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Subodh Kumar Banerjee and ors. Vs. Soshi Kumar Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 185 of 1953
Judge
Reported inAIR1958Cal264
ActsEvidence Act, 1872 - Sections 45 and 114; ;Succession Act, 1925 - Section 276
AppellantSubodh Kumar Banerjee and ors.
RespondentSoshi Kumar Banerjee and ors.
Appellant AdvocateH.N. Sanyal, ;Sudhansu Sekhar Mukherjee, ;Rabiranjan Das Gupta and ;Amarendra Kumar Sanyal, Advs.
Respondent AdvocateN.C. Sen Gupta, ;Apurbadhan Mukherjee, ;Sambhunath Banerjee, ;Monmohan Mukherjee and ;Samarendra Nath Banerjee, Advs.
DispositionAppeal allowed
Excerpt:
- .....it should be mentioned that the only expert called in this case was called by the caveators. no expert evidence was given on the side of the propounders. the propounders did not call any expert although they made an application to enable their expert to take photographs of the signatures referred to in the report of mr. chowdhury. this was done after the caveators had the document examined by their expert and his report was filed. that application was granted. but even then the propounders did not call any expert on their side to depose in this case. the propounders only cross-examined the caveators' expert on documents, which they produced for that purpose. in other words, the propounders produced all the documents which they could for the purpose of discrediting the evidence of the.....
Judgment:

S.R. Das Gupta, J.

1. This appeal, arises out of an order made by the learned District Judge of 24 Parganas on 3-6-1953 granting a probate of an alleged Will of late Ramtaran Banerjee. The caveators are the appellants before us. The appellants Nos. 1 and 2 are the sons of the deceased and the appellants Nos. 3 to 8 are his grand-sons.

2. Ramtaran Banerjee, who was during his lifetime a wealthy and influential inhabitant of Calcutta, died on 1-4-1947. He had at the time of his death several sons and grand-sons living. For the purpose of this appeal it would be necessary only to name the four of the said sons, that is to say. Subodh, Sashi, Rajkumar and Sunil and one of the grand-sons, that is. Bijoy. Before his death Ramtaran Banerjee had already made provisions for his children, by executing a number of documents. The scheme of his dispositions was to grant a lease in favour of the children whom he wanted to benefit, and ultimately the reversionary interest which Ramtaran Banerjee had possessed used also to be conveyed. The present will relates to the remainder of the property which Ramtaran Banerjee had at the time when he is said to have executed the said Will. The Will is dated 29-8-1943. It purports to have been witnessed by two persons, namely one Mannathanath Mukherjee and Sambhunath Munshi. I would at this stage refer to some of the characteristics which are to he found in the document which is said to be the last Will of the deceased and is said to have been duly and properly witnessed by the attesting witnesses. The Will is written on ordinary sheets of paper and they contain a number of initials by the deceased. It appears from the said document that when it was originally written by the deceased there were a number of gaps and subsequently those gaps were filled up by the deceased. Some portions of the Will were struck out and some portions re-written. Some of the portions of the Will which were filled up or struck out or re-written were initialed by him but it should be noted that the initials do not appear in all the portions filled up or struck out or re-written. At the bottom of the document there appears a signature of the deceased and under that signature a date is given which is 29-8-1943. It should be mentioned that the deceased at that date was 93 years of age. He died, as I have said on 1-4-1947 at the age of 97 years. With the Will there is a plan attached. The said plan has been referred to in the Will. The plan is of the dwelling house of the deceased and of the adjacent land thereto. In the Will it is mentioned that the deceased wants to partition the said dwelling house in the manner as indicated in the plan. In the plan also, as it is now produced before us, there certain names appear some of which are the names of his sons and one grand-son Bijoy. The Plan is also signed by the deceased and it also bears the same date under it which is appearing in the Will, that is, 29-8-1943. On the plan also there are the signatures of those two very persons who are said to have attested the Will, that is of Manmatha and Sambhu. They appear to have signed the plan as the attesting witnesses thereto. From the intrinsic evidence which is before us it appears that this document must have been written at some time in 1943. It is the common case of both the parties that the writing was completed some time between January and June, 1943. It should be noted that there are draft Wills of the deceased which too are not signed. They also seem to have been written some time in 1943 as it appears from the intrinsic evidence contained therein.

3. It is not disputed before us that the entire Will was in the handwriting of the deceased including the portions which had been filled up. It is also admitted before us by both the parties that the initials are the initials of the deceased and so also the signature appearing at the foot of the Will.

