Calcutta High Court
Shyamal Kumar Sen vs Mrs Sanjukta Mukherjee And Another on 8 March, 2019
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE
APPELLATE JURISDICTION
ORIGINAL SIDE
The Hon'ble JUSTICE SANJIB BANERJEE
And
The Hon'ble JUSTICE SUVRA GHOSH
APD No. 138 of 2018
In
TS No. 6 of 2018
IN THE GOODS OF:
PARAMESH CHANDRA SEN (DECEASED)
AND
IN THE MATTER OF:
SHYAMAL KUMAR SEN
-VERSUS-
MRS SANJUKTA MUKHERJEE AND ANOTHER
For the Appellant: Mr Malay Kumar Ghosh, Sr Adv.,
Mr Rajarshi Dutta, Adv.,
Ms Nilanjana Addya, Adv.,
Mr Tapan Kumar Sil, Adv.
For the Respondent No.1: Mr Rupak Ghosh, Adv.,
Mr Ranjit Kumar Basu, Adv., Mr Ayan Dutta, Adv.
For the Respondent No.2: Mr Suman Dutt, Adv., Mr Debmalya Ghosal, Adv., Mr Bablu Boral, Adv.
Hearing concluded on: March 6, 2019.
Date: March 8, 2019.
SANJIB BANERJEE, J. : -
Life in the Sen family of 29, Ballygunge Place was no different in the 1960s through the end of the century than in many other Bengali families in the then Calcutta: two daughters of the family were married off and the son went abroad in the hope of greener pastures. Paramesh Chandra Sen retired as a middle-level employee in the Refugee Rehabilitation Department of the State Government. His wife Kalindi was with Life Insurance Corporation of India and signed off as a Development Officer. The paltry salary of Paramesh and the reasonable commission that Kalindi earned was supplemented by the rental income from an outhouse or annexe in the ancestral property at Ballygunge. The family was not affluent, but life was not difficult for parents Sens as they brought up their son and three daughters.
2. By the time eldest son Shyamal left the country to try his luck in England in 1966, daughters Debjani and Sanjukta had already been married off for more than five years and Paramesh had retired from his meagre government service with apparently no pension in those days. Eldest daughter Debjani moved out of the Ballygunge Place house after her marriage, spent a few years with her husband in Kalyani and returned to the paternal house, husband in tow, within a few months of Shyamal having left for England. Second daughter Sanjukta moved out of the paternal home after her marriage, but lived close by at 92, Ballygunge Place with her husband's family. Sanjukta's husband, Partha, was a childhood friend of Shyamal. Tragedy struck the Sen family when the youngest daughter died in a road accident in 1968, only a few days before she was to be married.
3. Shyamal, who claimed to have reached England with only a few pounds in his pocket, found himself a job, dutifully came back to India to collect his bride and returned to the Blighty where his wife found a good job and in 1975 Shyamal's elder child, a daughter, was born in England and mother Kalindi spent some time in England to help out the young parents. In due course, a son was born to Shyamal - both the children are apparently doctors in England - and the initial infrequent visits to the homeland changed and Shyamal would make regular visits to his parents thereafter.
4. Paramesh died in 1985 at the age of 80. Wife Kalindi took to the wheelchair within a few years thereafter as her arthritis got the better of her. Kalindi had Debjani and her husband for company at 29, Ballygunge Place apart from the tenants who occupied the outhouse on the ground floor, the rent wherefrom went some distance in covering her monthly expenses.
5. Sanjukta's husband Partha died in 2003 and Kalindi died in 2004. Shyamal was not there to attend to the funeral ceremonies of either parent but he arrived with his wife within a few days of his mother's death to perform the mother's sradh ceremony early in December, 2004. Shyamal and his wife stayed back that winter, possibly to take care of the new arrangements at home after his mother's death. Shyamal had retired by then or retired shortly thereafter and was able to spend as much time in this country as he wanted.
6. There is nothing to gauge that the relationship between brother Shyamal and sisters Debjani and Sanjukta was strained or anything less than cordial up to the beginning of year 2005. It appears to be the fairly admitted position that several years after Paramesh's death and during the lifetime of Kalindi, there was some kind of an informal family arrangement in or about the year 1999 under which Sanjukta was to get the ground floor of the ancestral building that Paramesh inherited from his grandfather at 29, Ballygunge Place; Shyamal and his mother were to keep the first floor; and, Debjani and her husband would have the second floor, which had to be constructed.
7. It is Debjani's evidence that elder brother Shyamal provided the funds for the construction of the second floor where Debjani and her husband moved into, though Debjani had probably to stay on at the first floor to take care of her mother who could not manage her own affairs towards the last decade or so of her life. After the death of Kalindi in 2004, when Shyamal and his wife were still here after the sradh ceremony, Shyamal appears to have tried to take control of the first floor of the house which has five rooms and the two other sisters could not have minded it since they had the newly constructed second floor and the ground floor, respectively, to themselves. Sanjukta's daughter and her husband had moved into the ground floor upon some renovation work being undertaken to, probably, include the annexe on the ground floor as part of the ground floor of the main building following the tenants moving out of the annexe.
8. At the time Shyamal was making the first floor of the building his own and taking control of the furniture and fixtures thereat, he had his mother's old almirahs, which the mother inherited from her mother-in-law, polished. Upon Shyamal expressing a desire that he needed the almirahs polished, Debjani, who used to look-after her mother while staying at the 29, Ballygunge Place paternal home, cleaned out the almirahs by removing all of the mother's clothes and articles therefrom. However, according to Debjani, even after she cleaned out the principal almirah of her mother, "there were a few letters - death certificate and may be a few other letters. The original death certificate as well as a few xerox copies of it were kept in the almirah." Debjani claimed to have handed over the keys to the two almirahs and a safe which were in the mother's erstwhile bedroom to Shyamal at the time that Shyamal was possibly trying to re-arrange everything on the first floor after the death of his mother.
9. It is from the main almirah of the mother that Shyamal claims to have discovered at least two documents "in early 2005" that ultimately led to the unremarkable story of the Sen family of 29, Ballygunge Place being narrated in court by Shyamal, Debjani and Sanjukta and now engages the attention of this court in appeal.
10. One of the two documents that Shyamal claimed to have found in his mother's main almirah appears to be a Will of father Paramesh, apparently executed on February 4, 1979. Several judicial hours and judgment pages have been expended on trying to ascertain the veracity of the document and assessing whether it ought to be regarded as the testamentary disposition of Paramesh's ancestral house and his meagre estate otherwise. Little or no attention has, however, been paid to the other document that Shyamal claimed to have found from the same almirah, except in course of such document being looked into by a handwriting expert and the effort on behalf of the sisters to discredit the opinion suggesting that Paramesh's signature in such other document matched the one in the document that was claimed to be as his only Will and testament. The document of 1960, received as Exhibit-C in course of the trial, is in three parts: a three-page terms of settlement between Paramesh and brother Naresh dated September 7, 1960 bearing the signatures of the two brothers at the foot of the third page; two copies of the type-written terms on the letter-head of Life Insurance Corporation of India; and, copies of extracts of two orders passed in Money Suit No.11 of 1963 by the second court of Sub-Judge, Alipore in the suit instituted by Naresh Chandra Sen against Paramesh Chandra Sen. The veracity of such document of 1960 has not been questioned and even Shyamal's discovery of such document from the same almirah from which he claimed to have found his father's Will, appears not to have been disputed by the objectors to the Will, Debjani and Sanjukta, who were arrayed as the defendants to the testamentary suit pertaining to the alleged Will of Paramesh Chandra Sen of February 4, 1979.
11. Though Shyamal applied for probate within months of discovering the alleged Will in the year 2005 and the testamentary suit began in right earnest by October, 2007, a testamentary suit number was allotted to the contested probate proceedings in the year 2018, even after the judgment and order impugned dated June 6, 2017 was passed. Ordinarily, upon a petition for grant of probate or for issuance of letters of administration with or without a Will being contested, the matter is set down as a contentious cause: where the petition for grant of probate or the petition for issuance of letters of administration with or without a Will is treated as the plaint and the affidavits in support of the caveats lodged by the objectors are treated as the written statements and a testamentary suit number is allotted to the matter immediately upon the court setting the matter down as a contentious cause. At the pre-contentious stage, a petition for grant of probate or a petition for issuance of letters of administration with or without a Will carries a PLA number. Unfortunately, this testamentary suit carried a PLA number till after the action was dismissed on contest and the correction only took place pursuant to an order of June 12, 2018, whereupon a testamentary suit number of 2018 was allotted to the matter on July 18, 2018.
12. Instead of dwelling on how the parties presented the facts and fared in course of the trial, it may be useful to see the story backwards by noticing the judgment and order impugned first before proceeding to discuss the facts and the evidence that presented themselves and analysing how the same were treated in the impugned judgment. This is, after all, an appeal and the facts and evidence cannot be seen de hors how they came to be assessed in the trial court judgment.
13. The judgment and order impugned dated June 6, 2017 can be divided into three broad parts, as most judgments ought to be: the first part being the case as made out and submission on behalf of the plaintiff; the second being the defence as put forth by the defendants; and, the third being the reference to the facts and law found relevant and the analysis thereof by the court leading to the findings on the several aspects and the ultimate verdict.
14. Counsel for the propounder-appellant is somewhat uncharitable in placing the first eight pages or so of the impugned judgment that record the propounder's case. In particular, it is submitted that some of the recorded submission, especially pertaining to the legal principles applicable, do not accurately reflect what was contended on behalf of the propounder in course of the arguments at the conclusion of the trial.
15. From the middle of the eighth page of the judgment and order impugned till the 10th (internal), the objections raised by the defendants are recorded. After the narration of the rival cases, the following issues are framed at the bottom of page 10 and over the page in the copy of the impugned judgment:
"(i) Whether the testator during his lifetime executed the will by putting his signatures therein?
