1. This propounder's probate first appeal is from the judgment and decree of the District Judge, Cachar at Silchar in Testamentary Suit No. 2 of 1972 refusing probate of the Will purported to be executed by Dulal Chandra Nath Muzumdar on 26-11-1948. For proper appreciation of the circumstances surrounding the Will the family genealogy is given below:
Dulal Chandanj Nath Mazumdar
(Died on 12-1-1949)
(Will executed on 26-11-1948)
Atul Chandra Nath Mazumdar
(Died on 17-12-1965)
| | |
Kamla Devi Prema Devi Raimya Devi
Wife (1) Wife (2) Wife (3)
(Died in (Died in Respondent
13-5 B.S. 1944 A. D.) Objector
| | (Defendant 1)
| | |
Abhay Charan | |
Nath Mazumdar | |
(Appellant) | |
| | | |
Aswini Kumar Effren Chandra Jogamaya Devi |
(Defendant No 7) (Defendant No 8) (Defendant No 9) |
| | | | |
Anil Ananta (Minor) Arun Ajay Minati Nath
(Defendant 2) (Defendant 3) (Defendant 4) (Defendant 5)(Defendant 6)
2. The plaintiff-appellant Abhoy Charan Nath Mazumdar filed Testamentary Suit No. 2 of 1972 for probate of the aforesaid Will as its executor. The Testator Dulal Chandra Nath Mazumdar died on 12-1-1949 and the plaintiff-appellant was granted probate by the District Delegate, Cachar on 27-8-49, but the probate was not actually taken out until 27-5-70 after his father, Atul Chandra Nath Mazumdar, died on 17-12-1965. The defendants-respondents filed an application Under Section 263 of the Indian Succession Act, hereinafter referred to as 'the Act' challenging the will as a fraudulent document and praying for revocation of the grant of probate on the ground that it was made without proper citation; and by order Dt. 31-8-71 the District Delegate revoked the probate on that ground. The plaintiff-appellant thereafter applied for revival of the original probate case being Misc. Case No. 51 of 1949 issuing proper citations to the objectors at which the defendant-respondent No. 7, Raimya Devi, and defendant-respondent No. 2, Anil Chandra Nath Mazumdar, defendant-respondent No. 6, Minati Nath and defendant-respondent No. 9, Jogomaya Devi, being the widow, sons and daughter, respectively of the deceased Atul Chandra Nath Mazumdar, the only son of the testator, contested the application filing written objections whereupon the misc. case was registered as a testamentary suit. Defendants Nos. 7 and 8, being two other sons of Atual Chandra Nath Muzumdar did not contest.
3. The defendants-respondents pleaded that the application for probate was not maintainable in law in its present form; that it was barred by limitation; that the testator was not in his proper senses and was physically and mentally incapacitated and that he never voluntarily executed any Will, as alleged; and that the alleged Will was a fraudulent and sham document created by interested person; and lastly, that the Will was a contingent one and the contingency never happened.
4. On the pleadings the following issues were settled:
'1. Is the application for revival of the Probate Case No. 51 of 1949 maintainable in law?
2. Is the application barred by limitation?
3. Was the Testator mentally and physically fit at the time of making the alleged Will?
4. Whether the alleged Will is a fraudulent and sham document?
5. Is the alleged Will a contingent one and is it entitled to probate?
6. Is the plaintiff entitled to probate of the alleged Will of Dulal Chandra Nath?'
5. At the hearing the plaintiff-appellant examined himself and four other witnesses. The defendant-respondent No. 1 examined herself only for the contesting defendants. Defendants Nos. 3 to 5 being minor sons of Atul Nath were represented by their mother and next friend, defendant No. 1. On appreciation of the evidence on record the learned District Judge found that the plaintiff-appellant was not only the executor of the alleged Will but also a beneficiary thereunder and that he was legally entitled to apply for issue of citations without making fresh application for grant of probate and that the application was not barred by limitation. On issue No. 3 it was held that the plaintiff-appellant failed to establish that Dulal Nath was mentally and physically fit at the time of making the alleged Will (Ext. 4) and the weight of evidence and circumstances on record satisfactorily established that Dulal Nath had no mental capacity which rendered Ext. 4 invalid. Issue No. 4 was decided in the negative, the defendants-respondents having failed to discharge their burden of proving fraud. It was also held that the due execution of Ext. 4 had not been established.
