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Sm. Chinmoyee Saha Vs. Debendra Lal Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 171 of 1981
Judge
Reported inAIR1985Cal349,89CWN832
ActsSuccession Act, 1925 - Sections 59, 61 and 63; ;Evidence Act, 1872 - Sections 68 and 69; ;Code of Civil Procedure (CPC) , 1908 - Order 16, Rule 10
AppellantSm. Chinmoyee Saha
RespondentDebendra Lal Saha and ors.
Appellant AdvocateDebasis Mitra and ;Arun Kumar Chatterjee, Advs.
Respondent AdvocateSaktinath Mukherjee and ;Tarun Chatterjee, Advs. (for Nos. 2, 3, 4, 6 and 8)
DispositionAppeal allowed
Cases ReferredIndu Bala v. Manindra Chandra
Excerpt:
- sankari prasad das ghosh, j. 1. this appeal is directed against the judgment and decree passed by the learned additional district judge, 9th court, 24 parganas, in o.s. no. 8 of 1979. the propounder, sm. chinmoyee saha, is the appellant.2. one shiblal saha was the owner of premises no. 1, hazra road, calcutta-26 and premises no. 24, basantalal saha road, calcutta-53. there was a rice mill under the name and style of satyanarayan rice mill at 24, basantalal saha road. sundari saha was the wife of shiblal shiblal adopted a son named kishorilal saha, who died on 8-2-1957. kishori had two wives, phulrani and anima. debendra, rajendra, narender and manindra are the sons of kishori by phulrani. jogmaya and mahamaya are their two daughters. shiblal died on 6-1-1964. sundari died on 13-4-1970......
Judgment:

Sankari Prasad Das Ghosh, J.

1. This appeal is directed against the judgment and decree passed by the learned Additional District Judge, 9th Court, 24 Parganas, in O.S. No. 8 of 1979. The propounder, Sm. Chinmoyee Saha, is the appellant.

2. One Shiblal Saha was the owner of premises No. 1, Hazra Road, Calcutta-26 and premises No. 24, Basantalal Saha Road, Calcutta-53. There was a rice mill under the name and style of Satyanarayan Rice Mill at 24, Basantalal Saha Road. Sundari Saha was the wife of Shiblal Shiblal adopted a son named Kishorilal Saha, who died on 8-2-1957. Kishori had two wives, Phulrani and Anima. Debendra, Rajendra, Narender and Manindra are the sons of Kishori by Phulrani. Jogmaya and Mahamaya are their two daughters. Shiblal died on 6-1-1964. Sundari died on 13-4-1970. Prior to her death, Sundari executed a Will dated 10-2-1970 under which Netai and Gour, the sons of Debendra, were made the legatees and Chinmoyee Saha, the wife of Debendra, was appointed as executrix. This Will was not registered. After the death of Sundari, Chinmoyee applied in the court of the District Delegate, Alipore on 5-4-1978 for obtaining probate of the Will. This application for grant of probate was refiled in the court of the District Judge, 24 Parganas, at Alipore on 1-9-1978, as the matter became contentious. The application for grant of probate was registered as O. S. No. 72 of 1978. At the trial five witnesses were examined for the proper (sic).They were Khagendra Nath Bera (P.W.1), Bimal Ghosh (P.W.2), Chinmoyee Saha, the propounder and the appellant (P.W.3), Dilip Kumar Guha alias Chanchal of 21, Priyanath Mallick Road, Calcutta-26 (P.W.4) and Nagendra Kumar Roy (P.W.5). For the contesting defendants, being defendants Nos. 2 to 4, 6 and 8 (Rajendra, Narendra, Manindra, Phulrani and Jogmaya), four witnesses were examined, including Rajendra (D.W.2) and Manindra (D.W.3), the two sons of Kishori. The other two witnesses were Rabindra Nath Das (D.W.1) and Gopal Chandra Konar (D.W.4). On a consideration of the evidences of these witnesses and the documentary evidence the learned Additional District Judge was of the opinion that the plaintiff-propounder had not been able to remove the suspicion surrounding the execution and attestation of the will from the mind of the Court. As such, the suit, which was subsequently numbered as O.S. No. 8 of 1979, was dismissed on contest with cost. It is against this order of dismissal of thesuit that the present appeal has been filed.