(ii) Whether the will is shrouded by suspicious circumstances and the executor is able to dispel the same?
(iii) Whether the purported will has been proved by the executor and Section 69 has any manner of application in the instant case? And
(iv) Whether the affidavit executed in 1980 should have been marked as an Exhibit under Section 90 of the Evidence Act?"
16. Over the next two pages in the impugned judgment, Section 63 of the Succession Act, 1925 is set out and the discussion pertains to Sections 68 and 69 of the Evidence Act, 1872 and some of the judgments brought to bear on such aspect by the parties. The business-end of the judgment is from the middle of page 13 to the end at page 23 thereof, though several other judgments have been copiously quoted in course of the discussion.
17. It is now time to refer to certain basic facts pertaining to the matter before returning to how such fundamental aspects were dealt with in the impugned judgment. The case of the propounder was that in early 2005, barely months after mother Kalindi's death, the propounder discovered the alleged Will along with the document of 1960 (Exhibit-C) from an almirah that was previously used by his mother. The propounder claimed not to have talked to his sisters after he discovered the alleged Will, but having consulted a friend who dabbles in law who advised him to apply for probate immediately. The two surviving sisters of the propounder claimed to have come to know of the alleged Will only upon being served the court citations; whereupon they consulted a lawyer living down the road from 29, Ballygunge Place who advised them to contest the petition for grant of probate of the alleged Will. All three siblings clamed not to have had any inkling of the existence of the alleged testamentary document prior to the discovery thereof by the brother and the receipt of the citations by the two sisters. By the time the probate was sought, all three alleged attesting witnesses to the alleged Will had probably died and even the lawyer who apparently drafted the Will was dead. The three alleged attesting witnesses were a brother of Kalindi, an acquaintance or colleague of Kalindi and Sanjukta's husband. There was no dispute that Kalindi's brother Prithwish Chandra Roy and Sanjukta's husband Partha Mukhopadhyay had died prior to the alleged Will surfacing; but there appears to have been some confusion as to the rival stands of the parties on the two sides as to the fate of the other alleged attesting witness, Nitish Chandra Roy. Though it appears from the unequivocal individual assertions of the two sisters in their written statements that even such alleged witness was dead before the alleged Will surfaced, in their oral evidence the two sisters claimed not to have known who Nitish Chandra Roy was or as to whether he was dead or alive at the time of their evidence.
18. As to the proof of the execution of the alleged Will, Shyamal testified that the signature on each of the four pages of the document was that of his father, though Shyamal admitted not to be overly acquainted with his father's signature as he was away from home since 1966 and his father never wrote to him; or, even if he did, the letters would not carry his formal signature. Shyamal also claimed the signature attributed in the alleged Will to Partha Mukhopadhyay as being that of his childhood friend who went on to marry one of his sisters; but again, Shyamal said that he had no occasion to be familiar with Partha's signature otherwise. Sisters Debjani and Sanjukta denied that the alleged Will bore any signature of their father and Sanjukta denied the signature in the alleged Will attributed to her husband.
19. Three handwriting experts were called upon by the parties to render their expert opinions. Harish Chandra Ganguly testified that in his opinion the signatures of Paramesh in the alleged Will were of the same person who had signed as Paramesh Chandra Sen in the document of September 7, 1960 pertaining to the matter between Paramesh and brother Naresh in the Alipore court. Another expert, Purushottam Chatterjee, was of the view that the five signatures on the four pages of the alleged Will attributed to Paramesh were not the signatures of Paramesh. Purushottam's opinion in such regard was based on an affidavit of August 20, 1980 apparently affirmed by Paramesh in course of furnishing a declaration of some kind pertaining to the ancestral property at 29, Ballygunge Place, Calcutta - 700019. However, such alleged affidavit of August 20, 1980 was not exhibited in course of the trial, nor does it appear to have been produced from the custody of an appropriate person who ought to have been in possession of the document in the usual course. It is also the undeniable position that though Purushottam Chatterjee was engaged at the behest of Sanjukta pursuant to her application bearing GA No.487 of 2009 verified by Sanjukta's affidavit of February 16, 2009, neither the relevant application nor the order dated March 16, 2009 passed thereon referred to the alleged affidavit of August 20, 1980 or the disputed signatures of Paramesh in the alleged Will being compared to any admitted signature of Paramesh in course of the opinion being obtained from Purushottam Chatterjee. A further fact pertaining to Purushottam Chatterjee is that though he later doubted the signatures on the alleged Will as that of Paramesh, he had earlier opined, at the invitation of Shyamal, that the signatures on the Will were, indeed, those of Paramesh Chandra Sen.
20. A third handwriting expert, Rajani Kanta Das, was called upon by propounder Shyamal to prove Partha's signature as attesting witness. Rajani Kanta was called as a witness in support of his opinion that the signature attributed to Partha in the alleged Will matched and was of the same person who had applied for the probate of the Will of Kali Kumar Mukhopadhyay of 92, Ballygunge Place in Probate Case No.391 of 1986 before the District Delegate at Alipore.
21. In the backdrop of such facts and evidence and the rival stands of the brother on the one hand and the two sisters on the other as apparent therefrom, it is time to return to the judgment and order impugned dated June 6, 2017 and see how the trial court assessed the matter. The trial court observed that "Admittedly, ... two of the attesting witnesses are proved to be dead at the time of filing an application for probate." The court noticed that the "Dispute is relatable to the second attesting witness in the purported will, which according to the objectors have not been proved by the executor either to be alive or dead." The court recorded that the consistent stand of the executor was that he did not know the relevant person nor was he aware of the signature of such second alleged attesting witness before referring to the propounder's evidence in such regard thus: "... and in the cross examination says that presumably he is dead in the year 1983." Such recording is demonstrably erroneous. Shyamal's response to the court in question 375 was direct and forthright: "He died in the year 1983."
22. It was the perception of the trial court, on basis of the material before it that "neither the objectors have specifically said that Nitish is alive and not dead nor any attempt on their part is shown to bring the said witness." But the trial court failed to notice the categorical stand of either objector on such aspect in her written statement as quoted later in this judgment. Both Debjani and Sanjukta unequivocally admitted in their pleadings that all three attesting witnesses were dead.
23. The discussion in the impugned judgment shifts thereafter to the veracity of the signature of the alleged testator qua the contradictory opinions expressed in such regard by Purushottam Chatterjee. For most of pages 14 and 15 of the judgment impugned, the discussion pertains to the two contrary opinions on Paramesh's signature by Purushottam, including the unsolicited view of Purushottam in his subsequent report pertaining to the nature of the alleged testator's signatures in the alleged Will. Though the trial court noticed that Purushottam's subsequent opinion, insofar as the veracity of Paramesh's signature thereon was concerned, was based on a comparison with the original affidavit dated August 20, 1980 and such affidavit "is not marked as exhibit but has been kept marked for identification", the trial court proceeded to treat such affidavit of 1980 as if it had been exhibited since a copy of such affidavit was forwarded to Advocate for the propounder "and it does not appear from the record that any objection was raised either over its existence or its authenticity." The trial court proceeded to record that "the application appointing the handwriting expert was allowed directing the comparison of the signature to be made with the said affidavit", which is contrary to the order dated March 16, 2009 passed on Sanjukta's relevant application. The order dated March 16, 2009 allowed GA No.487 of 2009 in terms of prayers (a) and (b) thereof. Neither prayer referred to the affidavit of August 20, 1980. Prayer (a) only required Purushottam Chatterjee "to inspect and examine the said alleged original and to take photographs thereof specifically the signatures appearing therein". Prayer (b) sought a direction on the Registrar, Original Side, to allow Purushottam Chatterjee to inspect and examine the alleged original Will and to take photographs of the signature thereon.
24. Again, on the aspect of Purushottam's adverse opinion as to the signatures of Paramesh in the alleged Will, the impugned judgment observed that a "Series of questions were put to the said expert by the executor during the cross examination as to why the said affidavit was not taken in original to compare the signatures", but the series of questions that willy-nilly destroyed the adverse opinion of such handwriting expert qua Paramesh's signature in the alleged Will, was not even noticed or referred to. It is somewhat baffling that Purushottam's adverse opinion of 2009 is given credence in the judgment impugned without so much as a sentence of discussion on Harish Chandra Ganguly's opinion that Paramesh's signature in the Will matched and was of the same Paramesh Chandra Sen whose admitted signature appeared in the admitted document of September 7, 1960 except an erroneous reference in the second-last page of the impugned judgment, which is quoted later in this judgment.
25. At pages 16 to the top of 18 of the impugned judgment there is a reference to Section 45 of the Evidence Act and a judgment of the Andhra Pradesh High Court without any discussion thereon before a reference to Section 90 of the Evidence Act, a quotation from a Division Bench judgment of this court on such provision and the application of the principle embodied in Section 90 of the Evidence Act to the facts of the present case. According to the judgment impugned, since the alleged testator's affidavit of August 20, 1980 was made over to Advocate for the propounder in 2011, the provision of Section 90 of the Evidence Act was attracted and could be applied to accept the veracity of the 1980 affidavit without any question. Lest the discussion in the impugned judgment in such regard is undermined in rephrasing it, the relevant part thereof may be quoted:
"... The copy of the document was handed over to the Advocate on Record of the propounder on 18.08.2011 and naturally by this time the period of 30 years expired. This Court does not find any fetter on the part of the Court to apply the provisions contained under Section 90 of the Evidence Act and the said document ought to have the marked as Exhibits. ..." (Page 15 of the copy of the impugned judgment)
26. Section 90 of the Evidence Act deals with the presumption as to documents which are 30 years old. Such provision, insofar as it is relevant in the present context, mandates that where any document, purporting or proved to be 30 years old, is produced from any custody which the court considers to be proper, the court may presume that the signature, which purports to be in the handwriting of any particular person, is in that person's handwriting. The Explanation to such provision qualifies what would be the proper custody and enunciates that documents are said to be in proper custody if they are in the place in which, and under the care of the persons with whom, they would naturally be. However, custody would not be improper if it is proved to have had a legitimate origin or render an origin probable.
