Calcutta High Court
Sheikh Abdus Sadek vs Sheikh Abdul Mukim on 5 April, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Testamentary and Intestate Jurisdiction
Original Side
T.S. No. 46 of 2016
In the Goods of : Nurun Nahar, Deceased
And
Sheikh Abdus Sadek
Vs.
Sheikh Abdul Mukim
For the Plaintiff : Mr. S. Deb, Advocate
Mr. Rabindra Nath Basak, Advocate
Mr. Arik Banerjee, Advocate
Ms. Keya De, Advocate
For the Defendant : Mr. Arindam Mukherjee, Advocate
Ms. Debjani Ray, Advocate
Md. Zafirul Islam, Advocate
Md. Shamim Halder, Advocate
Hearing concluded on : March 28, 2017
Judgment on : April 5, 2017
DEBANGSU BASAK, J.
In this testamentary suit, the plaintiff seeks probate of the last Will and testament of the deceased Nurun Nahar dated April 11, 2007.
The plaintiff is the executor of the Will dated April 11, 2007. The Will is of a Mahomedan lady. The testatrix had died on March 10, 2008 at her residence. The grant of the probate is contested by one of the sons of the deceased. In the affidavit in support of the caveat the defendant has alleged that, the bequest is void under Mahomedan Law. The Will is a manufactured document. It was obtained by undue influence and coercion. The execution of the Will is surrounded by suspicious circumstances. The testatrix did not execute the Will. The signature in Will is not of the testatrix.
The probate proceeding was set down as a contentious cause. The parties have adduced evidence through commission.
The issues that arise for consideration in the present testamentary suit and as framed by the Order dated November 22, 2016 are as follows:-
1. Was the last Will and Testament of Nurun Nahar, since deceased executed by her in accordance with law?
2. Was the said Will and Testament of Nurun Nahar a product of undue influence or coercion as alleged by the said caveator in paragraphs 2(b) of his affidavit in support of caveat affirmed by him on September 5, 2016?
3. Was the bequest made by the said Will and Testament of Nurun Nahar unnatural as alleged in paragraphs 2(g) and 2(h) of the said affidavit affirmed by the caveator in support of the caveat?
4. Is the Will forged and fabricated document?
5. Did the testatrix have the testamentary capacity to make and publish the Will?
6. Is not the will tainted with suspicious circumstances?
7. To what relief, if any, is the plaintiff entitled?
Learned Advocate for the plaintiff submits that, the testatrix is a Mahomedan lady. Although the personal laws of a Mahomedan allows a Mahomedan lady to execute a Will in respect of 1/3rd of her estate, a will executed for the entirety of the estate is not void ab initio by reason of the bequest being for the entire estate. A probate Court is not concerned with the title of the testatrix. It is not concerned with which 1/3rd of the estate that the testatrix has bequeathed by her Will. He relies upon two passages on Mulla's Principles of Mahomedan Law 19th Edition, All India Reporter 1978 Calcutta page 399 (Dhane Ali Mia & Ors. v. Sobhan Ali & Ors.), All India Reporter 1951 Calcutta 7 (Anarali Tarafdar v. Omar Ali & Ors.) and 32 Indian Appeal page 244 (Mirza Kurratulain Bahadur & Ors. v. Nawab Nuzhat-Ed-Dowla Abbas Hossein Khan) in support of such contentions. He submits that, by conduct the heirs of a deceased Mahomedan can acquiesce in the bequest of the entirety of the estate of the deceased by a Will. He refers to the conduct of the defendant herein and the pleadings in G.A. No. 3023 of 2016. He relies upon All India Reporter 2008 Supreme Court page 306 (Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon & Ors.) and All India Reporter 2013 Gauhati page 24 (Ka Riverretta Diengdoh v. Ka Trially Sara Rymbai & Anr.) in support of such contentions.
Learned Advocate for the plaintiff submits that, a probate Court does not decide title of the parties. He relies upon All India Reporter 1938 Nagpur page 173 (Abdul Rashid Abdulla Khan Musalman v. Dr. Syed Minhazul Hasan Naiwuddin Musalman & Anr.), 1993 Volume 2 Supreme Court Cases page 507 (Chiranjilal Shrilal Goenka v. Jasjit Singh & Ors.), 2007 Volume 11 Supreme Court Cases 357 (Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon & Ors.) in support of such contention. Relying upon 2011 Volume 4 Calcutta High Court Notes (Cal) page 643 (In the Goods of : Nurun Nahar) he submits that, the plaintiff is entitled to seek probate of the Will of the deceased.
