Bankim Chandra Ray, J.
1. This appeal is against the judgment and decree passed in Probate Suit No. 3 of 1971 by the 1st Court of Additional District Judge at Howrah dismissing the said suit with costs.
2. The application for probate of the will alleged to have been executed by Radhika Prosad Seal alias Shee was filed by the appellant Ashutosh Seal. One of the executors named in the said Will which is alleged to be the last Will of the testator. The Will being contentious the application was returned by the District delegate and it was refiled before the District Judge. Howrah. The caveator respondent Umashasi Santra; daughter of the testator, filed a written objection contending inter alia that the Will in question was not executed by her father, the testator, that the Will was a forced one and it had been created by the propounder in collusion with his henchmen in order to deprive her of her legitimate share in the properties left by her father Radhika Prosad Seal and as such the said suit should be dismissed. It was also stated therein that the testator 9/10 years before his death was absolutely confined to bed and during the last three, years he had no sense to identify people and he was under full senility, he was not physically fit and mentally alert to execute the alleged Will, it was further alleged that Radhika Prosad Seal died interstate. Plaintiff alone with others got a deed of gift in respect of 1/6th share of the properties from one of their sisters Sefalika Parta on payment of money to her in 1962. The propounder also offererd to pay her Rs. 5.000 for transferring her 1/6th share in the properties in their favour but she refused to do so.
On the above pleadings following four issues were framed:--
(a) Is the application for probate maintainable in law?
(b) Was the Will validly and legally executed and attested?
(c) Is the Will a forged and fabricated one?
(d) To what relief if any are the parties entitled to?
3. The Additional District Judge, 1st Court Howrah after consideration and assessment of the evidence on record held that the suit was maintainable in its present form. It was further held that though the terms of the disputed Will did not appear to be unnatural and unreasonable vet there were circumstances raising suspicion regarding the execution of the Will by Radhika Prosad. The propounder failed to remove the suspicions regarding the execution of the Wilt by the testator by going to the house of the lawyer after calling the witnesses from their houses in Calcutta, it was not executed by the testator. The suit was therefore dismissed.
4. Against the said judgment and decree the instant appeal has been preferred by the propounder.
5. Mr. Manindra Nath Ghose, the learned Advocate: for the appellant, submitted that the Court below after having found that there was nothing unnatural in the terms of the Will which purport to give all the properties left by the testator to all his four sons Santosh, Ashutosh. Kamala Kanda and Harendra as well as it provided for residence and maintenance of the testator's wife Tulsibala and of the elder brother's wife Charushita. The two daughters of the testator Umasashini alia? Umashasi Santra and Shefelika Patra were given in marriage by the testator and they have been living in their husbands' house and so no provision was made for them. Two out of three attesting witnesses have also Droved the execution of the Will locally and validly by the testator and the attesting witnesses duly signed the Will in presence of the testator. The scribe also duly signed the Will as a Scribe. It has been submitted that there being nothing unnatural in the terms of the will and the Will was proved to be duly executed attested, the question of removing or explaining mere suspicions cannot arise. It is not necessary for the propounder to remove or explain such suspicion. In this connection Mr. Ghosh has cited some decisions at the Bar. It has been further submitted by Mr. Ghose that mere delay in filing the application for admitting the Will to probate does not create any embargo in the matter of grant of probate if the Will is otherwise proved to have been properly executed and attested and there is no suspicious circumstances surrounding the Will Moreover the delay in filing the probate case was explained by the propounder that he was advised by his lawyer Benoy Babu to file the criminal case first against his nephew and the probate case was filed after the criminal case according to the advice of the lawyer. It has been further submitted that merely there is some suspicion the probate of the Will cannot be denied if the Will is otherwise proved to be duly executed and attested.
6. Mr. Mookerjee, the learned Advocate for the respondents has submitted that the recital in the Will already show that the testator was seriously suffering from piles, fistula and whooping cough and he was apprehending his death. As such he executed the will making arrangement of his properties. This serious illness of the testator is also supported by the testimonies of the respondent Umasashi Santra, daughter of the testator, and of Kalipada Marik, the maternal uncle of the propounder and Umasashi. In such circumstances the propounders case that testator called the witnesses from their houses in Bagbazar and after picking them up in a taxi went to the house of his lawyer Benoy Babu where the Will was written by the Scribe and the same was executed by the testator instead of executing the Will at his house raises suspicions as to the execution of the Will by, the testator. It has been further, submitted in this connection by referring to para 4 of the application for probate that the existence of this suspicious circumstances regarding the execution of the Will by the testator is also confirmed as it has been stated therein, that the testator executed the Will at his residence at 34/35. Kalachand Nandy Lane. The testator died 31/2 months after the execution of the Will. Thus there is intrinsic evidence to show inherent suspicion regarding execution of the Will Mr. Mukherjee next submitted that the propounded stated in his evidence that he first came to know about the Will from his Jvetima Charushila towards the close of 1963 and the probate case was filed in April, 1969. This long delay in filing the case leads to a suspicion as to the execution of the Will by testator, Mr. Mukherjee, therefore submitted that the court below rightly found that the Will in question was manufactured by the propounder
Ashutosh Seal with his men and the same was not executed by the testator as the propounder failed to remove the suspicion by cogent evidence. The appeal should be dismissed.
