Joydeb Paul vs Smt. Dipanwita Pal on 22 June, 2017

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Calcutta High Court

Joydeb Paul vs Smt. Dipanwita Pal on 22 June, 2017

The Court : This P.L.A. No.273 of 2014 was registered at the instance of Joydeb Paul, the sole executor of the Will and Testament dated 27th August, 2013 of the deceased Joydev Pal. One Dipanwita Pal being the widow of the testator lodged a caveat. Subsequently, G.A. being No.883 of 2015 was filed by the caveatrix for recalling of an order dated 29th January, 2015 by which the probate application was marked as non-contentious cause. By an order dated 18th March, 2015, after due consideration of the averments made in the petition filed by Dipanwita Pal, this Court held that an opportunity should be given to the caveatrix to contest the probate proceeding and, accordingly, order dated 29th January, 2015 was recalled and the applicant was directed to file affidavit in support of the caveat which she has done. The matter was taken up for hearing as a contentious cause and, consequently, this P.L.A. was re-numbered as Testamentary Suit being No.17 of 2015. The parties led evidence in support of their respective cases. Matter was heard at length on diverse dates and lastly, hearing was concluded by an order dated 16th May, 2017.

The propounder and executor has averred that the testator Joydev Pal, before his death, appointed the propounder as executor of his last Will dated 27th August, 2013. The original Will has been brought on record as Exhibit A. according to the petitioner, the Will dated 27th August, 2013 was written in English language and he was appointed as the sole executor of the said last Will and Testament executed by the testator Joydev Pal, since deceased. In support of execution of the said Will a declaration has been filed by Indrajit Pal, one of the attesting witnesses and an affidavit affirmed on 16th September, 2014 has been filed with the probate application. The testator died leaving behind him surviving his mother Smt. Susama pal and his widow Smt. Dipanwita Pal. Mother Susama Pal gave her consent for the grant of probate of the last Will and Testament dated 27th August, 2013 of the deceased testator but the wife of the deceased testator has not given her consent to the issue of grant of probate of the said last Will of the testator. Accordingly, the petitioner prayed for issuance and service of citation upon the said widow along with the petition. An affidavit of assets has also been affirmed on 16th September, 2014. The propounder Joydeb Paul has deposed in the box and has confirmed that as executor he has filed the application for grant of probate. The said Joydeb Paul, the executor, has been cross-examined by the learned counsel for the defendant but nothing adverse could be taken out from him.

One Indrajit Pal, an attesting witness, came forward before this Court and proved the execution and attestation of the said Will dated 27th August, 2013 (Exhibit A) in conformity with the requirements under Section 63 of the Indian Succession Act, 1925. Answers given by the said attesting witness Indrajit Pal to question Nos.4-9, 15, 19- 28, 32, 40, 64-68, 72-81, 86 and 93 are relevant which I have taken note of for the decision of this probate proceeding. His evidence transpires that the 'Will' was signed by the testator as his last Will and Testament in presence of both the attesting witnesses and at the request of the testator and in his presence these attesting witnesses witnessed execution of the Will by the testator and, accordingly, they put their signature on the said last Will of the testator. The attesting witness Indrajit Pal stated in the box that the Will was executed on 27th August, 2013 and he identified the signatures appearing on the Will. He also identified those signatures to be of Joydev Pal, his maternal uncle, the testator and that of the signature of the other attesting witness Mousumi Pal, his cousin sister. He also confirmed that the testator put his signature in his presence and that is why he was aware of the signature of Joydev Pal, the testator. In particular, the answers given to the questions put by the Court are of much relevance. Those questions are question no.25-37. He has explained the reason why he was present on the day when the Will was executed by his maternal uncle and he has also explained the presence of the other attesting witnesses at the time when the testator put his signature on the Will in presence of other attesting witnesses. He has repeatedly mentioned the time and date of execution of the Will and further reiterated that the testator put his signature in his presence. He has also categorically mentioned that his maternal uncle, the testator, executed the Will on 27th August, 2013 whereas, he died on 13th October, 2013. In cross-examination also, the witness could not be shaken. He reiterated the same things which he deposed in his examination in chief. While deposing as an attesting witness the said Indrajit Pal also proved his affidavit affirmed on 16th September, 2014 whereby he declared that he was present at that time and saw the testator affixing his signature in the Will.

In view of the evidence of the attesting witness it can be held that the requirement under Section 63 of the Indian Succession Act, 1925 has been complied with.

