Calcutta High Court (Appellete Side)
‐ vs ‐ on 4 May, 2015
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
Present
The Hon'ble Mr. Justice Jyotirmay Bhattacharya.
And
The Hon'ble Mr. Justice Debi Prosad Dey.
F. A. NO. 453 of 2009
Lokdeep Roy
‐Vs‐
Nihar Kumar Roy
For the Appellants : Mr. Bidyut Kumar Banerjee, Adv,
: Mr. Sitaram Samanta, Adv,
: Mr. Priyanka Mondal, Adv.
For the Respondent No. 2 : Mr. Sabyasachi Bhattacharjee, Adv,
: Mr. Bharat Chandra Simai, Adv.
Heard on : 10/04/2015 & 20/04/2015. Judgment on : 04th May, 2015. Jyotirmay Bhattacharya, J.
The instant first appeal is directed against the judgment and decree passed by the Learned Additional District Judge, Paschim Medinipur, on 15th January, 2009 at the instance of the plaintiff/appellant being the propounder of the last Will allegedly left by late Tushar Kr. Roy. Tushar Kr. Roy was a bachelor. He was a qualified person. He was an employee of Indian Air Force. He was posted in different parts of India while he was in service and after his retirement he settled himself in his native village at Jhargram. At the age of 79 years, he executed a Will on 8th September, 2003 by bequeathing his properties in favour of Arup Roy, who was the son of the cousin brother of the testator. The said Will was executed on 8th September, 2003 and the same was presented before the Notary Public for certification by him on 12th September, 2003. Subsequently, he died on 8th June, 2005 at the age of 81 years. After his death the Will was discovered from a sealed envelope and the executor, namely, Lokdeep Roy, son of Arup Roy, applied for grant of probate of the said Will left by Tushar Kr. Roy.
Tushar Babu the testator who was a bachelor had five brothers and two sisters. All his brothers and sisters excepting Nihar Babu pre‐deceased Tushar Babu, the testator. As such, Tushar Babu's natural successor was Nihar Babu who was the only living brother of Tushar Babu at the time of his death. Niharbabu died on 7th July, 2007 leaving behind him surviving his widow Nira and a daughter Bulbul. Bulbul contested the said proceeding by filing written statement. She contended that Tushar Babu was a cardiac patient. The Will was never written under the instruction of Tushar Babu. The signature of Tushar Babu on the Will is very much suspicious. The Will was a forged, fabricated and antedated document procured by the applicant/propounder who in collusion with his father Arup Roy being the beneficiary under the Will manufactured the said Will to grab the entire left out properties of the deceased by depriving his other heirs.
It was further stated therein, that he being a cardiac patient was very much worried about his physical problems and, as such, it was not possible for him to conduct execution of the Will out of his free will. She thus prayed for dismissal of the propounder's application for grant of probate. One Ashok Kr. Roy being the son of another pre‐deceased brother of Tushar Babu, namely, Saroj, got himself added in the said proceeding and he also contested the said probate proceeding by filing written statement and by giving evidence in the said proceeding.
While considering the said application for grant of probate, the learned Trial Judge not only considered the objection of Bulbul being the daughter of Nihar Babu but also considered the objection of Ashok Kr. Roy, who was also allowed to contest the said proceeding by the Court below. The learned Trial Judge ultimately rejected the appellant's said application for grant of probate to the said Will of Tushar Babu by holding, inter alia, that the said Will is nothing but a forged and fabricated document.
The Learned Trial Judge also held that Tushar Babu never executed the said Will for bequeathing his property in favour of Arup Roy. It was further held by the learned Trial Judge that the said Arup Roy tried to grab the property of Tushar Babu by the said Will which was a forged and fabricated document. Such conclusion was drawn by the learned Trial Judge as it was found that the propounder failed to prove due execution and attestation of the Will as per the Succession Act. The Learned Trial Judge held that the propounder has failed to prove that the Will was duly executed and attested on 8th September, 2003, by the testator and the attesting witnesses. The learned Trial Judge became suspicious about the due execution and attestation of the said Will as on 8th September, 2003 as the propounder of the Will being PW‐1 stated in his evidence that the Will was completed on 12th September, 2003 and all the attesting witnesses signed on 12th September, 2003 and not on 8th September, 2003. The legality and/or propriety of the said judgment and/or decree is under challenge before us in this appeal.