3. The case of the propounder-appellant is that Sundari had great attachment for her great-grand sons, Netai and Gour. She executed a Will after making it known that she would make over her assets to Gour and Netai. By the Will, the executrix, Chinmoyee, was directed to make over the assets of Sundari on the attainment of majority by Gour and Netai. Debendra alias Nataraj extended the properties and business. He was made invalid by taking excessive wine. Rajendra took advantage of this illness of Debendra and intended to grab the whole property. He had a mind of snatching away the Will, On 13-10-1970, some arrangements were made temporarily over the assets covered by the Will The executrix was under constant threat from Rajendra who put pressure on her to hand over the Will and leased her through other female-folk, including her both mother-in-laws. Ultimately, the executrix had succeeded in applying for probate of the Will. It was alleged that the testatrix had 8 annas share and the heirs of Kishori had 8 annas share in the property left by Shiblal.

4. The defence was that Shiblal and his elder brother, Basanta Lal, since deceased, constituted a Hindu joint family. Basanta Lal died as a childless widower. Shiblal became the owner of the property after the death ofBasanta Lal. By an agreement of partition dated 22-5-1967, the deceased, Sundari, each of the four sons of Kishori and the two daughters of Kishori had l/8th share and the residue 1/8th share belonged to the two wives of Kishori. Subsequently, this unregistered agreement for partition was replaced by a registered agreement on 27-2-1970. Sundari died intestate being possessed of 1/8th share in the immovable property. After the death of Sundari, Debendra, (defendant No. 1) gave out that Sundari had bequeathed her ornaments to him under a purported Will dated 10-2-1970. For purchasing peace for the time being, a tentative arrangement for the safety and protection of the ornaments left by Sundari was made and the ornaments were ultimately deposited in the joint names of Debendra and Rajendra (defendants Nos. 1 and 2 in the suit) in a locker at the Bank of India, Bhowanipore Branch. It was alleged that the alleged Will had been created by the defendant No. 1 by utilising one blank sheet containing the signature of Sundari, which the defendant No. 1 had procured while acting as the constituted attorney of Sundari.

5. The learned Additional District Judge dismissed the suit on the ground that the suspicions surrounding the Will had not been removed by the propounder. These suspicions, according to him, were discriminatory disposition of property by Sundari in favour of only Gour and Netai without any justification, absence of registration of the Will, non-examination of Lakshmi Narayan Mukherjee, one of the attesting witnesses of the Will, failure of Chinmoyee to take any part in the agreement dated 13-10-1970 in respect of the ornaments as well as failure of Chinmoyee to join in the reference made to Santosh Kumar Dutta (Advocate, since deceased), Lakshmi Narayan Mukherjee (Advocate) and one of the attesting witnesses to the Will, Dilip Kumar Guha alias Chanchal (P.W. 4), one of the attesting witnesses of the Will and two others, appointing them as arbitrators in respect of debuttar properties, denial of existence of any Will by Debendra in some answers sent by him regarding some questionnaire regarding assessment of estate duty and probability of existence of signed blank paper, some other facts, such as, absence of signature of Sundari on the right hand top portion of the Will, execution of the Will ononly one piece of paper, the economy of space made in the Will by allowing the last signature of the attesting witness to graze upon the bottom portion of the Will, absence of any endorsement in the Will that the Will was read over to the executant as well as the fact that Bimal (P. W. 2) and Chanchal (P.W. 4) shared only the pleasures of the Saha family and were biased, were also adverted to by the learned Judge in his judgment. At the time of making his submissions, Mr. Mukherjee, appearing for the contesting respondents, has made some other submissions for the purpose of showing that there were also other surrounding circumstances, throwing suspicion about the execution of the Will. These circumstances, according to Mr. Mukherjee, were non-production of the draft Will, distribution of profits of the estate left by Shiblal amongst these sons, daughters and wives of Kishori to the exclusion of Chinmoyee, absence of any explanation for exclusion of other persons from being mentioned as legatees under the Will and delay in making the application for grant of probate of the Will. Mr. Mukherjee has also referred to someother ancillary facts, which will be discussed at the proper places.

