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Harimati Debi and anr. Vs. Anath Nath Roy Choudhury - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1939Cal535
AppellantHarimati Debi and anr.
RespondentAnath Nath Roy Choudhury
Cases ReferredBaikuntha Nath v. Prasannamoyee Debya
- .....evidence is that the will was disclosed when phani was living and also on several occasions after phani's death and before mrinalini had died. the principal witness on this point is jogesh chandra choudhury. (after discussing evidence their lordships proceeded.) as we have stated above the will assumed an importance only when at mrinalini's death, which occurred 12 years after probhabati'a marriage the latter had no male issue. we accordingly hold that the propounders' case that the will was seen by persons, or was shown to some persons by mrinalini, before july 1930 has not been established. in these circumstances the want of a credible explanation of the long delay in propounding will is an important factor for consideration.6. the only direct evidence of the execration of the will is.....

R.C. Mitter, J.

1. The appellants are the applicants for letters of administration. They have propounded a will said to have been executed by their father Phani Bhusan Roy Choudhury as far back as 27th February 1910. Phani Bhusan died on 6th March 1910 and the application for letters of administration with the will annexed was made on 15th September 1930, more than 20 years after the testator's death. The inordinate delay in propounding the will coupled with the fact that it is an unregistered one makes it our duty to scrutinize the evidence produced on behalf of the propounder with care and circumspection. Phani Bhusan was survived by his widow Mrinalini, two minor unmarried daughters, Harimati and Probhabati, who were about 13 and 10 years of age respectively at the time of his death and by an infant son, Bholanath then a few months old. Anath Nath, the respondent in the appeal, is the grandson of a separated brother of Phani Bhusan of the name of Apurba. The summary of the terms of the will propounded is that the testator's properties were to vest in his son Bholanath and during the latter's minority, Mrinalini, and in her absence Harimati and Probhabati, were to look after his properties. If Bholanath died unmarried but survived by his mother, Mrinalini, the properties were to vest in the latter on whose death they were to vest in the testator's daughters, Harimati and Probhabati. If Bholanath died after his mother but unmarried, the properties were also to vest in the said two daughters of the testator. Harimati was married after her father's death but she is a sonless widow. Probhabati was married to Nanigopal Bhattacharjee in the year 1918. Bholanath died unmarried in December 1917 survived by his mother Mrinalini, who died on 11th July 1930. At that time Probhabati had no male child living. If Phani Bhusan had died intestate, on Bholanath's death the properties would have devolved on his mother Mrinalini as his heir and on the latter's death, Anath would have inherited the same as being the nearest reversioner of the last male owner Bholanath. Harimati and Probhabati would not have come in, as under the Bengal School of Hindu law, sisters are no heirs. Sister's sons are no doubt heirs but none of them was in existence at the time of the death of Mrinalini when the succession to the estate of Bholanath opened again. Will or no will, it made no difference up to Mrinalini's death, but the will set up was absolutely essential, if Phani Bhusan's-nroperty is to be retained in his daughter's family. It is for this reason that the respondent has suggested that the will was hatched up after Mrinalini's death by Nanigopal, the husband of Probhabati.

2. On 15th September 1930 the appellants filed their application for letters of administration before the District Delegate of 24-Parganas. In their application they mentioned the name of Anath, who was then a minor, as a near relation of the testator. On 20th November 1930 they proposed his maternal grand-mother, Sarojini, as his guardian ad litem. The District Delegate accordingly issued on 8th December 1930/' notices both on Anath and his proposed guardian who were then living in Basirhat, The peon's report is that he went to Sarojini's house on 29th December 1930 but as Sarojini was a parda lady he could not hand over the notice to her, but made the contents of the notice known to her son-in-law Surendra Nath Banerjee, who was present there, but the latter having refused to sign, the notice was affixed to a prominent part of the house. This notice required Sarojini to appear in Court on 5th January 1931 and to intimate whether she would accept the guardianship or not. On the record we find a vakalatnama as Sarojini's vakalatnama and an application purporting to be on her behalf, both filed on 5th January 1931. In both there is a mark and Surendra Nath Banerjee purports to write the name of Sarojini on her behalf. On both there are signatures which purport to be Surendra's. The application states that not only Sarojini was willing to act as-the guardian ad litem but that she had no objection to the grant being made to the applicants. On 22nd June 1931, Sasadhar Mukherjee whose name appears as one of the attesting witnesses filed his affidavit in which he stated that the will was duly executed and attested in his presence. On 3rd August 1931 an ex parte order for grant of letters was made to the applicants on the basis of this affidavit. The probate duty was not however paid and the security was not furnished with the result that the case was dismissed for default by the District Delegate on 20th June 1935. There are indications on the record which furnish the reason for this default. The duty demanded was a small amount (Rs. 80-4-0) and it was not paid for four years not because of want of funds but for other reasons. Those reasons were that the applicants had succeeded in having their names substituted in the Collector's register on ex parte proceedings.

