Jharkhand High Court
Rabindra Nath Bose vs Bikram Kumar Mitra on 8 August, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1
M.A. No. 220 of 2006
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.220 of 2006
------
Rabindra Nath Bose, son of late Dr. Adwait Prasad Bose, resident of Qr. No. D/L 191, Basanti Colony, P.O. & P.S. -Rourkela, District - Rourkela (Orissa), and also resident of Indu Bhawan, Panch Mandir Road, Madhupur, P.O. & P.S. -Madhupur, District -Deoghar .... .... .... Appellant Versus
1. Bikram Kumar Mitra, son of Late Dinbandh Mitra
2. Santana Mitra, D/o Late Dinbandhu Mitra
3. Bidroha Kumar Mitra, son of Late Dinbandhu Mitra
4. Smt. Alpana Ghose, W/o -Shri Amit Kumar Ghosh, D/o - Dinbandhu Mitra
5. Smt. Reena Das, W/o -Shri Amit Reena Das & D/o -Dinbandhu Mitra, resident of Qr. No.5-A, Raj Bhawan, 9 Govt. Place, P.O. - RajBhavan, P.S. -Hearstreet, District -Kolkata (East)
6. Sandeep Mitra @ Dipak Mitra @ Dipu, S/o -Late Biplab Kumar Mitra
7. Smt. Sikha Mitra, W/o Late Biplab Kumar Mitra
8. Deleted Vide order dated 06.12.2021
9. Smt. Prorthono Bose, W/o -Shri R.N. Bose and D/o -Dinbandhu Mitra All are at present residing at Indu Bhawan, Panch Mandir Road, P.O. & P.S. -Madhupur, District -Deoghar .... .... .... Respondents
------
For the Appellants : Mr. Rajesh Kumar, Advocate
: Mr. Manindra Sinha, Advocate
For the Respondent Nos.1, 2,
4, 5 & 9 : Mr. Pradeep Kumar Deomani, Advocate
For the Respondent Nos. 6 & 7 : Mr. Indrajit Sinha, Advocate
: Mr. Ankit Vishal, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
------
By the Court:-
1. Heard the parties.
2. This miscellaneous appeal is directed against the judgment dated 19.05.2006, passed by the District Judge, Deoghar in Title (Probate) Suit No. 2 of 2005 whereby and where under the learned court below has not granted the Probate of the Will.
3. The case of the plaintiff-appellant in brief is that the testator - 2 M.A. No. 220 of 2006 Dinabandhu Mitra executed an unregistered will on 17.08.2001 in favour of his son -Bikram Kumar Mitra, the defendant no.1. It is further the case of the plaintiff that Dinabandhu Mitra executed the said Will in his full sense and under sound state of mind. Dinabandhu Mitra died on 11.10.2002. The Will was executed by Dinabandhu Mitra in his own writing, in presence of the witnesses who put their signatures as attesting witnesses after the Will was signed by the testator- Dinabandhu Mitra and accordingly a prayer was made by the plaintiff was the executed under the Will, for grant of probate in favour of the defendant no.1 with respect to the Will executed by the testator -Dinabandhu Mitra. The defendant nos. 2, 4, 5, 8 & 9 filed their written statement contending therein that Dinabandhu Mitra, during his life time transferred the major portions of the property in favour of Bidroh Kumar Mitra, Bikram Kumar Mitra and the defendant nos. 2, 4, 5 & 9 by way of a registered deed of gift and they averred that the widow of Dinabandhu Mitra namely Menka Rani Mitra was living with her elder daughter namely Santana Mitra after the death of the testator. They supported the case of the plaintiff that Will has been executed in sound state of mind but since their elder brother -Biplav Mitra was never loyal to his parents or other members of their family and married with Sikha Mitra against their will and Biplav Mitra and his wife Sikha Mitra tortured Dinabandhu Mitra by filing several cases, therefore, Dinabandhu Mitra executed the said Will depriving Sikha Mitra and her children of any share from his property. The defendant no.1 supported the averments made in the pleadings of the plaintiff. The contesting defendant being the defendant nos. 6 & 7 in their written statement pleaded that no such Will as claimed by the plaintiff and other defendants has been executed by the testator - 3 M.A. No. 220 of 2006 Dinabandhu Mitra and the said unregistered Will is a forged one. They also pleaded that Dinabandhu Mitra has already executed some registered deed and major portions of the property known as Indu Bhawan are the subject matter of those gift deeds. Therefore, no Will can be executed in respect of the properties which have already been transferred by way registered gift deed in favour of the sons and daughters of the testator. They also pleaded that Dinabandhu Mitra was suffering from heart disease since the month of January, 2001 and he was admitted in hospital and after transplantation of pace-maker, he was discharged from the hospital and Dinabandhu Mitra was never in sound state of mind at the time of execution of the Will and he was under
complete bed rest. Hence, they opposed the grant of Probate of the Will.
