Calcutta High Court
Nirmal Kumar Saha & Anr vs Dipankar Saha & Ors on 17 May, 2018
Equivalent citations: AIRONLINE 2018 CAL 630
Author: Arijit Banerjee
Bench: Arijit Banerjee
The High Court At Calcutta
Testamentary and Intestate Jurisdiction
Original Side
TS 7 of 2011
Nirmal Kumar Saha & Anr.
-Vs.-
Dipankar Saha & Ors.
Before : The Hon'ble Justice Arijit Banerjee
For the plaintiffs : Mr. Ahin Choudhuri, Sr. Adv.
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Dipendra Nath Chunder, Adv.
Mr. Ayan Kr. Boral, Adv.
For the defendants : Mr. Ratnanko Banerji, Sr. Adv.
Mr. Ritobroto Mitra, Adv.
Ms. Madhupriya, Adv.
Mr. Manik Das, Adv.
Mr. Subrata Goswami, Adv.
Heard On : 14.10.2015, 07.12.2015, 09.12.2016,
03.01.2017
24.01.2017, 07.02.2017
CAV On : 03.05.2018
Judgment On : 17.05.2018
Arijit Banerjee, J.:-
(1) Deb Kumar Saha, (in short'Deb') a Hindu inhabitant of Calcutta
and a wealthy businessman died on 31 December, 2009. The plaintiff
no. 1 Nirmal is the brother of Deb and the plaintiff no. 2 (in short
'Kanchan') is the son of Nirmal. The plaintiffs have applied for grant
of probate of a document dated 13 April, 2005 which they claim is the
last Will executed by Deb (Exhibit 'I'). There is also a document dated
7 April, 2006 which the plaintiffs claim is a Codicil to the Will executed
by Deb. (Exhibit 'J').
(2) The original caveators were the two sons of Deb namely Dr.
Dipankar Saha (in short 'Dipankar') and Dr. Jyorirmoy Saha (in short
'Jyotirmoy'). They filed affidavits in support of their caveats and
opposed the grant of probate. Accordingly, the probate application
became a contentious cause and was registered as a suit. During the
pendency of the suit Jyotirmoy passed away. He was substituted by
his wife and daughter. But they did not file any separate written
statement. Only Dipankar has contested the grant of probate.
(3) Exhibit 'I' has been witnessed by one Manabendra Saha Roy (in
short 'Manabendra') and by one Anjan Chattopadhyay (in short
'Anjan'). Manabendra is an Advocate practising in the Calcutta Small
Causes Court and Anjan is an Advocate practising in the Calcutta City
Civil Court.
(4) The caveators have resisted the grant of probate of the
document marked as Exhibit 'I' on the following grounds:-
(i) The alleged will purports to bequeath Deb's assets and properties
mentioned therein, to Kanchan and Sibarjun Saha (in short 'Sibarjan'),
both sons of Nirmal and two sons of Pabitra Kumar Saha (in short
'Pabitra'), another brother of Deb. There is also some bequest to the
only daughter of Deb. In as much as there is no bequest at all of the
immovable properties to the two sons, the alleged Will is an unnatural
Will to that extent.
(ii) The propounders of the Will have not been able to remove the
suspicion that Exhibit - 'I', the alleged last Will, and the Will execution
of which was videographed, are the same document.
(iii) The execution of the last Will which was video graphed and the
alleged last Will being Exhibit - 'I' produced before the Court for grant
of probate are ex facie different. Therefore, either the videograph is
false or Exhibit - 'I' is a manufactured document. If the videographed
document is not Exhibit -'I' then where is the document which is
executed that day which has been stated as the last Will of the
testator. This question remains unanswered by the propounders.
(iv) The alleged Will being Exhibit - 'I' was presented for registration
at 10.31 am on 13th April 2005 as would appear from paragraph 1 of the
application for grant of probate and the Exhibit - 'I' and confirmed by
Dipendra Nath Chunder in his evidence.
(v) The execution of the alleged Will, as appears from the
videograph being Exhibit -'L', took place at 11.48 am on 13th April
2005.
(vi) Dipendra Nath Chunder in his evidence has deposed that
execution of a Will takes about 2 hours. Thus, Exhibit 'I' which was
presented for registration at 10.31 am on 13th April 2005 could not
have been executed at 11.48 am on the same day itself that is on 13th
April 2005 as is evident from Exhibit 'L' thereby clearly establishing
that Exhibit 'I' and the document shown in the video are not the same
document and further Exhibit 'I' is not the last Will of the Testator.
(vii) The plaintiffs have failed to remove the suspicion as has arisen
surrounding the execution of the last Will being Exhibit 'I'. It is the
documents and evidence of the plaintiffs which have given rise to the
suspicious circumstances. The plaintiffs have failed to remove such
suspicion and mystery surrounding the alleged Will being Exhibit 'I'.
