Anup Chada vs Kamini Sarin on 19 November, 2019

[Cites 27, Cited by 3]

Calcutta High Court

Anup Chada vs Kamini Sarin on 19 November, 2019

Bench: Shivakant Prasad

IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE

Present: The Hon'ble Justice Shivakant Prasad

T.S. No. 21 of 2012
Arising out of
PLA No. 3 of 2012

IN THE GOODS OF :

KISHAN LAL CHADHA @ KRISHAN LAL CHADHA (DECEASED)
And
ANUP CHADA
Vs.
KAMINI SARIN

For the Plaintiff : Mr. Aniruddha Mitra, Adv.
Mr. Dhilin Sengupta, Adv.
Mr. Shib Sundar Das, Adv.
For the Defendant : Mr. Kashinath De, Adv.
Mr. Sandip Kumar De, Adv.

C.A.V. on : 18.09.2019

Judgment on : 19.11.2019

This is a suit for grant of probate on the last Will and testament dated 17th

July, 2007 of the testator Kishan Lal Chadha @ Krishan Lal Chadha (deceased).

The plaintiff's case in brief is that the deceased Kishan Lal Chadha @

Krishan Lal Chadha used to reside at Flat No. 3 at 8, Chapel Road, Hasting, 2nd

floor, Kolkata-700 022 who died on 5th April, 2010. During his life time he was

carrying on partnership business under the name and style of M/s. Bharat
Commercial Enterprises his place of business at 26, C.R. Avenue, Kolkata who

used to maintain Bank Account No. 33610052758 and 33610160844 with

Standard Chartered Bank, Church Lane Branch, Kolkata-700 001 with balance

of Rs. 36,792.23 p. and Rs. 1,39,617.92 p. also left behind various Bank

Balances & Deposits in then Grindlays Bank PLC, now known as Standard

Chartered Bank which are movable, and other immovable asset situated both

within and outside the jurisdiction of this Hon'ble Court, particulars of which are

set forth in the affidavit of Assets affirmed by the petitioner on the 21st day of

December, 2010 and he left behind him, his wife, son and two daughters as his

only heirs/heiress and legal representatives under the Hindu Succession Act.

Sl. No. Name Address Relation

1. Vimla Chadha 8, Chapel Road, Hasting, 2nd Wife
floor, Kolkata-700 022
2. Anup Chadha 8, Chapel Road, Hasting, 2nd Son
(Executor) floor, Kolkata-700 022

3. Ritu Maira wife of Rajiv 5, Nizzamuddin (East), New Daughter
Maira Delhi

4. Kamini Sarin wife of 19, 12, Cross Street, Indra Daughter
Lalit Sarin Nagar Adyan, Chennai

The said heirs namely, Vimla Chadha and Ritu Maira have consented to

the grant of probate being issued in favour of the petitioner in respect of the

properties left by the deceased but Kamini Sarin, second daughter has objected

to grant being issued in favour of the petitioner.

The said deceased published his last registered Will and Testament on 17th

July, 2007 by appointing petitioner as the sole executor of his said Will in
presence of two attesting witnesses namely, Sri Gazi Faruque Hossain of Vill.-

Uttarpara (N12), P.O. Jaynagore, 24-Parganas (S) and Tarun Bhattacharya of 68,

Ghosepara Road, Barrackpore, 24-Parganas (N).

The gross value of assets and properties of the said deceased is Rs.

28,59,667.63p but no estate duty is payable in view of the recent abolition of the

Estate Duty Act. The petitioner is the fit and proper person for grant of probate in

respect of the said registered Will dated 17th July, 2007, ready and willing to pay

maximum ad-valorem duty in respect of the net assets of the said deceased.

Defendant/Caveatrix has contested the probate proceeding by filing an

affidavit of caveat through her Constituted Attorney namely Ganesh Sarin

contending that the testator was lastly residing with the beneficiary and the

present petitioner, his son and the testator was fully under their control and

dictate. Petitioner has not disclosed the proper particulars of some other

properties and assets of the testator, viz., (a) House property at N-14 Panchsheel

Park, New Delhi-110017; (b) Flat Nos. 3 and 4 at 2nd floor of 8 Chapel Road

Hastings Kolkata-700022; (c) Income from the Partnership Business in the name

and style of M/s. Bharat Commercial Enterprises; shares in various companies

as invested by the testator; and (d) Jewellery and Bank deposits of the testator

and properties and assets have not been valued in appropriate manner and that

the signature in the Will is not of the testator out of his own volition and the said

Will is the result of undue influence and coercion. The attesting witnesses to the

Will are also the men and agents of the petitioner.

