Calcutta High Court (Appellete Side)
Shiv Prasad Saraf vs Bhagawati Prasad Saraf on 26 September, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.A. No. 84 of 2004
Shiv Prasad Saraf
Versus
Bhagawati Prasad Saraf
For the Appellant/Petitioner: Mr L.P. Tiwari,
Mr M.S. Tiwari,
Mr A.K. Mishra,
Mr Ravindra Tiwari.
For the Respondent/Opposite Party: Mr Harish Tandon,
Mr Prashant Agarwal.
Heard on: 02.09.2008 & 04.09.2008.
Judgment on: 26th September, 2008.
Bhaskar Bhattacharya, J.:
This first appeal is at the instance of a Caveator in a suit for grant of probate and is directed against the judgment and decree dated 29th July, 2000 passed by the learned Judge, Tenth Bench, City Civil Court at Calcutta, in O.C. Probate Case No.10 of 1996, thereby granting probate in favour of the executor.
The respondent before us, in the year 1995, filed an application for grant of probate of the alleged last Will and Testament dated 27th November, 1974 executed by one Mohanlal Saraff who died on 19th January, 1975. The said proceeding gave rise to Probate Case No.19 of 1995 and on contest, the same was renumbered as O.C. Probate Case No.10 of 1996. The proceeding was contested by the appellant before us by filing written statement thereby opposing the grant of probate on the allegation that Mohanlal Sharaff never executed any such Will nor did he appoint the respondent as an executor. According to the appellant, if any such Will was ever executed, that must have been procured by practising fraud upon the said Mohanlal Sharaff as the deceased was in complete control of the respondent. The allegation of undue influence was also made.
There is no dispute that the said Mohanlal Sharaff died leaving his widow, two sons and one adopted son and two daughters. By the said Will, the said deceased bequeathed his one-third share in the Premises No.145A, Cotton Street, Calcutta-7 in favour of the executor depriving the other heirs. In the Will, the following directions were given upon the executor:
(a) The executor should spend maximum amount of Rs.10,000/- on account of the testator's funeral rites and rituals.
(b) He should go on making payment of the one-third share of a sum of Rs.133.34p. in favour of Sri Raghu Nath Hospital, Laksmangarh, District Sikar, Rajasthan.
(c) He should pay a sum of Rs.13,625.60p. to the daughter of the testator, namely, Smt. Panna Bai Ruiya, a resident of Kanpur.
(d) He should pay total sum of Rs.12,352.78p. together with interest at the rate of 6 percent on the said amount calculated from Chait Sudi 10, Sambat 2024 till the date of payment, to the temple of Ganesh Ji at Laksmangarh, District Sikar, Rajasthan and the said payment should be made out of the one-third share of the income from the property situated at 145A, Cotton street, Calcutta.
(e) The executor should go on making payment of a sum of Rs.50/- a month to Smt. Panna Bai Ruiya, the daughter of the testator, during her lifetime.
In the body of the Will, it was stated that the testator apprehended that his adopted son might have been procured his signatures in blank papers and after his death, he might prepare an instrument of Will by misusing those signatures.
At the time of hearing of the suit, one Bhagawati Prasad Singhania, one of the two attesting witnesses named in the will appeared as P.W.-1 and the executor himself appeared as P.W.-2; on the other hand, the appellant, before us, alone deposed in opposing the said probate application.
As indicated earlier, the learned Trial Judge by the judgment and decree dated 29th July, 2000 granted probate.
Being dissatisfied, the youngest son of the testator has come up with the present appeal.
After hearing the learned counsel for the parties and after going through the materials on record, we find that the Will in question is typed in Hindi consists of five pages and on each of the pages the signature of the testator is appearing on the left hand side but the signatures are of different size and inconsistent with each other. What is the peculiarity of this Will is that in the last page, the testator had signed at the bottom and there was hardly any space left for signature of the attesting witnesses and consequently, the two attesting witnesses have signed on the first page of the Will by the side of the signature of the testator. There is, however, no indication that the attesting witnesses put their signatures after they had seen the testator to sign on the document and that they have also signed in his presence. The Will was registered in Varanasi and it appears that the two attesting witnesses, on the date of execution itself, identified the testator before the Registrar. The testator was aged 86 years on the date of execution and had died within one year and a half from the date of execution of the said Will. Although, the testator died in the year 1975, the application for grant of probate was filed long 20 years thereafter in the year 1995. It further appears that immediately after the death of the testator, the executor himself entered into an agreement with the present appellant regarding division of the subject-matter of bequest, namely, one-third share in 145A, Cotton Street by giving a go-by to the terms of the Will. In the said agreement, it was pointed out that a Will was executed by Mohanlal Sharaff and that the appellant had disputed the said Will.
