Delhi District Court
Mrinal Chowdhury vs State on 23 December, 2020
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI.
PC - 1534/16
Mrinal Chowdhury
S/o. Late Shri Faquir Das Chowdhury
B61, F.F., Shivalik
Near Malviya Nagar
New Delhi - 110017.
.......Petitioner no.1
Mr. Manash Chowdhury
S/o. Late Shri Faquir Das Chowdhury
B61, F.F., Shivalik
Near Malviya Nagar
New Delhi - 110017.
...... Petitioner no.2
VERSUS
1. State ......Respondent no.1
2. Mr. Shyamal Chowdhury
S/o. Late Shri Faquir Das Choudhury
C74, Pocket14, DDA Flats
Kalkaji Extension
New Delhi - 110019.
...... Respondent no.2
3. Smt. Sumita Roy
W/o. Dr. R. N. Roy
H1562, C.R. Park
New Delhi - 110019.
...... Respondent no.3
4. Smt. Amita Mukherjee
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 1 of 80
W/o. Sri Somen Mukherjee
D23, Hospital Sector
Bhillai, Chattisgarh .
......Respondent no.4
Date of institution of case : 11.08.2015
Date of Reserving order : 14.12.2020
Date of Order : 23.12.2020
JUDGMENT
1 This is a petition under Section 276 read with Section 278 Indian Succession Act for grant of probate in respect of last Will and testimony dated 22 March 1992 of Late Shri Faquir Das Chowdhury, son of late Shri T.C. Chowdhury. The present petition was filed by petitioners Mr. Mrinal Chowdhury (hereinafter called Petitioner no.1) and Mr. Manash Chowdhury (hereinafter called Petitioner no.2) against State (hereinafter called Respondent no.1) and other first class legal heirs Mr. Shyamal Chowdhury (hereinafter called Respondent no.2), Smt. Sumita Roy, (hereinafter called Respondent no.3) and Smt. Amita Mukherjee (hereinafter called Respondent no.4).
2 Averments in the petition 2.1 It is averred in the petition that Shri Faquir Das Chowdhury executed a Will dated 22 March 1992 during his lifetime in favour of PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 2 of 80 his two elder sons, the petitioners herein, bequeathing the property bearing no. B61, Shivalik, New Delhi - 110017 (hereinafter called suit property). The said Will was witnessed by two independent witnesses. Sh. Subhash Chandra Banerjee was appointed as an executor of the Will however the petitioners, being the beneficiaries and first class legal heirs have filed this petition with respect to grant of probate of this Will.
2.2 Late Shri Faquir Das Choudhury was permanent resident of H 1562, Chitranjan Park, New Delhi who left for his heavenly abode on 01.05.1993 at New Delhi. Further, the Will was duly executed in accordance with law and was the last testament executed by him. Upon his death, he left behind legal heirs as given hereunder :
a) Smt. Ashima Chowdhury (wife) (now deceased)
b) Mr. Mrinal Chowdhury (son) (petitioner no.1)
c) Mr. Manash Chowdhury (son) (petitioner no.2)
d) Mr. Shyamal Chowdhury (son) (Resp. no.2)
e) Mr. Sumita Roy (daughter) (Resp. no.3)
f) Mrs. Amita Mukherjee (daughter) (Resp. no.4)
2.3 Deceased out of his self earned money, acquired a plot of land measuring about 200 sq. yards at Shivalik Enclave, New Delhi allotted to him by Ministry of Rehabilitation, New Delhi and bequeathed the same by way of Will to both petitioners in equal proportion of 50% each which disentitles any other legal heir to the said estate of the deceased. It is further submitted that the Will dated 22.03.1992 was PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 3 of 80 witnessed by two attesting witnesses namely Mr. Rajat Bhattacharya and Mr. Anand Bhattacharya. The said Will was not registered however it was executed by the deceased in perfect sound state of mind, of his own volition. It is further submitted that one of the attesting witness is now deceased, the death certificate of the deceased having been filed with the petition. It is further submitted that the details of the deceased already find mention in the Will and the affidavits attested by the witnesses to the Will have also been filed along with the probate petition. It is accordingly prayed that a probate in respect of last Will dated 22 March 1992 be granted in accordance with provisions of the Indian Succession Act, 1925 qua the estate in favour of of petitioner no.1 and petitioner no. 2 as per the wishes of the deceased as set out in the said Will. It is further prayed that the petitioners be exempted under Section 291 of the Indian Succession Act, 1925 from furnishing any security or surety.
3 Notice of the petition was issued to State as well as to the remaining Respondents. No objection was received on behalf of State despite publication. Respondents no. 2 to 4 however appeared and filed their reply/objections to petition which is detailed in subsequent paragraphs.
4 Reply on behalf of Respondents no. 2 to 4 4.1 It is submitted that only relief sought by the petitioner is grant of probate with respect to the Will dated 22 March 1992, thus, the instant petition is not in accordance with provisions of Indian Succession Act. Further, that petition is based on forged and PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 4 of 80 fabricated Will is evident from the perusal of the Will itself. It is submitted that the alleged Will is surrounded with various suspicious circumstances listed as under :
i) Late Sh. Fakir Das Chowdhury was a Central Government Employee and was superannuated as Section Officer in the Ministry of Commerce, Government of India. He was thus well aware of each and every intricacies and requirements of formal legal documents like Will, especially in the background context, he was depriving his wife and three children out of five by way of said document.
ii) The deceased father and the mother of the petitioners and respondent no. 2 to 4 not only enjoyed very strong bonding and close relationship with each other but the relationship of the parents with their children i.e. the petitioners and respondent no.2 to 4 were also very cordial. At no point of time the relationship between the father and respondent no.2 to 4 were either strained or become sour.
iii) The Respondent no.2 being the youngest son was very close to his father. Even the two sisters equally shared very close and affectionate relationship with their deceased father.
iv) The property in question i.e. B61, Shivalik, Malviya Nagar, New Delhi - 110017 was allotted to the deceased father being a member of the Cooperative House Building Society of the Ministry of Rehabilitation. Respondent no.2 always accompanied his father to the office of Rehabilitation Ministry Housing Society for payments and to complete all the formalities of allotment.
v) The petitioner no.1 had left the family in 1974, soon after his marriage, and started living as a separate PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 5 of 80 nuclear unit ever since, proving that his contact / responsibility towards the deceased father was bare minimal.
vi) That the respondent no.3 and 4 were happily married in well off families. It is relevant to state that the husband of respondent no.3, being employee of the Food and Agricultural Organization (FAO) of the United Nations (UNO), always remained in foreign assignment and thus, she used to stay abroad. Further, he had a house at H 1562, C.R. Park, New Delhi, where, at the behest of Respondent no.3, he accommodated her parents alongwith petitioner no.2 and his family from around 1986 to 1994/95. This gesture reflects the affectionate relationship and bondage Respondent no.3 had with parents and petitioner no.2.
vii) It is relevant to state that by the year 1990, Sh. Fakir Das Chowdhury had attained the age of 81 years and suffered from various old age ailments. Since the year 1990, he went into acute depression and lapsed into stony silence due to growing discordial relationship with the petitioner no.2. The situation became such that he became totally incomuunicado with the eldest son i.e. petitioner no.2 herein, with whom the old parents used to stay at C.R. Park, the residence of the Respondent no.3 herein.
viii) The plot in question was allotted to the deceased father by the housing society around 1990/1991. During the said period, he used to stay at C.R. Park as aforesaid alongwith petitioner no.2 and his family. It is to reiterate that petitioner no.2 and his family were also living with parents as they had no other accommodation in Delhi.
ix) It is further relevant to state that testator Fakir Das Chowdhury was not in his proper health and since he had gone into acute depression and was under medical treatment, Respondent no.3 regularly used to fly down to PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 6 of 80 India from abroad to visit him. Similarly, Respondent no.4 used to travel frequently from Bhilai to see him.
x) Respondent no.2 still remembers how the old father shared his agony and pain with him. The situation became so worst that Sh. Fakir Das Chowdhury during that period i.e. during the period 1990 till his death in May 1993, always desired and wished not to go to the property in question and he always desired to die at C.R. Park, the house of Respondent no.3's husband.
xi) Sh. Fakir Das Chowdhury during the period 1990 till his death on 01.05.1993 remained in acute depression and maintained absolute silence. During this period he never intended or desired to see both the petitioners. It is relevant to state that the father of the parties herein spent his savings from his service towards acquisition of the property in question.
xii) The deceased father maintained his last wish and never had to stay at the property in question as he expired on 01.05.19993 at a very feeble mental and physical condition.
xiii) After the death of father Sh. Fakir Das Chowdhury, mother continued to stay at C.R. Park and thereafter she moved to the property in question alongwith the petitioner no.2 herein. Since the said property was purchased by the father, mother always desired to stay therein till her death. Until mother's demise on 12.12.2010, a gap of almost 17 years from the death of the father/husband, she lived in her husband's property.
xiv) It is pertinent to state that neither the father Sh. Fakir Das Chowdhury nor the mother ever disclosed of the existence of the purported Will dated 22.03.1992 to any of the respondents herein. It is further relevant to state that the mother of the parties herein lived for almost 17 years after the demise of her husband i.e. Sh. Fakir PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 7 of 80 Das Chowdhury. However, even the mother never disclosed of the purported Will as infact she had no knowledge of the said alleged Will at all.
xv) Further till the filing of the instant petition, even the petitioners herein never disclosed about the existence of the alleged Will.
xvi) It is relevant to note that the alleged Will on the fact of it suffers from the following lapses which suggest beyond doubt that the same is a forged and fabricated Will, forged by the petitioners to take undue advantages against the respondent herein :
a) In the alleged Will, the name of testator written as "Faquir Das Chowdhury, son of late T.D. Chowdhury".
The name of the father was never 'Faquir' but 'Fakir'. Further the name of the father's father was never 'T.D. Chowdhury' but 'T.C. Chowdhury'.
b) Furthermore even where the alleged signature appears in the alleged Will, the name is written as 'Faquir' and not as 'Fakir'.
c) In the alleged Will, the name of the alleged executor has been written by hand and is not at all in the handwriting of the deceased father who on the said alleged date 22.03.1992 was aged around 82 years.
d) Furthermore, there are several corrections, overwriting and cuttings in the alleged Will.
e) At the bottom of the alleged Will, it is written "Contd....2/", however there is no second page of the alleged Will.
f) Though the alleged Will in the 4th para mentions "Schedule hereunder", however there is no schedule at all in the alleged Will.
g) The purported signature appearing in the alleged Will and claimed by the petitioners as the signature of the deceased father, on the face of it is not the signature of the deceased father Sh. Fakir Das Chowdhury.
h) In the alleged Will; column of place and date are conspicuously missing."
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 8 of 80 4.2 It is accordingly submitted that the material discrepancies are alarming which fortified the stand of the respondents that the alleged Will is not one written or executed or signed by late father Sh. Fakir Das Chowdhury. It is submitted that petitioners have placed their own I cards on record wherein the name of the deceased father is categorically mentioned as 'Fakir Das Chowdhury' and not 'Faquir Das Chowdhury'. Even in the death certificate of 'Sh. Fakir Das Chowdhury', the name of his father that is the grandfather of the parties herein, have been shown as 'T.C. Chowdhury' and not as 'T.D. Chowdhury'. It is further submitted that the signatures of the deceased father appearing in the alleged Will is not the signature of the father. Further, the mental and physical condition of the deceased father was very feeble and dilapidated as on the date of execution of Will because of which, he even expired after about a year.