So far as the allegation of the Will being a manufactured document and the execution of the Will being surrounded by suspicious circumstances is concerned, learned Advocate for the plaintiff submits that, the execution of the Will has been duly established in evidence. The manner of execution of the Will would dispel all allegations that the Will was executed under suspicious circumstances. He points out that, the testatrix is not illiterate. She is not a Pardanashin lady. He points out that, the defendant did not allege, contemporaneously to any authority, with regard to any of the alleged wrong doings by one of the beneficiaries. In such circumstances, he submits that, the allegation of the Will being a manufactured document and the same being executed under such suspicious circumstances has no basis.
Learned Advocate for the defendant submits that, the Will which is marked as Exhibit "A" is a manufactured document. He refers to the signatures of the attesting witnesses appearing in Exhibit "A". He submits that, as Exhibit "A" stands, there is an apparent attempt to fit in the signatures in the first page as also in the second page of the so- called executants of the document. He refers to the user of the Bengali word at the fag end of the Will and submits that, such a word is used while a letter is written. He submits that, it is quite possible that the testatrix was asked to execute a blank document stated to be a letter rather than Will. Such blank document was subsequently filled in to be the purported Will of the testatrix. Therefore, the Court should not grant probate on Exhibit "A". He highlights the manner in which the two attesting witness have appended their signatures on Exhibit "A". He also highlights the conduct of the two attesting witnesses and their relationship with the testatrix. He refers to the evidence to the effect that, the scribe on Exhibit "A" had visited the testatrix and the manner of the so-called execution of the purported Will. Referring to the succession of the testatrix he submits that, the testatrix is survived by her three sons and one daughter. He refers to the contents of Exhibit "A" and submits that, properties which admittedly did not belong to the testatrix were sought to be incorporated in the purported Will. He refers to Dag No. 220 in the Will and submits that, the record of rights being Exhibit "1" shows that, the testatrix was not the owner thereof. He refers to the application for re-examination of the witness of the plaintiff which was made at the behest of the plaintiff.
On the conduct of the plaintiff, learned Advocate for the defendant submits that, the plaintiff is the named executor in Exhibit "A". The plaintiff claims to be the scribe of Exhibit "A". He is a Court Clerk working at the Basirhat Court. He submits that, the testatrix was living at the same residential complex as that of the defendant. He submits that, no family member of the defendant had seen the executor being the plaintiff herein or the two attesting witnesses to arrive at the premises on the fateful day and spend such period of time with the testatrix while the Exhibit "A" was being prepared and executed. He contends that, one of the beneficiaries to the purported Will used to torture the testatrix. The testatrix was in a traumatic condition. She had died an unnatural death within 11 months from the execution of the Will. In fact, the testatrix had committed suicide. Referring to these suspicious circumstances relating to Exhibit "A" he submits that, the plaintiff is not entitled to the probate of Exhibit "A". Referring to 2004 Volume 7 Supreme Court Cases page 459 (Jayamma v. Maria Bhai & Anr.) and 2011 Volume 9 Supreme Court Cases page 223 (Shehammal v. Hassan Khani Rawther & Ors.) he submits that, a probate Court is entitled to look into the title of the testatrix. The testatrix being a Mahomedan lady, could have at best, bequeathed 1/3rd of her estate by way of a Will. She has through Exhibit "A" purported to bequeath the entirety of her estate. Such bequest is not permissible in law. Moreover, the testatrix has not identified which portion of her estate would go by the Will and which other portion would take by natural succession.
Relying upon All India Reporter 1951 Calcutta page 7 (Anarali Tarafdar v. Omar Ali & Ors.) and All India Reporter 2006 Allahabad page 75 (In Re: Begum Shanti Tufail Ahmad Khan) learned Advocate for the defendant submits that, the testatrix having executed a Will making bequests more than one-third of her properties, the Will would be invalid and inoperative.
On the point of the Will being surrounded by suspicious circumstances and a probate in respect thereof ought not to be granted, learned Advocate for the defendant relies upon 1974 Volume 2 Supreme Court Cases page 600 (Surendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr.), 1982 Volume 1 Supreme Court Cases page 20 (Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr.), All India Reporter 1996 Madras page 442 (Ammu Balachandran v. Mrs. O.T. Joshph (died) & Ors.) and 2007 Volume 9 Supreme Court Cases page 728 (Bengal Behera & Anr. v. Braja Kishore Nanda & Ors.).
