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Bratindra Nath Dey Vs. Sukumar Ch. Dey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberTestamentary Suit No. 1 of 1967
Judge
Reported inAIR1970Cal85
ActsSuccession Act, 1925 - Sections 57, 74 and 300(2)
AppellantBratindra Nath Dey
RespondentSukumar Ch. Dey
Appellant AdvocateDutt, Adv.
Respondent AdvocateGhosh, Adv.
Cases Referred and Frederick George Stimpson v. E. M. Bennett
Excerpt:
- .....where the mental capacity of the testator is challenged, the court ought to find whether upon theevidence the testator was of sound disposing mind and did know and approve the contents of the will. the learned judges there have allowed the appeal inasmuch as that although there was evidence to establish that the testator did know and approve of the contents of the will the learned district judge had not pronounced his opinion upon it. accordingly, the high court was of the opinion that the learned district judge was wrong in not expressing his opinion on the point. but instead of remanding the case they examined the evidence themselves and came to the following conclusion:--'upon the evidence i am wholly unable to say that the plaintiff has given satisfactory proof that the will.....
Judgment:

Masud, J.

1. This is an application on behalf of Bratindra Nath Dey, a grandson of the deceased testator for the grant of Letters of Administration to the estate of the deceased. The testator Triguna Charan Dey also known as Joy Chandra Dey died on the 27th of October 1959 at his residence at Dey Para in Chinsura in the district of Hooghly leaving the following persons as his legal heirs and near relations:--

(a) Sm. Sorojinibala Dassi, widow (b) Sri Madhusudan Dey, son

(c) Sm. Bala Singh, Daughter

(d) ' Parbati Bala Addya, Daughter

(e) 'Lalitabala Dassi, widow of a predeceased son Debi Charan Dey who died on 15-2-57.

(f) Sri Nirod Baran Dey, grandson of the testator through the said Debi Charan Dey and who died unmarried on 16-7-60.

(g) Sri Sukumar Chandra Dey, son of the said Debi Charan Dey.

(h) Sri Dilip Kumar Dey, son of the said Debi Charan Dey.

(i) Sm. Sandha Dey, minor daughter of the said Debi Charan Dey.

(j) Sri Golok Behari Dey, minor son of the said Debi Charan Dey.

The said testator executed his will on August 8, 1950 at his residence in Chin-sura. The present applicant is the son of Madhusudan Dey, who made this present application on 30th April 1966. The said Sukumar Chandra Dey has lodged caveat and is contesting the present application. The following Issues have been settled:--1. Did the testator have the testamentary capacity at the time of execution of the Will?

2. Has the Court jurisdiction to grant Letters of Administration in this matter?

3. What relief is the petitioner entitled to?

(After discussing the evidence in paras 2 to 4 the judgment proceeded:)

5. Now, taking into consideration the facts and the surrounding circumstances it appears to me that the testator was an unhappy man on account of the fact that his two sons and one daughter were notnormal. The daughter, who had committed suicide must have developed insanity after her marriage, otherwise she would not have been married at all. Be that as it may, there is nothing to show that in August 1950 the testator's physical and mental conditions were such that he was not in a position to understand the contents of the Will. On the contrary the evidence of the doctor is that he was in a position to understand things. Relying on Bhojraj v. Sita Ram , it has been argued by Mr. Ghosh, counsel for the respondent, this admission should not be relied upon in the context of other evidence. But there is no evidence on behalf of the respondent or of any witness that the testator had no capacity to understand things in August 1950. The signature in the Will has not been challenged at all. The name was signed by the testator in a clear legible way. Dr. Chatterjee has admitted that there was lapse of sanity and insanity occasionally. The Will was executed In August 1950 and the testator died in 1959. It is not the case of the respondent that during the period between 1950 and 1959 he was insane continuously. Assuming that he was suffering from insanity in 1950, there is no evidence showing that during long nine years he discussed the Will or wanted to change it. His wife has been carefully preserving the said will. If the will would have been unnatural or if the will would have been concocted or if the will would have been executed under some conspiracy, collusion or undue influence, his widow after his death could have destroyed it. As a Hindu widow she would have expressed her views that it was not her husband's intention to give effect to the provisions of the Will. It is true that she as executrix did not apply for grant of the probate, but it should be remembered that the testator died on 27th October, 1959 and she died on 26th August 1961. It is quite possible as suggested by counsel for the petitioner, that she did not take the trouble of taking steps to pay the Estate Duty during the year of mourning. Her decision to preserve the Will shows that she did not consider the Will to have been executed by the testator involuntarily, nor she wanted to have the administration of the estate disturbed during her lifetime. The normal condition of the testator at the time of the execution of the Will has also been confirmed by the attesting witness and also the present applicant.

