Calcutta High Court (Appellete Side)
Smt. Sandhya Guha Roy vs Supriya Bose And Anr on 13 August, 2010
Author: K.J. Sengupta
Bench: K.J. Sengupta
1
Form No. J. (2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present :
The Hon'ble Justice:- K.J. Sengupta.
And
The Hon'ble Justice:- Kanchan Chakraborty.
F.A. 13 of 1995
Smt. Sandhya Guha Roy
-versus-
Supriya Bose and Anr.
For Appellant: Mr. Hiranmay Bhattacharyya, Mr.
Kaushik Chatterjee.
For Respondents: Mr. Yasin Ali,
Ms. Mamata Khatun, Mr. Arindam Ghosh.
Heard on:- 13th August, 2010.
Judgment on: 13th August, 2010.
This appeal has been preferred impugning the judgment and decree of the learned trial Judge, whereby the application for grant of probate has been refused.
The appellant is the propounder/executrix of a document described to be the last will and testament of one Mrinalini Basu, since deceased (hereinafter referred to as Testatrix). The respondents before us contested the said suit taking specific plea that there was no will, and the document which is sought to be probated, is a manufactured one. The defendants are the sons of the 2 said lady testatrix. A plea has been taken that apart from two sons, there has been a daughter and she was not cited.
In the context, as above, the learned trial Judge framed the following issues :
1) Is the suit maintainable in law ?
2) Is the will in question is genuine and valid one ?
3) Is the will duly executed and attested ?
4) Is the plaintiff entitled to grant of probate of the will as prayed?
5) To what other relief, if any, is the plaintiff entitled ?
The first issue was answered by the learned trial Judge in favour of the defendants and against the propounder holding that the suit is not maintainable as one of the heiress and legal representative, who should have been cited, in case of death intestacy viz. the daughter, was not cited despite having specific knowledge of the propounder. We are of the view that since one of the heiress was not cited, on that ground the suit cannot be held to be not maintainable; rather it is for the court to take steps not to proceed further without asking the plaintiff to take steps for issuance of citation when in the pleading, followed by evidence, it is noticed that one of the heiress who ought to have been cited, has not been cited. On that ground, the court cannot dismiss the testamentary suit and ought not to have held that the suit is not maintainable.
At least there has been a contest by two sons and their caveat as well as affidavit in support of their caveat was accepted. At the highest, the said daughter ought to have been cited first and had she wished to contest the grant by filing affidavit and place her claims, she ought to have been impleaded as a party defendant.
Therefore, we cannot uphold the decision of the learned trial Judge with regard to maintainability. The suit is maintainable. The suit would have been defective, in spite of the court's order, if the propounder remained inactive by not taking steps for issuance of citation. No such order was passed. Naturally, there was no occasion to take any step in this regard.
Instead of going through the other aspects of the matter, now we proceed to examine the matter on merit. When a plea has been taken as to the genuineness of the will, therefore, the onus is heavy for discharging the burden of proof. It is settled position of law that irrespective of any plea being taken by the defendant, the court of its own has to examine whether the document sought to be probated is the genuine last instrument or not. While doing so, the court will certainly look 3 forward for removal of suspicious circumstances and must have a clear explanation as regards the execution and attestation of the document containing the last solemn wishes of the person as that person is no longer in this world. Therefore, the court has to put itself in the armchair of the testator or the testatrix.
The aforesaid proposition of law is well settled and there is no need to cite all the decisions or authority in this regard. However, two Supreme Court decisions and also one of the old decisions of this Court will be good enough which are as follows : (i) A.I.R. 1959 S.C. page 443(H. Venkatachala Iyenger -vs- B.N. Thimmayaama), (ii) A.I.R. 1962 S.C, page 567(Rani Purnima Devi
-vs- Kumar Khagendra Narayan Deb), (iii) A.I.R. 1961 Calcutta, page 359 (A.E.G. Carapiet vs- A.Y. Derderian).
The aforesaid decisions consistently have laid down the law that it is the duty of the court to call upon the propounder to prove the attestation and execution of the will first and if there exists sufficient suspicious circumstances shrouded in attestation and execution , whether plea has been taken or not, the propounder is to remove such circumstances from the mind of the Court.
Learned Counsel for the appellant submits that the learned trial Judge has not appreciated the evidence in its proper perspective as regards attestation and execution of the will. The attesting witness viz. P.W. 1 has proved the will and also the signature. No one has suggested that the testatrix was unwell. Long before execution of the will, the defendants left their mother and did not care to look after her and left her in her house alone. For a long period, the propounder had looked after and nursed her. Therefore, it is quite natural that the will was executed giving away her only property to the propounder. The reasons for exclusion of the sons and daughter has been written down in the will itself. Thus, there is no unnatural circumstance nor any want of evidence with regard to attestation and execution of the will.