On the pleadings of the parties to the suit following issues were framed--
1. Whether the Will and Testament dated 17.7.2007 has been executed by

the testator?

2. Is the Will vitiated by undue influence and/or coercion?

3. Is the signature appearing in the alleged Will is not the signature of the

testator out of his own volition?

4. Was the testator under the control and dictate of the petitioner?

5. Whether the Will has been executed in compliance of the provisions of

Section 63 of Indian Succession Act, 1925?

6. Is the Will valid and genuine and whether the plaintiff is entitled to

grant of probate of the said Will?

Issue Nos. 1 to 6 :

The above issues are taken up together for the sake of conveyance in

discussion and for brevity.

At the outset it is submitted by Mr. Kashinath De, Advocate appearing for

the Defendant/Caveatrix that subject matter of Testamentary suit is a Computer

printed Will registered on 17th July, 2007 in the office of the Registrar of

Assurances, Kolkata which has not been proved as the case of the

defendant/caveatrix is that the Will is not the free Will of the testator and is a

result of coercion and undue influence by the propounder as the testator was in

custody and control of the propounder.

It is argued that Will is a document to be proved like any other document as

per the Indian Evidence Act. The additional requirement of proving a Will is the

execution of the Will which is required to be proved in terms of provisions of
Section 68 of the Indian Evidence Act read with Section 63 of the Indian

Succession Act. The present Will being a computer generated printed document,

the additional requirement of proof in terms of Section 65B of Indian Evidence

Act is required to be followed. Attention of this Court is invited to deposition

dated 17.01.2018 in Examination-in-Chief of the attesting witness Sri Tarun

Bhattacharya after Question No.29, the objection raised with regard to non-

fulfilment of Section 65B was recorded to argue that the procedure of proving the

electronic document in terms of Section 65B of the Indian Evidence Act has not

been followed and to support such contention reference to a decision in the case

of Anvar P.V. Vs. P. K. Basheer (2014)10 SCC 473 has been made on the

observations in paragraphs 14, 15 and 16 which are reproduced for apt

consideration of the issue raised questioning the genuineness of the Will thus :

"14. Any documentary evidence by way of an electronic record under the Evidence Act, in
view of Sections 59 and 65A, can be proved only in accordance with the procedure
prescribed under Section 65B. Section 65B deals with the admissibility of the electronic
record. The purpose of these provisions is to sanctify secondary evidence in electronic form,
generated by a computer. It may be noted that the Section starts with a non obstante clause.
Thus, notwithstanding anything contained in the Evidence Act, any information contained in
an electronic record which is printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer shall be deemed to be a document only if the
conditions mentioned under sub- Section (2) are satisfied, without further proof or production
of the original. The very admissibility of such a document, i.e., electronic record which is
called as computer output, depends on the satisfaction of the four conditions under Section
65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:

(i) The electronic record containing the information should have been produced by
the computer during the period over which the same was regularly used to store or
process information for the purpose of any activity regularly carried on over that
period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from
which the information is derived was regularly fed into the computer in the ordinary
course of the said activity;

(iii) During the material part of the said period, the computer was operating properly
and that even if it was not operating properly for some time, the break or breaks
had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation
from the information fed into the computer in the ordinary course of the said
activity."

"15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any
proceedings pertaining to an electronic record, it is permissible provided the following
conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the
statement;

(b) The certificate must describe the manner in which the electronic record was
produced;

(d) The certificate must deal with the applicable conditions mentioned under Section
65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official
position in relation to the operation of the relevant device."

"16. It is further clarified that the person need only to state in the certificate that the
same is to the best of his knowledge and belief. Most importantly, such a certificate
must accompany the electronic record like computer printout, Compact Disc (CD), Video
Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be
given in evidence, when the same is produced in evidence. All these safeguards are
taken to ensure the source and authenticity, which are the two hallmarks pertaining to
electronic record sought to be used as evidence. Electronic records being more
susceptible to tampering, alteration, transposition, excision, etc. without such
safeguards, the whole trial based on proof of electronic records can lead to travesty of
justice."
It is thus argued that the contents of the Will have not been proved and the

Will has been only marked as Exhibit "A" with the signatures and registration

details as per the legal requirements. It is also submitted that merely marking of

Exhibits are ministerial duties by which the document is not proved.