5 Rejoinder 5.1 Rejoinder was filed on behalf of the petitioner wherein contents of the petition were reiterated and all denials made on behalf of respondents were dismissed as general and vague, controverting the submissions made by the reply as false, frivolous, misconceived and devoid of any merits.
5.2 It was submitted that money was paid by father to other respondents, also that petitioner no.1 moved to live separately after marriage on account of lack of space in the existing house.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 9 of 80 6 Additional Written Statement 6.1 It was submitted on behalf of respondents that entire story was concocted on behalf of petitioners to collude and deprive remaining respondents of their legitimate share in the property. The additional averments in rejoinder were categorically denied.
7 Issues
i) Whether the petitioners are entitled for probate / letters of administration of Will dated 22.03.1992 of deceased Fakir Das Chowdhury as prayed for? OPP.
ii) Whether the Will dated 22.03.1992 of deceased Fakir Das Chowdhury is forged and fabricated? OPR.
iii) Relief 8 Petitioners' Evidence 8.1 To prove the case of the petitioners, the petitioners have examined 3 witnesses.
8.2 Sh. Rajat Bhattacharya, attesting witness (PW1) tendered his evidence by way of affidavit Ex. PW1/A and relied upon documents which is the original Will dated 22.03.1992 placed on record as Ex. PW1/1 who testified that the deceased Faquir Das Chowdhury executed a Will dated 22.031992 in favour of his two sons namely Sh.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 10 of 80 Mrinal Choudhury and Manas Chowdhury. He further affirmed that he was one of the witness to the said last Will and testament of the late Sh. Faquir Das Choudhury alongwith one Sh. Anand Bhattacharya and that the testator had put his signature on the Will in his presence. It is further affirmed that Sh. Anand Bhattacharya who was his elder brother had put his signatures on the Will in his presence alongwith executor Sh. Subhash Chandra Banerjee and that all including the executor Sh. Subhash Chandra Banerjee and the two witnesses had appended their signatures on the Will in the presence of testator who had also signed the Will in their presence on 22.03.1992 at the residence of late Sh. Faquir Das Chowdhury. He identified the signatures of late Faquir Das Choudhury, his own signatures, signature of the Executor and signature of Late Sh. Anand Bhattacharya at points A,B, C and D. He further affirmed that testator was healthy and mentally stable at the time of execution of Will and had executed the same out of his free Will and without any compulsion.
8.3 In crossexamination by the counsel for Respondents no.2,3 and 4, he submitted that he owned the company namely Luxury Connect Business School indulged in parting education to the students for the retail industries. He submitted that alleged Will was signed by him sometime in the month of April 1993 and that he was around 37 years of old when he signed the alleged Will. He submitted that he knew the testator since year 1985 as his residence was diagonally across his house in the year 1985 as I1625 CR Park, New Delhi. He submitted that he was called upon to sign certain documents supposed to be the PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 11 of 80 Will on the concerned date itself. He further submitted that he did not remember the exact date but it was Sunday and his brother Sh. Anand Bhattacharya who was also present there. He also stated that he read the alleged Will before signing it and that he alongwith other attesting witnesses signed the Will at the same time, while some other persons neighbour Mr. Banerjee, his brother Anand Bhattacharya and Mr. Mrinal Chowdhury were also present. He submitted that wife of the testator was not present at the time of signing the Will and Mr. Banerjee also signed the Will. He submitted that testator never specified that he was executing the said Will out of his free Will however it was pretty inevitable as he was discussing about cricket and other sports so he did not appear to be under any compulsion. Testator was about 80 years old and that the Will was not typed in his presence. He submitted that his brother was also attesting witness of the said Will who died on 14.01.2006. He further submitted that he was not very good friend of Mrinal Chowdhury and that they were neighbours at the time of signing of the Will. He admitted that there was no mention of the date and month in the last paragraph of the Will and he also submitted that the correction in the Will were already there in the typed draft of the said Will and that the execution and attestation of the said Will was not done at the same sitting.
8.4 PW2 Mrinal Chowdhury examined himself by way of affidavit Ex. PW2/A and relied upon documents (i) Will dated 22.03.1993, already Ex. PW1/1, (ii) Death Certificate of the testator Ex. PW2/1 and (iii) copy of death certificate of another attesting witness Sh. Anand PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 12 of 80 Bhattacharya Mark X. In crossexamination by counsel for respondents no.2 and 4, he submitted that he was handed over original Will by his father, a month later to the execution of the Will. He admitted to be present at the time of execution of Will, although he was not witness to the same. He admitted that his father had good relation with his mother. He further submitted that Mr. Banerjee, two brothers i.e. Bhattacharyas were present besides him when his father executed the Will. He submitted that his father was very well versed with English language. He submitted that the Will remained with him after it was given to him by his father and that he never approached Sh. S.C. Banerjee after death of his father. He declined the suggestion that his father was suffering from various old age ailments. He admitted that his father was around 82 years of age at the time of execution of the Will. He admitted that his father was residing at CR Park at the time of his death. He declined the suggestion that he forged and fabricated the Will in question when Respondents no. 2 to 4 refused to give their no objection for mutation of the property in question. He further submitted that dispute had arisen between the parties two years ago when they approached Respondents no. 2 to 4 for obtaining NOC qua mutation of property.
8.5 PW3 Ms. T. Bhattacharya, daughter of Anand Bhattacharya tendered her affidavit Ex. PW3/A in which she affirmed that her father Late Sh. Anand Bhattacharya had executed the Will Ex. PW1/1 and that she recognised his signature on the said Will dated 22.03.1982. During her crossexamination, she stated that she was the PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 13 of 80 only child of her parents and that she has come to the Court only to identify the signatures of her late father on the Will. She submitted that she got to know about her father having signed the Will during the same week when the alleged Will dated 22.03.1992 was executed as her father and her uncle namely Sh. Rajat Bhattacharya were discussing the same and that she was about 11 years of age when she heard the discussion and submitted that she was aware of the subject of the Will. She stated that she never saw the Will which was shown to her for the first time in the Court to identify the signatures of her father. She admitted that she did not see the Will at the time of signing of the Will in question. She further submitted that the testator lived opposite to her house and that they were in good terms and access to each other's house. She further submitted that to her knowledge, the relationship between testator and children was healthy.
8.6 The petitioner evidence was closed.
9 Respondents' Evidence 9.1 Respondents examined four witnesses in support of Respondents evidence.
9.2 DW1 Ms. Shubhra Chowdhury, wife of Respondent no.2 tendered her affidavit as Ex. DW1/A. She affirmed that late Sh. Fakir Das Choudhury was her father in law who used to call her 'Chhoti Mai'. She further affirmed that her father was well versed with English language. She also stated that he enjoyed a cordial relationship with PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 14 of 80 his wife and all his three sons and two daughters, however, during the last years of his lifetime, his relationship with petitioner no.2 Sh. Manas Chowdhury had become discordial. She further affirmed that her fatherinlaw used to write her letters personally in the year 1980s when Respondent no.2 used to reside in Kolkata. One such letter dated 20.03.1980 bearing postal stamp dated 24.03.1980 has been placed on record as Ex. PW1/1.
9.3 She further submitted that alleged signatures appearing in the Will were not the signatures of her father in law. Also that her mother in law or anyone else never disclosed about the alleged Will to the entire family. She further submitted that her fatherinlaw always treated all brothers equally and herself being the youngest daughterinlaw was the most loved ones amongst all. She also stated that her father in law developed several old age ailments while he attained age of 81 years. She further affirmed that her father in law did not execute any Will and the alleged signatures appearing in the Will were not his signatures.
9.4 In crossexamination by counsel for the petitioner, DW1 Ms. Shubhra Chowdhury submitted that she got married in March 1977. She stayed at Karol Bagh and thereafter at E142, East of Kailash, New Delhi at the house of her alleged brother in law and that all the three brothers used to live together with their parents. She admitted that her father in law stayed with eldest brotherinlaw till his demise on 01.05.1993 and also that her mother in law first stayed at Chitranjan Park and then at Shivalik and died in December 2010. She PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 15 of 80 submitted that her father in law paid for construction of the house at Shivalik, however he did not live in that house. She admitted that both her elder brotherinlaw have been living in the house since the date of its construction. She admitted that wife of her eldest brother in law was named as 'Janani' by her father in law. She admitted that both, her eldest brotherinlaw and his wife looked after her father in law and mother in law. She stated that her father in law was depressed towards end. She declined the suggestion that money was received by her husband before the death of her father in law which was utilised for the additional construction in their flat. She submitted that she alongwith her husband lived on the second floor of the flat thus it was difficult for her father in law and mother in law to reside with them. She submitted that she has seen her father in law signing and writing letters though she had not received any cheque from him. She further submitted that her father in law was consulting one Dr. Bhattacharya but she was not aware as to where his clinic was situated. She further said she was not aware if her father in law had given 50,000/ each to her sisterinlaws before his death. She declined the suggestion that she has never seen her father in law signing nor did he stay with him at any point of time or that she had no knowledge with respect to the ownership of the house constructed at Shivalik. She said that she was not aware about any orchard at Chander Nagar which was ancestral property of her father in law or with respect to the sale proceeds of the said orchid as to how they were divided amongst the said family.
9.5 Affidavit of Smt. Amita Mukherjee was filed to be examined as DW2, however she did not appear in the witness box.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 16 of 80 9.6 DW3 Smt. Sumita Roy, elder daughter of late Sh. Fakir Das Chowdhury has tendered her affidavit as Ex. DW3/A wherein she affirmed to have executed Special Power of Attorney dated 06.10.2015 in favour of her younger brother to contest and to file reply in the probate petition. She further affirmed that the alleged Will is forged and fabricated document. She further affirmed that her father, having superannuated as Section Officer was well aware of the intricacies and requirements of document like Will and also being well versed with the English language, was very particular about spellings and grammar. She also pointed out that her father enjoyed strong bonding with her mother as well as with all the children, and was very affectionate. She also stated that her husband accommodated her parents alongwith petitioner no.2 and his family which is reflective of affectionate relationship and bondage she enjoyed with her parents and petitioner no.2. She also pointed out that petitioner no.1 left the family in 1974 and started living as a separate nuclear unit ever since and had bare minimal contact or responsibility towards deceased father. She also stated that her father after having attained the age of 81 years by the year 1990 suffered from various old age ailments and even slipped into acute depression during the period from the year 1990 till his death in May 1993 on account of growing discordial relationship with petitioner no.2, so much so that he became totally in communicado with petitioner no.2. She further submitted that any of her parents never disclosed about the existence of purported Will and that she became aware of the alleged Will only when copy of petition was served upon her. She also alleged that the Will was tempered and PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 17 of 80 created as a document to grab the property left by her father, claiming that the purported signatures in the Will are not that of her father as the mental and physical condition of her father was very feeble and dilapidated on the purported date of execution of Will. She also pointed out that even the name of her father and her grandfather has not been correctly spelt in the alleged Will.