Before entering into the merit of this appeal we like to mention here that Ashok Babu being the son of the pre‐deceased brother of Tushar Babu, namely Saroj Babu, had no right to inherit any property of Tushar Babu under Hindu Succession Act, had Tushar Babu died intestate. As such, Ashok Babu had no caveatable interest in the said probate proceeding. The learned Trial Judge, in our considered view, ought not to have allowed Ashok Babu to contest the said probate proceeding as he had no caveatable interest in the said probate proceeding. Despite service of notice of the appeal upon Ashok Babu, he did not come forward to contest this appeal. However, since he had no caveatable interest in the probate proceeding, we hold that it will not be fair on our part to consider his objection and/or the evidence he adduced in connection with the said probate proceeding. Accordingly, we leave the objection filed by Ashok Babu and his evidence recorded in the said probate proceeding, beyond our consideration.
Let us now consider the merit of the appeal in the context of the other materials on record including the evidence of the respective parties and the attesting witnesses.
Mr. Sabyasachi Bhattacharjee, learned Senior Counsel, appearing for the respondent Bulbul submitted before us that the execution of the Will and/or attestation thereof having not been made in accordance with the provision of Section 63(c ) of the Succession Act, the learned Trial Judge, according to him, was absolutely justified in rejecting the probate application filed by the propounder. He in his usual fairness submitted that though as per the provision of Section 68 of the Evidence Act, execution of the Will by the testator and attestation thereof by at least two attesting witnesses can be proved by one of the attesting witnesses when the attesting witness who has come forward to prove the execution of the said Will by the testator and attestation thereof by the attesting witnesses, is able to prove that (i) the said attesting witness was also present during the execution of the said Will by the testator and (ii) such Will was executed by the testator in his presence and (iii) the other witness was not only present at the time of execution of the said Will by the testator but he also signed as attesting witness in the presence of the attesting witness who has come to depose about the due execution of the said Will by the testator (iv) and the entire episode was completed in his presence and (v) he also signed on the said Will as an attesting witness in their presence after the Will was executed by the testator. By referring to the evidence of the attesting witness being PW 4, namely, Somnath Chakraborty, Mr. Bhattacharjee submitted that since the said attesting witness stated in his evidence that he only signed in the Will and except this he did nothing and know nothing, he is not a competent witness to prove due execution of the said Will by the testator and the attestation thereof by the other witnesses. Mr. Bhattacharjee, further contended that though the other attesting witness, namely, Bholanath Babu was alive at the material time, he having not been examined in the instant proceeding, the learned Trial Judge, according to him, was absolutely justified in holding that the execution of the Will by the testator and attestation thereof by the attesting witnesses were not duly proved by the propounder and as such the learned Trial Judge did not commit any illegality in rejecting the said probate proceeding by holding that the said Will was a manufactured document and the same was manufactured by Arup Roy being the beneficiary under the said Will in collusion with his son, the executor thereof. Mr. Bhattacharjee cited the following decisions of the Hon'ble Supreme Court in support of his submission that by simply proving that signature on the Will was that of the testator is not enough, as requirement of its attestation by two or more witnesses is mandatory one and at least one of such attesting witnesses must prove that such attestation was made as required by Section 63 (c ) of the Succession Act:‐