6. Before entering into the merits of the respective cases, it is necessary to state that the law is now wellsettled as regards the grant of probate to a propounder. It has been held by the Supreme Court in a number of cases that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will under Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances, surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, ' the disposition made in the Will beingunnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case, 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. If the propounder himself takes a prominent part in the execution of the Will, which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence Indu Bala v. Manindra, : [1982]1SCR1188 . But once the propounder proves that the Will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions and put his signature out of his own free will, and that he signed it in presence of the witnesses who attested it in his presence and in presence of each other, the onus, which rests on the propounder, is discharged and when allegation of undue influence or fraud or coercion is made by the caveator, the onus is on the caveator to prove the same, Surendra Pal v. Saraswati : [1975]1SCR687 . As regards the burden of proof in a probate case, it is also to be stated that the onus of the propounder is not higher than in any other civil suit, as alleged by Mr. Mukherjee. It has been held by this Court in the case of Gopessur v. Bissessur (1912) 16 Cal WN 265 that a probate case is not singular as regards the application of the general principles of proof as contained in Sections 3 and 101 of the Evidence Act.

7. Let us now discuss the evidences on keeping the aforesaid principles in mind. P.W. 4, Dilip Kumar Guha alias Chanchal is the scribe as well as the witness to the Will dated 10-2-1970, Ext. 4. Bimal Ghosh (P.W. 2) and Lakshmi Narayan Mukherjee (Advocate) are the other two attesting witnesses to the Will. P.Ws. 2 and 3 have adduced satisfactory evidence to show that the Will was signed by Sundari, that she was at the relevant time in a sound disposing mind, that she put her signature in the Will out of her own free will and that she had signed it in the presence of the witnesses, who attested it in her presence and in presence of each other. There is no evidence or even suggestion by the defence that at the time of making the disposition,Sundari was not in a sound disposing state of mind. The signature of Sundari in the Will has not also been denied by any D. W. Rajendra (D. W. 2) has stated that the purported signature of his thakuma in the Will appears to be hers, though he was not sure if it was a genuine one. Apart from this evidence of D. W. 2, there is no other evidence by any D. W. or even any defence suggestion that the signature of Sundari in the Will is not actually the signature of Sundari. The onus probandi has, thus, been discharged by the propounder. As regards the alleged suspicious circumstances, the onus is also on the propounder to explain the same to the satisfaction of the Court.

8. The first circumstance on which both the learned Judges and Mr. Mukherjee have strongly relied on is the exclusion of any other person, such as, the sons or the daughters of Kishori or the son of Rajendra named Jagai from the Will. Much argument has been advanced by Mr. Mukherjee for the purpose of showing that the parties are governed by the Mitakshara School of Hindu Law and as such, Sundari would be entitled to 1/8th share in the properties of Shiblal. The argument is that Sundari could not dispose of more than 1/8th share in the properties of Shiblal. A probate Court is not, however, to enter into the question of title for deciding the extent of share of each of the parties in the properties left by Shiblal. It has been held even by this Court in the case of Ajit Chandra v. Akhil Chandra : AIR1960Cal551 that the testator, who has full testamentary powers and a disposing mind, ca'nnot be dictated by the Court as to what is a fair and an urgent disposition. The Will is the Will of the testator and he has, under the law, the freedom to give his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once it is established that the testator was free and had a sound disposing mind, it is no longer the duty of the Court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to the Court's own standard. As already stated, it has been established by the propounder that the testator was free and had a sound disposing mind.There is not even a defence suggestion anywhere throughout the entire gamut of the voluminous evidences on record that the testatrix had no sound disposing mind. In these circumstances, the alleged unnaturalness of the Will is no consideration for refusing grant of probate. As it has been held in the case of Indu Bala v. Manindra : [1982]1SCR1188 , the Court is to grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. This is also the view taken by this Court in the case of Aloke Kumar Aich v. Ashok Kumar Aich : AIR1982Cal599 . The Court is not justified to consider the terms of the Will for deciding whether the testatrix was justified in excluding her sons or daughters or the wives of Kishori or the son of Rajendra, when the propounder has been able to prove due execution and attestation of the Will as well as the sound disposing mind of the testatrix.