(viii) The suspicion and mystery surrounding execution of the alleged
Will being Exhibit 'I' also get its support from the contradictory
depositions of the witnesses of the plaintiffs.
(ix) The alleged will Exhibit 'I' in the instant proceedings makes
unnatural bequests. There is absolutely no reason for making bequest
in the alleged Will in favour of the sons of the brothers of the testator
when the relation between the testator and his sons was extremely
warm, cordial and trustful and till the last day of the testator, there
were common lodging, mess and worship.
(x) Indeed, all along till his last breath the testator reposed faith
and trust in his sons as otherwise he would not have executed the
Power of Attorney dated 30th April 2007 (subsequent to the date of the
alleged Will and the alleged Codicil) in favour of his elder son
Jyortirmoy Saha authorizing and/or empowering Jyotirmoy to deal with
all his properties and business in the manner as thought fit by
Jyoritmoy, since deceased.
(5) On the basis of the aforesaid submission, Learned Counsel for
Dipankar submitted that the circumstances of the case and the
documents and evidence on record give rise to mystery and suspicion
surrounding the alleged Will and/or alleged execution thereof which
the plaintiffs have not been able to remove. It is the duty of the
plaintiffs to satisfy the Court about the execution of the Will. The
Court must not be left with any reasonable doubt regarding the valid
execution of a Will of which probate is claimed. Even if testamentary
capacity and free volition of the testator are proved, if there is
mystery or suspicion regarding due execution of the Will, probate has
to be refused as in the instant case. In this connection, learned
Counsel relied on a decision of a Division Bench of this Court in the
case of Rama Dutta-vs.-Atanu Dutta, (1999) 1 CHN 35.
(6) Learned Counsel then submitted that it is an established
principle that onus to prove the Will lies on the propounder. The
propounder should prove the legality of execution and genuineness of
the Will by explaining the suspicious circumstances surrounding the
Will. Even where the plea of suspicious circumstances is not raised but
circumstances give rise to doubt, the propounder must satisfy the
conscience of the Court by removing such doubt. In the present case,
the propounders/plaintiffs have miserably failed to remove the doubt
or suspicion which has arisen from the documents and evidence led by
the propounders themselves. In this connection, learned Counsel
relied on an Apex Court decision in the case of K. Laxmanan-vs.-
Thekkayil Padmini, (2009) 1 SCC 345.
(7) Learned Counsel also relied on this Court's decision in the case of
A.E.G. Carapiet-vs.-A.Y. Derderian, AIR 1961 Cal 359, in support of
his submission that while granting probate of a Will, the Court will
jealously examine and scrutinise the circumstances of execution of the
concerned Will.
(8) Learned Counsel finally submitted that from the
pleadings/arguments of the defendants, it is proved beyond doubt that
the alleged Will of which probate is claimed, is not the last Will of the
testator. Further, the suspicion and mystery surrounding the alleged
Will and/or execution thereof could not be removed by the plaintiffs.
Hence, probate of the alleged Will should not be granted.
Contention of Plaintiffs:-
(9) Appearing for the plaintiffs Mr. Ahin Choudhuri, Learned Sr.
Counsel, submitted that in the affidavit in support of the caveats the
following points were raised:-
(i) Deb Kumar Shaw's signature 'appeared to be forged.'
(ii) The attesting witnesses of the Will did not see the deceased sign
and they were not present when Exhibits I & J were signed. Each of
them did not know the contents of the Will (Exhibit I and Codicil
(Exhibit J) and could not have signed in the presence of each other.
(iii) Deb Kumar Shaw lacked testamentary capacity.
(iv) Deb Kumar Shaw was suffering from several ailments include
senile dementia.
(v) The Will and Codicil were procured by undue influence and
coercion. Some purported particulars of fraud and undue influence
have been attempted to be given.
(vi) The Will and Codicil of Deb Kumar Shaw were not the product of
his own will and volition.
(vii) The execution of the Will is surrounded by suspicious
circumstances.
(10) Learned Senior Counsel submitted that the affidavits of Dr.