The defendant in her affidavit in support of caveat, has made out the following case that -

(i) The Will is not genuine and is not the expression of the last wishes of the deceased and further that the signature on the Will is also forged and fabricated.

(ii) That the alleged Will of the deceased executed on 27th August, 2013 does not bear the signature of the deceased. The purported signature of the deceased appearing on the said document appears to have been forged. In an alternative plea the defendant has made out a further case that even if the Will contained the signature of the deceased, the deceased did not execute any Will and did not intend the purported document to operate as a Will. The deceased was mentally and physically incapable to make any Will.

(iii) The purported Will is unnatural and could not have been created or executed by the deceased.

According to the defendant, the application for grant of probate should be dismissed. In paragraphs 5 and 6 of her affidavit the defendant has stated that she was married to the deceased testator on 3rd August, 2007. Their relationship deteriorated as the deceased was impotent. The defendant was at times tortured at her marital home particularly by the family members of the deceased. In 2013 her relationship with the deceased husband deteriorated completely and became very acrimonious. (Criminal proceedings were even filed by her which resulted in the deceased being arrested). Proceedings for maintenance were also filed by her. However, it is stated that she did not continue with the said proceeding after his death.

In support of the claim of the propounder in his application for grant of probate Mr. Suman Dutt, learned counsel appearing for the plaintiff, submitted that the Will is a genuine Will and the genuineness has been proved on DOC by the attesting witness. The attesting witness has identified the signature of the testator. The evidence led by the attesting witness does not leave any doubt for the Court to hold for a moment that there was any discrepancy in the Will so that Court can think of any situation that the Will was made under any suspicious circumstances. According to Mr. Dutt, Court should presume that the Will is genuine unless the defendant proves it that the signature on the Will was forged or the execution of the Will is not genuine. According to Mr. Dutt, onus lies upon the defendant to prove the ingenuity of the Will. Mr. Dutt submitted that because of the strain relationship between the husband and the wife the husband was compelled to take a decision to execute the Will and very consciously left out his wife in the Will because of her regular mental torture to the husband. According to Mr. Dutt, the Will appears to be genuine otherwise, the testator would not have mentioned other heirs as beneficiaries in the Will save and except the wife.

Before going into the disputes raised by the defendant it is profitable to discuss about the essential tests for valid execution of a Will.

(a) According to the provisions of Section 63 of Indian Succession Act, 1925, the Will must be signed by the testator or the testator shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his discretion.

(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 must be attested by at least two witnesses each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person signing the Will, in his presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of 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 is necessary.

In consonance with the said provisions of Section 63 of the Indian Succession Act, 1925, it can be held that the testator must have a dispensing mind free from all extraneous influences but has mental capacity to execute a Will. The testator is presumed to be seen having a mental capacity to make a valid Will until contrary is proved; the Will should be executed in accordance with the provisions of the Act as incorporated in Section 63 as mentioned hereinabove. The testator should have signed or affixed his mark to the Will in the presence of at least two witnesses those who are required to see the testator signing or affixing his mark on the Will and each of the witnesses should sign the Will in presence of the testator; the onus of proof of the Will is on the propounder or beneficiary of the Will; the existence of suspicious circumstances make the onus of proof very heavy and such circumstances are required to be removed by the propounder before the document is accepted as the last Will of the testator. The area of proving the Will does not ordinarily differ from that of proving any other document except for the special circumstances as incorporated in Section 63 of the Act.

In order to justify as to whether the testator had a free mind to execute the Will or that he was influenced by any extraneous considerations, the attending circumstances in particular case are required to be considered in depth. A Will is presumed to have been executed validly when the evidence and other attending circumstances prevailing at the time of execution of Will supports that there could not have any doubt in the mind of the testator to execute the Will for the benefit of the persons whose names have been mentioned in the Will as beneficiaries. In the present case, it is necessary to discuss the attending circumstances whether it was favourable for execution of such a Will or the Will can be said to have been made under duress or influence.