6. Relying on Umesh Chandra Biswas v. Rashmohini Dassi, (1894) ILR 21 Cal 279, Mr. Ghosh has argued that due execution of a Will implies not only that the testator must be in such a state of mind as to know the execution of the documentas his Will but that he knew and approved the contents of the Will. According to him the petitioner has failed to prove that the alleged Will is the testator's Will and that he knew the contents of the Will. In my view this case is not of much assistance to the respondent. As stated earlier, there is evidence of the attesting witness and also the propounder of the Will and Dr. Chatterjee to the effect that in 1950 the testator did not suffer from any physical or mental ailment. There is also evidence that the attesting witness has signed his name in the Will in presence of the testator and other attesting witnesses. The signature of the Will has not been challenged as a forged one. The execution of the Will also has not been raised as an issue by the respondent Although a feeble attempt has been made that the execution was done under the undue influence of the petitioner no particulars have been stated in the affidavit of the respondent to raise the plea of undue influence. Besides the petitioner was only 12 years old at the time of the execution of the Will. There is no suggestion in the cross-examination that the Will to which the testator put his signature was not the testator's Will. In the absence of any positive evidence on the part of the respondent It is not possible for me to hold that the testator did not know the contents of his Will. Further, the facts of the said decision in (1894) ILR 21 Cal 279 (supra) are distinguishable. There in the grounds of objection execution of the Will, physical and mental capacity of the testator and improbability of execution have been mentioned and only one general issue was raised which is as follows:--

'Was the Will duly executed by the testator according to law.'

In this decision the High Court has relied upon an observation of Judicial Committee in Mitchell v. Thomas, 0847) 6 Moo PC 150 where the learned Judge has made the following observations:--

'This of course involves in the proposition that the testator knew and approved of the contents of the instrument, the proposition that he was a free and capable testator, since knowledge implies his possession of the capacity without which he could not know the contents of the Will, and approval cannot be real and complete without a free exercise of the Will.'

The learned Judges of the High Court In the said decision have stated that in ordinary cases the execution of a Will by a competent testator raises the presumption that he knew and approved the contents of the Will, but where the mental capacity of the testator is challenged, the Court ought to find whether upon theevidence the testator was of sound disposing mind and did know and approve the contents of the Will. The learned Judges there have allowed the appeal inasmuch as that although there was evidence to establish that the testator did know and approve of the contents of the Will the learned District Judge had not pronounced his opinion upon it. Accordingly, the High Court was of the opinion that the learned District Judge was wrong in not expressing his opinion on the point. But instead of remanding the case they examined the evidence themselves and came to the following conclusion:--

'Upon the evidence I am wholly unable to say that the plaintiff has given satisfactory proof that the Will propounded is that of a free and capable testator, or that there is any satisfactory evidence that Mohim (testator) knew and approved the contents of the Will,'

This observation shows that the learned judges did not find any satisfactory proof that the Will executed was that of a free and capable testator. In the present case I am fully satisfied for reasons stated above that the testator signed the Will as a normal person and that he must be presumed to have the knowledge of the contents of the Will, particularly because there is no attempt for rebuttal of the said presumption nor has the execution of the Will been challenged before me. It may be added here that the counsel for the respondent has made various suggestions with respect to the circumstances under which the Will was executed. The respondent was a very young boy of less than 12 years old and he could not have any personal knowledge of those facts although he has verified in his affidavit in the present proceeding the truth of those statements on the basis of his knowledge. The respondent or his mother or any other member of the family has not been called as a witness to disprove the petitioner's case.

7. It has also been faintly suggested by Mr. Ghosh that the Will is an unnatural Will and injustice has been done to his client It is true that the unnatural provision of a Will may be a relevant factor in considering the validity or execution of a Will or in determining the testamentary capacity of the testator. But in the absence of any issue challenging the validity of the Will on the grounds of undue influence or due execution such provision cannot be a determining factor. In any event the provisions of the Will do not appear to me to be unnatural. The residential house has been allotted to the petitioner in the Will whereas certain shops and a vacant plot of land where the testator contemplated to erect a resi-dential house have been given to the heirs of his predeceased son Debi Charan Dey. Further the moveables have been bequeathed in the Will in equal shares to Madhu Sudan Dey and the respondents group.