27. To begin with, the reasoning in applying Section 90 of the Evidence Act to the purported affidavit of August 20, 1980 is flawed since such purported affidavit of 1980 was obviously forwarded to Purushottam prior to Purushottam's opinion rendered on April 7, 2009. Further, the purported affidavit of August 20, 1980 was not exhibited. Significantly, the judgment impugned does not refer to the most important condition in Section 90 of the Evidence Act pertaining to custody. The presumption under Section 90 of the Evidence Act would not come into play unless the document is produced from the custody of a proper person and there is no consideration of such aspect of the matter in the impugned judgment. This is not a technical aberration. The error goes to the root of the matter and, to the extent that the finding on such aspect has any impact on the overall decision, the same has to be negated.
28. It is evident that it was Sanjukta who had applied for Purushottam's appointment. It is also apparent that despite Purushottam's appointment being by court, Purushottam unilaterally sought an admitted signature of Paramesh from the defendants. It is also undeniable that following such request, Debjani's Advocate on Record, B. Boral and Company, forwarded the purported affidavit of August 20, 1980 to Purushottam. The purported affidavit appears to be a declaration of some form which is not addressed to any person or authority in particular, but appears to have been affirmed before a notary public on August 20, 1980. The key declaration in the document is captured in its fourth paragraph in the following words: "that I am the only legal heir of the said property." If such affidavit had been affirmed by Paramesh, it is evident that such affidavit was intended to be made over to some authority like the Kolkata Municipal Corporation or the Income-Tax Department or some other like statutory body. The affidavit should then have been with such authority. Before the presumption of the apparently 30-year-old document could come into play, the appropriate custody of the document had to be established. There may or may not have been an appropriate explanation in such regard. If there was an appropriate explanation, that should have come on record for Shyamal to be able to test the same. But if there was no appropriate explanation as to how such purported affidavit that ought to have been in the custody of some authority was produced by Debjani's Advocate, the presumption under Section 90 of the Evidence Act could not have been attracted. To repeat, a satisfactory explanation as to the custody of the document could not have been furnished till it was exhibited and Shyamal had a chance to cross-examine Debjani or Debjani's Advocate as to how either came to be in possession thereof.
29. The rules of evidence are not technical; they are, in essence, rules of common sense that are rooted to the principles of natural justice. If Shyamal did not have a chance to question how Debjani or her Advocate came to be in possession of the purported affidavit of August 20, 1980 alleged to have been made by Paramesh, the court could never have applied Section 90 of the Evidence Act to invoke the principle of presumption embodied therein without the condition as to custody being complied with. It is as elementary as that.
30. After the discussion on Section 90 and its applicability, the next aspect of the impugned judgment is that the Will was discovered nearly 20 years after the death of the testator. The discussion in such regard covers the several features of what was perceived to be suspicious circumstances, including the late discovery of the Will, the apparent settlement between the parties as to the allocation of the property, the discovery of the Will from the almirah of the mother and the fact that Debjani was in control of the relevant almirah prior to its key being handed over to Shyamal. There is no reference to the oral evidence of the parties and only a single-sentence conclusion to the effect that "The story of the discovery of will for the first time from the almirah of the mother does not appear to be sound." There is a further observation in such context that it was not acceptable "that the mother who was an educated lady ... would suppress the existence of a purported will during her lifetime and did not take any steps to get the probate ..." The impugned judgment, thereafter, refers to the principle that it is for the executor to dispel the suspicious circumstances leading to the execution of a Will and refers to the celebrated judgment reported at AIR 1968 SC 1332 (Gorantla Thataiah v. Thotakura Venkata Subbaiah) before setting out copiously from such precedent.
31. The trial court also referred two other Supreme Court judgments. The principle recognised in the judgment reported at (1995) 4 SCC 459 (Rabindra Nath Mukherjee v. Panchanan Banerjee) was noticed for the proposition that the mere exclusion of a natural heir from any bequest may not be a suspicious circumstance. The other judgment noticed was the one reported at (1990) 1 SCC 266 (Kalyan Singh v. Chhoti) for the proposition that if a Will did not surface for many years, it was the duty of the executor to remove the consequential doubts as to its authenticity. A substantial passage from such report is quoted in the impugned judgment before the veracity of the document set up by the propounder as the Will of his father is disbelieved by the trial court on the following grounds:
"Admittedly the executor was living in United Kingdom and used to occasionally visit the parents initially after a gap of 4 to 5 years, which was later on reduced to one or two years. It is not in dispute that the ground floor was in occupation and possession of a tenant at the time of the alleged execution of the purported will and it raises a strong suspicion when the testator wanted one of his daughters namely Sanjukta to live on the ground floor till her lifetime. It is unnatural that the testator, who knew very well that the ground floor is fully occupied by the tenant yet he would give a right of residence to Sanjukta therein till her life unless at the time of alleged execution of the purported will attempt had been taken to get the tenant evicted therefrom.
"Though the other two experts have opined that the signatures appearing in the purported will and the terms of settlement are of the same author, yet, this Court cannot overlook that the third opinion based on the old document being used subsequently by putting the signature and the feathering of the ink is well noticed.
"From the conduct of the parties and facts disclosed in the third report of the expert, this Court does not find that the purported will is genuine."
32. The use of the expression "the other two experts", in the second of the three paragraphs quoted above, was clearly flawed. In the context, "the other two experts" referred to in the relevant paragraph of the judgment impugned pointed to Harish Chandra Ganguly and Rajani Kanta Das. It is the admitted and apparent position, on the basis of the material before the court, that Harish Chandra Ganguly's opinion was in respect of Paramesh's signatures in the alleged Will, but the opinion of Rajani Kanta Das had nothing to do with the signature of Paramesh; Rajani Kanta expressed the view that the third alleged attesting witness' signature on the alleged Will was that of Partha as it matched Partha's signature in the documents pertaining to Probate Case No.391 of 1986 before the District Delegate at Alipore in respect of the Will of Partha's father. The use of the expression "the third opinion" in the relevant paragraph of the impugned judgment quoted above is mistaken on the same ground as is the use of the expression "The other two reports submitted by the handwriting experts" in the following sentence at page 15 of the impugned judgment while discussing Purushottam's opinion and evidence:
"The other two reports submitted by the handwriting experts are based upon the comparison of the signatures appearing in the purported will and the terms of settlement executed in the year 1960."
33. As observed above, there were three handwriting experts in all. Harish Chandra and Purushottam rendered views on the signatures attributed to Purushottam in the alleged Will while Rajani Kanta's expert opinion was confined to Partha's signature. The impugned judgment completely misread the evidence and cannot be accepted as it is clearly exceptionable in its discussion and conclusion on Paramesh's signature.
34. It is also apparent that the trial court may have been overwhelmed by the delay in the testamentary document coming to light and the weight of suspicion that the trial court perceived that the objectors had spun around its execution, veracity and discovery. It is also apparent that the trial court did not refer to the substantial oral evidence of the parties, erred in perceiving three handwriting experts to have expressed their opinions on the signature of Paramesh, mistakenly referred exclusively to the questionable opinion of Purushottam by overlooking how he contradicted himself and even how such expert even tried to conceal his earlier favourable opinion as to Paramesh's signature and, finally, the trial court misdirected itself in applying the presumption under Section 90 of the Evidence Act without referring to the condition precedent before such application. Regrettably, the trial court's understanding of the bequest as evident from the concluding part of the judgment quoted above was also flawed. There is nothing in the Will, if it be accepted to be one, that indicated that "the testator wanted one of his daughters namely Sanjukta to live on the ground till her lifetime." The bequest, if at all, in such regard was that, should the daughters be "compelled to leave their marital homes for matrimonial differences (they) will be entitled to a mere right of residence in the said annexe for their lives only ...".
35. However, merely because the trial court erred in assessing the matter or adopting a flawed methodology of assessment would not imply that the judgment and order impugned may be set aside and the war would have been won by the propounder. In the testamentary jurisdiction, a court is required to positively find a Will to have been executed in accordance with law before probate thereof can be granted and the duty cast on the court is onerous, particularly as in the instant case where the attesting witnesses may have all died by the time the Will surfaced and, as such, the two key provisions - Section 63 of the Succession Act and Section 68 of the Evidence Act - cannot be satisfied in terms without recourse to some other applicable provision to prove the due execution of the Will.
36. The key considerations that arise are as to the execution of the Will in the context of it having surfaced nearly 20 years after the death of the alleged maker thereof, after the possible death of all the attesting witnesses, in the light of the dubious circumstances in which the document may have been discovered and in the backdrop of the perceived erroneous assertions as to facts as contained in the Will. Since the matter has to be reassessed afresh, the primary objections taken on behalf of the defendant-respondents must first be recorded for the propounder has to overcome such objections if the probate is to be granted.
37. The defendants have urged four major grounds, with the first ground having two parts thereto. According to the defendants, the primary ground of their challenge is that the signatures of Paramesh in the alleged Will have not been proved. The two parts to such primary objection are that Section 69 of the Evidence Act was not available to the propounder since the condition precedent to moving from Section 68 of the Evidence Act to Section 69 thereof was not complied with by the propounder; and that, in any event, the requirements of Section 69 of the Evidence Act have not been met and the burden in such regard has not been discharged by the propounder. The second ground canvassed by the defendants is that none of the signatures of the three alleged attesting witnesses has been proved by the propounder, not even Partha's. The third ground taken by the defendants is that the suspicious circumstances that the facts give rise to, have not been dispelled by the propounder; and, in the absence of all suspicious circumstances being dispelled, probate cannot be granted. The final count of objection pertains to the perceived incorrect description of the parties and the anomaly in the limited grant to the daughters.