9. Though it is not necessary, in the aforesaid circumstances, to discuss thoroughly the evidence regarding the shares of the parties in the estate of Shiblal, one cannot refrain from discussing, in short, the upshot of the oral and documentary evidences in the matter, when much argument has been advanced by Mr. Mukherjee regarding the share of Sundari in a Mitakshara family. We, however, want to make it clear that these observations by us regarding the shares of the parties will not be binding on the parties in any other suit. It is to be stated in this connection that prior to the filing of the application for probate, Rajendra (D. W. 2) had filed on 7-3-1978 a partition suit, being Partition Suit No. 19 of 1978 in the Court of the Subordinate Judge, 9th Court, Alipore, and had been appointed as a Receiver in respect of the debuttar properties of Shiblal in Title Suit No. 54 of 1977 at Alipore. These observations by us will not be binding on any of the parties in the Partition Suit or in the Title Suit. It is not necessary for us so decide whether the parties are governed by the Mitakshara School of Hindu Law or not. Suffice it to say that after the death of Sundari on 13-4-1970, there was an affidavit on 4-5-1964, Ext. 10, signed by Debendra, Rajendra, Anima and Phulrani to the effect that Sundari had 8 annas share in the estate of Shiblal. It is in evidence that after the death of Shiblal, Sundari had first appointed Debendra as her constituted Attorney and that for non-furnishing of accounts by Debendra, Sundari appointed Debendra (the husband of thepropounder) and Rajendra (D. W. 2) as her constituted attorneys in respect of their debuttar properties as well as the premises No. 24, Basanta Lal Saha Road by two powers of attorneys, Exts. 12 and 23, pursuant to an affidavit dated 12-7-1967, Ext. 10(a), by eight co-sharers to the effect that Sundari as the seniormost member was to manage the estate. As proprietress of Satyanarayan Rice Mill, there was a promissory note to Sundari on 26-2-1966 Ext. 27(e). Prior to the execution of the powers of attorney, we come across letters on 23-5-1966. Ext. 5(b), and 19-5-1966, Ext. 5(c) from Sundari to Debendra alias Nataraj at Darjeeling, showing the love and affection of Sundari for Netai and Gour. Prior to the execution of these two powers of attorney, Exts. 12 and 23, we also come across a letter from Sundari, presumably addressed to her husband, Ext. 5(a), bearing no date, to the effect that though she was bed-ridden for 5/7 days, nobody enquired even once about her. Though after the death of Kishori, the parties affirmed that Sundari had 8 annas share, Sundari even during the lifetime of her husband felt that nobody cared for her. At first she appointed her son, Debendra, as her constituted attorney. For non-furnishing of accounts by Debendra, she appointed both Debendra and Rajendra as her constituted attorneys, keeping intact her love and affection for only Gour and Netai. !n these circumstances, unless the affidavit, Ext. 10, is properly explained, it cannot be stated that subsequently the parties reconciled to the position that Sundari had only 1/8th share and not 8 annas share in the estate of Shiblal, as evidenced by the registered deed of agreement dated 27-2-1970, Ext. B, in which there is reference to a previous partition on 22nd Magh, 1967, the date being mentioned in the written statement as 22nd May, 1967. It appears that after the death of Sundari, Rajendra and Debendra used to look after the estate of Shiblal. The evidences of D. Ws. 2 and 3 are that the income from the estate of Shiblal, after defraying the expenses, used to be divided amongst the co-sharers in equal shares Debendra taking a bit more, Some documents, Exts. 11, 11(b) and 11(a), have also been produced for the purpose of showing as to how Debendra and Rajendra used to deal with the estate of Shiblal. By the agreement for lease dated 13-8-1970, Ext. 11. a portion of premises No. 24, B. L. Saha Road (Basanta Lal Saha Road) was leased out to Messrs Khaitan Fans and Appliances PrivateLimited. A portion of 24, B. L. Saha Road was leased out on 28-1-1972 again to Messrs Khaitan Fans and Appliances Private Limited. both Debendra and Rajendra are signatories on behalf of Messrs Satyanarayan Rice Mill in these two agreements for lease, Exts. 11 and 11(a). Similarly by one memorandum of tenancy dated 29-1-1971, Ext. 11(b), one flat at MA, S. P. Mukherjee Road, Calcutta, was leased out to one Durga Charan Kundu. Debendra and Rajendra are also signatories in this memorandum of tenancy. These documents cannot prove that Sundari had only 1/8th share in the estate of Shiblal unless the affidavit dated 4-5-1964, Ext. 10, is explained. It is the case of the propounder that various deeds had to be executed for the purpose of income-tax. Whatever be the truth or otherwise of this allegation, the fact remains that unless the affidavit dated 4-5-1964, Ext. 10, is properly explained, we are unable to hold that the Will, Ext. 4, is not a genuine deed as Sundari had only 1/8th share in the estate of Shiblal. As already stated, once the sound disposing mind of the testatrix has been proved to the hilt by the propounder, it is not for the Probate Court to enter into the terms of the will and to strike down the will as unnatural.