8. For all these reasons I hold that Triguna Charan Dey had the testamentary capacity at the time of the execution of the Will and, as such, the issue is decided against the respondent.

Issue No. 2.

(a) The respondent has not raised any plea of jurisdiction in his affidavit, and, Mr. Dutt, on behalf of the petitioner, has submitted that this issue should not have been raised. At the time when the issue was raised Mr. Dutt did not object. But relying on Ram Prasad Chimanlal v. Hazarimull Lalchand : AIR1931Cal458 , and Tilak Raj v. Prithipal Singh, AIR 1981 J & K 61 Mr. Ghosh has strenuously argued that under Order VII, Rule 1 of the Code of Civil Procedure it was incumbent upon the petitioner to state in the petition the facts and circumstances under which this Hon'ble Court has jurisdiction to hear the matter. It is in that context Mr. Dutt has submitted that the plea of jurisdiction should not be decided by me; As plea of jurisdiction has been argued by counsel for both the parties and as In the present case it is a pure question of law, I, however, feel that question of Jurisdiction should be decided by me.

10. Mr. Ghosh has argued that the testator died in Chinsura leaving all his properties there and, as such, the Calcutta High Court has no jurisdiction in the matter. He, at a later stage, has conceded that Section 300(1) of the Indian Succession Act, 1925 gives a concurrent jurisdiction to the Calcutta High Court and that this Hon'ble Court can deal with this matter although no part of the property of the deceased has been left by him within the original jurisdiction of this Hon'ble Court. He, however, has stated that the petitioner should have stated that the necessary notification required under Section 300(2) of the Act should have been mentioned to invoke the concurrent jurisdiction of this Hon'ble Court. Reliance has been placed by Mr. Dutt in Maniklal Shah v. Hiralal Shaw, : AIR1950Cal377 where J. P. Mitter, J. has come to the conclusion that the necessary notification made under Probate and Administration Act of 1881 is a sufficient compliance with the requirement of the notification under Section 300(2) of the Indian Succession Act. I, however, told Mr. Dutt that I am not satisfied with the reasonings of the conclusion arrived at by the learned Judge. On that view, Mr. Ghosh has also reiterated my objection that a notification under Probate & Administration Act of 1881 cannot be treated as anotification under Section 300(2) of the Indian Succession Act, 1925, which has repealed the Probate & Administration Act of 1881. Apart from the effect of Section 6 of the General Clauses Act, 1897 and that of Article 225 of the Constitution read with clause 34 of the Letters Patent, in (sic) opinion, no notification is necessary under Section 300(2) of the Act in the present case. It appears to me that under Section 300(2) notification is required only when the High Court exercises its concurrent jurisdiction in a case other than the cases mentioned in Section 57 of the Act. Section 57 of the Act refers to cases of Wills made by a Hindu on or after 1st day of September 1870 within West Bengal and also other Wills made by a Hindu which are not mentioned under the two groups of Wills mentioned in Section 57(a) & (b). The present Will admittedly is a Will which comes under the cases of Section 57(a) & (c) and in the premises no notification is necessary to invoke the concurrent jurisdiction of this Hon'ble Court. Reliance may also be placed on Nagendra Bala Debi v. Kashipati Chowdhury, (1910) ILR 37 Cal 224; AIR 1955 Cal 377 (supra) and In re Gordon Frederic Muirhead, AIR 1959 Mys 83. In any event, Mr. Dutt has referred me to Mst. Sobhag Rani v. Mt. Lado Rani, AIR 1929 Lah 282, and Frederick George Stimpson v. E. M. Bennett, AIR 1946 Oudh 73 In support of his contention that the Court has jurisdiction inasmuch as the GJ. P. Notes and the dividends of the shares of the companies having their registered offices in Calcutta are payable to the testator or his heirs within the jurisdiction of the Hon'ble High Court. As I have already held that this Court has jurisdiction under Section 300 of the Indian Succession Act, 1925 it is not necessary for me to decide this point. In the premises I decide the issue in favour of the petitioner.

Issue No. 3.

11. I hold for the reasons stated above that there will be order in terms of prayer 'A'. The petitioner's cost of the application will come out of the estate of the testator. Respondent shall bear his own costs.


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