Calcutta High Court
In The Goods Of: Phani Bhusan Sinha ... vs Unknown on 8 March, 2002
Equivalent citations: (2002)3CALLT279(HC)
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT Amitava Lala, J.
1. This is a testamentary suit in the goods of one Phani Bhusan Sinha, generally known as P.B. Sinha, deceased. Smt. Purnima Sinha, wife of the deceased has claimed to be the executrix and beneficiary under the Will. She is the propounder herein. Her only issue, Sri Debungshu Sinha is the caveator. At present the family consists of the widow (the propounder, the only son (the caveator), daughter-in-law and the sole grand-daughter of the deceased. The property under the Will consists of a three-storied house within a total land area of 3 cottahs and 9 sft. more or less.
2. One day after the death of the deceased, the Will came out from the custody of the propounder who, in turn, filed an application for grant of probate of the Will in this Court. Special citation was served. The caveator lodged the caveat and, thereafter, filed an affidavit in support of such caveat. Thus, it become contentious cause.
The following issues framed hereunder:
ISSUES
1. whether the signature of the executor under the Will is genuine or not?
2. whether there is any surrounding circumstances available to refuse the Will?
3. what reliefs the party or parties are entitled to?
ADDITIONAL ISSUE
1. whether the propounder has paid the appropriate ad valorem Court fee or not on the assets?
3. Since the additional issue is related to maintainability of the proceeding let the same be decided by me at first. The learned counsel for the caveator raised a dispute that under Section 32 of the West Bengal Court Fees Act, 1970 no order entitling a person to grant a probate or Letters of Administration shall be made upon an application for such grant unless the petitioner pay the Court fees as per valuation of the property in the form set forth in Schedule III therein. The Court is to be satisfied that the fees mentioned in No. 10 of Schedule I has been paid on such valuation. Schedule III speaks about the market valuation of the assets etc. In determining such valuation for the purpose of payment of Court fees the date of application is to be counted as appropriate date but not the date of death as per Schedule I Article 2 of the Court Fees Act. The Court Fees Act is not the statute introduced for making order but it only shuts out the grant of probate or Letters of Administration so long the party claiming it. fails to disclose the valuation in respect of estate of the deceased and to pay the appropriate Court fees on it. He has relied upon paragraph 13 of the judgment (Smt. Rajeswari Misra and Anr. v. Markandeshwar Mahadeo and Ors.). According to him, Section 19(h) and Sub-clause (ii) of the West Bengal Court Fees Act stipulate that High Court shall cause notice of the application to be given to the Chief Controlling Revenue Authority for the area in which the property situates when such application is made before the High Court. No order can be made without ascertaining such position.
4. According to the learned counsel, appearing for the propounder, nonpayment of Court fees cannot be the ground of refusing the probate. The proper Court fees has been paid on the basis of Municipal valuation. There is no evidence whether valuation of the property is higher than the shown valuation herein. In the High Court, highest limit of Court fees is Rs. 10,000/-and in case of Will it is Rs. 5000/-. It will appear from the cited judgment reported in 1974 CWN 272 (Pritish Kumar Mitra v. Prosanto Kumar Mitra and Anr.) that only when the Court arrive at a decision that the propounder is entitled to the grant of probate or Letters of Administration, then only, before the order entitling the petitioner to have the grant the Court fees mentioned in Article 11 of the first Schedule of the Court fees Act need to be paid upon the valuation found by the Court under Section 19-H.