4. On the basis of the rival pleadings, the learned court below framed the following two issues :
(i) Whether the present application for probate in its present form is maintainable or not?
(ii) Whether the Will in question is genuine and executed by the deceased Dinbandhu Mitra in sound state of mind without any undue influence or coercion?
5. The learned court below took up issue no.ii first and after considering the fact that the Will is incomplete, as though in the recital of the Will, it has been mentioned that portion of one unit of the complex has been gifted to his son and daughters and a complete plan of the Indu Bhawan annexed with the Will showing divisions but no such plan has been annexed. Similarly though in para-1 of the Will, it was mentioned that double storied house under holding no. 252 of Madhupur Municipality together with adjoining land has been gifted to second 4 M.A. No. 220 of 2006 daughter Ms. Santana Mitra by a deed of gift as in the annexed plan and similarly, the portion of the ground floor which has been gifted to Bikram Kumar Mitra by a registered deed of gift, the plan is also annexed with the Will but no such plan has been annexed with the Will sought to be probated by the plaintiff. Hence, the Will sought to be probated is incomplete of and no explanation has come from the side of the plaintiff, as to why those plans which were said to have been annexed with the Will have not been filed along with the Will. Therefore, the trial court came to the conclusion that no Probate can be granted in respect of an incomplete Will and also considering the fact that since one of the attesting witnesses Rabindra Nath Bose who is also the executor of the will is the son-in-law of the deceased and therefore, he is an interested witnesses as also the fact that non-examination of the other attesting witness namely Anjana Mukherjee has raised an eyebrow; dismissed the suit on contest.
6. Mr. Rajesh Kumar, the learned counsel for the appellant submits that the learned court below erred by failing to properly appreciate the evidence in the record as the witnesses examined by the plaintiff have categorically stated about execution of the Will by the testator -Dinabandhu Mitra in his full sense and under sound state of mind and even the plaintiff examined five witnesses including two doctors who have stated about the testator being under sound state of mind at the time of execution of the Will. It is further submitted by Mr. Rajesh Kumar, the learned counsel for the appellant that the learned court below failed to take note of the fact that the contesting respondent
-Shikha Mitra and her son Sandeep Mitra who are the defendant nos. 6 & 7 of the suit were having inimical relationship with Dinabandhu Mitra 5 M.A. No. 220 of 2006 and the learned trial court erred in law in suo moto holding that the will was incomplete because the plan was not annexed with the Will.
7. Mr. Rajesh Kumar, the learned counsel appearing for the appellant relied upon the Judgment of Hon'ble Supreme Court of India in the case of Madhukar D. Shende v. Tarabai Aba Shedage, reported in (2002) 2 SCC 85 paragraph no. 8 & 9 of which reads as under:-
"8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the jury in R. v. Hodge [(1838) 2 Lewis CC 227] may be apposite to some extent:
"The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict -- positive or negative.
