Calcutta High Court
Labanya Prova Mitra vs Purnendu Kumar Ghose And Ors. on 17 November, 2006
Equivalent citations: 2008(1)CHN30, AIR 2007 (NOC) 1164 (CAL.) (DB), 2007 (3) AJHAR (NOC) 928 (CAL.) (DB)
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta, Sanjib Banerjee
JUDGMENT Kalyan Jyoti Sengupta, J.
1. By this appeal the judgment and order dated 20th May, 1994 of the learned Additional District Judge, Second Court, Howrah, granting probate of a Will has been assailed. The application for grant of probate of a testamentary instrument said to be of one Balai Charan Ghosh, since deceased, was made by the respondent Nos. 1 and 2 viz. Purnendu Kumar Ghosh and Ardhendu Kumar Ghosh who were the named executors of the said Will dated 12th March, 1978 and it was marked as case No. 137 of 1981. On issuance of citation the appellant along with one Kanailal Ghosh filed their respective written statements. The appellant contested the said application for grant while Kanailal Ghosh being the father of the applicant/respondent, supported the grant obviously because of their relationship. Whether there is contest or not the Probate Court has to be satisfied that the Will was validly and lawfully executed by the testator and the same is proved clearing the doubt from the mind of the Court and the duty becomes onerous when there is contest followed by witness action.
2. The appellant, in her written statement, alleged in substance that the alleged Will was not executed by the deceased Balai Charan Ghosh out of his free Will or being aware of its contents. It is alleged that for a long time before and on the date of execution of the Will, Balai Charan Ghosh was not physically fit or mentally alert as such he had no power of understanding or capacity to execute alleged Will. The alleged Will is unnatural and it will appear from the nature of disposition of the properties. Had it been a genuine Will, it was contended, the testator would have made provision for the appellant/caveatrix who is the elder sister of the testator and also for her children. She has also alleged that the alleged document was created or manufactured by the plaintiffs/respondents in collusion with the men of their group.
3. In the backdrop of the above charges made by the appellant against the application for grant the learned Trial Judge framed the following issues:
(1) Is the suit maintainable?
(2) Is the Will in respect of which probate has been sought for executed by Balai Charan Ghosh consciously and voluntarily?
(3) Was Balai Charan Ghosh, since deceased, physically fit and mentally alert to execute the alleged Will?
(4) Was Balai Charan Ghosh, since deceased, permanent resident of Village Latibpur, P.S. Uluberia, District Howrah?
(5) Whether Balai Charan Ghosh died on 12th March, 1978 at Uluberia Hospital?
(6) Whether the alleged Will is a manufactured one?
(7) Whether all the persons interested in the property of the deceased, Balai Charan Ghosh have been duly impleaded as party in this suit?
(8) Are the petitioners entitled to get probate of this Will?
(9) To what other relief, or reliefs, are the petitioners entitled?
4. In order to prove the lawful and valid execution of the said Will Purnendu Kumar Ghosh, the respondent No. 1, apart from exairririing himself, also brought one Sri Prafulla Kumar Samanta as attesting witness of the said Will and one Sri Pradip Kumar Samanta as practising lawyer of the Uluberia Court to give oral evidence. The appellant examined herself to contest the grant of the said testamentary document. She also brought one Haradhan Das, an office peon of Uluberia Sub-Divisional Hospital and one Chinmoy Kumar Chowdhury, an investigator from School of Tropical Medicines, Calcutta, one Smt. Shampa Das, a Lower Division Clerk of the judgeship of the District Judge, Howrah. On appreciation of the evidence and having witnessed the demeanour of the witnesses, the learned Judge found that the Will was lawfully and validly executed, attested and so he granted probate of the same. Learned Trial Judge has believed the testimony of the attesting witness, one of the propounders and also the evidence of the learned Lawyer who was cited as witness.
5. It will appear from the written statement of the appellant that the plea of suspicious circumstances was not specifically taken but at the time of argument such plea was raised and submission was made. Learned Trial Judge was satisfied that there were suspicious circumstances and the cloud attempted to be created was satisfactorily blown away.
6. Mr. Pinaki Ranjan Mitra, Learned Counsel for the appellant, submits that the said Will could not be a genuine one of the said Balai Charan Ghosh and this ought to have been found by the learned Trial Judge and could be found by us from a plain look at the original document. He has drawn our attention to the original document and pointed out that it is an unusual document in the sense that the hand-written Will running into fifteen pages was surprisingly without any error or corrections. He further submits that it is plain from the document that two different inks were used and as such, the document must have been manufactured by the respondent/appellant with the aid and assistance of the attesting witness and the learned Lawyer. He further contends that the condition of health of testator was not good and this would be apparent from the fact that the Will was executed barely two months before his death. His ill health is proved by the fact that shortly after the execution of the alleged Will he was admitted to hospital where he ultimately died. He further submits that from the evidence it would appear that on the date of execution of the Will, Civil and Criminal Courts were closed on account of Muharram; it is absurd that a Will could be prepared, executed and attested at the Seresta of the learned Lawyer situate within the Court compound on declared holiday of the Court. It is absolutely unnatural that on a holiday a learned Lawyer or, for that matter, his clerk would go to the Court Seresta.
