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2025 DIGILAW 194 (CAL)

Sushma Chakraborty v. Malathy Roy Choudhary

2025-04-09

APURBA SINHA RAY

body2025
JUDGMENT : Apurba Sinha Ray, J. 1. This Court has been called upon to decide these second appeals on the following Substantial Questions of Law: (a) Whether both the Courts below were justified in dismissing the suit filed by the appellant claiming declaration of right, title and interest in respect of the subject property solely on the ground that the moment the will executed in respect of the said property by a person is found to be genuine, it creates a title into a beneficiary/legatee of the said Will ? (b) Whether a probate granted in respect of a Will has any impact on the right title and interest in respect of the property to which either the testator/testatrix had fraction of title or no title thereof.?” 2. Mr. Jayapal, learned counsel for the appellant has strenuously argued that the learned Trial Court as well as the learned First Appellate Court did not consider that attestation of the alleged will was not done in terms of Section 3 of the Transfer of Property Act and Section 63 of the Indian Succession Act, 1925. The learned counsel has also pointed out that no issue regarding the voidability of the relevant Will was framed by the learned Trial Court. Furthermore, the averment in the plaint, incorporated therein after amendment, regarding unfit health condition, was not denied, nor challenged by the defendant by filing additional written statement. The theory of non traverse, therefore, supports the plaintiffs’ case that the testator was not in his sound state of mind and therefore on this ground alone the plaintiffs’ suit should have been decreed. The learned counsel has also drawn the attention of this Court to the averment of the impugned Will and has submitted that the testator did not mention the reasons for exclusion of other heirs to inherit his property in the said Will. 3. The learned counsel has further submitted that though the date of execution of the Will was shown to be on 26.08.2005 but the date of presentation of the said will to the Sub-Registrar was shown as 24.08.2025. The learned counsel, therefore, submits that there are sufficient reasons to believe that the impugned Will is not genuine rather it is a fabricated and forged one. The learned counsel, therefore, submits that there are sufficient reasons to believe that the impugned Will is not genuine rather it is a fabricated and forged one. Learned counsel has drawn the attention of this Court to the relevant portions of depositions of defence witnesses contending that the defendant No. 1, the alleged beneficiary, has admitted in her deposition that in the relevant registered will there was an interpolation of date. It is also argued on behalf of the appellant that the alleged attesting witnesses i.e. DW 2 and DW 3 did not say that they saw the testator to sign the document in their presence, nor they said that the testator had seen them to affix their signature on the impugned Will. There was no certificate in the said will that the contents of the said Will were read over and explained to the testator by his learned counsel or anybody else. 4. The learned counsel has further submitted that the requirement of ‘attestation’ on a will should not be treated as an empty formality. The provisions of law in this regard are to be complied with in letter and spirit. 5. Learned counsel has referred to several case laws in support of his contention. The learned counsel has referred the case of Ghanshyam vs Yogendra Rathi reported in (2023) 7 SCC 361 to support his view that when there is provision of statutory law, the same is to be complied with strictly. It has been held in the said case law as hereunder :- “14. In connection with the general power of attorney and the will so executed, the practice, if any, prevalent in any State or the High Court recognising these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs. 100 in value.” 6. The learned counsel has also referred to the judicial decision in the case of Ajay Kumar Parmar vs. State of Rajasthan reported in (2012) 12 SCC 406 in support of his contention that learned Trial Court exceeded his jurisdiction by acting as an handwriting expert. 100 in value.” 6. The learned counsel has also referred to the judicial decision in the case of Ajay Kumar Parmar vs. State of Rajasthan reported in (2012) 12 SCC 406 in support of his contention that learned Trial Court exceeded his jurisdiction by acting as an handwriting expert. According to him the court should not act as an expert and should take effective steps to ascertain whether or not the relevant signature belongs to the concerned testator and in that regard he should have asked the concerned expert authority to examine the signature as found in the impugned Will to know whether the same belongs to the concerned testator or not. 7. Learned counsel has also relied upon the judicial decisions in the case of S.R.Srinivasa and others vs. S. Padmavathamma reported in (2010) 5 SCC 274 and also in the case of Anil Kak vs. Kumari Sharda Raje and others reported in (2008) SCC 695 to show the basis of his contention that when the Will is suspicious and surrounded with mystery, it is the obligation of the propounder to dispel such mystery with appropriate evidence. The learned counsel has further submitted that the reasons for exclusion of other legal heirs are not found in the four corners of the Will. The learned counsel has relied upon a decision in the case of H. Venkatachala Iyengar vs. B.N.Thimmajamma and others reported in AIR 1959 SC 443 (para 30) and argued that as the propounder took the lead role in preparing the Will, the Court should not declare the Will as genuine. He has also submitted that the judicial decision in the case of Smt. Jaswant Kaur vs. Smt. Amrit Kaur and others reported in (1977) 1 SCC 369 followed the principles laid down in H. Venkatachala Iyengar (supra). 