38. In the light of such objections, particularly the fourth ground, the Will and the contents thereof need to be seen in course of this fresh assessment of the matter upon the reasons in the judgment impugned being discarded.
39. The key document in the present case - the questioned instrument said to be of February 4, 1979 - is spread over four printed or typewritten pages. The first three pages appear to carry the signature of the maker of the document on the top left corner at a right angle to how the document is read. In addition, the first page of the document carries an additional signature of the maker towards the middle on the left margin. The fourth and final page of the document carries three words from the final paragraph of the grant; before the following writing, with the date and month (not the year) inserted in hand in the otherwise printed portion:
"IN WITNESS WHEREOF I have, to this my last Will set my hands on 4th February 1979." (Only "4th February" is in hand, the rest is printed)
40. To the right on the fourth page and just below the above quoted paragraph, appears the signature of the maker above an underline and the word "Testator" written below the line. To the immediate left of such signature, the following printed words are written just above the signatures of three persons and their addresses appearing to be, in each case, in the same hand as the respective signatures:
"Signed by the Testator as and for his last Will and Testament in the presence of us who in his presence and at his request and in our presence hereunto - subscribe our names as Witnesses -"
41. The signatures appear to be, in the relevant order, of Prithwish Chandra Roy, Nitish Chandra Roy and Partha Mukhopadhyay. Just below the signatures of the attesting witnesses, to the left of such final page of the document, the name, signature and address of the drafting Advocate and the name, signature and address of the typist also appear.
42. In the first paragraph of the document, the maker describes himself, furnishes his address and indicates the document to be his only Will. In the second paragraph, the maker refers to his wife, his son and the son's address and his two married daughters and their addresses. It is in the address of Debjani as appearing in such paragraph that the defendants smell a rat. For such reason, the reference to the two daughters and their addresses as appearing in such paragraph is set out:
"... I have also two married daughters. They are:- Smt. Debjani Sen, wife of Sri Milan Kumar Sen, resident of Senhati Colony at Behala and Sm. Sanjukta Mukherji, wife of Sri Partha Mukherji, residing now at - 92, Ballygunge Place, Calcutta - 19."
43. The third paragraph refers to the only specified asset of the maker at 29, Ballygunge Place. By the fourth paragraph of the document, Kalindi is appointed the sole executrix with Shyamal as an alternative in the event Kalindi pre- deceased the maker or was not willing to act as executor. In the fifth paragraph at the bottom of the second page of the document, the maker gives life interest of a half-share in the house to wife Kalindi which share would revert to son Shyamal after the death of the wife. The remaining half-share in the property is bequeathed absolutely to Shyamal, though Kalindi was to be entitled to the entire rents, profits and issues from the property during her lifetime. The sixth paragraph of the document, on the third page, refers to the annexe to the house and describes the same and names the tenants at the relevant point of time. The sixth paragraph of the document confers a limited right to the two married daughters of the maker in the following words before the residuary clause which leaves the rest and residue of the maker's estate to Shyamal:
"My daughters, if they are compelled to leave their marital homes for matrimonial differences will be entitled to a mere right of residence in the said annexe for their lives only without any power to alienate and let out the same or any part thereof or enjoy rents and profits thereof. The easement right of passage to the said annexe as enjoyed by the tenant is also given for their lives for user of the same as residence in the event as aforesaid. After the death of my daughters the said annexe will revert back to my son Sri Shyamal Kumar Sen, absolutely and forever."
44. Since it is the last ground of objection that the defendants have indicated in the context whereof the Will has been referred to and parts thereof quoted, it is such objection that is dealt with first before the other, more challenging grounds are taken up for consideration. The fourth objection of the defendants is that there is an incorrect description of Debjani's address and the anomaly in the limited grant in favour of the daughters since the right of residence is given only in respect of the annexe despite the annexe being occupied by a tenant. Elaborating on such objection, the defendants add that any prudent person would have been aware in 1979, when the document was allegedly executed, that it was well-nigh impossible to evict a tenant from any rented accommodation in view of the strict rent control regime of the time under the West Bengal Premises Tenancy Act, 1956. The defendants reason that if the purpose of the limited bequest to the daughters was for the daughters to have a shelter if their matrimonial homes were not available to them, a right in the occupied annexe could not have been devised by a right-thinking father sympathetic to the needs of his daughters.
45. There is no doubt that at the relevant point of time when the Will is said to have been executed, Debjani and husband Milan were firmly entrenched as regular residents at 29, Ballygunge Place and had no other place of residence. In such context, the contention of the defendants is appealing that Debjani would be described to be "resident of Senhati Colony at Behala" and not as residing at 29, Ballygunge Place. The oral evidence establishes beyond a shadow of doubt that Debjani and her husband moved into 29, Ballygunge Place shortly after Shyamal went to England in 1966 or within a few months thereafter. The evidence in such regard is that for sometime till 1966 Debjani and her husband were in Kalyani and, thereafter, they returned to Calcutta, possibly temporarily at 29, Ballygunge Place before permanently settling down there. Why, then, would a father, aware of such daughter's place of residence at the time of the execution of the Will, refer to Senhati Colony of Behala? The answer is found in the evidence of Debjani when she was asked in her cross-examination on behalf of the propounder whether her husband had any place of residence in Behala. Her answers to questions 339 and 340 were that her husband had a place of residence in Senhati Colony, Behala. Thus, the reference to Senhati Colony in Behala in the second paragraph of the document may not have been completely misplaced. Further, as submitted on behalf of the propounder, it is not only Debjani who is mentioned in such paragraph, but her husband is also named. The husband is identified by his original place of residence. It may also not be lost sight of that in the social milieu in this country, no father of a daughter would want to project his son-in-law as living in his house. This is also connected to the other aspect of objection as to the anomalous grant qua the annexe. The testator was aware that Debjani would not require the annexe, that Shyamal was settled in England and the relationship between the siblings may not have been perceived by the testator to be such that Shyamal would throw his sister out of the ancestral residence after exclusively inheriting it from his father.
46. It may also be remembered in this context that one had to appreciate the bequest from Paramesh's point of view. Paramesh was born in 1905 and was, thus, about 74 years of age at the time of execution of his Will, if the document is regarded as his Will. Even in the year 1979, though more than 20 years after the Hindu Succession Act, 1956, gender equality and women's rights were not perceived in the same light as they are today; certainly not by a 74-year-old. The Indian psyche has always been for the father to consider his duty to his daughter completed upon marrying her off and it is not unusual even in the present day and age for an Indian father to leave his ancestral property to his son, to the exclusion of his daughter or daughters. It was certainly not an unusual or unnatural bequest, particularly if it is seen with reference to the time when it was made and the mindset of the maker is appreciated. So much should suffice on the fourth ground of objection of the defendants at this stage. The matter will again receive attention in the overall perspective towards the end of the discussion in this judgment.
47. To move in the reverse order, the third objection taken by the defendants is next taken up for consideration. Such ground pertains to the perceived suspicious circumstances surrounding the Will. It must be clarified at the outset, that the suspicious circumstances that have been brought to the fore by the defendants are not the usual suspicious circumstances surrounding the execution of the Will. Ordinarily, the suspicious circumstances that may be raised are those that have a direct connection with the very execution of the Will and may be divided into three broad categories: circumstances surrounding the preparation of the Will; circumstances tending to call into question the capacity of the testator; and, circumstances tending to show that the free will of the testator may have been overborne by acts of coercion or fraud or undue influence. Generally, the propounder of the Will has the legal burden to demonstrate due execution of the Will with the full knowledge and approval of the testator possessing testamentary capacity. The propounder is aided in such a situation by a rebuttable presumption. Upon the propounder proving that the Will was duly executed and the requisite formalities were complied with, there is a presumption that the testator knew and approved of the contents of the document and had the necessary testamentary capacity. When suspicious circumstances are raised as to the very execution of the Will, the propounder of the Will reassumes the legal burden of proving knowledge and approval of the testator. In addition, if the suspicious circumstances relate to the mental capacity of the testator, it is for the propounder to establish testamentary capacity and such issues must be proved in accordance with the civil standard. When fraud or undue influence is alleged, however, the legal principle is that fraud and undue influence are to be treated as affirmative defence with the onus of proving the same on those who make such assertion.
48. Delay simpliciter, per se, may not be a suspicious circumstance; though the delay in applying for probate needs to be explained, particularly, when such delay is shown despite the propounder being aware of the existence of the Will especially where the propounder is also the principal beneficiary thereunder. Once delay in the surfacing of the Will is explained or when the propounder demonstrates that he may not have been aware of the existence of the Will long prior to applying for probate thereof, delay may be come irrelevant. In assessing whether the delay was deliberate or not, the conduct of the propounder, particularly of a propounder who is also a beneficiary under the Will, has to be looked into. It must also be remembered that delay in certain circumstances makes it more difficult for the execution of the Will to be proved by the propounder and no major beneficiary under a Will as propounder would want to deliberately delay in producing the Will or applying for probate thereof.
49. Nothing in the evidence shows that Shyamal was aware of the Will but deliberately suppressed it till after his mother's death. Indeed, the evidence is to the contrary. There is nothing to show that Paramesh apprised Shyamal of his Will or made over a copy thereof to Shyamal. Shyamal was only a visitor to this country and an infrequent boarder at 29, Ballygunge Place where he would be more like a guest than a regular resident. There is no evidence to suggest that Shyamal had been made aware of the Will by his mother, if his mother knew of its existence. It is, however, reasonable to proceed on the assumption that Kalindi may have been aware that her husband had executed his Will. But the assumption should stop here and imagination may not take over thereafter to run riot as to why Kalindi may not have informed Shyamal of the Will. Kalindi could not have been questioned in such regard at the trial and whatever reasons are imagined would be mere conjecture without having any factual or legal basis. More importantly, Shyamal's conduct prior to discovering the Will cannot be said to be inconsistent with his assertion that he had no knowledge of the Will till he discovered it in early 2005. After all, it has come out in the oral evidence that in 1999, at the behest of their mother, the three surviving siblings made an informal arrangement as to the future use of the ancestral property. And, it is Debjani's positive evidence that Shyamal had paid for the construction of the second floor after the unwritten family settlement of 1999 by which the mother and the three surviving children agreed that Sanjukta would have the ground floor, Shyamal the first floor and Debjani the second floor. The same would be evident from the answers given by Debjani in response to the questions 312 and 313 regarding the brother having incurred the expenditure and to questions 175 to 182 as to the family settlement of 1999.