5. According to me, there is a fallacy in the argument of the caveator in this respect. A grant of probate is a process having different stages. Whenever one has filed an application for grant of probate he is filing his own affidavit of assets. That is the first stage of making valuation and payment of Court fees. When the special citation was served and even thereafter the grant of probate becomes uncontested a further valuation can be made before making such grant. This is the second stage of the process. If, after special citation is being served," a caveator/caveatrix lodge a caveat and contest the grant of probate, then such application of grant of probate cannot be construed as an application at all. It automatically becomes a regular suit which is known as testamentary suit. Therefore, it is a third stage of such process. Strictly speaking, the present one is in the nature of third stage of such process being a testamentary suit. Therefore, a principle of assessing the valuation of the property in a suit might have been governing the factor for the same. Hence, it cannot be said that valuation can only be made at the presentation of the application for such grant of probate and not only at any later stage. At this stage of the suit it cannot also be said that since Court fees are not paid at the time of making original application for probate, the suit is liable to be dismissed. The verification of the Court fees at the threshold has to be made by the Administrative Authorities of the Court in granting such application to be filed which may or may not be acceptable by the Court at the final stage. Therefore, on such account, no grant of probate can be refused. Secondly, if the probate is not granted there is no question of payment of Court fees by the propounder because it is no longer the absolute property of the executor/executrix or beneficiary. Thus, as because the formal Court fees are paid on the basis of his own affidavit of assets, an application for grant of probate cannot be refused on such ground. More so, payment of Court fees is more in the nature of administrative decision than the judicial pronouncement. Therefore, as a matter of process the same can be regularised at any stage of the proceeding including the period when the grant of probate has been made finally by the Court by way of passing a decree. In further, practically when the maximum Court fees are fixed at Rs. 10,000/- at best a final decree or order can be passed subject to the payment of such Court fees minus the Court fees already paid. It is to be remembered in a case of valuation one has to make differentiation between a wrong valuation and wrong statement ofvaluation. An intentional wrong valuation might have been a good ground of refusal but not in the case of wrong statement ofvaluation, if any, like the present one.
6. Therefore, taking into account all aspects of the issue, I cannot convince myself to hold that the Testamentary suit is liable to be dismissed for nonpayment of appropriate ad valorem Court fees, if any. Hence, I hold affirmatively in favour of the propounder so far the additional issue is concerned.
7. So far the other issues are concerned, leaving aside the relief claimed under issue No. 3, the remaining issues can be decided analogously.
8. I find the Will is a notarised Will and exhibited as Exhibit 'B'. Second page of the Will does not speak anything about bequeath of the property. The part of bequest is available only at the first page of Exhibit 'B'. A signature is made by the side of the typed portion of the Will. The first letter 'S' of surname 'Sinh 'a' of the testator at the first page of the Will being Exhibit 'B' apparently appears to be different from the letter 'S' being first letter of the surname 'Sinha' at the signature portion of the second page of the Will.
9. According to the propounder, one of the attesting witnesses, Sri Samarjit Mitra has confirmed the signature. According to me, 'surrounding circumstances' is a very very wide term which can not travel only on the fixed rails. It crop up on various aspects of the fact situation. In this fact situation, putting signature by the testator is one of the guiding factors to come to a definite conclusion. It is to be remembered hereunder that no other attesting witnesses came forward to support the depositions of the present one. Deposition of one of the attesting witness may be sufficient provided clouds are dispelled from the mind of the Court.
10. Before going to the cross-examination I have to remind that the attesting witness encircled the initial of the second page of the Will which has been exhibited as Exhibit 'A' but neither the full signature on that page nor the initial or signature at the first page of the Will have been encircled. Therefore, strictly speaking no proof of attestation is there in respect of those signatures or initial by the attesting witness. To ascertain the veracity if the Court takes the signature at the second page of the Will, as correct signature then one has to compare such signature with the signature/s on other documents available in the records. I find certain documents disclosed by the caveator to show the signatures of the testator out of which one is under the letter towards the Calcutta Municipal Corporation dated 12th December, 1990 signature in which has been encircled and marked as Exhibit '1' by the caveator leaving aside other part and parcel of the disclosure. Besides other dissimilarities in between the two signatures I do not find any of such signature starts with small or closed letter 's' of the word 'Sinha' like the first page of the Will. Therefore, Court cannot be satisfied without the test of genuineness of the signature. In the examination-in-chief the sole attending witness deposed as follows:
"37. Please look at the first page in the margin of the Will. There are certain signature (shown to the witness). Whose signature are there in the margin?/Mr. Sinha's signature.
38. Where were you when these signatures were put?/ I was in the chamber.
39. I want to know whether he signed in your presence?/ Yes, in my presence.
40. Do you know the signatures of other two attesting witnesses?/ Yes. (The document as a whole is tendered and marked as Exhibit 'B')"
11. Neither he was called nor he volunteered to encircle the signature like the second page of the Will which was very much important when only initial of the second page encircled and bequeath of the property is shown under the first page of the type written Will. Moreover, there is no question of using plural numbers repeatedly by saying signatures when there is existence of only one alleged signature. Whether initial is part and parcel of the full signature or not is yet unknown. No question was asked to that extent. The attesting witness did not put his signature attesting the purported sfgnature/s of the testator at the first page. Hence, doubt from the mind of the Court about depositions of the sole attesting witness and genuinity of the signature cannot evaporate automatically without further test.
