Delhi District Court
Bikas Nag Chowdhuri vs . State & Ors. on 28 January, 2019
Digitally
signed by
AJAY GULATI
AJAY Date:
GULATI 2019.01.29
16:05:47
+0530
Bikas Nag Chowdhuri vs. State & Ors.
IN THE COURT OF DR. AJAY GULATI, ADDL. DISTRICT JUDGE,
ROOM NO. 606, SAKET COURTS, SOUTH DISTRICT,
NEW DELHI
In the matter of
PC No.5906/2016
Filing No. 26137/2010
CNR No. DLST010002822010
1. Bikas Nag Chowdhuri
S/o Late Sh. B. K. Nag Chowdhuri
R/o B329, Chittaranjan Park,
New Delhi
2. Binoy Nag Chowdhuri
S/o Late Sh. B. K. Nag Chowdhuri
R/o B329, Chittaranjan Park,
New Delhi
................Petitioners
Versus
1. The State
2. Bipul Nag Chowdhuri
S/o Late Sh. B. K. Nag Chowdhuri
R/o L1A/43, Mohan Garden,
New Delhi
3. Biman Nag Chowdhuri
S/o Late Sh. B. K. Nag Chowdhuri
R/o 71, Kensington Drive,
Pispataway, New Jersey
4. Bibhash Nag Chowdhuri
S/o Late Sh. B. K. Nak Chowdhuri
PC No. 5906/2016 Page no. 1 of 33
Bikas Nag Chowdhuri vs. State & Ors.
R/o B129, C. R. Park,
New Delhi
5. Bilash Nag Chowdhuri
S/o Late Sh. B. K. Nag Chowdhuri
R/o 6601, Broadway Apartment,
2H, Bronx New York
6. Smt. Bithi Aich
W/o Sh. Gautam Aich
D/o Late Sh. B. K. Nag Chowdhuri
R/o G1300 (G.F.), C. R. Park,
New Delhi
.............Respondents
Date of Institution : 05.08.2010
Date of reserving the judgment: 24.01.2019
Date of pronouncement : 28.01.2019
Decision : Dismissed
PETITION UNDER SECTION 276 OF THE INDIAN SUCCESSION
ACT,1925 FOR GRANT OF PROBATE FOF THE WILL DATED 2ND
AUGUST, 1991 MADE BY LATE SHRI B. K. NAG CHOWDHURI S/O
LATE SHRI BASANTA KUMAR NAG CHOWDHURI
JUDGMENT
1. Petitioners have sought letters of administration in terms of the Will of their father late Sh. B. K. Nag Chouwdhuri (hereinafter to be referred to as the Testator). Will dated 02.08.1991 was purportedly executed by late Sh. B. K. Nag PC No. 5906/2016 Page no. 2 of 33 Bikas Nag Chowdhuri vs. State & Ors.
Chowdhuri in favour of the petitioners and respondent no. 5, all three being his sons, to the exclusion of his 3 other sons (i.e. Respondents no. 2 to 4) and a daughter (respondent no.
6). The subject matter of the Will is house no. B329, Chittaranjan park, New Delhi specific portions of which have been bequeathed to the petitioners and respondent no. 5. Surprisingly however, despite being a beneficiary, respondent no. 5 has opposed the prayer for grant of letters of administration, along with Respondents no. 2 to 4 and respondent no. 6. In effect, all the private respondents have opposed the Will on the ground that the same is a forged and manipulated document. Respondent No.1 is the State/General Public from which side no objections were filed.
2. The Will in question has been opposed by alleging that the same has been forged and manipulated by the petitioners since late Sh. B. K. Nag Chowdhuri died intestate. It is interesting to highlight that allegations of manipulation and forging of the Will are not supported by any specific assertions as to the mode of manipulation or forgery. Thus, private respondents have neither alleged that the signature of Testator were forged on the Will, or that the Will has been prepared on presigned papers of the testator or that the Will PC No. 5906/2016 Page no. 3 of 33 Bikas Nag Chowdhuri vs. State & Ors.
was got signed from Sh. B. K. Nag Chowdhuri under a misrepresentation or by practicing some fraud upon him. The private respondents have however challenged the Will by highlighting 'suspicious' circumstances which are narrated as follows - that both the attesting witnesses to the Will are close friends of the petitioners, that the real sister of the purported testator resided in close vicinity of the testator but she was not an attesting witness even though the Testator was a witness in her Will, that there was simply no reason for the testator to have excluded his 4 other children from any benefit since he was equally fond of all his children and infact had deep affection for his only daughter, that he did not even provide anything for his wife though she was alive at the time when the Will was prepared; and that Testator had a very wide circle of friends and relatives which casts a doubt as to why would he ask close friends of the petitioners to be the attesting witnesses.