9.7 In her crossexamination, DW3 submitted that she got married on 03.07.1976 and left for Rome in 1980 with her husband and family and returned in December 2007. She stated that she used to visit her parents twice a year while she was in Rome. She further submitted that the land for house no. H1562, C.R. Park was purchased by her husband and the construction of the said house was completed in 1985. In the year 198586, her parents alongwith her elder brother Manas Choudhury and his family moved into the said house and that her parents and her elder brother stayed there till 199394. She further submitted that her father also expired on 01.05.1993 in the said house and her brother alongwith her mother continued to reside therein till they shifted in to newly constructed Shivalik House. She further submitted that her father had paid for construction of the said house at Shivalik, however, was not aware of the amount spent on the construction. She stated that her two brothers Manas Choudhury and Mrinal Choudhury have been living in the said house at Shivalik and thus, must be paying for the subscription to the welfare association of the colony. She further submitted that her mother had been staying with her elder brother in that house.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 18 of 80 9.8 DW3 further stated said that she was not aware if any amount was paid by her father to her youngest brother prior to his death for carrying out any additional construction in the DDA flat at Kalkaji. She also clarified that her youngest brother had moved into a constructed house, thus, there was no question of construction. She further submitted that he did not carry out any construction to the best of her knowledge. She further stated that she was aware that her father had properties at Chander Nagar which were taken care of, before and after her father's death by her eldest two brothers. She also stated that she was aware of the family deity trust at Chander Nagar but was not aware as to how the sale proceeds were divided amongst the family members but she as well as her sister were not given any amount out of the sale proceeds of the property. She stated that she heard about the sale proceeds having been divided pursuant to sale of properties and was aware that only the male members were drawing the income from the aforesaid properties at Chander Nagar whereas, the female members were excluded from the same. She stated that she was not aware of details about the pension of her father. She stated that her father retired from Ministry of Commerce as Section Officer in 1967 or 1969. She further stated that her father had travelled to Rome and stayed with her for about 23 months. She stated that her father wrote many letters while she was in Rome but she does not have any letter. She stated that she visited her father twice every year between 199093. She had visited her father in December 1992 and went back in 1993 and then she came in the month of May 1993 at the time of his death. She stated that she was aware that her father PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 19 of 80 was Sports lover, more particularly in Soccer and used to watch cricket as well. She stated that her father never used to go for walks but used to go to the market and back. She further stated that she had her own unit at basement at house at H1562, C.R. Park house and eventually she had shifted to the first floor later in the year 2007.
9.9 She submitted that land was allotted to her father at B61 Shivalik but she was not aware if her father had only paid for subscription of the membership of the Shivalik Cooperative Housing Society as he had no savings in his pension account when the said plot was purchased. She submitted that she was not aware about the amount spent for construction of the house at ground and first floor. She declined the suggestion that her father did not pay and only her brothers had paid for the same.
9.10 She stated that her father was very strong man completely aware of what he was doing, however became very vulnerable and depressed during the period 199093. She further submits that her father was not suffering from high blood pressure, diabetes and heart problem or arthritis. She had no documents to support the fact that her father was undergoing depression in the year 1990 to 1993 except verbal communication done by him to that effect. She declined the suggestion that she had raised fictitious ground to negate the Will in favour of petitioners. She admitted that her eldest brother was respected as fatherly figure after the death of his father. She declined the suggestion that two years prior to filing of this petition, her brother petitioner no.1 and 2 had approached all the family members for PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 20 of 80 issuing the NOC for transfer of the property jointly in the name of petitioners 1 and 2.
9.11 DW2 stated that tempering means that 'you write what you want to write on a preexisting document and it also tantamounts to changing the character of the said document.' She stated that name of her father and that of her grand father was wrongly spelt and there were so many cuttings which were not signed / counter signed and also that her father's signatures were slightly different and even the name of the executor was hand written which never so happens.
9.12 She stated that she or her younger sister or younger brother Sh. Shyamal Choudhury never wrote to the petitioners claiming the rights over the property no. B61 Shivalik as the question did not arise earlier as they had permissive occupancy of the property, also because their mother was living at that time with her brother Sh. Manas Chowdhury. She declined the suggestion that she did not state with regard to permissive occupancy prior to her statement in the court as there was no occasion for the occupancy of the petitioners to be permissive, it being in their own right to the exclusion of all others. She declined the suggestion that she had challenged the said Will only because her father had excluded her mother and all the sisters and her younger brother Shyamal Chowdhury from share in the said property. She further stated that she did not write any letter or issued any notice to the petitioners claiming share in the aforesaid property after the death of her mother at any point of time. She denied the suggestion that the Will is in perfect order and has been executed by her father PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 21 of 80 and accepted by the family but since greed overcame all of them, the same was challenged. She declined the suggestion that her father was not vulnerable in the period 1990 to 1993 as stated by her.
9.13 DW4 Sh. Shyamal Kumar Chowdhury tendered his affidavit dated 11.10.2017 as Ex. DW4/A wherein he affirmed on the lines of testimony of DW3 in her affidavit Ex. DW3/A. He also stated that his wife and himself shared good relation with his father. He also claimed that the alleged Will of his late father is forged and fabricated.
9.14 In crossexamination by counsel for petitioners, DW4 submitted that his father was a matriculate but cannot say at what post his father had joined but he got retired as a Section Officer, Ministry of Commerce. He admitted that his father was very strong, dynamic and social person. He further submitted that relationship of his father with elder brothers was fine in the beginning, however, after marriage of petitioner no.1 in the year 1974, his contribution to the family was bare minimum. He stated that he had accompanied his father to L&DO office on 34 occasions just to give him company and support. Later Mr. Mrinal Choudhury started accompanying his father to the Rehabilitation society.
9.15 DW4 further submitted that his father had subscribed to the membership of the Rehabilitation Society, however was not aware about membership amount paid by his father for obtaining the membership. He denied that his elder brothers paid for the land underneath property no. B61, Shivalik at the time of allotment of the PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 22 of 80 said land by the society. He denied the suggestion that Mr. Manas Chowdhury and Mr. Mrinal Chowdhury paid for the land underneath Property and claimed that the entire amount of cost of construction was paid by his father. He also stated that Mr. Mrinal Chowdhury in all probability would have applied for the sanction plan. The document Mark DW4/P1 was shown to the witness asking him to point out as to who signed the same to which the witness responded that the signatures were not of his father. However, he identified the signatures of his father at the passport of his father Ex. DW1/P1 at point A. He stated that construction at plot B61, Shivalik started in the year 199192. He denied the suggestion that the entire cost of construction was paid by his elder brothers and volunteered that the cost was borne by his father and that he was orally informed about it by his father. He admitted that the proceeds of sale of property at Chander Nagar were shared by male members of the family as a matter of custom and that he received amount from sale of the said property around 2004. He stated that he never claimed any share in the Shivalik property since the time of its construction till the filing of the present proceedings. He further stated that his mother shifted to Property no. B61, Shivalik some time in the year 1994. He admitted that his two elder brothers have been paying the property tax as well as the lease rentals for the Shivalik property since the time of its construction as they have been residing in the said property. He admitted that his parents were residing with his elder brothers, all through till their demise.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 23 of 80 9.16 DW4 further submitted that his father had taken a membership of Resident Society in the year 196667. He declined the suggestion that his father took the membership of the rehabilitation society at Shivalik in the year 1958 whereas his father retired in the year 1968. He stated that the pension of his father on his retirement may be Rs. 1300/ per month but did not admit that both his brothers contributed Rs. 3000/ per month for the welfare of his parents. He stated that he resided with his parents till the year 1985 and contributed towards family budget till the year 1985 and thereafter, he also gave as and when required as Rs. 1000/ or Rs. 2000/ at times. He declined the suggestion that at no point of time, he gave money to his father. He declined the suggestion that his father had contributed for his flat which he purchased from DDA.
9.17 DW4 further submitted that possession of the plot in question was granted some time in 199192 and the construction also began at that time. He further submitted that his brother Manas Chowdhury moved to the property in the year 1994. He further submitted that the construction of the plot was also complete when his father died and only the furnishing work remained which was completed by Mrinal Chowdhury as he was looking after the construction work. He admitted that only a shell structure was ready when his father died. He further submitted that the financing of the project was handled by his brothers out of the money given by the father. He further submitted that he had no document to suggest that cost of construction was borne by his father. He further submitted that his brother Mrinal Chowdhury used to come to his father and collect money whenever there was any PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 24 of 80 requirement. He further submitted that since his father expired on 01.05.1993, the contribution of the funds for construction had been done out of the money left by his father with his brothers. He further submitted that his father used to invest in the mutual fund and that he had seen the cheques received from UTI mutual fund in favour of his father. He denied that his father had given Rs. 1 lakh to his mother and Rs. 50,000/ each to his sisters. He declined the suggestion that only said amount which he gave to his wife and sisters, was in his possession at the time of his death as he was supported entirely by his elder sons. He further submitted that the entire amount of Rs. 53,000/ in total paid for the purpose of plot of land was paid by his father and not by his elder brothers in equal shares on quarterly basis.
9.18 DW4 further submitted that his father never refused to stay with him. He stated that he was not able to recall name of the doctor consulted. He declined the suggestion that he did not know the name of the doctor even though he was the family physician and used to visit their house occasionally as he had never interacted with any doctor nor with his father at any point of time. He further submitted that from 1991 till his death, his father had strained relationship with his elder brother Manas Chowdhury. He further submitted that during his regular visit to his father, he used to confide in him that his eldest brother Manas Chowdhury had started considering him as a burden at the cost of his own family and he was very disturbed and anguished with the indifferent attitude of his brother Manas Chowdhury. He further submitted that his father felt great comfort in talking to him.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 25 of 80 9.19 DW4 further stated that a tempered document is one which is prepared by its author but certain changes were made by some other person over the said document without the knowledge of the author of the said document. He further submitted that his father did not live a very agile life till his end, while staying with his eldest brother. He stated that he received a meagre amount of Rs. 30,000/ to Rs. 40,000/ when an orchard was sold with some water bodies inside it. He declined the suggestion that he was given 1/3 rd share of the sale proceeds and to which he stated that there were 11 legal heirs including the three brothers. He further submitted that after the humiliation he suffered at the hands of his elder brother Manas Chowdhury, his father wanted to move away from that atmosphere and stay with him but unfortunately it could not materialise as his flat was on the second floor. He submitted that except for H1562, C.R. Park and B61, Shivalik where only his mother stayed, he and his family stayed with his parents. He further submitted that the properties at East of Kailash and Hauz Khas were rented accommodation while the property at WEA 9A/21 was taken on rent and the property E142, East of Kailash used to be guest house of the company where his brother Manas Choudhury served. While they were asked to vacate the property E - 142, East of Kailash, he arranged the property at 32, SFS, Hauz Khas which belonged to his office colleague at a nominal rent. He also stated that he contributed to the household budget at that time so there was no question for payment of rent by Manas Chowdhury. He further submitted that he got married on 07.03.1977 and stayed upto March 1985 with his brother. He further submitted PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 26 of 80 that the flat at Kalkaji was purchased by him by taking a house building advance from his office. He stated that the pension account of his father was at Union Bank of India, Connaught Place Branch. He stated that he never asked for any division of money lying in the bank account of his father and that he was not aware if his father had any other bank account. He further submitted that there was hardly any money in the account of his father as he was living on his pension amount and the contribution by his elder brother Manas Chowdhury. He declined the suggestion that he had no occasion to interact with his father from 1990 to 1993 whereby he would have discussed with him his mental condition or any circumstances of the family. He stated that in August 2015, petitioners approached him for taking NOC in respect of the property. He declined the suggestion that he challenged the Will only on the ground that he alongwith other respondents have not received any share in the suit property. He stated that there was a huge generation gap between Rajat Bhattacharya and his father and there was no reason to call him by his father as a witness. He declined the suggestion that he had filed a false objection petition to the probate of the Will on frivolous grounds. He declined the suggestion that only the male lineage succeeds to the succession of a deceased as per tradition customs and precedents and that there was no reason for his father making any bequeath to his mother. He declined the suggestion that his father bequeathed the property exclusively unto his elder brothers as his brothers had purchased the said plot of land and constructed thereon and as such they were fully in their rights to be the owners of the property. He declined the suggestion that he received PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 27 of 80 the amount of Rs. 4 lakhs at the time of purchase of his flat from his father and his brothers.
