Calcutta High Court (Appellete Side)
Krishna @ Krishna Lal Ghosh vs Ashoke Ranjan Dutta on 31 July, 2015
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
And
The Hon'ble Justice Debi Prosad Dey
F.A. 368 of 2013
Krishna @ Krishna Lal Ghosh.......Appellant
Vs.
Ashoke Ranjan Dutta.....Respondent
For the Appellant : Mr. S. P. Chowdhury,
: Mr. Prasanta Kumar Banerjee,
: Mr. Shyamal Kumar Das.
For the plaintiffs/
Respondents :
Heard on : 09.06.2015, 23.07.2015.
Judgment on : 31.07.2015
Debi Prosad Dey, J. :-
This first appeal is directed against the judgment and decree passed by Additional District Judge, 4th Court, Barasat, North 24 Parganas in original suit No. 05 of 1995 dated 14th July 1995 whereby and whereunder Learned Additional District Judge has granted letters of administration in favour of the plaintiff/respondent in terms of the last Will and Testament dated 27th Day of December, 1972 said to have been executed by Basanta Kumar Dutta (since deceased).
Being aggrieved by and dissatisfied with such judgment and decree, the appellants have preferred this first appeal on amongst other grounds that Learned Trial Judge has failed to consider properly the suspicious circumstances surrounding the execution of the Will and that Learned Trial Judge instead of disposing the matter according to the satisfaction of his own conscience, has supplied reasons to justify the case of the plaintiff/respondent out of his own resulting in miscarriage of justice and thereby Learned Trial Judge has failed to dispose of the case under reference in accordance with law.
The fact of the case as unfolded in the petition as well as in the written statement of the parties to this lis, may be re-produced below for appreciation of the case under reference. One Basanta Kumar Dutta executed his last Will and Testament on 27the Day of December 1972 and bequeathed his estate in favour of his three nephews without appointing anybody as executor of the said Will. Prafulla Bala Dutta (since deceased) wife of Basanta Kumar Dutta was one of the attesting witnesses of such Will. Prafulla Kumar Ghosh another attesting witness also died when the Will was put in for grant of letters of administration. Sri Santiranjan Chakraborty plaintiff's witness No.2 being one of the attesting witnesses was alive and he has been examined by the petitioner. Bivarani Dutta nee Ghosh is the only daughter of Basanta Kumar Dutta and she died on 24th Day of April, 1983. The present appellant/objectors are the sons and daughters of Bivarani Ghosh (since deceased). Dipti Ranjan Dutta, brother of the plaintiff/respondent died on 14th August, 1990 and he was a bachelor.
The objectors being sons of Bivarani Ghosh filed written statement stating inter-alia that Basanta Kumar Dutta never executed any Will on 27.12.1972 and the plaintiff in collusion with his other brothers has manufactured the alleged Will in the name of Basanta Kumar Dutta who had been suffering from severe illness since 1970 and who was not physically fit and mentally alert in the year 1972 to execute any such Will. The alleged Will is shrouded with suspicion since the dispositions made in the said Will are un-natural. There was good relation in between Basanta Kumar Dutta and his daughter Bivarani Dutta nee Ghosh and as such Basanta Kumar Dutta had no occasion to deprive his own daughter by executing alleged Will. The long delay in filing the application for grant of letters of administration also leads to the inference that the circumstances were shrouded with suspicion in the alleged execution of Will by Basanta Kumar Dutta(since deceased). Plaintiff's witness No.2 Santi Ranjan Chakraborty has proved the Will vide exhibit 1 and his signature vide Exhibit 1/1. The plaintiff/respondent has examined two witnesses namely Ashok Ranjan Dutta and Shri Santi Ranjan Chakraborty (witness No.2). The objectors/appellants have examined Krishna Lal Ghosh as opposite party's witness No.1.
After hearing Learned Advocates for both sides Learned Trial Judge granted letters of administration in favour of the plaintiff/respondent by his judgment and decree dated 14th July, 2011.
