Calcutta High Court
Pradip Sancheti vs Sri Sanjay Kumar Modi on 4 October, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Testamentary and Intestate Jurisdiction
Original Side
T.S. No. 6 of 2016
PLA No. 164 of 2009
In the goods of : Kalyani Modi (Deceased)
And
In the matter of :
Pradip Sancheti
Vs.
Sri Sanjay Kumar Modi
For the Plaintiff : Mr. Jayjit Ganguly, Advocate
Mr. R. Sarkar, Advocate
Mr. S. Bhattacharya, Advocate
For the Defendant : Mr. S. Sengupta, Advocate
Mr. B. Sen, Advocate
Mr. S. Banerjee, Advocate
Hearing concluded on : September 27, 2016
Judgment on : October 4, 2016
DEBANGSU BASAK, J.
The plaintiff has sought probate of the Will dated June 16, 2008 of Kalyani Modi since deceased. The defendant is the son of the deceased. The defendant is contesting the proceedings. The application for probate has been treated as a contentious cause. The testamentary suit has been heard subsequent to evidence being adduced by the parties thereto.
He has contested the grant of the probate on diverse grounds including the ground of lack of testamentary capacity of the testatrix to execute the Will, the execution of the Will being shrouded by suspicious circumstances, the Will being unnatural and that the Joint Executors appointed by the Will have not applied for the grant of the probate.
The issues in the instant suit as settled by the Order dated June 15, 2016 are as follows:-
1. Is the probate application filed by the plaintiff maintainable?
2. Is the Will & Testament dated June 16, 2008 executed by Kalyani Modi, since deceased?
3. Whether Kalyani Modi, deceased had the testamentary capacity for dispossession of any property by executing the Will & Testament dated June 16, 2008?
4. Whether the Will and Testament dated June 16, 2008 allegedly executed by Kalyani Modi, since deceased is forged, fabricated and manufactured?
5. Is the Executor entitled to grant of probate of the last Will and Testament dated June 16, 2008 as prayed for?
The plaintiff has adduced evidence through two witnesses, namely, the propounder and the attesting witness. The defendant has examined himself as his witness.
Learned Advocate for the defendant has submitted that, the Will being Exhibit 'B' is forged, fabricated and manufactured. It is dated June 16, 2008 while the document shows it to be registered on June 19, 2008. He has referred to the various questions and answers given by the attesting witness of the plaintiff and has submitted that, such attesting witness has stated that the Will was executed on June 16, 2008. The attesting witness was emphatic in stating that, the Will was executed on such date on commission with the Registering authority being present at the time of the execution of the Will and on commission. Learned Advocate for the defendant has submitted that, the plaintiff has not been able to explain why the Will dated June 16, 2008 executed on such date on commission before the Registering authority has been stamped and marked to be registered on June 19, 2008. The plaintiff not having explained such conduct, the execution of the Will is, therefore, shrouded in suspicious circumstances. The plaintiff has to give proper explanation with regard to the execution of the Will. The plaintiff having failed to do so, it is not entitled to the reliefs as prayed for. In support of such contentions learned Advocate for the defendant has relied upon All India Reporter 1962 Supreme Court page 567 (Rani Purnima Debi & Anr. v. Kumar Khagendra Narayan Deb & Anr.).
Learned Advocate for the defendant has submitted that, the propounder of the probate application was not present at the time of execution of the Will. Therefore, the evidence with regard to the execution of the Will by the propounder is hearsay evidence. The propounder has to establish the valid execution of the Will and that the testatrix was of a sound mind. The propounder has not been able to establish such essentials in the present case. In support of such contentions he has relied upon the questions and answers given by the propounder as also 1995 Volume 6 Supreme Court Cases 120 (Mukul Rani Varshnei & Ors. v. Delhi Development Authority & Anr.).
Learned Advocate for the defendant has submitted that, the plaintiff has declined to put his essential and material case in cross- examination and, therefore, the testimony of the witness of the defendant must be accepted. He has relied upon 1974 Volume 2 Supreme Court Cases page 600 (Surendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr.) in support of such proposition.
Learned Advocate for the defendant has submitted that, the testatrix did not have a sound disposing mind. He has relied upon the evidence of the witnesses in this regard. He has cited All India Reporter 1961 Calcutta page 359 (A.E.G. Carapiet v. A.Y. Derderian). On behalf of the defendant it has been contended that the Will is not valid. The execution of the Will has not been proved. Reliance has been placed on the attesting witness of the Will to suggest that the execution of the Will has not been proved. In support of such contentions reliance has also been placed on 2009 Volume 4 Supreme Court Cases page 780 (Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh & Ors.).
Learned Advocate for the plaintiff has submitted that, the probate proceedings are maintainable. He has referred to Sections 224 and 311 of the Indian Succession Act, 1925 in support of such contention. He has submitted that, the witnesses of the plaintiff have established the valid execution of the Will, with the testatrix having the required mental capacity to make a Will and the Will was not an unnatural one. It was executed on June 16, 2008. Although there is no explanation by the witnesses as to why the Will was subsequently registered on June 19, 2008, he has relied upon the deposition of the attesting witness of the plaintiff to submit that, the Will has to be treated as executed on June 16, 2008. He has also pointed out that, June 16, 2008 was a Monday while June 19, 2008 was a Thursday. The Will was registered on commission. It is likely that, the Registering authority has taken the time from the date of execution of the Will, that is, June 16, 2008 for the Will being Exhibit 'B' to bear the date of registration as June 19, 2008. The witness may not have remembered such fact after the elapse of time. Minor discrepancy does not vitiate the Will when its execution has been proved. In support of his contention he has relied upon 2014 Volume 15 Supreme Court Cases page 570 (Leela Rajagopal & Ors. v. Kamala Menon Cocharan & Ors.).