3. It is important to highlight that respondent no. 6 had filed a suit for partition of the property no. B329, Chittaranjan park, New Delhi by contending that late Sh. B. K. Nag Chowdhuri had died intestate. However, on entering appearance, petitioners herein, as defendants in the partition PC No. 5906/2016 Page no. 4 of 33 Bikas Nag Chowdhuri vs. State & Ors.
suit, set up the Will dt. 02.08.1991. Subsequently, the suit for partition was rejected (under Order VII Rule 11 (b) & (c) of the Code of Civil Procedure, 1908 for non payment of requisite court fee).
4. In view of the common defense taken by the private respondents with regard to general allegations of manipulation and forgery of the Will in question, it is relevant to outline that late Sh. B. K. Nag Chowdhuri was a retired government servant. After retirement, he practised as a lawyer for 10 years though he was not in active practice in the year of making of the Will i.e. 1991. Though he expired in the year 1996 and even his wife expired a couple of years later, the suit for partition by the daughter (respondent no. 6) was filed in the year 2009.
5. Petitioners in their reply to the objections filed by respondent No. 2 to 6 reiterated the averments made in the petitioner by submitting that the Testator Sh. B. K. Nag Chowdhuri had executed the Will dated 02.08.1991 with the consent of all of his children, and was not suffering from any disease; that the Testator expired on 10.08.1996 due to paralytic attack; that due to family responsibilities and illness of their mother who expired on 13.08.1998, petitioners could PC No. 5906/2016 Page no. 5 of 33 Bikas Nag Chowdhuri vs. State & Ors.
not marry; and that in the year 2009, respondents approached the petitioners for some money but when they expressed their inability, respondents threatened to involve them in false litigation. On merits, petitioners denied the allegations levelled by respondent No.2 to 6 in their objections.
ISSUES
6. Vide order dated 23.04.2012, following issues were framed by the Learned Predecessor Judge for proper adjudication of the present petition:
1. Whether Will dated 02.08.1991 executed by Late Shri B. K. Nag Chowdhuri in favour of the petitioner is validly and legally executed? OPP
2. Whether petitioner is entitled for grant of letters of administration in respect of Will dated 02.08.1991? OPP
3. Whether the objections filed on behalf of respondents are valid and maintainable? OPD
4. Relief PC No. 5906/2016 Page no. 6 of 33 Bikas Nag Chowdhuri vs. State & Ors.
EVIDENCE ADDUCED
7. In order to prove their claim, petitioners examined themselves as PW1 & PW2 i.e. petitioner No.1 Bikas Nag Chowdhuri as PW1 & Binoy Nag Chowdhuri as PW2; Sudatta Sen as PW3; and Ranjan Nag as PW4. (PW3 & PW4 were the attesting witnesses)
8. PW1 Bikas Nag Chowdhuri led his evidence by way of affidavit Ex.PW1/A and relied on the following documents:
1. Original death certificate of Late Sh. B. K. Nag Chowdhuri as Ex.PW1/1;
2. Photocopy of Lease Deed dated 15.10.1973 as Ex.PW1/2 (OSR);
3. Original Will dated 02.08.1991 as Mark A;
4. Site plan of the property No.B329 as MarkB; and
5. Photocopy of letters dated 10.04.1991, 28.10.1992 and 07.07.1993 as Ex.PW1/4
9. PW1 deposed on the lines of his petition. During his cross examination, PW1 deposed that the Will was drafted at PC No. 5906/2016 Page no. 7 of 33 Bikas Nag Chowdhuri vs. State & Ors.
home by his father on 2.8.91. He further deposed that though he was not present at that time, he later on came to know about this fact. However, further down in his cross examination, he changed his testimony and submitted that he did not know as to who typed the Will or where was it typed. He admitted that Testator's sister was living nearby. Regarding Sudatto who was one of the attesting witnesses, PW 1 submitted that he was a close family friend and not his close friend. He denied the suggestions that in the year 1991, testator needed an attendant to go out of the house or that he was suffering from 'trembling problem'. Regarding disclosure of the Will to family members, PW 1 deposed that on the next date of execution of the Will, testator disclosed about the Will to the family and relatives. PW 1 admitted that at the time when the Will was executed, 2 of his brothers (Respondent no. 2 & 5) were living abroad.
