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2017 DIGILAW 65 (CAL)

Ashima Naha (nee Das) v. Ardhendu Das

2017-01-11

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2017
Ishan Chandra Das, J. 1. Claiming herself to be an aggrieved by the judgment and order of granting probate of the Will dated 30.06.1983, executed by one Usha Ranjan Das, the appellant herein, being one of the offsprings (daughter) of the said testator, is assailing such judgment and order passed by learned Additional District Judge, 4th Court at Barasat, North 24 Parganas in Misc Case No. 511 of 1997 (Original Suit No. 34 of 1999). 2. Shorn of unnecessary details, the facts of the instant case, as stated in the application of such proceeding is that one Usha Ranjan Das who died on 21.01.1994, executed a Will on 30.06.1983 bequeathing his property as per schedule of the Will and the respondents no. 1, 2 & 3 along with the appellant were appointed as executors of the said Will. It was further stated in the said application that the testator of the Will(i.e. Usha Ranjan Das)was a Hindu by religion and he passed away leaving two sons, Arabinda Das(respondent no.1)of the probate proceeding, Ardhendu Das, the petitioner therein, three daughters Mandira Deb, Ashima Naha @ Das & Indira Sarkar. Ashima, the appellant herein (being the defendant no. 3 of the probate proceeding & hereinafter referred to as the appellant) was a legatee co-executor under the Will. In the said application, it was stated that as per the Will, the petitioner of the original probate proceeding was asked by the testator to provide her with 5 cottahs of land with suitable constructions thereon, subject to condition that if the appellant would get her marriage with the approval of the other executors, otherwise she would be debarred from the privilege of such Will, as it was done in case of Indira Sarkar, the defendant no. 4 of the original probate proceeding. 3. Mandira, the defendant no. 2 of the original proceeding, as it is referred to in the impugned judgment did not raise any objection against the probate proceeding and the defendant no. 4 though filed a written statement but ultimately did not turn up to contest the same. The appellant herein being the defendant no. 3 of the original proceeding in her written statement questioned the maintainability of the same on certain legal infirmities like tampering of the Will, manipulation of the same etc. 4 though filed a written statement but ultimately did not turn up to contest the same. The appellant herein being the defendant no. 3 of the original proceeding in her written statement questioned the maintainability of the same on certain legal infirmities like tampering of the Will, manipulation of the same etc. Denying proper execution of the Will, the appellant being the sole contesting defendant further stated that the attestation of such Will of the testator was not proper in terms of the relevant provisions of the Indian Succession Act rather she contended that though the Will was registered one but the execution of such Will was not a free Will of testator rather the same was managed by the profounder of the Will with an ill motive to frustrate the interest of the other successors in interest, taking advantage of old age ailments and simplicity of the testator. 4. On the strength of the rival pleadings of the parties, learned trial Court framed six issues altogether and upon conclusion of trial granted probate of the Will on contest against the defendant no. 3 (i.e. the appellant herein) and ex parte against the rest. 5. The point left for decision in this appeal is whether learned trial Court was justified in passing a decree allowing the probate proceeding as referred to above. 6. Learned counsel for the appellant, at the outset submitted with reference to Section 89 of the Indian Succession Act and urged that the Will should have been declared void by learned Court below for the simple reason of uncertainty. With reference to the averments in page 3 of the Will in question, she pointed out that her client was given interest as per para 3 of the said Will (Ext. 2 series) which was vague and uncertain as it was noted therein – “They shall also provide her with a suitable well-constructed brick built house with 5 cottahs of land elsewhere.” 7. Relying on a decision of the Hon’ble Apex Court in Gorantla Thataih Vs. Thotakura Venkata Subbaiha & Ors., reported in A.I.R. 1968 1332, she urged that the Will was executed under a suspicious circumstances since page 3 of the said Will (Ext. Relying on a decision of the Hon’ble Apex Court in Gorantla Thataih Vs. Thotakura Venkata Subbaiha & Ors., reported in A.I.R. 1968 1332, she urged that the Will was executed under a suspicious circumstances since page 3 of the said Will (Ext. 2 series) was prepared by altogether a different type writing machine and it was without containing the signature of the testator, where other pages are not so and she also opined that the pro-pounder of the Will should be under legal obligation to remove suspicion with regard to free and fair execution of the Will. Highlighting a decision of the Hon’ble Apex Court in Niranjan Umesh Chandra Joshi Vs. Mrudula Jyoti Rao & Ors., reported in A.I.R. 2007 S.C. 614, she also submitted that “there are several circumstances which would have been held to be described by the Hon’ble court as suspicious circumstances - - (i) When a doubt is created in regard to the condition of mind of the testator despite signature in the will; (ii) When the deposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where profounder himself takes prominent part in the execution of the will which confers on him substantial benefit. 8. Further pointing out the statement of the attesting witness Mihirendra Lal Dutta (PW 1) learned Counsel for the appellant also submitted that the execution of the Will was not done in consonance with the provisions of Section 63 (C) of the Indian Succession Act. 9. Clarifying the provisions of Section 63 (C) of the Act, she urged that the sole attesting witness, who was examined in course of trial, could not or did not depose that he signed the Will as attesting witness in presence of the testator who again put his signature in presence of the attesting witness (PW 1). 