7. The testator Radhika Prosad Seal was alleged to have executed the Will Ext. 2 on 35-12-1958 in the house of his lawyer Benoy Mukherjee at Dinu Lane Howrah according to the propounder of the Will. It further appears from the depositions of the attesting witnesses that Amarendra Nath Sinha and Bhupendra Nath Shee that the testator came to the houses of these witnesses and another witness Dwarika Nath in Baghbazar in Calcutta and took them in a taxi and went to the house of his lawyer aforementioned where the Will was written from a draft given by the testator. After execution and attestation of the Will, the same was handed over to the lawyer Benoy Babu by the testator with a re-quest not to disclose the Will to anybody before the death of Charusila. It is evident from the Will itself that the testator was suffering terribly from acute piles fistula and whooping cough and he was expecting that he would not survive any longer. So he executed the Will in question making arrangement with regard to all his properties. The testator dies 3 1/2 months after the execution of the Will. The daughter of the testator, the opposite party respondent Umarani Santra also stated in her written statement that the testator was confined to bed for 9 to 10 years before his death and he was senile. During last five years of his life he was not capable of executing the alleged Will. He suffered much from Bhagandar and puss used to come out of it. He could not move much nor could be get down. Of course, the senility of the testator before his death was not proved as Kalipada Marik. O.P.W. 3 stated that the testator died with full consciousness. But the serious illness of the testator from Bhagandar, and also from hiccough was stated by his witness also. The propounder of the Will also stated in his deposition that Radhika suffered from piles for a long time and this developed into fistula 1 or 2 years before his death. The testator also suffered from hiccough. The Will docs not mention where it was executed and the lawyer Benoy Babu did not sign the Will as an attesting witness. In paragraph, 4 of the application for probate it was stated that the Will was executed at 34/35. Kalachand Nandy Lane, which is the house of the testator. An application for amendment was filed on 17-11-74 for deleting the words 'at' and inserting the words 'by Radhika Prosad Seal' in its place while the cross-examination of the propounder was continuing. The Court after hearing the parties directed it to be kept with the record by Order No. 100 dated 12-12-74 but did not allow the application. Considering the state of health of the testator who was suffering from various serious ailments it appears suspicious that the testator would call to the house of the attesting witnesses at various places in Calcutta and after taking them in a taxi would come to the residence of his lawyer Benoy Babu at Shibpur for execution and attestation of the Will instead of executing the Will at his house at 34/35 Kalachand Nandy Lane, particularly when Benoy Babu had nothing to do with the Will as he did not even sign in the Will as an attesting witness. The testator was an old man suffering from piles fistula and hiccough and he could not come down from 1st floor where he staved. It is a suspicious circumstance that such a testator would execute the Will at the house of his lawyer in Shibpur after collecting the witnesses from Bagbazar Calcutta. Moreover the statement in para. 4 of the petition that the Will was executed by the testator at his residence heightens this suspicion regarding the execution of the Will by the testator.