9.20 DW5 Sh. Deepak Jain, Handwriting and Finger Print Expert tendered his evidentiary affidavit as Ex. DW5/A wherein he affirmed that the disputed signatures were not written by one and the same person Faquir Das Chowdhury as comparative signatures taken from letter Ex. DW1/1.
9.21 In crossexamination by counsel for petitioner, DW5 admitted that no person can replicate his own signatures even if done at the same time identically. He also submitted that it was not necessary that there would be variations in the signatures if they are taken at one time with those taken at a gap of 5 to 10 years. He further submitted that he had taken the signatures on inland letter dated 20.03.1980 Ex. DW1/1 as admitted / comparative signature for comparing the signatures on the Will in question on the asking of Ld. Counsel for Respondents Sh. M.K. Jha. He further stated that he has given an independent report and did not ignore any principle governing the matter under comparison. He further submitted that it was not always necessary to compare atleast 612 comparative signatures together to reach a conclusion as to the veracity of signatures. He further submitted that in some cases like traced forgery, even without comparative data, an opinion can be formed on the authenticity of the signature under comparison. He further submitted that he never mentioned in his report that the question signatures were also product PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 28 of 80 of traced forgery. He stated that it is not necessary that the best form of signatures when required to be compared are those which are available on Government records. He further submitted that he was not shown copy of the passport by the counsel for the respondent for the purpose of comparison of the signatures. He further submitted that writing must fall within the same range of natural variations, then the questioned signature would be genuine, otherwise forged. He admitted that he had not given any demarcation on the photographs but such formations are quite understandable. He denied that he had not given any demarcation in the photographs of the signatures only with a view to give an inconclusive report favourable to the respondents. He denied that the signatures of the testator were within the permitted degree of variation even according to the alleged admitted signatures A1 and that he wrongly stated that the signatures were not of the testator for extraneous reasons. He further submitted that it was not necessary that there would always be major variations with the passage of time. He declined the suggestion that he did not examine the questioned signatures with the admitted signatures for extraneous reasons and given a false report without giving the notice to the petitioner or their counsel, saw the Court record in a hideous manner contrary to all the norms of fair play and practice.
9.22 Evidence on behalf of Respondents no. 2 to 4 was closed.
10 Valuation Report was filed on 13.02.2017 by Assistant Collector, Grade II Sub Division Hauz Khas, M.B. Road, Saket, Delhi.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 29 of 80 11 Arguments 11.1 Written arguments in detail have been filed by both the sides.
11.2 Counsel for petitioner argued that the execution of Will dated 22.03.1992 by testator Late Sh. Fakir Das Chowdhury has been duly proved by one of the attesting witness. He further argued that frivolous objections were raised on behalf of respondents no.2 - 4 with the intention to pressurize the petitioners to succumb to their illogical demands. He further argued that testator and his wife continuously resided with petitioner no.2 and his family and thus, testator wanted to ensure that his self earned property should go to the genuine recipients. He relied upon cases titled as "Girija Datt Singh v. Gangotri Datt, AIR 1955 SC 343" and "Janki Narayan Bhoir v. Narayan Namdeo Kadan (2003) 2 SCC 91" in support of his assertion. He termed the report of Handwriting Expert as irrelevant and in conclusive as he did not use admitted signatures of testator on the Passport for comparative analysis. He relied upon several judgments in support of his assertion with respect to opinion given by Handwriting Expert, which are Gulzar Ali v. State of H.P. (1998) 2 SCC 192, Deepa Arora v. Saurabh Arora FAO No.3 of 2015, Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy (Dead) Thr. Lrs. & Anr (Civil Appeal 7818 and 7819 of 2009), Ram Chandra and Ram Bharosey v. State of Uttar Pradesh, AIR 1957 SC 381, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal v State of Punjab (1977) 2 SCC 210, and S. PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 30 of 80 Gopal Reddy v. State of Andhra Pradesh, (1996) 4 SCC 596. He also claimed that the entire cost of construction of Shivalik property was exclusively borne by the two petitioners, which was known well to all the respondents, which was the reason why none of them asked for respective share in the Shivalik property for more than 20 years subsequent to death of father.
11.3 Counsel for Respondents no. 2 to 4 has argued that the alleged Will came to light for the first time with the filing of this petition and even on the face of it, can be said to be surrounded with suspicious circumstances. He claimed that the testator enjoyed a good bonding with all his children and his wife and there was no occasion why he would bequeath his property only in favour of two petitioners, at the time when he was into acute depression on account of discordial relationship with petitioner no.2. He also pointed out that it was unlikely for a person like him to ignore apparent spelling mistakes and several cuttings on the draft deed. He also questioned as to why he would chose Sh. Rajat Bhattacharya to be the attesting witness considering huge age gap between the two, also that the executor never approached the court for grant of probate for more than 20 years. In support of his assertions, counsel for Respondents no. 2 to 4 relied upon findings in cases titled as H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors. (Civil Appeal no. 18/1955) MANU/SC/0115/1958; Jaswant Kaur Vs. Amrit Kaur & Ors. (Civil Appeal no. 1360/1975) MANU/SC/0530/1976; Bharpur Singh & Ors. Vs. Shamsher Singh (Civil Appeal no. 7250/2008) PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 31 of 80 MANU/SC/8404/2008; S.R. Srinivasa & Ors. Vs. S. Padmavathamma (Civil Appeal no. 4623/2005) -
MANU/SC/0285/2010, Rattan Singh & Ors. Vs. Nirmal Gill & Ors. (Civil Appeal nos. 36813682/2020) - Supreme Court of India.
12 My issue wise findings are as under :
Issue No. 1 and 2i) Whether the petitioners are entitled for probate / letters of administration of Will dated 22.03.1992 of deceased Fakir Dast Chowdhury as prayed for? OPP.
ii) Whether the Will dated 22.03.1992 of deceased Fakir Das Chowdhury is forged and fabricated? OPR.
12.1 These two issues are being taken up together, involving interconnected discussion.
12.2 There are two petitioners in the matter, the two elder sons of late Sh. Faquir Das Chowdhury, son of Late Sh. T.C. Chowdhury. Will dated 22.03.1992, as per the case of the petitioners, was executed by Late Sh. Faquir Das Chowdhury who expired on 01.05.1993. Contesting the position are respondents no. 2 to 4 who are respectively youngest son and 2 daughters of Late Sh. Faquir Das Chowdhury. It is pointed out that Smt. Ashima Chowdhury w/o Late Sh. Faquir Das PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 32 of 80 Chowdhury also died in the year 2010, while the instant petition was filed only in the year 2015.
12.3 The case projected on behalf of petitioners is simple. Petitioner no.1 as PW2 testified about execution of a Will Ex. PW1/1 by his father in favour of his two elder sons with respect to property bearing no. B61, Shivalik, New Delhi - 110017. Sh. Rajat Bhattacharya as PW1 identified the signatures of testator Late Sh. Faquir Das Chowdhury, his signatures and that of his brother Sh. Anand Bhattacharya as another attesting witness to the Will whose death certificate is placed on record as Ex. PW1/3. He specifically testified that the Will dated 22.03.1992 was duly executed as per law by the Testator out of his free will and without any compulsion in a normal and healthy state of mind. PW3 Ms. Titil Bhattacharya also identified the signatures of one of the attesting witness Late Sh. Anand Bhattacharya on Ex. PW1/1 at point D. So there is nothing more presented as part of case of plaintiff other than the due execution of the Will in question bequeathing the property in favour of petitioners.
12.4 Contesting respondents no. 2 to 4 have raised objections on the premise that it was unnatural, improbable and unfair for their father to have, without any rhyme or reason exclude his 3 children out of 5 from disposition of the property. They have also disputed the signatures of the testator appended on the bottom of the Will, also pointing conspicuous absence of mention of date and place of execution of Will apart from other fallacies of spelling of name of PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 33 of 80 testator and his father in the Will. They further raised objection that it was unlikely that their father would not even disclose the existence of Will to his own wife and further petitioner no.1 who affirmed that the Will was executed in his presence and was handed over to him as a document, one month thereafter, chose to remain silent about it without disclosing to any family member for more than a period of 20 years. They also underlined the failing health of testator during the period in question which incapacitated him from mindful disposition of property.
12.5 The expression 'Will' is defined by Section 2(h) in the following words :
2(h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
12.6 Section 59 of Indian Succession Act, 1925 lays down that every person of sound mind may dispose of his property by Will, the only exclusion made is that of a minor. The Explanations appended to Section 59 endeavour to elucidate the expression 'soundness of mind'.
The focus thus remains that the person must know the import or purport of what he intends to do, while expressing any such desire in the form of a testament or will. For an instrument to constitute a valid will, testator must understand the nature and effect of the propositions contained in the said Will. Also, the testator must be in physical and mental condition to be able to think clearly and make rational judgment as to the mode of disposing his property. It is imperative to PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 34 of 80 show that testator possessed capacity to understand the propriety of the decision he wants to make and the consequences, the said decision would entail.
12.7 Free volition and freedom to exercise the judgment by a testator is the hallmark of a valid Will. Section 61 of Indian Succession Act, 1925 lays down in no uncertain terms that any will which impinges upon free agency of the testator is void. Section 61 reads as under :
61. Will obtained by fraud, coercion or importunity - A will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
12.8 Chapter III of the Indian Succession Act, 1925 deals with the execution of unprivileged wills. Section 63 of the Indian Succession Act, 1925 lays down rules of execution of will by a testator who is not a soldier or an airman or a mariner. Section 63 is reproduced hereafter:
63. Execution of unprivileged Wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 35 of 80
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has been the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person, and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
12.9 Section 63 thus intends signature or affixing mark of the testator on a will, to be attested by two or more witnesses, each of whom shall sign the will in the presence of the testator, although not necessarily, in presence of each other. It also mandates that the two witnesses must have seen the testator having signed the will or having personally acknowledged his signature or mark thereupon. It is, thus, not a pre requisite that the two attesting witnesses must be present at the time when testator executed the document rather the primary requirement is presence of testator at the time of attestation by each of the witnesses.
12.10 Will is a document required by law to be attested for its due execution in terms of the Section 63 of the Indian Succession Act. Section 68 of the Indian Evidence Act, 1872 lays down the manner of proof of execution of document required by law to be attested that PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 36 of 80 atleast one attesting witness who is alive and capable of giving evidence, must be called to the witness box to prove such attestation and execution. Section 68 of the Indian Evidence Act, 1872 is reproduced hereunder for ready reference :
68. Witness not disqualified by interest or by being executor - No person, by reason of interst in, or of his being an executor of, a Will shall be disqualified as a witness to prove the execution of the Will or to prove the validity or invalidity thereof.
12.11 Also relevant to the discussion at hand, Section 67 of the Indian Evidence Act lays down that the signature or the handwriting upon any document must be proved to be that of a person who allegedly signed or written upon such document. Section 67 of Indian Evidence Act, 1872 reads thus :
67. Effect of gift to attesting witness - A will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them.
Explanation - A legatee under a Will does not lose his legacy be attesting a codicil which confirms the Will.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 37 of 80 12.12 Imperative at this stage, is to refer to the principles governing mode of proof of a will before a Probate Court as laid down by judgments of Hon'ble Supreme Court of India.
