Calcutta High Court (Appellete Side)
Prabir Roy In Place Of Sukti Sanyal ... vs Amit Kumar Roy & Ors on 16 July, 2025
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Smita Das De
FAT 241 of 2012
Prabir Roy in place of Sukti Sanyal (since deceased)
Versus
Amit Kumar Roy & Ors.
For the Appellant : Mr. Ajoy Krishna Chatterjee , Sr. Adv.
Mrs. Shohini Chakraborty, Adv.
Mr. Arijit Sarkar, Adv.
For the respondents : Mr. Gopal Chandra Ghosh, Sr. Adv.
Mr. Rajkrishna Mondal, Adv.
Mr. Sunandana Saha, Adv.
Heard on : 17th June, 2025
Judgment on : 16th July, 2025
Soumen Sen, J :
1. The true nature and purport of a document described as a Will of one Smt. Meghamala Roy (hereinafter referred to as a "testatrix'') is the issue to be decided in this appeal. The appellant, Sukti Sanyal is the executrix of the last Will and testament of the testatrix. The appellant was appointed as one of the members of the Advisory Committee by the testatrix in the said Will. Prabir Roy was another member of the Advisory Committee.
2. In view of the death of Smt. Sukti Sanyal during the pendency of the appeal, Prabir Roy was substituted in her place by the order dated 2nd 2 September 2024 rejecting the objection of the respondents inter alia on the following reasoning:
"5. This Court has carefully considered the rival submissions advanced by the parties. This Court is of the clear and unequivocal view that the applicant Probir Roy before this Court is but a member of a proposed committee who was to act as an advisor to the Trust created by the settler/husband of the testatrix. The applicant before this Court is only coming on record to pursue the appeal to ensure that the interest of the beneficiary of the trust created by the husband of the testatrix is duly protected. There is no conflict of interest between the applicant before this Court and the actual beneficiary."
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10. Since the sole executrix under the Will in question has died during the pendency of this appeal, the appeal shall be treated as one, challenging refusal to grant letters of administration instead of the probate as was refused by the Court below. The amendments proposed in the schedule to the application for amendments being CAN 10 of 2023 is allowed."
3. The learned Single Judge dismissed the probate proceeding on the ground that there is no bequeath of any of the properties by the testatrix and accordingly, there is no bequest in favour of the beneficiaries. The Will only refers to the constitution of an Advisory Committee and provides the line of Succession to the office of the trustees.
4. This order is under challenge.
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5. Before we advert to the argument made on behalf of the respective parties we may briefly indicate the background facts for proper appreciation. The testatrix is the wife of the Shri Biren Roy, a famous industrialist. Mr. Roy was known for his charitable and philanthropic activities and during his lifetime he has created the trust by a name of Biren Roy Charitable Trust in which he was the settler. The trust contains various movable and immovable properties and also a line of Succession. However, the said trust deed provides that after the death of Shri Biren Roy, his wife namely the testatrix would be the sole trustee of the said trust. Consequently, upon the death of Shri Biren Roy, the testatrix became the sole trustee of the said trust. Thereafter, due to her old age she decided to create a Will for certain philanthropic purposes namely creation of a medical unit and a memorial library in the name of her late son Ronjon Roy.
6. In the Will she has referred to the purpose of the creation of the said medical unit which will cater to the needs of the residents of Behala and the public at large would be the beneficiary. She appears to have been influenced by her husband and dedicated her life for public and charitable cause. She has appointed one Smt. Sukti Sanyal as the executrix of the said Will.
7. The testatrix during her lifetime, after the execution of the Will registered the Will on commission and the registered Will was exhibited in the proceeding.
8. The present substituted appellant is a member of the proposed committee to administer to estate left behind by the husband of the 4 testatrix as would appear from the order dated 2nd September, 2024 mentioned aforesaid. The probate proceeding is contested by Shri Samaren Roy, Smt. Susama Mukherjee and Smt. Anima Banerjee. However, during the pendency of the probate proceeding, Shri Samaran Roy died leaving behind legal heirs and representative namely Amit Kumar Roy, Ashim Kumar Roy and Aditi Mukhopadhaya. The written statement was filed by Amit Kumar Roy on behalf of himself and defendant numbers 2 and 3. Amit Kumar Roy is the son of the brother-in-law of the testatrix. In the written statement it is alleged that the execution of the Will is surrounded by suspicious circumstances. A registered deed of declaration executed by the testatrix would show that the said deed of declaration was prepared by Shri Anup Sharma, Advocate and Mallika Bhattacharya Advocate, and Natabor Chaudhuri was named as one of the witnesses. Shri Arun Sanyal during his life time was the Advocate of Smt. Sukti Sanyal, the executrix. In the alleged Will it will appear that Mallika Bhattacharya was named as a witness and it was purportedly drafted by Sribir Nag, advocate 'of the same group of Arun Sanyal'. In the deed of declaration of 13th November, 1999 allegations have been made against Shri Tapas Kumar Ghosh but curiously the testatrix allowed Shri Tapas Kumar Ghosh to continue to act as secretary of Biren Roy Trust for about three years and allowed Shri Tapas Kumar Ghosh to look after the personal work of the testatrix till her death. In 1996, the testatrix by a registered deed cancelled the deed of 1994 regarding the appointment of the official trustee, Government of West Bengal. The persons upon 5 whom the testatrix had no faith became the trustee in the impugned Will. The alleged Will shows that the executrix had a personal interest and she was named as a member of the Advisory Committee of Biren Roy Trust. The executrix and Shri Probir Roy have been made members of the Advisory Committee for generations to come. In view of the fact that the executrix has taken a prominent role in the matter of preparation, execution and registration of the impugned Will and she has denied much interest for herself. The alleged Will apart from the fact is a product of undue influence and the probate proceeding should be dismissed. However, it does not appear from the said objection that there has been no Will in the true sense of the term was at all alleged.
