Calcutta High Court
On The Death Of Aamal Dasgupta, Ashok ... vs Dwijendra Lal Dasgupta And Others on 21 April, 1992
Equivalent citations: AIR1992CAL341, AIR 1992 CALCUTTA 341
ORDER Sunil Kumar Guin, J.
1. This appeal is directed against the judgment and decree passed by the learned Additional District Judge, 5th Court, Alipore on 14-8-80 in Original Suit No. 7 of 1977 whereby he decreed the suit and directed grant of probate with a copy of the will annexed.
2. The short question that arises for determination in this appeal is that whether the testatrix Priyambada Dasgupta revoked her will dated 15-7-65 Ext. 3 by means of a registered deed of revocation dated 2-4-66 Ext. H. If this question is answered in the affirmative then the appeal will succeed and grant of probate as has been made by the learned Addl. District Judge will be set aside, because there cannot be any grant of probate in respect of a will which had already been revoked by the testator or the testatrix. If the question is answered in the negative then there can be no manner of doubt that this appeal will fail as no other contention has been raised in this appeal on behalf of the appellants.
3. Priyambada Dasgupta the mother of the defendant No. 1 Niradendu Dasgupta and defendant No. 2 Amal Dasgupta and the grant-mother of the plaintiff and other defendants namely, Ajoy Dasgupta and Sanjoy Dasgupta made a will on 15-7-65 Ext. 3. By this will she appears to have given all her properties to the propounder and his two brothers namely, Ajoy Dasgupta and Sanjoy Dasgupta to the exclusion of her sons, daughter and other grand-sons. She also appears to have revoked the said will on 2-4-66 by a registered deed of revocation Ext. H and she died on 20-8-68. About eight years after the death of the testatrix i.e. on 18-11-76 the present plaintiff filed the instant petition for grant of probate on the ground that the will in question was her last will under which he was appointed the sole executor. Defendant Amal Dasgupta who is the appellant here resisted grant of probate contending that the will in question was not duly executed by the testatrix and legally attested by the witnesses, that the will in question had already been revoked by the testatrix by means of a registered deed of revocation dated 2-4-66 and that proceeding was not maintainable in absence of special citation upon the other legal heirs of the testatrix. The learned triai Judge by his judgment appealed against appears to have rejected all the contentions raised on behalf of the defendant Amal Dasgupta and found that the will in question was duly executed by the testatrix and was legally attested by the attesting witness and that deed of revocation was not executed by the testatrix Priyambada Dasgupta. With these findings, he decreed the suit and directed grant of probate with a copy of will annexed.
4. Being aggrieved defendant No. 2 Amal Dasgupta has preferred this appeal challenging the aforesaid finding of the learned trial Judge. But at the time of hearing Mr. S. P. Roy Chaudhury, learned Advocate appearing for the appellant has frankly conceded ihat since his client approved the draft of the will and signed the same as an attesting witness, he will not challenge the finding of the learned trial Judge that the will in question was duly executed by the testatrix and was legally attested by the attesting witnesses. He, however, has contended that as the testatrix had already revoked the will by means of registered deed of revocation dated 2-4-66, the learned trial Judge was not at all justified in granting probate in respect of a will that has already been revoked and that the finding of the learned trial Judge that the deed of revocation was not executed by Priyambada Dasgupta is erroneous and should be set aside. Mr. Sumit Chawdhury learned advocate appearing for the respondent No. 1 has on the other hand, contended that the learned trial Judge was justified in holding that the deed of revocation Ext. H was not executed by the testatrix and that the learned trial Judge was justified in granting probate as he did in the instant case. He has also argued that the revocation of an unprivileged wilt is an act only a little less solemn than the making of the will itself and has to comply with the statutory requirements contained in S. 70 of the Indian Succession Act. He has further argued that the execution of the said deed of revocation is shrouded with some suspicious circumstances and that unless the party that sets up deed of revocation offers a cogent and convincing explanation of such suspicious circumstances, the said deed cannot and should not be relied and acted upon. In support of his contention he has referred to and relied upon the decision of the Supreme Court in the case of Smt. Jaswant Kaur v. Smt. Amrit Kaur .
