Calcutta High Court (Appellete Side)
Goutam Bhowmick Alias Bhuiya vs Shrimati Sabitri Bhuiya on 4 January, 2012
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
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Form No. J. (2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present:
The Hon'ble Justice Subhro Kamal Mukherjee
And
The Hon'ble Justice Md. Abdul Ghani
F.A.T. No. 419 of 2009
With
C.A.N. 9131 of 2009
Goutam Bhowmick alias Bhuiya ...Appellant
-Versus-
Shrimati Sabitri Bhuiya ...Respondent.
For the appellant: Mr. Probal Kumar Mukherjee,
Mr. Suhrid Sur,
Mr. Rajdeep Bhattacharya.
For the respondent: Mr. Nirbanesh Chatterjee,
Mr. Anjan Kumar Banerjee.
Judgment on: January 4, 2012.
Subhro Kamal Mukherjee, J.:
This is an appeal against judgment and order dated July 13, 2009 passed by the learned Additional District Judge, Fourth Court, Howrah, in Letters of Administration Case no. 23 of 2000.
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By the impugned judgment and order, the learned Judge rejected the application for grant of letters of administration.
The application for letters of administration was filed by this appellant contending that Shrimati Kiran Bala Dasi bequeathed the property-in-dispute in his favour by executing her registered last will and testament dated January 22, 1979. The will was registered in the office of the Joint Sub-registrar, Howrah. The parents of this appellant were named and appointed as the executor and the executrix respectively.
Unfortunately, they did not obtain probate of the said will. The appellant requested them, on several occasions, to obtain probate. As they did not obtain probate of the will, this appellant applied for grant of letters of administration in respect of the said last will and testament. A certified copy of the said will was filed inasmuch as the original will was in the custody of the said executor and the executrix.
The application was filed before the learned District Delegate, Howrah, and was registered as Letters of Administration Case no. 203 of 1994.
Citations were issued; the mother of this appellant, who was the executrix named and appointed in the said will, objected to the prayer for grant of letters of administration.
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The father of the appellant, who was the other executor named and appointed in the will died on July 7, 2008.
Since the proceeding became contentious, the learned District Delegate returned the application to this appellant for presentation before the learned District Judge.
The application was re-presented before the learned District Judge. Eventually, the proceeding was transferred to the Court of the learned Additional District Judge, Fourth Court at Howrah and was registered as Letters of Administration Case no. 23 of 2000.
The mother of this appellant, Shrimati Sabitri Bhuiya, the respondent no. 1 in this appeal, in her written objection stated that the testatrix had no testamentary capacity to execute the said will. The testator was not mentally alert and physically fit for the execution of the alleged will. She denied the existence of the will. She, also, denied that this appellant ever requested her to obtain probate of the said will.
The disputed property is a piece of bastu land with eight rooms of brick-walls and tiled roof with septic privy measuring more or less three cottahs and eight chittaks of land situate at Makardah Road, Police Station - Bantra, District -Horwah.
The testatrix stated in the said will that this appellant was the son of her nephew and she decided to bequeath his property in his favour and named and 4 appointed her nephew and the wife of her nephew, that is, the parents of this appellant, as the executor and the executrix of the said will.
The will was executed on January 22, 1977. The testatrix died on January 13, 1981.
Narayan Chandra Das was one of the attesting witnesses to the will. He stated that the executrix was mentally alert and physically fit when she executed the will. He, further, stated that the will was read over and explained to the testatrix and, thereafter, on understanding the contents thereof, she put her left thumb impressions in every page of the will. The will was drafted by one mohorar of Howrah Court, namely, Kali Kumar Sarkar, according to the instructions of the testatrix. The scribe read over and explained the contents of the will and the left thumb impressions of the testatrix were identified by Mihir Kumar Basu. Rabin Nath Das, Sufal Chandra Santra, and Kali Kumar Sarkar, the scribe of the will, were the other attesting witnesses of the will. He categorically stated that the testatrix put her left thumb impressions in his presence and the said Mihir Kumar Basu identified the said impressions in his presence. The will was registered at Howrah Registry Office. The testatrix herself presented the will for registration. After the said will was registered, the testatrix, by putting her left thumb impression on the reverse side of the registration receipt, handed over the same to the executor, namely, Pashupati Bhuiya. He stated that excepting him all other attesting witnesses, namely, Kali 5 Kumar Sarkar, Rabin Nath Das, Sufal Chandra Santra and Mihir Kumar Basu, were dead.