9. Mr. Ajoy Krishna Chatterjee, the learned Senior Counsel appearing on behalf of the petitioner has submitted that the learned Single Judge has only decided the issue with regard to the proper bequest and did not address the other issues however, both the issues may be heard in this appeal as the appellate court has the power to decide all the issues in the probate proceeding.
10. Mr. Chatterjee has submitted that the Will was true in accordance with Section 63(c) of the Indian Succession Act, 1925. The Will has been attested by two witnesses each of whom has seen the testatrix signing and they have signed in presence and by the direction of the testatrix. Each of them has signed the Will in presence of the testatrix.
11. In this regard he has relied upon the deposition of the attesting witnesses who were present at the time of execution of the Will. 6
12. It is submitted that Dr. Saibal Dasgupta was the family's physician and he has clearly stated in his evidence that he had signed the Will in presence of the testatrix. He was informed by testatrix that the Will would be registered. He has duly identified the last Will and testament of the testatrix. The signature of the testatrix and his own signature was duly identified and marked as Exbt.1/1 and 1/2, the registered Will was marked as Exbt.1 subject to objection. Dr. Dasgupta has stated on oath that at the time of making the Will, the testatrix was physically fit and mentally alert. He has also deposed that Meghamala Roy executed another Will on 16th January, 2000 in which he was also one of the attesting witnesses along with Mallika Bhattacharya and Promod Kumar Mukerjee who were also the attesting witnesses in the present case. The Will was executed between 11 and 11.30 a.m. on 16th January, 2000.
13. Mr. Chatterjee has contended, with reference to the testimony of PW1, that minor inconsistencies in evidence do not, by themselves, render a witness unreliable or impeach their overall credibility. He has placed reliance on the decision of the Hon'ble Calcutta High Court in Birendranath Paul @ Barendra Krishna Paul & Anr. v. Sri. Sankar Paul @ Kali Krishna Paul1, which in turn relied on the decision of the Hon'ble Supreme Court in Mahesh Dattatray Tirthankara v. State of Maharashtra 2, to argue that so long as the core of a witness's testimony remains consistent and trustworthy, 1 2015 SCC OnLine Cal 1436 2 (2009) 11 SCC 141 7 minor discrepancies should not weigh against the witness's reliability. Dr. Dasgupta has specifically stated that Meghamala Roy was physically fit and mentally alert at the time of making the Will. As per the provision of law, the evidence of PW1, Dr. Dasgupta is enough for proving the will, if not the genuineness of the Will.
14. It is submitted that the typist has in his deposition stated that he is a typist of Alipore Judges' Court and he knows Sribir Nag, Advocate who practiced in the Alipore Court. He duly identified the signature of Sribir Nag. He has also typed many documents and petitions for Sribir Nag. The English words 'incorporeal right' was typed by him. He is working as a typist since 1994 and has typed many Wills.
15. Mr. Chatterjee has submitted that the PW3, Pradip Mondol is the person who has put the dates in the 3rd Page of the Will in Bengali script. He has duly identified his writing. He has deposed that he has put the date in the Will as 27th January, marked as Exbt.1/7 and 12 Magh the corresponding Bengali date marked as Exbt.1/8. He has put in his own handwriting the dates in the last page of the Will immediately before the signature of the testatrix in English. At the time of putting the signature, the signature of the testatrix was already there in page 1 and 2.
16. He was present during the time of registration. On one Wednesday, presumably when he visited the residence of the testatrix he was informed by the executrix to come on the next day that is 27th January by 5.30 p.m. and after he arrived, he was directed to escort the visitors in her upstairs' sitting room. The PW 3, Pradip Mondol has duly 8 identified the thumb impression of Meghamala Roy and his signature on the reverse of the first page of the registered Will.