3. In 1935 however Anath, who had attained majority in the meantime, appeared before the Collector and succeeded in having the names of the applicants Harimati and Probhabati removed from his register and in having his own name recorded. This put the applicants to motion and they on 1st May 1936 applied to the District Delegate under Section 151, Civil P.C., to vacate the order of dismissal passed on 20th June 1935 on the ground that they were then prepared to pay the probate duty and to furnish security. The previous order for dismissal was set aside ex parte and letters of administration were issued to the applicants with a copy of their father's will annexed on 12th May 1936. Fourteen days later (26th May 1936) Anath filed his application for revocation of the grant. The grant was revoked by the learned District Judge by an order dated 30th January 1937 and the applicants were asked to prove the will in the presence of Anath in solemn form. The findings in the order of revocation are these: (i) that the notices issued by the District Delegate on Sarojini and upon the minor Anath on 8th December 1930 were fraudulently suppressed; (ii) that the vakalatnama and the petition filed on behalf of Sarojini before the District Delegate on 5th January 1931 were false documents. In them the signatures of Surendra Nath Banerjee had been forged; (iii) that the case sought to be made in the evidence adduced by the propounders, especially by their witness Purna Chandra Roy Choudhury, that Anath and Surendra Nath Banerjee knew in 1931 of the proceedings before the District Delegate, inasmuch as the Circle Officer of Basirhat made enquiries regarding the value of the estate for the purpose of assessing probate duty in their presence, was a false case. After the grant was revoked the proceedings started again on 8th March 1937.

4. The will is a short one, written on two sheets of cartridge paper, such as are ordinarily used for vakalatnamas, plaints and written statements. At the right hand top in both the sheets are what purport to be signatures of Phani Bhusan. There is no such signature at the bottom of the last page where the document ends. At the end of the document are the signatures of the writer Bhagaban Chandra Mondal and of four witnesses, Taraprosad Ghosh, Moni Mohan Ghosh, Sasadhar Mukhopadhyay and Hiralal Sarkar. The scribe and witness 1 are stated in the document to be residents of Beokati, the village where Phani Bhusan lived and died, but Moni Mohan was a resident of Said pur and the last two witnesses were residents of Taki, which was a few miles distant from Beokati. At the date when the proceedings for probate were first started Sasadhar was alive and on his affidavit the District Delegate issued the grant. At the time when the proceedings for probate were restarted after the revocation of the first grant, that witness and all the other witnesses including the writer except Moni Mohan, were dead. Moni Mohan has been examined on behalf of the propounders. His is the only direct evidence bearing upon the question of execution of the will. He has stated in his evidence that Phani Bhusan signed the will in his presence and he as also Taraprosad and Hiralal attested the same in the presence of Phani Bhusan. The learned Judge relying upon a passage in his cross-examination to the effect that he had signed first held that the will was not proved to have been properly attested, for he took this passage to mean that Moni Mohan had signed even before the testator. We do not think that that is the meaning to be attached to this part of his evidence. Obviously, Moni Mohan was referring to the order in which the attesting witnesses had signed. His deposition does not agree with what appears from the document, for there his name appears to be the second name, Taraprosad's name appearing as the first. Seeing that Moni Mohan was deposing about 28 years after the alleged execution of the will this small discrepancy would not have mattered and we would have reversed the aforesaid finding of the lower Court if we could have believed Moni Mohan. For the reasons which we will state hereafter we think however that implicit reliance cannot be placed on the testimony of Moni Mohan, and that it would not be safe to hold that the propounders have discharged the burden placed on them. The writing and signature of Bhagaban have been proved, as also the signatures of Taraprosad and Sasadhar by some witnesses examined by the propounders.

5. Three witnesses examined on behalf of the propounders, namely Probhabati, Jogesh Chandra Choudhury (the executor named in the will who has renounced) and Purna Chandra Roy Choudhury, have stated that they had either seen the will or it was shown to them and others on different occasions from shortly after the testator's death and during the lifetime of Mrinalini. This evidence, if believed, would demolish the suggestion made by the respondent that the will was manufactured after the death of Mrinalini, when it was found that the properties would pass out of the family of his daughters as none of them had male issue at the time. We will examine the evidence of these three persons in detail but we may at once say that we cannot act upon their evidence. The first point to consider is whether the delay in making 'the application for letters of administration has been explained. The lower Court has held that it has been accounted for, but we think otherwise. The will was propounded 20 years after the testator's death. In para. 7 of the application for letters of administration it is stated that the delay had been caused by Mrinalini's unwilling, ness to apply for probate. She was named in the will as executrix. Jogesh Chandra Choudhury however in his eagerness to support one part of the propounders' case, namely that the will had been disclosed and shown on the last day of the life of Phani Bhusan and thereafter, stated that Mrinalini was at first unwilling to propound the will in Court, but about two years before her death she came to him, showed him the will and stated that pro-bate would have to be taken. The witness Jogesh also advised her to take out pro. bate. The fact however remains that, although she lived for two years more, she never applied for probate. As on this evidence of Jogesh, the explanation suggested in para. 7 of the application for letters of administration became an unconvincing one the propounders fell upon another explanation, not mentioned in their application, that poverty prevented Mrinalini from applying for probate. We consider this explanation to be an after-thought and cannot accordingly accept the same. The next class of evidence is that the will was disclosed when Phani was living and also on several occasions after Phani's death and before Mrinalini had died. The principal witness on this point is Jogesh Chandra Choudhury. (After discussing evidence their Lordships proceeded.) As we have stated above the will assumed an importance only when at Mrinalini's death, which occurred 12 years after Probhabati'a marriage the latter had no male issue. We accordingly hold that the propounders' case that the will was seen by persons, or was shown to some persons by Mrinalini, before July 1930 has not been established. In these circumstances the want of a credible explanation of the long delay in propounding will is an important factor for consideration.