8. The learned counsel of the appellant has submitted that the plaintiffs’ suit should have been decreed and if the Court finds it appropriate then the appeal/suit be remanded to the learned Trial Court for fresh application of mind. 9. Mr. 8. The learned counsel of the appellant has submitted that the plaintiffs’ suit should have been decreed and if the Court finds it appropriate then the appeal/suit be remanded to the learned Trial Court for fresh application of mind. 9. Mr. Ananda Halder, the learned counsel appearing on behalf of the respondent has categorically submitted that this Court has been called upon to decide the appeal on two Substantial Questions of Law, but the learned counsel appearing for the appellant has travelled beyond the periphery of the two Substantial Questions of Law and argued other grounds which are not permissible in the eye of law. The relevant issues have already been decided by two courts of fact. The judgements cited by the learned counsel of the appellant will not help them since the factual aspects and points involved are different from the present appeal. The plaintiffs nowhere in their plaint have denied the signature of the testator in the impugned Will. No plea in this regard has been taken in the first appeal also. The provisions under Order XLI Rule 47 of Code of Civil Procedure could have been availed of by the plaintiffs at the time of first appeal, but that was not done. Though the plaintiffs did not challenge the signature of the testator in the learned courts below, in second appeal the appellants have taken the said points for the first time. There was no prayer made from the side of the plaintiffs/appellants for framing of additional issues. It is not correct that there was no certificate in the Will. The testator has himself endorsed that the contents of the impugned Will were read over and explained to him by his counsel and he put his signature in presence of the witnesses and further he saw the attesting witnesses to affix their respective signature on the Will. The learned counsel for the respondent has also submitted that to prove the said Will he not only produced the said attesting witnesses, but also the learned advocate who scribed the said will. 10. The learned counsel for the respondent also argues that from the cause title of the plaint it would appear that the plaintiffs used to reside in different places but the address of the respondent is that of the suit property involved in this appeal. 10. The learned counsel for the respondent also argues that from the cause title of the plaint it would appear that the plaintiffs used to reside in different places but the address of the respondent is that of the suit property involved in this appeal. Therefore, it goes to show that the plaintiffs had never taken care of the testator at the relevant point of time since they used to reside elsewhere, whereas the present respondent had taken care of the testator during his life time and ultimately being satisfied with her service he executed the Will in favour of the respondent. The learned counsel has also submitted that the Court should not be bound by the technicalities of law. It has to consider the intention of the testator only and nothing more than that. He has also drawn the attention of this Court to the page numbers 113 to 119 of the paper book in support of his contention that no title is created in favour of the respondent. The probate in the Andaman and Nicobar Islands is not mandatory. In support of his such contention he has relied upon two judgements reported in [2000] ILR 437 A&N Series (Veena Devi (Smt.) vs. Siserama Devi (Smt.)) and [2004] ILR 8 A&N Series (Shri Kumud Ranjan Soajal vs. Smt. Bimal Kar & others). The appellants argued beyond Substantial Questions of Law. On 13.10.2023 the Hon’ble Division Bench dismissed the petition for stay with reasons. The interpolation was done by the Registry Office personnel and the defendant had no control over such registered documents. The learned counsel has categorically submitted that the impugned Will was executed on 26.08.2005 and on the same date it was presented before the concerned Sub Registrar and after complying with all formalities the same has been registered. The learned counsel has also submitted that the First Appellate Court considered the relevant factual aspects as well as the law involved therein and has clearly held that there is no illegality, infirmity in the judgement of the learned Trial Court. Further the learned First Appellant Court has accepted the said judgement holding that the plaintiffs have failed to prove their own case of in-genuineness of the Will. Further the learned First Appellant Court has accepted the said judgement holding that the plaintiffs have failed to prove their own case of in-genuineness of the Will. The learned counsel has further submitted that the plea of non traverse will not apply, since in her written statement the defendant has clearly stated that the impugned will was executed by the testator when he is in sound disposing state of mind. 11. In reply, the learned counsel for the appellant has drawn the attention of this Court to Section 100 (5) of the Code of Civil Procedure in support of his contention that in certain circumstances the appellant can argue beyond the Substantial Questions of Law. Decisions with reasons: 12. Section 3 of the Transfer of property Act has defined the term ‘attested’ and the same is quoted herein below:- “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 13. Now if we peruse the provisions of Section 63 (c) of the Indian Succession Act we shall find that it has also laid down how the attestation of a Will can be done. Now if we peruse the provisions of Section 63 (c) of the Indian Succession Act we shall find that it has also laid down how the attestation of a Will can be done. The relevant provision under Section 63 (c) may be quoted herein below:- “(c) The will shall be attested by two or more witnesses, each of whom 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 acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence 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.” 14. From the above it appears that Indian Succession Act, 1925 has specifically stated how the attestation of a Will can be done. It is to be done by two or more witnesses each of whom has seen the testator to sign or affix his mark to the Will. It is also mentioned therein that each of the witnesses shall sign the Will in presence of the testator. They will also witness that the testator has made a personal acknowledgement that he (the testator) has signed the said Will. Therefore these three broad conditions are to be complied with before we can say that attestation has been duly done in terms of the Section 63 (c) of the Indian Succession Act, 1925. Let us see whether in our case it has been done in accordance with Section 63 (c) of the Indian Succession Act, 1925. 