It appears that the typist of the will, P.W. 3 proved that the will was typed by him. The propounder even did not know about the preparation and execution of the will; naturally she could not throw any light with regard to the execution of the document. It is submitted that the learned trial Judge overlooked this aspect of the matter and was influenced by circumstantial evidence.
We have gone through the entire record of this case viz. the original will which is a typed one and the other exhibits adduced in evidence and the pleading. From the evidence of the attesting witness it appears that the P.W. 1 came to the box as the lone attesting witness attempting to prove the execution and attestation of the will. In this context, the learned trial Judge has refused to accept 4 the evidence regarding the proof of execution of the will. We accept the finding of the learned trial Judge and agree with him that there was no proof of attestation and execution of the will.
We feel incumbent to reproduce in verbatim cryptic testimony of the P.W. 1 who claims to be the attesting witness :
"I knew Mrinalini Basu. She used to live at Garia. On 16.2. 1986, she called me to her room. A lawyer was present there when I went there. He wrote a will and we all had put our signatures in the said will. This will is that will. These are the signatures of Mrinalini Basu. She had put her signature in the will in our presence. We all had put our signatures in presence of Mrinalini Basu.
Mrinalini Basu was in full mental and physical condition at the time of putting her signatures in this will. She had got up and put her signatures there. She is now dead. She was a Mistress in the Mission and School. this is my signature in the will. This is the signature of the lawyer."
Thus, it is clear that the said witness has failed to supply the names of the persons who were allegedly present at the time of execution and attestation of the will. The evidence, if carefully analysed, will emerge that the will was a hand-written one and all of them had put their signatures in the said will, meaning thereby in the hand-written will. But the document which has been produced before the court for obtaining probate and exhibited, is a typed document. The typist has come forward to prove that the said document was typed by him. Therefore, it is clear that they all put their signatures on a hand-written document and not on a typed document. But while deposing before the court, he said that the signature appearing on the typed document is the signature of Mrinalini Basu. Nowhere it has been said that they have signed on the typed document.
Therefore, there is a serious discrepancy and a considerable amount of doubt as to whether the said deceased had executed any will or not. In view of the aforesaid extent of discrepancy in the evidence of the lone attesting witness, the learned trial Judge has refused to believe the same and as such discarded it. We also do so. If the evidence of the lone attesting witness goes, then nothing remains to be proved about the said document to be the last will and testament.
It is very doubtful, as the learned trial Judge has commented looking at the document particularly at the bottom of the last page whether the said lady did sign or not. We have also seen the document by ourselves. We find what the learned trial Judge had found. We do not think that it was the signature of an educated lady even at that age and why the words "BI BI" (In Bengali) was written down, has not been explained. We have got the admitted signature of the lady which was found on a contemporaneous letter, brought from the custody of a third person viz. D.W. 2. This 5 letter dated 20th September, 1986 (Exhibit -A) was proved by D.W. 2 and this letter was written by the said deceased. While seeing the signature of the lady, who put it a few days before the execution of the document and comparing the same with that of one contained in the will, we do not think that these signatures in the document particularly at the third page of the document, that this could be her signature.
The discrepancies on comparison of the two signatures are so apparent and clear that no help of the expert is required. The court is expert of all experts as the court has to form its opinion with the help of the expert's opinion, if required under any circumstances. It is not that court must look forward the opinion of expert in all cases. Another significant aspect to note is that the Exhibit-A has not been challenged even by putting any suggestion in the cross examination that the same was not written by the hands of Mrinalini Basu.
The handwriting of the deceased lady in the letter dated 20th September, 1986 is quite distinct and natural and the degree of tremor at that age of the lady is natural. Nonetheless her handwriting in the contemporaneous document being the letter from a third party is clear and legible. In the document being the alleged will even the signature is found to be very shaky and it appears that the signatures were put with great difficulty on the first page and second page and therefore, it cannot be said by anyone that it could be the signatures of the lady.
Though the learned trial Judge has not discussed with great detail with regard to the genuineness of the signature, but this Court being the last court of fact and law, cannot overlook this apparent discrepancy while comparing the same.
It is the argument of the learned counsel so also the case of the appellant that she had no hands in the execution and attestation of the will; therefore, she cannot explain. The learned Counsel tried to persuade us that the evidence is not properly sufficient but it could be inherently found that the will was firstly written out as a draft and thereafter it was typed. As such, the typist had come forward to prove the same. If it is so, then why the propounder has not come forward to collect the draft from the typist or the lawyer, who were allegedly present at the time of execution and attestation of the will. At least, the lawyer who was allegedly present at the time of execution and attestation of the will, could have been approached. There is no explanation regarding the whereabouts of the learned lawyer or any other person who were allegedly present at the time of execution and attestation of the will.
6In view of the discussions, as above, we think that the learned trial Judge has rightly refused to grant probate of this document. Hence, the appeal fails and the same is hereby dismissed; however, without any order as to costs.
(K.J. SENGUPTA,J.) (KANCHAN CHAKRABORTY,J.)