10. Witness also admitted that Testator had very good relations with his wife i.e. mother of the parties. Regarding the 2nd attesting witness, Ranjan Nag, PW 1 submitted that he was not a close friend of petitioner no. 2 but a family friend and that his father (testator) also regarded Ranjan Nag as a family friend. He denied suggestions of having forged the Will or that PC No. 5906/2016 Page no. 8 of 33 Bikas Nag Chowdhuri vs. State & Ors.
the Will was never disclosed to anybody till the filing of suit for partition by respondent no. 6.
11. PW2 Binoy Nag Chowdhuri tendered his evidence by way of affidavit Ex.PW2/A. He relied on the documents already exhibited by PW1 Bikas Nag Chowdhuri. In his cross examination, this witness deposed that the Will was handed over to both the petitioners on the very next date of the execution, in the presence of their mother. He expressed ignorance as to where was the Will typed. However, he admitted that the testator had good relations with all his children. He further deposed that neither of the petitioners disclosed about the Will to the other siblings and he was not aware as to whether his father had disclosed about the Will to his other children. Regarding the attesting witness Ranjan Nag, PW 2 deposed that he was a common friend of his and petitioner no. 1. The 2nd attesting witness Sudutto was stated to be a family friend. The witness denied that testator used to keep an attendant to go out of the house. However, witness admitted that on the date of execution of the Will, testator was not in active legal practise. Towards the end of his cross examination, PW 2 deposed that he didn't remember as to when did their father disclose them about the Will. This is in PC No. 5906/2016 Page no. 9 of 33 Bikas Nag Chowdhuri vs. State & Ors.
contradiction to his initial deposition where he said that the Will was handed over to both the petitioners on the very next date of execution, in the presence of the mother. PW 2 denied suggestions regarding forging of the Will. He also could not explain as to how could he regard the attesting witnesses as family friends since he was unable to depose as to when did the families of attesting witnesses and the testator became friends?
12. PW3 Sudatto Sen was one of the attesting witnesses to the Will. He exhibited the Will as Ex. PW3/A. In his examinationinchief, he deposed that Testator signed in his presence as well as the 2 nd attesting witness. He identified the signatures of testator as also his own signatures.
13. In his crossexamination, PW 3 deposed that he didn't know as to who had drafted his affidavit; that he knew Binoy as a friend & both the petitioners were his family friends; that in 1991, Testator called him at his house in the evening when his wife was also present; that the Will was not drafted in his presence; that the Testator had read over the contents of the Will & asked him to read the same as well; that except petitioners, other children of the Testator were away to their respective places of work; and that Bipul and Bilash PC No. 5906/2016 Page no. 10 of 33 Bikas Nag Chowdhuri vs. State & Ors.
(respondent No.2 & 5) were living abroad. He denied the suggestion that Testator was in a state of depression on the date of signing of the Will by adding that he was mentally fit. He further submitted that he did not know as to who and where was the Will drafted; that Testator did not inform him as to why his other children had been denied a share in the immovable property; that he did not disclose about the Will to any of the children of the Testator; that his wife and children were not on visiting terms with the petitioner or his family members; that the Testator called him one day before the execution of the Will to come on the following day in the evening; that when he reached the house of the Testator, the Will was ready & complete in all respects; and that Testator never requested the witness to appear for registration of the Will. He further submitted that his father and the Testator, both were from Calcutta and were in Government service, and had became acquainted with each other; and that he was called by the Testator on phone. He denied the suggestion that the Will was never executed in his presence.
14. PW4 Ranjan Nag, 2nd witness to the Will in question tendered his evidence by way of affidavit A4 and proved the Will dated 02.08.1991 as Ex.PW3/A. During his cross PC No. 5906/2016 Page no. 11 of 33 Bikas Nag Chowdhuri vs. State & Ors.
examination, he submitted that he was called by Testator a day before the execution of the Will with a request to come the following day; that when he reached the house of the Testator, only Testator and other attesting witness was present; that his affidavit in evidence was not prepared by him but the same was prepared by Bikas and Binoy in Saket; that he did not visit the office of Oath Commissioner; that Testator had read over the contents of the Will and asked him to sign; that nothing more had happened in his presence; that Testator used to love all his children alike and had abundant love for his daughter; that he did not know by whom and when was the Will drafted; that he could not say as to when was the Will prepared or drafted, or whether the Testator was under some pressure/ coercion or the same was got done by fraud; and that Sh. B. K. Nag Chowdhuri asked him not to disclose about the Will to anybody including his children.