15. Therefore these three broad conditions are to be complied with before we can say that attestation has been duly done in terms of the Section 63 (c) of the Indian Succession Act, 1925. Let us see whether in our case it has been done in accordance with Section 63 (c) of the Indian Succession Act, 1925. 15. In the last paragraph of the page No. 2 of the said Will it has been mentioned, in the version of the testator, hereunder: “I have executed this last will on this day of August 26, 2005 at Port Blair and this Will has been drafted by my advocate Rajesh Kumar on my instructions and after the contents of this Will were read over and explained by my said advocate in Hindi and after duly understood and fully satisfied about the contents I have in presence of the witnesses both of whom were present and listening while this Will was read over and explained by my said advocate and they have also signed this Will in presence of each of them.” 16. This averment goes to show that the contents of the Will were read over and explained to the testator by his learned advocate and the same was done in presence of both the attesting witnesses and such discourse was done within their hearing and both of them signed the said Will in presence of each of them. The witnesses have also subscribed to the written comment that they signed the said Will at the request of the testator in his presence and all such activities were taken place in the chamber of the Advocate Rajesh Kumar at Port Blair on 26th August, 2005. The said witnesses were also called upon and they deposed before the learned Trial Court and supported the contents of the impugned Will. The advocate who scribed the said Will was also examined before the learned Trail Court. 17. Therefore, though under Indian law there is no settled form or formalities required for the purpose of attestation of the Will, it is only to be ascertained whether the substantial compliance of the provisions of Section 63 (c) of the Act 1925 has been done or not. In other words the propounder is under a duty to show that the conditions mentioned in Section 63 (c) of the Act, 1925 have been duly complied with. In other words the propounder is under a duty to show that the conditions mentioned in Section 63 (c) of the Act, 1925 have been duly complied with. In this case it appears that the witnesses, the scribe have categorically stated that they were present at the time of execution of the said Will and the same was done in their presence in the chamber of the testator’s advocate. Furthermore, the said will was registered before the concerned Sub Registrar and the testator himself visited the office of the Sub Registrar at the time of presentation of the said Will. The record shows that the execution of the Will was done on 26.08.2005 and the testator died on 15.08.2008. Therefore almost after three years the testator died. Therefore, it cannot be said that the testator was not in sound disposing state of mind at the relevant point of time or he was unfit or was suffering from any serious ailments in the absence of cogent evidence. Moreover, the theory of non-traverse as argued by the learned Counsel of the appellant is not applicable in this case since the plaintiffs have to prove their case on the strength of their evidence, not on the weakness of the defence. Moreover, a fact should be proved by producing best evidence. To show that the testator was not sound state of mind, the plaintiffs should have produced reliable evidence in that regard but they had failed to do so, in spite of having sufficient opportunity. 18. As the defence or the propounder of the Will has been able to discharge her onus that the Will has been executed by the testator while he was in sound disposing state of mind and health, it was duty of the plaintiffs to discharge his onus. Both the courts below have discussed the matters involving the factual issues. This Court being the Court dealing with the Substantial Question of Law in the Second Appeal does not want to enter the factual matrix of the case since this Court does not find that there is any laches on the part of the courts below in appreciating the factual aspects and relevant evidences in that regard. 19. It is true that the Court should not act as an expert when the court can easily seek for an opinion of the expert on a given subject. 19. It is true that the Court should not act as an expert when the court can easily seek for an opinion of the expert on a given subject. However, in this case though the learned Trial Court has exceeded its jurisdiction in comparing the signature of the testator without taking the help of the expert from the relevant field, I don’t think that such exercise of jurisdiction and observation of the learned Trial Court has vitiated his ultimate findings. Considering all aspects of the matter I find that there is no need for interfering with the judgements passed by the learned Courts below. 20. Further it is settled, in view of the judicial decisions reported in [2000] Indian Law Report 437 Veena Devi (Smt.) vs. Siserama Devi (Smt.) and also [2004] ILR 8 A&N Series (Shri Kumud Ranjan Soajal vs. Smt. Bimal Kar & others), that probate proceedings under Indian Succession Act are not applicable to Andaman & Nicobar Islands. As the above decisions of the Hon’ble Division Bench shows that the probate proceedings are not required in these Islands in view of Sections 57 and 213 of the Act 1925, I also want to add that in view of the relevant Regulations of 1966, when a question arises regarding the genuineness or authenticity of a testamentary document, it is better for the concerned person to knock the door of the Civil Court to prove that the Will was made genuinely or not. 21. In view of the above discussion, the Second Appeals being SAT/5/2023 and SAT/7/2023 are dismissed on contest. No costs. The judgement passed by the First Appellate Court in Title Appeal No. 06 of 2019 dated 30 th June, 2023 Is hereby affirmed. Trial Court Record be returned along with a copy of this judgement pronounced today. 22. Urgent Photostat certified copy of this judgement, if applied for, be supplied to the parties upon compliance of usual formalities.