4. One of the main questions in this appeal is whether or not the signature of the deceased on the said Will was put in 1943 as deposed by the attesting witnesses. Incidentally the other question, which arises is whether or not the initials and the filling up of the blank portions were done also in 1943 as deposed by the said witnesses. The caveators' case, amongst others, was that the signature was not put in 1943 but must have been put in some time in 1946 or 1947. It is not disputed before us that if it is held that the signature of the deceased could not have been put in 1943 then the evidence or the attesting witnesses, namely, that they attested the Will on 29-8-1943 and that the signature of the deceased was put in on that date must be false and in that event it must be held that the Will had not been proved.

5. The will can by no means be said to be an unnatural document. Sunil, Rajkumar and Sochi were appointed executors. The Will contains dispositions in favour of his wife Nirod Kali and also in favour of his daughters Rani, Sushila and Nihar. The premises No. 19. Ekbalpur Lane had been devised and bequeathed to his son, Subodh and premises No. 20. Ekbalpore Lane to Rajkumar. Premises No. 76 Hazra Road to Soshi, Premises No. 22. Dwarkanath Road, life interest of which was given to his wife had been bequeathed to his son. Sunil. With regard to the family dwelling house the deceased devised and bequeathed the same to his two sons and grandson Bijoy, as shown in the partition map annexed to the said Will, wherein each allotment is shown in distinguishing colours with the name of the devisee written thereon. It is further written in the Will that the vacant plot of land on the west of the dwelling house the deceased shall partition among the children in such manner as is shown in the annexed map. It is further stated in the said Will that the testator had a mind to carry out and effectuate the partition as stated in his lifetime to avoid any future difficulty or complications and it would be his endeavour to complete all necessary work as mentioned in his lifetime. If the testator was unable to complete the necessary work, as mentioned, in his lifetime, then the rest and residue would go to his living sons except Sukumar. These are the facts which are necessary to be stated for the present.

6. The propounders' case was that this is the genuine Will of the testator duly executed and attested. It was signed and executed on the date it bears, that is 29-8-1943. The propounders' case further is that the body of the Will was written out some time between January and June, 1943. At that time some portions were left blank. On 29-8-1943, that is the day on which the Will was executed, the testator filled up the blanks and made some additions and alterations with his own hand and put his initials by the side of those filled up or added Or altered portions and finally put his signature on the Will at the bottom. The Will, as mentioned, refers to a plan. 'The testator after putting his signature on the Will also signed the plan and also put the names of the persons to whom the allotments shown therein were given. All these were done in the presence of the two attesting witnesses, that is, Manmatha and Sambhu, who thereafter signed both the Will and the plan as attesting witnesses.

7. The caveators' case, on the other hand, was as follows: It is not disputed that the body of the Will was written out in 1943, some time between January and June of that year but their case is that the filling up of the blanks, the additions or the alterations or the initialling, none of these things were done in 1943. The signature of the deceased was not put in in 1943 but it must have been put in either in 1946 or in 1947. These are in short the respective cases of the parties.

8. On behalf of the propounders both the attesting witnesses gave evidence. Manmatha, however, did not give evidence in court but on the ground that he was unwell he gave evidenceon commission. The application for commission was raised by the caveators and the matter came up to this Court and ultimately it was decided by this Court that Manmatha should be examined on commission. The other attesting witness, Sambhu, who gave evidence in this case, was examined before the then District Judge, Mr. P. K. Sarkar. On behalf of the propounders one of the sons, Sashi, gave evidence in this case. There were other witnesses called by the propounders but their evidences are not of importance. In support of their case that the document in question is the last and genuine Will of the testator duly attested by the attesting witnesses the propounders relied on an envelope, which is said to have contained the Will. On the envelope it is written in the handwriting of the deceased 'Soshi preserve this my Will'. The propounders' case, therefore, is that the deceased himself had made an admission by the said writing that this is his Will. I shall have to say a lot about the writings on the envelope hereafter.

9. The most important witness called on the side of the caveators is Mr. S. C. Chowdhury, a hand-writing expert. The case of the caveators rests mainly, if not solely, on his evidence. I shall deal with his evidence more fully presently. All that I need say at this moment is that in the opinion of Mr. Chowdhury the signature at the bottom of the Will shows characteristics which coincide with the signatures of the deceased made in 1946 and 1947. He gave his opinion after examining about 70 signatures and his firm conclusion is that there is no signature in 1943 which bears the characteristics to be found in the signature appearing at the bottom of the Will, that is to say, the characteristics to be found in the signatures of the deceased of 1946 and of 1947.