10. Learned Counsel appearing for the respondents no. 1 in course of argument pointed out certain facts for deciding the merit as well as questions in controversy between the parties. He pointed out that the Will in question (Ext. 2) was prepared on the 30th June, 1983. The testator lost his wife on 14.12.1981 and his second daughter Indira (respondent no. Learned Counsel appearing for the respondents no. 1 in course of argument pointed out certain facts for deciding the merit as well as questions in controversy between the parties. He pointed out that the Will in question (Ext. 2) was prepared on the 30th June, 1983. The testator lost his wife on 14.12.1981 and his second daughter Indira (respondent no. 4) left the house and guardianship of the testator on 21.11.1982, as she got married to one Arup Sarkar, left for Chandigarh to reside there with her husband according to her sweet will and that conduct of his second daughter Indira made the testator hostile for causing her deprivation from her legitimate share in the property left by her father. Learned Counsel for the respondent no. 1 also urged that in the impugned Will the testator made a provision for his third daughter Ashima who was unmarried at the material time (on 30.06.1983 i.e. the date of execution of the Will) but ultimately said Ashima (the appellant herein) was given marriage in 1985. 11. With reference to the statement of the appellant (PW – 1 at page 25 of the P.B.) it is brought to our notice that the testator died on 21.01.1994 i.e. after a lapse of 8/9 years from the date of marriage of the appellant who also categorically admitted that her father Usha Ranjan Das was physically fit & mentally alert even before the time of his death. Learned Counsel for the respondents no. 2 & 3 also supported the views as expressed by learned counsel appearing for the respondent no. 1 and all of them submitted in univocal tune that the appeal was without merit and liable to be dismissed. 12. Learned Counsel for the respondents no. 2 & 3 also supported the views as expressed by learned counsel appearing for the respondent no. 1 and all of them submitted in univocal tune that the appeal was without merit and liable to be dismissed. 12. Now we have to consider whether there was proper execution of the Will i.e. in terms of Section 63 (C) of the Indian Succession Act, which is quoted below:- 63 (C) “The Will shall be attested by two or more witnesses, each of who has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the present of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 13. If we consider the above provision of Section 63 (C) in the light of the statement of the attesting witness that “and at the time of execution of the said Will dated 30.06.1983 I was present and said Usha Ranjan Das affixed his signature in the all pages of the said Will in my presence and I know the signature of Usha Ranjan Das and I put my signature in the last page of the said Will as witness and the other witness Binaylal Ghosh, Advocate also affixed his signature on the s aid will at the same time and the said Will dated 30.06.1983 was registered and this is the said Will containing six pages executed by Usha Ranjan Das”, it can safely be construed and held that the procedure for execution of the Will and attestation thereof were substantially complied with and the same got registered on the self-same date. Fact remains that one of the pages of the said Will (page – 3) was prepared by a different type writing machine & did not contain the signature in the corner of that page – 3, but the factum of registration of the Will on the self-same date did not cast any doubt in the mind of learned trial Court about preparation of the Will or proper execution of it. A separate copy of the Will (Ext. – 3) prepared in the same mechanical process goes to show that the page no. 3 of the said copy was endorsed by the testator in the corner of the said page. 14. Legality of the Will was also challenged on the ground that there was no continuity of the sentence appearing in the last line of the page 1 of the said Will and the first line of the page no.2. To test the acceptability of such contention of learned counsel for the appellant herein, we have carefully examined the Will as a whole including the contents of the Will appeared at page 1 and page 2 of the said Will. We found that the word ‘Son’ which should appear after the last word ‘eldest’ on the last line at page 1 of the said Will was missing. However, in our considered view – even without the missing expression ‘Son’, the intention of the testator expressed in the said Will can be well understood on reading the last line of the first page of the Will and the continuity of the said sentence thereof at the beginning of page 2 of the said Will. We, therefore, hold that the testator, in fact, bequeathed his property as mentioned in the said Will in favour of his 4 offsprings but one daughter Indira was subjected to deprivation due to the fact that she voluntarily left the guardianship of her father/testator, as indicated earlier. 15. However, on a careful consideration of Clause 3 of the said Will, we find that some restrictions were imposed on Ashima, the appellant herein, regarding inheritance of the property of the testator but in our view the restriction so imposed in Clause 3 ultimately became redundant, since Ashima was given in marriage during the lifetime of the testator. 15. However, on a careful consideration of Clause 3 of the said Will, we find that some restrictions were imposed on Ashima, the appellant herein, regarding inheritance of the property of the testator but in our view the restriction so imposed in Clause 3 ultimately became redundant, since Ashima was given in marriage during the lifetime of the testator. That apart no case has been made out by the plaintiffs/respondents that Ashima could not get her share inherited by the said testamentary succession because of non-fulfilment of the condition as mentioned in Clause 3 of the said Will. 16. In the background, we are unable to accept that the Will itself was not free and fair Will of the testator and we have no hesitation, in the given facts and circumstances, to say that the executors of the Will have got no role to play with a view to dominating the Will of the testator at the material time. 17. Learned counsel appearing for the plaintiffs/respondents in course of argument relying on a decision of the Hon’ble Apex court in Smt. Deokali Vs. Nand Kishore and others reported in AIR 1996 SC 3242 and pointed out that the peculiar circumstances as revealed from the facts of the case was not an isolated one and urged that the Hon’ble Apex Court did not interfere with the findings of the trial Court which was duly affirmed by the Hon’ble High Court upon consideration of the facts and circumstances of the case at hand and we find substance in his argument. Accordingly we are unable to interfere with the findings of learned trial Court concerning valid and conscious execution of the Will of the testator. 18. Hence, the appeal is dismissed. The judgment and order allowing the probate proceeding passed by learned trial court in Misc. Case No. 511 of 1997 (Original Suit No.34/99) are affirmed. We make no order as to costs. L.C.R. be sent down to the Court below for necessary action. 19. Urgent Photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.