1. In the case of Janaki Narayan Bhoir v. Narayan Namdeo Kadam reported in AIR 2003 SC 761
2. In the case of B. Venkatamuni v. C. J. Ayodhya Ram Singh & Ors. reported in AIR 2007 SC 311
3. In the case of Lalitaben Jayantilal Popat v. Pragnaban Jamuna Das Kataria and Ors. reported in AIR 2009 SC 1389.
We have carefully considered all those decisions of the Hon'ble Supreme Court. It was held therein that one of the requirements of due execution of Will is its attestation by two or more witnesses, which is mandatory. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until 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. It flows from this section that if there be an attesting witness alive and is capable of giving evidence subject to the process of the Court, he has to be necessarily examined before the document required by law to be attested can be used in evidence. On combined reading of section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was of the testator but he must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act does not provide that both or all the attesting witnesses must be examined but at least one attesting witness has to be called for proving due execution of the Will in the manner as envisaged in Section 63. What is significant is that, the attesting witness who is examined should be in a position to prove the execution of Will by the testator and attestation thereof by the attesting witnesses as per Section 63(c ) of the said Act. To put in other words, if one attesting witness can prove execution of the Will in terms of Clause (c) of Section 63, and attestation thereof by at least two attesting witnesses in the manner as contemplated therein, the examination of other attesting witness can be dispensed with. Thus one attesting witness who is examined, has to satisfy the attestation of a Will by him and the other attesting witness in order to prove that there was due execution of the Will by the testator. It necessarily follows that if the attesting witness who has come to depose, for proving his attestation, does not in his evidence, prove satisfactorily the fulfilment of the requirements of attestation of the Will by other witness also, it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness is examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
This proposition of law is well‐settled by the Hon'ble Supreme Court and this view is being consistently followed by the Hon'ble Supreme Court and the High Courts. As such we will have to scan the materials on record in the present case for finding out as to whether due execution of the Will by the testator and attestation thereof by the two attesting witnesses could be proved by the attesting witness who deposed in the said proceeding as PW‐4 in favour of grant of probate to the said Will of the testator.
Let us now scan the evidence of PW - 4 in this background. Somnath, the PW
- 4 was an attesting witness. He said that he knew Tushar Babu as he was his father's classmate . He stated that he knew Tushar Babu executed a Will in the month of September, 2003 and he was one of the attesting witnesses to the said Will. He further stated that other attesting witness was Bholanath Mukherjee and Sandip Chowdhury. He further stated that advocate Sushanta Babu wrote the said Will in his chamber and Tushar Babu read it and signed on that Will in "our presence" and then "we the witnesses signed on that Will in the presence of Tushar Babu". "We" is printed in bold letter only to emphasize that all the attesting witnesses attested the Will at the same time and in the presence of each other. He further stated that on the date of execution, Tushar Babu's physical and mental capacity was very good. In his cross‐examination, he said "I signed on the Will. Except that I did nothing and know nothing". He further denied the suggestion by saying that "it is not a fact that he deposed falsely in his chief that Tushar Kumar Roy signed in their presence or he did not instruct anyone to execute the Will and he did not execute the Will but they procured this Will with the aid of Arup Babu". Evidence must be read as a whole to find out the substance of the evidence of a witness. If we read the evidence of the said attesting witness PW‐4, in its entirety, we find that he not only has stated that Tushar Babu executed the said Will after reading the contents thereof in the presence of the attesting witnesses but the attesting witnesses also signed on the said Will in the presence of Tushar Babu. The one line in the cross‐examination where he stated that he only singed on the Will and except this he did nothing and know nothing , in our view cannot demolish the evidence of the said witness, if it is read as a whole. We after reading the entire evidence of the said witness hold that the said witness duly proved the execution of the said Will by the testator and attestation thereof by the attesting witnesses in the presence of the testator, in accordance with the provision contained in Section 63 (c ) of the Succession Act.
Incidentally it may be mentioned herein that the propounder also intended to examine the other attesting witness, namely, Bholanath Babu who was still alive during the trial of the probate proceeding. Since the said attesting witness was ill, a prayer was made for his examination on Commission. Such prayer for examination of the said attesting witness on commission having been rejected by the learned Trial Judge, a revisional application was moved before this Hon'ble High Court but during the pendency of the said revisional application the probate proceeding was ultimately decided by the learned Trial Judge. Subsequently, the said attesting witness died and he is now not available for giving deposition in the probate proceeding. We thus, hold that the propounder made all his attempt not only to examine the PW‐4 one of the attesting witnesses but also tried to examine the other attesting witness, namely, Bholanath Mukherjee, but he failed