10. The case was heard and decided by Mr. J. C. Majumdar, the then District Judge, and he by his judgment dated 3-6-1953 held that the document in question was a genuine Will and was duly and properly executed by the deceased. In short, he accepted the case of the propounders and ordered probate to be granted of the said Will. It is against that decision that the present appeal has been preferred to this Court.

11. It is not disputed, as I have already mentioned, that if we come to the conclusion that the signature appearing at the bottom of the document could not have been made in 1943 then the propounders' case must fail and no probate can be granted of the said Will, because. In that case the Will cannot be said to have been proved and the evidence of the attesting witnesses, namely that they attested the signature of the testator in 1943 and that the said signature was also put in in the said year, must be false. The question, therefore, is whether or not the signature appearing at the bottom of the Will was the signature of the deceased put in in 1943 as deposed by the attesting witnesses. For this purpose the evidence of the expert becomes very material. Before I deal with that evidence it would be necessary for me to mention that Mr. J. C. Majumdar, who heard and decided this case, had not had the advantage of seeing any of the witnesses who deposed in this case. As I have mentioned, the evidence of Manmatha was taken on commission and the evidence of the other witnesses was given before the then District Judge. Mr. P. K. Sarkar. None of these witnesses gave evidence before Mr. Majumdar and Mr. Majumdar had to decide the case on the evidence already on the record. In this respect we are in the same position as the learned District Judge. Neither the learned District Judge nor ourselves had the advantage of seeing the witnesses in this case and neither of us is in a position to determine the case on the demeanour of the sold witnesses. With these observations I shall now take up the evidence of the handwriting expert.

12. It should be mentioned that the only expert called in this case was called by the caveators. No expert evidence was given on the side of the propounders. The propounders did not call any expert although they made an application to enable their expert to take photographs of the signatures referred to in the report of Mr. Chowdhury. This was done after the caveators had the document examined by their expert and his report was filed. That application was granted. But even then the propounders did not call any expert on their side to depose in this case. The propounders only cross-examined the caveators' expert on documents, which they produced for that purpose. In other words, the propounders produced all the documents which they could for the purpose of discrediting the evidence of the expert. The handwriting expert, Mr. Chowdhury, gave evidence on several points. In his opinion (1) all the writings on the Will excepting the word 'witness' and the signatures of the witnesses are of one and the same person. The signature of Ramtaran Banerjee at the end of the Will is also the writing of the person who wrote the other signatures. (2) As regards the date 29-8-1943, his opinion, as given in his examination-in-chief, was that it is not the writing of the person who wrote the signature. He, however, stated that he did not get any specimen figures for comparison. In saying that the date 29-8-1943 was not in the handwriting of the person who wrote the signature Ramtaran Banerjee, he relied on the fact that the said date was written in ink and with a pen different from the ink and pen with which the signature of Ramtaran Banerjee was written and that there is scarcely any sign of tremor. From these facts he came to the conclusion that the date was in the handwriting of the person who wrote the signature. (3) His 'considered opinion' is that the filling up of the gaps in the Will was done at a subsequent date. If the main body of the Will had been written in 1943 the additions could not have been made in that year. The added writings and the writings filling up the gaps show characteristics which coincide with the characteristics found in the signatures examined by him of the years 1946 and 1947. (4) The initials on the margin of the Will show characteristics which coincide with the characteristics of the signatures of 1946. (5) So also the final signature on the bottom of the last page of the Will show characteristics which coinside with the characteristics of the signatures of the deceased of 1946 and 1947. Those characteristics, according to the handwriting expert, were that the hand of the writer shook while writing the signatures of 1946 and 1947 and this resulted in deviation in the normal path of the stroke. When there should be a curve the hand shook and the curve was made into an angle. These characteristics are generally known as tremor or cramps. The same characteristics are found in the marginal initials and in the later writings on the Will as also in the final signatures. The expert proceeded to say that his opinion on a comparison of the writing of the different years, was that the full control of the person over writing continued till 1945 and after 1945 that is from 1946 the control failed and persisted till 1947. The expert stated that hedid not find any tremor, cramp or deviation or loss of control in any signature of 1943 examined by him. I should mention that in his cross-examination the expert became more specific and he said that the deterioration began from March, 1946. The signatures of January, 1946 do not disclose any tremor. 'When I say' the expert deposed.