7. It will appear from the contents of the Will that the propounders have been given the entire property and/or estate depriving the caveatrix as well as her sons and daughters. He submits that the deceased used to like and love not only the caveatrix but her children too as, after death of father of the testator, the husband of the caveatrix acted as the testator's guardian and therefore, there was no reason why they should be deprived.
8. He further contends that it is true that these points and contentions have not been specifically taken in the written statement by his client but it can be raised at the time of hearing, pointing out from the portion of the evidence and facts and circumstances of the case. It is the duty of the Court to examine whether attestation and execution of the Will was free from suspicion irrespective of such a plea having been taken by the contestant. The Court's mind should be absolutely free from any suspicion before a document is accepted to be the last testamentary instrument for granting probate of the same. According to Learned Counsel for the appellant, the Will had not been lawfully or validly executed nor the same had been proved. The propounders had failed to remove the suspicious circumstances shrouding the attestation and execution as raised by the appellant and this would appear from the evidence itself. As such, probate should have been refused. When the propounders/executors have taken a large benefit in the Will and when it is found that the propounders have taken active part in preparation and execution of the Will, suspicious circumstances must be said to have been existing and such suspicion must necessarily be removed by the cogent evidence. In support of his aforesaid legal submission he has relied on the following decisions of the Supreme Court reported in AIR 1962 SC 567, AIR 1977 SC 74, AIR 1990 SC 396. Apart from the decisions of the Supreme Court he has also relied on the following decisions of this Court viz. AIR 1982 Cal 236, AIR 1984 Cal 223 and 74 CWN 290.
9. Mr. Sudish Dasgupta, learned Senior Advocate, appearing with Mr. D.P. Mukherjee, learned Advocate for the respondents, contends that if the pleadings of the parties are examined and the evidence is read by this Court it will appear that the learned Trial Judge has correctly found that the said Will was valid and the lawful last testamentary instrument of Balai Charan Ghosh who was the younger brother of the caveatrix. Stepbrother Netai had not come forward to contest the grant nor did brother Kanailal Ghosh, father of the propounders, who would have been one of the heirs in case of death intestacy. They have supported and accepted that the said Will was validly and lawfully executed. He submits further that if the original Will is seen and examined carefully, it will appear that the same is a genuine document and it has been proved by one of the attesting witnesses and corroborated by the learned Lawyer as well as by the propounder himself. He further submits that it is quite natural that a Will consisting of several pages may at times be written with the aid of two pens having different inks. But this fact itself does not suggest any suspicion. He contends further that as far as the disposition made by the testator is concerned there is no unnaturalness as it will appear from the evidence and it is also spelt out by the testator himself that the propounders were loved by the testator and the propounders also used to look after the testator. It is quite natural that the brother's sons who were all the time looking after him would be preferred to sons and daughters of the sister. According to him, if any unnatural bequest is made with full knowledge and understanding, the same cannot be said to be undue influence. As far as the plea of Court holiday taken by the caveator on the day of execution of the Will is concerned, there is no concrete proof that 22nd December, 1977 was a holiday. The evidence in this regard, produced by the caveatrix was absolutely unacceptable as has been correctly held by the learned Court below. He has brought the calendar of the particular year published by the High Court indicating the holidays in subordinate Civil and Criminal Courts in West Bengal. He submits that 21st December, 1977 was originally declared to be holiday. Whether there was shifting of the day of observance of Muharram on 22nd December, 1977 or as such it was declared as holiday by special notice, has not been proved satisfactorily. The witness concerned could not say specifically whether the alleged notice of observing Muharram on the following day and declaring holiday on 22nd December, 1977 reached Uluberia Court or not. According to him, there is nothing suspicious about the Will. As such, this Court should not interfere with the findings of the learned Trial Judge. He contends further that even assuming 22nd December, 1977 was a declared holiday, it is not surprising that a lawyer came to the Court Seresta on a Court holiday for doing work which did not involve Court business.
10. We have heard Learned Counsel and we have read the pleadings of both the parties, issues framed by the learned Trial Judge, evidence adduced by both the parties and lastly the judgment of the learned Court below.
