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Earnest Bento Souza Vs. John Francis Souza and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 129 of 1956
Judge
Reported inAIR1958Cal440
ActsEvidence Act, 1872 - Sections 101 to 104 and 123; ;Succession Act, 1925 - Sections 59 and 63
AppellantEarnest Bento Souza
RespondentJohn Francis Souza and ors.
Appellant AdvocateLala Hemanta Kumar and ;Sudhir Kumar Dutta, Advs.
Respondent AdvocateCharu Chandra Ganguli, ;Gouri Mitter, ;Chittatosh Mookerjee, Advs. (for Nos. 2 and 3) and ;Kalipada Roy, Adv. (for No. 2)
DispositionAppeal allowed
Cases ReferredHarwood v. Baker
Excerpt:
- .....namely, mascareunas proved that at the time of registration of the will the testatrix was of sound mind. the sub-registrar also proved that in answer to his questions the testatrix said that she had signed the will and she knew about its contents. in our opinion, all this evidence shows beyond the pale of any doubt or controversy that the testatrix had a sound disposing mind at the date of the will, and the finding of the trial court tothe contrary is wrong.16. we now pass on to the third point raised in this appeal, namely, whether the will was brought into existence as a result of collusion and undue influence. the court below held that three persons colluded with one another in bringing the will into existence, and they were kshitish bhusan sarkar, ernest bento souza, and.....
Judgment:

Renupada Mukherjee, J.

1. The appellant of this appeal is the propounder of the last will and testament said to have been executed by a Goanese Indian Christian woman who instead of being described by her long name may simply, be described as Mrs. D'Souza. She was the widow of one Cactano Paul Souza and was domiciled at Asansol where she had been living since 1906 and where she died on the 2nd March, 1953. The will in question bears the date of 8th March, 1952, and it was registered at the subregistry office at Asansol on the llth December 1952. The testatrix left two sons, John Francies Souza and the propounder Earnest Bento Souza, and she also left two daughters, Mrs. Mary Angelica Goves and Mrs. Rosamunda D'Silva. The two daughters and the elder son John Francies Souza filed objections to the application for probate of the will, their contention being that the will was not genuine and it was not legally executed and attested and that the testatrix had no sound disposing mind at the date of the will, having been subject to various physical and mental infirmities. It was further contended that the disputed will was secured by the propounder from the testatrix in collusion with pleader Kshitish Bhusan Sarkar and J. Rule Femandez who were attesting witnesses to the will taking advantage of her loss of intellect and power of discrimination and without lett-ing her know the contents of the will.

2. Upon these objections the following issues were raised in the Court below:

'1. Is the alleged will legally executed and attested?

'2. Did the testatrix understand the contents of the will and was she of sound disposing mind?

'3. Is the will an expression of the desire of the testatrix or was it brought into existence as a result of collusion or undue influence'?

3. The propounder adduced evidence in support of his case that the testatrix executed the will with full knowledge of its contents and while in possession of full testamentary powers-and the will was attested according to law. The objectors adduced counter evidence in support of their contentions already mentioned. Upon a consideration of the evidence and the circumstances of the case the Court below held, in. the first place, that the will was antedated and was not attested according to law; secondly, the Court below held that the testatrix did not understand the contents of the will and had no sound disposing mind at the date of the will, and lastly, the Court below held that the will was brought into existence as a result of collusion and undue influence. In view of these findings the Court below refused to grant probate and so the propounder has preferred this appeal. The correctness of all these three findings has been challenged in this appeal on behalf of the appellant, and we shall presently consider whether there is any substance in this challenge.