I have already held that the Will has been duly proved by one of the attesting witnesses. Even the question raised by the defendant to the attesting witness on box could not have shaken the witness, rather, the attesting witness has confirmed in the box that he has seen the testator putting his signature on the Will. It is very pertinent to note that although, learned counsel for the defendant cross- examined the attesting witness, but no suggestion has been given with regard to the requirements of Section 63 of the Indian Succession Act. The evidence adduced by the parties undoubtedly proves that the relationship between the defendant and the testator was not cordial at all. Marriage between the testator and the defendant took place on 3rd August, 2007 and the defendant left her husband sometime in May, 2012 and in February, 2013 she filed an FIR under Section 498A of the Indian Penal Code with the Police against her husband. Deceased testator Joydev Pal was taken into custody on 21st February, 2013 while he was released on 7th March, 2013. After the testator was released on bail on 14th March, 2013 defendant came with Police personnel and took all her articles from her matrimonial home and on 23rd May, 2013 defendant filed a petition under Section 125 of the Criminal Procedure Code (M.C. No.160 of 2013) against her husband, Joydev Pal, (since deceased). Will was executed by the deceased Joydev Pal on 27th August, 2013. In the scenario, as has been pointed out hereinabove, it is rather unexpected for a man to forget everything and to forgive the wife on the day of execution of the Will particularly in view of the time gap in between he is taken into custody on the FIR under Section 498A of the Indian Penal Code, of the defendant and the date on which the Will was executed, any prudent and reasonable man would take such a decision to exclude the wife from his properties and instead, he has given everything to his mother till her life and thereafter other beneficiaries mentioned in the Will.

Therefore, upon scanning of the evidence on record I am of the firm view and of no doubt that the testator had a clear mind to exclude his wife from any benefit in his properties.

The question raised by the defendant that had the testator any such intention to deprive his wife, he would have changed the nomination in the Life Insurance Policy where he introduced her wife as his nominee.

Mr. Dutt, learned counsel appearing for the plaintiff has relied upon following decisions in the case of -

• Daulat Ram & Ors. - Vs. - Sodha & Ors., reported in (2005) 1 SCC 40;

• Ranjan Kumar Mitra - Vs. - Swapnendu Krishna Deb, reported in (2012) 2 CHN 238;

• Vallai Ammal & Ors. - Vs. - Palaniammal (deceased) & Ors., reported in (1998) 3 ICC 376 (Mad) and • Celestine Silva Bai & Ors. - Vs. - Josephine Noronha Bai & Anr., reported in AIR 1956 Mad 566. Ratio of the said decisions and applicability thereof will be discussed later on. Before going into such discussion I intend to take note of the order dated 16th September, 2016, whereby the Hon'ble Justice Ranjit Kumar Bag observed that on bare eyes it would appear that the signature of the testator on Will varies from his other signatures on other admitted documents. After such observation was made, at a belated stage, after closure of evidence, the defendant filed an application seeking appointment of a handwriting expert and disputed the signature of the testator in the Will. Such application was heard by His Lordship, the Hon'ble Justice Ranjit Kumar Bag. By an order dated 16th September, 2016 His Lordship was pleased to allow the said application with costs to be paid by the defendant for causing inordinate delay in taking out such an application. In pursuance of the order passed by His Lordship, the handwriting expert submitted his report, but expressed his inability to give any conclusive opinion regarding the signatures in the referred document. The opinion of the handwriting expert remains inconclusive. Surprisingly, the defendant did not take any steps to bring the report on record as Exhibit and no further steps have been taken from the end of the defendant. In such a situation, question would arise whether the defendant can get any benefit out of such inconclusive opinion of the handwriting expert. The defendant, however, submitted that Court is the expert of all experts. Therefore, Court can form an opinion as to whether the signature appearing in the Will is a genuine signature of the testator or not after making a comparison with his admitted signatures which were brought on record.

On consideration of a totality of the fact this can be presumed that the testator did not get any time to change the nomination because his death was sudden. After coming from Police custody, the first thing he did, he executed a Will to deprive his wife. It is from the trend of the evidence and the fact circumstances prevailing, one can find that the testator had one thing in his mind to deprive the wife then to think about other considerations and it has happened that before changing the nomination, he died by a sudden heart attack. Therefore, the attending circumstance does not favour the defence case to hold that the Will was not genuine or that there is any suspicious circumstance so that the plaintiff could be burdened with more liability to do something more than what he has done as a propounder in this case.

Learned counsel appearing for the defendants, in course of his argument, has pointed out that age of the testator appearing in the Will does not match with the other documents and thereby he is trying to point out that the Will was not prepared at the instruction of the testator. He has also pointed out that writ petition was filed by the mother of the testator wherein it was stated that her son, Joydev Pal, died intestate. It was sought to be argued that had it been the case that a Will was executed by Joydev Pal and mother was made a beneficiary, mother would not have stated that her son died intestate. He also pointed out that the fact of divorce was introduced in the Will when the Will was executed. As I have already pointed out that evidence on record does not create any doubt that the signature appearing on the Will is genuine there is no room for doubt that because of such minor discrepancies the Will could be vitiated.