12. The propounder cited a judgment (Alok Kumar Aich v. Ashoke Kumar Aich and Ors.). By citing such judgment he contended that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirements of attestation prescribed by Section 68 of the Indian Succession Act. It is also settled law that onus of proving the Will is of the propounder and in the absence of suspicious surrounding circumstances 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.
13. I have no quarrel with such proposition. But each case has to be determined on the basis of its factual strength. From the factual analysis of the case in the reported judgment. Division Bench found verifying the truth of the evidence of the attesting witnesses that some minor discrepancies in their evidence which were not unusual and the same did not really affect the credibility of the witnesses. They appear to be disinterested and respectable persons. They are the close neighbours of the testator. Therefore, this case is factually distinguishable with the cited judgment.
14. Learned senior counsel appearing in support of the propounder contended before this Court that the caveator has admitted categorically that the signature at the second page of the Will is that of the testator. No question was put to the propounder and the attesting witness that the signatures appear in the Will are not of the testator. According to me, the caveator has given suggestions to such witness and thereafter replied the questions at the time of his depositions. This is the true import of Carapiat's case . So far the signature of the second page is concerned. It is to be remembered that the caveator compared the same with documents disclosed by him by saying that these are dissimilar with the signature at the margin of the first page. Thus, I cannot hold such submissions as good submissions in this regard.
15. The learned counsel for the propounder has drawn my attention to the question No. 177 to 179 and 188 in respect of putting the signatures of the testator. According to me, there is one signature and another initial at the left side of the first page. However, cross-examining the counsel suggested the propounder that the signature at the first page and signature at the second page are different which she did not agree. She was asked by way of suggestion whether the signatures on the purported will are the signatures of the testator then the propounder said that these are his signatures. Now let me confine the answer of the questions put to the cavcator in this respect. In answer to question Nos. 50 he categorically stated as follows:
"...........Next point comes about signatures appearing in the first and second pages of the Will. The 'S' of Phani Bhusan Sinha in the first page which means Sinha differs from 'S' written at the second page."
As against question No. 51 he also stated as follows:
"Because the'S' appearing in the second page is an open one and the 'S' appearing in the second page is a close one."
16. Therefore, it is the specific point on the part of the caveator in respect of the question of signature.
17. Hence, it is crystal clear that putting signature on account of the Will in its first and second page is still under dispute. The propounder did not choose to produce any other attesting witness before this Court to substantiate the part of execution of the Will. It is true that there is no compulsion that more than one attesting witness will be produced to substantiate the genuinity of the execution of the Will. But when the case is not one sided it would be appropriate for the propounder to substantiate the genuinity of the Will by examining more than one attesting witness. That apart, the Will is a notarised Will. The registration or notarisation of a Will cannot give an extra benefit excepting the establishment of the genuinity. For the purpose of ascertaining genuinity, Court has taken into account surrounding circumstances of registration or notarisation of the Will. In the instant case it appears that both alleged execution and notarisation of the Will were made simultaneously. Alleged attesting witnesses signed the second page of the purported Will so mechanically that it can be presumed that they had put their signatures without knowing the contents but for the execution and notarisation of an ordinary document unlike Will. Such Notary Public has not been called upon to prove the genuinity of the signature when he attested the same nor the advocate who has identified the signature before such Notary. That apart, although the signature of the second page has been attested by the Notary on the basis of the identity of the advocate but not the first page.