4. First of all, we take up the question ot execution and attestation of the will. This document was marked exhibit 1 in the Trial Court. It consists of three typed sheets of demi or cartridge paper each p3ge purportin; to bear the signature of the testatrix. Another such signature also appears towards the bottom-of the last page. The signatures are mere scribblings. There is, however, evidence to show that the testatrix did not know much of English and. she was a fairly old woman being nearly 70 years of age. The ostensible date of execution, of the will is 8th March, 1952, End the date ot registration is 11-12-1952, The properties bequeathed by the will consist of a residential house at Asansol, described in schedule A of the will, and some monies lying in the account of the testatrix in the Imperial Bank and the Post Office. These amounts are not mentioned: in the will, but from the application for probate it would appear that the deposit in the Imperial Bank amounted to Rs. 1379/6as and the other deposit amounted to Rs. 2513/11 as. Some gold, which presumably consisted of gold ornaments of the testatrix, was also the subject matter of bequeathal under the will. Earnest Bento, the second son of the testatrix, was appointed th sole executor, and the main terms of the disposition were that Earnest Bento would get a three-fourths share in the properties bequeathed under will besides the gold left by the testatrix, and the elder son John Francies was to get the remaining one-fourth, share after payment of some debt mentioned in schedule B of the will and also after payment of a legacy of Rs. 4000/-to Mrs. Mary Angelica Goves. the second daughter of th testatrix. The first daughter was to get nothing. It was also provided in the will that in case Earnest Bento predeceased his mother, the will would become inoperative

5. The most important witness on behalf of the propounder appellant is Sri Kshitish Bhusan Sarkar, a legal practitioner of Asansol who has been in practice since 1935-36 and who lives in a house opposite to that of the testatrix.

The evidence of this witness shows that he came to know the testatrix in 1950 and she and her husband who had died some time prior to the execution of the alleged will, used to come to him now and then and sought his legal advice in some other matters. Srijut Sarkar further deposes that the testatrix approached him towards the end of February, 1952, and gave him necessary instructions for drawing up a will. This witness further states that he wanted some more particulars which were also supplied, and acting under those instructions he prepared a draft and made it over to Mrs. D'Souza on 6-3-1952, after reading and explaining each line of the draft in Hindi. Sriut Sarkar further deposes that Mrs. D'Souza got a fair copy of the will typed and she executed it at his place on 8-3-1952, according to a prior arrangement, and the execution was attested by himself and another man of the Goanese community of the name of J. Rule Farnendez. Srijut Sarkar furthermore states that Farnendez also read out and explained the will to Mrs. D'Souza in a language which he did not understand before signing the will. Fernandez appears to be an influential retired businessman of the Goanese community at ASansol. He was examined on commission prior to the trial of the suit, and he gave out his age as 77 years. He was dead by the time the suit came up for hearing. He stated in his evidence that he had read out and explained the will to Mrs, D'Souza in Goanese language before she put down her signature on the will. He did not, of course, say that he saw the testatrix actually sign the will, but then he said that his memory had been failing either due to weakness or due to his old age. Srijut Sarkar has, however, said in his evidence that he and Fernandez signed the will in the presence of the testatrix after she had signed the same. If the clear, cogent and specific evidence of this lawyer witness, supported in material particulars by the evidence of J. Rule Fernandez be believed then there would be no room for the shadow of a doubt that the will in question was duly executed by the testatrix and attested by witnesses on 8-3-1952, according to the requirements of law.

6. The Court below, however, rejected the testimony of the above two witnesses and held that the will was an antedated will on a consideration of the evidence of one Sri S. K. Chatterjee, a superintendent of the office of the Deputy Controller, Stamp and Stationary, Calcutta. The record shows that the hearing of the suit commenced on 4-9-1955. Some witnesses were examined on that date and the case was adjourned to 15-9-1955. The recording of evidence was completed on that day. An application was made on the last mentioned date by the objectors for sending the will to the office of the Superintendent of Stamp and Stationary, meaning thereby, the office of the Deputy Controller of Stamp and Stationary for his report as to whether all the three demi papers used in the will were available on 8-3-1952. This application was allowed notwithstanding the objection of the propounder. The Court below sent the will to the office of the Deputy Con-troller of Stamp and Stationary for his opinion whether the demi papers used in the will were available on 8-3-1952. A report was sent from that office on 20-9-1955, to the effect that the demi paper bearing the water-mark MD which constituted the second page of the will was not in existence on 8-3-1952, and the other two demi papers, bearing the water-mark OR were in existence on that date. This report which is a part of the record was signed by the Deputy Controller, Stamp and Stationary. Thereafter Sri S. K. Chatterjee, a superintendent of that office, was examined in Court on 1-12-1955, in support of the report. His evidence was that the water mark MD borne by the second sheet of the will had been assigned at a date subsequent to 8-3-1952, and so this particular demi paper could not have been available on 8-3-1952. Relying solely upon the evidence of this witness, the Court below held that the will must have been antedated. We may quote here the following passage from the judgment of the learned Judge:

