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Alok Kumar Aich Vs. Asoke Kumar Aich and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 137 of 1980
Reported inAIR1982Cal599
ActsSuccession Act, 1925 - Sections 61, 63, 68, 74, 284 and 299 ; ;Evidence Act, 1872 - Sections 3 and 101-104; ;Contract Act, 1872 - Section 16
AppellantAlok Kumar Aich
RespondentAsoke Kumar Aich and ors.
Appellant AdvocateM.N. Ghosh, ;D. Bhattacharjee, ;G.C. Pal and ;P.K. Mukherjee, Advs.
Respondent AdvocateSaktinath Mukherjee, ;Madhusudan Banerjee and ;Bhaskar Ghosh, Advs. for No. 1, ;S.P. Roy Chowdhury and ;Dipak Ghosh, Advs. for No. 3 and ;Rabindra Nath Mitra and ;Manjuli Chowdhury, Advs. for No. 4
DispositionAppeal dismissed
Cases ReferredCraie v. Lamoureux
- .....discussion with dw 3 over worldly affairs,7. we have no reason to disbelieve the evidence of pw 4. amiya kumar sen. that the testator amarendra had consultations with him after he had come to pw 4 with notes regarding the will. pw 4 further testified that the testator was in a fit mental condition. after interval of about two months towards early december, the testator had come to pw 4 with the will engrossed and had told amiya sen. pw 4. that he had intended to have the will registered as early as possible. pw 4 also deposed about the attestation of the will by him and also about the registration of the will. dw 3, sailendra, also claimed that he and amarendra had discussion about making of a will by the latter. therefore, it was only reasonable and probable that the testator,.....

Chtttatosh Mookerjee, J.

1. The learned Additional District Judge. 9th Court, Alipore by his judgment and decree complained of has rejected the caveat filed by the appellant and has directed that the probate be issued in favour of the respondent No. 1, Alok Kumar Aich, in respect of the alleged will of late Amarendra Chandra Aich, who died on 29th Dec. 1975. The appellant and the respondent No, 1 are respectively the eldest and the youngest sons of the deceased testator. Amarendra Chandra Aich, the respondent No. 2 is his widow and the respondents 3 and 4 are his daughters.

2. Mr. M.N. Ghosh, learned advocate on behalf of the appellant, has submitted that the respondent No. 1 who propounded the aforesaid will of deceased Amarendra Chandra Aich, could not and did not prove the due execution and attestation of the said will and also could not and did not explain the suspicious circumstances relating to the probatp in respect of the said alleged will of Amarendra and therefore he ought to be refused probate on the ground that by exercising undue influence upon the testator. Amarendra, Alok, the respondent No. 1, the propounder had procured the said will under which the propounder himself was the principal beneficiary.

3. Having given our anxious consideration to the matter, we find no substance in the above submissions made on behalf of the appellant and we hold that the learned Additional District Judge has rightly granted probate in respect of the said will whose execution and attestation were satisfactorily proved and that the appellant's case regarding undue influence cannot be accepted.

4. The aforesaid will (Ext 1) was in Bengali language undisputedly written by the deceased testator, Amarendra Chandra Aich. who had signed on each page and also put his signatures on its last page. Mr. Ghosh, learned advocate for the appellant, himself fairly conceded that the law makes a great presumption in favour of the genuineness of such a holograph will (vide Ajit Chandra v. Akhil Chandra. : AIR1960Cal551 ; Santashila v. Narendra Nath (1929) ILR 56 Cal 55: (AIR 1929 Cal 290).)