6. The only direct evidence of the execration of the will is given by Mom Mohan. His evidence is that he was sent for by Phani on the day of the execution of the will and the will was signed by the latter in his presence. The writer and the other attesting witnesses are dead. With regard to the writer Bhagaban it has been pointed out that the will as drawn up is to his interest. He had taken settlement of a good quantity of land from Mrinalini at a very favourable rent (Ex. B not printed) and the settlement was liable to be challenged if there was no will on those terms, but would be pucca if the will was established. Of the attesting witnesses who are dead, we do not know of their exact position in life or of their connexion with Nanigopal, but the fact remains that there were many respectable neighbours, some of them co-sharers of Phani, who took an interest in him and visited him during his last illness, but none of them appears as attesting witnesses or witnesses in the case. The will is written on cartridge paper. We have already noticed the fact that there is no signature of the testator at the bottom of the last page. Moni Mohan's evidence is that the will was fair copied, signed by the testator and attested by the witnesses at the same sitting. But the will indicates that the ink of the testator's signature on both the sheets have a different shade and colour from the ink of the body of the will and of the attesting witnesses' signatures. This patent fact is not explained on Moni Mohan's evidence. It is a loose practice, but still a widely prevalent practice in Bengal, for blank cartridge papers to be signed at the top corner for use in Courts when to be required, for vakalatnamas and plaints and written statements - and it is suggested by the respondent's advocate that it may be that two such papers signed in blank, by Phani were got hold of and utilized for the will after Phani's death. Although the evidence is strong enough to lead us to the definite finding that the will propounded is a document forged long after Phani's death, we are of opinion that the propounders have not been able to prove the will. We cannot rely on any of the witnesses produced by them. The result is that this appeal is dis. missed with costs to be paid by the appellants personally and not out of the estate. Hearing fee 5 gold mohurs. Cross-objection is dismissed without costs.

Latifur Rahman, J.

7. In this case I have had the advantage of reading the judgment just delivered by my learned brother and I have very little to add. I desire only to point out that the burden of proving the will in solemn form is cast upon the propounders, and in view of the fact that an unregistered will is sought to be propounded after the lapse of more than 20 years, it is required that all manner of doubt and suspicion which are likely to arise should be removed by them. Having regard to the unsatisfactory nature of the evidence that has been adduced and the discrepancies in them they are bound to excite the suspicion of any probate Court, and unless such suspicions are removed, no probate can be granted. I am supported in this view by a decision of their Lordships of the Judicial Committee in Vellaswamy Servai v. Sivaram Servai where Sir Binod Mitter formulated the proposition in the following terms:

Circumstances exist in this case that would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great vigilance and scrutiny, and the respondent is not entitled to probate unless the evidence removes such suspicion and clearly proves that the testator approved of the will.

8. In the present case we have given our anxious consideration and scrutinized the evidence with care, and we are not prepared to hold that the appellants have removed our doubts and suspicions and have convinced us that the will is a genuine one. Although the evidence seeks to establish that the body of the will was written and the testator signed it at one sitting, yet the varying colour of the ink is a suspicious circumstance and a significant fact. The evidence that has been adduced explaining the circumstance is utterly untrustworthy. In this connexion I may refer to the case in Ram Gopal v. Aipna Kunwar (1922) 9 A.I.R. P.C. 366 where their Lordships of the Judicial Committee observe as follows:

A will is one of the most solemn documents known to the law. By it a dead man entrusts to the living the carrying out of his wishes and as it is impossible that he can be called either to deny his signature or to explain the circumstances in which it was attached, it is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law. In the present instance no formalities are essential. Proof of the testator's signature is all that is needed; but, in case of doubt or dispute, justice requires that the best evidence procurable of that signature should be furnished and an attempt to support the signature by anything that falls short of this standard is a matter which, though it may not be fatal, is a serious defect.

9. Although in the present case, the evidence is strong enough to lead us to the conclusion that the will is a forgery, it will' be sufficient for the purpose if we find, which we accordingly do, that the propounders have not been able to prove the will. I may refer to the case in Baikuntha Nath v. Prasannamoyee Debya (1922) 9 A.I.R. P.C. 409 where their Lordships of the Judicial Committee held as follows:

The burden of proving the will is on the person who sets it up and it would have been enough for the purpose of this case to find, as their Lordships hold to be the case, that the alleged will was not proved.

10. I agree that this appeal should be dismissed with costs.

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