Apart from what has been discussed hereinabove regarding the evidence of Indrajit Pal, one of the attesting witnesses, it will be profitable to mention some portions of the deposition of the said Indrajit Pal. In question No.35 when he was asked whether the testator was suffering from any ailment at the time when the Will was executed, he said "he was fit and fine." In question no.46 he repeated that the testator was hale and hearty. In his cross-examination, the said Indrajit Pal said in answer to question no.64 that "he put his signature in my presence." In question no.80 when a question was put to him, "who was the first person amongst you and your sister signed the Will" he answered "I was the first who drew the signature." Similarly, in question no.81, when he was asked "who was first amongst three to sign" he answered "my maternal uncle."

The above assertions made by one of the attesting witnesses clearly establish that the testator put his signature on the Will.

Upon scanning the evidence of Dipanwita Pal (Dutt), the defendant in this case, deposed in her cross-examination in chief in question no.31, that her husband was born on 01.01.1964 and in support of such statement school leaving certificate was produced but the same was not admitted into evidence without examination of the Headmaster of the concerned school. If this document is admitted to be true, the age of the testator on the date of examination of the Will (27th August, 2013) would be 49 years. In course of argument learned counsel for the defendant strenuously submitted that the Will does not match with the age mentioned in other documents of the testator which has been admitted in evidence in course of the proceeding and according to the learned counsel, this is sufficient to hold that Will was executed in a circumstance shrouded by suspicion. Therefore, according to Mr. Baisya, learned counsel, the execution of the Will should not be believed. In other part of the deposition, the defendant in question no.60, in her cross- examination, has stated that the testator was working in L.I.C.I. (Life Insurance Corporation of India) as B.M's Club member till his death. Such statement confirms that the testator had the mental capacity till his death because the death took place out of a sudden heart attack and stroke. Therefore, there can be no reason to believe that the testator had no mental capacity as has been alleged in the written statement by the defendant. Such assertion in the cross-examination of the defendant also confirms that not only mental capacity, the physical capacity of the testator was remarkably good as he was working till his death. Learned counsel for the defendant has sought to argue that although, the defendant was not living in her matrimonial home before death of the testator, but even then there was no cause for the testator to leave the defendant from the list of beneficiaries in the Will made by the testator. As for instance, he has pointed out that although, the defendant was made nominee by the testator when he was having cordial relation with her but subsequent to the proceedings initiated by the wife under Section 498A of the Indian Penal Code and Section 125 of the Criminal Procedure Code, the testator never changed the nomination from the wife to a nearer one. According to the learned counsel for the defendant, it is sufficient to hold that the husband testator had still love for his wife. In her cross-examination, (Question No.102) she replied that her husband had a stroke and she received the information from the guard of the flat and in answer to question no.103 she said, she did not visit her husband in the hospital. She also said (Question No.104) that she never participated in the last rites of her husband. The above testimony of the defendant herself leaves no doubt that the relationship reached such a stage it was not unreasonable for the husband to think of something to leave the wife from his estate forever whatever he had got and on perusal of the materials available from the evidence it appears that any reasonable and prudent man can come to a conclusion that the Will was the product of wishful thinking of a prudent man and he did so. I do not find any material on record to hold that the Will is a suspect document. Mr. Baisya has strenuously argued for three days to convince this Court that the Will is a suspect document and by no stretch of imagination it could be thought that the Will has been executed by the testator. Though I appreciate the way in which the learned counsel has fought for his client to give the defendant relief but I am definite that his fight is against the truth which he cannot be allowed to succeed.

