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2014 DIGILAW 807 (CAL)

Dipak Das Majumdar v. Arunava Das Majumdar

2014-08-22

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2014
Judgment Ishan Chandra Das, J. This Appeal is directed against a judgment and order dated 29.04.2008 passed by Learned Additional District Judge, 4th Court, Alipore, South 24 Parganas in O.S. No. 12/2006, where Learned Trial Court by an order of dismissal refused to grant probate of a Will, claimed to have been executed by one Usharani Das Majumdar, since deceased. Briefly stated, the case of the plaintiffs/appellants of the instant proceeding (and hereinafter referred to as the appellants for the sake of convenience) is that by filing a certified copy of the last Will and testament of deceased Usharani Das Majumdar, the appellants claimed that said Usharani died on the 5th day of January 1994 at her place of permanent residence at 320 N.S.C. Bose Road, Jadavpur, Calcutta, after execution of her last Will in presence of the witnesses and it was duly registered at the office of the District Registrar at Alipore (Book No. III Volume No. 6 pages 18 to 22 for the year 1983). The appellants were the executors of the Will, duly appointed by their mother. Said Usharani died leaving the (following) survivors namely Dipak, Prabir, Kanchan, Mrittyunjoy & Arunava Das Majumdar, all were living at 320 N.S.C. Bose Road. The appellants filed the suit for grant of probate of the Will, executed by their mother and produced the certified copy of the same before Learned Trial Court with the averments that the original could not be traced out due to efflux of long time. A Written Statement was filed by the defendant No. 1/respondent No. 1 (hereinafter referred to as respondent No. 1) to contest the claim of the appellants and denying the cause of action, as averred in the body of the plaint. The said respondent no. 1 categorically stated that Usharani Das Majumdar never executed any Will during her life time. Admitting the date of his mother’s death i.e. on the 5th day of January 1994, said respondent no. 1 contended that his mother Usharani died at Princep Ghat in the river Ganges while she went to take bath there, prior to the Sradh Ceremony of her husband and the body of Usharani was taken from the Princep Ghat to the S.S.K.M. Hospital where she was declared dead. The respondent no. 1 contended that his mother Usharani died at Princep Ghat in the river Ganges while she went to take bath there, prior to the Sradh Ceremony of her husband and the body of Usharani was taken from the Princep Ghat to the S.S.K.M. Hospital where she was declared dead. The respondent no. 1 also stated that his mother was very old, ailing but simple minded lady and she had no knowledge or idea regarding the Will or testamentary disposition or any kind of transfer of property. He further stated that his mother never executed any Will rather the so called Will was manufactured, forged, fabricated and it was not registered in favour of the appellants and the proforma respondent, rather it was got registered in collusion and conspiracy with each other, by way of forging the signature of Usharani Das Majumdar and as such the appellants and the proforma respondent wilfully suppressed the said so called Will and produced the certified copy thereof. It was further averred in the said written statement that the property being 320 N.S.C. Bose Road, being the subject matter of the so called Will, was not the property of said Usaharani rather the property of her husband Sarojendro Das Majumdar who purchased the land in the benami of his wife Usharani Das Majumdar & thereafter he with his own money and for his own use and benefit constructed a building thereon, lived with his family including his wife & 5 sons till he died on the 25th day of December 1993. The respondent no. 1 further alleged that his mother did not have any source of income to purchase the property rather she was the benamdar of her husband. Categorically denying the execution of the Will in presence of the witnesses as averred in the body of the plaint, the respondent no. 1 further stated that the so called Will was created with the help of interested relatives including the attesting witnesses with forged signature of the testatrix for causing deprivation of the respondent no. 1 from getting his legitimate share in the property. Further denying and disputing other material averments of the plaint, this contesting respondent No. 1 ultimately prayed for dismissal of the prayer of these appellants. 1 from getting his legitimate share in the property. Further denying and disputing other material averments of the plaint, this contesting respondent No. 1 ultimately prayed for dismissal of the prayer of these appellants. One Prabir Das Majumdar, the proforma respondent filed a separate written statement, took the side of the plaintiffs/appellants, admitting their claim and prayed for grant of probate in their favour since the Will was the last desire of their mother Usharani Das Majumdar. Learned Trial Court framed 6 issues altogether on the basis of the rival pleadings of the parties & upon consideration of the evidence and materials on record refused to grant probate of the Will. Now the issue left before us is ---- ‘whether Learned Trial Court was justified in dismissing the Suit’. Mr. S.P. Roy Chowdhury, Learned Senior Counsel, representing the appellants at the very outset of his argument admitted with all fairness that Sarojendra Das Majumdar being a member of legal fraternity acquired the property of 320, N.S.C. Bose Road in the name of his wife from his personal income and constructed a building thereon for his own use and occupation as well as his wife and other offsprings. He candidly submitted that such thing happens in almost every family in normal circumstances. He drew our attention