'O. P. W. 4 -- S. K. Chatterjee is the Superintendent of Government of India Stationary Office at Calcutta. He has very satisfactorily proved that the second page of the will' bearing water mark 'MD' could not have been available on 8-3-52 as it was not in existence on that date or earlier. This being the proof, it cannot but be said that the will was typed and signed sometime after 8-3-1952 and that the will was therefore antedated.'

7. In our opinion, the learned Judge of Court below has committed an error in law in treating the evidence of Sri S. K. Chatterjee as admissible. This witness, no doubt, stated in one portion of his deposition that he was conversant with the secret water marks, but from his cross examination it would appear that the report which was the basis of his evidence, was prepared by a reference to the 'Confidential Register' which was not produced before the Court. Apparently it was regarded as a privileged document containing a state Secret. It was held in the case reported in Emperor v Jaffarul Hossain : AIR1932Cal468 that the evidence of an officer of the Stamp and Stationary Department of Government given under circumstances like the present was not the evidence of an expert, and when such evidence was given with reference to a document which was shut out from the view of Court under the provisions of Section 123 of the Indian Evidence Act, it was not admissible according to law.

8. Mr. Goswami appearing on behalf of respondent No. 1 contended before us that in the present case the Superintendent was deposing from his personal knowledge and experience, and so we should hold that his testimony is admissible in evidence. He further contended that the evidence of the officer of the office of the Deputy Controller, Stamp and Stationary, was ruled out in the case cited above in connection with a criminal matter, and the same rigidity regarding admissibility should not be applied I to a civil suit. We are not inclined to acceptthis contention of Mr. Goswami as being sound, because the evidence of Sri S. K. Chatterjee, read as a whole, would show that his knowledge regarding the date of first introduction of the demi paper of the disputed type, is based upon a confidential register which is not open to the inspection of the Court and not upon his personal knowledge or experience only. The fact that evidence of this character was held to be inadmissible in a criminal case does not make any difference in principle, because the rules regarding admissibility of evidence are the same both in civil and criminal cases.

9. Mr. Ganguli appearing on behalf of respondents Nos. 2 and 3, besides adopting the above contention of Mr. Goswami, submitted that in this case the witness who deposed as an expert did not claim any privilege, and the Court below also did not decide whether the alleged confidential register was a privileged document, and that being the case, the Court below should have called for the production of the document. We are not inclined to accept this argument of Mr. Ganguli, because the letter written by the Deputy Controller, Stamp and Stationary, dated 17-10-1955, which is a part of the record would show that privilege was claimed as a matter of fact by the Deputy Controller on the ground that documents relating to the history of secret water marks are based on unpublished official records relating to affairs of State, and as such, the Deputy Controller was entitled to claim privilege. It would thus appear that privilege was in fact claimed by the Deputy Controller, Stamp and Stationary, and as the Court below did not pass any order for production of the records which appear to be the basis of the evidence of Sri S. K. Chatterjee, we are of opinion that privilege was allowed by the Court. As the evidence of Sri S. K. Chatterjee is based upon unpublished and privileged Government records, that evidence is not admissible, as has been laid down in the case reported in : AIR1932Cal468 (supra), and we respectfully agree with that decision. We hold that the inadmissible testimony ol Sri S. K. Chatterpee should not have been relied on by the Judge of Court below for the purpose of holding that the disputed will is an antedated document.