9. It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it 6 M.A. No. 220 of 2006 was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of "not proved" merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance." (Emphasis supplied) It is submitted by Mr. Rajesh Kumar that it is a settled principle of law that one who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed and the onus is discharged by the propounder adducing prima facie evidence proving competence of the testator and the execution of the Will in the manner contemplated by law and hence in this case the plaintiff has established by cogent evidence that the testator was competent and was under sound mind at the time of execution of the Will and the Will was executed in a manner contemplated by law, the learned court below ought to have allowed the prayer for Probate of the Will.
8. Mr. Rajesh Kumar next relied upon the Judgment of Hon'ble Supreme Court of India in the case of Ramabai Padmakar Patil (Dead) through LRs. and others vs. Rukminibai Vishnu Vekhande and Others, reported in (2003) 8 SCC 537, para-9 of which reads as under:-
"9. The learned District Judge has observed that Smt Yamunabai was very old when she executed the Will and she was hard of hearing and was unable to walk. He further observed that Chhaya Dighe who typed the Will and one Shri Tiwari, Advocate, who was present at the time of preparation and execution of the Will, were not examined and these facts together created a doubt regarding the authenticity of the Will. As discussed earlier, in view of Section 63 of the Indian Succession Act and the proviso to Section 68 of the 7 M.A. No. 220 of 2006 Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witnesses is examined to prove the Will. That this had been done in the present case by examining PW 2 Raghunath Govind Sogale cannot be disputed. No infirmity of any kind had been found in the testimony of this witness. Chhaya Dighe merely typed the Will and she is not an attesting witness nor is it anybody's case that Smt Yamunabai had put her thumb impression on the Will in her presence, therefore, her examination as a witness was wholly redundant. The mere non-examination of the advocate who was present at the time of preparation or registration of the Will cannot, by itself, be a ground to discard the same. The fact that Smt Yamunabai was hard of hearing or that she was unable to walk does not lead to an inference that her mental faculties had been impaired or that she did not understand the contents of the document which she was executing. It is important to note that Smt Yamunabai personally came to the Office of the Sub-Registrar and her death took place after a considerable period i.e. 3 years and 9 months after the execution of the Will. No evidence has been adduced by the defendants to show that at the time of the execution of the Will she had been suffering from any such ailment which had impaired her mental faculties to such an extent that she was unable to understand the real nature of the document which she was executing. We are, therefore, clearly of the opinion that the finding recorded by the learned District Judge, which has been affirmed by the High Court in the second appeal, is not based upon a correct application of the legal principles governing the proof and acceptance of Will and the same is completely perverse. The aforesaid finding is accordingly set aside. The finding recorded by the trial court that the Will is genuine is hereby restored."
It is submitted by the learned counsel for the appellant that it is a settled principal of law that in view of Section 63 of the Indian Succession Act, 1925 the proviso to Section 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witness is examined to prove the Will. Hence, the learned trial court has erred by observing that non-examination of Anjana Mukherjee creates a suspicious circumstance regarding the Will. As such, the impugned judgment being bad and erroneous be set aside and the Probate of the Will as sought for by the plaintiff be granted.
9. Mr. Indrajit Sinha, the learned counsel for the respondent nos. 6 & 7 being assisted by Mr. Ankit Vishal on the other hand defended the impugned judgment and relied upon the Judgment of Hon'ble Supreme 8 M.A. No. 220 of 2006 Court of India, in the case of Anil Kak v. Kumari Sharada Raje and Others, reported in (2008) 7 SCC 695, para -42, 52 & 60 of which reads as under:-
"42. It is not a case where a general division was to be made leaving the manner of application to the executors. The will refers to appendices. Once it refers to the appendices indicating that the distribution shall be in terms thereof, it is difficult to comprehend as to how without the same, the will can be said to be a complete one so as to effectuate the intention of the testator. The intention of the testator in other words must be found out from the entire will. It has to be read as a whole. An endeavour should be made to give effect to each part of it. Only when one part cannot be given effect to, having regard to another part, the doctrine of purposive construction as also the general principles of construction of deed may be given effect to. In the instant case, the document is one. It is inseparable. Whereas the principal document provides for the broad division, the principles of division laid down therein would be followed if the appendices are to be taken recourse to. If the principles of equality as has been suggested by the learned counsel is to be given effect to, it was expected that the testatrix intended to confer the same benefit or the benefit having same value or nearabout to be conferred on each of the legatees.