Mr. Dey and Mr. Mitra have placed reliance on the principle postulated in

case of H. Venkatachala Aiyengar AIR1959 SC 443 (para 18) is made

wherein a Bench of Three Hon'ble Judges of the Supreme Court held:

"18. What is the true legal position in the matter of proof of wills? It is well-known
that the proof of wills presents a recurring topic for decision in courts and there are a
large number of judicial pronouncements on the subject. The party propounding a
will or otherwise making a claim under a will is no doubt seeking to prove a
document and, in deciding how it is to be proved, we must inevitably refer to the
statutory provisions which govern the proof of documents. Sections 67 and 68 of the
Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to
be signed by any person, the signature of the said person must be proved to be in
his handwriting, and for proving such a handwriting under ss. 45 and 47 of the Act
the opinions of experts and of persons acquainted with the handwriting of the
person concerned are made relevant. Section 68 deals with the proof of the
execution of the document required by law to be attested; and it provides that such a
document shall not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution. These provisions prescribe the
requirements and the nature of proof which must be satisfied by the party who
relies on a document in a court of law. Similarly, ss. 59 and 63 of the Indian
Succession Act are also relevant. Section 59 provides that every person of sound
mind, not being a minor, may dispose of his property by will and the three
illustrations to this section indicate what is meant by the expression " a person of
sound mind " in the context. Section 63 requires that the testator shall sign or affix
his mark to the will or it shall be signed by some other person in his presence and
by his direction and that the signature or mark shall be so made that it shall appear
that it was intended thereby to give effect to the writing as a will. This section also
requires that the will shall be attested by two or more witnesses as prescribed. Thus
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 what 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 s. 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
test of the satisfaction of the, prudent mind in such matters."

The propounder of a will must prove:
(i) that the Will was signed by the testator in a sound and disposing state of
mind duly understanding the nature and effect of disposition and he put his
signature on the document of his own free will, and
(ii) when the evidence adduced in support of the Will is disinterested,
satisfactory and sufficient to prove the sound and disposing state of testator's
mind and his signature as required by law, Courts would be justified in
making a finding in favour of propounder, and
(iii) If a Will is challenged as surrounded by suspicious circumstances, all such
legitimate doubts have to be removed by cogent, satisfactory and sufficient
evidence to dispel suspicion.

It is argued that the Will is required to be proved like any other document

with the special requirement of proving the attestation and that mere marking of

Exhibits as in the present case, the Will is not proved. In the case of Sait

Tarajee Khimchand (1972) 4 SCC 562 (Para 15), the Hon'ble Supreme Court

held that mere marking of an Exhibit does not dispense with proof of documents.

Accordingly, in view of the settled legal position of law, it is submitted that the

Will was merely marked Exhibit but the same was not proved according to law.

The preamble of the Information Technology Act 2000 states:
An Act to provide legal recognition for transactions carried out by means of

electronics data inter change and other means of electronic communication,

commonly referred to as "electronics commerce", which involve the use of

alternatives to paper based methods of communication and storage of

information, to facilitate electronic filing of documents with the Government

agencies and further to amend the Indian Penal Code, Indian Evidence Act 1872,

The Bankers Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934

and for matters collected therewith or incidental thereto. The above paragraph

reflects the intention of the makers of the law. They can also be considered as the

prime objectives of the Act. In this way the preamble serves two purposes.

It establishes the intentions of the makers of the law. It prescribes the objectives
of Act.
Section 3 of IT Act 2000 provides for authentication of electronic records along
with an explanatory note as follows:
Subject to the provisions of this Section any subscriber may authenticate an
electronic record by affixing his digital signature.
The authentication of the electronic record shall be effected by the use of
asymmetric crypto system and hash function which envelop and transform the
initial electronic record into another electronic records.
Having considered the decision in case of Anvar P.V. (supra), preamble of

the IT Act and Section 3 of IT Act quoted above, I am of the view that the

essential requirement for certificate as provided in Section 65B sub-section 4

deals with such certificate to be accompanied with the electronic records like CD,

VCD, Pen Drive etc. which contains the statement which is sought to be given as

secondary evidence when the same is produced in evidence. And in absence of

such certificate, a secondary evidence of electronic record cannot be admitted in
evidence but in the cited case the appellant had filed Election petition under

Section 100 sub-section 1B read with Section 124 sub-section 4 of

Representation of People Act, 1951 to set aside the election of first respondent on

ground that alleged songs, announcements and speeches made as part of election propaganda of first respondent amounted to corrupt practice. His speeches, songs and announcements were recorded using some instrument and by feeding them into computer, CDs were made and those CDs were produced in Court as proof of allegations and in that set of fact it was held that CDs concerned not being the original CDs themselves cannot be admitted in evidence since mandatory requirements of Section 65B of Evidence Act are not satisfied.

Therefore, in my considered opinion the judgement under reference of Hon'ble Supreme Court is not well nigh within the facts and circumstances of the instant case. In the Instant case the will has been sought to be proved by attesting witnesses and by examination of the propounder as well.