The first issue relates to the maintainability of the probate application. Exhibit 'B' being the Will speaks of two executors. One of the executors has applied for grant of probate. Section 224 of the Indian Succession Act, 1925 stipulates that, when there are several executors, probate may be granted to them simultaneously or at different times. Section 311 of the Indian Succession Act, 1925 states that, when there are several executors or administrators, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the Will or taken out administration.
The defendant has highlighted the verification of the probate application. The defendant has not cited any law to suggest that when there are two executors, one of them cannot be granted probate.
In view of the discussion above, the first issue is answered in the affirmative and in favour of the plaintiff.
The second to the last issues are taken up together for consideration. With regard to the last issue, the defendant has submitted that, the plaintiff is not entitled to the reliefs as prayed for, inter alia, on the ground that the execution of the Will is shrouded in suspicious circumstances.
So far as suspicious circumstances are concerned, the defendant has pointed out that, although the Will is dated June 16, 2008 it bears a date of registration of June 19, 2008. That per se would not have been sufficient to raise suspicion. Simplicitor on the fact that a Will bears a date which is at variance with the date of registration by itself does not raise a suspicious circumstance. However, if the witnesses of the plaintiff are unable to explain the variation in the date and when one of the witnesses of the plaintiff states that, the Will was sought to be registered on commission on June 16, 2008 although it bears registration dated June 19, 2008 and that he is not in a position to explain such discrepancy then a suspicious circumstance relating to the execution of the Will is raised. None of the witnesses of the plaintiff has been able to explain the discrepancy. The contention of the plaintiff that the discrepancy is due to the time taken by the Registering authority has not been stated by the witnesses of the plaintiff from the witness-box. Such an explanation of a vital fact, without the same being established by requisite evidence is not accepted.
The attesting witness of the Will who has deposed on behalf of the plaintiff has categorically stated that the Will was executed on June 16, 2008 in its evidence. The witness was confronted with the registration date of the Will appearing at Exhibit 'B'. The date of registration appears as June 19, 2008 in Exhibit 'B'. He has asked for an explanation with regard to the discrepancy of the date of execution and the date of registration. He did not offer any explanation with regard thereto. The other witness of the plaintiff has stated that, he was not present during the execution of the Will. He has also not given any explanation with regard to the date of execution of the Will and the date of registration thereof. The attesting witness of the plaintiff has claimed that the Will was registered on commission and the commission had happened on June 16, 2008 and the Will was executed on such date. There being no plausible explanation with regard to the date of registration and its execution as noted above, the irresistible conclusion is that the plaintiff has failed to explain such discrepancy and that the plaintiff is not entitled to the probate as prayed for.
In Surendra Pal & Ors. (supra) the Supreme court has held that, the propounder has to discharge the onus of proving the Will. It is for the propounder to explain to the satisfaction of the Court that the execution of the Will is not shrouded by suspicious circumstances. In the present case, the plaintiff has not been able to discharge such onus.
In Rani Purnima Debi & Anr. (supra) the Supreme Court has held that, registration of the Will by itself does not prove its genuineness and that by itself is not sufficient to dispel the suspicion regarding it. It is for the propounder to establish the genuineness of the Will.
In Yumnam Ongbi Tampha Ibema Devi (supra) the Supreme Court has held that, the ingredients of Section 63 of the Indian Succession Act, 1925 has to be established. In the present case, the plaintiff did not establish such ingredients through the two witnesses that the plaintiff has produced. However, the ingredients of Section 63 of the Indian Succession Act, 1925 stands established on cross- examination of such witnesses on behalf of the defendant. The attesting witness of the Will has stated the sequence of the execution of the Will on June 16, 2008 on cross-examination.
While considering Section 60 of the Indian Evidence Act, 1872 the Supreme Court in Mukul Rani Varshnei & Ors. (supra) has observed that hearsay evidence is not admissible.
In A.E.G. Carapiet (supra) it has been held that, where a party has declined to avail himself of opportunity to put his essential and material case in cross-examination, it must be held that he believed the testimony given.
In Leela Rajagopal & Ors. (supra) it has been held that, exclusion of sons from the Will where the exclusion is stated in the Will to be made as they were settled, does not give rise to the suspicious circumstances. In the present case, the suspicious circumstance alleged is not only of the contents of the Will but its due execution. So far as the execution is concerned, the plaintiff has failed to dispel the suspicious circumstances shrouding the same.
In view of the discussion above, the plaintiff is not entitled to the grant of probate of the Will dated June 16, 2008 as prayed for. The second to the fifth issues are answer accordingly.
T.S. No. 6 of 2016 is dismissed. The parties will bear their respective costs.
[DEBANGSU BASAK, J.]