10. Even assuming that the testimony of Sri S. K. Chatterjee is admissible in evidence, we are of opinion that the learned Judge of Court below is wrong in regarding it as sacrosanct or infalliable in the absence of the confidential register which is the source or inspiration of that evidence. In the first place, the person who gave evidence might have made a mistake in reading the register. He could not certainly have been properly cross-examined in the absence of the register. Secondly, the evidence of Sri S. K. Chatterjee shows that other States of the Union of India have got their own separate arrangements about water-marks with which Sri S. K. Chatterjee is not familiar. There is, therefore, no knowing whether this particular MD water-mark had been assigned by any other State before 8-3-1952, and whether a demi paper bearing such water-mark had come intothe possession of the person who had typed out the will. For these reasons, we regard the evidence of Sri S. K. Chatterjee to be evidence of an inconclusive nature at its highest, and as such, it should not have been allowed to outweigh the clear, positive and unbiassed evidence of pleader Kshitish Bhusan Sarkar, 'This witness who appears to be a disinterested witness of truth proved quite satisfactorily that the will in question was duly executed and attested.

11. Due execution of the will was also admitted by the testatrix before the Sub-registrar who registered the will. The Sub-registrar Chandi Charan Bose (P. W. 1) gave his evidence on behalf of the propounder. Of course, he had no independent recollection about the registration of the will, but upon seeing the same he recollected some of the facts relating to the registration of the will, and said that the executant in answer to some of the questions put by him admitted that she had signed the will with knowledge of its contents. This witness further said that he put down his signature in presence of the testatrix. The Sub-registrar was, therefore, an attesting witness within the meaning of Section 63 of the Indian Succession Act (Vide the case reported in Satipada Chatterjee v. Annakali Debya, : AIR1953Cal462 ). We, therefore, hold that due execution and attestation of the will was proved in this case by two witnesses whose veracity is beyond any question. The Court below was wrong in taking a contrary view.

12. We now pass on to consider the second point raised in this appeal, namely, whether the testatrix had a sound disposing mind at the date of the execution of the will. The Court below has held that the testatrix did not understand the contents of the will, & she had no sound disposing mind at the date of its execution. In arriving at this finding that Court was very much influenced by the fact that the testatrix was an old woman who was suffering from various ailments which are more or less the natural concomitants of old age. The evidence of Dr. Sunil Ranjan Biswas who deposed on behalf of the objectors and who said that the testatrix was not in a normal state of mind in 1952-53 also appears to have carried much weight with the learned Judge.

13. The learned Advocates for the respondents supported the above finding of the learned Judge by contending that the testatrix was depriving some of her natural heirs, either partially or totally of their legitimate share of inheritance, and so it cannot be said that she had a sound disposing mind unless it can be shown by the propounder that this discrimination amongst the heirs was made voluntarily and of her own accord. It was also Submitted by the learned Advocates for the respondents that the propounder had failed to prove that this discrimination was the voluntary act of the maker of the will. In this connection reliance was placed on some oft-quoted observations of Erskine, J. in Harwood v. Baker, (1840) 3 Moo P.C. 282 (C). These observations occur at pp. 290-291 and are quoted below :

'But their Lordships are of opinion, that in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his Will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his Will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.'

14. These observations, however, do not apply to the facts of the present case, because in the privy Council case, the so-called will was practically a death-bed will having been executed only five hours before the death of the testator who was found to be insensible, unconscious and Incapable of any act whatever by his medical attendant only two hours after the excution of the will. In the present case the will was executed more than a year before the date of the death of the testatrix. It is true that she was treating one of her sons preferentially, but then she also left other properties which were to be inherited by her heirs according to the ordinary law of succession, if the evidence of the lawyer witness Kshitish Bhusan Sarkar is to be believed then it would become clear that the testatrix herself gave all material instructions regarding the disposition of her properties bequeathed under the will. Srijut Sarkar said that he met the testatrix at least on three days in connection with this matter and she appeared to be in a normal stste of mind. It is true that the testatrix was living at the material time with her elder son John Frsncies Souza who was partially disinherited and also with her eldest daughter Mrs. D'Silva who was totally disinherited. Ordinarily one would expect that the testatrix would treat them equally with the propounded The reasons for preferential treatment have, however, been given in the will. It has been stated therein that John was negligent of his near relatives and was fond of races, and the eldest daughter Mrs. D'Silva had got her marriage expenses from the testatrix. These reasons for excluding them from inheritance either partially or totally may not appeal to a stranger as adequate or sufficient, but the motive for -preferential treatment lies buried with the testatrix. It will be a futile task to unearth such motive where, as in the present case, the will reflects the mind of the maker of the will