50. If Shyamal was aware of the Will prior to 1999, Shyamal could scarcely have been expected to be a party to the family settlement or expend money for the construction of the second floor for Debjani and her husband to live there. That the family settlement was given effect to is also evident from Debjani's oral evidence since she said that Sanjukta's daughter and such daughter's husband occupied the ground floor of the premises in question and Debjani had shifted to the second floor after the death of her mother.
51. While on Debjani's oral evidence, certain other things evident therefrom may also be referred to. In response to the question 11 in her examination-in- chief as to her father's health in 1979, she said that he was keeping well; as was her mother at around the same time and that the parents enjoyed a good relationship. Debjani claimed to have come to live at the paternal house from December, 1966 and deciding to permanently stay there in 1968 after the death of the youngest sister. Debjani claimed that her relationship with Shyamal was good till she was served the citation in the probate proceedings. Debjani disowned the signature attributed to her father in the Will though she admitted that her father never signed in her presence and that she did not know her father's signature. She also admitted not to know her father's handwriting very well. That is evident from her answers to questions 72 and 73 in her examination-in-chief, though when asked to justify the basis of her opinion as to why it was not her father's signature, her response to question 77 was that there was no tremor in her father's signature; before she again admitted in response to question 84 that she had never seen her father sign any document in her presence. Her evidence on her father's signature was somewhat equivocal as she was not certain that the signature attributed to her father in the document of September 7, 1960 was her father's signature. Her answers to questions 307 to 311 are relevant in such context.
52. On the other aspect of suspicion that has been raised by the defendants pertaining to the discovery of the Will from an almirah that previously belonged to Kalindi, Debjani's evidence varies from denial to possible acceptance or, at the very least, a non-committal stand. Debjani's evidence shows that there were at least two wooden almirahs and an iron safe in the room used by the mother. It was Debjani's positive case that upon brother Shyamal saying that the wooden almirahs needed to be polished, Debjani took it upon herself to clear out the two wooden almirahs before she handed over a bunch of keys to her brother which included the keys to the almirahs and the drawers therein and the key to the iron safe. Though Debjani started by saying that there was nothing in her mother's principal almirah, from which Shyamal allegedly discovered the Will, after Debjani cleared the contents thereof for such almirah to be polished, in response to question 148 in course of her examination-in-chief she admitted that there were a few letters and a death certificate still left in the almirah: "The original death certificate as well as a few xerox copies of it were kept in the almirah." Debjani's answers to questions 297 to 303, in course of her cross-examination, were not clear amidst the underlying suggestions in the questions that while taking out the clothes and other belongings from the mother's main almirah, Debjani may not have been careful in opening all the drawers and emptying out the same. Debjani claimed that the drawers were opened in front of everybody and there was nothing inside "apart from some letters and death certificate" (Q.
297). On being asked who were present when the drawers had been opened since she claimed that they had been opened in front of everybody, her response was, "I do not exactly recollect" (Q. 298). As to who opened the drawers, Debjani's answer to question 301 was even more vague. Though Debjani asserted in her written statement that Shyamal had manufactured the Will, when asked in course of her cross-examination as to who may have manufactured the Will, she responded thus to question 318: "I cannot say. I do not know."
53. The final feature of Debjani's evidence is that she claimed not to be aware of Nitish Chandra Roy or the connection of such person with her parents. Sister Sanjukta's evidence in respect of Nitish was the same. Nitish was said to be the second attesting witness to the Will.
54. It may be noticed at this stage that there was no allegation of Shyamal having coerced Paramesh or exerted undue influence or otherwise prevailed on him to bequeath Paramesh's estate to Shyamal. It is nobody's case that Paramesh was old or infirm in 1979 or that he did not possess the physical or mental capacity to execute his Will or be aware of the contents of any document that he would sign in 1979. In other words, no suspicious circumstances have been cited in connection with the execution of the Will, whether in its preparation or as to the capacity of the testator or as to the absence of free will on his part in such exercise.
55. It is now the second ground of objection taken by the defendants that needs to be seen. They claim that Partha's signature as an attesting witness has not been proved. Though there is no discussion in the impugned judgment on such aspect of the matter, there is a report by handwriting expert Rajani Kanta Das that suggests that the signature attributed to Partha Mukhopadhyay in the questioned document of February 4, 1979 matches with the admitted signatures of Partha in the papers pertaining to the grant of probate of the Will of Partha's father Kali Kumar Mukhopadhyay. Partha's wife Sanjukta has accepted the contents of the documents exhibited in connection with Kali Kumar Mukhopadhyay's probate case to be correct. Her answers in such regard at questions 209 to 217 are clear and unequivocal. Thus, there is no dispute that handwriting expert Rajani Kanta Das was given an appropriate admitted document in which Partha's signature appeared, for such expert to render an opinion whether the signature attributed to Partha as the third attesting witness in the questioned document of February 4, 1979 was that of Partha.
56. Both Rajani Kanta and another handwriting expert, Harish Chandra, were asked far too many questions in the cross-examination than was necessary, even if it be accepted that the attempt was to break such witnesses down for them to confess that their opinions had been procured by Shyamal on extraneous considerations. But these were thick-skinned regulars who were used to insults, insinuation and innuendo by lawyers in cross-examination and both the witnesses held their ground to corroborate, justify and substantiate their respective reports.
57. Rajani Kanta was steadfast in maintaining that the admitted signatures of Partha in the papers pertaining to the probate of his father's Will matched with the signature of Partha as attesting witness in the Will of his father-in-law of February 4, 1979. The various features and technical explanations, together with the normal variations, have been satisfactorily established. There was no occasion to dismiss Rajani Kanta's evidence and his expert opinion without referring to the same in the judgment impugned, though the trial court may have felt such discussion to be superfluous and unnecessary once it found that the primary signatures - those of the testator - had not been proved.
58. There was also a side-show to Partha's signature in course of the trial. Shyamal was confronted with Partha's passport during Shyamal's cross- examination. Shyamal could not deny that it was Partha's passport and Shyamal fairly admitted that Partha's signature in Partha's passport did not match the signature attributed to Partha as attesting witness in Paramesh's Will. Though much is sought to be made out by the defendants of such matter, it pales into insignificance since Rajani Kanta gave his expert opinion on Partha's signature on the basis of Partha's undeniable and admitted signatures. All that comes out of such side-show is that Partha may have had a variant to his signature or that Partha had signed differently in his passport than his usual signature.
59. Section 45 of the Evidence Act pertains to opinions of experts and mandates that when the court has to form an opinion as to the identity of handwriting, the opinions upon that point of persons specially skilled in questions as to identity of handwriting are relevant facts. Section 45 of the Evidence Act does not make the opinion binding on the court and it is open to a court to discard an expert opinion by giving cogent reasons therefor. It is an accepted legal principle that in matters of handwriting and signatures, it is the ultimate opinion of the court that counts, notwithstanding contrary opinions of experts. Significantly, in the judgment impugned, the trial court did not express its opinion on the veracity of the signatures of Paramesh or Partha as appearing in the questioned document. The trial court merely referred to one expert's opinion on Paramesh's signature and accepted one of the two contrary views expressed by such expert without indicating why the contrary view had to be discarded or the entire evidence of the other expert witness on such aspect had to be completely disregarded. In respect of Partha's signature, as noticed above, the trial court merely brushed aside the expert opinion without referring to it or indicating any reasons therefor.
60. The consideration now comes down to the primary issue: whether Paramesh executed the Will and whether the signatures attributed to him in the questioned document are his. The related aspects, particularly the law pertaining to the applicability of Section 69 of the Evidence Act, is built in to such issue.
61. Section 63 of the Succession Act lays down the rules for executing a Will and, unless such rules are complied with, a document pretending or appearing to be a Will cannot be regarded as such. The three rules are somewhat complex. Since this is not an academic discussion and is confined to the facts of a particular case, the applicability of the rules has to be seen in the context of what has been presented here. It is the fourth and the final page of the questioned document of February 4, 1979, which has been substantially described earlier in this judgment, that is of paramount importance in testing the document against the applicable rules in Section 63 of the Succession Act. There is no rule that every page of a Will has to be signed, but a practice has developed in such regard by way of abundant caution. In this case, the executant's signature appears twice on the first page and once each in the following three pages of the four-page document. In addition, the signatures of the three attesting witnesses appear under a printed writing quoted earlier which implies that if the attesting witnesses did sign the document they acknowledged that the testator signed the document in their presence and the attesting witnesses also signed the document at the testator's request and in his presence.
62. The two-line last paragraph of the declaration in the document, appearing immediately above the executant's signature on the fourth page refers to the document being "my last Will". If the signature of the executant is found to be of Paramesh and the signature of one of the attesting witnesses is found to be of the person to whom it is attributed, due execution of the Will would have been established. If the four signatures on the three previous pages are also confirmed to be of Paramesh, there would be no doubt as to the nature, purpose and veracity of the document and its contents.