The judgment and decree passed by Learned Trial Judge is under challenge before us. Learned Senior Counsel Mr. S. P. Roy Chowdhury appeared and argued the case on behalf of the appellant.
Mr. Sukanta Chakraborty, Learned Advocate appeared on behalf of the plaintiff/respondent and he took time for taking instructions from his client. Ultimately Mr. Chakraborty retired from this case as he did not get any instruction from his client (vide order dated 21.04.2015). Accordingly, notice was sent to the plaintiff/respondent but despite service of such notice the plaintiff/respondent did not turn up to contest. We thus decided to dispose of the matter exparte.
Mr. Roy Chowdhury appearing on behalf of the appellant has assailed the judgment and decree passed by Learned Trial Judge on the following grounds.:-
1. The plaintiff/respondent has failed to dispel the suspicious circumstances surrounding the alleged execution of the Will.
2. The dispositions made in the alleged Will on the face of it, are un-natural and the plaintiff/respondent has failed to supply justifiable reasons for depriving the daughter of the testator in the said Will.
3. The delay in filing the application for granting letters of administration is one of the strongest circumstances, which the propounder could not dispel by producing clinching evidences on record.
4. The alleged Will, as has been drafted and prepared by incorporating the schedules of property in the midst of the Will, is sufficient to discard the same being prepared by a lay man having no knowledge about preparation/drafting of Will, far to speak of preparing of the same by Learned Advocates.
5. The plaintiff/respondent should have examined all the witnesses alive at the relevant point of time in order to dispel the suspicious circumstances shrouded with the Will.
6. The signatures of the testator appearing in the Will are, on the face of it, sufficient to show that the testator was not physically fit and mentally alert on the date of execution of alleged Will.
7. The testator had good relation with his daughter Bivarani Dutta nee Ghosh. Evidences reveal that during his old age Basanta Kumar Dutta used to stay in the house of his daughter but no plausible reason was assigned in the Will as to why the said daughter had been deprived from the estate of the testator.
8. In order to dispel the suspicious circumstances the propounder was duty bound to produce the draft of the Will said to have been prepared by Learned Advocates.
In support of his contention Learned Senior Counsel Mr. S. P. Roy Chowdhury has referred the following decisions reported in AIR 1959 SC 443(Venkatachala Iyengar v. B.N. Thimmajamma and others), AIR 1977 SC 74 (Smt. Jaswant Kaur, v. Smt. Amrit Kaur and others) and (2008) 8 SCC 463(Kunvarjeet Singh Khandpur v. Kirandeep Kaur and others).
The basic principle for deciding the matter under Indian Succession Act, particularly in matters of granting probate/letters of administration in terms of the Will has been enunciated by our Apex Court in the Special Court decision reported in AIR 1959 SC 443 and the said proposition of law is being followed till date.
Relying on the aforesaid decision, the Apex Court in AIR 2009 SC 1766(Bharpur Singh & Ors. V. Shamsher Singh), has described the following circumstances as suspicious circumstances in the execution of the Will:-
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free Will and mind.
(v) The propounder takes a prominent part in the execution of the Will.
(vi) The testator used to sign blank papers.
(vii) The Will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.
The circumstances narrated hereinabove are not exhaustive. Subject to
offer of reasonable explanation, existence thereof must be taken into
consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not.
In fact, the Hon'ble Supreme Court in the case of Navneet Lal alias Rangi V. Gokul & Ors. reported in AIR 1976 SC 794 has given us the guidelines as to how the genuineness of the Will and the testator's mind set at the time of execution of the Will can be judged for ascertaining true intention of the testator for giving his estate to the beneficiaries of the Will and the reasons for exclusion of others from inheriting any part of his estate by way of testamentary succession.
It is therefore apparent from the principle laid down by the Hon'ble Apex Court that in construing the language of the Will the Court is required to put itself into the testator's arm chair and is also bound to bear in mind other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense all as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document.