Long 20 years thereafter, the application for grant of probate was made and there is no dispute that, in the meantime, the executor had not taken any step for performance of other duties prescribed in the Will regarding payment of various amount to different persons or authorities. Only explanation given by the P.W.-2 in the deposition, as regards the delay in presentation of the application, was that he was staying in Varanasi and for that reason, there was delay in preferring the probate case. The Will in question having been allegedly executed and registered in Varanasi, there was no bar in presenting the petition for grant of probate in the Court at Varanasi. We have already pointed out that the Executor himself entered into an agreement with the appellant for division of the property covered by the Will immediately after the death of the testator without applying for grant of probate knowing well that by virtue of the alleged Will, the appellant would get nothing.
From the aforesaid materials, we find that several suspicious circumstances are apparent in the matter of due execution and attestation of the Will. Those are enumerated below:
(a) Of the two attesting witnesses, the whereabouts of one could not be disclosed;
(b) There is no explanation of the delayed application of 20 years;
(c) There is no explanation why the executor did not take step for performance of other duties, although, the Will was all along in his possession;
(d) The executor entered into an agreement by abandoning his right conferred in the Will in respect of the immovable property, namely, 145A, Cotton Street, Calcutta;
(e) The way signatures are appearing in the various pages, it is apparent that if any testator in one sitting wanted to put all those signatures, the signatures would not have appeared in that fashion.
The next question is whether the executor has been able to dispel all those surrounding suspicious circumstances so as to remove the doubt from the mind of the Probate Court.
We find that none of the aforesaid irregularities could be explained by the executor. Even we find that one of the attesting witnesses, namely, P.W.-1 was a resident of Ranchi and he has stated in his evidence that the testator did not ask him to come to Varanasi for the purpose of becoming attesting witness and he knew the testator in view of the family relationship in Calcutta. The testator was aged 86 years whereas the attesting witness was hardly 26 years and of the same age as that of the executor.
Even in evidence, the P.W.-1 has stated that the Will was executed in the Varanasi Court at the lawyer's chamber and the lawyer came to the residence of Mohanlal Sharaff for the purpose of taking him and he went with him to the Court along with the lawyer. In the same evidence, he has further stated that he arrived at the Court and found that the lawyer and the other attesting witnesses were already present. We have already pointed out that the executor has not been able to disclose whether the other attesting witness is still alive or about his present place of residence. Our suspicion has further strengthened in view of the averment made in the Will itself where the testator had said that his signature was taken by his other son on various blank papers and he apprehended that those might have been converted into Will after his death. It is, therefore, apparent that the testator had no control upon himself and used to sign on blank papers. The nature of signature appearing in the Will before us also raises a doubt that the signatures were appearing on blank papers which have been converted into Will as would appear from the fact that there was hardly any space left for signature at the last page and for that reason, the two alleged attesting witnesses had put their signatures on the first page of the Will. Even the signature of the other attesting witness than the P.W.-1 has not been marked as exhibit, although, P.W.-1 said that other attesting witness signed. If the signature of the second attesting witness has not been marked as exhibit, the attestations by two witnesses have not been proved. We are quite conscious that one of the attesting witnesses can prove the attestation of the Will by himself and the other attesting witnesses but when the signature of the second attesting witness is not proved by the other one by marking the same as Exhibit, in such a case, the attestation by at least two witnesses, as required under the law, has not been proved.
We, thus, find that there are enough suspicious circumstances surrounding due execution and attestation of the Will in question and in such a case, it is not a fit case for grant of probate. We, therefore, set aside the judgment and decree passed by the learned Trial Judge and hold that the executor/propounder has failed to prove due execution and attestation of the said Will.
The appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Rudrendra Nath Banerjee, J.)