6. Issue No. 5 was answered in the affirmative and against the plaintiff-appellant holding the Will to be a contigent one as the condition of operation of the will was found to be dependent on Atul Nath predeceasing Dulal Nath as could be clearly gathered from the opening words in Ext. 4; and in the above view of the matter the contingency having not happened, Atul Nath not predeceasing the testator, the probate was refused. Hence this first appeal.
7. Mr. B. K. Das, the learned counsel for the plaintiff-appellant, submits, inter alia, that the finding on issue No. 3 that the due execution of the Will was not proved, is erroneous in law; that in arriving at the finding that the testator did not have testamentary capacity at the time of making the Will, the learned court failed to appreciate that a registered Will is prima facie genuine and properly executed when the registration of the Will itself was not challenged, that the finding that the Will was void is not sustainable in law; that fraud was not properly pleaded as required under Order 6, Rules 2 and 4 of the Civil P. C. and that the Court erred in construing the Will while holding that it was a contingent one.
8. Mr. B. K. Acharyya, the learned counsel for the defendants-respondents counters contending that the learned court was correct in all its findings which deserve no interference.
9. On perusal of the application for probate, the objections filed by the defendants, and the depositions of the witnesses the following suspicious circumstances appear: (a) the alleged Will was executed on 26-11-48 and the testator, Dulal Chandra Nath Mazumdar, died on 12-1-49. Probate was applied for on 1-7-49 and was granted on 1-7-50 and despite the grant it was not taken out till 27-5-70 after Atul Chandra Nath Mazumdar's death on 17-12-65. This appears to have some bearing on the contingent nature of the Will; (b) The first grant of probate was obtained without proper citations; (c) the plaintiff-appellant remained silent for more than 20 years till after the death of his father Atul Chandra Nath Mazumdar; (d) the testator was above 80 years of age and was bedridden, unable to move, and from the contents of the Will it appears that he had a notion that his only son's health was too bad and he might predecease him, and he in his Debottarnama bequeathed properties which belonged to Atul and not to himself; (e) and lastly, he did not bequeath anything to his only son under the Will and appears to have lay his Will provided for an eventuality in case his only son predeceased him.
10. Circumstances (a), (b) and (c) above are not disputed and there is no reasonable explanation of the delay as well as failure to give proper citations. There is no dispute that the testator was above 80 years he himself having stated so in this Will. P. W. 5 deposes that at the time of making the Will Dulal Nath suffered from asthmatic trouble and rarely moved about but he was conscious. Defendant-respondent No. 1 as D. W. 1 stated that from about two months before his death, Dulal Nath suffered from asthma and disorder of bowels for which he was bedridden and almost unconscious and he died in that condition. It is not in dispute that Dulal Nath died about one and a half months after making of the Will. The testator himself stated that he was (Words in vernacular are omitted here--Ed). Admittedly. Mohendra Doctor, who treated him during his illness, was still alive but was not examined in the case. P. Ws 4 and 5 did not deny that the testator suffered from asthma at the time of making the Will. This is on the physical aspect. On the mental capacity it is evident that his express notion that his only son, Atul Nath's physical condition was too bad and he might even predecease him, was proved to be clearly wrong. D. W. 1 deposes that her husband, Atul Nath, was in good health at the time of Dulal Nath's death and that he lived jointly with Dulal Nath and looked after the properties and maintained the family. Admittedly Atul Nath died in 1965, about 16 years after Dulal. This clearly belies the notion under which Dulal Nath was labouring about Atul's health. It is again not in dispute that in Ext. 5, the Debottarnama, he included properties which stood in the name of Atul and not in his name. The learned counsel submits that those properties were benami properties and could therefore be bequeathed by Dulal Nath. But he has no explanation as to why even that fact was not mentioned. These two facts at least go to show that the testator suffered from some mental infirmity. A sound disposing mind implies soundness of mind, memory and understanding. It is necessary for the validity of a Will that the testator should be of sound mind, memory and understanding. It implies sufficient capacity to deal with and understand the disposition of property in his Will. A testator can be said to be capable of making a valid Will if he has shown to have the capacity to understand what is written in the Will. Imbecility arising from advanced age or caused by illness may destroy testamentary capacity. As has been observed in Halsbury's Laws of England, Third Edition, Volume 39, Section 1294, 'in order to be of sound disposing mind, a testator must not only be able to understand that he is by his will giving his property to one or more objects of his regard, but he must also have capacity to comprehend and to recollect the extent of his property and the nature of the claims of others whom by his will he is excluding from participation in that property. Mere forgetful-ness to comprehend some property or to recollect the claims of those excluded, would not seem sufficient to invalidate the will, unless such forgetfulness establishes incapacity such as illusory notions and beliefs. It is essential that no disorder of the mind should poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion should influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound would not have been made. Perversion of moral feeling does not constitute un-soundness of mind. Eccentricity alone does not prevent a man from disposing of his property by will; and the extravagance of the provisions of a will is not necessarily in itself conclusive evidence of unsoundness of mind.'