63. In the context of how the fourth page of the questioned document presents itself, including whatever is printed or handwritten therein, the tests under Section 63 of the Succession Act would be complied upon the following three conditions being met: (i) the testator's signature being proved; (ii) the testator's signature being found to have been so placed that it appears that the signature was intended to give effect to the writing as a Will; and, (iii) the Will being proved to have been attested by two or more witnesses, each of whom having seen the testator sign the Will or having received from the testator a personal acknowledgement of his signature and each of the witnesses having signed the Will in the presence of the testator.
64. In as much as Section 63(c) of the Succession Act requires a Will to be attested, one has next to travel to Section 68 of the Evidence Act to see how proof of execution of a document has to be established if such document is required by law to be attested. Section 68 of the Evidence Act prohibits a document that is required by law to be attested to be used as evidence until one attesting witness 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". The proviso to the provision does not apply to a Will.
65. A Will becomes effective only upon the death of the testator. The attestation of a Will is, thus, of significance since the word of the executant of a Will is no longer available when his handwriting or signature is called into question. Again, it is not necessary for an attesting witness to be aware of the contents of the document, even if it is a Will; for, the purpose of attestation is confined to the confirmation of the executant's signature on the document and no more. Thus, on a combined reading of Section 63 of the Succession Act and Section 68 of the Evidence Act, it was for the propounder to establish, in the context of the facts as they presented themselves in this case in the backdrop of the fourth page of the questioned document, that Paramesh signed the Will, that Paramesh's signature was so placed that it was intended to give effect to the writing of his Will and that the attestation of the Will was duly proved.
66. While on the issue of whether the questioned document has been proved to be the Will of Paramesh, it may be worthwhile to recount the first principles of evidence and when it is necessary to prove something. A fact is said to be proved when, after considering the matter before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. It is equally elementary that admission of a fact is the best form of evidence though such admission may not be accepted by the court or even an admission in certain cases may not fulfil the legal requirements.
67. In Shyamal's petition for grant of probate, paragraph 8 named the three attesting witnesses, though Nitish Chandra Roy being described as the brother- in-law of the alleged testator was clearly erroneous. Paragraph 9 of the petition went on to assert that "all the abovenamed three attesting witnesses to the said last Will dated 4th February, 1979 have expired". In addition, it was stated that Advocate who drafted the Will had also died. At paragraph 33 of Debjani's affidavit in support of her caveat, which came to be treated as her written statement, she claimed as follows:
"33. ... I also state that it is interesting to note that the names of the attesting witnesses are of persons who have all died prior to the application for grant of probate. Even the names (sic, name) of the alleged Advocate said to have drafted the said Will has since expired. I state that the said names have been utilized by my brother in order to avoid cross-examination of the witnesses as he has himself fabricated the Will by forging the signature of my deceased father."
68. Similarly, in Sanjukta's written statement, it was accepted that all the attesting witnesses had died as will be evident from paragraph 25 thereof:
"25. I further state that execution of the alleged Will is surrounded by highly suspicious circumstances. I state that knowing that the Will is fabricated, the instant probate Application has been filed only subsequent to the demise of the alleged Witnesses and in particular after demise of our mother, as otherwise had the same been so done in her lifetime, my deceased mother would have undoubtedly refuted such claims of the alleged Will of my deceased father. Even the name of the alleged Advocate said to have drafted the said Will has been claimed to have expired. This has been done intentionally so as to avoid due examinations by the Hon'ble Court."
69. Of the three attesting witnesses, there was no confusion as to the first and third; as it was the admitted position even in the objectors' evidence that Kalindi's brother Prithwish and Sanjukta's husband Partha had died. Though the defendants' individual written statements admitted the death of Nitish Chandra Roy, in course of their oral evidence, both Debjani and Sanjukta denied having any recollection of such person and as to his identity and connection with the family. It was also clear that Shyamal did not know who Nitish was and Shyamal had erroneously described Nitish to be another brother-in-law of the testator. It is equally possible that Shyamal was callous in not checking the petition for grant of probate before appending the signature thereto since it is hardly expected of Shyamal, despite his long stint away from the country, to not remember whether or not a person was his maternal uncle. Though it is not important or even relevant, what appears to have happened is that the draftsman of the petition for grant of probate found the name Nitish to somewhat rhyme with Prithwish and assumed, since the other two parts of the names were common, that the two may have been brothers.
70. It was understandable for Shyamal, in course of oral evidence, to initially not recognise Nitish or Nitish's connection with the family or the alleged testator since Shyamal had been away from the country by then for more than 40 years. It is also apparent that initially, Shyamal did not make any attempt to ascertain whether Nitish was dead or alive and his assertion to the effect that Nitish was dead may have been presumptuous without being rooted to anything cogent in such regard. Even in course of Shyamal's evidence, he claimed not no know of Nitish or whether Nitish was dead but Shyamal did assert later in his evidence that Nitish had died in 1983. In response to a question by the court in the midst of Shyamal's cross-examination, he said that all the witnesses were dead by the time he applied for probate in the year 2005. Upon the court putting question 375 to him to the effect that he had earlier deposed that he did not know when one of the attesting witnesses had died, he replied that such attesting witness had died in the year 1983. He had already testified that maternal uncle Prithwish and brother-in-law Partha had already died by the time the probate was applied for, but in response to question 36 in his examination-in-chief, pertaining to whether Nitish was alive, he had said: "He is not alive as far as know." In addition to Shyamal's specific response as to Nitish's year of death, following a question by the court he also indicated that he obtained such information from Sanjukta's daughter.
71. In such state of the evidence, keeping in mind that Shyamal may have taken a shot in the dark by asserting in his petition for grant of probate that Nitish was dead, that he maintained subsequently that Nitish was dead but could not furnish any basis for such information and, finally, Shyamal's assertion of Nitish's death to be in 1983 on the basis of information received from Sanjukta's daughter, it was incumbent on the defendants to demonstrate that Nitish was alive and capable of giving evidence, but Shyamal as propounder had failed in his duty in such regard. The defendants did not opt to demonstrate that Nitish was alive or even discredit Shyamal's information as to Nitish's death. It also comes through from Shyamal's evidence that Nitish was a colleague or an acquaintance of mother Kalindi. If such was the case, daughters Debjani and Sanjukta ought to have been aware of Nitish and the fact that their answers to the queries on Nitish posed to them were monosyllabic, their evidence in such regard is somehow unconvincing.
72. It is the similar case with the defendants' reference to Order XVI of the Code of Civil Procedure, 1908 and how to summon a witness or persuade a witness to testify before a court. The argument of the defendants in such regard is futile in the factual milieu of Nitish being dead at the time of the trial without any effort on the defendants' part to show otherwise.
73. The Evidence Act of 1872 vintage has survived the test of time as it is founded on fundamental principles of common sense, logic and prudence and wedded to the canons of natural justice. Except for some minor amendments, apart from the introduction of the recent provisions as to electronic evidence, the body of the statute has remained unchanged from the days of the horse-drawn carriages to this age of attempts at colonising suitable exo-planets. It is remarkable that the draftsman devised the strict rules for proving execution of a document that required attestation but had the vision to relax the same in Section 69 of the Act to prevent undue hardship in particular situations. However, a propounder of a Will cannot leap-frog into Section 69 of the Evidence Act without first exhausting Section 68 thereof. The passage from Section 68 of the Evidence Act to Section 69 thereof is only upon a propounder establishing that there is no attesting witness alive or capable of giving evidence. This is exactly where the defendants join issue to suggest that the propounder in this case has not affirmatively established that all three witnesses had died prior to the trial of the action. The trial court found that such issue became irrelevant upon the testator's signatures in the questioned document not being proved.
74. The stand taken by the propounder, particularly the casual approach as to Nitish's death, was understandable. For good or bad, the propounder had asserted in his petition for grant that all three attesting witnesses were dead. For all it was worth, the defendants made positive individual statements in their affidavits in support of the caveats that all the attesting witnesses were dead. The context in which the relevant statements were made by the defendants was not by assuming Shyamal's assertion in the petition for grant to be correct and arguing that Shyamal had created a more convenient situation for him, as counsel for the defendants contends. The individual statements of Debjani and Sanjukta in such regard were clear and categorical, not based on assuming Shyamal's averment in such regard to be correct and certainly not in a mocking or ironical sense. Issues arise upon certain assertions being made and such assertions being denied or disputed. There was no denial as to the factum of Nitish's death in the defendants' individual written statements for the matter assuming any significance or requiring any protracted discussion. Clearly, the defendants were seeking to make out a case in their oral evidence which was contrary to their pleadings. Such a position can neither be countenanced nor encouraged. On the basis of the admitted position on the pleadings and upon Shyamal corroborating his stand in such regard from the box, there was little room to doubt that all attesting witnesses were dead by the time the matter proceeded to trial and the attestation was required to be proved otherwise than possible under Section 68 of the Evidence Act.
75. The link between the Section 68 of the Evidence Act and the immediate next provision is also brought out by the use of the word "such" in the opening expression of Section 69. In its part material for the present purpose, Section 69 of the Evidence Act provides that if no attesting witness of the kind referred to Section 68 of the Act can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing of the document is in the handwriting of that person. It is in such a situation that the endeavor of the propounder has been to prove due execution of the Will by proving Paramesh's signature and by proving Partha's signature and even discharging the burden under the third limb of Section 63 of the Succession Act by referring to the printed words appearing immediately above the signatures of the attesting witnesses as quoted above.