10. Absence of registration is not a suspicious circumstance. Instances are not rare where even in spite of registration of a will, probate of the will has been refused. There is nothing also in law which requires registration of the will.

11. The non-examination of Lakshmi Narayan Mukherjee does not lead to any adverse inference against the case of the propounder. Lakshmi Narayan Mukherjee is an Advocate, who looked after the Income-tax affairs of the estate of Kishorilal. It appears that after the death of Sundari on 13-4-1970, Rajendra cancelled the power of attorney granted to him by Sundari on 24-3-1970, Ext. 6 and sent a copy of the letter of cancellation of Ammoktarnama in respect of the debottur estate to Debendra, Santosh and Lakshmi Narayan. The case of propounder is that the copy of this letter of cancellation, Ext. 6 was sent by Rajendra to Lakshmi Narayan to show dissatisfaction regarding the part played by Lakshmi Narayan in the matter of making of the will by Sundari. Whatever be the truth or otherwise of this case of the propounder, the fact remains that the objection sent byRajendra, Narendra, Manindra, Phulrani and Jogmaya for not granting Estate Duty Clearance certificate to Chinmoyee, Ext. 'L', was drafted by Lakshmi Narayan Mukherjee. This is the evidence of D. W, 2. This objection dated 23-12-1978 was filed after the return was submitted by Chinmoyee on 5-8-78, Ext. 'K' in respect of the estate of Chinmoyee. It is in evidence that some of the parties had also appointed Lakshmi Narayan Mukherjee as one of their arbitrators, vide Ext. 13. It is in the evidence of P.W.3 that she summoned Lakshmi Narayan as a witness through court and had also requested him over the phone to come to court. Lakshmi Narayan did not come to court on being so asked for and requested by Chinmoyee. The learned Judge has observed that Lakshmi Narayan deliberately avoided the dock probably to maintain an equal distance from both the parties as the lawyer of the estate. Be that as it may, we cannot accept the contention of Mr. Mukherjee that as Lakshmi Narayan was one of the attesting witnesses of the will, the propounder ought to have gone to the extent of resorting to the provisions of O. 16, R. 10 of the Civil P.C. for procuring the attendance of Lakshmi Narayan in Court. It has been held by this court in the case of Gurudas Chatterjee v. Bijoy Banerjee, (1970) 74 Cal WN 1041, that it cannot be considered that the non-examination of all the attesting witnesses not intentionally kept out by the propounder is destroying the case of the propounder of the will There is another aspect of the matter. This is not a case where all the attesting witnesses of the will are dead or cannot be found. If Lakshmi Narayan would have been the sole surviving attesting witness of the will, the question of issue of process against Lakshmi Narayan under O. 16, R. 10 of the Civil P.C. would have arisen, if the will was sought to have been proved by resorting to the provisions of Section 69 of the Evidence Act. This is not, however, a case where the will is being proved on the basis of the provisions of Section 69 of the Evidence Act. This is a case where Section 68 of the Evidence Act applies. The propounder has examined two attesting witnesses of the will. As such, the non-examination of Lakshmi Narayan leads to no adverse inference against the propounder. It is better to dispose of, in this connection, the argument relating to the non-production of the draft of the will stated to be prepared by Lakshmi Narayan Mukherjee. It is in evidence that after the willwas written by P. W. 4 on the basis of a draft brought by Lakshmi Narayan, the draft was kept in the custody of Laksmi Narayan. Even then, as it has been observed by the Supreme Court in the case of Indu Bala v. Manindra Chandra reported in : [1982]1SCR1188 , there is no evidence that there was an invariable practice of Lakshmi Narayan to preserve the draft of the will. Moreover, the original will being produced by the executrix, the non-production of the draft loses its importance and it does not cause any suspicion about the genuineness of the will. (1970) 74 Cal WN 1041.