17. Mr. Chatterjee has submitted that the filling up of the dates at the time of registration has been duly proved by PW 3. Moreover, he has also identified the thumb impression of testatrix. Smt. Sukti Sanyal the executrix in her evidence has stated that in her presence and the presence of the registering authorities the testatrix put her signature at the right hand side top corner of pages 1 and 2 of the Will and she duly identified the signature of the testatrix whom she use to address as Boro ma. On the instruction of the Registrar, Boro Ma called someone to identify the thumb impression. The registrar instructed Boro Ma to put the registration date at the blank portion of the last page of the Will mentioning the English date of the month as well as the corresponding Bengali date and month. Then Boro Ma called up Pradip Mondal, PW 3 who was waiting at the hall to fill up the blank portion at the last page of the Will mentioning the English date and month as well as the Bengali date and month and as per her instruction Shri Mondol filled up the English date and month of the registration corresponding to the Bengali date and month in Bengali alphabet in presence of the testatrix and the registering authority. The testatrix further instructed Shri Mondal to identify her thumb impression put on the reverse side of the first page of the Will in presence of the Registrar and thereafter, the testatrix put her thumb impression in presence of the Registrar on the reverse of the first page of the Will and it was identified by Shri Mondal. It was upon 9 completion of all such formalities the registering authority put his endorsement of the said Will. Smt. Sanyal, the executrix then refers to the Will executed on 16th January, 2000 and registered on 27th January, 2000. It is submitted that during her lifetime the testatrix expressed her wish to handover the said Will to the then Chief Minister of West Bengal, Shri Jyoti Basu who was a close friend of Shri Biren Roy and on her request Shri Jyoti Basu came to her residence to accept the Will from her. The entire thing happened in presence of close relatives of late Biren Roy and other respectable people. Sometimes in February, 2000 Shri Jyoti Basu along with the Law Minister Shri Nishit Adhikari visited the residence of the testatrix when the testatrix handed over the abovementioned Will to Shri Jyoti Basu for safe keeping with the Government in the presence of most of the paternal relative of the executrix such as Shri Romen Roy, Shri Samaren Roy and Shri Prabir Roy amongst many other distinguished people of Behala. The pictures of handing over of the Will were disclosed along with the negatives which have been marked as Exbt.4/1 to 4/12 and Exbt.5/1 to 5/13 respectively. It is submitted that the Will has not come from the custody of the executrix as in her cross examination she has clearly stated that she is unable to say who ultimately took delivery of the Will from the registering authority after registration.
18. Mr. Chatterjee has submitted that Amit Roy was unable to substantiate the allegations of undue influence of the executrix or any other person in connection with the execution of the alleged Will. Mr. 10 Chatterjee has referred to the chief and cross examination of the Shri Amit Roy to show he has admitted that he has no document to show that Arun Kumar Sanyal or Sukti Sanyal or Mallika Bhattacharya or any other persons had exercised any undue influence on the testatrix.
19. Mr. Chatterjee submitted that in his cross-examination Mr. Roy has clearly stated that except Shri Roy no other defendants have filed a written statement and the case only contested by Shri Roy and not any of the other defendants although he named two witnesses as possible witnesses to depose in his favour but none produced.
20. Mr. Chatterjee has referred to paragraph 6 and 9 of the affidavit in chief and the deposition of Shri Roy in his cross examination to show that Shri Roy has admitted that he is unable to substantiate his specific allegation made in paragraphs 6 and 9 with regard to the involvement of any other persons who he named in those two paragraphs claimed to have exercised undue influence upon the testatrix.
21. Mr. Chatterjee submits that the probate court is required to read the Will in order to understand the intention of the testatrix and to find out the true intention of the testatrix in case of any doubt. It is submitted that in the second page of the Will she has clearly stated that in the three storied building situated in the south of her residential house a medical unit should be established and in the northern portion in the hall a memorial library in the name of her late son Ranjan Roy should be established. These are clear indication of 11 intention to make a bequeath in respect of the said property which is to be given affect after her death.
22. Mr. Chatterjee has also relied upon Section 77 of the Indian Succession Act, 1925 for the purpose of construction of the Will of the testatrix. It is submitted that the words mentioned in the said few sentences in the second page of the Will is a clear reflection of the desired intention of the testatrix to bequeath the property for charitable and other purposes. It is further submitted that Will will not show that any bequeath was made in favour of executrix or any of the member of the Advisory Committee mentioned in Will and it was clearly charitable purpose and the public at large would be the beneficiary.
23. Mr. Chatterjee has submitted that Wills are not required to be compulsorily registered as held in Ishwardeo Narain Singh Vs. Kamta Devi & Ors.3. Moreover, the question whether particular request is good or bad is not within the purview of the probate court. The court of probate is only concerned with the due execution of the Will in accordance with Section 66(c) of the Indian Succession Act.
24. Mr. Chatterjee submits that in a matter of proving a Will the court has to consider two aspects: firstly, that the Will was executed by the testator and secondly, that it was the last Will executed by the testator. It is not required to be proved with mathematical accuracy but the test or satisfaction of the prudent mind has to be applied while deciding the genuinity of the Will if raised or even otherwise as 3 (1953) 1SCC 295 12 observed by the Hon'ble Supreme Court in a recent decision in Gopal Krishan & Ors. Vs. Daulat Ram & Ors.4, paragraph 15.
25. In referring to the decision on which the learned Trial Court has relied upon to nullify that there is no bequest Mr. Chatterjee has referred to the decision of Mathai Samuel & Ors. Vs. Eapen Eapen (Dead) by Lrs. & Ors.5, to argue that the learned Single Judge has completely misconstrued the Will as the impugned order has over looked the legal declaration of the intention of the testator with respect to her property as mentioned in the second page of the Will in relation to the medical unit and the library. The said argument is made on an assumption that if the line of succession to the trust of Biren Roy or composition of the Advisory Committee is found to be contrary to law that would not be a factor to declare the Will invalid. The primary rule of construction of the document would be to find out the intention of the executor of the document which must be found in the words used in the document.