'that the signature deteriorated from March. 1946 I mean that the variations in all the letters of the signature due to tremor were noticed.'

(6) AS regards the writing on the envelope theopinion of the expert was that the word 'Soshi preserve this my' and the signature are in the handwriting of the person who signed the Will and the handwriting is of the year 1946 and 1947. 'The word 'Will', according to him, was written on some other writings which had been erased and in his opinion this word was not written by the person who wrote the other writings on the cover. A faint trace of the letter 'P' is still visible below the word 'Will' and the writing of the word 'Will' is firm and forceful showing no tremor and the shade of the ink is different and rather deeper than the ink of the rest of the writing. (7) As for the writing on the plan the expert said that he did not examine thewriting of the signature on the plan because writings on the plan are likely to be distorted on account of the cloth surface of the plan. But he said, on examination of the dates on the Will and on the plan, that the writing of the names on the body of the plan are writings of a different kind than the signature Ramtaran Banerjee on it. They are writings with failing pen control.

13. These are the points on which the expert gave his opinion in his evidence before the court. Some of these points may be disposed of rather shortly. As for the date appearing at the bottom of the Will, that is, 29-8-1943, the expert did admit in his cross-examination that the said date appears to be suspicious because it does not correspond either with the 1943 writings or with the 1946 writings of Ramtaran Banerjee as it contains tremor in some figures and no tremor in some other figures. But he said that he cannot be positive that it is not in his handwriting as the date were meagre and no definite opinion can be given about writings of figures unless the figures show some abnormality or peculiarity. He had compared the figures mentioned in the Will but he did not find any sign of abnormality or peculiarity recurring in all similar figures.

14. As for the writing on the plan, he, however, did not examine the writing on the same because the writings were on the tracing cloth and writings on a cloth surface look like writings with tremor because of the surface and writings which would not ordinarily disclose any tremor if written on paper might look like writings with tremor on a cloth surface. But the writings of the names on the body of the plan do not show any sign of tremor because of the cloth surface. They are writings with real tremor, for example, he said, in the letter 'B' of the word 'Biman' he found signs of real tremor and so also in the letter 'i' at the bottom. In the letter 'm' he found a real tremor in the third shoulder of the letter. He stated that he did call it a real tremor and not tremor due to cloth surface. All the letters in the word 'Subodh' appearing in the said plan show real tremor and in the word 'Rajkumar' 'k' shows real tremor. This opinion namely that the writings of the names, as mentioned by him, show real tremor was an opinion which he was not pre-pared to revise although cross-examined on some length on this point by the other side. On the other questions, namely that the added writings and the writing filling up the gaps show characteristics which coincide with the characteristics found in the signatures examined by him of the years 1946 and 1947 and that the initials on the margin of the Will and the figures of the signature at the bottom of the last page of the Will show characteristics which coincide with the characteristics of 1946 and 1947, the expert definitely was of the opinion that they were so. The expert had been cross-examined at great length on those points, particularly on the point as to whether or not the final signature on the bottom of the last page of the Will also shows characteristics which coincide with the characteristics of the signatures of 1946 and 1947. There was also much cross-examination on the other points, that is to say as to the added writings and the writings filling up the gaps and the initials. On all these points the expert maintained throughout his opinion as given in his report and as deposed in his examination-in-chief. On the question of the writing on the envelope he also maintained that the word 'Will' was not in the handwriting of the writer who wrote the other words on the envelope. I should have mentioned that according to the opinion of the expert and it is also apparent to the naked eye, there is a space between the word 'this' and 'may' in the writings on the envelope and the expert's opinion is that there is an erasure and he sticks to that opinion. The erasure, however, according to him, may be both fraudulent and genuine. He stated that there is a faint trace of the top of the letter 'p' under the first bar of the letter 'w' and what is visible is a curve and it may be of another letter containing a curve on the top. He, however, said that he cannot give an opinion dogmatically that the word 'Will' is not in the same hand as the other writings thereto.