Mr. De vehemently argued on the score that since the will has been prepared by computer process it becomes the electronic record. I fully disagree with such claim of Mr. Dey. The Will used to be typed written by the type writer. It does not mean that the type writer had to certify that it has been typed written by him. Similarly, the Will draft has been typed written on computer monitor and print out has been taken out therefrom and by that means it cannot be said that such document has been stored in the CD or in the monitor process. This is not the case where the CD or any VCD or any of such appliances and accessories are produced before the Court for their proof and for that accompanying certificate is required by the person authorised to take out such records. This is simply a case of proof of Will as required under Section 68 of Evidence Act read with Section 63(c) of the Indian Succession Act. Therefore, it cannot be said that Section 65B (4) of the Information Technology Act is required to be complied with in the given case in proof of the Will.

Mr. De appearing for the caveatrix has raised the suspicious circumstances shrouding the Will to the effect that the Will is running in three pages having the signature and execution on the 3rd page and the 4th page is the back-sheet of the Will having description of the document and registration details. The first two pages are computer printed having no signature of the testator and on the 3rd page after the end of the contents of the Will a handwritten date is written, "Dated 17/07/07" and submitted that the attestation part with signature of the testator are the 8 printed lines being aligned on the left creating a suspicion that the printout may have been taken on a pre-signed paper.

It is also argued that the first attesting witness is an advocate but he has not disclosed in the Will that he is an advocate and did not depose in the cross- examination.

It is also argued that there is no endorsement with regard to preparation, typing or drafting of the Will by any lawyer or any law office in the Will. The back sheet of the Will is also not having name of any lawyer. Apart from the registration details, the date, month and year at the top of the back sheet page is handwritten as 17th July, 2007. At the end, number 6 of 2006 has been overwritten by 7 making it 2007 and suspicion is further established in the absence of the person who has drafted the Will.

My attention is also invited to Certified copy of the volume produced before the Hon'ble Court at the time of evidence by registration office marked as Exhibit 6, depicting that at page 46 of the volume the date has been handwritten as "dated on 17.07.07" whereas in the original Will blanks have been filled up as 17th and July and 2006 have been made 2007 to argue that there is a clear interpolation in the original Will.

As regards suspicious circumstance Mr. De relied on the meaning of 'Suspicion' as per BLACK'S LAW DICTIONARY, Tenth Edition, at page 1676, edited by Bryan A. Garner, published by Thomson Reuters, which means the apprehension or imagination of the existence of something wrong based only on inconclusive or slight evidence, or possibly even no evidence.

It is further argued that the evidence of the first attesting witness cannot be looked into as the said witness did not subject himself to Cross-Examination. In this regard, a judgment of the Hon'ble Supreme Court of India in the case of Gopal Saran (1989) 3 SCC 56 (Para 5) is relied on.

Mr. De invited my attention to the oral testimony of first attesting witness Gazi Faruque Hossain who deposed on 7th September, 2017 to submit that after examination in chief he did not turn up to face cross-examination and ultimately on 17th January, 2018 the plaintiff closed his evidence and the second attesting witness was produced in support of probate case. It is argued that it is a circumstance being suspicious as the first attesting witness being an advocate did not disclose in the Will that he is an advocate and secondly he did not come up to face the cross-examination. I agree only to the extent that the oral testimony deposed by the first attesting witness in his examination-in-chief cannot be looked into because the caveatrix had no chance to cross-examine the said witness. Any statement on oath can be accepted as evidence only when the statement of such witness is subjected to cross-examination by the adversary. A reliance has been placed in case of Gopal Saran Vs. Satyanarayana reported in (1989) 3 Supreme Court Cases 56 wherein it has been observed thus:

"5. It may be mentioned that the plaintiff had not subjected himself to cross- examination in spite of the order of the Court after the remand, therefore, it would not be safe to rely on the examination- in-chief recorded which was not subjected to cross-examination before the remand was made. If that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established from the facts on record."