15. As to the question whether the mind of the testatrix had been enfeebled by old age and disease to such an extent as to have made her incapable of making a testamentary disposition of her property, we may say that the medical evidence on which the respondents principally relied is wholly worthless and unreliable. Dr. Sunil Kanjan Biswas stated in his examination in chief that he first examined Mrs. D'Souza in 1949 and she was suffering from diabetes at that time; in the later part of 1952 she developed symptoms of Cardie Dropsy and she had anaemia. He further stated that he thought that Mrs. D'Souza was not in a normal state of mind in 1952 and she could not understand anything about her ailments or treatment and the doctor got the details about her pains difficulties etc. from her children. In cross examination this doctor gave the lie direct to these statements and said as follows:

'I used to talk to her in Hindi.........She told me about her ailments. I asked her question about her symptoms etc. She always replied in details.'

These answers given by the doctor in his cross-examination militate against what he had said in his examination-in-chief about the mental incapacity of the testatrix to understand and answer questions regarding her health. It is true that Mrs. D'Souza was an old and ailing woman when she made the will, and admittedly she had been in Dr. Mazumdar's Nursing Home some time in 1952. But besides the above evidence of the doctor and the interested evidence of John Francis D'Souza and Mrs. D'Silva, there is no other evidence to show that the testatrix had no sufficient power of understanding and discrimination at the date of the execution of the will. The onus, of course, lay on the propounder to prove that the lady had requisite testamentary powers at the material time. In our opinion, this onus was sufficiently discharged by the evidence of pleader Kshitish Bhusan Sarkar and J. Rule Fernendez who proved that the testatrix was of sound disposing mind at the date of the execution of the will. It is significant that she herself went to the sub-registry office to register the will. The man who identified there, namely, Mascareunas proved that at the time of registration of the will the testatrix was of sound mind. The Sub-registrar also proved that in answer to his questions the testatrix said that she had signed the will and she knew about its contents. In our opinion, all this evidence shows beyond the pale of any doubt or controversy that the testatrix had a sound disposing mind at the date of the will, and the finding of the Trial Court tothe contrary is wrong.

16. We now pass on to the third point raised in this appeal, namely, whether the will was brought into existence as a result of collusion and undue influence. The Court below held that three persons colluded with one another in bringing the will into existence, and they were Kshitish Bhusan Sarkar, Ernest Bento Souza, and Mascareunas and they have been described by the Court below as the adviser, the gainer and the spectator respectively. On an examination of the evidence we are satisfied that there was absolutely no community of interest amongst these persons, and neither the pleader nor the identifier had anything to gain by propounding the will. A suggestion was made against the pleader that he wanted to purchase the property of the husband of Mrs. D'Souza at a very low price and John Francis Souza stood in his way. The suggestion was denied by the pleader. We are unable to see that there was any collusion amongst the persons named above. As to the finding of the Court below that undue influence was exercised upon the testatrix, we are of opinion that the finding is absolutely unfounded on any evidence and is based simply upon guess-work and conjecture. We therefore, hold that the will was not brought into existence as a result of any collusion, or as a result of any undue influence having been exercised upon the testatrix.

17. All the points urged in this appeal on behalf of the appellant have succeeded andwe hold that the grounds on which probate has been refused by the Court below are not tenable. We have held that the will was duly executed and attested and the testatrix had sound disposing mind at the date of the execution of the will, and the will was not brought into existence as a result of collusion and undue influence. In view of these findings we allow this appeal, and set aside the judgment and decree of the Court below and we direct that probate of the will in question with a copy annexed be granted to the plaintiff propounder.

18. The appellant will get costs of both the Courts from the respondents, the hearing fee in this Court being assessed at five gold mohurs.

B.N. Banerjee, J.

19. I agree with the conclusions arrived at by my Lord.


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