11. Upon reading we notice, as Mr. Mitra rightly points out, that the learned Trial Judge had failed to discuss and decide issue No. (vi) viz. whether "the alleged Will is a manufactured one". From the written statement we find that the plea of the Will being manufactured has been taken but no particulars have been given as to how the Will could be said to be manufactured. In absence of such particulars it is difficult to meet this plea by the executors. That apart, we have read the evidence of the caveatrix. She has not made any whisper, apart from denying suggestions put to her, about the plea of manufacture. Lastly, we have found that the learned Trial Judge has elaborately dealt with two related issues being Nos. (ii) and (iii) that cover the aspects of the validity of the execution and the testamentary capacity of the testator.
12. In our considered view the discussions on the aforesaid issues and decision rendered thereon wholly cover the plea of manufacture and for this reason no discussion or answer was required to be recorded separately.
13. It is now to be examined as to how the learned Trial Judge had dealt with those two vital issues before he accepted the Will to be a genuine one. It has been explained by various decisions of the Supreme Court as well as of the High Courts, including this Court, brought by both the sides about how the Probate Court will proceed to decide on the validity and legality of a testamentary instrument. In case of Jaswant Kaur v. Amrit Kaur , cited by Mr. Mitra, the Supreme Court while relying on the earlier decision of the same Court , has reiterated how the Will is to be proved and when the Court will accept the same as being a genuine testamentary instrument. In paragraph 9 it is laid down as the statement of law that where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What are, generally, adversary proceedings become in such cases a matter of the Court's conscience and then the real question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.
The Supreme Court incase of Kalyan Singh v. Chhoti and Ors. , in paragraph 20 observed as follows:
...it is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour, it would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
14. The said judgment of the Supreme Court noted with approval of the earlier judgment rendered in case of H. Venkatachala Iyengar v. B.N. Thimmajamma .
15. A Division Bench judgment of this Court reported in 74 CWN 290 has laid down the standard of proof necessary for granting of probate and also the duty of the Court. In paragraph 7 therein it is ruled amongst others that the proof as to the genuineness of the Will, will depend upon the evidence that would be given by the writer where the Will is not a heliograph one. Another Division Bench judgment of this Court in the case of Anath Nath Das and Ors. v. Bijali Bala Mondal , relying on the earlier three Supreme Court decisions , and has reiterated the position of the law as to the onus to prove the due and valid execution of the Will and also removal of the suspicious circumstances. In this case following the aforesaid Supreme Court decision, the Court has held that it is the propounder who has to prove the lawful, valid, execution and attestation of the Will and also to remove the suspicious circumstances surrounding the execution and attestation of the Will.
16. Now, we would like to examine whether the learned Trial Judge has dealt with this matter while granting of the probate of the Will and has folio wed the aforesaid proposition of law or not. As the First Appellate Court it" would be our duty to look into what were the materials before him and whether it was possible for him to come to a fact finding regarding proof of lawful, valid execution and attestation of the Will as well as the removal of suspicious circumstances. We find from the records that in order to prove the execution and attestation of the Will one of the attesting witnesses was brought and this attesting witness was not a stranger but was known to the testator. His testimony despite cross-examination appears to be steady and natural and acceptable by the Probate Court. Apart from this attesting witness the propounder himself, though having substantial interest in the disposition, has proved from the stage of giving instruction for preparation of the Will upto the stage of execution and attestation. No special case was suggested to him on behalf of the appellant to discredit his evidence. The learned Lawyer whose Seresta was the venue of the execution and attestation of the Will also came and testified. The attesting witness in a natural way during his examination-in-chief as well as in the cross-examination has given details about the preparation, execution and attestation of the Will. He has also proved the testamentary capacity, both physical and mental. From his evidence it appears that the testamentary capacity of the testator at the relevant time was beyond question. As against this evidence, the caveatrix, in our view, could neither prove her own case nor make any dent in the propounder's case.
17. It appears to us that during the argument in the learned Court below, Learned Counsel contended that the Will was written in different inks and further the day on which the Will was alleged to have been executed happened to be a holiday and the Court remained closed. It was suggested therefore, that it was unusual if not impossible that the Will could be executed at the Court Seresta of the learned Lawyer on that date and it was highly improbable for the learned Lawyer to come to Court on a holiday. This plea of improbability is sought to be bolstered by a copy of the notification declaring the day as a holiday, from the District Judgeship to the learned Court of Munsiff at Amta. Apart from these two pleas we do not find any other plea for suspicions circumstances. Even Mr. Mitra did not argue apart from these points regarding suspicious circumstances.