Mr. De adverted to the evidence of Tarun Bhattacharya on the answers to the questions 8, 16-20, 21-24 and 29. This witness is the second attesting witness to the Will who has deposed in proof of the Will executed by the testator. He has proved the signature of PW-1 as appearing as one of the witness in the Will and has also identified the signature of the testator Krishan Lal Chadha and has proved the original Will. In answer to question no. 16 as to where was Krishan Lal Chadha when Gazi Faruque Hossain singed on the document. In his answer he pointed out that the said Chadha was sitting at the table when the signature was being done and the attesting witness signed on the document at the same table when Krishan Lal Chadha was at the same table. A thumb impression on the reverse page of the Will was also identified as that of the said Krishan Lal Chadha. In answer to question no. 23 this attesting witness further testified the fact that Mr. Chadha had called him and asked that he had had the Will prepared by Mr. Debasish Sinha and he would be required to be present as a witness to the Will. The answers to the question nos. 33, 34, 35 and 36 are the evidence in proof of the Will. It is quite natural that an attesting witness is not required to be aware of the contents of the Will. The requirement of law as per reading of the provisions of Section 63(C) of Indian Succession Act is that the attesting witness had seen the testator signed the Will and the testator had seen the attesting witness having signed on the Will. Therefore, I am of the view that an attesting witness cannot be presumed from the mere fact of attestation to be aware of the contents of the document. As I have found in the above evidence that he was called upon by testator himself to be present at the time of execution of the Will. Therefore, there is substantial proof as to the execution of the Will.

In regard to the suspicious circumstances, Mr. Dey has also relied on the observation at para 168 of the decision in Netai Chand Mullick Vs. Biswanath Mullick & ors. reported in 1976 SCC OnLine Cal 161 : 1978 CHN 37 which decision is based on a settled principle of law in case of H. Venkatachala Aiyengar (supra) with the observation that--

"A will has to be proved like any other document in accordance with provisions of Indian Evidence Act. The signature of the testator and the hand- writing where the will is hand-written has to be proved in accordance with Sections 45, 47 and 67 of the Indian Evidence Act and the initial onus is on the propounder who has to prove by disinterested, satisfactory and sufficient evidence the signature of the testator, the sound and disposing state of his mind, his understanding of the nature and effect of his dispositions and finally the free and voluntary nature of his act in executing such a document."

In the cited decision it is also observed that--

"Circumstances, unconnected with the execution of the will however suspicious are of no relevance which may be removed from the mind of the Court by cogent and satisfactory evidence. No hard and fast or inflexible rule can be laid down for appreciation of such evidence. The Court, however, should not be "obdurately persistent in disbelief" nor "resolutely or impenetrably incredulous."

The Judicial mind must be open, though vigilant, a cautious and circumspect. The Court should examine the evidence as to the due execution of the document with a greater degree of care.

If the propounder succeeds in explaining the circumstances satisfactorily and remove the suspicion, the Court should grant probate even if the will might be unnatural and might cut off wholly, or in part, near relations. The Court should bear in mind that an individual might behave in an abnormal manner and the Court will not impose its own standard of behaviour on the testator." The said observation is also relied on by Mr. Aniruddha Mitra, Advocate for the propounder with the submission that no such contention relating to suspicious circumstances has been taken by the caveatrix. There is no proof as such to elicit suspicious circumstances on the count of mental capacity of the testator, testator being under the control of the propounder or having unduly influenced him for execution of the Will as alleged on behalf of the caveatrix. It is pointed out that the caveat on affidavit is by one Ganesh Sarin who is said to be the brother-in-law of Kamini Sarin, the caveatrix herein and no such objection raised by said Kamini Sarin by filing any caveat on her part. The said Ganesh Sarin has not deposed before the Court in support of his caveat.

Mr. Mitra draws my attention to paragraphs 3, 4, 5, 6, 7 and 8 of the caveat wherein it has been pointed out that the testator was lastly residing with his son the petitioner herein and so the contention of the caveatrix is that the testator was under controlled of his son. In paragraph 4 it has been pointed out that the petitioner has not disclosed the particulars of some other properties and assets of the testator viz. (a) house property at N-14 Panchsheel Park, New Delhi- 110 017 (b) Flat Nos. 3 and 4 at 2nd floor of 8 Chapel Road Hastings, Kolkata-700 022; (c) Income from the Partnerrship Business in the name and style M/s. Bharat Commercial Enterprises; shares in various companies as invested by the testator; and (d) Jewellery and Bank deposits of the testator and the properties and assets have not been valued in appropriate manner and concluded by addressing that such contentions made in the caveat by said Ganesh Sarin cannot be treated as suspicious circumstances surrounding the Will.

It is also argued by Mr. Mitra that averments in paragraphs 1 to 7 cannot be said to be true to the knowledge of Ganesh Sarin as he cannot be treated as caveator. It is also not understood why Kamini Sarin on her own did not file such caveat. It is not understood as to the authenticity of Genesh Sarin and his capacity to swear an affidavit in support of his caveat. I fully agree with such contention of Mr. Mitra holding that said Ganesh Sarin has no legal status and right to file caveat. It is borne out of the evidence on record that Vimla Chadha of 8, Chapel Road, Kolkata-700 022 widow of the testator has given a consent letter for grant of probate annexed with the Will in favour of her only son Anup Chadha, the executor to the Will. Moreover, Ritu Maira, daughter of the testator and elder sister of the propounder has also not raised any objection rather consented on affidavit for grant of probate to the last Will dated 17th July, 2007 in favour of the propounder as reflected from paragraphs 3 and 4 of the affidavit.

