said Hon'ble Court was further pleased to observe that where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. The said Hon'ble Court was further pleased to observe that if the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The Hon'ble Court was further pleased to observe that suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testators mind, the disposition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or their might be other indications in the Will to show that the testators mind was not free. In such a case, 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. If the propounder himself takes a prominent part in the execution of the Will, which confers a substantial benefit on him, that is also a circumstances to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. But once the propounder proves that the Will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions and put his signature out of his own free will, and that he signed it in presence of the witnesses who attested it in his presence and in presence of each other, the onus, which rests on the propounder, is discharged and when allegation of undue influence or fraud or coercion is made by the caveator, the onus is on the caveator to prove the same (Surendra Pal v. Saraswati AIR 1974 SC 1999 ). The Hon'ble Court was further pleased to observe that as regards the burden of proof in a probate case, it is also to be stated that the onus of the propounder is not higher than in any other civil suit, and it has been held in the case of Gopessur Dutt v. Bissessur Dutt 16 Cal WN 265 that a probate case is not singular as regards the application of the general principles of proof as contained in Sections 3 and 101 of the Evidence Act. 22. He also referred to paragraph 8 of the said reports as quoted hereunder:- "The first circumstance on which both the learned Judges and Mr. Mukherjee have strongly relied on is the exclusion of any other person, such as, the sons or the daughters of Kishori or the son of Rajendra named Jagai from the Will. Much argument has been advanced by Mr. Mukherjee for the purpose of showing that the parties are governed by the Mitakshara School of Hindu Law and as such, Sundari would be entitled to ?th share in the properties of Shiblal. The argument is that Sundari could not dispose of more than ?th share in the properties of Shiblal. Much argument has been advanced by Mr. Mukherjee for the purpose of showing that the parties are governed by the Mitakshara School of Hindu Law and as such, Sundari would be entitled to ?th share in the properties of Shiblal. The argument is that Sundari could not dispose of more than ?th share in the properties of Shiblal. A probate Court is not, however, to enter into the question of title for deciding the extent of share of each of the parties in the properties left by Shiblal. It has been held even by this Court in the case of Ajit Chandra v. Akhil Chandra 64 Cal WN 576, ( AIR 1960 Cal 551 ) that the testator, who has full testamentary powers and a disposing mind, cannot be dictated by the Court as to what is a fair and an urgent disposition. The Will is the Will of the testator and he has, under the law, the freedom to give his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once it is established that the testator was free and had a sound disposing mind, it is no longer the duty of the Court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to the Courts own standard. As already stated, it has been established by the propounder that the testator was free and had a sound disposing mind. There is not even a defence suggestion anywhere throughout the entire gamut of the voluminous evidences on record that the testatrix had no sound-disposing mind. In these circumstances, the alleged unnaturalness of the Will is no consideration for refusing grant of probate. As it has been held in the case of Indu Bala v. Manindra AIR 1982 SC 133 , the Court is to grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. This is also the view taken by this Court in the case of Aloke Kumar Aich v. Ashok Kumar Aich AIR 1982 Cal 599 . This is also the view taken by this Court in the case of Aloke Kumar Aich v. Ashok Kumar Aich AIR 1982 Cal 599 . The Court is not justified to consider the terms of the Will for deciding whether the testatrix was justified in excluding her sons or daughters or the wives of Kishori or the son of Rajendra, when the propounder has been able to prove due execution and attestation of the will as well as the sound disposing mind of the testatrix." 23. The said learned Advocate referred to AIR 1988 Gujarat 34 (Navnitlal L. Khakhkhar v. Hasmukhlal G. Solanki). This Court is of the view that the facts and circumstances of the case in the said reports were quite different and it is difficult to apply the said reports to the facts of this case as it appears that in the said reports certificate issued by the medical practitioners was in dispute and the Hon'ble Court was pleased to observe that there cannot be a general presumption that all medical certificates are false and the contents thereof would be required to be proved only if the other side challenges its veracity. 