It is not the wisdom of the Judge that is necessary for actual construction of the Will but learned Judge should place himself in the arm chair of the testator in order to appreciate the desire and intention of the testator in making such Will.
Let us now test the genuineness of the Will and testator's mind set in execution of such Will for disposition of his estate in the manner it was done by sitting in the arm chair of the testator in the light of the guidelines given by the Hon'ble Supreme Court as mentioned above.
In order to appreciate the true import of the Will under reference we have gone through the original Will kept under the safe custody of the designated officer of the Court.
It evinces from such Will that Basanta Kumar Dutta could not properly sign on such Will and the signatures appearing on such Will, clearly reveal that the health condition of the testator was not good. The signatures as it appear in the Will, are very shaky and doubtful. The testator was an octogenarian at the time of execution of such Will. The Will was executed on 27.12.1972 and the testator died on 31st August, 1973 i.e. within eight months from the date of alleged execution of the Will. The signatures of the testator raised doubt in the mind of the Court about the health condition and mental fitness of the testator at the time of execution of such Will. To dispel such doubt from the mind of the Court it was incumbent upon the plaintiff/respondent to produce sufficient evidences in order to justify that Basanta Kumar Dutta was physically fit and mentally alert at the time of execution of such Will. The plaintiff/respondent however did not explain in his evidence about the health condition or the mental alertness of Basanta Kumar Dutta at the time of execution of the said Will.
On the contrary, plaintiff's witness No.1 has categorically stated that he had no knowledge when the Will was executed. The requirement of Section 63(c) of Indian Succession Act coupled with Section 68 of Indian Evidence Act has been complied with by the plaintiff/respondent in proving the Will under reference by producing Santi Ranjan Chakraborty, one of the attesting Witnesses. On careful scrutiny of the evidence of Santi Ranjan Chakraborty, we do not find any evidence to the effect that the Will was ever read over and explained to the testator in presence of the attesting witnesses or to the attesting witnesses. The evidence of plaintiff's witness No.2 also could not enlighten the Court about the health condition of Basanta Kumar Dutta at the time of alleged execution of such Will. Plaintiff's witness No.2 categorically stated that he had no personal knowledge regarding the health of Basantababu and he could not say the names of Doctors who used to treat Basantababu from 1970 till his death in 1973. Santi Ranjan Chakraborty could not answer to the suggestion given to him that Basanta Kumar Dutta did not execute any Will on 27.12.1972 and that he was deposing falsely in favour of his friend i.e. Dipti Ranjan Dutta one of the legatees. It is therefore, apparent from the evidences adduced by the plaintiff/respondent that the witnesses could not dispel the suspicion regarding the health condition and mental alertness of Basantababu at the time of alleged execution of the Will. Moreover, the attesting witness Santi Ranjan Chakraborty could not even answer to the suggestion that Basanta Kumar Dutta did not execute any Will and that he was deposing falsely to support his friend Dipti Ranjan Dutta.
Secondly, Ashok Ranjan Dutta has admitted in his evidence that he came to know about such Will said to have been executed by Basanta Kumar Dutta from his wife Prafulla Bala Dutta. Admittedly, Prafulla Bala Dutta died on 24th Day of April, 1973 which indicates that the plaintiff/respondent was aware of such Will at least from April 1973 but he has filed the application for grant of letters of administration on 26th Day of March, 1993 i.e. long after twenty years even after being aware of the existence of such Will. Bivarani Dutta nee Ghosh the only daughter of the testator, as per the evidence of plaintiff/respondent, was present beside the bed of Basanta Kumar Dutta at the time of his death. That goes to show that Bivarani Dutta nee Ghosh having her residence nearby used to keep information about her father and she was present when her father died.
No evidence is forthcoming to establish that Bivarani Dutta nee Ghosh had inimical relationship with her father. The evidence of attesting witness reveals that atleast two other witnesses namely Learned Advocates were alive at the time of his examination.