18. A question may arise why so much emphasis has been given on pulling signature? This is because the same is part and parcel of the suspicion in the mind of the Court. What was the necessity of putting the signature at the margin of the first page unless there is a cause? The reason behind it is to prove the genuinity of the contents of the Will under testator's signature. There is no bequeath in the second page of the Will. Hence, identification of the signature in the first page is essential test. The identification of the signature at the first page is to be more authentic than that of the second page. But the case is just reverse. There is no signature of any attesting witness including the present one at the first page of the Will where the signature was alleged to be put by the testator not only to identify the same but also to satisfy the text that attestation of execution of Will and attestation for notarisation of the Will are distinct and different. Naturally, a suspicion cannot wipe out from the mind of the Court without further test. There are elements of such suspicion. This type of making Will is available when there is big joint family. Various co-sharers are interested to grab or have it. But here the situation is very peculiar. It is a small middle-class family. In such family this type of dispute is very unusual. Moreover, excepting apprehension of maintenance of the propounder there is no strong and cogent ground at the first page of the Will available from which it can be construed that the head of such small family rightly wanted to deprive his son from the property. The second reason is that if the testator was unhappy with the behaviour of the son, it could have been reflected in the contents of the Will. Moreover, he could have given the life interest to his widow, the propounder herein to protect her interest. But absolute disposition particularly in consonance with the language of the first page of the Will cannot prove the genuinity. In other words, it is not a free Will arising out of own volition of the testator. A portion of the first page of the Will is given below to substantiate the issue:
"She will have the right to enjoy sale, lease, rent the building or adjacent land or any part thereof or construct on roof or adjacent to main building any structure permanently or temporarily".
19. It appears that the same is more than a Will but less than a ground work of future transaction with a third party. It is to be remembered that in the absence of the absolute disposition either the property will be divided amongst the mother and the son or a life interest could have been given to the mother (sic). In the second case, the purpose of apprehension of maintenance of the propounder could have been materialised. But the incorporation of such type of language with the disputed signature at the margin of the first page leads mind of the Court towards suspicion.
20. It is true that out of love and affection a testator can bequeath his property to one. But it is not understood from the language of the Will, why such love and affection is one sided. The apprehension in the mind of the Court is arising in respect of the cryptic analysis of love and affection without any cause of depriving the caveator. If a person at the time of making Will deprives his son from the property out of anger or dissatisfaction with the behaviour he can not be so cool to remember whether his wife will be able to construct building on the "adjacent land or any part thereof and/or "construct on roof or adjacent to main building any structure permanently or temporarily". These are the unusual incorporation which gives element of influence of third parly in making such Will. Moreover, there is no cause of depriving the daughter-in-law and grand daughter reflected in the Will. Therefore, in all it appears that the Will is unnatural.
21. Probe is a mental process of the Court or any form of an adjudicator which cannot be seen by others nor such Court can share it with others. Such probe is based on oral evidence or documentary evidence or nature, behaviour and movement of the witness or witnesses in the Court or its totality. In the instant case, though various allegations and counter allegations are made by the propounder, the mother and the caveator, the only child but the same are to be construed as extraneous if there is no such reflection in the Will. The Will is silent as regards the same. Therefore, two things are very important for consideration. One is contents of the Will and another is execution of the Will. The attesting witness never gave clean answers in respect of execution of the Will at least in the examination-in-chief. The question No. 39 leads to answer. The caveator disputed the signature. It also appears that the signature and initial in the second page is feeble in nature wherein the first page it is much steady apart from being close or open letter in the surname as aforesaid. In this circumstances, production of the draft Will is essential basic document for consideration. The reason behind the same is that if the contents of the draft Will appears to be similar with the contents of the final Will then the dissimilarities of the signature can be taken a bona fide mistake on the part of the testator otherwise suspicion cannot evaporate. In the present case, it is further required for the simple reason that the attesting witness only encircled the initial of the second page of the Will to prove the same leaving aside the full signature of the second page and full signature and initial of the first page. Proof of full signature and the initial of the first page is far more important in the present case where bequeath is made.
22. It further appears that for the purpose of execution of the Will the testator has allegedly chosen the attesting witness who is not only Chartered Accountant by profession but also connected with the testator only for having certain chats in the coffee-house in respect of sports and politics. The depositions of such attesting witness in respect of visit of the premises of the testator is not at all very steady. He stated that only once or twice he visited his house and unaware of the relationship in between propounder and caveator when the relationship starts from 1968 i.e. for about long 30 years. On the other hand, from another part of deposition it appears that he visited the house and destroyed various documents which according to him, unconnected. Therefore, it cannot be said that he is a free and disinterested witness. It cannot also be said that there was no clever play to bypass the intestate succession. Under such circumstances, the deposition of sole attesting witness cannot be said to be the conclusive proof of attestation.