24. Firstly, the dispute before us at present is the dispute with regard to the Will, proof of which has to be made in accordance with law prescribed by the statute. Secondly, in the instant case, the respondents have vehemently objected to the genuineness of the Will and, therefore, the veracity of the Will is under challenge. 25. The said learned Advocate cited another decision reported at AIR 1983 S.C. 114 (Madhusudan Das v. Smt. Narayani Bai & Ors.) in support of his contention that when there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witness, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies and the appellate Court can interfere only on very clear proof of mistake by the trial Court. 26. 26. By citing the said judgment, the said learned Advocate also stated when the learned appellate Court finds that the trial Courts judgment suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of the fact. There is no dispute with regard to such proposition of law. 27. The said learned Advocate also cited another decision reported at AIR 1995 S.C. 1684 (Rabindra Nath Mukherjee & Anr. v. Panchanan Banerjee (dead) by L.Rs. & Ors.) in support of his contention that the whole idea behind execution of the Will is to interfere with the normal line of succession and it may be that in some cases the natural heirs may be debarred from succeeding the property. 28. It appears from the said reports that the Hon'ble Court held that in absence of circumstances like (a) propounder taking prominent part in execution of will which confers substantial benefits on him ; (b) shaky signature; (c) feeble mind which is likely to be influenced; (d) unfair and unjust disposal of property, there is nothing unnatural about contents of the Will and the fact that testatrix had made a Will at age of fifty cannot be considered as suspicious circumstances reflecting on genuineness of Will. 29. The Hon'ble Court was pleased to observe that finding in a second appeal on re-appreciation of evidence that the Will was not genuine and was not proved was not correct one. 30. The said learned Advocate cited another decision reported at (2002) 1 SCC 630 (S. Sundaresa Pai & Ors. v. Sumangala T. Pai (Mrs.) & Anr.) in support of his contention that uneven distribution of the assets amongst children, by itself, cannot be taken as a circumstance causing suspicion surrounding the execution of the Will. 31. The learned Advocate appearing on behalf of the respondents submitted that in the Will there is no statement and/or declaration that the testator had executed the Will out of free volition and/or free mind. 32. The said learned Advocate further submitted that from the evidence on record it will appear that after Chaitnyas death the respondents were in good terms with the testator but the executor (Shyamal) had a strained relationship with the respondent no. 1. 33. 32. The said learned Advocate further submitted that from the evidence on record it will appear that after Chaitnyas death the respondents were in good terms with the testator but the executor (Shyamal) had a strained relationship with the respondent no. 1. 33. The said learned Advocate referred to the evidence of D.W.1 wherein the said witness stated that ejectment suit brought against her by the testator and the criminal case filed against her by the said testator were at the instance of her brother-in-law, that is, the said Shyamal De. 34. She has stated in her evidence that her father-in-law, about 10/15 years prior to his death, was not physically fit and mentally sound and about 3/4 years prior to his death the testator could not see properly. 35. The said learned Advocate submitted by referring to the evidence of the said Shyamal Dey that the testator used to live with the said Shymal Dey and the said Shyamal Dey used to look after the testator during his lifetime and this shows that the said Shri Shyamal Dey was the person who had exercised undue influence upon the testator. 36. The said learned Advocate referred to a decision reported at AIR 1961 Calcutta 359 (A.E.C. Carapiet v. A.Y. Derderian wherein their Lordships were pleased to observe that wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination it must follow that he believed that the testimony given could not be disputed at all. Their Lordships were further pleased to observe that such omission is serious one and it is not merely a technical rule of evidence ; it is a rule of essential justice. Their Lordships were further pleased to observe that this much a counsel is bound to do when cross examining that he must put to each of his opponents witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. 37. The said learned Advocate for the respondents submitted that when the respondent no. 1 was being cross-examined no suggestion was given to the said respondent no. 1 that the Will concerned is not an invalid one or not a manufactured one or not a forged one. 37. The said learned Advocate for the respondents submitted that when the respondent no. 1 was being cross-examined no suggestion was given to the said respondent no. 1 that the Will concerned is not an invalid one or not a manufactured one or not a forged one. In absence of such cross-examination, the said learned Advocate submitted the evidence of D.W.1 must be taken to have been accepted by the appellant. The learned Advocate for the respondents raised another important point in this matter. 