26. Mr. Chatterjee has argued that a registered document should be accepted as genuine unless contrary is proved. The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole. In construing the Will, the Court is entitled to put itself in the testator's armchair and is bound to bear in mind also other matters than merely the words used like the surrounding circumstances, the position of the testator, his 4 (2025) 2 SCC 804 5 (2012) 13 SCC 80 13 family, relationship, etc. To buttress this argument, Mr. Chatterjee placed reliance to Sri Birendranath Paul @ Birendra Krishna Paul & Anr. v. Sri Sankar Paul @ Kali Krishna Paul6 paragraphs 18- 20,25,29,32,34 and 37.
27. Per contra, Mr. Gopal Chandra Ghosh, the learned senior counsel appearing on behalf of the defendants, has submitted that the finding of the learned Additional District Judge is well founded in reason and need not be interfered with by way of the instant Appeal. The probate proceeding is not maintainable as held by the Learned Additional District Judge, who has rightly decided to it not necessary to discuss the other issues framed in the suit.
28. It is further submitted that in paragraph 2 at page 2 of the Will, Meghamala Roy has clarified her consciousness about her right to appoint the next Trustee, where such right is incorporeal right and has no market value. Mr. Ghosh has referred to paragraph 4 at page 6 of the paper book in the application for probate, where the executrix has reiterated the recital of the Will, while stating that "the Will relates only to appointment of Trustee which is not a property". Further, in paragraph 5 in the same page of the paper book, the executrix has stated that the Will does not relate to any property but relates to an office and duties regarding the Trust.
29. Therefore, Mr. Ghosh submits that the petitioner has misinterpreted the recital in paragraph 2 of page 2 of the Will by stating that the Testatrix has bequeathed the 3 storied building on the southern side 6 (2016) 3 WBLR (Cal) 640 14 of her residential house and a hall on the northern side in favour of the official Trustee, successfully fulfilling all conditions under Section 2(h) of the Indian Succession Act, 1925.
30. Mr. Ghosh has placed reliance on paragraph 10 of the decision rendered by the Hon'ble Supreme Court in Provash Chandra Dalui & Anr. v. Bishwanath Banerjee & Anr.7, to contend that the interpretation of any deed or written instrument must be derived not merely from its textual phrasing but from the entire context in which it was executed. He submits that the construction of the document in question ought to be guided by its underlying object and purpose, as reflected by the document in its entirety. Relying on the said decision, it is argued that it would be inappropriate to interpret individual clauses in a vacuum. Instead, the true meaning must be ascertained by reading the instrument as a whole, taking into account what precedes and what follows. This approach ensures that the intention of the parties is not distorted by placing undue emphasis on a particular phrase or clause divorced from the broader context.
31. Mr. Ghosh has submitted that the Trusteeship cannot be bequeathed. In this regard reliance has been placed on the following decisions:
i. S Rathinam v. L.S. Mariappan8;
ii. Sri Mahalinga Thambiran Swamigal v. His Holiness Srila Kasibasi Arulnandi Thambiran Swamigal 9;
iii. Jagganatha Bheema Deo v. Kunja Behari Deo 10;7
1989 Supp (1) SCC 487 8 (2007) 6 SCC 724 9 AIR 1974 SC 199: (1974) 1 SCC 150 15 iv. Ram Nath Das v. Ram Nagina Choubey & Ors. 11, v. Uma Charan Bose v. Rakhal Das Ray 12 .
32. It is also submitted that the so-called Will is shrouded by suspicion and cannot be probated. Three instances of suspicion have been argued. First, the evidence regarding the date of execution and attestation is contrary to the recital at the last paragraph of the Will which is the statement of the testatrix herself and appears in the document duly signed. Mr. Ghosh, referring to Section 92 of the Evidence Act, submits that such oral testimony cannot be admitted based on oral evidence. It is further argued that considering the provisions of Section 47 of the Registration Act, if the Will was executed on 16th January 2000 then the date of the Will is to be regarded as 16th January 2000 and not 27th January 2000 which the propounder has failed to clarify.
33. Second, the Will is surrounded by suspicious circumstances, particularly regarding the constitution of the advisory committee. As per the second page, paragraph 2 of the Will, Smt. Sukti Sanyal and Prabir Roy, daughter and son of Sri Ramen Roy, were named as members of the advisory committee for the Biren Roy Trust. This is wholly inconsistent with the known conduct of the testatrix. The language of the recital suggests that this appointment was operative in the present and not for future.
10 AIR 1992 PC 162(2) 11 AIR. 1962 Pat 481 12 AIR 1927 Cal 756 16
34. However, subsequent conduct of the testatrix reveals a different arrangement. Exhibit 10 records the formation of a committee for the Biren Roy Cultural Centre and Ronjon Memorial Library, from which both Sukti Sanyal and Probir Roy were conspicuously excluded. Instead, another brother of Late Biren Roy was inducted as a member. This directly contradicts the earlier arrangement mentioned in the Will.
35. It is further argued that from the record it appears evident that there existed strained relations between Biren Roy and his brother Ramen Roy and his children, Sukti Sanyal and Probir Roy, making their inclusion in the advisory committee suspicious.
36. Third, the petitioner has alleged in the plaint that after execution of the Will, the said Will was handed over to Jyoti Basu, the then Chief Minister of West Bengal for keeping it with the Government of West Bengal and producing it when required although, from the judgement of the learned Additional District Judge, it appears that the Will was produced from the custody of the executrix and not the Judicial Department of government of West Bengal.