12. Chinmoyee (P. W. 3) has explained herabsence in the agreement relating to ornamentsmade on 13-10-1970, Exts. 1/2 and 2. It is inthe evidence of P. W. 3 that her signature wasnot taken in the agreement as Santosh Babudid not insist on it. P.W. 3 has further statedthat Santosh Babu had assured her that thesigned list of jewelleries amounted to aconfirmation of the will. As regards the joiningof Chinmoyee in the letter of reference madeto the arbitrators, Ext. 13, on 24-4-1973, it is tobe stated that it is in the evidence of DilipKumar Guha, one of the Arbitrators (P.W. 4)that at the arbitration proceeding, Chinmoyeementioned the will and that they did notentertain it as it was an amicable proceedingregarding management. The arbitrationproceeding was for management of the estateof Shiblal. As already stated, even after thedeath of Sundari, Rajendra and Debendraused to manage the estate of Shiblal. Themanagement of the estate of Shiblal was notwithout any trouble as it appears that after thedeath of Sundari, Gopal Chandra (D.W.4)sent a letter on 3-2-71, Ext. 27A, to Debendraalleging that Rajendra had taken away fromalmirah the Rent Bill book, the Rent receivingkhata and stamp. It is in the evidence of D.W.2that he was an accused in a dacoity case andwas subsequently discharged due to the effortsby Debendra This Gopal (D.W.4) made onedisclosure on 9-12-71, Ext. 27B, that if he wasmurdered, Rajendra alias Prithiraj would beresponsible for it. Though the agreement forlease of portions of 24, B. L. Saha Road,Exts. 11 and 11(a) and the memorandum oftenancy dated 29-1-71, Ext. 11(b) were signedby both Debendra and Rajendra, Gopal(D.W.4) wrote a letter on 2-6-73. Ext. 27D, toDebendra that Rajendra had not signed thebill book of the debottar estate. In this state of affairs, it was not unnatural for the parties to appoint arbitrators by the letter of reference dated 24-4-73 (Ext. 13). As that arbitration related to management of the estate, the nonjoinder of Chinmoyee in the letter of reference leads to no adverse inference against the case of the propounder.

13. As regards denial of any will by Debendra, in answer to some questionnaire form signed by Debendra as an accountable person (vide item No. 6 of para 6 in Ext. 'D') it is to be stated that the propounded case is that it was due to the efforts of Rajendra that Debendra took to heavy drinking. The fact that Debendra was addicted to drinking is not denied in the evidence of Rajendra (D.W.2). The evidence of D.W.2 is that Debendra picked up drinking habit very early in his life and started excessive drinking after the death of Sundari. It is in the evidence of D.W.2 that Debendra got Cirrhosis of liver in 1976, was admitted in Calcutta Hospital, was subsequently admitted in Ramkrishna Mission Hospital in Dec. 1978 and had again to be admitted in hospital on 10-2-79. It is not improbable that due to influence of liquor, Debendra answered the questionnaire, probably in the month of June, 1972. (as it transpires on a perusal of the orders dated 3-6-72 and 14-6-72 passed in the order sheet of the estate duty assessment case, (Ext. F). Even assuming for the sake of argument that Debendra was in sound health and was fully conscious at the time of answering the questionnaire (Ext. D) in the month of June, 1972, and asserting that Sundari had left no will, one fails to understand why Debendra would then be stating before Rajendra (D.W.2) and Manindra (D.W.3) that Sundari had left a will in his favour or would be claiming the ornaments of Sundari after the death of Sundari. The denial of making of any will by Sundari either in favour of Debendra or in favour of Gour or Netai be the answer to the questionnaire, Ext. 'D' has little importance in this case, when the onus of proving the due execution and attestation of the will and the existence of sound disposing mind of Sundari has been satisfactorily discharged by the propounder.