No other witness was examined on behalf of the petitioners.
On behalf of respondent No.2 to 6.
15. Respondent No.2 to 6 in order to controvert the PC No. 5906/2016 Page no. 12 of 33 Bikas Nag Chowdhuri vs. State & Ors.
claim of the petitioners, examined respondent No.6 Ms. Bithi Aich as RW1; and respondent No.4 Bibhash Nag Chowdhuri as RW2.
16. RW1 tendered her evidence by way of affidavit R1. In her examination in chief by way of affidavit, she deposed on the lines of the joint objections filed by respondent No.2 to 6 by deposing that none of them were aware of the execution of the Will and even their mother did not have knowledge about the Will. She further deposed that in 2009, all the siblings decided to equally divide the property in question or to divide the sale proceedings of the same amongst themselves. However, even at that time petitioners did not disclose about the Will but later on withdrew their consent to the family agreement; that it was only after filing of suit for partition by her that they got to know about the alleged Will dated 02.08.1991 of their father Late Sh. B. K. Nag Chowdhuri; and that the Will was manipulated by the petitioners with the help of their friends since there was no occasion for her father to deprive his other children from his estate.
17. During her cross examination, she deposed that the health of her father was perfect after his retirement; that he practised law for few years after retirement; that Bikas and PC No. 5906/2016 Page no. 13 of 33 Bikas Nag Chowdhuri vs. State & Ors.
Binoy had been residing in the house (B329, C. R. Park) from the very beginning and none of the siblings objected to their staying in the same; that she had cordial relations with all her brothers but before asking for the partition of the property, petitioners were not on talking terms with her; that due to bad behaviour of the petitioners towards her and to meet the financial requirements of elder brother, who was jobless after returning from USA as well as her own financial needs for sending her children abroad, she filed the suit for partition; that in the meeting held at B329, C. R. Park (referred to in para 9 of her affidavit R1) apart from herself, Bibhash, Bikas, Binoy, Bipul and Biman were present but there was no consensus outcome from the same; that she did not remember the month of 2009 when the meeting was held (denied the suggestion that no such meeting was ever held); that both her versions i.e. decision of siblings to divide the property and that there was no consensus outcome of the meeting, were correct since due to disagreement of the petitioners to divide the property or to divide the proceedings from sale of the property, nothing was finally decided; and that during the last phase of her father's life, she used to visit him who was not suffering from any physical disability during that period but PC No. 5906/2016 Page no. 14 of 33 Bikas Nag Chowdhuri vs. State & Ors.
used to forget things due to old age.
18. RW1 denied the suggestions that her father was fully mentally oriented during the last phase of his life (but admitted that no medical records were filed which could show that her father was not mentally oriented); and that her parents had conveyed to her about the Will (voluntarily added that her mother did not even know about the Will). When the witness was asked to explain the meaning of "forged", she replied that first, her father was an outspoken person and would have discussed about the execution of the Will, secondly the way the property was bequeathed, thirdly her father was witness to the Will executed by her Bua but she (Bua), being a sincere person & living in the vicinity, could not have been ignored for being a witness to the Will dated 02.08.1991; and her mother was not made a beneficiary under the Will, which made her believe that the Will was a forged document. She further submitted that she was very dear to her father but even she was also excluded from any benefit without any reason.
19. RW2 Bibhash Nag Chowdhuri is respondent No.4 and constituted attorney of respondent No.3 & 5 in the present petition who deposed by way of affidavit R2. RW2 also deposed on the lines of the objections filed by respondent No.2 PC No. 5906/2016 Page no. 15 of 33 Bikas Nag Chowdhuri vs. State & Ors.
to 6. During his cross examination on behalf of the petitioners. He deposed that after shifting from his father's place in the year 1984, he regularly visited him (father). He denied that he had wrongly stated in para 5 of his affidavit R2 that his father used to share all family decisions particularly with Biman and himself. He further deposed that he and his brother Biman had instructed his two brothers to accompany their father whenever he went out of the house; and that at the time of death of their father, petitioners were residing at B329, C. R. Park, New Delhi where they were living from the very beginning and to which he never objected. Witness denied the suggestion that since he was aware of the Will dated 02.08.1991, hence he did not object to the staying of petitioners in the property in question. He asserted that his statement in para 7 of his affidavit R2 to the effect that he was not aware of the Will executed by his father was correct.