Dipankar Saha and Dr. Jyotirmoy Saha are substantially same. It is
clear from their affidavits that they are all well-acquainted with
Manabendra Saha Roy and Anjan Chattopadhyay, Advocates who
attested the Will. Manabendra and Anjan declined to co-operate with
the propounder by signing the declaration at the foot of the petition or
by affirming an affidavit in support of the application for grant of
probate. Ultimately, both Manabendra and Anjan appeared before this
Hon'ble Court to adduce evidence. Soumen Sen, J. declined to declare
the said witnesses as hostile witnesses. The learned Judge observed
that Manabendra duly identified his signature appearing in Exhibit-'I'
and identified the signature of the other witness Anjan Chattopadhyay
and that of the testator Deb Kumar Shaw. He also identified the
persons in the photographs namely the testator, Anjan Chattopadhyay
and Dipendra Nath Chunder. He stated that the signature appearing in
Exhibit 'I' could be of Deb Kumar Shaw and the expression used 'may
be' was because according to him the interpolations in the Will were
not done in his presence. By 'interpolation' he meant the date of
execution written on the first and last page of the Will. In relation to
Exhibit 'J' the witness said that Deb Kumar Shaw put his signature in
his presence. All these are noticed in the judgment of Soumen Sen, J.
dated 21st of August, 2013. In view of these answers the witnesses were not declared hostile. It is significant that Manabendra Saha Roy was not even cross-examined by the caveator.
(11) The plaintiffs called Dipendra Nath Chunder, Advocate, Manabendra Saha Roy, Advocate/attesting witness, Anjan Chattopadhyay, Advocate/attesting witness and Nirmal Kumar Saha, the plaintiff no. 1. The defendants called only Dr. Dipankar Saha. (12) The first witness Dipendra Nath Chunder is an Advocate practicing in the High Court at Calcutta. The Will (Exhibit 'I') was executed in his chamber at 11, Old Post office Street, Ground Floor, Kolkata 700001. He also organized the registration of the Will. The interpolation in the Will referred to by the attesting witnesses are the dates put on the Will in the handwriting of Dipendra. After Deb Kumar Shaw two attesting witnesses signed the document. The whole procedure of registration took place at the Registrar's Office where Dipendra Nath Chunder was present. Dipendra signed on the reverse side of Page No. 1 of Exhibit 'I' at the Registrar's office. Dipendra has proved the Codicil (Exhibit 'J'). He has identified his own hand writing in Exhibit 'J'. He has also identified the signature he put on the reverse side of page no. 1 of Exhibit 'I' at the Registrar's Office. He has also proved the finger print of the testator. He deposed that the thumb impression of Deb Kumar Shaw was put in his presence. Dipendra was not shaken in cross-examination. On the basis of Dipendra's evidence alone the probate could be safely granted. (13) The two attesting witnesses although tried to act difficult because of reasons of their own, proved execution of Exhibit 'I' and Exhibit 'J'. They tried to act difficult by not signing at the foot of the petition or by supporting the application for probate by affirming an affidavit. But when they were called as witnesses they had to admit the due execution of Exhibit 'I' and Exhibit 'J'. Manabendra proved his own signature, Anjan Chattopadhyay's signature but while asked to identify Deb Kumar Shaw's signature he said that it 'may be' the signature of Deb Kumar Shaw. After Qs. 37, 38 and 39 of Manabendra's deposition there cannot be any question regarding the execution of Exhibit-'I'. Manabendra admits that he signed both Exhibit-'I' and Exhibit-'J'. But he says that he cannot remember whether Deb Kumar Shaw signed that document before he signed or not. Manabendra said that Exhibit-'I' is interpolated and the interpolation was not done in his presence. But he clarifies by interpolation he means date of execution put on the first and last pages and Dipendra says that he himself put the date in the first and last page.
(14) Next witness was Anjan Chattapadhyay, a junior to Mr. Manabendra Saha Roy. He identified his signature in Exhibit 'I'. He identified the signature of Manabendra Saha Roy. Regarding Deb Kumar Shaw, he says it 'may be' the signature of Deb Kumar Shaw. With regard to Exhibit 'J' he admits that he signed as attesting witness of Deb Kumar Shaw and Deb Kumar Shaw signed in his presence. After this evidence there cannot be any hesitation in holding that Exhibit 'I' and Exhibit 'J' are proved and the execution of the Will and the Codicil are duly proved. 3 persons have proved the Will and the Codicil. The requirements of Section 63 of the Indian Succession Act are also fully satisfied. The signature of Deb Kumar Shaw on Exhibit 'J' are proved by all the 3 witnesses. A testator has to sign the document as a Will. There is ample proof that Deb Kumar Shaw put his signature with intention to execute a Will.
(15) What transpired on April 13, 2005 in Dipendra Nath Chunder's chambers was video graphed. The video is proved because all the witnesses identified the persons appearing in the video. The compact disc has been exhibited subjection to objection. If the objection is upheld then the 'best point' of the caveator regarding the discrepancy between the time of registration and time of execution will not arise at all. The persons in the video are identified by Manabendra. Anjan is appearing in the video as identified by Manabendra. The witness identified everybody appearing in the video. Similarly the photographs taken from the video (Exhibit 'K') which were tendered by Dipendra were shown to Anjan and he identified Deb Kumar Shaw, Manabendra and himself in the photographs. Anjan admits that he was attesting the execution of the Will of Deb Kumar Shaw. From all these questions the execution of Exhibit -I in accordance with the Section 63 of the Indian Succession Act is established not only on the balance of probabilities but beyond doubt.