14. We are unable to accept the observation of the learned Judge that the possibility of existence of a signed blank paper cannot be ruled out. There can be no necessity for Debendra to have the signature of Sundarion a blank demi paper when there was a power of attorney in his favour before the cancellation of the power of attorney by Sundari for non-submission of. accounts by Debendra and before appointment of both Debendra and Rajendra as constituted attorneys by the two power of attorneys (Exts. 12 and 23). It will not be out of place to mention here the discrepancy in defence suggestions regarding the will. At one time it was suggested to P. W.3 that after the partition suit was denied by P.W.3 (sic). It was also suggested to P.W.3 that in course of a quarrel arising out of the attempt of Debendra to grab the jewelleries of Sundari, Debendra first gave out that there was a will in her favour (meaning will in favour of Chinmoyee) dated 10-2-70. It cannot thus be at all stated on the face of this suggestion to P.W.3, which was denied by P.W.3, that there was no will on 13-10-70. The alleged manufacture of the will with the help of a signed demi paper after the filing of the suit for partition by Rajendra has thus no legs to stand upon. It is in the evidence of Rajendra that the Ka schedule of the ornaments in the agreement dated 13-10-70, Exts. 1/2 and 2, was covered by the will. The evidence is that in the agreement, part of the jewelleries found in the almirah, being items 1 to 4 covered by the will, were described in schedule ka and other jewelleries were described in schedule kha. If that be the fact, the will cannot be manufactured later on, after the agreement in respect of the jewelleries on 13-10-70. Curiously enough, there is no mention of these jewelleries in the plaint of the partition suit No. 19 of 1978. This is in the evidence of D.W.2. It is in the evidence of P. W. 1 that he saw a photostat copy of the will. This photostat copy also discredits the alleged manufacture of a will subsequent to the agreement relating to the jewellery on 13-10-70.

15. In the case of Sabitri v. F. A. Savi (19 Cal WN 1297) : (AIR 1916 Cal 630(2)) it has been stated that ordinarily the signature of the executant appears at the top right hand corner in accordance with the practice obtaining in India and that the English system of execution of a document at the foot does not usually obtain amongst Indians. On the basis of this observation in the case of Sabitri v. F. A. Savi, 19 Cal WN 1297 : (AIR 1916 Cal 630(2)) the will cannot be regarded as not genuine, when nothing is there in Section 63 of the Succession Act to show that the signature ofthe testator is to appear at the right hand corner of the will. As it has been observed by Jenkins, C. J. in the case of Gopessur v. Bissessur (1912) 16 Cal WN 265, 'it must not be forgotten that the law is laid down for us in clear and imperative terms by Acts of the Indian Legislature, and it is by the provisions of those Acts that we must be guided'. The fact that the will is written only in one piece of paper is not at all a suspicious circumstance. The absence of endorsement that the will was read over to the executant is not a suspicious circumstance when it is stated in the will that at the instance of Sundari, Dilip (P.W.4) wrote the will and that after reading and knowing all the contents of the will, Sundari put her signature in the will at premises No. 1, Hazra Road. The evidences of P.Ws. 2 and 3 also show that the will was read by Sundari and was read out to Sundari by Chanchal, P.W. 4 The observations of the learned Judge that Bimal and Chanchal shared only the pleasures of the Saha Family and were biased are not proper. As it has been observed by the Supreme Court in the case of Indu Bala v. Manindra Chandra : [1982]1SCR1188 , nobody would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose. The learned Judge himself observed that the plaintiffs version, regarding the relationship of the Saha family with Bimal (P.W.2) and Dilip (P.W.4) is nearer truth and they were rather on intimate friendly relationship with the Saha family. It was not only not unnatural but also probable that Bimal and Chanchal would be the attesting witnesses to the Will.