20. RW2 after going through para 8 of his affidavit R1, deposed that except Bilash, all participated in the said meeting which was held at B329, C. R. Park, New Delhi; that said meeting was held in the beginning of 2009 in which no consensus was arrived at (denied the suggestion that no such meeting was ever held); and that since his father was himself a PC No. 5906/2016 Page no. 16 of 33 Bikas Nag Chowdhuri vs. State & Ors.
lawyer & the way the Will had been drafted, he could say that the same was not a genuine and valid document. In response to a question by the cross examining counsel for explaining the meaning of "the same has been created by manipulation by Binoy and Bikas with the help of their friends", RW2 submitted that there were many of their relatives in C. R. Park but none of them were made witnesses to the Will and for that reason, he had stated so.
No other witness was examined on behalf of respondent No.2 to 6.
FINDINGS
21. I have heard the arguments advanced by the Learned counsel for the parties and have minutely gone through the record and the evidence adduced by the parties. The issuewise findings are as under:
ISSUE NO.1 & 31. Whether Will dated 02.08.1991 PC No. 5906/2016 Page no. 17 of 33 Bikas Nag Chowdhuri vs. State & Ors.
executed by Late Shri B. K. Nag Chowdhuri in favour of the petitioner is validly and legally executed? OPP
3. Whether the objections filed on behalf of respondents are valid and maintainable? OPD
22. Both these issues are being taken up together since both have a mutual bearing and require a common discussion.
23. Challenge to the authenticity of the Will has been laid by alleging manipulation and forgery by the petitioners. However, as already highlighted at the outset, there is no pleading by the private respondents with regard to the mode of manipulation or forgery except for general allegations. Even during the cross examination of RW 1 and RW 2, the witnesses only deposed that the basis for alleging forgery of the Will was that (i) the Will has been attested by persons who are close friends of the petitioners; (ii) no provision was made in the Will for the wife of the testator (i.e. mother of the petitioners and respondents); (iii) testator had a large circle of friends & relatives including his real sister who lived in close vicinity and in normal course of things, testator would have called upon someone close to him to attest the Will; and (iv) there is no PC No. 5906/2016 Page no. 18 of 33 Bikas Nag Chowdhuri vs. State & Ors.
reason at all mentioned by the testator in the Will as to why did he leave out the other children from any bequeath. In other words, respondents have tried to build up a case that the Will cannot be trusted as a genuine testament since it is surrounded by certain unexplained factors/circumstances which cast a doubt on its legitimate execution.
24. However, as opposed to the suspicious circumstances, there are certain very strong countervailing factors which dispel the suspicion that has been sought to be woven by the respondents. Most importantly, the signatures of the Testator on the Will have not been disputed at all. There is no pleading/allegation to the effect that the Will was prepared on presigned blank papers of the Testator which effectively negates any possibility of forgery or manipulation. Further, the respondents have not set up a plea that the testator was in such a physical or mental state of mind that he could have been influenced into making the Will in question. The respondent witnesses themselves admitted that the testator was enjoying good health and it is only towards his last days that his health failed. That however would not be relevant at all since the Will was executed 5 years prior to his death when admittedly he was enjoying good health. Being a PC No. 5906/2016 Page no. 19 of 33 Bikas Nag Chowdhuri vs. State & Ors.
retired central government civil servant and then an advocate with 10 years standing would mean that the chances of him having been induced to sign the Will by misrepresentation were almost negligible. In any case, no such allegation has been leveled by the respondents.
25. Apart from the above listed factors, it has to be kept in mind that respondent no. 6 filed a suit for partition almost 13 years after the death of the testator. If the testator had actually died intestate, none of the children would have waited for such a long period to seek their respective shares especially since even the mother of the litigating parties died just 2 years after the death of the testator. Respondents claim to have called a family meeting of all the siblings to discuss the issue of shares of all the children in the property No.B329, in the year 2009. Petitioners deny that any such meeting took place but the respondents assert that such a meeting was convened in May 2009 wherein the petitioners initially agreed for partition but backed out later. A perusal of the cross examination of RW1 reveals the genesis of the partition suit. In response to a specific question about the meeting, witness responded that since she and her elder brother were in financial need, they agreed to divide the property or to divide the sale PC No. 5906/2016 Page no. 20 of 33 Bikas Nag Chowdhuri vs. State & Ors.
consideration of the same amongst themselves but petitioners did not agree to the same. It is thus reasonably clear that respondents asked for some amount from the petitioners which the petitioners refused to pay up resulting in the filing of the partition suit. It appears that the driving force behind the partition suit was not the fact that father of the parties had died intestate but that respondent No.6 was aggrieved with the behavior of the petitioners.