(16) The caveator has abandoned the case of forgery. No handwriting or finger print expert was called by the caveator. He has not been successful to show that requirements of attestation by two witnesses were not satisfied. The caveator has failed to prove the case of undue influence or fraud. He has failed to prove the case of lack of testamentary capacity or senile dementia. It is particularly significant that the caveator relies on a General Power of Atrorney executed by Deb Kumar Shaw on April 30, 2007, two years after the Exhibit - 'I' was executed. The general Power of Attorney (Exhibit - 'M') was given by Deb Kumar Shaw in favour of Dr. Jyotirmoy Saha to enable him to look after his business during his absence from India in 2007. Dr. Jyotirmoy Saha himself relied upon this general Power of Attorney to show that how much trust his father had in him (paragraph 16 (iii)) of the affidavit in support of caveat of Dr. Jyotirmoy Ssaha affirmed on May 19, 2011). It is wholly unbelievable that Deb Kumar Shaw was incapable of understanding what he was doing when he was signing Exhibit 'I' although two years later he was giving a General Power of Attorney which is considered to be a valid General Power of Attorney. There is nothing in the plea of lack of testamentary capacity. (17) The Will is not unnatural. The testator did not deprive his two sons. Deb Kumar Shaw had constructed a building which had basement plus nine floors. During his life time, Deb Kumar Shaw gave the 2nd and 7th floors to Dr. Jyotirmoy Saha and the 3rd and 8th floors to Dr. Dipankar Saha. As per the Will, the basement, ground floor, 1st floor, 4th floor and roof top go to his daughter Dr. Purabi Mondal. 5th floor goes to Kanchan Saha, 6th floor goes to Krishanu Saha and Jishnu Saha, sons of his younger brother Pabitra Saha and 9th floor goes to Sibarjun Saha, younger son of the plaintiff no.1. The entire trust that was created by the Will was mainly for the benefit of his wife. 90% of the surplus income was to go for the purpose of maintaining his wife and meeting her medical expenses. The entire business of Deb Kumar Shaw was given to his two sons being the caveators. So this Will can never be called or characterized as unnatural Will. In the Will he said that he obtained independent legal advice. There is evidence that this Will was settled by a Senior Advocate who after settling the Will referred the testator to Mr. Dipendra Nath Chunder for execution and registration of the Will.
(18) As regards the argument that Exhibit 'I' is not the document seen in the video and is not the last Will of Deb Kumar Shaw, learned Counsel submitted that the video, if properly seen, will demonstrate that the document which was video-graphed is the same document as Exhibit 'I'. If no reliance is placed on video as it was initially contended by the caveator, then of course this argument will not be available to the caveator at all. Caveator cannot be allowed to rely on the video for the purpose of this argument and at the same time contend that it is inadmissible in evidence. If the video is admissible and is properly screened and seen it will be evident that the contents of the Will that was video-graphed are identified with the contents of Exhibit 'I'.
(19) If the argument of the caveator is analyzed then the fact will be like this. At 10.31 a.m. a Will (Exhibit - I) executed by Deb Kumar Shaw and witnessed by Manabendra and Anjan was presented for registration on April 13, 2005. About one hour later on the same day Deb Kumar Shaw executed another Will with the same two witnesses Manabendra and Anjan who attested the execution at Dipendra Nath Chunder's chamber. None of the witnesses mentioned that two Wills were executed by Deb Kumar Shaw with the same witnesses and supervised by Dipendra Nath Chunder on the same day. Unless all these 4 persons namely Deb Kumar Shaw, Manabendra Saha Roy, Anjan Chattopadhyay and Dipendra Nath Chunder were insane they would not be engaged in any such exercise. It is absurd to hold that at 10.31 Dipendra Nath Chunder would go with Deb Kumar Shaw to Registrar's office to present the Will for registration and again he come back to his chambers at 11.30 and have another Will executed by Deb Kumar Shaw with Manabendra Saha Roy and Anjan Chattopadhyay as attesting witnesses. Dipendra Nath Chaunder, Manabendra Saha Roy and Anjan Chattopadhyay never said that Deb Kumar Shaw executed two Wills on the same day. The endorsement of 10.31 a.m. at Registrar's office is obviously erroneous.