76. If Partha's signature as attesting witness in the questioned document is proved, it is only the signature of the executant that remains to be proved for the propounder to carry the Will through. Shyamal has proved his father's signatures on the questioned document, but he has, understandably, not been particularly aggressive in such regard. His evidence on such aspect is laced with his admission that he was away from the country for a long time and, as a consequence, not overly familiar with his father's handwriting or signature but only aware of the features of the father's handwriting and signature. Debjani initially claimed in course of her examination-in-chief that the signatures ascribed to Paramesh in the questioned document were not her father's, but she later admitted that she had not seen her father sign or even write in her presence except when the father would set sums for the children in their early school- days. Some of the answers that Debjani gave in such regard may amount to a grudging acceptance of the signature or the downright lack of knowledge of the father's handwriting and signature. Debjani's answers to questions 370 to 376 as put by the court would certainly not inspire any right-thinking person to accept her denial of her father's signature in preference to the more natural line of answering evident from Shyamal's oral evidence. Though Sanjukta maintained that none of the signatures in the questioned document was that of Paramesh, her overall testimony has to be seen and appreciated in the backdrop of her, initially, ducking and dodging questions regarding Partha's signature in the papers pertaining to the probate proceedings relating to Kali Kumar Mukhopadhyay's Will, but later falling in line in submissive acceptance thereof. There is a jarring note to Sanjukta's testimony that ought to express itself loudly enough even when read in cold print and without having the advantage of seeing her demeanour.
77. At the end of the day, it is oath against oath in respect of Paramesh's signatures on the questioned document, if the expert opinions are not immediately looked into. Shyamal has imperfect recollection of his father's handwriting since he may not have been exposed to the same for some 40 years; but again, Shyamal was 30 when he left for England and the normal acquaintance of a son with the father's handwriting should be well entrenched by such age, no matter how distant the memory fades several decades thereafter. It ought to have been the same with Debjani and Sanjukta since the story of the Sen family as it comes out from the evidence does not speak much of letters being written or writing in English being the one of the foremost activities of the patriarch. So much is evident: that Shyamal acknowledged the signatures in the questioned document to be his father's since that was expected of him in this drama and Debjani and Sanjukta played out their roles, albeit with a lesser degree of conviction.
78. It is then the expert opinions of Harish Chandra Ganguly and Purushottam Chatterjee that the court has to look into before the court discharges its role by looking at the signatures attributed to Paramesh in the questioned document and indicating its conclusion, with the expert opinions being relevant factors taken into consideration. Harish Chandra was all of 80 when he climbed the box in this matter to testify in support of his report of August 23, 2007. He recollected that on August 13, 2007 he was handed over the original of the questioned document of February 4, 1979 in four sheets in the presence of Advocates representing the three parties along with the original deed of settlement of 1960. In his elaborate cross-examination, he satisfactorily dispelled the doubts as to his eye-sight and ability and proceeded to field even the truculent questions with aplomb. He referred to the questioned document and the admitted document being 19 years apart and the fact that he had factored in such difference in time in furnishing his opinion. Unlike Purushottam Chatterjee, who initially denied having given an opinion on the same Will before having to eat his words later, Harish Chandra was forthright in his cross-examination when asked if he had given a previous report in respect of the same questioned document. He confirmed that his original finding was the same as his subsequent finding. On being questioned why he did not see an admitted document executed closer in point of time to the questioned document, he replied that it was not his brief so to do and that it was otherwise unnecessary since he had the material to form and furnish his opinion. Nothing in the cross- examination of Harish Chandra made him waver nor does his testimony give rise to any doubt in the mind of the court.
79. Purushottam, on the other hand, dwelt on the nature of the handwriting evident from the five signatures attributed to Paramesh in the questioned document before he felt it proper to unilaterally ask the defendants to furnish him a document containing the admitted signature of the testator. On the basis of such material that he solicited and obtained, he opined that the five signatures apparently of the executant were not those of Paramesh. Unlike Harish Chandra, who on August 13, 2007 compared the original questioned document with the original admitted document, Purushottam did not deem it necessary to compare the original questioned document with the original alleged affidavit of Paramesh affirmed on August 20, 1980, though nothing stopped him from so doing. Purushottam's answers to question 89 to 92 posed by the court in the midst of his cross-examination are telling. Between question 97 and question 103 in course of Purushottam's cross-examination, he was repeatedly asked whether he had any occasion, prior to his appointment by court on March 16, 2009, to inspect the questioned document, whether in original or by way of a photocopy thereof. Despite his stoical denial, when confronted with a document of March 14, 2005, he admitted that the document was his report, that the first annexure to the report of March 14, 2005 was a xerox copy of the signatures of the executant as appearing in the Will, that he had compared such signatures with the signature of Paramesh in the settlement of September 7, 1960 and that the report of March 14, 2005 was issued under his signature. Such report, of course, indicated that Paramesh had signed his Will. The following questions put to Purushottam and his answers thereto are indispensable in the context of assessing Purushottam's credibility and the extent of reliance that can be placed on his contrary opinion of 2009:
"117. I take it that the contents of your report dated 14th March, 2005 are all true and correct ?/ So far the document supplied to me is correct.
"118. Are the contents of the report dated 14th March, 2005 which is before you are correct ?/ Yes."
80. Since Purushottam stood by his earlier report of March 14, 2005 - as that is the inevitable inference from his answers quoted above - the veracity of his contrary report of 2009 is destroyed. In any event, Purushottam's contrary report was based on the comparison of the signatures attributed to Paramesh in the questioned document with the alleged signature of Paramesh in the affidavit said to have been made by Paramesh on August 20,1980. The alleged affidavit of Paramesh of the year 1980 was not tendered into evidence and Paramesh's alleged signature therein cannot be regarded as his admitted signature since the document was untested and Shyamal did not get a chance to question such document. Further, as already discussed, the presumption under Section 90 of the Evidence Act could not be availed of in respect of such document of 1980 without the condition in such provision being first complied with. It is, thus, that Purushottam's expert opinion has to be discarded; which leaves Harish Chandra's unwavering testimony to be a relevant factor, in accordance with Section 45 of the Evidence Act, to be taken into consideration to assess whether it was Paramesh who signed five times in the questioned document.
81. A visual appreciation of the executant's signature in the questioned document by comparing it to his admitted signature in the 1960 document leaves little room for doubt. The signatures attributed to Paramesh Chandra Sen in the document of February 4, 1979 appear clearly to the court to be those of the executant and matching his admitted signature in the document of 1960.
82. Likewise, the signature of Partha as attesting witness to Paramesh's Will appears to the court to be that of the same person who applied for the probate of Kali Kumar Mukhopadhyay's Will in Probate Case No.391 of 1986 before the District Delegate at Alipore. Partha's signature in his passport was different, but that would not prompt the court to doubt his signature as attesting witness to Paramesh's Will. Rajani Kanta's expert opinion, which has remained unshaken in cross-examination, is taken as a relevant consideration to arrive at such conclusion.
83. Since Paramesh has been found to have executed his Will of February 4, 1979 and Partha has been found to have signed as an attesting witness thereto, all three limbs of Section 63 of the Succession Act appear to be satisfied for it to be concluded that the due execution of Paramesh's Will of February 4, 1979 has been proved and established. The opening line on the fourth page of the Will and the reference in the immediately succeeding paragraph to the document being "my last Will" just above the testator's signature take care of the first two limbs of Section 63 of the Succession Act. The third limb is complied with since Partha's signature appears below the printed or typewritten declaration that implies that the testator signed the document in the presence of such attesting witness and the attesting witness also signed the document at the testator's request and in his presence. Indeed, since Partha's was the last signature as attesting witness and below the signatures of the two other attesting witnesses, it gives greater credence to the attestation and the due execution of the Will.
84. The decision-making process in this case is based on the facts as they presented themselves and as apparent from the documentary and oral evidence. Several judgments have been carried by the parties to throw light on the applicable legal principles and such authorities need now to be looked into, if only to verify that the tests applied to come to the above conclusion have been in accordance with the law applicable to the present facts.
85. The defendants have first referred to Tristram and Coote's Probate Practice (15th Ed.) for the proposition of law recognised at page 29 thereof. The venerable text instructs that when all the attesting witnesses are dead or are unable to give the required information, or have left the country or have absconded or have been applied to and refused to make an affidavit, an affidavit of some other person who may have been present at the execution of the Will or codicil would be required; but if no affidavit of any such person can be obtained, evidence on affidavit must be procured of the fact and of the handwriting of the deceased and the subscribing witnesses, and also of any circumstances which may raise a presumption in favour of due execution.
86. However, the propounder has relied on a later edition of the text (21st Ed.) published in 1960. The discussion on the subject appears to make a substantial departure from the earlier position as evident from page 48 of the later publication:
"If it is sworn that both witnesses are dead, or there is satisfactory evidence that they cannot be traced, and that so far as is known no other person was present at the time of execution of the will, the consents of the persons prejudiced (if they are all sui juris) to the admission of the will to proof will normally be accepted. But if the persons prejudiced are not all sui juris, or do not all consent, or if there is anything in the will which calls for enquiry, the matter should be referred to a registrar for his directions.
"If there is no person available to make an affidavit of due execution, evidence of the testator's handwriting should be provided (form of affidavit, No. 9). If, in addition, evidence of the handwriting of the witnesses is available, this has often been accepted, in the absence of special features, as sufficient to raise a presumption in favour of due execution."
87. The defendants have relied on a judgment reported at 35 Cal LJ 473 (Sudhanya Kumar Singha v. Gour Chandra Pal) for the acceptance thereof of a passage from Taylor on Evidence (11th Ed.) for the proposition that the production of an attesting witness, if available, is indispensable to prove the execution of a document which is required by law to be attested. The relevant passage from the text-book is quoted at page 477 of the report:
"The general rule which requires the production of an attesting witness, when the validity of an instrument depends upon its formal attestation, is so inexorable, that it applies even to a cancelled or a burnt deed, as also to one, the execution of which is admitted by the party to it and that too, though such admission be deliberately made, either in open Court or in a subsequent agreement or even in a sworn answer to interrogatories delivered to the party in the cause. A party in a cause who is called as a witness by his opponent, cannot be required to prove the execution by himself of an instrument, to the validity of which attestation is requisite, so long as the attesting witness is capable of being called. So also the attesting witness must be called, though subsequently to the execution of the deed he has become blind, and the Court will not dispense with his presence on account of illness, however severe. If the indisposition of the witness be of long-standing the party requiring his evidence should have applied for power to examine him before a commissioner or examiner, and if he be taken suddenly ill a motion must be made to postpone the trial."(Taylor on Evidence (11th Ed) Section 1843)
88. The propounder, however, refers to Taylor's A Treatise on the Law of Evidence (from the English 8th Ed.). Section 1843 of such earlier edition refers to the applicable rule of evidence in almost similar lines as quoted in the immediate preceding paragraph, but such passage also carries the following footnote, which makes the rule inapplicable in India:
"A different rule prevails in India, and the Ind Evd Act of 1872 enacts, in Section 70, that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested."