26. In so far as the suspicious circumstances surrounding the Will which the private respondents have tried to highlight are concerned, suffice to say that even if considered together these are not cogent enough to return a finding that the Will is not a genuine testament, especially in view of the countervailing factors already highlighted above. It is very difficult to enter into the mind of testator to figure out as to what prompted him to leave some of his children from the benefit of enjoying his estate and even his wife. In the absence of any such reasoning given in the Will, it is open for the Court to revert to surmises and assumptions. However, such a course of action is fraught with the danger of element of subjectivity seeping in the judgment and which aspect must be avoided at any cost. For example, the Court can conclude PC No. 5906/2016 Page no. 21 of 33 Bikas Nag Chowdhuri vs. State & Ors.
that the testator was confident that his sons (petitioners) would look after and serve the mother well which might have been the reason that he was probably not worried about her security, or that he must have had longevity of the attesting witnesses in mind while calling the friends of the petitioners to attest the Will rather than calling his sister who presumably (again a presumption) must have been a senior citizen.
27. If there is no reasoning given in the Will by the testator for leaving out the wife and some of his children from bequeath, in the absence of any evidence to show that the Will has been forged or is a result of manipulation, the Court has no option but to conclude that it was the best judgment of the Testator. Similarly, the choice of attesting witnesses also has to be seen as a matter of best wisdom of the Testator. It also needs to be highlighted that simply by highlighting certain aspects such as leaving out the wife and some of his children from bequeath by the Testator, or calling the friends of the beneficiary sons to be attesting witnesses, does not by itself mean that the Will has to be treated as not being a validly executed testatment. In the understanding of the court, suspicious circumstances have to point towards an assumption against the due execution of the Will in question, or in other PC No. 5906/2016 Page no. 22 of 33 Bikas Nag Chowdhuri vs. State & Ors.
words the suspicion must be such that it compels the Court to disbelieve in the authenticity of the testament. However, in the present case, the objections raised by the respondents by themselves do not point towards any circumstance which could show that there has been manipulation in the preparation of the Will. RW 2 while being cross examined, when asked the basis for his assertion that the Will in question is forged, simply submitted that it could not have been drafted in the manner that it was. The attesting witnesses were not put any suggestions that the Will had been forged or that the testator did not put his signatures on the Will in their presence.
28. During the course of final submissions, ld. Counsel for the respondents relied on various judgments to buttress the argument that once the Will is shown to be surrounded by suspicious circumstances, the same must not be relied upon. The judgments relied upon are as under:
1. Pratap Singh & Anr. vs. The State & Anr. FAO (OS) NO.181/209 decided on 12.08.2010;
2. Smt. Rita Ramesh @ Rita Sahani vs. State 2007 (3) RCR Civil 669;
3. Suraj Prakash vs. Usha Rani RFA No.116/2011; and PC No. 5906/2016 Page no. 23 of 33 Bikas Nag Chowdhuri vs. State & Ors.
4. Kalyan Singh vs. Smt. Choti & Anr. Civil Appeal No135(N) of 1973.
29. In so far as the proof regarding preparation of Will is concerned, even though testimony of PW1 was a shade contradictory regarding this aspect (highlighted in para 9), it cannot be overlooked that the testator himself was a practicing lawyer and thus could have very well drafted the Will himself. This precisely was the initial response of PW1 in regard to the question as to where was the Will prepared. Absence of specific evidence with regard to preparation of Will is thus not of much significance since the Testator himself was a lawyer.
30. Regarding leaving out the wife and only daughter from any benefit under the Will, it has already been observed that such an intention of the Testator has to be taken as his best judgment of how his asset should be apportioned. Further, a specific argument was raised by the ld. Counsel (by highlighting the testimony of PW3 and PW4) that the testator never signed the Will in the presence of attesting witnesses as it was argued that in the cross examination of both the attesting witnesses, the witnesses replied that the Will was complete in all respects when they reached the house of the PC No. 5906/2016 Page no. 24 of 33 Bikas Nag Chowdhuri vs. State & Ors.