16. As regards the contentions of Mr. Mukherjee, we have already dealt with non-production of draft Will kept with Lakshmi Narayan. The distribution of profits up to May, 1977 amongst the heirs of Kishori on the death of Sundari leads to no adverse inference regarding the genuineness of the Will. As already stated, the Court is not to consider the terms of the Will, only in favour of Gour and Netai, when proper execution and attestation and sound disposing mind of Sundari have been proved. Comments have been made by Mr. Mukherjee about the absence of enquiry by Chanchal as to why the Will was being made only in favour of Gour and Netai, though Bimal (P.W.2) made an enquiry in the matterfrom Sundari and got no reply, as per evidence of P.W.2. This comment cannot be accepted. It is in the evidence of P.W.4 that about 5 to 6 months prior to the execution of the Will Sundari disclosed to Mm twice that she was going to execute a Will and that Sundari repeated it even 15/20 days before the actual execution. As such, absence of any enquiry by Chanchal on Feb. 10, 1970 leads to no adverse inference against the propounder.

17. Mr. Mukherjee commented upon the alleged improbability of referring by Santosh to Lakshmi Narayan for drafting of the Will, as transpiring from the evidence of Chanchal (P.W.4). This is, however, not unnatural. It appears that on 26-9-67 Santosh Kumar Dutta wrote to Nataraj alias Debendra (vide Ext. 5) for enhancing his fee to Rs. 200/- per month from Rs. 75/- per month. As Santosh was one of the retained Advocates for the estate of Shiblal and as it is not known whether his fee was enhanced after 26-9-67, referring by Santosh to Lakshmi Narayan for drafting of the Will leads to no adverse inference.

18. The delay in making the application for Will has also been explained by Chinmoyee by alleging coercion, intimidation and dragging of Debendra and making him intoxicated with excessive liquor by her husband's brothers. P.W.3 has stated that her debars (husband's brother) threatened her with physical violence if she dared go outside her house. She has stated at one place that her debar Bablu (D.W.3) even filthily abused her and assaulted her on three or four occasions. It is in the evidence of P.W.3 that she, on going to thana, found that Rajendra was already present there and thought it not profitable to lodge any diary as the people of the thana appeared to be the friends of Rajendra. In short, the evidence of P.W.3 is that her delay in coming to court for probate was due to the fact that her husband's brothers tried to prevent her from taking any step in the matter. On a scrutiny of the evidence on record, we find nothing to disbelieve this evidence of P.W.3 regarding the delay in applying for probate. The fact that after the filing of the suit for partition by Rajendra on 7-3-78, the application for probate was made on 5-4-78 leads to no adverse inference. It is in evidence of D.W.2 that there was no mention of the Will or of the ornaments left by Sundari in the plaint of the partition suit. Previous to the filing of the partition suit, there was another suit, beingTitle Suit No. 54 of 1977, in which Rajendra was appointed as Receiver in respect of the debuttar estate. Being helpless, Chinmoyee (P.W.3) had no other alternative than to apply for probate on 5-4-78, when the existence of any Will, be it in favour of Debendra or infavour of Gour and Netai, was not mentioned in the plaint of the partition suit.

19. In short, after a careful scrutiny of theoral and documentary evidences on record,we have no hesitation to say that the Will wasproperly executed and attested and thatSundari was in sound disposing mind at thetime of executing the Will. We are also of theopinion that the alleged suspiciouscircumstances, stated to be surrounding theWill, have been thoroughly explained by thepropounder. We are, accordingly, of theopinion that probate of the Will is to be grantedon furnishing of estate duty clearancecertificate by the propounder.

20. The appeal is, accordingly, allowed on contest with costs against the contestingrespondents and without contest and withoutcost against the rest. The judgment and decreepassed by the learned Additional District Judge,9th Court, Alipore, in O.S. Suit No. 8 of 1979 are set aside.

21. Let probate of the Will executed by Sundari Saha on Feb. 10, 1970 be granted to the propounder-appellant on furnishing of estate duty clearance certificate by her in the Court of the learned Additional District Judge, 9th Court, Alipore.

G.N. Ray, J.

22. I agree.


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