Calcutta High Court
Gauri Bala Mondal (Deceased) vs Annada Prasad Mondal on 5 August, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
TS No. 10 of 2010
GA No. 3569 of 2015
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
IN THE GOODS OF:
GAURI BALA MONDAL (DECEASED)
Versus
ANNADA PRASAD MONDAL
-VS-
SUBHAS CHANDRA MANDAL & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 5th August, 2016.
Appearance:
Mr. Pramit Kumar Ray, Sr. Adv.
Ms. Suparna Mukherjee Adv.
Mr. Avirup Mandal, Adv.
For the Executor.
Mr. Debmalya Ghosal, Adv.
Mr. Ranjit Kumar Basu, Adv.
For the defendadnt no.1.
The Court :- This is an application for grant of a probate
of the Will of the Testatrix dated March 31, 2008.
On one the filing of a caveat and an affidavit in support of
caveat, the probate proceeding was treated as a contentious cause. A
testamentary suit number was allotted. The proceeding was treated as
suit and was heard as such.
By an order dated October 10, 2012 issues for trial in
the suit were framed. Such issues are as follows:-
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1.Whether testatrix Gouri Bala Mondal has executed her last Will and testament dated March 31, 2008 in a free state of mind and health?
2. Whether the execution of the said will was obtained by undue influence and/or fraud?
3. Is the plaintiff/propounder is entitled to grant probate of the said Will?/
4. Is this suit maintainable in law?
5. What other reliefs if any the plaintiff is entitled to? The plaintiff has examined three witnesses in support of his case. The defendant has examined one witness.
The first two issues are taken up for consideration together for the sake of convenience since they are interrelated.
Learned Senior Advocate for the plaintiff submits that the deceased had executed a Will dated March 31, 2008 being Exhibit "B". He submits that, the testatrix was of sound mind at the time of execution of Exhibit "B". In order to establish that, the testatrix did not suffer from any debilitating mental condition, learned Senior Advocate for the plaintiff refers to the fact that, the testatrix had attended a marriage ceremony of one of the granddaughters on June 18, 2008. He refers to the fact that, the testatrix had attended the reception of such granddaughter. The marriage took place at a house, which is at a distance from the residence of the testatrix. She had travelled by car to the place of marriage and had stayed there for a considerable period of 3 time. She had also travelled to the place where reception was held after two days of the marriage. Learned Senior Advocate for the plaintiff refers to the answers given by the defendant to the question in cross- examination in support of such contention.
Learned Senior Advocate for the plaintiff submits that, the testatrix was suffering from various medical conditions, which had prevented her from signing the Will. The left thumb impression was affixed by the testatrix in presence of the attesting witness. He submits that, the allegation of suspicious circumstances attending to the execution of the Will is without any basis. In support of such contention he refers to various answers given by the witness of the plaintiff as also by the defendant himself.
Learned Senior Advocate for the plaintiff refers to Exhibit "B" and the contents therein and submits that, the Will cannot be said to be unnatural. The directions with regard to tenancy relates to each of the brothers. The defendant has not singled out with regard to the tenancy as sought to be contended by the defendant. In fact the defendant is enjoying an area in excess of 1200 square feet on a monthly rent of a princely sum of Rs.90/-. He submits that, the directions in the Will with regard to such tenancy will enure to the benefit of the Estate and that the enhanced rent will permit the estate to pay the Kolkata Municipal Corporation liabilities and defray and other expenses of the estate.
Learned Advocate for the defendant submits that, the Will was executed by the testatrix under undue influence of the eldest 4 brother. There are suspicious circumstances attending to the execution of the Will. The contents of the Will are suspicious. The Will is unnatural. Moreover, the Will was not executed in terms of Section 63 of the Indian Succession Act, 1925.