Testator/put their signatures on the Will. This was highlighted by the ld. Counsel as being an indication that Will had already been signed by the Testator but not in the presence of the witness. It is not clear as to what precisely was asked from the witness in response to which they stated that the Will was complete in all respects when he signed it. The fact that PW3 & 4, as attesting witnesses, signed the Will means that the Will could not have been complete in all respects. Even assuming the best in favour of the respondents, there is no requirement that the Testator must always sign in the presence of the witnesses. The statutory requirement is that the attesting witness in such a case, must receive acknowledgment from the testator that he has signed the Will. In any case, the PW3 positively asserted in his chief examination that the testator had signed in his presence and in cross examination, the witness denied all suggestions to the effect that the Will was not signed by the testator in his presence.
31. At the cost of repetition, it needs to be highlighted that there is no allegation in the pleadings (objections/written statement) that the signatures of the Testator have been forged or that his signatures were obtained on the Will by misrepresentation or that his presigned papers were used for PC No. 5906/2016 Page no. 25 of 33 Bikas Nag Chowdhuri vs. State & Ors.
the preparation of the Will. There is also no allegation in the written statement /objections or even the affidavits of RW's that the attesting witnesses to the Will were not present on 02.08.1991 before the Testator or that the Will has not been signed by the Testator in the presence of witnesses. However, at the stage of final arguments and at the stage of seeking clarification, ld. Counsel for the Respondents argued majorly on the assertion that the Testator did not sign in the presence of the Witnesses. For submitting this argument, ld. Counsel highlighted the cross examination of PW3 and PW4 which is being again highlighted.
32. PW3 in his cross examination deposed that when he was shown the Will, it was complete in all respects. He was then read out the Will by the Testator and Testator asked the Witness also to read it. Thereafter, the witness (PW3 Suddato Sen) signed the Will. This particular portion of the deposition of PW3 has been highlighted by the ld. Counsel for Respondent to contend that Will had not been signed by the Testator in the presence of the attesting witness. With regard to deposition of PW4, ld Counsel highlighted that this attesting witness categorically submitted in his cross examination that he only signed the Will after it was given to PC No. 5906/2016 Page no. 26 of 33 Bikas Nag Chowdhuri vs. State & Ors.
him by the Testator after reading it out and that nothing else happened in his presence. The relevant part of his cross examination is reproduced below: "On the date of execution of alleged Will, Mr. B. K. Nag Chowdhuri read over the contents of the Will and asked me to sign, if I have no objection and so I signed the same as a witness. Besides this, nothing had happened in my presence."
33. In so far as PW4 is concerned, his testimony is required to be omitted altogether from consideration in view of the fact that in his cross examination, the Witness admitted that neither did he get his affidavit prepared himself nor did he appear before the Oath Commissioner. He also admitted that he was not present when the affidavit was got prepared. The testimony of a witness, who did not even present himself before the oath commissioner for solemn affirmation with regard to its contents, cannot be relied upon by the Court. Perusal of his cross examination (relevant part reproduced below) clearly shows that he appended his signatures on the affidavit which was already prepared by the Petitioners-
PC No. 5906/2016 Page no. 27 of 33 Bikas Nag Chowdhuri vs. State & Ors.
"I had signed my affidavit (A4) on the asking of Bikash and Binoy, who had come to my house with the copy of Will. My affidavit was got prepared by Bikash and Binoy in Saket Courts Complex and they had shown me my affidavit, which is A4 and I had signed it. I had not got prepared my affidavit A4 myself. I did not vist in the office of Oath Commissioner. I did not visit any other place in respect of my affidavit except Saket Courts Complex."
34. Thus, the affidavit of PW4 neither having been prepared in the presence of the witness nor on his instructions, cannot be read into evidence.
35. In so far as PW3 is concerned, in his examination in chief, the witness deposed that the Testator signed in his presence. However, in his cross examination, he deposed that Testator after reading out the Will to him, asked him to read it and thereafter, he (i.e. witness) signed the Will. The moot question is whether the Witness was specifically required to again depose in his cross examination to the effect that Testator had signed in his presence without a specific question being asked?
PC No. 5906/2016 Page no. 28 of 33 Bikas Nag Chowdhuri vs. State & Ors.