to the Ext. 2, a joint affidavit sworn by the parents of the contesting parties and pointed out that the conduct of the respondent No. 1 was despicable and as a drug addict, he was destructive in nature. He also submitted that an unbearable situation in the family forced his parents to cause deprivation of his legitimate share by executing the Will by his mother Usharani Das Majumdar, as the property was lying in her name. With further reference to Ext. 3 (a written diary before the I/C Jadavpur P.S. dated 20th June 1991 lodged by the testatrix herself), he pointed out that the testatrix categorically narrated the painful situation in her family where the respondent No. 1 was the only cause for making their lives horrible. To advance his argument Mr. Roy Chowdhury, Learned Senior Counsel laid emphasis on the proper execution of the Will and pointed out that the execution of the Will was proved by one of the attesting witnesses. To advance his argument Mr. Roy Chowdhury, Learned Senior Counsel laid emphasis on the proper execution of the Will and pointed out that the execution of the Will was proved by one of the attesting witnesses. Drawing our attention to the oral testimony of Dipak Das Majumdar (PW 1 before Learned Trial Court) he submitted that the Will was executed by the testatrix in presence of three witnesses out of which two are her near relations and another was a disinterested witness. With reference to the oral testimony of Ranadhir Das (PW 3), he pointed out that this witness categorically proved the execution of the Will by the testatrix herself in presence of the witnesses, voluntarily & consciously expressing her clear intention to execute such Will. He candidly submitted that the original Will was not traced out at the material time rather the carbon copy of the Will (Ext. 1) but it was proved and the certified copy of the registered Will (Ext. 4) was produced for inspection of the Court during trial for removal of suspicion which might arise in the mind of lLearned Trial Court - he added. To further his argument in the matter of non production of original Will raising presumption of revocation, he pointed out with reference to a decision of the Hon’ble Apex Court in Durga Prasad Vs. Debi Charan & Ors. reported in AIR 1979 Supreme Court 145 and urged that “where a Will has been properly executed and registered by the testator but not found at the time of death, the question whether the presumption that the testator had revoked the Will depend on the facts and circumstances of each case. He further added with reference to the said decision that – ‘even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of Indians and the presumption is rebuttable one and can be rebutted by the slightest possible evidence direct of circumstantial.” Further relying on the said decision in Durga Prasad Vs. Debi Charan & Ors. (supra) he urged that the legal proposition on the above subject, as laid down by the Hon’ble Supreme Court is quoted below. Debi Charan & Ors. (supra) he urged that the legal proposition on the above subject, as laid down by the Hon’ble Supreme Court is quoted below. “That in view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the Will in the banks or with the Solicitors or otherwise take every great care of the Will as a result of which the possibility of the Will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully. That where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the Will or that the act of revoking the Will was against the temperament and inclination of the testator, no presumption or revocation of the Will can be drawn. That in view of the express provision of Section 70 of the Act the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the Will. When there is no obvious reason or clear motive for the testator to revoke the Will and yet the Will is not found on the death of the testator it may well be that the Will was misplaced or lost or was stolen by interested persons.” Laying emphasis on the question of proper execution of the Will, Mr. Roy Chowdhury, urged that the Will was duly executed by complying the provisions of Section 63 (c) of the Succession Act, 1925 and further criticizing the findings of Learned Trial Court by wrongly placing burden upon his clients for removal of suspicion about the genuineness of the Will in question, he submitted with reference to a decision of the Hon’ble Apex Court in Smt. Indu Bala Bose & Ors. Vs. Manindra Chandra Bose & Anr. reported in AIR 1982 SC 133 and urged that where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court. To fortify his argument Learned Advocate representing the appellants further urged with reference to a decision of the Privy Council in Harmes & Anr. Vs. Vs. Manindra Chandra Bose & Anr. reported in AIR 1982 SC 133 and urged that where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court. To fortify his argument Learned Advocate representing the appellants further urged with reference to a decision of the Privy Council in Harmes & Anr. Vs. Hinkson reported in 50 CWN 895 where it was held as following:- “In contested probate proceedings, the following two propositions of law are to be well established: 1. The onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. 