5. Though the will in question Ext. 3 executed by the testatrix was not registered, still the deed of revocation Ext. H was registered by the testatrix and she purported thereby to revoke the will in its entirety. The propounder appears to have contended before the trial Judge that the said deed of revocation was not duly executed by the testatrix. The learned trial Judge in his judgment has held that the said deed of revocation was not executed by the testatrix. The said deed of revocation Ext. H was placed before ihe learned trial Judge for consideration. From the record it appears that the said deed was admitted in evidence on admission and at least without any objection from the other side. In a case of P.C. Purushothama Reddia v. S. Perumal , the Supreme Court has held that it is not open to a parly to object to the admissibility of the documents which are marked as Exhibits without any objection from such party and that once a document is properly admitted, the conlents of that document are also admitted in evidence though those contents may not be conclusive evidence. So, in view of the aforesaid decision of the Supreme Court, it does not lie in the mouth of the propounder to say that the document was not executed by the testatrix after the said document had been admitted in evidence without any objection from him. The said document goes to show that it was executed by the testatrix. However, the contents of the said documents are not a conclusive evidence. So let us see whether the propounder has adduced any other evidence to show that the said deed was not executed by the testatrix. Hardly there is any evidence on record to indicate that it was not executed by the testatrix. Evidence on record, on the other hand, shows that the said deed was executed _by the testatrix, it has been observed by the Supreme Court in the case of Smt. Jaswant Kaur v. Smt. Amrit Kaur (Supra), that the revocation of an un- privileged will is an act only a little less solemn than the making of the will-itself and has to comply with statutory requirements contained in S. 70 of the Indian Succession Act. S. 70 inter alia provides that no unprivileged will shall be revoked otherwise than by marriage or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some persons in his presence or by his direction with the intention of revoking the same. In the instant case the testatrix purported to have revoked the will by executing a deed of revocation. As such, such deed is to be executed in the same manner as prescribed for execution of an unprivileged will under S. 63 of the Succession Act. Section 63 prescribes the following rules:
a) the testator shall sign or shall affix his mark to the will, or it shall be signed by some other persons in his presence and by his direction.
b) The signature or the mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
c) The will shall be attested by two or more persons, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of the such other persons; and. each of the witnesses shall sign the will in presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
6. Thus it is clear that deed of revocation as contemplated in S. 70 is to be executed in the same manner as has been prescribed for execution of the will. It is the requirement of the law that such deed of revocation is to be attested by the attesting witnesses. Section 68 of the Indian Evidence Act enjoins that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. So to prove the execution of the deed of revocation, the contesting defendant was required to call at least one attesting witness for the purpose of proving the execution which was denied by the propounder. In our opinion that requirement has been fulfilled and the contesting defendant produced at least one attesting witness (D.W. 1) who is also the scribe of the deed. Now let us see whether this witness has been able to prove execution and attestation of the deed of revocation Ext. H. He has deposed to the effect that he wrote out the deed of revocation and read over its contents to the executant who signed it. He has also said that witnesses including himself were present when Priyambada signed the deed, that attesting witnesses signed the deed after Priyambada had signed it and that she was present at that time. So evidence of this witness D.W. 1 unmistakably shows that the deed of revocation was executed by Priyambada Dasgupta and was duly attested by the attesting witnesses. We. see no reason to discard the evidence of this witness.