18. Learned Trial Judge has dealt with all the questions while answering issue Nos. 2 and 3. He has read and analyzed the evidence of both the parties with reasonable degree of accuracy. He has rightly disbelieved the story of suspicious circumstances sought to be raised with support of some documents. Mr. Dasgupta has correctly pointed out with the support of the Supreme Court judgment reported in 1996 (9) SCC 324 that the due weight or importance should be given to the finding of the Trial Judge who had occasion to watch the demeanour of the witnesses and assess their credibility and the restraint in temptation of interference that should be exercised by the Appellate Court in such cases. There can not be any debate that it is the obligation of the appellant to show that the judgment appealed against is wrong. It is for the appellant to show where the assessment of evidence by the learned Court below has gone wrong not merely seeking a reassessment of the evidence by the Appellate Court as a matter of course.
19. The findings in details of the learned Trial Judge while dealing with the two vital issues are so compact and clear with reason that hardly leave any flaw. Still then we feel it necessary to reiterate that the plea of suspicious circumstances in this case is baseless. As we read evidence of three witnesses of the respondents, we notice that they deposed with legitimate degree of conviction, despite minor and insignificant contradiction, ten years after the Will was executed. It is borne out from the testimony that the testator made the Will of his own volition and the same was prepared and attested on his instruction. He was absolutely fit and competent in all senses and it is established by the evidence of all the witnesses. The evidence of P.W.I, one of the propounders, cannot be discredited merely on the ground that he was residing with his deceased uncle or he had been present or he had got some benefit under the Will. Mr. Dasgupta has reminded us appropriately of the proposition of law enunciated by the Supreme Court in the case of Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar and Ors. reported in 1995 (5) SCC 215, that if a particular person knowing well and being convinced by a person, gives any benefit by executing Will and depriving others he cannot be said to have been unduly influenced. If a particular person is consciously influenced by lawful persuasion and importunity he cannot be said to have been unduly influenced. In paragraph 22 of this judgment the Supreme Court has also reiterated that it is the duty of the Appeal Court while examining the judgment of the learned Trial Judge not to reassess or to upset the assessment of the evidence unless it is patently bad and absurd. We do not find any infirmity or absurdity. This judgment is apposite for application in this case.
20. As far as the writing of the Will in different inks is concerned, this has been sufficiently answered and dealt with by the learned Trial Judge and his finding to our mind does not appear to be perverse or absurd. We feel that even if the Will was written in different inks that had happened in the presence of the testator so his approval of use of two different inks can be inferred.
21. The other question that has been raised as regard suspicious circumstances is that 22nd December, 1977 was declared to be a holiday on account of Muharram. A copy of the relevant notification was exhibited. We have examined the original exhibit and we express our reservation as to how this document could be admissible in evidence or could be received as secondary evidence under Section 63 read with Section 65 of the Evidence Act. It was not an original communication nor was it a copy as mentioned in Section 63 of Evidence Act. It was merely an attested copy. An attested copy cannot be said to be secondary evidence within the meaning of the Section 63 of the Evidence Act as the person who has attested has not come forward to prove the accuracy of the contents of the copy. If the certified copy had been available or had a copy of the original communication been prepared with same mechanical process, and been produced it could have been admitted in evidence. Moreover, it is doubtful whether such notice reached the Amta Court before 22nd December, 1977 as any witness concerned could not specifically say so. From a calendar of holidays for the Civil Courts prepared and fixed by the High Court for the relevant year, produced before us, we find 21st December, 1977 was originally fixed to be holiday on account of Muharram. But it is common knowledge that Muharram is sometimes shifted on account of astronomical calculation. Therefore, it was not clear when Muharam was observed that year.
22. The so-called suspicion on the plea of holiday of the Court on 22nd December, 1977 does not in any way affect the genuineness of the Will. In any view of the matter it was not impossible to execute the Will in a Court Seresta on a holiday if the lawyer concerned chose to go to Court on a holiday and open his Seresta, there was nothing wrong. There has been no suggestion to the lawyer or attesting witness that the Seresta on that day could not be opened on account of Muharram nor it was opened. But from the tenor of the evidence adduced by all the parties it appears to us that on 22nd December, 1977, the Court remained open. It is equally possible that the testator and his lawyer had fixed such day for execution of the Will as it was not originally meant to be a holiday. Upon all arrangements having been finalized in advance, it could be possible that the execution of the Will was proceeded with on the appointed day and at the appointed place despite the later announcement of Muharram being observed on that day. Besides, this case has not been stated in the pleading.
23. Under those circumstances, we hold that there was no suspicious circumstance in the execution of the Will and the doubts raised by the caveatrix had been removed successfully by the propounder. The learned Court below with clear conscience, accepted Balai Babu's testamentary instrument as being the genuine, valid and the last one and rightly granted probate of the Will.
We, therefore, do not find any merit in this appeal and the same is accordingly dismissed. There will, however, be no order as to costs.
Sanjib Banerjee, J.
I agree.