2. If a party writes or prepares a will, under which he takes a benefit that, is a circumstance that ought generally to arcite the suspicion of the Court, and it ought not to pronounce in favour of the instrument unless the suspicion is removed.” Placing reliance on another decision of the Hon’ble Supreme Court in Gnambal Ammal Vs. T. Raju Ayyar & Ors. reported in AIR (38) 1951 SC 103, he confidently urged that in all case it (the Court) must loyally carry out the Will as properly constructed and this duty is universal……”. His Learned Counterpart, on the other hand, submitted that the testatrix never executed the Will freely & fairly rather the said Will, if any, was obtained by practicing fraud on her. With reference to the oral testimony of the respondent No. 1 (DW 1), he submitted that Sarojendra Nath Das Majumdar was the original owner of the said property, but the property at 320 N.S.C. Bose Road was purchased in the name of his wife Usharani Das Majumdar, constructed a dwelling house thereon for the benefit of his family including his wife and 5 sons. Denying execution of any Will by the mother of the respondent in favour of her 4 sons, in exclusion of the youngest son, the respondent No. 1 herein, he submitted that the execution of any such Will was a myth and the Will was obtained by the beneficiaries by practicing fraud upon his (DW 1) mother - he added. Drawing our attention to the affidavit (Ext. Drawing our attention to the affidavit (Ext. 2) sworn by Sarojendra Nath Das Majumdar, Learned Advocate for the contesting respondent No. 1 urged that there was an attempt for causing deprivation of the respondent Arunava Das Majumdar from his legitimate share and he was given a bad name by the beneficiaries to the will with some ulterior motive. Criticizing the conduct of the other members of his family including the parents of the respondent No. 1, he urged that the respondent was only given Rs. 2/- daily for his personal expense. Accordingly he opined that such an attempt by the other earning members of his (Respondent’s) family conspired against his client so that he cannot get his legitimate share in the property left by his parents. Clarifying the proposition of “suspicious circumstances” he urged that the so called original Will though claimed to be a registered document did not see the light of the day and a Carbon Copy (Ext. 1) and a certified copy of the same (Ext. 4) were produced for inspection of the Court for obtaining grant of probate of such Will. Relying on a decision of the Hon’ble Supreme Court in S.P. Chengalvaraya Naidu (dead) by L. Rs. Vs. Jagannath (dead) by L. Rs. & Ors. reported in 1994 SC 853 he urged that the court of law are meant for imparting justice between the parties. One who comes to court must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of litigation. A litigant who approaches the Court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud upon the Court as well on the opposite party.” On the strength of such a decision of the Hon’ble Supreme Court he urged that non-production or withholding the original Will, even if there be at all, proved to be a futile in the given facts and circumstances of the case. Criticizing the claim of the appellants in the matter of valid attestation of such Will he submitted that it was not done properly in terms of Section 63 (c) of the Succession Act and drawing our further attention to the surrounding circumstances, he also submitted that it was the duty of the propounder of Will to establish that the will was properly signed by the testator and valid attestation of the Will to the satisfaction of the Court. Let us examine the background of the execution of the Will, of which the Carbon Copy (Ext. 1) was produced during trial and a certified copy of the same (Ext. 4) was duly proved by one Rabindranath Mandal (PW 2) U. D. Assistant of Alipore District Registry Office. Admittedly, the parties to this probate Suit are brothers by full blood and the facts and circumstances of the case revealed that the respondent No. 1, Arunava Das Majumdar had strained relation with his other brothers. Evidence, both oral and documentary, have been produced by the appellants to show that the respondent would live a mysterious & unhealthy life creating annoyance to his parents as well as other members of his family. The list of dates as supplied by Learned Advocate for the appellants clearly revealed that the husband of the testatrix, an Advocate of Calcutta High Court, lodged a written complaint (Ext. 3) before the Officer-In-Charge of Jadavpur Police Station, within whose jurisdiction they resided, on the 10th day of March 1984 alleging that said Arunava Das Majumdar, his youngest son created disturbance to his peaceful living at his home and caused damage to the furniture etc., abused him, other members of his family and demanded money from him for taking liquor, drug etc. for living unhealthy life. The father of the parties also lodged another written complaint (Ext. 3) before the A.C. (A.R.S.) D.D. Lalbazar, Calcutta on the 1st day of July 1983 narrating the horrible situation of his family in the hands of the respondent no. 1 and requested the police officer concerned to take appropriate action against him (respondent no. 1) so that the other members of his family including the parents of the respondent no. 1 could live a peaceful life. Said Sarojendranath Das Majumdar also swore an affidavit (Ext. 2) before Learned Metropolitan Magistrate Calcutta stating certain facts relevant to the situation in his family. The will (Ext. 1) so that the other members of his family including the parents of the respondent no. 1 could live a peaceful life. Said Sarojendranath Das Majumdar also swore an affidavit (Ext. 2) before Learned Metropolitan Magistrate Calcutta stating certain facts relevant to the situation in his family. The will (Ext. 1) was executed on the 9th day of August 1983 & it was presented for registration on the 16th day of August 1983. It is interesting to note that the social marriage ceremony of Arunava was solemnized on the 23rd day of November 1989 and the averments of the Will (Ext. 1) i.e. “My persuasions and also the persuasions of my husband made constantly to the said son to correct himself during the last several years have failed, costly medical treatment of the said son by a psychiatric proved futile. He is incorrigible.” Such representation of the testatrix clearly indicated that she still had soft corner