37. Mr. Ghosh argues that the Will appears to have been created by Sukti Sanyal for her own interest and out of envy against the other members of Biren Roy Trust and Meghamala Roy's family, with full understanding that in the view of the provisions made in the original deed of trust none of the family members would be personally benefitted by the said Deed of Trust.
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38. Mr. Ghosh has relied on Rama Dutta & Ors. v. Atanu Dutta13;
wherein the Calcutta High Court has held that in case of a suspicious circumstance, the probate Court has to find reasonable answers to three points - was there due execution and attestation, did the testator have sufficient mental capacity and health and did the testator make the Will on his own volition as his last Will and Testament. The answers to these questions must be in affirmative and as per Court's conscience.
39. Mr. Ghosh argues that a Will that contains unusual features or is executed under suspicious circumstances must undergo careful judicial scrutiny. The court assesses the Will based on the cumulative impact of all such irregularities rather than focusing on any single factor. The final decision depends on a holistic evaluation of the overall circumstances, as consistently emphasized in prior judgments of the Court as observed by the Supreme Court in Leela Rajagopal v. Kamala Menon Cocharan14, paragraph 13.
40. Mr. Ghosh strenuously submits that a Will must prove that the testator signed it voluntarily, in a sound and disposing state of mind, fully understanding its contents. If the supporting evidence is credible, disinterested, and adequate, the Court may accept the Will. However, if the Will is surrounded by suspicious circumstances such as a doubtful or shaky signature, questionable mental capacity, or unnatural dispositions, the propounder bears a heavier burden to 13 1998 SCC OnLine Cal 253(1999) 1 CHN 35: (1998) 2 CWN 515 14 (2014) 15 SCC 570: (2015) 4 SCC (Civ) 267 : 2014 SCC OnLine SC 685 18 dispel all legitimate doubts through cogent and convincing evidence. Even without specific allegations of fraud or coercion, the presence of such suspicious elements necessitates thorough scrutiny before the Will can be accepted as genuine as held by the Supreme Court in H. Venkatachala v. B.N. Thimmajamma15 relied in Bharpur Singh v. Shamsher Singh16, paragraph 16.
41. To buttress his arguments on suspicious circumstances, Mr. Ghosh also placed reliance on the case of Moyna Bhattacharjee v. Ashim Kumar Bhattacharjee, 2022 SCC OnLine Cal 2555.
42. Mr. Chatterjee has sought to rebut the precedents cited by Mr. Ghosh.
It is his contention that the decisions in Sri Mahalinga Thambiran Swamigal (supra), Jagganatha Bheema Deo (supra), Ram Nath Das (supra), and Uma Charan Bose (supra) have no application to the present case. According to Mr. Chatterjee, all of those cases pertain to situations where there was no testamentary disposition. In the present case, however, the testatrix not only nominated a successor trustee but also made a specific bequest of a building. The building in which the proposed medical centre and library were directed to be established did not form part of the properties settled under the Trust. The said building is identifiable, as the Will explicitly describes it as being located to the south of the testatrix's residential house. It is undisputed that the testatrix resided at 3, Sourin Roy Road, P.S. Behala, as recorded in the Will itself. From the schedule to the Trust 15 AIR 1959 SC 443 16 (2009) 3 SCC 687: (2009) 1 SCC (Civ) 934: 2008 SCC OnLine SC 1867 19 Deed at page 127, it is evident that the building in question is not included among the Trust properties. Furthermore, the three-storied building listed as property no. 4 is clearly a separate property, distinguishable by its address and the jurisdiction of the police station under which it falls. The Will also specifies the purpose of the bequest and identifies the intended beneficiaries. The bequest, in Mr. Chatterjee's submission, falls squarely within the definition of a "Will" under Section 2(h) of the Indian Succession Act. The Learned Trial Judge, however, failed to consider this portion of the Will, wherein a specific property was bequeathed for a definite public purpose intended to benefit the residents of Behala.
43. As regards the precedents relied upon by Mr. Ghosh in support of his argument concerning alleged suspicious circumstances surrounding the execution of the Will, Mr. Chatterjee contends that, in the present case, the testatrix had duly complied with all the statutory requirements necessary for the grant of probate. The execution of the Will stands duly proved, and the mental capacity and alertness of the testatrix at the time of execution were affirmed by the attesting witness. There were no suspicious circumstances attendant upon the execution of the Will; rather, the surrounding circumstances were satisfactorily established. The bequests made under the Will, as well as its execution, do not bear any indicia of unnaturalness or suspicion. Furthermore, the objectors have failed to establish any instance of coercion, fraud, or misrepresentation, as alleged in their written objection.
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44. The main issue at hand in the appellate stage is whether the instrument partakes the character of a Will.
45. The alleged Will being marked as Exhibit 1 relates to the administration of the Biren Roy Trust after the death of the testatrix. In the Will, the testatrix has given mere directions as to the constitution of an Advisory Committee and the creation of a medical unit and a memorial library in the name of her late son for the benefit of the people of Behala.
46. The definition of 'Trust' has been discussed at paragraph 28 of Damodhar Bordoloi v. Mrinalini Devi Trust Board 17, as:
"28. Section 3 of the Indian Trust Act enacts that a Trust is an obligation and next to the ownership of property and arising out of a confidence repose in and accepted by the owner or declare and accepted by him for the benefit of another or of another and the owner, the person who reposes or declares the confidence is called author of the Trust. The person who accepts the confidence is called Trustee. The person for whose benefits the confidence is accepted, is called beneficiary. A trust relating to immovable property must be in writing, signed and registered or by will vide Section 5 of the Indian Trust Act."