23. The propounder has relied upon paragraphs 7 and 20 of the (Surendra Pal and Ors. v. Dr. (Mrs.) Saraswati Arora and Anr.). The paragraph 7 of the same clearly says that the propounder has to show (a) that the Will was signed by the testator; (b) that he was at the relevant time in a sound disposing state of mind; (c) that he understood the nature and effect of the dispositions; (d) that he puts his signature to the testament of his own free will; (e) that he has signed it in the presence of each other. Once these elements are established the onus which rests on the propounder is discharged. Therefore, all the elements are to be established but not one or two. in the instant case, the propounder was not present when the Will was purportedly executed in the Office of chamber of the purported attesting witness of the Will who is a Chartered Accountant by profession nor she has seen that testator signed the Will. Secondly, although other two attesting witnesses were signed but all of them work together in the self-same chamber of office of the Chartered Accountant. Therefore, there is every possibility of being influenced. Moreover, no other witness has come forward and deposed before this Court as attesting witness other than the Chartered Accountant in whose Office it is executed. He has not made any comment in respect of dispute raised by the caveator about the signature against the question No. 18 of the Court. The execution of the Will and disposition of the property is a very vital matter of any testator. It is unusual that a testator being a lawyer will consult about the execution of the Will with a Chartered Accountant with whom he only becomes friendly in coffee-house. It is further unusual that in execution of such document he has not consulted with anybody else like relative, friend, neighbour etc. other than this Chartered Accountant who deposed before this Court as an attesting witness. Although so much discussions were held about production of draft Will but the same has not disclosed nor produced at the time of examining the so-called attesting witness. No clear answer about the signature at the margin of the first page of the Will is available. These are the few elements for creating the cloud in the mind of the Court about the independency of the witness in discharging onus of the propounder. I took into account the ratio of [Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by L.Rs. and Ors.) where I find that the Court held that although the idea behind execution of Will is to interfere with the normal line of succession but then, if the Court is in doubt of genuineness or voluntariness of the maker of the Will, it would be loathe to work in accordance with what has been stated in the Will. To put differently, if the Will is surrounded by suspicious circumstances, the removal of which is the burden of the propounder, the Will would not be probated. This case is like the same. Therefore, the propounder cannot use such judgment as shield against this background. Since the Court apprehends the own volition of the Will-maker, the propounder is not discharged from the onus of proving the Will.
24. The propounder wanted to establish by citing a Full Bench judgment (Mohinder Kaur and Anr. v. Piara Singh and Ors.) that examination of one attesting witness is enough in proving the document. I have no doubt about such proposition but each proposition has to be based on the factual materials available before the Court. The present situation is not such that the Court will be proceeded in granting the Will only on the basis of the deposition of such sole attesting witness.
25. On the strength of (Sm. Chinmoyee Saha v. Debendra Lal Saha and Ors.) head note 'E' the propounder also wanted to establish that non-production of draft Will is not material and does not cause any suspicion about genuineness of the Will. When I go through paragraph 11 as referred to this Court, I find two attesting witnesses were examined and thereafter when the third attesting witness was intended to be called in whose custody the draft Will was available Court said there is no necessity of production of third witness to evaporate the suspicion and to prove the genuineness of the Will. But here the fact is different. Sole attesting witness failed to dispel the cloud from the mind of the Court about true execution of the Will,
26. In coming to conclusion to grant probate or to refuse to grant probate, Court has to visualise the surrounding circumstances of making a Will. Unless and until cloud of suspicion is dispelled from the mind of the Court, a Will cannot be described as genuine Will for granting probate. It is true, testator's intention is to be respected. Similarly, it is also true that whether testator's intention is voluntary or involuntary is also to be tested. If it is involuntary and even then Court allows the same a regular succession will be interfered with by the Court which is not the true spirit of the law of succession.
27. Therefore, upon taking into totality of the matter I am of the view that probate cannot be granted. Hence, grant of probate stands set aside. The testamentary suit accordingly dismissed. However, no order is passed as to costs.
28. The propounder herself through the learned counsel prayed for vacating interim order/s, if any, the same is granted.
29. Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment. All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the office of the Court in respect as above.