11. Unsoundness of mind may be caused by senile decay, as has been observed, 'in case where unsoundness of mind arises from want of intelligence occasioned by defective organisation, or by supervening physical infirmity, or by the decay of advancing age, as distinguished from mental derangement, that defect of intelligence is also a cause of incapacity. In these cases, however, though the mental power may be reduced below the ordinary stand, yet if there is sufficient intelligence to understand and appreciate the testamentary act in its different bearings the power to make a will remains.'
12. In the light of the above principles the mental incapacity of Dulal Nath at the time of making the Will is apparent from the wrong notion amounting to delusion he was labouring under and complete physical breakdown being unable to move (Words in vernacular are omitted--Ed).
13. The Will begins with the following expression:
'And Whereas I am advancing more than 80 years of age at present and have been suffering from various complicated ailments of old age lying bedridden in a dying stage. My only son Sri Atul Chandra Nath is still alive. His sons (1) Shri Abhoy Charan Nath (2) Sri Aswini Kama Nath, respectively who were born through him are still alive. At present my sons's health is in a very precarious condition. There is no such hope of his surviving more in the world. God forbid, if death occurs to my son during my life time, I, with a view to keep my immovable properties from destruction that may be caused by my future heirs and successors and with a view to save the properties from further trouble that may have to be faced in future, have made this testamentary disposition (my last Will) in the following terms and conditions:.....'.
14. The eventuality is-- 'if death occurs to my son during my lifetime, I, with a view to keep my immovable pro-parties from destruction......have made this testamentary disposition....'. This clearly provides for a situation that might arise in the event of his son predeceasing him.
15. The learned counsel for the respondents submits that the fact of envisaging such an eventuality and the fact that the testator was above 80 years and suffering from various old age ailments, go to show that the testator was mentally alert. The submission overlooks the fact that the testator was entirely wrong in his notion that his son's health was precarious and he might predecease him. Except this delusion there was no other reason why his only son should have been totally deprived under the Will. This may have had something to do with the delay of 20 years in taking out the first probate obtained without proper citations. The family genealogy also throws some light on this aspect.
16. As regards the finding on issue No. 3 the evidence is that P. W. 4 had written the Will, Ext. 4, as per narration of the testator and having completed the writing he read over to the testator who put the signatures thereon in presence of the witnesses, Exts. 4 (5) and Ext. 4 (6) being those signatures. Exts. 4 (7) and 4 (8) are signatures of the witnesses. In cross-examination, however, he said that the attesting witnesses of the deed, Joy-deb Nath, took him to the house of Dulal Nath. No draft was prepared before writing Ext. 4. On his arrival at the house of Dulal Nath the latter asked him to write a Will and a Debottarnama and he had written those. He categorically stated that the testator did not give him statements at the time of writing Ext. 4. This contradicts his earlier statement that he wrote Ext. 4 as per narration of the testator. Under such circumstances whether the Will was that of the testator, who was ill, becomes doubtful. The circumstances of long delay and obtaining the first probate without citations considered in light of deprivation of the only son under the Will and the Debottarnama including properties of the son aggravate the doubt,
17. In Purnima Debi v. Khagendra Deb, AIR 1962 SC 567, relied on by the learned counsel, it has been observed (at p. 574):
'There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close exanimation reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may lake place without the executant really knowing what he was registering.'