47. A trust can be validly created by the Will of any testator.
However, it has to comply with all the provisions of the Indian Succession Act, 1925 in order to be a valid trust and such a Will has to be signed by atleast two attesting witnesses. Where a trust is declared by a Will, or the author of the trust is himself to 17 1999 SCC OnLine Gau 6 21 be the trustee no transfer of property is necessary as observed in Bai Mahakore vs. Bai Mangla18.
48. In Jilubhai Nanbhai Khachar and Others v. State of Gujarat and Another19, the Hon'ble Supreme Court has elaborately interpreted the concept of "property" in its legal sense to include a bundle of rights that are guaranteed and protected by law. The Court held that property encompasses every species of valuable right or interest, including ownership and the exclusive right to possess, use, dispose of, or exclude others from it. The word 'property' connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status.
49. The testatrix has clearly stated in the second last paragraph of the Will that the alleged Will relates to her 'incorporeal right' to nominate the next trustee, which does not have any market value. Black's Law Dictionary has defined the word 'incorporeal' as having a conceptual existence, but no physical existence. The term 'incorporeal right' means a right to intangible rather than tangible property.
50. In view of the interpretation rendered in Jilubhai Nanbhai Khachar (supra) an incorporeal property comes under the definition of "property". Despite that a right that lacks exchangeable or market value cannot qualify as "property" within the legal meaning of the 18 (1911) ILR Bom 403: 13 Bom LR 564 19 AIR 1995 SC 142, 22 term. Accordingly, the right to nominate a successor Trustee, as articulated by the testatrix herself, falls outside the ambit of "property" protected by law.
51. Will is defined under Section 2(h) of the Indian Succession Act, 1925.
The provision has been reproduced below:
"(h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."
52. Under the General Clauses Act, "Will" includes a codicil and every writing making a voluntary posthumous disposition of property. A will or testament is the declaration in a prescribed manner of the intention of the person making it, with regard to the matters which he wishes to take effect upon or after his death.
53. The term 'disposition' has been defined in Black's Law Dictionary as the act of transferring something to another's care or possession, especially by deed or Will; the relinquishing of property. Bequeath means to give property (usually personal property) by Will.
54. A Will must have the following characteristics: (a) there must be a legal declaration of an intention of the testator; (b) the declaration shall relate to the property of the testator; (c) the intention shall relate to the desire of the testator to be carried into effect after his death, as held in Tarapada Das v. Bimal Kumar Das20.
55. The most essential characteristic of a Will is that it should relate to the property of the testator, which he wants to dispose of. If the declaration contains no reference to the disposal of the property but 20 (2003) 2 CHN 144 23 merely provides for a successor, it will not constitute a Will as held in Ram Nath (supra). The relevant portion has been reproduced below:
"......The language of the Will is quite explicit and unambiguous. The operative portion of the Will reproduced above manifestly shows that there is no disposition of the properties of the Math by this document. ........The condition which must be satisfied before a document can be called a Will is that there must be some disposition of property. The document must contain a declaration of the intention of the testator not with respect to anything, but with respect to his property. If there is a declaration of intention with respect to his successor, it can-not constitute a Will, as defined by the Indian Succession Act. When, therefore, a document though called a Will, does not deal with any property, it will not be given effect to as a Will, al-though it may operate to effectuate any other purpose provided therein. In the instant case, the document did not contain any legal declaration of the intention of Mahanth Banwari Das with respect to any property, and there was no disposition of any of the assets of the deceased testator or the deities. Therefore, having regard to the authorities quoted above, and more particularly to the definition of the Will, it cannot constitute a Will, strictly speaking. The learned Additional District Judge, therefore, was right in his conclusion that the document was not a Will, and, therefore, it could not be admitted to probate. On this ground, his decision must be upheld..............."
(emphasis supplied)
56. There must be a disposition of property under the document described as 'Will'. Where a document is described as 'Will' by a Hindu testator only gives his wife the authority to adopt, without giving her anything else in his properties the character of a Will is not established. There must be disposition of property as observed in Jagannatha Bheema Deo (supra).
24
57. In the case of Jagadindra v. Madhusudan21, it has been laid down that where a Mahanth by a document purported to appoint his successor on the gaddi, and to make over to him as Mahanth all the properties of the Asthal and the right of performing the Debsheba and did not purport to deal with any property of his own, the document was not a Will and could not be admitted to probate.