7. The learned advocate for the respondent has argued that the execution of the deed of revocation is shrouded with suspicious circumstances and that unless such suspicious circumstances are explained, the party who sets up the said deed cannot rely and act upon it and take advantage of such document,specially in view of the fact that revocation ofan unprivileged will is an act only a little less solemn than the making of will itself. According to him suspicious circumstances are that no relation of the testatrix accompanied her to the scribe or was present at the time of execution of the deed, that Amaresh Das who introduced the testatrix to the scribe has not been examined, that though there were four attesting witnesses only one of them has been examined and that alleged ill-treatment or misbehaviour by the propounder towards the testatrix has not been proved. But having regard to the facts and circumstances of the case and also the evidence on record we are ofthe opinion that those circumstances are not such as to excite suspicion about the execution of the deed of revocation Ext. H. It is true that at the time of execution of the deed of revocation the testatrix was very old. But it is nobody's case that she was not physically fit or mentally alert at the time of execution of the deed of revocation. So she did not think it necessary to take any relation with her for independent advice when she had been to the scribe or when she executed the deed. Evidence on record discloses that one Amaresh Das simply introduced her to the scribe. Non-examination of such a person who simply introduced the testatrix to the scribe cannot be looked down upon with suspicion. It is true that there were four attesting witnesses including the scribe. Law requires that execution of such deed can be proved by calling at least one attesting witness for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. This, requirement has been fulfilled and the scribe who is also the attesting witness in this case is D.W. I and he has proved execution and attestation of the said deed of revocation. In such circumstances examination of the remaining attesting witness was not at all necessary and such non-examination of the remaining attesting witness, in our opinion, does not excite any suspicion about the execution of the deed. It is true that the contesting defendant did not. adduce any evidence to prove the alleged ill-treatment or misbehavi- our by the propounder and his. brothers towards the testatrix. But that is not the only ground, for revocation of the will. It has been specifically stated in the deed of revocation Ext. H that the testatrix did not execute the will out of her free will and thatlhe executed it being persuaded and influenced by the pro-pounder and his brother. It has, of. course, been stated that after execution of the will the said grand-sons of the testatrix misbehaved with her. So for all these reasons and also to avoid future trouble the testatrix revoked the will in its entirety. The testatrix is no more in the land of living. Her statement as made in the deed of revocation in our opinion is sufficient for the purpose of the present case. We hold that the execution of the deed of revocation Ext. H is not shrouded with suspicious circumstances as has been contended by the learned advocate for the! respondent.
8. There are other circumstances which would lend support to the appellant's case that the testatrix had already revoked her will Ext. 3. The will was executed on 15-7-65 and the deed of revocation was executed on 2-4-66. It is also riot disputed that the testatrix died on 20-8-68. It has been admitted by the propounder that after execution of the will, it remained in his custody. Though the testatrix died on 20-8-68 still the propounder having the will in his custody remained silent over the will for about eight years and filed the instant petition for grant of probate only on 18-11-76. The propounder (P.W. 3) has stated in his evidence that he had no reason as to why he did not file the petition for probate till 1976. So this unusual delay in filing the petition for probate in the facts and circumstances of the case lends support to the appellant's case that the will in question had already been revoked. As otherwise the propounder having the will in his custody would have filed the petition for probate soon after the death of the testatrix. The propounder appears to have written a letter on 8-11-67 to J.'N. Bhattacharjee and given a copy of the same to the contesting defendant. Copy of such letter has been marked as Ext., C wherein the propounder appears to have claimed that Priyambada took a loan of Rs. 4,500/- from him against the property and put him in possession thereof with an agreement to sell the same to him. There is no whisper in this . letter that 'Priya'mbada executed a will in respect of the said property though the will was admittedly in his possession. This letter, therefore, undoubtedly lends support to the appellant's case that the testatrix had already revoked the will. In a letter dated 1-8-72 Ext. E written by the propounder to his father, admitted that he was a tenant in respect of the southern portion of the house at 13, Anjuman Ara Begum Road under the present appellant. By the disputed will Priyambada purported to bequeath this property in favour of the propounder and his brother. But in this tetter written long after the death of the testatrix, the propounder did not claim that the said property was bequeathed to him by virtue of the will. So, this letter also lends support to the appellant's case of revocation of will. So having considered the evidnce and circumstances as discussed above, we hold in disagreement with the learned trial Judge that the disputed will had already been revoked by the testatrix by registered deed of revocation dated 2-4-66. As the said will had already been revoked the learned trial Judge was not justified in granting probate in respect of the same.
9. In the result, appeal is allowed. The judgment and decree whereby the learned trial Judge directed grant of probate are hereby set aside. The Original Suit No. 7 of 1977 is dismissed. We make no order as to costs.
10. Appeal allowed.