5. The Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee. : AIR1964SC529 . had observed that the will undisputedlv was a holograph will admittedly in the handwriting of the testator. In the last paragraph of the will the testator had stated that he had signed the will in the presence of the witnesses and the witnesses had signed in his presence and in the presence of each other raised strong presumption of its regularity and it being duly executed and attested,

6. The appellant neither pleaded nor proved that at the time of the execution of the will the testator, Amarendra Chandra Aich, did not possess testamentary capacity. Although Amarendra was an aeed person and suffered from some kind of heart ailment, the same did not impair his mental capacity to make a will. Sailendra Nath Mitra. Was the husband(?) of Amarendra Nath Aich's wife, (DW 3), testified that when he met him last Amarendra was not keeping physically fit. He would not go out for long walks. He would only move about very little but DW 3 claimed that after Durga Puja in the year 1975 he had visited Amarendra to offer Vijaya greetings. At that time. Amarendra was ailing and had discussion with DW 3 over worldly affairs,

7. We have no reason to disbelieve the evidence of PW 4. Amiya Kumar Sen. that the testator Amarendra had consultations with him after he had come to PW 4 with notes regarding the will. PW 4 further testified that the testator was in a fit mental condition. After interval of about two months towards early December, the testator had come to PW 4 with the will engrossed and had told Amiya Sen. PW 4. that he had intended to have the will registered as early as possible. PW 4 also deposed about the attestation of the will by him and also about the registration of the will. DW 3, Sailendra, also claimed that he and Amarendra had discussion about making of a will by the latter. Therefore, it was only reasonable and probable that the testator, Amarendra. who was not in good health had decided to make a will and for this purpose had consulted Amiya Kumar Sen, PW 4. On the materials on record we are unable to accept the submission of the learned advocate for the appellant that said Amiya Kumar Sen. PW 4, had done anything improper or unprofessional in the matter of giving advice to the testator regarding the formalities of making of a will. In course of his cross-examination of Amiya Kumar Sen. PW 4, or in his own evidence the appellant Alok did not allege that there was any collusion between PW 4 Amiya Kumar Sen. and the propounder, Asoke Kumar Aich. Merely because the PW 4 had admitted acting as Asoke's lawyer, only after his signature on a petition filed in the court was proved, we cannot reject evidence of PW 4 regarding preparation of the will (Ext. 1) and its execution and attestation should be discarded. Three out of the four persons who had signed as attesting witnesses deposed. Asoke Banerjee, whose name was first among the attesting witnesses, did not testify, although he had affirmed an affidavit at the time of the filing of the application bv Asoke for granting probate to the said will. Alok DW 1. admitted that he was not in bad terms with Rabindra Nath Dutta (PW 11 although he happened to be the elder brother of one of the friends of Asoke, the propounder. Alok, DW 1 further stated that he had no enmity with Asoke Nath Banerjee and DW 1 claimed that Asoke Nath Banerjee knew the real background of the will and he had been withheld. Alok, himself did not take any step to examine Asoke Nath Banerjee us a witness. The appellant Alok did not also make any specific allegation against Amiya Kumar Sen except stating that Amiya Babu was not his father's friend. He admitted that Amiya Babu happened to be a neighbour and, therefore, we refuse to believe DW 1 that Amiya Babu was not acquainted with the testator. We prefer to accept the testimony of Amiva Sen, PW 4 on this point.

8. It has been repeatedly held that the mode of proving a win does not ordinarily differ from that of proving any other document except as to the special requirements of attestation prescribed in case of a will bv Section 68 of the Succession Act. It is also settled law that 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 bv law is sufficient to discharge the onus. The propounder is called upon to show bv satisfactory evidence that the will was signed by the testator and the testator was in sound land disposing state of mind that he understood the nature and effect of the dispositions and put his signature to the document of his own will. The aforesaid observations of Gajendragadkar, J. in H. Venkatachala Iyengar v. Thimmajamma, : AIR1959SC443 . has been consistently followed and applied by the Supreme Court in their later decisions (vide Shashi Kumar Banerjee's case : AIR1964SC529 (supra); Ramchandra Ram-bux v. Champabai. : [1964]6SCR814 ; Sm Jaswant Kaur v. Sm. Amrit Kaur, : [1977]1SCR925 .