(20) This endorsement of 10.31 a.m. is obviously a mistake. The registrar's letter to the Hon'ble Judge dated November 25, 2016 mentioned that no entry was made in Index Book according to the number of the Deed or the date of presentation. The Fee Book containing the entries of April 13, 2005 may only be produced. It is obvious, therefore, that the endorsement of 10.31 a.m. is misleading. The office opened at 10.30 and it is impossible that the 9th item will be presented one minute after opening. Only one page of the register of thumb impression is produced. From that it cannot be concluded that it was the 1st document to be registered. The corresponding index number shows that it was the 8th document. It does not show that it was the 1st document on that day. Nothing turns on that endorsement of 10.31 on Exhibit 'I' which is a Will and need not be registered. Execution of Exhibit "I" is satisfactorily proved. The contention that the last Will of Deb Kumar Shaw has not seen the light of the day is absurd. According to the caveators the last Will of Deb Kumar Shaw was in 2000. Dr. Jyotirmoy Saha stated in his affidavit that "after the Will of February 21, 2000 my father had never executed any Will." Dipankar also stated that the last Will of his father was dated February 21, 2000. If that is the case then it is strange that none of the brothers applied for the probate of the Will dated February 21, 2000. (21) No credence should be attached to the case of caveator and there should not be any hesitation to grant of the Will of Deb Kumar Saha and the Codicil. There is no dispute about the Codicil (Exhibit 'J') which refers to Exhibit 'I'. Therefore, there is no reason why the probate should be refused in the instant case.
(22) By an order dated December 10, 2012 the payment of ad valorem Court Fee was deferred till the disposal of the caveats. Learned Counsel submitted that while granting probate on discharging the Caveat, leave may be given to the propounders to pay the ad valorem court fee within such period as the Court may think fit. Court's View:-
(23) I have given my anxious consideration to the rival contentions of the parties.
(24) The first submission made on behalf of the defendants that the Will is unnatural since properties have been bequeathed to Kanchan, Sibarjun and the two sons of Pabitra to the exclusion of Dipankar and Jyotirmay, is not acceptable. A Will is generally made when the testator desires to alter the natural course of succession. Excluding the two sons and making the sons of the brothers' beneficiaries under the Will per se would not make the Will unnatural or suspicion. As observed by the Hon'ble Apex Court in the case of Ramabai Padmakar Patil (dead)-vs.-Rukminibai Vishnu Vekhande, (2003) 8 SCC 537, a Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of a Will has to remove all suspicious circumstances.
Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance.
(25) It is not that the testator deprived his two sons Dipankar and Jyotirmay altogether. Admittedly Deb Kumar was the sole and absolute owner of a ten storied building standing on the land measuring about 5 Cottahs 4 chittacks at Premises No. P-5, CIT Scheme-LV, Calcutta 700014 under Entally Police Station. It is also not in dispute as is recorded in Exhibit-I (the Will of which probate is claimed) that by registered deeds of gift Deb Kumar gifted the 2nd and 7th floor flats of the said premises to Jyotirmay and the 3rd and 8th floor flats to Dipankar. As per the said Will the first floor and the fourth floor with the roof top and basement of the said premises will go to Deb Kumar's daughter Purabi. The fifth floor has been given to Kanchan, ninth floor has been given to Sibarjun and the sixth floor has been gifted jointly to Krishanu and Jishnu, two sons of Deb Kumar's youngest brother Pabitra. 60 per cent share that Deb Kumar had in the country liquor business that was being carried on at Premises No. 5/2, Rafi Ahmed Kidwai Road, Calcutta, has been bequeathed in equal shares to his wife, Jyotirmay and Dipankar. He had undivided shares in certain landed properties which were devised in equal shares to his four nephews being the sons of Nirmal and Pabitra. The cash moneys were bequeathed to his wife Sefalika. The testator records in the said Will that he has already gifted two floors each to Jyotirmay and Dipankar and has given them good education. They are well-off and he did not consider it necessary to make any further provision for them.
(26) In my opinion, there is nothing unnatural about the said Will. During his lifetime Deb Kumar made inter vivos gifts of two flats each to Jyotirmay and Dipankar. In the Will he also gave 20 per cent share in the liquor business to each of his two sons. The other beneficiaries under the Will are not strangers to him. They are his wife, daughter and the four sons of his two brothers. It is not at all unnatural or abnormal for an uncle to nurture love and affection for the children of his siblings. The manner of disposal of his assets and properties by the said Will does not create any undue suspicion in my mind. Hence, the first point urged on behalf of the defendants is rejected. (27) The manner of execution of an unprivileged Will is prescribed by Sec. 63 of the Indian Succession Act, 1925. The requirements are as follows:-
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
(28) The burden of proof that the Will has been validly executed and is a genuine document is on the propounder who seeks probate of the Will. He has to prove that the testator has signed the Will and that he had put his signature on the Will out of his free will and having a sound disposition of mind and he understood the nature and effect thereof.