52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
60. The will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main will so as to effectuate the intention of the testatrix have not been proved. The will by its own cannot be given effect to. The will must be read along with the appendices. No doubt in construing a will armchair rule is to be adopted. The will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the will was executed. Existence of a document must mean the actual existence." (Emphasis supplied) Submits that an incomplete Will cannot be probated and without any doubt that this unregistered Will is not accompanied by the annexure mentioned in the portion of the Will that was produced before 9 M.A. No. 220 of 2006 the trial court. Hence, the trial court has rightly denied Probate of the Will on the ground that the same is incomplete. It is further submitted that another ground which was not considered by the trial court is that no provision has been made in the Will for the old wife of the testator though in the Will, the testator has expressed his desire as to how the post death rituals of him and his wife is to be carried out and this also creates a suspicion regarding the Will.
10. Mr. Indrajit Sinha, the learned counsel for the respondent nos.
6 & 7 being assisted by Mr. Ankit Vishal further relied upon the Judgment of Hon'ble Supreme Court of India in the case of Shivakumar and Others vs. Sharanabasappa and others, reported in (2021) 11 SCC 277 para-12.4 of which reads as under:-
"12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator."
And submits that as the Will is surrounded by suspicious circumstances by not making any provision for the old wife of the testator -Dinabandhu Mitra who died subsequent to the death of Dinabandhu Mitra, the onus was heavier on the propounder of the Will in this case and the plaintiff having miserably failed to remove all legitimate suspicions regarding the Will including filing part of the Will by withholding the annexure from the court, the trial court has rightly not allowed the Probate of the Will. Hence, it is submitted that this appeal being without any merit be dismissed.
11. Learned counsel for the respondent nos. 1, 2, 4, 5 & 9 on the other hand submits that the learned court below erred by refusing to 10 M.A. No. 220 of 2006 probate the Will as the annexure of the Will is not essential to interpret the wish of the testator made in the Will. It is then submitted that the trial court, on a trivial ground has rejected the prayer for Probate of the Will. Hence, it is submitted that the Probate of Will as prayed for by the plaintiff be allowed.
12. In view of the rival submissions made at the Bar, the only point for determination that crop up in this appeal is:
"Whether the trial court has rightly rejected the prayer for Probate of the Will as sought for by the plaintiff?"
13. Now coming to the facts of the case, the plaintiff has altogether examined five witnesses out of whom P.W.1 -Indra Bhushan Prasad Singh in his examination-in-chief filed in the shape of an affidavit has supported the averments made in the plaint that the testator was under
sound mental state when he executed the Will and he was knowing the testator for about 30 years. In his cross-examination, the P.W.1 has stated that the defendant nos. 6 & 7 are residing in the property in respect of which the Will has been executed.
14. P.W.2 -Rabindra Nath Bose is one of the attesting witness of the Will and he has proved the Will and the signatures thereon in his examination-in-chief filed in the shape of affidavit. In his cross- examination, he has stated that he is the son-in-law of the testator - Dinabandhu Mitra. The corrections made in the Will do not contain initials of the testator. Dinabandhu Mitra retired from his service with Municipality.
15. P.W.3 - Dilip Thakur is a barber by profession. In his examination-in-chief filed in the shape of affidavit P.W.3 has stated about the execution of the Will by Dinabandhu Mitra on 17.08.2001 under 11 M.A. No. 220 of 2006 sound state of mind. In his cross-examination, he has stated that he cannot say who has got how much share as per the law.
16. P.W.4 - Vishwanath Das has stated in his examination-in-chief filed in the shape of affidavit that the testator was under sound state of mind after his retirement and associated with many organizations. P.W.4-is a doctor by profession. In his cross-examination, he has stated that Dinabandhu Mitra died at about the age of 88 years.