However, learned counsel Mr. Baisya in his continuous effort to convince this Court that the Will is not the genuine one he has relied on a decision in the case of H. Venkatachala Iyengar - Vs. - B.N. Thimmajamma & Ors., reported in AIR 1959 SC 443. Relying on such decision, Mr. Baisya submitted that when defendant raises a suspicious circumstance, the burden is heavily on the plaintiff to discharge. Now, the question whether the defendant has been able to raise an issue that the Will has been executed under some circumstances shrouded with suspicion, to my opinion, the defendant has completely failed because the learned counsel has pointed out that since the testator has signed twice on the Will that creates a suspicion without even testifying whether the signature is of the same person or not. His submission that since the two signatures vary slightly from each other, Court should not give any weightage to the genuineness of the signatures which I do not agree because it is the settled law that signatures in the Will although, is required to be proved like proof of other documents, the mathematical certainty in case of proof of a Will is not necessary. The test to be applied would be the usual test of satisfaction of the prudent mind in such matters. It is true that since a question of fraud has been alleged in the written statement and specific denial has been made with regard to the signature of the testator, the plaintiff is saddled with heavy burden to discharge with regard to execution of the Will by the testator. To this aspect, I am satisfied, that requirements under Section 63 of the Indian Succession Act, 1925, has been fulfilled and satisfied by the plaintiff. Now, the burden shifts to the defendant to prove that the Will is not genuine and the signatures on the Will are not of the testator rather those are forged by someone. No element is available from the evidence of the DW. Therefore, I am not inclined to hold at all that the Will is not genuine. Learned counsel appearing for the defendant, has drawn this Court's attention to the discrepancies of age mentioned in the Will because in the Will the testator has written that he was 47 years of age on the day when the Will was executed but documents have been brought on record by the defendant to show like Identity Card of the testator and the writ petition which was marked Exhibit 6, that in some places it was shown to be 42 years and 49 years in other places. Such slight variance of age of the testator in different documents is not sufficient to hold that the age given by the testator himself in the Will is wrong or is sufficient to vitiate the Will itself. If at all, this has to be proved by cogent evidence by the defendant. No such attempt has been made. Therefore, the submission of the learned counsel for the defendant that the execution of the Will is shrouded by suspicious circumstances, is of no basis. The submission by the learned counsel Mr. Baisya with regard to explanation 4 of Section 59 of the Indian Succession Act, 1925 also does not help his client to establish that Will is not genuine. Mr. Baisya has submitted that there are certain exceptions under which if a Will is executed the same need not be given effect to. According to Mr. Baisya, the present case is covered by explanation 4 of Section 59 as aforesaid. He said that no person can make a Will while he is in such a state of mind whether arising from intoxication or from illness or from any other cause that he does not know what he has done.

According to Mr. Baisya, the testator was very much perturbed while he was in jail and immediately after coming back from the jail custody, he executed the Will. Therefore, this is a case where he did not know what he was going to do. In my opinion, this could have been believed had there been sufficient evidence to show that the testator had no or insufficient mental capacity to execute the Will. The defendant, in her written statement, has taken a mutually destructive stand. On the one hand, she has stated that the signatures appearing in the Will are forged and not genuine. On the other hand, she has stated that the testator had no physical and mental capacity to execute the Will. This stand taken by the defendant is sufficient to destroy her own case and the same has exactly happened in the present case. Reiterating the view taken by the Hon'ble Supreme Court in the case of Daulat Ram (supra) this Court holds that the burden of proof that the Will was forged or that it was obtained under undue influence or coercion or by playing fraud is on the person who alleges it to be so and in my view, the evidence on record led by the defendant is insufficient to substantiate the allegation of forgery. Therefore, allegations made in the written statement are held to be not substantiated by cogent evidence. As held by our High Court in the case of Ranjan Kumar Mitra (supra) this Court holds that simply because there are some differences in the signatures of the testator in two places on the Will, it does not mean that the signature appearing on the Will are not genuine or that those were forged. Quoting the principles laid down in Celestine Silva Bai (supra) and followed by the Hon'ble Madras High court in a subsequent decision in the case of Vallai Ammal (supra) Mr. Dutt has drawn the attention of this Court to paragraph 12 of the decision wherein it was held by the Hon'ble Judge of Madras High Court that -

"... but it is always improper to presume a Will to be a forgery primarily from a consideration of its contents. It is not permissible for the Courts to do what Courts are often invited to do on behalf of objectors, namely, to make up their minds about the iniquitous character of the contents of the Will and then to look at the positive or direct evidence in favour of the execution of the Will from that standpoint. It is also improper for a court to start making all kinds of speculation as to the circumstances and suspicions which make it impossible that the Will could have been executed. It is bound to consider the evidence regarding the execution and attestation and if satisfied with that evidence it must pronounce in favour of that Will. Finally, there is no presumption either in fact or in law as seems to be commonly supposed that a Will if propounded must be a forgery..."

For the reason assigned hereinbefore, I allow the instant suit and order that probate of the original last Will executed by the deceased testator, Joydev Pal on 27th August, 2013, shall be granted to the propounder and costs and incidental to the probate application shall be paid out of the funds from the estate of the deceased.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.

(Sahidullah Munshi, J.)

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