Learned Advocate for the defendant refers to the answers given by the attesting witness both in examination in chief as well as in cross-examination and submits that, the attesting witness claims himself to be a Doctor and a family physician and being friendly with the family is unable to identify the place at which the Will is claimed to have been executed. He refers to the fact that, the first floor of the premises is under tenancy of the nationalized bank. The attesting witness has claimed the execution of the Will to have taken place at the first floor when there is a subsisting tenancy in favour of a bank. He submits on instruction that, Dr. Sisir Kumar Sen is the family physician and not the attesting witness.
Learned Advocate for the defendant refers to the contents of the Will and submits that, the word `trust' used in the Will was not explained to the testatrix. In view of the fact that, the Will claims that the contents of the Will was read over and explained to the testatrix. The Will appears to the written in English language. The testatrix did not understand English language. When a question was put to the person claiming to have read over and explained the contents of the Will with regard to the word `trust' used in the Will, such witness was not in a position to explain the meaning of the word, in evidence. Therefore, it can 5 be safely said that the contents of the Will was not explained to the testatrix to understand the true important thereof.
Learned Advocate for the defendant refers to the illness that the testatrix was suffering over the period of time and submits that, by reasons of such illness the testatrix was suffering from debilitating state of mind. The testatrix was suffering from cancer. She had suffered agony of the knowing the death of the eldest daughter. He also refers to a document executed contemporaneously by which a business was sought to be given to two brothers. He refers to the fact that, the testatrix was having a joint account with the Executor during her life time.
He submits that, the testatrix was in the habit of signing documents without understanding the contents thereof. He refers to various answers given to the question by the witnesses both of the plaintiff as also of the defendant in support of his various contentions.
Learned Advocate for the defendant relies upon AIR 1959 Supreme Court 443 (H. Venkatachala Iyengar-Versus-B.N. Thimmajamma & Ors.); AIR 1982 Calcutta 236 (Anath Nath Das & Ors.- Versus- Sm. Bijali Bala Mondal); AIR 2005 Calcutta 212 (Chanchal Kumar Das & Ors. -Versus-Pasupati Nath Das & Ors.) and (2007) 2 Cal. LT 484 (HC) (Smt. Krishna Bera & Ors.-Versus-Sri Prabir Pramanik & Ors.).
In reply learned Senior Advocate for the plaintiff has distinguished the authorities cited at the bar on behalf of the defendant. 6
It appears that, the Will being Exhibit "B" is dated March 31, 2008. The testatrix was admittedly suffering from various illness including cancer during this time. She was being treated for such diseases.
However, despite her illness and the treatment thereof, the testatrix had attended the marriage ceremony of the second eldest daughter on June 18, 2008. That the testatrix had attended such marriage ceremony has been admitted by the defendant in cross- examination. He has stated in answer to a question put in cross- examination that the testatrix had visited the place at which the marriage ceremony was taking place and that, although she did not participate actively in their marriage ceremony, she had sat there. The fact that the testatrix had travelled to another place from her residence to attend the reception of such granddaughter two days subsequent to the marriage is also established on evidence.
The defendant does not dispute that, he had cordial relationship with the testatrix. The defendant is one of the sons of the testatrix. The plaintiff is eldest son of the testatrix. The admitted position is that the brothers have a workable relationship, if not a cordial one even at this stage of the present proceeding. They had cordial relationship at the material point of time.
These facts, therefore, establishes that the testatrix was having sufficient mental capacity to understand the happenings around her. She had executed her Will on March 31, 2008. She had attended 7 marriage ceremony of the second eldest granddaughter on June 18, 2008.
Four authorities have been cited at the Bar for the proposition as to what constitutes suspicious circumstances attending to the execution of the Will obtained under undue influence. H. Venkatachala (supra) is of the view that, the propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, and the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. It also says that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators, but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
In Anath Nath Das (supra) it is held that, a propounder of the Will has to prove the due and valid execution of the Will. It is for the propounder to remove any suspicious surrounding the execution of the Will by cogent and satisfactory evidence.
In Chanchal Kumar Das (supra), H. Venkatachala (supra) was noted. In the facts of the case, the probate was granted in respect of the Will concerned.