17. P.W.5 -Dr. Arun Kumar Gupta is another doctor who has stated about the sound mental health condition of the deceased and in his cross-examination, he has stated that he does not have any proof of treating the testator.
18. On the other hand, from the side of the contesting defendants, three witnesses have been examined out of whom, D.W.1 -Pratima Roy Choudhary in her examination-in-chief, filed in the shape of an affidavit has stated that one and a half year before his death in the month of October, 2002, the testator -Dinabandhu Mitra was suffering from several ailments and was not going out from his house and he lost his memory and was not able to write and his hands were shivering. In her cross-examination, she has stated that Dinabandhu Mitra was the only owner of Indu Bhawan. Shikha Mitra is the Nanad of her elder sister.
19. D.W.2 -Prem Jha in his examination-in-chief, filed in the shape of affidavit has stated in the same manner as the D.W.1. In his cross- examination, the D.W.2 has stated that he works as a Pump Mistry.
20. D.W.3 -Shikha Mitra is the contesting defendant no.7 herself. In her examination-in-chief, filed in the shape of an affidavit, she has corroborated the averments made in her written statement. In her cross- examination, she has stated that she has read up to matriculation. She 12 M.A. No. 220 of 2006 has not instituted any case against the testator.
21. Perusal of the Ext.1 which is the Will sought to be probated reveals that, as rightly observed by the trial court in the impugned judgment, it has been mentioned therein that the complete plan of Indu Bhawan is annexed with the Will showing the division of the property amongst the sons and daughters by the testator in the said Will and there is a reference in para-1 of the Will about the deed of gift has been marked in the plan annexed to the Will and there is also reference to the plan annexed to the Will regarding the portion of the ground floor which has been gifted to Vikram Kumar Mitra by a registered deed of gift but no such plan is annexed with the Will and no explanation is forthcoming, why no such plan has been annexed neither before the trial court nor before this Court.
22. In view of the settled principle of law in the case of Anil Kak v. Kumari Sharada Raje and Others (supra), this Court has no hesitation in holding that an incomplete Will should not be probated. Additionally, it is a settled principle of law that when the testator do not make any provision in the Will for his widow, the same amounts to a suspicious circumstance regarding the execution of the Will, as has been held by the Hon'ble Supreme Court of India in the case of Bhagwan Kaur w/o Bachan Singh vs. Kartar Kaur w/o Bachan Singh and Others, reported in (1994) 5 SCC 135 para-8 of which reads as under:-
"8. The High Court took support for its view from the fact that the testator was a clerk of a lawyer, presumably knowing the intricacies of law, and that since he died about 4 years later that left no room for suspicion to the due execution of the will. The High Court, however, ignored two important suspicious circumstances those being--
(i) the legatee took active part in the execution of the will; and
(ii) no provision was made in the will for the two widows of 13 M.A. No. 220 of 2006 the testator, when one of whom, the appellant, was not even related to the legatee.
The pious wish expressed by the High Court that it was expected of the legatee to look after the welfare of the appellant was, according to us, of no consequence. Had these two suspicious circumstances been kept in mind by the High Court, we have no doubt that the finding of fact disturbed by the High Court would not have occasioned in the totality of circumstances. Thus, we have no option, but to upset the decision of the High Court." As in the Will sought to be probated in this case, no provision for the old wife of the testator -Dinabandhu Mitra has been made though evidence has come that the testator-Dinabandhu Mitra pre-deceased his wife, hence the same is also a circumstance which creates suspicions about the Will, of course the same was not considered by the trial court.
23. In view of the discussions made above, this Court has no hesitation in holding that the trial court has not committed any error in dismissing the prayer as prayed for by the plaintiff in the suit and the trial court has rightly rejected the prayer for Probate of the Will as sought for by the plaintiff. The sole point of determination is answered accordingly.
24. Thus, this appeal being without any merit is dismissed on contest but under the circumstances, without any costs.
25. Let a copy of this Judgment along with Lower Court Records be sent back to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 8th August, 2022 AFR/ Sonu-Gunjan/-