Although the objector, who was, however, named and appointed as the executrix in the said will, denied that she ever possessed the will in her custody, but a letter written by her was produced before the court below. The letter was dated August 6, 1991 and was addressed to the Officer-in-Charge, Bantra Police Station in the district of Howrah. She stated that the testatrix, Kiran Bala Dasi, on January 22, 1979 executed a will in favour of her son Goutam Bhuiya, who is the appellant before us. It was stated that the original will was not found in spite of best efforts. Therefore, she lodged the diary.
The learned Additional District Judge, Howrah, refused to grant the letters of administration, inter alia, on the ground that circumstances were dubious in this case and, therefore, instead of granting letters of administration, refusal of which was prudent. The learned Judge commented on the delay in filing the application for grant of letters of administration. He noticed that certified copy of the registered will was obtained on October 7, 1987, but the application was filed long thereafter and it was not proved that the original will was lost.
Therefore, the learned Additional District Judge thought it prudent not to grant letters of administration in favour of the legatee on the basis of the certified copy of the will.
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When a testamentary instrument is not available, either it is lost or destroyed, probate or letters of administration may be granted of its contents upon proof of those contents and the due execution and attestation thereof.
The onus of proving the will is on the propounder. In absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before getting a probate or letters of administration. If the propounder succeeds in removing the suspicious circumstances, the Court would automatically grant probate even if the will might be unnatural and might cut off wholly or in part near relations. The mode of proving a will before a Court of law does not ordinarily differ from that of proving any other document except to the special requirements of attestation prescribed in case of a will by Section 63 of the Indian Succession Act, 1925.
In this case, the objector was not successful in challenging the authenticity of the will as her plea that the testatrix had no mental capacity at the time of the execution of the will could not be established.
The requirement of law is that an executor must be cited before any party can take out letters of administration. In this case, the executrix did not apply for grant of probate. On the contrary, after citations were issued, she appeared and objected to 7 the grant of letters of administration. Therefore, by necessary implication she has renounced to act as the executrix.
The learned Judge was of the opinion that no independent witness was examined to establish a valid execution of the will by the testatrix. The surviving attesting witness was produced. He has proved the execution of the will by the testatrix. He proved her left thumb impressions on the several sheets of paper on which the will was written. It was proved that she has signed it in presence of the attesting witnesses. It proved that it was read over and explained to her and she consciously executed the will.
Moreover, this will is a registered will. The will was executed on January 22, 1979 and the testatrix died on January 13, 1981. The executor and the executrix named and appointed in the will are the parents of the propounder. It is an admitted position that the propounder was minor at the time of the execution of the will. Therefore, his parents were entrusted to obtain probate and look after the property till the legatee attains majority.
The disputed will is a registered one. An illiterate woman executed it. Before registration of the will the Registrar must have satisfied himself that the testatrix had knowledge of the contents of the will at the time of its execution.
The learned Additional District Judge was unnecessarily suspicious about the delay. Under the Limitation Act, 1963, no period is prescribed within which an 8 application for probate or letters of administration is to be filed. Although long delay may be a ground to allege suspicious circumstances and the Court may take that in consideration for determining the question of genuineness of the will. However, mere delay by itself is not a suspicious circumstance to refuse probate. It is now settled law that it may be filed at any time after the death of the testator. In this case the will was a registered one.
The propounder has proved, to the satisfaction of this Court, that the will was a genuine will duly executed by the testatrix out of her own volition. The legatee, who is the propounder before this Court, was minor when the will was executed and his parents were named and appointed as the executor and the executrix respectively. Therefore, only when the propounder was forced to apply for letters of administration because of inaction of his parents, the application was filed. In our view, in this case delay is sufficiently explained having regard to the peculiar relationship between the executor, the executrix and the legatee.
The objector was not making correct statement before the Court. She denied that she did never possess the copy of the original will, but it was proved that she lodged a general diary with the police contending loss of will from her custody.
Therefore, as the propounder has successfully proved proper execution of the will and dispelled all suspicious circumstances, the learned Judge, in our view, ought to have granted the letters of administration in favour of the propounder. 9
The impugned judgment and order refusing to grant letters of administration is, therefore, set aside. The application for grant of letters of administration stands allowed.
Issue letters of administration with the certified copy of the will annexed to the propounder.
Having regard to the relationship of the parties, we direct the parties to bear their respective costs in this appeal.
In view of the disposal of the appeal, the connected application, also, stands disposed of.
Urgent xerox certified copy of this judgment, if applied for, is to be given to the learned advocates for the parties on compliance of all formalities.
(Subhro Kamal Mukherjee, J.) Md. Abdul Ghani, J.
I agree (Md. Abdul Ghani, J.)