36. At this stage, it needs a highlight that as per Section 63 of the Indian Succession Act, there is no strict requirement that a testament must be signed by the maker thereof in the presence of the witnesses or that both the witnesses must have signed in the presence of each other. In case the testament has already been signed by the testator/trix and then presented to the witness, the legal requirement is that the witness must receive an acknowledgment by the testator that he has signed the testament. Further, it is the signature of witnesses which must be appended on the Will in the presence of the Testator. Even with regard to the attesting witnesses, there is no requirement that both the witnesses must sign in the presence of each other.
37. The cross examination of PW3 was not conducted in the form of questions and answers but in a narrative form. It is thus difficult to decipher the context with reference to which the witness deposed that the Will was 'complete in all respects' when it was shown/presented to him. This limited part of cross examination is insufficient to conclude that Will was not signed by the Testator in the presence of the Witness especially since there is categorical positive assertion in the examination inchief of the Witness to the effect that Testator signed in his PC No. 5906/2016 Page no. 29 of 33 Bikas Nag Chowdhuri vs. State & Ors.
presence.
38. However, in view of the fact that Will in question was conspicuously silent on the reasons for excluding wife, daughter and 3 other sons from any benefit which does arouse suspicion, the Court carefully examined the Will. What the court stumbled upon after minutely examining the Will, has not been argued by the Learned Counsel for the Respondents. It appears that the argument of the respondents that the testator did not sign the Will in the presence of attesting witnesses is not wholly without basis. However, the said argument has not been put forth in correct perspective which is that it is the attesting witnesses who have not signed in the presence of the Testator. A minute examination of the 2nd page of the Will reveals that the font size of the para which appears above the signatures of the Testator is marginally bigger than the para appearing below the signatures of the Testator which conveys an impression that the part below the signatures of the Testator was typed at a later time so as to ensure sufficient blank space for attesting witnesses. Further, in the para relating to the witnesses, there is an insertion of the word 'time' after the word same. But this insertion has been countersigned with the initial 'RN', probably indicating Ranjan PC No. 5906/2016 Page no. 30 of 33 Bikas Nag Chowdhuri vs. State & Ors.
Nag (PW4). In normal course, any correction/modification of the Will has to be countersigned by the Testator/trix. In the present case, the Testator himself having practiced law for 10 years would have very well known about the importance of any correction/modification being countersigned by the Testator himself. This aspect also strengthens the doubt that the attesting witnesses did not sign in the presence of the testator. Still further, assuming that the Will was prepared by the Testator himself at his residence, why did he not put the names and addresses of the attesting witnesses, keeping in view that both the attesting witnesses were supposed to be family friends and both had been specifically called by the testator a day before the date of execution of the Will. The fact that Will was propounded almost 13 years after the death of Testator, that too after suit for partition was filed by the sister (respondent No.6) is another factor which puts the Will in the dock of suspicion. There is no explanation as to why did the petitioners not take any steps for getting the property mutated in their names on the basis of the Will. Atleast after the death of mother in 1998, petitioners could have taken steps for getting the property transferred. If respondent No.6 filed partition suit 12 years after the death of Testator, petitioners PC No. 5906/2016 Page no. 31 of 33 Bikas Nag Chowdhuri vs. State & Ors.
also kept the Will in question under wraps for the same period which means that the argument of delay cuts both ways. Nevertheless, the finding recorded above convincingly proves that the attesting witnesses did not sign the Will in the presence of the Testator which is the mandatory requirement of law and hence, the Will was not made as per the procedure established by law. As a corollary, the Will in question has to be held as an invalid testament. Issue No.1 is thus decided against the petitioners and issue No.3 is decided in favour of the respondent No.2 to 6.
ISSUE NO.2 Whether petitioner is entitled for grant of letters of administration in respect of Will dated 02.08.1991? OPP
39. In view of the findings given under issue No.1 and issue No.3, this issue is decided against the petitioners.
PC No. 5906/2016 Page no. 32 of 33 Bikas Nag Chowdhuri vs. State & Ors. RELIEF
40. In view of the above discussion, the petition is dismissed. The original Will shall remain part of the judicial file, in terms of section 294 of the Indian Succession Act, 1925 and it will not be returned to the petitioner. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (DR. AJAY GULATI)
COURT ON 28.01.2019 ADDL. DISTRICT JUDGE02
SOUTH, SAKET COURTS,
NEW DELHI
PC No. 5906/2016 Page no. 33 of 33