15. Before proceeding further with the evidence of the expert I should mention that one of the comments made before us by Dr. Sen Gupta, appearing on behalf of the propounders on the evidence of the expert, was that the expert could not maintain his original case on several points as indicated in this judgment. He said that on that ground the opinion of the expert should not be accepted. I really do not find any force in that contention. An expert, if he sticks dogmatically to his opinion, is liable to be disbelieved. An expert is entitled to more credit if, when cogent reasons are put forth before him in his cross-examination, he revises his own opinion. After all an expert has come to give his own opinion & not to state facts. An expert should always be prepared to revise his opinion if he finds any cogent reason suggested to him. Far from accepting the contention of the learned Advocate for the propounders, namely that on this ground the evidence of the expert should be disbelieved, I am of the opinion that the evidence given by the expert was given in a fair and in an impartial manner. In my opinion on this ground the evidence of the expert is not liable to be disbelieved as contended by the learned Advocate for the propounders.

16-19. The main question which arises from the evidence of the expert and on which there has been a large volume of cross-examination, relates to the final signature of the deceased appearing at the bottom of the last page of the Will. Is it a signature which can be said to have been put in in the year 1943 as deposed by the attesting witnesses or is it a signature which shows the characteristics which are found in the signatures of 1946 and 1947 and therefore could not have been Put in the year 1943? The firm opinion of the expert and in my opinion, his evidence has fully established it is that that signature bore the characteristics which are to be found in the signatures of the year 1946 and 1947, that is to say, the said signature shows tremor and/or cramp as is to be found in the signatures of 1946 and 1947. The important part of the expert's evidence relating to this point was where he said that he did not find any tremor, cramp or deviation or loss of control in any signature of 1943 examined by him. It should be noted that the expert received 20 signatures from the caveators of the year 1943 and he took photographs of the same and he based his opinion on those signatures after com-paring the same with other signatures and writings of the testator. It should also be noted that there was an order upon the propounders to produce other signatures of the testator but in spite of that order they did not produce any such signature in court. But what they did was to cross-examine the expert on a number of signatures, which were not produced by them earlier and on which the expert was asked to give his own opinion. Some of such signatures were of 1943 and some of them were of the time when the deceased is said to put his signature on the Will, that is 29-8-1943. Fortunately for us there are ample materials before us on which it is possible to come to a definite conclusion as to whether or not the opinion of the expert on this point should be accepted. It is possible for us on examining these materials to say whether or not the signature appearing at the bottom of the Will was a signature of the year 1943 or corresponds to the signatures of the years 1946 and 1947. Series of cheques containing signatures of the deceased from 1943 or earlier and upto a few days before the death of the testator have been produced before us. We have examined them thoroughly and carefully and we have also scrutinised the evidence of the expert on this point and after careful consideration of all the materials on the record we come to the conclusion that the opinion of the expert on this point should be accepted. As I have said before. In the cross-examination of the expert a number of documents containing the signatures of the deceased were produced before him and he was asked to give his opinion about them. The expert dealt with all those signatures and gave his opinion on them. We have ourselves carefully looked into documents which had been put to the expert and we find no reason to disagree with the view taken by him in respect thereof (After referring to the signatures and the writings on the various documents, His Lordship continues as under:)

20. If then this be my view, namely that the signature at the foot of the Will could not have been put in the year 1943 and the names on the plan also could not have been put at that time, then there is an end of the case of the propounders and the attesting witnesses must also be held to have deposed falsely.

21. Independently, however, of the view expressed by the expert on consideration of the evidence of the attesting witnesses I hold that the attesting witnesses had not deposed truthfully in his case and on their evidence the Will cannot be said to have been proved as having been executed and attested on 29-8-1943. This leads me to the consideration of the evidence of the two attesting witnesses given in this case. Before I deal with the merits of their evidence I should mention certain surrounding circumstances.

22-36. (After considering the evidence of the witnesses and various circumstances of the case the judgment continues as follows:) Taking all the materials into consideration the evidence of these attesting witnesses cannot be believed and the Will cannot be probated on their evidence.

37. In coming to the aforesaid conclusion. I am not unmindful of the doctrine of presumption on which Dr. Sen Gupta relied in his argument. He contended that where as in this case the Will was regular in its form, inasmuch as the testator himself had put in a paragraph with his own hand that he signed the Will in the presence of the witnesses who had seen him to sign the Will and the witnesses signed in the presence of each other, there arises a presumption of regularity and a presumption that the Will was duly executed and attested. I do not dispute that there is such a presumption and Itook that fact into consideration before arriving at my conclusion in this appeal. In ray opinion, the evidence of these attesting witnesses cannot, be relied on for the purpose of holding that the Will was duly executed and attested. It should be noted that such a clause also appears in the previous drafts which were not signed and vacant places of which had not been filled up. (The rest of the Judgment is not material for reporting -- Ed.)

N.K. Sen, J.

38. I agree.


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