38. There are three witnesses to the Will in question. One of such attesting witnesses is the son-in-law of the testator, namely, Gopal Chandra Dey. He has come to the witness box to give evidence and it will not be unnatural for one to conclude that such witness is an interested witness. The other attesting two witnesses are the lawyer who is practicing in the City Civil Court at Calcutta and the doctor. It will appear from the materials on records that the application for grant of probate was tried in the City Civil Court and it is difficult to appreciate the fact that the said lawyer was not brought to the witness box to give evidence in support of the Will. It will appear from the evidence on record that the doctor concerned had his chamber situated in front of the house of the testator. Such doctor, who was also allegedly an attesting witness, was not brought to the witness box to give evidence. 39. The learned Advocate for the respondents has rightly argued that these vital independent attesting witnesses were deliberately not brought to the witness box to enable them to avoid cross-examination on behalf of the respondents. 40. The said learned Advocate submitted that in absence of such vital witnesses, this Court should make adverse inference under Section 114 (g) of the Evidence Act. 41. The learned Advocate for the respondents has argued that the said two attesting witnesses were very much available and in spite of such availability the appellant has deliberately suppressed such witnesses. 42. The said learned Advocate further submitted that the said Gopal Chandra Dey being the relative of the testator was an interested witness. 43. The said learned Advocate submitted that this Court should make adverse inference from such suppression of material witness. 42. The said learned Advocate further submitted that the said Gopal Chandra Dey being the relative of the testator was an interested witness. 43. The said learned Advocate submitted that this Court should make adverse inference from such suppression of material witness. It will appear from the record that P.W. 2 stated in evidence that he will not examine the attesting witness being the aforesaid Doctor. 44. He has also referred to that apart of the evidence where suggestion was given to P.W. 2 that the Will was manufactured and fabricated. There is no dispute with regard to the fact that the Will has not been registered and the Will is an unregistered one. 45. The learned Advocate for the respondents in his course of submission stated that it is difficult to imagine any reason when according to the appellant the testator was enjoying good health and mind as to why the testator could not be taken to the registry office which was only a few kilometers from the residence of the testator. 46. The said learned Advocate cited a decision reported at AIR 1962 S.C. 567 (Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr.) in support of his contention that even if the Will is a registered one, suspicious circumstances must be removed before holding that the Will has been duly executed and proved. 47. He cited another judgment reported at AIR 1974 S.C. 1999 (Surendra pal and Ors. v. Dr. (Mrs.) Saraswati Arora and Anr.) wherein the Hon'ble Supreme Court was pleased to observe that there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the disposition appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testators free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. 48. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. 48. Having heard the learned Advocates for the respective parties and having considered the materials on record, this Court is of the view that the appellant has failed to remove certain suspicious circumstances as discussed above. The learned trial Court had the occasion to witness the demeanour of the witnesses who came to the witness box to depose and the learned trial Court has found that the Will in question has not been proved in accordance with law. 49. It also appears that the learned Court below has observed that the appellant has failed to produce any independent attesting witness to remove the suspicion surrounding the said Will and with regard to the execution of the Will, the said learned Court below has found that enough doubt has been cast upon the same. This Court does not find any reason to interfere with the impugned judgment/decree. This Court is also of the view that adverse inference should be drawn against the appellant in the facts and circumstances of the case and the suspicion surrounding the Will which is an unregistered one has not been satisfactorily explained by the appellant. 50. In view of the discussions made above, this Court does not find any merit in the instant appeal, which is, accordingly, dismissed. 51. There will be, however, no order as to costs. 52. Lower court records be sent back to the learned Court below concerned immediately. I agree.