8. In the Will specific provision has been made for the residence of testator's wife Tulsibala as well as for Charushila the elder brother's wife in the house. It has been also provided therein that a monthly allowance of Rs. 30 had to be paid to Tulsibala and another monthly allowance of Rs. 15 to be paid to Charushila till their death. The payment of the monthly allowance to testator's wife by the devisees was made a charge on the property. According to the attesting witnesses the Will after execution and attestation was given to lawyer Benoy Babu by the testator with the instruction net to disclose it till the death of Charushila. This is also a suspicious circumstance inasmuch as if the Will is not disclosed then how the provision for residence and maintenance of Tulsibala and Charushila can be given effect. Moreover it is known to the testator's sons to whom the properties were alleged to have been bequeathed that Charusila the elder brother's wife with whom the testator had some illicit connection was kept in a rented house at Uttarpara to avoid disturbances in the family and she was maintained by the testator. There is no reason for keeping the execution of the Will secret as the properties were divided among the four sons of the testator. Moreover Charushila was brought to the house after the death of testator and the sons of the testator maintained her. So this story of keeping the Will with the lawyer Benoy Babu with instruction not to disclose the same prior to the death of Charushila also gives rise to a suspicious circumstance and this has not been explained nor the suspicion has been removed by the propounder of the Will. Furthermore it is the evidence of the propounder that he first came to know of the will from his Jethima Charushila Debi towards the close of 1963. He further stated that in early part of 1964 he went to the house of Benoy Babu and enquired of him about the Will, but Benoy Babu told him that he could not remember if the Will was with him and he further stated that he would make a search for the Will. Ashutosh Seal also stated that in February, 1964 he approached lawyer Benoy Babu who advised him to file the Probate Case after the criminal case terminated. It is really something strange that if the story that the Will was kept by the testator in the custody of Benoy Babu then how could he not remember that. Moreover the statement that the propounder was advised by Benoy Babu to file the probate case after final disposal of criminal case is not sufficient to explain the unusual delay in instituting the probate case when serious trouble was going on between the propounder and the caveator's sons over the testator's property. So this is also another suspicious circumstance surrounding the execution of the will.
This is also a suspicious circumstance and the propounder failed to remove this suspicion.
9. Another suspicious circumstance is that the testator did not make any provision in the Will for his daughter Umashasi who was allowed to live with her husband and children in has house during the lifetime of the testator. It is not intelligible as to why at last Umashasi be not given anything. It is also relevant to mention in this connection that the propounder Ashutosh, Seal got a deed of gift executed by his other sister Shefelika Patra in respect of her 1/6th share of the paternal property. The respondent Umashasi also stated in her evidence that the propounder asked her to transfer her 1/6th share in their favour on receiving Rs. 5000/-. But she refused to accept the said proposal. The attesting witnesses are also not of the locality but they lived in Bagbazar in Calcutta. Moreover they are interested witnesses. Amarendra Nath Sinah is well acquaint-ed with Bhupendra Nath Shee and he allowed Bhupen's son Jatin to repair watches sitting in his shoo. Bhupendra's son Jatin married the daughter of the eldest son of Radhika Babu the testator. These witnesses though stated about details in the matter of execution of the will strangely did not remember where Benoy Babu lived. All this gives rise to suspicion regarding the execution of the alleged will by the testator. The hand writing expert P. C. Chatterjee has also stated in his report Ext. A that the writer of the signatures in the will is not the writer of the signatures appearing in the admitted documents. This opinion of the expert has been tried to be criticised by referring to his deposition that sometimes the writing changed according to the profession and environment of the writer and that error might occur for want of adequate number of standard signatures. We are unable to accept this submission and we accept the report of the expert that signatures in the will are not of the testator. It is also relevant to note in this connection that all the signatures of the testator appear at the top right hand side of each of the three pages of the will and no signature of the testator appears at the end of the writing of the will.
10. This is also a suspicious circumstance and the propounder failed to remove this suspicion.
11. It has been observed by Gajendragadkar J. in AIR 1959 SC 449 (H. Venkatachala v. B. N. Thimajamma) that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63, Succession Act, as in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. The propounder will have to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. There may however, be cases in which the execution of the will may be surrounded with suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature, the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances etc. In such cases 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.
12. This well settled principles governing the proof of a Will have been followed in the subsequent pronouncements of the Supreme Court in : 3SCR195 and : AIR1964SC529 .
Judged by the above tests we are constrained to hold that the W-11 is not a genuine Will executed by the testator but it is a forged one brought into being by the propounder in league with his own men after the demise of the testator with the object of depriving the caveator from getting her 1/6th share in the property left by her father, the alleged testator. We have already pointed out the suspicious circumstances surrounding the execution of the Will and the propounder failed to remove the suspicions.
13. It is to be remembered that the Will comes out for proof after the death of the testator when the application for probate is filed. So in such cases onus lies heavily on the propounder to prove that the Will is the last will of the testator and the testator duly executed it with full knowledge of the contents of the Will. In the instant case the propounder failed to remove the suspicions as to the execution of the Will. The submission of Mr. Ghose, the learned Advocate for the appellant, that the disposition made in the Will being natural and not improper probate should not have been refused is not tenable. In view of our findings above. The decisions in (1922) -26 Cal WN 113: (AIR 1922 Cal 12) and (1912) ILR 39 Cal 245 do come to the aid of appellant in view of our findings above.
14. For the reason aforesaid this appeal is dismissed with costs. The judgment and decree of the Court below are hereby affirmed.
Samir Kumar Mookerjee, J.
15. I agree.