9. We agree with the trial court that there was no reason to disbelieve at least Rabindranath Dutta, PW 1 and Animesh Rov Chowdhury. PW 2 about the attestation of the will of Amarendra Chandra Aich. Rabindranath Dutta is a medical practitioner and a close neighbour. Nothing has been suggested by the appellant against the impartiality of Rabindranath Dutta. PW 1. We believe his statement that Amarendra Babu had come to his chamber with the will and had requested Rabindra, PW 1. to Put his signature. Rabindra claimed that at first he was reluctant but Amarendra Babu had pressed for his signature. Then he agreed. Amarendrababu. according to Rabindra, put another signature on the will in his presence and thereafter. PW 1 had put his signature on it. Thus. Rabindranath, PW 1, had testified that Amarendra had acknowledged his first signature in the will and also had signed again in his presence. Thereupon, Rabindranath Dutta. PW 1. put his signature as an attesting witness. Animesh Kumar Roychowdhury, PW 2, cannot be, called a mere chance witness. PW 2. Animesh, from time to time used to attend the chamber of Amiya Kumar Sen who had advised the testator in the matter of the preparation of the will. Animesh, PW 2. deposed that Amarendra had told him that he had himself written the will and had put his signature in all the sheets. Thereupon, PW 2 signed in the presence of Amarendra. According to PW 2, the signature was obtained in the chamber of Amiya Kumar Sen, PW 2 stated that Amiya Kumar Sen and two other witnesses had signed before he put his signature on it. There was no material on record to prove that Animesh Roychowdhury was not a witness of truth. It is true that there was some discrepancies in the evidence of Amiya Kumar Sen regarding the attestation of the will. The endorsement by Amarendra in the will that he had put his signature in the presence of all the attesting witnesses is also not consistent with the evidence of Rabindra. PW 1, that he had signed as an attesting witness in his chamber.

10. The witnesses had deposed in court nearly four years after they had acted as attesting witnesses. Therefore, some minor discrepancies in their evidence were not unusual and the same did not really affect the credibility of the witnesses, they appear to be otherwise disinterested and respectable persons. Since Amarendra had obtained the advice of Amiya Kumar Sen, PW 4, it was not unusual for PW 4 to take steps in the matter of attestation of the will by his fellow lawyer. Animesh, PW 2 and also in helping Amarendra in having the will registered. But there is no reason to hold that PW 4 'was the real brain behind the entire thing' because the defendant neither pleaded nor proved that he had colluded or conspired with Alok, the propounder, in the matter of making the will (Ext. 1) by the testator. Amarendra Chandra Aich. We agree with the trial court that the pro-pounder satisfactorily proved that Amarendra had signed the will and that it was duly attested at least by three witnesses Rabindranath Dutta. P.W. 1. Animesh Roy Chowdhury, P.W. 2 and Amiya Kumar Sen. P.W. 4.

11. Undoubtedly, in cases where the execution of a will is shrouded in suspicion, the propounder must lead evidence to remove such suspicions and satisfy the conscience of the court that the will was duly executed by the testator (vide the observations in paragraph 9 of the Supreme Court decision in Sm. Jaswant Kaur's case : [1977]1SCR925 (supra).) In the present case both in the trial Court and in this court the defendant appellant strenuously endeavoured to establish that there was no cogent evidence of bad relationship between him and his father, and therefore, it was most unnatural to exclude not only the appellant Alok. but his son and wife from the properties of Amarendra. The court below also found that there was no corroboration of the statement of Amarendra made in his will (Ext. 1) that Alok was arrogant and abusive and that he had condoned his earlier lapses but an incident dated 27th September. 1979 was too much for the testator to bear and he had separated Alok with effect from 1st Oct., 1975. The learned advocate for the appellant, in this connection, has also strongly relied upon the evidence of Sailendra Nath Mitra, brother-in-law of the testator, who testified that Amarbabu (the testator) had good relations with his eldest son, Alok and that the father and the sons lived in joint mess. But Sailendra Nath Mitra. D.W. 3. and testator's daughter. Anita, both spoke about conslant friction and misunderstanding between the two sons of the testator. Alok, D.W. 1, himself admitted on the date mentioned in the will, he had some serious differences with his brother. The appellant. Alok, further deposed that it was not a fact that his relationship with his father was very bitter. But he had to concede that his father took him to task if he returned home late. Anita, D.W. 2, also admitted on 27th September, 1975 there was a serious quarrel between her two Dadas. She, however, denied that the father had separated Bards (meaning the appellant) since 1st October. 1975. It has transpired in evidence that in August, 1974. Alok. the eldest son of the testator, bad married and since the said time the testator and his youngest son used to live in the same room. If also appeared from the evidence that the testator had at least two ioint accounts with his youngest son. Asoke. It was reasonable and probable that the youngest son. Asoke, was closer to his father and probably the testator had taken the said side of the youngest son in his quarrels with his eldest brother, Asoke. It further appears according to Alok's evidence, that the testator was fairly old and was peevish and easily irritable (vide the evidence of Alok. D.W. 1. at page 64 of the paper book). But no other witness has corroborated the evidence of Alok (D.W. 1) that his father had lost his power of discrimination. In fact, the witnesses examined on other sides had testified that Amarendra throughout possessed sound disposing mind.