On behalf of the caveatrix, Mr. De has argued that attestation part in the Will is not proved by the second attesting witness inasmuch as in the Examination-in-Chief as well as in the Cross-Examination, the second attesting witness Sri Tarun Bhattacharya asserted that the Will was prepared by Mr. Debasish Sinha, Advocate but nowhere in the process of execution and registration of the Will any name of Mr. Debasish Sinha, Advocate is recorded and he has also not been examined as a witness. The second attesting witness in Q. no. 36 in the Cross-Examination on 17th January, 2018 has volunteered that he was not aware of the contents of the Will. In Q. Nos. 37 to 44 in the Cross- Examination, he has said that there is no countersignature of the attesting witness regarding the handwriting and there is no Memorandum by executor and the attesting witness. In Q. nos. 63 to 66, he has said that the continuation of margin just like the first line on the remaining line would have touched the signatures. In Q. no. 105, he has said that he has come to depose as told by propounder/plaintiff.

Mr. De drawing my attention to evidence of the propounder/plaintiff in his Cross-Examination dated 28th September, 2018, in Q. no. 64 submitted that he has admitted that he is a Punjabi and in Q. no. 93 put by the Hon'ble Court, he has admitted that some portion has been corrected and inserted by hand and in Q. no. 94 he has said that the correction is not countersigned by anybody, by executor or attesting witness. In Q. no. 105. He has said that second attesting witness is employee of his concern and in Q. no. 107 he has said that he is a very loyal employee. Any correction is required to be countersigned by testator as per Section 71 of the Indian Succession Act.

It is further argued that the defendant/caveatrix in her Cross-Examination in Q. no. 22 has stated that she has not executed any consent affidavit. In Q. no. 28 she has stated that her father was a caring husband. In the Cross- Examination dated 15th January, 2019 in Q. nos. 46-47 she has told about Will of 2006. In Q. nos. 56 and 57, she has told that the present Will is different from the 2006 Will and there were provisions for her mother and her children in 2006 Will. She was shown different Will in 2006 earlier. In Q. no. 74, she has said that father was in custody or control of the propounder/plaintiff. The indemnity bond and the no objection of the defendant point out to a Will of 2006 and that her evidence creates suspicion.

Mr. De argued that Kamini Sarin has deposed that there was a Will in 2006 in which provisions for mother and grand children were provided as the testator was admittedly a caring husband of the propounder and the caveatrix and for that Will of 2006, affidavit by her was taken by the petitioner and the petitioner in his turn affirmed an indemnity Bond and both the documents proved and marked having reference to a Will of 2006.

I am unable to agree with such contention as the defendant has not produced any Will of the year 2006 as the very fact finds expression from her affidavit and the indemnity bond.

In Gomtibai v. Kanchhedilal reported in AIR 1949 PC 272 it has been held that--

"the onus probandi to establish a Will lies on the person who propounds it. This onus is in general discharged by proof of capacity, and the fact of execution, from which the knowledge and the assent to its contents by the testator will be assumed. But where a Will is prepared and executed under circumstances which excite the suspicion of the court, it is for those who propound the Will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the Will. Where once it is proved that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, that is when the propounder of the Will has discharged the onus, the burden of proving that it was executed under undue influence is on the party who alleges it." [See: A. K. Maulik v. M.L. Maulik AIR 1988 Cal. 196.] Mr. Mitra has referred to a decision in case of Bharpur Singh and others Vs. Shamsher Singh reported in (2009) 3 Supreme Court Cases 687, in which case of H. Venkatachala Aiyengar (supra) has been relied on and held that--

"The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator."

Bearing in mind the above principle of law this Court is in search of real facts and circumstances, judging on which, the Court can come to a finding that the Will is shrouded by suspicious circumstances.