The testamentary capacity of the propounder must also be established. If there are suspicious circumstances surrounding the execution of the Will, the same must be explained by the propounder to the satisfaction of the Court.
(29) A Will has to be proved like any other document. Sec. 68 of the Indian Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. The proviso to Sec. 68 clarifies that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution is specifically denied by the person by whom it purports to have been executed. Sec. 69 of the Evidence Act provides for the manner of proof of execution of a document which is required by law to be attested, when no attesting witness is found. We are not concerned with such a situation.
(30) In the present case, the document dated 13 April, 2005 which the propounder claims to be the last Will and testament of Deb Kumar is Annexure B to the probate petition. The said document has been marked as Ext. I and the propounder claims probate of the said document. On the first blush, the said document appears to satisfy all the requirements of Sec. 63 of the Indian Succession Act. It is described as the last Will and testament of Deb Kumar. It appears to be signed by him on every page. It is attested by two witnesses namely Manabendra and Anjan. It is a registered Will. Although a Will is not compulsorily registrable and no presumption of genuineness of the Will arises by reason of it being registered, the factum of registration of the said document assumes great importance in the facts of this case as I will indicate shortly.
(31) Deb Kumar's testamentary capacity has not been doubted by the defendants. It is not their case that Deb Kumar was of unsound mind at the time when he executed the Will or that he had not understood the nature and effect of the document or that his signature on the Will was procured by the propounder by practising fraud or exerting coercion or undue influence. The main thrust of Mr. Banerji's argument on behalf of the defendants was that the attesting witnesses did not prove the signature of the testator on the Will and secondly, Ext. I of which probate is claimed, is not the document is seen in the video being Exhibit 'L'.
(32) At this juncture, it may be noted that the process of execution of the Will by Deb Kumar was video-graphed. The video has been marked as Ext. 'L'. The Will was executed in the chamber of Deb Kumar's learned Advocate Sri Dipendra Nath Chunder. The video has captured the wrist watch worn by Mr. Chunder at the time of execution of the Will and it showed approximately the time of 11.48 a.m. So did the wrist watch worn by the testator. However, it is recorded on the reverse of the first page of Ext. I that the document was presented for registration at the Calcutta Registration Office on 13 April, 2005 at 10.31 a.m. Hence, according to Mr. Banerji, Ext. I could not have been the last Will of Deb Kumar because another Will was in the process of being executed even at 11.48 a.m. on 13 April, 2005. According to him, the plaintiffs have failed to remove the suspicion that has arisen surrounding the execution of Deb Kumar's last Will out of the documents submitted/produced and the evidence led by the plaintiffs. (33) I find considerable substance in the submission of Mr. Banerji. The plaintiffs' witness Mr. Chunder in his deposition has accepted the correctness and authenticity of the video recording. The plaintiffs have relied on the video recording and have exhibited it and have tendered it as evidence. If the contents of the video CD (Ext. L) are taken to be correct, then Ext. I cannot be accepted to be the last Will and testament of Dev. This is simply because Ext. I was presented for registration at 10.31 a.m. on 13 April, 2005 whereas the video shows that a Will was in the process of being executed around 11.48 a.m. on that very date. In the pleadings, it is not the case of the plaintiffs that the time of 10.31 a.m. recorded in Ext. I was wrongly written. I had called for the index book, fee book and thumb impression book from the office of the Addl. Registrar of Assurance-III, Calcutta but the same also did not throw any light on this anomalous situation. The plaintiffs could not give any satisfactory explanation as to how a Will that was being executed at around 11.48 a.m. on 13 April, 2005 could be presented for registration at 10.31 a.m. on that date. I am unable to hold that Ext. I is the last Will and testament of Deb Kumar Shaw. The suspicion that has been created in my mind could not be removed by the plaintiffs.
(34) Secondly, the two attesting witnesses also did not prove the testator's signature on the Will to my satisfaction. In reply to question no. 14 of his deposition when Manabendra was shown the signature which is claimed to be that of the testator he said 'It may be the signature of Deb Kumar Saha' (emphasis is mine). His answer to question Nos. 15 and 18 of his deposition were the same with regard to the signatures purporting to be that of the testator on the other pages of Ext. I. When he was shown Ext. K (PD 14 to PD 19) being the photographs taken when according to the plaintiffs the Will was being executed at the office of Sri Dipendra Nath Chundar, Manabendra said that he could not remember on what occasion those photographs were taken. Subsequently, he said that the photographs may have been taken at the time of execution of a document which might be a Will (emphasis is mine). In answer to question no. 35 he said that the document was executed at about 11.30. In answer to question no. 40 when he was shown Ext. I, he said that was not the document that was executed by Deb Kumar Saha in his presence and it was another document. In answer to question no. 42 he said that the document that had been executed had no interpolation like the one in Ext. I, and, therefore, he declined to put his signature on the foot of the verification (of the probate petition). Again in answer to question no. 44 he said that the signature may be of Deb Kumar Saha (emphasis is mine). In reply to question no. 47 Manabendra said he did not know the signature of Deb Kumar Saha and he could not admit the signature. In reply to question no. 53 when he was shown the purported signature of Deb Kumar Saha he said that the signature had not been put in his presence but it may be the signature of Deb Kumar Saha (emphasis is mine).