12.13 In the case reported as H. Venkatachalla Iyengar V. B.N. Thimmajamma, AIR 1959 SC 4433, it is held as under :
" 18. ...the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the will knowing that it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual last of the satisfaction of the prudent mind in such matters.
19. ... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 38 of 80 whether the document propounded is proved to be last will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing stated of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus to the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 39 of 80 may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
(emphasis supplied)
24. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964 SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court.
Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar (supra), the court held : "4. ... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 40 of 80 surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations...."
(emphasis supplied)
25. In Jaswant Kaur vs. Amrit Kaur, (1977) 1 SCC 369, after analyzing the ratio in H. PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 41 of 80 Venkatachala Iyengar (supra), the Supreme Court culled out the following propositions: "(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. (3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. (4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 42 of 80 removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. (5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
(emphasis supplied) PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 43 of 80 12.14 In the instant case, Sh. Subhash Chandra Banerjee was appointed an executor in the alleged will. However, the petition seeking grant of probate was instead filed by the two beneficiaries of the Will. Section 222 of the Indian Succession Act, 1925, mandates grant of probate only to an executor appointed in the will. Although grant of Letters of Administration has not been specifically sought as part of relief, however, as the petition has been filed under Section 276 r/w Sec. 278 of the Indian Succession Act, having been filed by the two beneficiaries named therein, petition at hand is treated as one seeking Letters of Administration in favour of the petitioners.
12.15 To start with, as the will is a document meant to give effect to wishes of the testator who is not present or cannot be called to explain his mind and the reason behind his decision put on paper, satisfaction has to be derived by the Court that the document is the last will or testament of the testator. The prime onus has been cast upon the propounder of the Will to prove that the Will is genuine and not drawn by way of any fraud or undue influence. It is for the propounder to also lead evidence to remove all legitimate suspicions to satisfy the conscience of the Court about due execution of the Will. It is settled that active participation of beneficiary in the execution of the Will or simpliciter exclusion of natural heirs would not be sufficient to draw an inference against the genuineness of the Will, Reliance can be placed upon the observations of Supreme Court in PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 44 of 80 Uma Devi Nambiar Vs. T.C. Sidhan (2004) 2 SCC 321, which is as under:
26. The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana vs. Pentakota Seetharatnama(2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not to necessarily lead to an inference that the Will was not genuine. One may quote with advantage, the following observations in Uma Devi Nambiar (supra): "16. A will is executed to alter the ordinary mode of succession and by the vary nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. it is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K Gopalan Nambiar v.
P.P.K. Balakrishnan Nambia [1995 Supp (2) SCC 664] it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 45 of 80 unnatural in the sense that it has cut off wholly or in part near relations.(See Pushpavathi v.
Chandraja Kadamba[919730 3 SCC 291]. In Rabindra Nath Mukherjee V. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied) 12.16 Having said so, it is imperative to ascertain, before proceeding to examine whether petitioners have been able to discharge the onus cast upon them to explain and remove doubt of suspicious circumstances surrounding execution of a Will, whether or not the Will fulfil the basic legal prerequisites of due execution as laid down in relevant legal provisions.
12.17 One of the attesting witness to the Will Sh. Rajat Bhattacharya appeared before the Court and identified the signatures of the testator and that of another attesting witness, since expired. Thus, the only attesting witness who was alive, was produced in the testimony box who affirmed that the Will in question was duly executed by the testator in a healthy and stable state. It is noted that any positive affirmation was not made by him in his evidentiary affidavit Ex. PW1/A that he saw the testator appending his signatures on the Will Ex. PW1/1, although he denied the suggestion given by counsel for Respondents no. 2 to 4 that he did not see the testator PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 46 of 80 signing the alleged Will. He also testified that the other attesting witness as well as the executor had put their signatures in his presence and that he had read the Will before signing it. As petitioner no.1 Sh. Mrinal Chowdhury also affirmed himself to be present at the time of execution of the Will, he stated that the said original Will was given to him by his father, a month later after executing the Will. PW3 Ms. Titil Bhattacharya merely identified the signatures of other attesting witness Sh. Anand Bhattacharya, being his daughter who expired in the year 2006, much prior to filing of his petition.
12.18 Germane to discussion at hand is the doubt raised by contesting Respondents no. 2 to 4 as to nature of relationship of testator with the attesting witness. PW1 Sh. Rajat Bhattacharya admittedly was 37 years of age, attesting for testator of more than 81 years of age. Although there is no law which specifies any particular age or age gap, however, there is nothing to suggest that Sh. Rajat Bhattacharya enjoyed special trust or bonding with testator apart from a casual acquaintance as a neighbour, to have been chosen to be attesting witness. Similarly, PW3 Ms. Titil admitted to have seen the alleged Will first time in court and her testimony to the extent that she overheard at the age of 11 years that her father signed as witness to Will, appear grossly unnatural and improbable in the natural course of events and cannot be accepted.
12.19 It is not disputed that the testator retired as Section Officer from Ministry of Commerce, Government of India. Having served as a functionary in various departments and superannuated at a PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 47 of 80 responsible post, it can be inferred that the testator possessed the knowledge and understanding of legal provision of Will as a means to dispose the property, upsetting the natural line of succession. PW2 Sh. Mrinal Chowdhury in his crossexamination stated that his father was well versed with English language. This factum have also been affirmed in the affidavits of DW3 Ex. DW3/A and DW4 Ex. DW4/A. DW1 also relied upon an original inland letter written by Late Sh. Faquir Das Chowdhury in the year 1980 as Ex. DW1/1, bare perusal of which shows that Late Sh. Faquir Das Chowdhury was well conversant with the English language, capable of due expression of his intent in the said language. As the alleged Will is worded in English language, this consideration becomes vital for appreciation of the evidence.
12.20 It is undisputed that the testator died on 01.05.1993 while he was residing with petitioner No.2 Sh. Manas Chowdhury and his family at C.R park, in the house belonging to respondent no.3, one of the daughter of the testator. The alleged Will was executed in the year 1992, about one year prior to death of testator. Upon the death of the testator there were six survivors in his family including his wife, three sons and two daughters. His wife and mother of petitioners died in the year 2010. It is the case of the petitioners that the wife of the testator was not present at the time of execution of the Will. While the alleged Will was executed in the year 1992, no evidence has been led by the propounder of the Will to show that the existence of the Will was brought to knowledge of their mother who survived till the year 2010 PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 48 of 80 or the other siblings. This becomes a vital consideration in as much as the instant petition was preferred by the petitioners only in the year 2015.
12.21 Petitioner no.2 in his affidavit Ex PW2/A has not made even a feeble attempt to show as to why and what prompted the petitioners to eventually approach the Court for grant of probate. Although it is settled that there is no legal mandate cast upon the beneficiary to approach the Court for grant of probate / letter of administration, however, the beneficiary is under a legal obligation to explain as to when the right to apply for such probate and letter of administration arose, for the Court to ascertain, not only the reason of prolonged delay in approaching the Court, when there was no such mandate at all, as well as to understand whether the petition has been filed within limitation as per Article 137 of the Limitation Act. There is nothing to show that petitioners made any effort to bring the existence of Will in their favour in the positive knowledge of the remaining survivors of the testator. Merely to argue that no claim was laid to the property, allegedly bequeathed in favour of petitioners, by contesting defendants would be to burden the defendants with the onus to prove the Will which is not the mandate of law. It is rather the case of contesting respondents who are siblings of petitioners that they were approached by the two petitioners to obtain NOC for getting their names incorporated in the official records of various statutory authorities and still even at that point of time, the factum of existence of Will was not put to them and it was only when the summons of the court were PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 49 of 80 received that they learnt about existence of the alleged Will in favour of petitioners.
12.22 Petitioner no.2, son of testator during crossexamination stated that his father shared healthy relationship with his mother. There is nothing placed on record to show that the relationship between testator and his wife was not cordial. DW1 affirmed in her affidavit Ex. DW1/A that her father in law and mother in law had very good, lovable and affectionate relationship with each other. DW3 affirmed in her evidentiary affidavit Ex. DW1/A that her father loved her mother immensely and always cared for her till he died. DW4 testified in his affidavit Ex. DW4/A as "I say that my late mother was weakness of my late father. My father loved my mother immensely and always cared for her till he died". It is unnatural and improbable for a person, well within his right, convinced fully of his judgment to make disposition of his property, to not even disclose such factum to his wife, while no attempt has been made on behalf of petitioners to show that it was rational in the given circumstances for the testator to follow such a course. Defendant no.2 and defendant no.3 appeared in the witness box on behalf of respondents and were elaborately cross examined by counsel for the petitioner, however, not even a suggestion was put to the witnesses that it was reasonable for the testator to have acted in the manner as alleged and choosing, without any apparent rhyme or reason, not to disclose that he executed a Will to bequeath the property allotted to him at Shivalik by Ministry of Rehabilitation in favour of two petitioners.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 50 of 80 12.23 In the same breath, there is nothing brought on record to show that the testator did not share a healthy and happy relationship with his other children whom he purportedly chose to exclude from reaping the benefits of his succession. Adverting to the evidence of respondents, it is affirmed by DW1, DW3 and DW4 in their respective evidentiary affidavits that Late Sh. Faquir Das Chowdhury shared a 'good cordial relationship' with all his three sons and two daughters. There is nothing brought on record to show that the testator was particularly annoyed with any of his children except allegedly with petitioner no.2 Sh. Manas Chowdhury in the last years of his life from 198990 till 1993. It is undisputed that the testator resided at house bearing no. H1562, C.R. Park, New Delhi for around 8 years prior to his death in the year 1993. It is also undisputed that the said house belong to husband of respondent no.3, daughter of testator. It is also the case that petitioner no.2 and his family also resided alongwith the testator and his wife in the said house. This itself goes to show that respondent no.3 offered her accommodation to her parents and also to her brother, when they so required. There is nothing brought on record to show that Respondent no.3 was infact reaping any monetary benefit therefrom. During crossexamination, DW3 Smt. Sumita Roy stated that the land for the house no. H1562, C.R. Park was purchased by her husband in the year 198283 and the construction thereupon was completed in the year 1985 and thereafter her parents alongwith the family of her elder brother, moved into the said house. DW3 admitted in such crossexamination that the sale proceeds of properties at PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 51 of 80 Chander Nagar were divided amongst the male lineage and she or her sister were never consulted or given any amount out of the proceeds of the property. Even in such an eventuality, DW3 chose to accommodate her parents within the means available with her. She also clarified that even during her visits from Rome to Delhi, she dwelled in a separate unit in the basement at the said house, without causing any inconvenience to her father or other members residing therein.
12.24 With a view to show that it was primarily the two petitioners and their wives who took care of all the needs of their parents, certain questions were put to the witnesses on behalf of defendant. DW1 Smt. Shubhra Chowdhury wife of youngest son of testator, Respondent no.2 Sh. Shyamal Chowdhury stated that 'my father in law stayed with my eldest brother in law till his demise'.... 'it is correct that wife of my eldest brother in law Mrs. Deepa Chowdhury was named as Janani by my father in law. It is correct that both my eldest brother in law and his wife looked after my father in law and mother in law.' ....'my mother in law stayed with my eldest brother in law first at Chitranjan Park and then at Shivalik and she died in December 2010.' ...... My father in law was consulting one Dr. Bhattacharya, but I do not know where his clinic was and he specialised in which field. DW3 Smt. Sumita Roy, one of the daughters of testator also stated . ...'I do not know who was the doctor looking after my father, if at all, however, my youngest brother Mr. Shyamal Kumar Chowdhury would be knowing it'. ... 'I am not aware as to which bank PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 52 of 80 my father has his account'. 'I am not aware as to in which account my father was putting his pension after retirement.'... 'my father was intermediate passed out but I am not very sure'..... 'I visited my father twice every year'. She stated that 'it is correct that my eldest brother was respected as a fatherly figure after the death of my father'. Similarly, DW4 Shyamal Kumar Chowdhury, youngest son of testator, to a question put by counsel for petitioner that his parents lived with his elder brother Sh. Manas Chowdhury, all through till their demise, responded in affirmation. Response to another question is vital to consider at this stage. The relevant portion of the testimony of DW4 is extracted as under :
"Q : Is it a fact that your parents were living with your elder brother Mr. Manas Chowdhury all through till their demise?