It may also be noticed in this context that the old Calcutta judgment in Sudhanya Kumar Singha did not pertain to a Will. The discussion in such judgment on Sections 68 and 70 of the Evidence Act was in the context of mortgage deeds in a suit for recovery of possession in respect of an immovable property.
89. The defendants have next referred to a Division Bench judgment of this court reported at AIR 1945 Cal 350 (Amal Sankar Sen v. The Dacca Co-operative Housing Society Limited) where the discussion, at page 352 of the report, revolved around Sections 68 and 69 of the Evidence Act. It was held that in order that Section 69 of the Evidence Act may be applied, it must be demonstrated that the attesting witnesses are not available; the mere fact that the only surviving attesting witness is considered hostile will not relieve the plaintiff of the duty of the examination of such witness. That was again a case pertaining to a mortgage deed where the court held that in such a situation when the plaintiff "does move the Court (for processes under Order XVI Rule 10 of the Code) but the Court refuses the process asked for we do not see why S. 69, Evidence Act, cannot be invoked." Indeed, the Division Bench went on to record that if Section 69 of the Evidence Act is not available to the plaintiff in such a situation, it "would place the plaintiff in an impossible position ... it would only mean a dismissal of the suit ...".
90. In the judgment reported at (2017) SCC Online Madras 587 (N. Durga Bai v. C. S. Pandari Bai), next cited by the defendants, a Single Judge held that the mere assertion by the propounder that the attesting witnesses were dead without establishing the factum of the deaths by producing death certificates may not suffice. A Supreme Court judgment on the same aspect reported at (2008) 14 SCC 754 (Babu Singh v. Ram Sahai alias Ram Singh) has been brought by the defendants for the proposition that the mere statement of counsel for the plaintiff that the only surviving attesting witness was won over by the opposite party was not sufficient to prove his absence. It is evident that in both N. Durga Bai and Babu Singh the court did not accept that all the attesting witnesses had died. In N. Durga Bai there was no evidence that all the attesting witnesses had died and in Babu Singh it was the admitted position that at least one attesting witness was alive though it was alleged by the plaintiff that such attesting witness had been won over by the other party.
91. In the present case there is no doubt that at the time of the trial the three attesting witnesses were dead; and even as to the third attesting witness, Nitish, the written statements of both Debjani and Sanjukta accepted his death, although a contrary case was sought to be made out in the oral evidence of the two sisters. Though Shyamal asserted in the petition for grant that all the three witnesses were dead, he was unsure as to the date of death of Nitish in course of his initial oral evidence; but, ultimately, he stated that Nitish had died in 1983 and the information as to Nitish's death was obtained by him from Sanjukta's daughter. In such a scenario, when the defendants did not attempt to cast any doubt on Shyamal testimony in such regard or otherwise demonstrate that Nitish was alive, the defendants' submission on such aspect appears to be somewhat of a red herring.
92. On the aspect of handwriting, the defendants have referred to a judgment reported at AIR 1967 SC 1326 (Fakhruddin v. State of Madhya Pradesh). The judgment is instructive in laying down guidelines as to how the court will treat expert evidence as to handwriting and undertake the task of making the comparison itself. The following passage from another Supreme Court judgment as quoted at paragraph 8 of the report is useful in the present context:
"(8). ... 'a Court is competent to compare disputed writings of person with others which are admitted or proved to be his writings. It may not be safe for a Court to record a finding about a person's writing in certain document merely on the basis of comparison, but a Court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of handwriting expert is also relevant in view of S. 45 of the Evidence Act but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not.' ..."
In the present case, the assessment of Paramesh's signatures in the Will has been made by referring to the expert opinion of Harish Chandra after discarding Purushottam's contrary views. While doing so, the court has also looked into Paramesh's signatures in the Will and compared them with the signature in the admitted document of 1960 to be satisfied that Harish Chandra's opinion is reliable enough for it to be accepted. A similar methodology had been adopted in finding Partha's signature as an attesting witness to also be genuine.
93. The defendants have also carried a judgment reported at (2009) 3 SCC 687 (Bharpur Singh v. Shamsher Singh) regarding suspicious circumstances and the factors which should be taken into consideration for determination of due execution when suspicious circumstances exist surrounding the execution of the Will. The Supreme Court held in that case that the propounder must prove that the Will was signed by the testator in a sound and disposing state of mind, duly understanding the nature and effect of the disposition and, when the evidence that is adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, a court would be justified in rendering a finding in favour of the propounder. On facts, however, the principles recognised in the judgment do not have any manner of application in the present case. As noticed above, no suspicious circumstance has been raised in the present case relating to the execution of the Will. Paramesh was healthy in body and mind in 1979 and such is the evidence of his daughters. Shyamal was not around for most of the time to influence his father or prevail on him to make a bequest in the son's favour and to the exclusion of the daughters. Shyamal did not take any initiative in having his father make out a Will or in arranging any lawyer or getting Shyamal's cronies as attesting witnesses. There is no case of suspicious circumstances made out by the defendants.
94. Apropos the passage from Tristram and Coote cited by the defendants, the propounder has referred to the preface to the first edition of such text which was published in 1858. The propounder says that the law in India has been otherwise from 1865 when the Indian Succession Act was first enacted. According to the propounder, Section 50 of the 1865 Act remains almost unchanged in Section 63 of the 1925 Act. The substance of the propounder's submission in such regard is that the common law in England as it stood prior to the law in India being codified with the introduction of the 1865 Act, would be inapplicable.
95. In fine, it must be said that where hard evidence points to something, perceptions or impressions cannot be a substitute in the assessment of the matter. The propounder in this case had an onerous duty to discharge and the fact that the Will was discovered nearly 20 years after the death of the testator should not be held against the propounder since it made the propounder's duty even more difficult to establish due execution of the Will.
96. Amidst the mundane and the predictable, there were two key areas that were adroitly highlighted by counsel for the propounder after sifting through the voluminous evidence. It has been appropriately submitted on behalf of the propounder that despite the defendants' protracted endeavour to discredit Shyamal and Shyamal's version of how the Will came to be discovered, the defendants failed to cast any doubt on the 1960 document pertaining to the settlement between Paramesh and Naresh which contained Paramesh's admitted signature. It is demonstrated on behalf of the propounder that despite Shyamal asserting that he discovered such 1960 document from the same almirah in which he found the Will, there was no suggestion to the contrary put to Shyamal, albeit Shyamal not availing of the presumption under Section 90 of the Evidence Act in respect of such document. The evidence shows that the veracity of such document of 1960 has been accepted and Paramesh's signature in such document is the basis for Harish Chandra's credible opinion as to Paramesh's signature in the Will. The connected aspect is equally important. If Shyamal could find the 1960 document in the almirah, it is possible that even the Will was in such almirah amid the death certificates and photocopies thereof that Debjani admitted to have left behind in the almirah after otherwise cleaning it out. The other aspect is that though the defendants doubted the signatures and handwriting appearing in the Will, they did not question what was printed or typed in the document, including the declaration appearing to the left of the testator's signature and just above the signatures of three attesting witnesses quoted earlier in this judgment. It is justifiably submitted on behalf of the propounder-appellant that not only did the propounder meet the tests under Section 69 of the Evidence Act, but the propounder also proved the third - and most difficult - limb of Section 63 of the Succession Act upon Partha's signature being proved and such signature being below the relevant declaration.
97. Now that the questioned document of February 4, 1979 is found and held to be the last Will and testament of Paramesh, a final word needs to be put in regarding that aspect of the matter that the defendants have flaunted to be the most suspicious and the most mysterious. It pertains to Shyamal's discovery of the Will and his immediate conduct thereafter of not bringing the matter to the notice of his sisters but rushing to an unnamed acquaintance for legal advice and applying for probate even before the sisters got any wind of the document or its discovery. From where Shyamal saw the document and the conduct of his sisters immediately upon discovering the Will, he may have been stunned and even felt betrayed and hurt. From how Shyamal perceived the world at that moment, it was not unusual for him not to have confronted his sisters with the document. He may have assumed that his mother must have known of the Will, but she pushed him into the settlement of 1999, nonetheless. He also may have suspected that Debjani was aware of the document as she was the constant companion of the mother and living under the same roof for a long time. Shyamal may also have felt that Sanjukta was also aware of the Will since Partha was an attesting witness to such document. From where Shyamal stood at such point of time, he could scarcely be expected to carry the document to his sisters and ask them of its veracity or of their reaction to the same.
98. In the light of the aforesaid, it is found that the propounder-appellant has been successful in proving the due execution of the document as a Will in accordance with the applicable law. As a consequence, the judgment and decree impugned dated June 6, 2017 is set aside. The testamentary suit is decreed in favour of the propounder and it is hereby directed that the probate of the last Will of Paramesh Chandra Sen of February 4, 1979 be granted in favour of executor Shyamal Kumar Sen.
99. APD 138 of 2018 and Testamentary Suit No.6 of 2018 stand allowed.
100. Even though it is more likely than not that either Debjani or Sanjukta or both may have been aware of the Will, since such fact has not been conclusively established, they are spared the costs.
101. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.) I agree.
(Suvra Ghosh, J.)