Mr. Mitra has placed reliance on the observation in case of Mahesh Kumar (Dead) by Lrs. Vs. Vinod Kumar and others reported (2012) 4 Supreme Court Cases 387, which is reproduced hereunder for profitable consideration at paragraph- 30 thus--

"30. In Jaswant Kaur v. Amrit Kaur, reported in (1977) 1 SCC 369 the Court analysed the ratio in H. Venkatachala Iyengar's case and 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 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." Judging the facts and circumstances of the cited cases undoubtedly onus is on the propounder to prove the execution of a Will by disinterested, satisfactory and sufficient evidence that the signature of the testator was put in his sound and disposing state of his mind, understanding of the nature of his disposition and freely and voluntarily putting his signature in execution of the Will and it is also true the principle of law that even if caveator has not taken the issue of duress and undue influence on the testator can take such stand during trial.

In a bid to argue that the testator was under duress and under control of the executor being his only son, Mr. Dey refers to answers to Q. nos. 4, 5, 24-29, 34, 39, 46, 47, 51, 54-59, 60, 62, 65, 73, 75-78 to argue that Will has been created under duress as the father was under the control of the executor in absence of the caveatrix Kamini Sarin a residence of France and that the Will is not genuine as it would be reflected from indemnity bond Exhibit-1 signed by plaintiff urging that there was a previous Will in 2006. Admittedly, the brother of the caveatrix looked after the father and mother. There may be a Will executed in 2006 but the fact remains that the propounder has filed this proceeding for grant of probate on the last Will of his father dated 17th July, 2007 and this fact is evident from the consent affidavit of Ritu Maira, the elder sister of the executor and the consent letter of mother Vimla Chadha. That apart, the declaration by Kamini Sarin, the caveatrix dated 12.4.2010 reflects no objection to the Will dated 17.7.2007. The original Will has been executed by Krishan Lal Chadha, the testator as proved by the propounder supported by affidavit of attesting witness and the same has not been disputed by the caveatrix saying that signature is not that of Krishan Lal Chadha, the testator.

Moot issue is as to whether the testator's signature put on the last Will on his own volition or under duress and undue influence.

At the instance of the caveatrix Pijush Kanti Das, DW-2 U.D. Clerk of Registrar Assurance, Kolkata as per his letter of authority as Exhibit-8 produced the original volume 13 book No. 3 bearing pages 45-50 with Deed No. 676 and has brought the certified copy of the same marked as Exhibit-6 and he has testified the fact that after registration of the Will the original volume was prepared. It has been argued that there is suspicious circumstance at the time and the date given in the Will has not been authenticated by the Registrar in respect of the signature of the testator.

I am unable to agree with such submission taking into consideration the certified copy of the Will having been obtained on the basis of the entry in the original volume maintain by the Registrar Assurance and it shows that the testator himself was present before the Registrar at the time of registration of the Will executed by him. I find that there is no evidence to show that the Will was forged. There has been no undue influence coercion or duress proved on behalf of the caveatrix. Answers to Q. nos. 6-10, 17 of PW-2 Tarun Bhattacharya, attesting witness and in consideration of the documents adduced by the propounder the execution of the Will is beyond the suspicious circumstances and the same has been proved by removing all suspicion shown on behalf of the caveatrix inasmuch as the health condition of the testator was quite good and no scrape of paper or iota of evidence adduced on behalf of the caveatrix to prove that the testator had no alertness of mind having no testamentary capacity. Though first attesting witness has not faced the cross- examination the propounder has duly proved the signature of the testator on the Will and the attesting witness has also proved the execution of the Will by the testator. In Answer to Q. no. 28 the testator had even attended his office/business place two days prior to his death and I find this piece of evidence goes uncontroverted without any cross-examination and this proves good health and mental capacity of the testator. Thus, the factum of execution of the Will has been testified and proved by PW- 2. On the contrary, I do not find positive case of the defendant that the Will is a forged document and has been interpolated. No question put to the witness that year 2006 was corrected to 2007 on the overleaf /back page of the Will. No case made out as well against the registration procedure. The attesting witness in Answer to Q. no. 35 has stated on oath that the handwriting addition was already there before he put his signature. So, the provision of Section 71 of Indian Succession Act dealing with effect of obliteration, interlineation or alteration in unprivileged Will does not apply in view of such explanation given by the attesting witness.

In the present case, Ganesh Sarin has filed caveat stating that he is constituted attorney of Kamini Sarin to submit caveat on her behalf but no such power of attorney or any document tended and in proof on behalf of the defendant. Kamini Sarin in cross-examination in her Answer to Q. nos. 62-64 had admitted about the Court's observation that there was no such power of attorney on the record given to Ganesh Sarin, the brother-in-law of Kamini Sarin. There is no power of attorney as well as any affidavit to that effect. So, the caveat filed by Ganesh Sarin calls for no consideration inasmuch as he has not turned up to adduce evidence in support of the facts true to his knowledge.