(35) Similarly, the other attesting witness Anjan, when shown Ext. I, said that the signature may be of Deb Kumar Saha (see questions 27, 28 and 29). Anjan's answer to questions 41 to 50 are rather vague and cannot by any stretch of imagination said to be confirmation of the testator's signature on the Will. The said questions and answers are set out hereunder.
"41. Kindly look at answer to question No. 20. On an earlier occasion you have referred to Will, which Will are you talking about in this answer?/ He executed two or three Wills at this point of time.
42. By "He" you mean Deb Kumar Shaw?/That is so.
43. You have referred to a Will being signed by late Deb Kumar Shaw. Have you seen this Will or have you identified the Will in this proceeding?/I identify this Will which was put before me.
44. (Shown Exhibit H) Which is the letter dated 16th September, 2010 - is this your letter?/Yes.
45. What you stated in this letter are true and correct?/Yes.
46. In this letter you have stated that the Will was not signed in your presence?/I have stated.
47. (Shown Exhibit I) Is this the Will which was not signed in your presence?/May be.
48. I am suggesting it to you that this document which has been marked as - Exhibit I was not signed in your presence by the alleged testator?/May not be.
49. (Shown Exhibit J) I am suggesting it to you that this document does not bear the signature of Deb Kumar Shaw?/I do not know the signature of Deb Kumar Shaw.
50. I am also suggesting it to you that this document was not signed by the alleged testator in your presence?/May be."
(36) There are other inconsistencies in the evidence adduced by the plaintiffs' witnesses but I need not go into the same. The attesting witnesses have not proved the signature of the testator on the Will to my satisfaction.
(37) Learned Counsel for the defendants referred to the Apex Court's decision in the case of K. Laxmanan-vs.-Thekkayil Padmini (supra). In that case the Apex Court observed that the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the Will by proving absence of suspicious circumstances surrounding the Will and also by proving the testamentary capacity and the signature of the testator. When there are suspicious circumstances regarding the execution of the Will, the onus is on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is for the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of the relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would expect that all legitimate suspicion should be completely removed before the document in question is accepted as the last Will of the testator.
(38) In this connection one may also profitably refer to the observations of our Division Bench in the case of Rama Dutta-vs.- Atanu Dutta (supra). In paragraphs 45 to 47 of the judgment, the Hon'ble Division Bench observed as follows:-
"45. Mr. Ghosh for appellants gave us first the case of Carapiet reported at AIR 1960 Cal 359 and showed the paragraph where it has been said that the probate court will jealously examine and scrutinize the circumstances of executijon of a Will. He then gave us the root case of Tyrrell 1891-4 ALL E.R. 1120 and placed the judgment of Lindely L. J. He said that the ratio and the guidance laid down here has been followed again and again, the rule is that wherever their nature may be it is for those who propound the Will, as to which the suspicion arises, to remove such suspicion or doubt, and to prove affirmatively that the testator knew and approved of the contents of the document. We have noted passages from Tristram and Coots's Probate Practice relied upon by Mr. Bchawat to the effect that the Will cannot be said to be a voluntary Will if the mind of the testator runs in this way, like, I do not want to do this, but I must.
46. Mr. Ghosh cited several other cases and then last of all a judgment of Sir Asutosh Mukherjee delivered in the case of Prasannamoyee reported at 25 CWN
779. Again, in this judgment, there are indications here that, unless a well-grounded suspicion of the Probate Court is dispelled, probate cannot be granted.