Santi Ranjan Chakraborty has had no idea about the contents of the Will and the same was never read over and explained to the testator or to the attesting witness. Santi Ranjan Chakraborty however could not say about the date of acquisition of his own properties. This is all about the evidences adduced by the plaintiff/respondent. In order to dispel the suspicious circumstances shrouded with the Will, the plaintiff/respondent could not produce sufficient evidence to justify that Basanta Kumar Dutta was physically fit and mentally alert at the time of execution of such Will. On the contrary the signatures of Basanta Kumar Paul appearing in the Will reveal that Basanta Kumar Dutta was not physically fit and he could not even sign his name properly. This suspicious circumstances has not been removed by the propounder of the Will. Secondly, the construction of the Will Exhibit 1 appears to be not in order. The schedule of property has been inserted in the midst of the Will. The disposition of the Will reveals that some properties were transferred in favour of the daughter by the testator on the strength of an affidavit. It is really difficult to swallow that properties were transferred in the year 1972 on the strength of affidavit and the said Will was drafted by two Learned Advocates. One of them was alive at the time of execution of plaintiff's witness No.2. The construction of the Will Exhibit 1 clearly reveals that the same was prepared by a lay man. Learned Advocate, having minimum knowledge of law would not draft and prepare such Will. The Will Exhibit 1 appears to be the product of a lay man and the same cannot be prepared by any Advocate and suspicion thus crops in the mind of the Court about the authenticity and veracity of Exhibit 1. This suspicion has not been dispelled by the propounder of the Will. Non-examination of Learned Advocates and non-production of the draft of the Will have had telling effect in the acceptance of such Will as genuine one.
The unnatural delay in filing the application for granting of letters of administration also appears to be one of the strongest suspicious circumstances shrouded with the Will.
The plaintiff/respondent had knowledge about such will even during the lifetime of Prafullabala Dutta, who died on 24.04.1973. The daughter of the testator died in the year 1983. The application for grant of letter of administration was filed in the year 1973 i.e. long 20 years after the alleged execution of such Will by Basanta Kumar Dutta.
Learned Advocate Mr. S. P. Roy Chowdhury appearing on behalf of the appellant candidly contended that there should not be any limitation in filing the application for grant of probate or letters of administration. Mr. Roy Chowdhury contended that long delay in filing such application for probate or letters of administration may be considered to be one of the suspicious circumstances. However, Mr. Roy Chowdhury has referred a decision reported in 2008(8) SCC 463(Kunvarjeet Singh Khandpur v. Kirandeep Kaur and ors.) to show that right to apply for such probate or letters of administration is governed by Limitation Act and the period of limitation is three years from the point of time of accrual of right to apply.
The Apex Court however has observed that the application for grant of probate or letters of administration is covered by Article 137 of the Limitation Act. The Apex Court has further observed that the right to apply would accrue when it becomes necessary to apply which may not necessarily be within three years from the date of the deceased's death but the same has to be counted when the right to apply would accrue, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created remains to be executed.
In short, it may safely be stated that the Apex Court has duly recognised the application of the law of limitation in the application for grant of probate or letters of administration. The Apex Court further observed that the delay of three years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion. Such delay has to be explained but cannot be equated with the absolute bar of limitation.
Be that as it may, the factual scenario of the case under reference reveals that the propounder came to know about such Will way back in the year 1973 yet he did not file any application for grant of letters of administration. Long twenty years delay in filing the letters of administration by the propounder remains un-explained and thereby the propounder has failed to dispel the suspicious circumstances shrouded with the Will on account of such long delay.
This leads to irresistible conclusion that the propounder had something to supress during the lifetime of Bivarani Dutta nee Ghosh daughter of the testator and that's why he waited for twenty years in seeking the permission of the Court to act in terms of the desire of Basanta Kumar Dutta in respect of the properties left by him. The un-explained delay in filing the letters of administration tells heavily against the propounder and such suspicious circumstances has not been dispelled by adducing sufficient evidence by the propounder in seeking the permission of the Court.