Ans : Yes.
Q :"What was the source of income of your father besides the pension amount"? Ans : He used to invest in the mutual funds. Q : Are you aware that mutual funds investment commenced in India in 1998 and prior to that there was only one mutual fund of UTI which was scam ridden and closed by the time. What have you to say?
Ans : I have seen the cheques received from UTI in favour of my father. It is incorrect to suggest that I have made the entire story of investment in mutual funds or that there was any cheques coming from payment of dividend from the investment in the mutual funds by my father. I have no knowledge if my father had given Rs. 1 lakh to my mother and / or Rs. 50,000/ each to my sisters just before his death. It is incorrect to suggest that was the only money which my father had at the time of his death and there was no PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 53 of 80 other money with him as he was supported entirely by my elder brothers."
Q : Do you know when your mother had gone to Italy while your father was alone at Delhi?
Ans: My mother went to Italy but when exactly I do not know.
Q: Is it as fact that when your mother had left to Italy, your brother Manas Chowdhury was posted at Chandigarh?
Ans: May be.
Q : Is it a fact that when you mother had left to Italy Mr. Manas Chowdhury was posted in Chandigarh?
Ans : May be Q :Is it a fact that at that point of time, even though you have now stated that you were very close to your father, but the fact remained that your father refused to stay with you and shifted to Chandigarh alongwith your elder brother Manas Chowdhury to which he responded as under :
Ans : My father had never refused to stay with me. May be he would have gone for a change to Chandigarh.
Q : Is it a fact that your parents always stayed with the petitioner no.2 all their life whether it was in the rental premises at WEA 9A/21, First Floor, Karol Bagh, New Delhi or at E142, East of Kailash or at House no.32, Hauz Khas or at H1562, C.R. Park or at B61 Shivalik? Ans : Except for H1562 and B61 Shivalik where only my mother stayed, in all other places me and my family stayed, in all other places me and my family stayed with my parents.
Q : Is it a fact that the three properties at WEA 9A/21, E142, East of Kailash or House no. 32, Hauz Khas were rented properties which were taken on rent by Mr. Manas Chowdhury and you were living as a dependent with him and even at PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 54 of 80 H1562, C.R. Park, you and your family were staying with him as a dependent?
Ans : It is true that the properties at WEA 9A/21, E142, East of Kailash or House no. 32, Hauz Khas were rented accommodations while the property at WEA 9A/21 was taken on rent, the property at E142, East of Kailash used to be the guest house of the company where my brother Manas Chowdhury served. While we were asked to vacate the property at E142, East of Kailash, I arranged the property at 32, SFS, Hauz Khas which belonged to my office colleague at a very nominal rent. I do not think any rent receipts were taken from any of the above mentioned premises so the question of paying rent by Manas Chowdhury alone does not arise as I was also contributing to the household budget. I got married on 07.03.1977, I stayed upto March 1985 with my brother.
Q : Do you know in which bank did your father have an account where his pension used to be deposited?
Ans : United Bank of India, Connaught Place branch.
12.25 Petitioners in their own evidence, have chosen not to lead any evidence in affirmative to show that the petitioners were solely put under obligation to take care of all the needs of the testator and his wife, to the exclusion of their other children. Petitioner no.1 appeared in the witness box as PW2 and chose to prove only the death certificate of his father and that he witnessed the execution of the Will.
There is absolutely no affirmation about the nature of his relationship with the father or with the other family members. Petitioner no.2 never stepped in the witness box. The excerpts of the testimony PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 55 of 80 reproduced above reflect projection on behalf of petitioners that the testator and his wife continue to reside with them throughout their life till their demise and thus the two petitioners were loved and respected thoroughly by their parents and they honourously fulfilled their obligations towards the testator and his wife. The assessment of the testimony indicates that there is no doubt about parents continuing to reside with the two eldest brothers, the petitioners herein, till their demise. DW4 clarified in his testimony that he and his family after his marriage in the year 1977 resided with the parents till the year 1985. In fact, at the time of his marriage in the year 1977, the entire family resided at E142, East of Kailash which was the guest house of the company where his brother Manas Chowdhury served. He also testified that he had arranged an alternative accommodation at 32 SFS Hauz Khas which belonged to his office colleague at a very nominal rent when his brother Manas Chowdhury was asked to vacate the company guest house. He also stated that the only other property where parents and all three brothers resided together was WEA 9A/21 which was a rented accommodation. He also testified that he duly contributed to the household budget at the time when he was residing with his parents and elder brothers. Thus, it appears not the case that there were fault lines between testator and the youngest brother or the two married daughters on account of which testator chose to reside with the eldest brother.
12.26 DW1 Smt. Shubhra Chowdhury and DW4 Sh. Shyamal Chowdhury, both responded that it was inconvenient for parents to reside in their residence being on the second floor. It is not to be PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 56 of 80 forgotten that DW1 and DW4 resided with the parents till the year 1985 and the age of testator, as can be gathered from the record, was around 75 years of age at that time. Thereafter, parents shifted to the accommodation provided by Respondent no.3 Smt. Sumita Roy. There is absolutely no denial that the youngest brother or his wife were not in good terms with the testator or his wife or were totally indifferent to their physical, mental, emotional or psychological needs.
12.27 As prevalent in the Indian customary family structure, parents resided with all their sons and their families till the situation permitted and when the youngest brother could afford to buy a separate accommodation with the help of House Building Advance from his organisation, he chose to reside separately. No case has been put up that the parents still wanted youngest son to continue to reside with them or made hue and cry upon his decision. In fact, petitioners have tried to project that the father or two elder brothers contributed money towards purchase of flat, which was categorically denied by DW4 Sh. Shyamal Chowdhury who stated that he had purchased the flat at Kalkaji by taking House Building Advance from his office. Thus, it is evident that his decision to purchase a flat and rather to shift therein and to live separately was not really frowned upon, rather apparently was the need of the hour as the family was constrained to shift into the accommodation of his married sister. DW4 also testified that he contributed to the family budget till he resided with his parents and the two elder brothers and even thereafter as and when required. The excerpt of his testimony relevant to the discussion herein reads as under:
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 57 of 80 " I was staying with my parents and elder brother till 1985 and I was also contributing to the family budget, As and when required, I had given money to my father after 1985. It used to be Rs. 1000/ to Rs. 2000/ at times but I do not recollect the date, month or year when the said money was given by him. It is incorrect to suggest that at no point of time was any money given to the father by me nor there was any occasion for the same. It is incorrect to suggest that my father had contributed money for my flat which I had purchased from DDA and that my brothers contributed towards the purchase of the said flat."
12.28 No evidence has been led to show that the two petitioners only and exclusively shouldered the responsibilities of their parents.
Testator himself was a pensioner and as such was not dependent fully on any of his children. Two daughters were married and were not residing in the same city. It was thus not feasible for the two daughters to physically attend onto their parents very frequently. As DW3 Smt. Sumita Roy offered her accommodation without drawing any monetary benefit to her parents as well as to the elder brother, reflects alot on her affinity towards her parents as she could have easily avoided to do what she did. It is not to be ignored that testator took his last breath in the residence of his daughter. It is natural that the person actually coresiding would know about daily medical issues faced by the parents but nothing has been led to show that the two petitioners had put in their heart and soul to keep their parents healthy PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 58 of 80 and in good mental and physical state. It is natural for the old parents to be suffering from age related ailments which need timely and effective redressal. It is not the case of the petitioners that the testator was particularly suffering from any chronic ailment which required them to go off board to take his basic care. In fact, PW2 Sh. Mrinal Chowdhury denied during crossexamination that his father was even suffering from any old age ailments. DW3, daughter of testator also stated that her father was a strong man and he was aware of what he was doing. She testified as under : "my father was a very strong man and he was aware of what he was doing.... my father was a very healthy man and was not suffering from high blood pressure, diabetes and heart problem or rheumatoid arthritis". Thus, the two elder brothers or rather the eldest brother with whom the parents continued to reside till their demise, did not have to evidently shell extra amount to take care of basic medical needs of their parents. No evidence has been led to show that the youngest son neither monetarily contributed nor made any effort towards meeting the physical and medical needs of his parents. DW3 Smt. Sumita Roy during her crossexamination stated that her father never used to go for walks, however, used to visit the market and back. This also indicates that the testator was agile, and was majorly on his own in his last years.
12.29 Germane to the discussion is the affirmation made by the DW3 Smt Sumita Roy and DW4 Shri Shyamal Kumar Chawdhary that Mrinal Chowdhury petitioner no.1, chose to live as a separate nuclear unit and left the family in the year 1974 when he got married PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 59 of 80 and thus his contribution towards the family was bare minimum. It is not disputed that Mr. Mrinal Chowdhury was not residing in the property at C.R Park where the Will was allegedly executed. Infact he admitted in Rejoinder to have separated from his parents in year 1974 after his marriage due to lack of space. Petitioner no.1 Mr. Mrinal Chowdhury has not led any evidence to show that he contributed to the family budget, much to the discredit of the other brothers or that he attended to all the needs of his father even after his marriage. The role of petitioner no.1 Sh. Mrinal Chowdhury only surfaced in the discussion towards allotment of land at Shivalik. Not even a suggestion was put forth to the two witnesses in denial of the affirmation as mentioned above.
12.30 It can be deduced from the discussion made above that the testator shared affinity with one and all in the family. It reflects on his character that he made an effort to try and keep the entire family together till the time he could. That he named his eldest daughter in law as Janani and the youngest as 'choti mai' itself shows that he was extremely loving and caring towards one and all without any discrimination. There is nothing to hold that the two petitioners shared the entire burden, taking care of their parents, to the utter discredit of the youngest son or the two sisters.
12.31 With respect to testamentary capacity of the testator, petitioners case is that the testator was agile with no old age ailments PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 60 of 80 capable of forming a judgment and its due expression and thus proceeded to execute the impugned Will, out of his free volition. Testator had no chronic ailments which limited his capacity, physical or mental, keeping him from doing what he wanted to do. Respondents have objected to the case of the petitioners to show that the physical and mental condition of their father was feeble and dilapidated as on the date of alleged execution of the Will, also that he suffered from various old age ailments as he attained the age of 81 years by the year 1990. DW1, DW3 and DW4 in their respective testimonies have categorically affirmed that the testator was not in his prime of health, subsequent to the year 1990. They also affirmed that the testator went into acute depression since the year 198990. It is pointed that the relationship of testator with the eldest son Sh. Manas Chowdhury had become discordial since the year 198990. DW3 testified in her evidentiary affidavit Ex. DW3/A, as under :
"I say that since the year 1990, Sh. Faquir Das Chowdhury went into acute depression due to growing discordial relationship with petitioner no.2. I say that the situation became such that he became totally incommunicado with the eldest son, i.e. petitioner no.2 herein with whom old parents used to stay at C.R. Park, at my residence."