47. Applying these cases and also drawing upon our own experience we might say a few words about the practical law of grant of probate in the Probate Court. In a contested Will case it is usually seen that facts run into very great details. From this mass of facts the Court has to find out reasonable answers to three points which we have already mentioned above. These three points are, was there due execution and attestation, did the testator have sufficient mental capacity and health and did the testator make the will on his own volition as his last Will and Testament. To these three questions the Court must give and affirmative answer in each case. The Court must give this answer according to the Court's conscience. This conscience is brought to bear upon the facts and circumstances of each different case. The court has to take a practical view of the facts. The Court should not shut its eyes to practical realities which are well-known or even reasonable to resume. It is on this reasonable basis that courts have asked for explanations in regard to unnatural Wills which exclude expected heirs on intestacy. The witnesses first go into the box on behalf of the propounder. The grounds of challenge are known from the caveat. The propounder must satisfy the court about execution, mental capacity and free volition. The propounder must see to it that the Court in its conscience is made free and able to grant probate when the case is over. The Court must not be left with any reasonable and sufficient mystery or suspicion on any of the three points. If capacity and free volition are proved and yet there is a mystery or suspicion about due execution, probate has to be refused. Similarly, if there is due execution and mental capacity and yet a reasonable suspicion is entertained about the free volition of the testator, even in that case probate has to be refused."
(39) In Benga Behara-vs.-Braja Kishore Nanda, (2007) 9 SCC 728, the Apex Court observed that while granting probate the court must satisfy itself not only about the genuineness of the Will but also satisfy itself that it is not fraught with any suspicious circumstances. Existence of suspicious circumstances itself might be held to be sufficient to arrive at a conclusion that execution of the Will has not been duly proved.
(40) In H. Venkatachala Iyengar-vs.-B. N. Thimmajamma, AIR 1959 SC 443, the Apex Court observed that in connection with Wills that present suspicious circumstances the decisions of English Courts often mention the test of the satisfaction of judicial conscience. It is merely emphasized that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
(41) Mr. Choudhuri, learned Sr. Counsel strenuously argued that in view of Manabendra's answers to question nos. 37 to 39, execution of Ext. I and Ext. J stands proved. The said questions and answers are as follows:-
"37. Was it executed by Mr. Deb Kumar Saha?/Yes.
38. Was it executed in your presence?/Yes.
39. Did you sign that document in his presence?/Yes."
The said three questions and answers cannot be taken in isolation. Manabendra's deposition is filled with inconsistent statements and in my opinion, is rather convoluted. So is Anjan's evidence. Mr. Choudhuri has argued that the caveators have abandoned the case of forgery. Even if that be so, the onus lies on the propounder to prove the testator's signature in Ext. I. The attesting witnesses have not unequivocally or with conviction stated that the signatures purporting to be of the testator in Ext. I are indeed that of Deb Kumar Saha.
(42) As regards the endorsement of 10.31 a.m. as the time of presentation of the Will for registration, Mr. Choudhuri submitted that it was obviously a mistake. However, no such case has been run in the pleadings nor any clarification in that regard was sought from the plaintiffs' witnesses.
(43) Even if I were to accept that Ext. I is a Will which was indeed executed by Deb Kumar Shaw and satisfies all the requirements of a Will, I am unable to accept Ext. I as the last Will and testament of Deb Kumar Saha. The plaintiffs own evidence being Ext. L (Vide Recording) would show the execution of a Will by Dev Kumar Saha around 11.48 a.m. on 13 April, 2005. Ext. I of which probate is claimed was presented for registration at 10.31 a.m. on that very day. A suspicion remains in my mind as to whether or not Ext. I is the last Will of the testator. I am afraid that the propounders have not been able to remove such suspicion. My judicial conscience does not permit me to accede to the plaintiffs' prayer for admitting Ext. I to probate. Since I am not granting probate in respect of Ext. I, the question of granting probate in respect of Ext. J (Codicil) does not arise. (44) Mr. Choudhuri submitted that if Ext. I is compared with the document shown in the Video CD (Ext. L), it will be found that they are identical documents. I tried to undertake that exercise. However, the entire process of execution of the document shown in Ext. L was not videographed. Further, when the Video CD is played the document shown therein is incapable of being read clearly. Even assuming that Ext. I and the document seen in the Video CD are identical in all respects, Ext. I cannot be said to be the last Will and testament of Deb. In my opinion, unless valid execution of a Will is established to the satisfaction of the Probate Court and the Probate Court is satisfied that the Will in question is the last Will of the testator, the Will should not be admitted to probate and the natural course of succession should be left unaltered.
(45) Mr. Choudhuri argued that if the defence case is accepted it would lead to a preposterous inference that the testator having presented a Will for registration at 10.31 a.m. on 13 April, 2005, went back to his Learned Advocate's chamber at 11.30 on the same day and executed a fresh Will with the assistance of the same learned Advocate and with the same two attesting witnesses. I agree that the same would be a strange thing and improbable but certainly not impossible. It cannot be ruled out altogether. The burden that lay on the plaintiffs to establish that Ext. I is the last Will of the testator has not been discharged.
(46) TS 7 of 2011 is accordingly dismissed. The plaintiffs shall put in the deficit ad valorem Court fee in terms of the order dated 10 December, 2012, within 3 weeks from date. There will be no order as to costs.
(47) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)