12. We have perused the contents of the will (Ext. 1). The testator by his said will had disinherited his eldest son and his family and the same indicated that he was very much displeased and annoyed with the appellant and his family. It is immaterial that about a year back he had written an inland letter to Aloke's wife in affectionate terms (vide Ext. 1 dated 28th September. 1974). In October. 1975 the testator recorded in his will that he was very much displeased with the behaviour of his son and. therefore, he was disinheriting him and his family. The evidence of Sailendra Nath Mitra, D.W. 3. also indicated that Amarendra was then contemplating about making his will. It may be because Amarendra became displeased, he did not ultimately make dispositions in the manner. He had attentively discussed with Sailendra Nath Mitra. D W. 3. when the latter visited the testator after Vijaya Dashami in the year 1975. We believe the evidence of Amiya Kumar Sen that the testator, Amarendra, had approached him and had taken his advice in Oct.. 1975 and, therefore, in December, 1975 Amarendra again met Amiya Kumar Sen, P.W. 4 with the will already written by him. Therefore, it is clear that Amarendra after deliberation had prepared and executed the will. After execution and attestation, Amarendra himself went to the Registration Office and got the will registered.

13. Thus, there was overwhelming evidence--both internal to the will and external about the testamentary capacity of Amarendra Chandra Aich. and that with full knowledge and his free will he had executed the said testamentary document. We have already held that the propounder by examining three of the attesting witnesses proved due execution and attestation of the will. Therefore, the court need not decide whether or not the testator was iustified in disinheriting his eldest son and his family. In this connection, the learned advocate for the respondent has relied upon the decision of C.C. Ghose and S.K. Ghose. JJ. in Shyam Sundar Debanshi v. Srimati Kamal Kumari Dassi, (1933) 57 Cal LJ 246: (AIR 1933 Cal 769). The Division Bench had held that if the court considered that 'due execution' has been proved, that in itself will amount to a finding that the testator with full knowledge of the claims of his relations upon his bounty, with the full knowledge of the state of his properties and with full knowledge of every material circumstance, had executed the will. The Division Bench had further observed that if the court is satisfied about the factum of execution, it is not entitled to pay exclusive attention to the terms of the will. The court should confine its attention to the due execution of the will and whether the probate of the will should be granted or not, the court will not, however, overlook or disregard such elements of suspicion as may be brought to its notice. The court is to analyse direct or positive evidence as regards execution of the will and try to test the accuracy of the evidence remembering of the time what are the real elements of suspicion which may attach to the execution of the will. The Division Bench also pertinently pointed out that it is not permissible to a court of probate to consider aliunde the terms of the will to consider whether the relations who had natural and legitimate claim on the testator's bounty have been cut off altogether or not. We respectfully agree with the above statement of law. In the instant case due execution of the will has been proved. It has been also proved that the testator had full testamentary capacity and, therefore, the onus probandi has been discharged and the probate of the will cannot be refused on the ground that the reasons given by the testator in his will for excluding his eldest son, Alok have not been satisfactorily established.