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Smt. Krishna Bera (supra) deals with a fact scenario where the suspicious circumstances was not explained properly in evidence. In fact the first Appellate Court had taken evidence with regard to the probate proceeding and had found that the propounder had failed to prove its case.
In the present case the propounder has been able to establish through cogent and satisfactory evidence the execution of the Will. The evidence given on behalf of the plaintiff establishes that Exhibit "B" was duly executed by the testatrix in accordance with Section 63 of the Indian Succession Act, 1925. The defendant claims that the place of execution is shrouded under suspicious circumstances. The factum of the execution of the Will being established, I am not minded to whole that there is any attending suspicious circumstances with regard to place of execution of Exhibit "B". The contents of Exhibit "B" do not prompt one to infer that the Will is unnatural. The testatrix had directed the treatment of her property in the way that has been stated in the Will. The succession to the property has also been stated. The defendant is not prejudiced by any of the directions issued by the testatrix in the Will.
The eldest son has been appointed as the Executor. The testatrix during her life time was having a bank account with him with either or survivor instructions in such bank account with the eldest son. It was the eldest son of the testatrix who had got the medicines as well as the Doctor for her treatment. The testatrix apparently had reposed greater confidence in the eldest son during her life time. Consequently 9 the testatrix had appointed the eldest son as the Executor of the Will. There is nothing unnatural in such appointment.
The allegation of undue influence also remains unsubstantiated. No fact has been shown or established by the defendant to prompt a return of finding of undue influence being exerted by any person upon the testatrix in executing the Will. Subsequent to the execution of the Will the testatrix was in contact with the outside world. The defendant claims that he was also visiting the testatrix during her life time. He has claimed that he had complete access to the testatrix. Therefore, had there been any undue influence exerted on the testatrix by the eldest son of the testatrix during her life time, there was every possibility of the testatrix stating the same to the defendant or to any other person. Such scenario does not exist in the present case.
In view of the discussions above, the first issue is, therefore, answered in the affirmative and in favour of the plaintiff. The second issue is answered in the negative and against the defendant.
In view of the first two issues being answered in the manner as stated above, the third issue is answered in the affirmative and in favour of the plaintiff. The fourth issue answers itself in view of the discussions above. The instant suit is maintainable. The fourth issue is answered accordingly. So far as the fifth issue is concerned, there will be an order in terms of prayer (c) of the probate application.
TS No. 10 of 2010 is decree accordingly.
10GA No. 3569 of 2015 is an application for removal of the executor, made at the instance of the defendant.
The learned Advocate for the defendant refers to an order dated August 28, 2014 and submits that, the executor is guilty of acting in breach of the express directions contained in such order. He refers to Clause (3) of the order where the executor has been allowed to defray expenses necessary for maintenance of the estate including property tax, electricity bill, repair, renovation etc. The executor was also required to maintain accounts and circulate a copy thereof to each of the beneficiaries and the executor on a quarterly basis. He submits, referring to the accounts furnished by the executor that, the direction for quarterly circulation of accounts was breached. It was an annual affair at best. He also refers to the statement of accounts furnished by the executor and submits that, the executor had defrayed a sum of Rs.1 lakh to one of the beneficiaries prior to the probate being granted and that, he has expended a sum of Rs.50,000/- each to the family members prior to the probate of the Will being granted, and also in breach of the order dated August 28, 2014.
The learned Senior Advocate for the plaintiff submits that, the beneficiary under the Will was given the sum as directed by the Will. So far as the two payments of Rs.50,000/- each are concerned, the executor had paid the sum to one of the brothers to meet the medical treatment of the wife of such brother. In any event, such amount was refunded to the estate.
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The allegations made in the petition taken at the highest do not allow inference that, the executor has acted in breach of the directions contained in the Will or in breach of the Trust to the estate or that the executor had caused any loss to the estate.
In such circumstances, I am not inclined to grant any relief to the defendant in the application.
GA No. 3569 of 2015 is dismissed. No order as to costs.
(DEBANGSU BASAK, J.) snn/sd..