towards her youngest child and we are unable to accept that she intended to deprive her son from the core of her heart. Documents like family photographs (Ext. 9) further indicated that the respondent no. 1 had got connection with his parents at his marriage ceremony i.e. even after the date of execution of the Will. It is not irrelevant to mention here that though three sons of the testatrix were appointed executors and the proforma respondent approved became the approver of the same as his written statement disclose, but the Ext. H is such a document which was prepared at the time of dividing the ornaments between the parties left by their mother and that was not intended for causing deprivation of the same. All the circumstances noted above unerringly pointed out that the circumstances in which the will was executed causing deprivation of one son, who was admittedly a psychiatric patient at the material time, cannot be said to be a normal circumstance for creating the Will in favour of three sons who are admittedly well established in comparison to the two others. All the circumstances noted above unerringly pointed out that the circumstances in which the will was executed causing deprivation of one son, who was admittedly a psychiatric patient at the material time, cannot be said to be a normal circumstance for creating the Will in favour of three sons who are admittedly well established in comparison to the two others. It has been decided by the Hon’ble Apex Court in a catena of decisions that where there are suspicious circumstances, the onus is on the propounder to explain these circumstances to the satisfaction of the Court before the Court accepts the Will as genuine and where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator’s 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. In course of argument it was pointed out that the testatrix executed a deed of gift in respect of a part of the property in favour of one of the executors of the Will which clearly indicated that the testatrix was under their control and the normal presumption would be that the Will was executed and registered under their active influence. Moreover, we cannot forget that Manabendranath Dutta, one maternal uncle of the parties who was one of the attesting witnesses of the Will was not examined during trial to prove the proper execution of the Will for causing deprivation of the respondent. The other circumstances as pointed out earlier i.e. the marriage ceremony of the respondent no. 1 at the instance of his parents long after the date of execution of the Will in question, the role of the testatrix herself at the “Annaprashan Ceremony” of the child of the respondent no. 1 etc. raises a question in the mind of the Court about free & fair execution of the Will for causing deprivation of this respondent. 1 at the instance of his parents long after the date of execution of the Will in question, the role of the testatrix herself at the “Annaprashan Ceremony” of the child of the respondent no. 1 etc. raises a question in the mind of the Court about free & fair execution of the Will for causing deprivation of this respondent. There was no explanation what prompted the executors/beneficiaries to keep their father Sarojendranath Das Majumdar, in dark about the execution of the Will particularly when he had to swear an affidavit before Learned Metropolitan Magistrate, Calcutta and to lodge complaints before different police authorities for taking legal action against the respondent No. 1. That apart, execution of the Will by the testatrix having been disputed by the respondent, we cannot hold that even the execution of the Will by the testatrix was duly proved as the propounders failed to prove execution of the will by the testatrix by calling for the records relating to registration of the will from the concerned registration office. Had those documents been proved by the propounders, the Probate Court which is a court of conscience, could have verified the due execution of the will by comparing her signature and thumb impression appearing in the records relating to registration of the said will with the admitted signature and/or thumb impression of the testatrix. Thus no step having been taken by the propounder in this regard, certainly creates some doubt about due execution of the will by the testatrix which the propounder failed to remove from the minds of the court. Hence, taking into consideration the above-noted background of the case, we are in full agreement with the decision taken by Ld. Trial Court that the propounders failed to remove doubts about free & fair execution of the Will by the testatrix, as they claimed rather there were reasons believe that the testatrix who never intended to deprive her youngest son who was a psychiatric patient and his financial condition was so bad that he was unable to earn his livelihood. Trial Court that the propounders failed to remove doubts about free & fair execution of the Will by the testatrix, as they claimed rather there were reasons believe that the testatrix who never intended to deprive her youngest son who was a psychiatric patient and his financial condition was so bad that he was unable to earn his livelihood. In this context, we cannot overlook the facts that in the earlier days his parents harshly treated the respondent No. 1 and in our considered opinion that this was done for his rectification but not causing deprivation of his legitimate share by way of executing a Will in favour of her other sons excluding the weakest one and it is against the normal human conduct. Accordingly we are constrained to hold that the Will in question does not deserve grant of probate and as such we firmly conclude that there is no merit in the present appeal and the same is liable to be dismissed. Order is passed accordingly. Parties do bear their respective costs.