12.32 The relevant portion of the crossexamination of DW3 in relation to the immediate discussion at hand, is reproduced as under :
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 61 of 80 "However during the period 199293, he was very vulnerable as he used to feel depressed. .... I have no documents in support of the fact that my father was undergoing depression in the year 199093 except verbal communication done by him to that effect. It is incorrect to suggest that my father was not suffering with depression between 199093. It is incorrect to suggest that I have stated that my father was suffering with depression only to raise a fictitious ground to negate the Will in favour of petitioners." Similarly DW4 in his evidentiary affidavit Ex. DW4/A affirmed the assertions already made by DW3 and stated that the testator since the year 1990 lapsed into 'stony silence' due to growing discordial relationship with petitioner no.2 He also categorically affirmed as mentioned in para no. 15 of his Ex. DW4/A as "I say that my late father during the period 1990 till his death on 01.05.1993 remained in acute depression and maintained absolute silence. During this period he never intended or desired to see both the petitioners."
12.33 The point which the defendant witnesses tried to underscore is two fold, one about the mental and emotional fitness of the testator, impinging upon his testamentary capacity and two about the nature of relationship with petitioner no.2, which improbablised any decision on the part of testator to make dispositions in the manner he allegedly did. It is evident that there are no medical facts or documents placed on record by any of the respondents to show that the testator was indeed suffering from anything called depression or that he was totally incapacitated out of any medical condition or even old age ailments that he could not exercise any rational choice. Depression is a medical term with defined contours and characteristics. There is no medical PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 62 of 80 opinion by an expert which can outline the exact mental parameters requisite to make an objective assessment. The respondents seems to have used the term 'depression' as any lay person would use to call an active, social and vibrant personality become unusually as quiet, silent or gloomy without any apparent reason. Petitioners have not led any evidence to specifically undo the affirmations made except that he duly executed the alleged Will, while being in the best of health.
Nothing more can be inferred from the respective testamentary assertions with respect to depressive state of mind of testator during the relevant period.
12.34 The case of respondents is that the testator had a disturbed mental state due to indifferent attitude of Sh. Manas Chowdhury about which he confided in respondents specially his youngest son Sh. Shyamal Chowdhury. Sh. Manas Chowdhury, for all the good reasons best known to him, chose not to face the axe of crossexamination to come clean although he was a beneficiary in the impugned Will. The relationship of Sh. Manas Chowdhury with the testator assumes primordial importance and thus the petitioners response to the case projected on behalf of respondents was very crucial. Apart from the point that there was no categoric mention of testator confiding in DW4 about indifferent attitude, no evidence has been led to show that there was no dent in relationship of testator with his eldest son and that he enjoyed the trust and benevolence of his father at all times. As can be understood, the testator was residing at his daughter's accommodation during the relevant period. Thus, he always had the option to even ask Manas Chowdhury to leave the premises and stay else where while he PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 63 of 80 was not getting a dignified treatment at the hands of Sh. Manas Chowdhury and his family. It is evident that the old parents were primarily the reason why respondent no.3 chose to accommodate their needs and not the prime needs of petitioner no.2 Sh. Manas Chowdhury and his family. Also, in the year 1985, as gathered from the testimony of DW4, Mr. Manas Chowdhury was asked to vacate the guest house provided by company so he and his family apparently had no other alternative accommodation to move to. Testator thus, despite not so cordial a relationship with his eldest son Manas Chowdhury and with an option available to do away his company, evidently out of his fatherly love and affection towards his family, continued to bear and move, wanting not to create any fissures in the family structure. It is natural for a person of the age of the testator to expect unconditional love and support from his children. He had no control over the fact that his two daughters were away and youngest son also had a separate residential setup. Petitioner no.1 Mrinal Chowdhury also lived as a separate nuclear unit and thus the testator was left with no choice but the eldest son Manas Chowdhury. Insecurities and loneliness are natural allies in the ageing journey where expectations may become unreasoned. Discordance to a certain extent, in the relationship is a natural concomitant, however, for the parents to be left in lurch with no communication would definitely be hurtful especially for a personality as that of testator who went off the board, throughout his life to weave his family together. Another point reflecting to the status of relationship between eldest son Sh. Manas Chowdhury and the testator is the submission made by DW4 Sh.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 64 of 80 Shyamal Chowdhury that petitioner no.1 Sh. Mrinal Chowdhury, primarily looked after the construction work at the plot in question and he also applied for the sanction plan of the property. Thus, it is strange that while the testator resided in an accommodation provided by his daughter alongwith his eldest son Sh. Manas Chowdhury who was presumably extremely caring towards his father that he had to call upon Mr. Mrinal Chowdhury to undertake the legal formalities and physical attendance with respect to the plot in question. Although no adverse inference could be deduced on account of any medical reason restricting the testamentary capacity of testator, however, the testimony at hand is reasonably indicative of 'not so cordial' relationship of testator with his eldest son Sh. Manas Chowdhury towards the last few years of his life.
12.35 Apart from the discrepancies pointed in the impugned Will, petitioners have tried to project, through the crossexamination of the respondents that the petitioners paid for the land underneath property no. B61, Shivalik at the time of allotment of the land by the society and also for the construction of the property. DW4 was extensively crossexamined on this point. Excerpts relevant to the discussion are, reproduced hereunder :
"Q : Are you aware that your elder brothers Mr. Manas Chowdhury and Mr. Mrinal Chowdhury paid for the land underneath property no. B51, Shivalik at the time of allotment of the said land by the society?
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 65 of 80 Ans " No, the entire amount was paid by my father.
Q : Who had applied for the sanction plan of the said property?
Ans : Most probably Mr. Mrinal Chowdhury. Q : Are you aware when the construction plan of the said property was sanctioned? Ans : No. Q : Do you know when the construction over the Plot no, B61, Shivalik was started and when the construction was completed? Ans : Construction started around 199192 and was completed around 1993. It is incorrect to suggest that the cost of construction over the said plot no. B51, Shivalik was paid by my elder brothers i.e. Mr. Manas Chowdhury and Mr. Mrinal Chowdhury. Vol. it was paid by my father. I have no documents to suggest that the cost of construction was borne by my father. It was orally informed to me by my father. It is difficult for me to tsy what was the amount spent for the construction of plot no. B61, Shivalik. My brothers have been paying the property tax for the property no. B61, Shivalik since the time of its construction as they were staying there. Similarly, the Lease Rentals for the said property had been paid by my brothers to L&DO since the time of its construction as they were staying there."
Q : Since your father expired on 01.05.1993, who completed the construction on the plot in question at B61, Shivalik, Malviya Nagar? Ans : When my father died the construction was almost complete. Only finishing work remained which was completed by my elder brother Mrinal Chowdhury as he was looking after the construction work. It is correct to suggest PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 66 of 80 that only a shell structure was ready by the time my father died.
Q : Are you aware that for making the shell structure only 20% of the cost is expanded whereas the balance cost goes towards the finishing of the house?
Ans : Since I have little experience in civil construction, I am not absolutely sure how much was spent on this structure. Vol. The financing of the project was handled by my brothers out of the money given by my father. The property has basement, ground, first and barsati.
Q : Would it be correct to suggest that the construction cost for the said property was to the tune of Rs. 25 lakhs?
Ans : The initial structure was basic one and thereafter if the money is spent on decorative items like tiles, stones etc. I will not be able to exactly figure out the amount shown above.
Q : Do you have any document to suggest that your father had contributed any money whatsoever for construction of the said property? (Objected to by Ld. Counsel for the Respondent on the ground that as being repetitive).
Ans : I have no document to suggest that the cost of construction was borne by my father.
It was orally informed to me by my father.
Q : Can you suggest the date, time, month and year, when your father suggested to you that he had given the money to the tune of Rs. 25 lakh for construction of the said property?
Ans : My brother Mrinal Chowdhury used to come to my father and collect money whenever there was any requirement.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 67 of 80 Q : When was the major chunk of money given by your father after May 1993?
Ans : Since my father expired on 01.05.1993, the contribution of the funds for construction had been done out of the money left by my father with my brothers.
12.36 So, the petitioners have contended that testator had a bare minimal pension and he was dependant upon the two elder brothers to fulfil all his needs and thus practically had no money left in his account or otherwise to be able to pay for the allotment of the land in question or to bear the cost of the construction of the property. Neither the account statement of testator has been sought to bring on record to show that this was indeed the status atleast in his formal pension account. There is no mention of the funds which the testator must have received upon his superannuation as a Section Officer. Petitioners have also not, apart from putting queries to the witnesses on behalf of respondents, brought in the statements of their own funds that they withdrew the amounts from their respective accounts to be able to make the contribution towards the allotment of land or to carry out the construction thereupon. Strangely while petitioner no.1 Mrinal Chowdhury was keeping to himself from the year 1974, showed keen renewed interest and started taking his father to the Ministry of Rehabilitation at the time of allotment of land, applying for approval of sanction plan and even actively participative during the construction upon the plot in question. While an effort has been made to show that the testator had no funds apart from his pension, the status of funds with the petitioners to be able to undertake the cost of entire construction to the tune of Rs. 25 lakhs have not been delved PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 68 of 80 into either. Testator died in May 1993 and the construction started around 199192 as per the case of petitioner and so completed in December 1993. DW4 has been categoric in his assertions that the entire financing of the project, was, although undertaken by the active participation of the two elder brothers, specially petitioner no.1 Mrinal Chowdhury, however, they always used the money given by his father. At no point of time, has DW3, yielded to the case projected on behalf of petitioners that petitioners spent their own money for the allotment as well as to bear the cost of construction. With no formal proof laid at hand and with bare minimal assertions, it cannot be inferred that the two petitioners, without expecting anything in return, with a view to extend help to their father while both had their own period and reasons of strained relationship with father, went ahead , without keeping a proof unto themselves, shelled the entire money for the plot in question. That the testator had given Rs. 1 lakh to his wife and Rs. 50,000/ each to his daughters, has also been put to DW4 during his crossexamination without any bare minimal proof. The mother is not alive to state whether she received Rs. 1 lakh or not, whereas this assertion that the 2 daughters received Rs. 50,000/ was not even put to DW3 Smt. Sumita Roy during her crossexamination and thus cannot be believed to be true. It is conceded that the petitioners have been making the payments of property tax or towards lease rentals to the L&DO for the allotment of the said house or the subscription to the Welfare Association of the colony. But that barely can be the reason for the testator to have made his disposition in favour of the two petitioners as he was not even alive when the two PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 69 of 80 brothers shifted to the house in question. Also, as they have been enjoying the premises, without any claim laid onto that property by any of the natural successors, it was in their interest to keep formal legal things in order by making statutory periodic payments.
12.37 Proceeding onto discussion upon the several discrepancies pointed on behalf of respondents as objection to the impugned Will to claim that the Will was forged and fabricated, it is contended that testator used to spell his name as 'Fakir Das Chowdhury' and not as 'Faquir Das Chowdhury' also name of father of Fakir Das Chowdhury was mentioned as 'Late Sh. T.D. Chowdhury' in place of 'Late Sh. T.C. Chowdhury'. Also, that the purported signatures appearing in the alleged Will, are not the signatures of testator, as claimed to be.
12.38 DW3 Smt. Sumita Roy as also DW4 affirmed in their respective evidentiary affidavits, also stated by petitioner no.1 as PW2 that "their late father was well versed with the english language and being the Government employee and that too of the level of Section Officer, was very particular about the spellings, grammer etc. of the English language." DW1 relied upon an inland letter written by testator in the year 1980 also bearing a postal stamp as Ex. DW1/1.