18. The learned counsel relies on the endorsement of the registering officer on the back of the Will to the effect --'Presented for Registration at 7 A. M. on the 29th November, 1948 at the residence of Dulal Chandra Nath Mazumdar at Malugram by the said Dulal Chandra Nafh Mazumdar s/o Bolai Nath Mazumdar by caste Jogi, by profession cultivator, and the said Dulal Ch. Nath Mazumdar admitted the execution of the Will who has been identified by Madhab Ch. Nath Mazumdar, s/o Madhunath Mazumdar, resident of Malugram by caste Jogi, by profession cultivator. '
19. It is admitted that the registering officer was not examined in the case in proof of his endorsements. Under the suspicious circumstances of this case, in face of the objections, the examination of the registering officer would be expected.
20. As regards the submission that fraud was not properly pleaded as required under Order 6, Rules 2 and 4 C. P. C., it may be noted that issue No. 4 was decided in the negative observing that the defendants have not in clear terms placed how fraud was resorted to in making Ext. 4.
21. We do not find any infirmity in the finding in issue No. 5 that the Will was a contingent one and that the contingency did not happen.
22. Section 124 of the Succession Act deals with a case of bequest contingent upon specified uncertain event, no time being mentioned for its occurrence, as follows:
'124. Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequested is payable or distributable.'
23. This Section imposes both the rule of construction and rule of law applicable to legacy contingent on the happening of a specified uncertain event. If the words of a will, on a fair and natural construction, are capable of bearing the meaning that the testator contemplated the happening of the contingency not at any time or after the period of distribution but only before that period, then the will has to be read in that sense.
24. Under section 125 of the Act where a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the legacy shall go to such of them as are alive at the time of payment or distribution, unless a contrary intention appears by the will,
25. In the instant case the eventuality provided for in the Will was in case his son Atul predeceased the testator, which did not happen.
26. In Smt. Pramod Kumari Bhatia v. Om Prakash Bhatia, (1980) 1 SCC 412: (AIR 1980 SC 446), where the testator's intention was to give the property to Om Prakash in case Lakshmi Devi predeceased the testator, it was held to be patently and reasonably certain and no speculation but a compelling conviction that the Court would be justified in exercising its crucial draftsmanship for the testator and supplying the specific words missing from the Will; and that the Court had jurisdiction to do so.
27. The intention of the testator is to be gathered by reading the Will as a whole. In Sridevi Amma v. Venkita-parasurama Ayyan, AIR 1960 Ker 1 (FB) it has been held that 'a conditional or contingent will is one which depends for its operation upon the happening of a specified condition or contingency. If the condition fails, the will is inoperative and void thereafter. If a will is conditional only, it will be null on the contingency not happening even though the testator subsequently refers to it as his will and though after his death it be found in his writing desk. In fact such a will can also be revoked either by implication or by express words. Whether or not a writer to be regarded as contingent depends upon the intention of the testator. Courts will not regard a will as conditional or contingent unless the intention of the testator to make it so clearly appears either expressly or by necessary implication from the language of the will as a whole. A will is not made conditional by statements therein which have no reasonable or logical relation to the testator's property or to the objects of his bounty. A statement in the will of circumstances which merely indicate the necessity or serve as the occasion or inducement for making the will will not render it contingent.' Where it is doubtful whether the will is contingent upon the occurrence of an event the circumstances under which the will was executed or the language of the instrument may be considered.
28. From the text of the Will it is clear that predeceasing the testator by Atu1 is envisaged and that is why he has not been seen at all in the Will. In the Debottarnama also Anil's properties are included. Construing the Will as a whole we do not entertain any doubt that the Will was contingent and it provided for an eventuality of Atul predeceasing the testator.
29. For the reasons discussed above, we do not find any infirmity in the impugned judgment and we dismiss the appeal but under the facts and circumstances of the case without costs.
D. Pathak, Ag. C.J.
30. I agree.