14. It is also settled law that once it has been proved that a will has been executed with due solemnity by a person of competent understanding, the burden of proving that it was executed under undue influence is on the party who alleges it: (See Naresh Charan Das Gupta v. Paresh Charan Das Gupta. : [1955]1ITR1035(SC) which relied upon the decision of the Judicial Committee in Craie v. Lamoureux AIR 1919 PC 132). Mr. Mukherjee learned advocate for the respondent No. 1. has correctly pointed out that the defendant appellant in his written statement did not make any specific allegation against the propounder and did not give any particulars of alleged undue influence. He only broadly claimed that the alleged will was not the outcome of the free will of Amarendra Chandra Aich. The defendant in the trial court did not raise any specific issue regarding undue influence and the judgment of the trial court does not indicate that the defendant had urged that the propounder by exercising undue influence upon his father procured the will in question. We are unable to allow the defendant appellant to advance the plea of undue influence because the defendant did not adduce sufficient evidence on the said point. He did not give any particulars in support of his statement in his examination-in-chief that 'Father never wrote this will under his free will. Mv brother bore grudge against us and he has somehow procured this will......'. Again D. W. 1 in course of his cross-examination stated that the will was procured from him applying pressure and taking advantage of his physical and financial weakness. Neither Anita, the younger daughter of the testator (D. W. 2) nor the testator's brother-in-law. Sailendra (D. W. 3) has corroborated the claim of the defendant. Alok, D. W. 1. that the testator had no mental capacity or that the will was procured by exercising undue influence upon him.

15. The Supreme Court in Naresh Charan Das Gupta's case : [1955]1ITR1035(SC) (supra), had pointed out that it was elementary law that it is not every influence which is brought to bear on a testator that can be characterised as 'undue'. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his menial capacity, and there is no element of fraud or coercion -- it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories -- the will cannot be attacked on the ground of undue influence. The respondents have allegedly pointed out that there must be pleading and evidence to prove that the person against whom allegation of undue influence is made. was in a position to dominate the will of of the testator. Secondly, the said influence was actually exercised and the amount of influence even if exercised, must be proved to be undue. In the instant case, the defendant has failed to prove these elements constituting undue influence.

16. We have already held that when the propounder has satisfactorily proved that the testator had himself written out the will and had executed the same and that his signature was duly attested, the probate cannot be refused on the ground that the propounder did not prove that the defendant No. 1 deserved to be excluded from inheritance. We have perused the will and we find that while the testator deprived his eldest son, his wife and son from his property, the testator had acknowledge that his eldest son had given him Rs. 6,400. The testator had directed repayment of the said sum of Rs. 6,400 to his eldest son. Further, while the testator directed that his residential house would devolve only upon his youngest son, Asoke, his wife and his youngest daughter, Anita, so long the latter remain unmarried, were given right of residence in a portion of the house. He also directed Asoke to pay to them Rs. 150 as maintenance Per month. The teslator gave further directions regarding the marriage expenses of his youngest daughter Anita. Therefore, the dispositions made in the will do not rouse any suspicion about its genuineness. Mr. Ghosh also submitted before us that it was not believable that the propounder had no knowledge about making of the will and its execution and attestation and that he had for the first time come to know of it from Amiya Kumar Sen, P.W. 4. after 'he death of his father. In our view. when it has not been proved that the propounder had taken any part in the above matters and the evidences was that the testator himself consulted P.W. 4 and in his own handwriting wrote the will and. thereafter, got his signature attested by the witnesses, it is immaterial to find out whether or not Asoke had known about the will during the lifetime of his father.

17. For the foregoing reasons, we conclude that the court below rightly granted probate in respect of the aforesaid will of Amarendra Chandra Aich, the testator and this appeal should fail. We, therefore, dismiss this appeal without any order as to costs,

18. No order is passed on the application filed by the respondent. But this would be without prejudice to the rights and contentions of the parties in any proceeding according to law,

19. Operation of this order will remain stayed for one month from date.

Sanyal, J.

20. I agree.

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