Unfortunately, Learned Trial Judge has supplied the reasons for such delay out of his own. Mr. Roy Chowdhury Learned Senior Counsel appearing on behalf of the appellant has criticised Learned Trial Judge for supplying such reasons out of his own since Learned Trial Judge has failed to perform his duties by deciding the matter in accordance with law. In a proceeding or in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant simply seeks recognition of the Court to perform duty in terms of the last Will of the testator. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. While giving such permission the Court must sit in the arm chair of the testator in order to ascertain the genuineness of the Will by considering the surrounding circumstances prevalent at the relevant point of time. While doing so, the Court shall not decide the matter according to his own wisdom. The Court shall not in any way supply the reasons out of it's own ignoring evidences on record on that score. Learned Trial Judge has definitely failed to dispose of the matter in accordance with law by supplying the reasons out of his own and without considering the circumstances prevalent at the relevant point of time. In that view of this case, we accept the contention of Learned Senior Counsel Mr. Roy Chowdhury. Learned Trial Judge should not supply such reasons out of his own in order to support the case of the plaintiff/respondent. It is therefor, apparent from the discussions made in the forgoing paragraphs that the propounder of the Will could not dispel the suspicious circumstances shrouded with the Will.
No explanation has been given about the feeble signature of Basanta Kumar Dutta appearing on the Will resulting in suspicion about his health and mental condition.
The scribe of the Will though alive at the relevant point of time has not been examined.
The construction of the Will also reveals that the same has not been drafted by Learned Advocate.
No title can pass on the strength of an affidavit sworn in before the Executive Magistrate.
The dispositions of the Will reveal that the testator had transferred some of his properties to his daughter on the strength of an affidavit. Evidences on record show that the testator had good relation with her daughter Bivarani Dutta nee Ghosh and there was no justifiable reason to exclude Bivarani Dutta nee Ghosh from the properties of the testator. On that score the dispositions made in the Will appear to be un-natural. The propounder also could not explain as to why Bivarani Dutta nee Ghosh was excluded from the properties of testator. This is one of the circumstances for which the Will may safely be discarded.
Un-natural delay in filing the application for grant of letters of administration also tells upon the veracity and authenticity of the Will said to have been executed by Basanta Kumar Dutta. The evidence of attesting witness Santi Ranjan Chakraborty is also not convincing to accept the proof of the Will and the signatures of the testator appearing in the Will. Learned Trial Judge has miserably failed to take into account the aforesaid suspicious circumstances while deciding the matter under reference. The propounder has failed to dispel the suspicious circumstances in order to seek the permission of the Court to act in terms of alleged Will of Basanta Kumar Dutta.
Viewed thus, we have no hesitation to say that the Will is shrouded with suspicious circumstances and no permission should be given to the propounder to act in terms of the said Will said to have been executed by Basanta Kumar Dutta. Our conscience do not support the contention of the plaintiff/respondent in accepting the Will under reference as the last Will and testament said to have been executed by Basanta Kumar Dutta and therefore we are unable to accord any permission to the plaintiff/respondent to act in terms of the said Will. The alleged Will of Basanta Kumar Dutta appears to be not genuine and should be discarded.
In the circumstances stated above the appeal is allowed exparte but without cost. The judgment and decree passed by Learned Trial Judge in original suit No.05 of 1995 dated 14th July, 1995 is thus set aside. The original suit No.05 of 1995 is accordingly dismissed without cost. Let a copy of this judgment and decree be forwarded to the Learned Trial Judge for his information and necessary action. Let the lower Court record be sent down to the Court of Learned Trial Judge forthwith.
urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible, after complying with all the formalities.
I agree
(Jyotirmay Bhattacharya , J.) (Debi Prosad Dey, J.)