58. In the case of Parasnath Giri v. Durga Giri22, reference was given to the case of Chaitanya Gobinda v. Dayal Gobinda23, wherein their Lordships observed as follows:-
"The word 'will' has been defined in the Probate and Administration Act. It means 'the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death'. Now, upon the statement of the declarant himself, the alleged testator in the document in question, it is not his property, but the property of the thakurs. But, however that may be, it is quite clear that all that he does or purports to do by the document in question is to appoint the petitioner as a shebait or manager for the purpose of carrying out the sheba, puja and other rites and ceremonies appertaining to the akhra, of which he was the head. There was no testamentary disposition of the properties belonging to the akhra, and indeed he could not make any such disposition. If it was simply an appointment of a manager made by the late Mohunt, it is obvious that there was no disposition of any property. We think that the Court below is right in the view that it has expressed, and that probate of a document like this cannot be applied for under the Probate and Administration Act."21
20 Cal LJ 307 : (AIR 1915 Cal 289) 22 2015 SCC OnLine Pat 9750, 23 ILR 32 Cal 1082 : 9 CWN 1021 25
59. In Uma Charan Bose (supra) this Court has clarified that a document appointing successors for administration of the State is not disposition of property which can characterize the said document as a Will:
"It is next contended on behalf of the appellant that the fact that in the document a provision is made for the appointment of a future trustee after the death of Upendra Nath Ray makes this document a testamentary one and therefore, the document is testamentary in its disposition. But that would not make the document a will as defined in S.3, Probate and Administration Act, now replaced by S. 2, Succession Act, 1925. This question is not free from authority and it was held in two cases in our Court that the mere provision in a document for the appointment of succeeding shebaits would not make the document a will according to the Probate and Administration Act. The cases referred to above are those of Chaitanya Gobinda Pujari Adhikari v. Dayal Gobinda Adhikari (1) and Jagadindra Nath Roy v. Madhusudan Das Mohunt (2). On this ground I am of opinion that the document not being a will the petitioner is not entitled to apply for letters of administration to the probate Court. What-ever right he has he may enforce it by a regular suit."
60. In Krishna Das Baishnadab v. Kalisunkar Bajpai & Ors. 24, at paragraph 10 of the judgment, the Hon'ble Privy Council observed that the property did not vest with the testatrix, but belonged to the deity Jugganathji. As such, under the legal definition of a Will, property not owned by the testatrix cannot be the subject of testamentary disposition. The Court accordingly concluded that the document in question pertained solely to the appointment of trustees and pujaris, and did not effectuate any transfer of property. Consequently, it could 24 1 IC 216 26 not be construed as a Will within the meaning of the term under law. The said paragraph has been reproduced below:
"10. In the scheme above-mentioned, the Lower Court has not appointed any Mohunt and such an appointment has been left absolutely in the hands of the executors. These executors have claimed the property as the personal property of the last Mohunt and deny its dedication to the idol. It is not likely therefore, that they will over appoint a Mohunt. We are of opinion that for the preservation, and good management of the properties in question, and for the continuance of the worship of the idol Jugganathji, the persons least fitted to perform the above duties are the executors, as after the allegation made by them it is not reasonable to expect them to allow the rights of the idol to prevail over their alleged personal rights."
61. In the case of Darius Jehangir v. Lyla Minoo Ghasvalla25, reference has been given to the case of re. Rowland26 in paragraph 9 wherein it was observed on page 10 of the report by Lord Denning that the whole object of construing a Will is to find out the testator's intention so as to see that his properties are disposed of in the way he wished. It was observed as follows:
"True it is that you must discover his intention from the words he used; but you must put upon his words the meaning which they bore to him. If his words are capable of more than one meaning, or of a wide meaning and a narrow meaning, as they often are, then you must put upon them the meaning which he intended them to convey, and not the meaning which a philologist would put upon them. And in order to discover the meaning which he intended, you will not get such help by going to a dictionary. It is very unlikely that he used a dictionary, and even less likely that he used the same one as you.25
1999 SCC OnLine Bom 812: AIR 2000 Bom 372: (2000) 3 Bom CR 447: (2000) 102 (2) Bom LR 108:
(2000) 3 AP LJ (DNC) 29 at page 379 26 1963 (1) Ch D 1 27 What you should do is to place yourself as far as possible in his position, taking note of the facts and circumstances known to him at the time: and then say what he meant by his words."
62. Reference can also be made to the case of Boyes v. Cook27 where in the same paragraph James, L.J. observed:
"In re Ruding's Settlement (1872 LR 14 Eq 266) the Vice-Chancellor held that the surrounding circumstances could be looked at in construing the will. But when it is said that surrounding circumstances may be looked at, that only means that the circumstances existing at the time when the testator made his will may be looked at. You may place yourself, so to speak, in his arm- chair, and consider the circumstances by which he was surrounded when he made his will to assist you in arriving at his intention."
63. In the case of Taran Singh Hazari v. Ramratan Tewari 28, it was observed by this Court that in interpreting a Will, regard must be given not merely to the words used, but to the evident intention of the testator.
64. In Mandala Madhava Rao v. Mandala Yadagiri & Ors.29, the High Court at Andra Pradesh has held that in determining the real intention of the testator the entire document has to be construed as a whole. No word, phrase or clause should be ignored.
65. The controversy is in relation to the interpretation of the following recital in the alleged Will:
"I am further giving direction that is the three storied house which is there to the South of my residential house, where there is a "Medical Unit" and a hall in the north, which is there, "Ranjan Roy Memorial Library" will be set up in the name of my late son and from 27 1880 (14) Ch D 53 28 1904 ILR 31 Cal 89 29 AIR 2001 AP 407 28 the income of the said trust according to the wish of my husband late Sri Biren Roy, arrangements shall be made to give free treatment and medicines through Biren Roy Medical Center as much as possible. It is also to be considered to help the small schools, hospitals and sports clubs in the Bchala area as much as possible. All the moneys of the Biren Roy Trust shall be utilized for the improvement and development of the Behala area".