On behalf of the propounder/plaintiff, it is pointed out that application for probate being PLA No. 3 of 2011 was filed on 12.01.2011 whereas caveat was filed on 18.9.2012 by Ganesh Sarin. So, the affidavit was not filed in support of caveat within eight days as required under Rules 24, 25 and 27 of Chapter 35 of Original Side Rules of the High Court at Calcutta which enjoin that any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his Advocate acting on the Original Side file a caveat in the Registry and affidavit in support of caveat must be filed within eight days of the caveat being lodged, notwithstanding the long vacation failing which in compliance with the Rule 25 or in compliance with the notice issued under Rule 26 , the caveat may be discharged by an order. Accordingly, it is argued that the caveat filed by Ganesh Sarin without any power of attorney gets discharged. I do agree with the contention of Mr. Mitra on this score and hold that defendant/caveatrix has simply laid oral evidence and submission in support of her case.

Coming back to issue of duress undue influence Kamini Sarin DW-1 in her Answer to Q. no. 5 stated "I think my father in his last few days was under

the influence and control of my brother. So there was coercion on him to sign under duress." I cannot readily accept the argument on the part of undue influence, coercion and duress as the evidence of PW- 2 attesting witness is evident of the fact that testator Krishan Lal Chadha had attended his office two days before his demise. Ergo, I hold that it is a mere wishful thinking of DW- 1 Kamini Sarin inasmuch as she herself gave the declaration Exhibit-1 which reflects that she has no objection against the grant of probate in favour of the propounder which goes unchallenged in evidence. Moreover, Exhibit-3 indemnity bond executed by plaintiff is in favour of Kamini Sarin indemnifying her against any costs, damages, losses, claims, estate duties, property tax etc. in respect of N-14 Panchsheel Park, New Delhi-110 017. It is admitted by DW-

1 that her brother was the only person residing in the opposite Flat to look after the parents. At present, there is none but only the propounder, the son who is looking after his 90 years old mother. Therefore, it cannot be said that there has been undue influence to obtain a Will. Looking to the evidence of PW-1 it can safely be said that the petitioner was never involved in the execution and registration of the Will and he came to know about the Will only after his mother showed him the Will. It is also evident that N-14 Panchsheel Park, New Delhi-110 017 is owned by his mother and father equally. It is axiomatic from answers to Q. nos. 40 and 41 taken together with Exhibit-B that N-14 Panchsheel Park, New Delhi-110 017 has been let out to Ambassador of Gabon to India by a lease deed executed on 1st day of August, 2008 by Krishan Lal Chada, the testator and his wife Mrs. Vimla Chadha.

The propounder to the Will has also adduced in evidence quotation dated 30.6.2009 signed by testator for Bharat Commercial Enterprises addressed to The Managing Director, the Calcutta Tramways Co. (1978) Ltd. 12, R.N. Mukherjee Road, Kolkata-700 001, Exhibit-C. Therefore, it can safely be held that the testator had testamentary capacity with physical and mental fitness conducting his business even long after execution of his last Will on 17.7.2007 Exhibit-A. In the context of the above discussion and in respectful consideration of the principle of law laid down by the Hon'ble Supreme Court and Privy Council in the above cited decisions, I hold that the execution of the Will by the testator appointing his only son as an executor to his Will is free from undue influence or coercion and it cannot be said that the Will has not been executed by the testator out of his own volition or that the testator was under control and dictate of the petitioner. Thus, I find that the propounder has been able to remove and dispel all the suspicious circumstances and legitimate doubt and misgivings in the judicial mind by satisfactory evidence. Accordingly, I hold that the Will dated 17.7.2007 executed by the testator late Krishan Lal Chadha is a genuine and natural Will.

Accordingly, the issues are decided in the following manner:

Issue No.1 in the affirmative holding that the Will and testament dated 17.7.2007 has been executed by the testator.

Issue No. 2 in the negative holding that the will is not vitiated by any undue influence or coercion.

Issue No. 3 in the negative holding that the testator signed the Will out of his own volition.

Issue No. 4 in the negative holding that the testator was not under the control and dictate of the petitioner.

Issue No. 5 in the affirmative. The Will has been executed in compliance of the provision of Section 63 of the Indian Succession Act, 1925.

Issue No. 6 in the affirmative holding that the Will is valid and genuine and the plaintiff is entitled to grant of probate to the Will dated 17.7.2007.

In the result, Testamentary Suit being T.S. No. 21 of 2012 arising out of PLA No. 3 of 2012 succeeds.

Let a probate annexed to the Will dated 17th July, 2007 be issued in favour of the propounder/plaintiff after completion of all legal formalities.

(SHIVAKANT PRASAD, J)

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