12.39 Bare perusal of the said inland letter is indicative about the natural command and flair reflecting that he had commendable proficiency in the language. Also it is deducible that he was specific and particular about details even in this casual letter he addressed to his daughterinlaw wherein he chose to write in English language as PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 70 of 80 well as Bengali language when he was not required to. Thus, when a person of his stature who has spent his entire life working in the Government Ministry, dealing with the noting in the files, presumably knew the purport of even an iota of doubt in a formal document called 'Will' and he would not accept any such discrepancy in such an important decision of his life. Identity of the testator includes his name and parentage. Respondents have contended that the name of testator has been misspelt and his parentage also incorrectly mentioned. In the copy of the passport put to DW1, placed on record as Ex. DW1/P1, the name of the testator has been spelt, being the passport holder as Fakir Das Chowdhury. Absolutely no other document has been placed on record, by the petitioners to clarify that name of their father was spelt as 'Faquir' and not as 'Fakir'. The testator was a pension account holder and also he was allotted accommodation by Ministry of Rehabilitation, even those documents have not been placed on record to show that the name was 'Fakir' as 'Faquir'. Also there was no occasion for the testator to have accepted incorrect mention of the name of his father as 'T.D. Chowdhury' in place of 'T.C. Chowdhury'. Testator died after one year of alleged execution of the Will. So in case of any discrepancy in the draft deed, he could have gone to have a fresh Will executed upon correction of these vital mistakes. By no stretch of imagination, can it be accepted that he had no issue with these glaring inconsistencies, had he actually willed for his disposition of property in the manner claimed. Also as certain corrections have been made in the impugned deed, manually, with a blue colour pen, nothing stopped the testator from making the PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 71 of 80 necessary corrections even in the spelling of his name and that of his father. This also raises doubt as to whether the testator actually read and understood the contents of the document he meant to put his signatures on, because had he truly understood the characteristics of this document considering the weightage it entails, he would not have compromised with the wrong mention of even his basic identity.
12.40 Coming further to the doubts raised, with respect to signatures of the testator, on behalf of respondents, DW1 claimed that the purported signatures claimed to be that of testator on the impugned Will, do not match with one put on the inland letter Ex. DW1/1 or even on the passport Ex. DW1/P1. She has claimed that she has seen the testator writing and signing several cheques and being a teacher, she has a keen observation with respect to the handwriting of any person acquainted to her and thus she can state with all conviction that the signatures on the impugned Will are not that of testator. During crossexamination of DW3, she was asked to explain the meaning of 'forged and fabricated' to which she stated as 'something which is not original'. The relevant portion of her response to the queries put by counsel for the petitioner reads as under :
Q : Do you know what is the meaning of the word "tempered"?
Ans : It means that you correct or your write what you want to write, that is tampering. It is correct that tampering means that you write what you want to write on a preexisting document. it also tantamount to changing the character of the said document.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 72 of 80 Q : Please see the Will and inform which portion of the Will is tampered?
Ans : The name of my father and that of my grandfather are wrongly spelt. Further, there are so many cuttings which are not signed / counter signed. My father's signatures are slightly different. The name of the Executor is handwritten which never happens.
I stated all the said facts in the reply as well as in my affidavit by way of evidence.
Q : Please see your affidavit and inform as to where the said facts are stated as stated above? Ans : It is a matter of record.
It is incorrect to suggest that I have not stated any of the above details in my affidavit or in my reply to the petition as there was no tampering of the document and the statement was a bald statement.
12.41 DW4 Sh. Shyamal Kumar Chowdhury was not cross examined on this aspect at all.
12.42 Section 47 of Indian Evidence Act deals with the aspect of relevance of the opinion of the Court upon handwriting of a person who wrote the document. Section 47 of the Indian Evidence Act, 1872 reads as under :
47. Opinion as to handwriting, when relevant When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 73 of 80 12.43 Germane to the discussion is the testimony by Sh. Deepak Jain produced in the testimony box as a handwriting and finger print expert who opined in his evidentiary affidavit as Ex. RW5/A as "the disputed signatures marked Q1 is not written by one and the same person Faquir Das Chowdhury whose comparative signature is marked A1"
In this report, the disputed signatures have been taken to be the one claimed to be of Faquir Das Chowdhury dated 22.03.1992 as Ex. DW1/1 and the comparative signature have been taken to be from the original inland letter dated 20.03.1980 as Ex. DW1/1. He admitted in his crossexamination that any person cannot replicate identical signatures even if taken at the same time. In this case, there is a difference of 12 years between the two comparative signatures. He also stated that he was not shown any copy of passport Ex. DW/P1 by the counsel for respondent and thus, he did not choose to examine any other signatures from any other document. He clarified that the questioned and admitted writing must fall within the same range of natural variations for the questioned signatures to be called genuine signatures. Section 45 of Indian Evidence Act postulates about the opinion of experts as under :
45. Opinions of Experts When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting][or finger impressions] are called experts.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 74 of 80 12.44 An expert is a person having special skill or knowledge in a particular sphere. He is supposed to base his report upon objective analysis, concerning the applicable principles. His report is basically his understanding of the facts put to him. It is settled that the Court is not bound by any such opinion and it is for the Court to assess whether and how much weightage is to be given to such an opinion. The report can be wholly rejected or can be partly accepted. Even in the case at hand, the Court cannot simply accept the report as it is, without any questions asked. No positive effort has been put in on behalf of petitioners apart from creating holes in the viability of the report of the expert witness to independently prove that the signatures as claimed upon the impugned Will are that of testator only. DW1 claimed herself to have received several letters on behalf of testator and also asserted herself to have seen the testator signing the cheques several times and was put to crossexamination where she was able to make out the case as to why she was bestowed with a keen observation about handwriting or signature on account of her professional requirements. In the report given by RW5, Sh. Deepak Jain enlisted vital differences between the comparative signatures as under :
(i) the size of lower portion of first formation, it is much bigger in comparative than the disputed.
(ii) Combination of second and third formations, it is angular on left side and having a straight stroke in the PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 75 of 80 disputed, but it is curved having loop at the left side in the comparative.
(iii) Terminus of third formation, it is in upward in the comparative but downward in the disputed.
(iv) Fourth formation is entirely different.
12.45 In the backdrop of analysis of report of Handwriting Expert, comparing the signatures of testator available on record on two documents Ex. DW1/1 and Ex. DW1/P1 with that appearing on the impugned Will, there do not appear very gross dramatic difference however closer bare scrutiny does project marked differences. There may be several factors responsible as the signatures presented or may be available contemporary to the Will have not been produced by any of the parties so the two sets are spatially and circumstantially different as with age, time with natural progression, with lesser use of signatures occur a period of time, flair over handwriting, pressure points, stokes do change. Thus, although hand writing expert report is referential but cannot be accepted in toto as a gospel truth. Also, the genuineness of Will cannot be solely based upon the signatures of testator which is just one, although a vital factor, to be considered.
12.46 The expression 'forged' and 'fabricated' have a legal connotation and cannot be loosely used. Onus was cast upon respondents to prove whether the Will was forged and fabricated. Respondents have claimed that signatures on the Will were not that of testator, coupled with other apparent contradictions, all of which have already been discussed in detail in the preceding paragraphs and thus, PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 76 of 80 do not require to be adverted to. Giving effect to the real intention of a dead man is what the Will purports to do. The jurisprudence governing scrutiny of Will for granting administration of estate of testator would not apply to the adjudication of a Will as forged and fabricated and as such do not in strictu sensu fall within the domain of this Court to adjudicate.
12.47 Further, the impugned Will contains handmade corrections and even the name of the executor has been written by hand. The identity of executor has not been disclosed. There is no reason assigned as to why executor did not approach the court or has refused to perform his obligations as one, if at all, approached by the beneficiaries. PW1 Rajat Bhattacharya stated that executor was present when the Will was executed thus, named executor become an important factor in ascertaining the genuinity of Will. PW1 Rajat Bhattacharya stated that corrections as reflected were already there in the draft deed when he was approached to sign as a witness to the Will. There is no affirmation that testator read the draft Will in the question and made corrections as he deemed fit or asked someone on his behalf to do those corrections. There is no affirmation that the writings or corrections were in the handwriting of testator. PW2 Mrinal also did not make any categoric submission to that effect. Respondents chose not to crossexamine PW2 Mrinal on this aspect. Bald affirmations or denials cannot take the place of proof and cannot be accepted.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 77 of 80 12.48 Counsel for Respondent no. 1 to 4 pointed that PW1 Rajat did not testify about date of execution of Will correctly. Although date of execution is vital, however, factum of execution is for more important and cannot really demolish the entire testimony of attesting witness. There are other infirmities pointed in the impugned Will as indicating a schedule annexed or continuation on the other pages whereas there was so none. These inconsistencies are factually visible and attain significance as these do not gel or synchronize with professional attributes of the testator as he could not have left those gaping doubts had he really intended to execute and give effect to his free judgment through his Will. Also, the language as used in the Will appear very synthetic and way too legal as if intending to give ownership even prior to the Will coming alive, in a bid to exclude, may be anyone else apart from beneficiaries, to have their part. The language of Will appear to be giving ownership rather than bequeathing the property in favour of beneficiaries, which appears strange at the face of it. Also, there is conspicuous absence of even mention of any other successor including his wife, which appear to be unlike testator, given his natural traits, gathering his personality attributes based on testimony of his children. There is no reason why testator would fail to or even refrain from mentioning, had he disbursed some amount to his younger son or daughters. Counsel for petitioners have claimed that contesting Respondent made no claims over property for almost 23 years. It is noted that Respondents made no claim till the case was filed but that was no reason to accept that the Will was genuine. Respondents have claimed that they were never PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 78 of 80 made aware of existence of Will prior to filing of case, so they, never questioned the enjoyment of property by two brothers, the two petitioners herein as even their mother was residing with them. It is not the case of petitioners that they intimated about existence of impugned Will to the natural legal successors of testator promptly after death of the testator.
12.49 Considering the entire discussion around conspectus of circumstances in the preceding paragraphs, it is held that the petitioners have not been able to discharge the onus of dispelling suspicious circumstances surrounding the execution of the Will. It is settled that mere upsetting of choice of succession cannot be the sole factor to discredit the Will but that also becomes a reason for subjecting it to greater scrutiny. The entire process is to understand whether the Will in question really is an expression of rational self of testator without being rather judgmental of his prudence or decision making. In the instant case, Will definitely do not bear the colour of personality characteristics of testator and cannot be taken to be natural extension and progression of testator. Will is improbable, both in his language and substance and the time or manner in which it came to or was compulsorily brought to light also adds in. The contention of petitioners that Will is a genuine document carrying the expression of judgment of testator is wholly rejected.
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 79 of 80 RELIEF 13 In view of the aforesaid discussion, the instant case of the petitioners Mr. Mrinal Chowdhury and Mr. Manas Chowdhury against all the respondents that is State, Mr. Shyamal Chowdhury, Smt. Sumita Roy and Smt. Amita Mukherjee under Section 276 read with Section 278 Indian Succession Act, 1925 for grant of Letter of Administration in respect of Will dated 22.03.1992 of Late Shri Faquir Das Chowdhury, son of Late Shri T.C. Chowdhury is hereby dismissed.
14 File be consigned to record room.
Announced (Shelly Arora)
on 23.12.2020 Additional District Judge / South East
Saket Courts/New Delhi .
PC - 1534/16 Mrinal Chowdhury Vs. State & Ors. Pg. 80 of 80