66. Is it a declaration of an intention of the testatrix in relation to a property of the testatrix. It is apposite to mention the preceding recital and the subsequent recital. The preceding recital reads as follows:
"By executing this instant will I am hereby giving direction, that after my death "Official Trustee government of West Bengal" shall become the trustee in my place and stead, and shall have the right to conduct all functions of the trust and to that none other's claim or contention shall be entertained."
The subsequent recital is stated below:
"To conduct the functions of trust smoothly I hereby appoint the persons mentioned below as advisors. They will remain members of the said committee down to their heirs and successors and shall remain bound to perform according to the directions of the advisory committee of the above mentioned trust.
The members of the said committee are :-
1. Smt. Sukti Sanyal Wife of Sri Dipendra Kumar Sanyal Resident of P-36, Block - H, New Alipore Kolkata - 700053.
2. Sri Prabir Roy Son of Sri Ramen Roy Resident of 10, Sourin Roy Road, Kolkata - 700034."29
67. The three recitals read as a whole would unmistakably show that the direction was with regard to the trust property of her husband and appointment of advisors of the Biren Roy Trust. It is a direction with regard to the management of the trust property and not a bequest of any property of the testatrix. These directions, upon a careful reading, are indicative of an intention to discharge certain duties connected with the objectives of the Trust, rather than an intention to divest ownership or create proprietary interest in favour of another. This interpretation finds support from the averments made in paragraph 5 of the probate application wherein the executrix, in her application for probate, has categorically and consciously reiterated that the Will does not purport to dispose of any property but is confined to prescribing duties and responsibilities associated with the administration of the Trust. For better appreciation the said paragraph is stated below:
"5. That the Will relates only to the appointment of trustee which is not a property, and as such no special citation need a be issued. But notice of the application should be published in two Calcutta dailies one English and the other vernacular for public notice."
68. In her cross-examination, the appellant unequivocally confirmed that the Will does not pertain to the personal property of Meghamala Roy. She clarified that the Will is solely concerned with matters relating to the Biren Roy Trust. The relevant portion of her cross-examination is reproduced below:
"This will is not related personal property of Maghamala Roy. This will relates to Biren Roy Trust. Thr eis a trust deed in respect of Biren Roy Trust...........................................................................I 30 can not say whether the trust property of Biren Roy was owned by five settlers. It is not a fact that Meghamala Roy was not entitled to one as trustee. It is not fact that Meghamala Roy had no authority to appoint me as member of Advisory Committee of Biren Roy Trust."
69. The pleading and evidence of executrix lend assistance to the views we have taken in interpreting the document.
70. The testatrix is merely a trustee and the testatrix admittedly had no ownership. She had no power to make a disposition of the trust property; she actually made no such disposition; that by the alleged Will she simply gave certain directions and appointed the persons named therein as advisors to be included in the "Biren Roy Trust". The document at best is a letter of appointment or nomination of two persons as advisors.
71. In such a context, it would be incongruent with the tenor of the Will to hold that the testatrix intended to effect a testamentary disposition of property. On the contrary, the language employed and the manner of expression leaves a little doubt that the directions were issued solely in furtherance of charitable duties envisaged by the testatrix, and not as a transfer of title or beneficial interest in the subject property.
72. Therefore, in the instant case, it is very much evident from the interpretation of the alleged Will that the Will does not talk about the disposition of the property of the testatrix, being one of the most essential characteristics of a Will.
73. Despite the appellant arguing that there are no suspicious circumstances which is convincing, a perusal of the contents of the Will shows that the said document cannot be described as a Will. The 31 validity of the execution of the said document however stands established by the evidence on behalf of the appellant. Minor variation in the evidence of the witnesses as sought to be highlighted are not enough to outweigh the execution of the document. Since it is not a Will, the presence of two attesting witnesses to validate it is not required. The evidence of all the witnesses in support of execution of the document stands firmly established. The present appellant is not a beneficiary under the document. The sole respondent is not supported by any other respondent and he has failed to establish any fraud or undue influence in the execution of the document. The allegations are vague and unsubstantiated.
74. The evidence in favour of execution of the document is not shaken in the cross examination of any of the witnesses. One who alleges fraud or undue influence has to lead a cogent and convincing evidence to shift the burden on the propounder assuming it to be a Will. Suspicious circumstances must be real and not fanciful.
75. However, it is a pyrrhic victory for the appellant as it has failed to establish it as a Will.
76. In view of the aforesaid, we do not find any reason to interfere with the impugned judgment.
77. Hence, the appeal is dismissed.
78. There shall be no order as to costs.
I agree (Soumen Sen, J.)
(Smita Das De, J.)
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Later:-
After the judgment is pronounced today Mr. Ajoy Krishna
Chatterjee, learned senior counsel appearing on behalf of the appellant has drawn our attention to an order dated 11.02.2023 by which the learned advocates appearing for the respective parties were appointed as Joint Special Officers to hold records, documents and assets, if any, lying with the official trustee.
In view of the aforesaid order, the Joint Special Officers are hereby discharged upon filing accounts and all the documents shall be handed over to the official trustee within three weeks from date.
The Joint Special Officers shall supply the accounts to be filed in the department to the learned advocate-on-record for the appellant and the respondent.
(Soumen Sen, J.) (Smita Das De, J.)