to do so under the circumstances as stated above. Be that as it may, since we have held that the execution of the said Will by the testator and attestation thereof by the attesting witnesses in accordance with the mode as prescribed in Section 63(c) of the Succession Act has been duly proved by one of the attesting witnesses, namely, PW‐4 as per the provision contained in Section 68 of the Evidence Act, grant of probate cannot be refused, if we do not find any suspicious circumstances under which such Will was alleged to have been executed by the testator. In this regard, we like to refer to the pleadings of the contesting party, namely, Bulbul who simply stated that Tushar Babu was a cardiac patient and he was worried about his health and as such he was not in a position to execute his Will. Though it appears from the record that at the time of execution of the said Will he was aged about 79 years and he died at the age of 81 years but we find from evidence of the PW‐3 and the PW‐4 that Tushar Babu was physically fit and mentally alert at the time of execution of the said Will. PW‐ 3 an Advocate, who drafted the said Will as per the instruction of Tushar Babu stated in his evidence that he drafted the said Will as per the instruction of Tushar Babu and the said Will was prepared and signed and attested in one sitting. He further stated that before execution of the Will the contents of the Will was read over and explained to him by the said PW‐3 and the testator singed on the said Will after admitting it to be correctly written as per his instruction. He also stated that Sandip Chowdhury, Somnath Chakraborty and Bholanath Mukherjee were also present at the time of execution of the Will by the testator and they also singed, as witnesses in the said Will in the presence of the PW - 3 and Tushar Babu. He identified the signatures of the attesting witnesses on the said Will. Thus, execution of the said Will by the testator and attestation thereof by the attesting witnesses on the date when the Will was prepared, i.e, on 8th September, 2003 was not only witnessed by the said witness, viz, PW - 4 but the PW‐3 also proved due execution and attestation of the said Will in the manner as required under Section 63 (c) of the Succession Act. we find that no suggestion was given to those witnesses as to whether they were closely associated with the beneficiary under the Will and the beneficiary under the Will in collusion with those witnesses and with their active connivance prepared the said Will. In fact, it is stated by the propounder being PW -1 that he did not know about the said Will prior to the death of Tushar Babu. He stated that he was not present at the time when the Will was executed by Tushar Babu and the same was attested by the other witnesses. When he said in his evidence that he did not know about the Will prior to its discovery, the learned Trial Judge, in our view, ought not to have given much importance to that part of his evidence where he stated that the Will was executed by the testator and/or attested by the attesting witnesses on 12th September, 2003 and not on 8th September, 2003. As a matter fact, we have examined the Will very carefully. We have seen that it was mentioned on the said Will that the Will was executed on 8th September, 2003. Though the date of attestation thereof by the attesting witness was not mentioned therein specifically but from the evidence of the attesting witness, it was proved that the execution and attestation of the said Will was made in one sitting on 8th September, 2003. We find from the said Will that the said Will was presented before the Notary Public for certification by the Notary Public on 12th September, 2003 and the Notary Public mentioned in his certificate that the said Will was presented before him on 12th September, 2003 for his certification. Thus, we conclude by holding that the execution of the said Will by the testator and attestation thereof by the attesting witnesses in terms of Section 63
(c) of the Evidence Act have been duly proved by the attesting witness being PW
- 4 in the instant case. We also find no suspicious circumstances under which the Will was executed. In fact, no suspicious circumstance under which such Will was executed has been spelt out by the objector in her objection. Grant of probate to the Will cannot be refused merely because of the fact that some of the heirs were deprived by the testator.
Before parting with, we like to mention here that it is rightly pointed out by Mr. Bidyut Kumar Banerjee, learned Senior Counsel of the appellant, that Section 63 of the Succession Act does not provide that the attesting witness must certify in the deed itself that the Will was executed by the testator in their presence. It is also rightly pointed out by him that non‐ mentioning of the witnesses as attesting witnesses in the deed itself, does not vitiate due attestation. As such even if the witnesses were not described as attesting witnesses in the deed itself and the attesting witnesses did not certify that they were present at the time of execution of the Will by the testator such deficiency will not be fatal and grant of probate cannot be refused for such deficiency in the Will. In the facts of the instant case, we thus hold that the Learned Trial Judge committed an illegality by refusing to grant probate to the said Will left by Tushar Babu on 8th September, 2003. The impugned judgement and decree is thus set aside.
Let probate be granted to the last Will and testamentary document left by Tushar Kumar Roy on 8th September, 2003. Thus the prayer for grant of probate under Section 276 of the Indian Succession Act to the last Will of the testator Tushar Kumar Roy dated 8th September, 2003 is allowed on contest. The appeal is thus allowed.
Let the Lower Court records including the original will of the testator be sent down to the Court below immediately.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya , J.) I agree.
(Debi Prosad Dey, J.)