The probate proceedings relate to the Will and last testament dated April 11, 2007 of one Nurun Nahar, a Mahomedan lady, since deceased. The Will of the deceased is marked as Exhibit "A" in the suit. By Exhibit "A" the testatrix had bequeathed the entirety of her estate in a manner as stated therein. The maintainability of the probate proceedings was questioned by the defendant in an interim application. Such application was allowed. The appeal therefrom was allowed by the judgment and order reported as In the Goods of : Nurun Nahar (supra). It holds that, the High Court by virtue of the powers conferred under the Letters Patent, is entitled to invoke its testamentary jurisdiction for the purpose of grant of probate in respect of a Will executed by a Mahomedan lady. It is not compulsory for an executor to obtain probate of a Will executed by a Mahomedan testator for managing the estate of the deceased. However, if such an executor decides to take such probate and approaches the Court, the Court cannot refuse to exercise testamentary jurisdiction vested in it by law. An executor to a Will executed by a Mahomedan is entitled to institute a civil suit for proving the Will therein in accordance with law against the person who denies the title of the legatee by virtue of such Will.
There is a limit on the testamentary power of a Mohamedan. Section 118 of Mulla's Principles of Mahomedan Law 19th Edition is as follows:-
"118. Limit of testamentary power.- A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator (e)."
Section 40 of the same Mulla's Principles of Mahomedan Law deals with vesting of the estate in the executor named in the Will. It is as follows:-
"40. Vesting of estate in executor and administrator.- The executor or administrator, as the case may be, of a deceased Mahomedan, is under the provisions of the Indian Succession Act, 1925, sec. 211, his legal representative for all purposes, and all the property of the deceased vests in him as such. The estate vests in the executor, though no probate has been obtained by him (h).
But since a Mahomedan cannot dispose of by will more than one-third of what remains of his property after payment of his funeral expenses and debts, and since the remaining two-thirds must go to his heirs as on intestacy unless the heirs consent to the legacies exceeding the bequeathable third, the executor, when he has realized the estate, is a bare trustee for the heirs as to two- thirds, and an active trustee as to one-third for the purposes of the will; and of these trusts, one is created by the Act and the probate irrespective of the will, the other by the will established by the probate (i)."
Dhane Ali Mia & Ors. (supra) is of the view that, in a proceedings of grant of letters of administration it is not for the Court to decide the question of title. The Court's duty is to consider whether the Will had been genuinely made by the testator out of his or her free volition and the said will had been properly executed and attested in accordance with law and the testator had testamentary capacity to execute the will. A Will may not be permissible under the Mahomedan law and a valid title may not pass because of some infirmity in the Will under the Mahomedan law but such contention is foreign to the scope of probate proceeding or a proceeding for grant of letters of administration.
Mirza Kurratulain Bahadur & Ors. (supra) is a suit for accounts arising out of transactions founded upon a probate granted in respect of a Mahomedan Will. It is of the following view:-
"........................... A Mahomedan testator has not an unlimited power of disposition by will : he can only deal with one-third of his property; the remaining two-thirds pass to his heirs whatever the terms of the will may be. Thus the executor, when he has realized the estate, is a bare trustee for the heirs as to two-thirds, and an active trustee as to one- third for the purposes of the will; and of these trusts one is created by the Act and the probate irrespective of the will, the other by the will established by the probate. There are thus two trusts for different sets of persons of different properties and based upon different titles..............."
In that case, an application for grant of letters of administration in respect of a Will of a Mahomedan was allowed by the learned Trial Court. On appeal, essentially two points were raised with regard to the validity of the grant of letters of administration. The first point raised was that, Mahomedan law did not permit bequest in excess of one-third of the property by a Will. As the Will had dealt with the entire estate, the Will was invalid. The second point was that, the Will was not properly executed. The first point was answered by holding that, the Trial Court was justified in considering the application for grant of letters of administration on merit and not throwing the same simply on the view that the Will in question was opposed to Mahomedan law. The grant of letter of administration was, however, reversed on the finding that the testatrix was seriously ill and was not in proper sense to execute the Will.
Anarali Tarafdar (supra) is of the view that, a Mahomedan cannot by Will dispose of more than one-third of his estate unless such bequest in excess of the legal third, is consented to by the heirs after the death of the testator. It is of the view that, the estate of a Mahomedan testator vests in the executor from the date of the testator's death and the former has the power to alienate the estate for the purposes of administering it and he has all the powers of an executor under the provisions contained in Section 307 of the Indian Succession Act, 1925. It remits, a suit for declaration of title and delivery of possession of an immovable property filed by a purchaser as the plaintiff, to the Trial Court for decision on the principles of law formulated therein.
Mahomedan law limits testamentary power of a Mahomedan to bequeath not more than one-third of the surplus of his estate after payment of funeral expenses and debts. It recognizes that, bequest in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator. Therefore, bequest made by a Mahomedan in a Will in excess of the legal third would depend upon consent of the heirs thereto. If the heirs of the deceased Mahomedan give consent to the bequests made in the Will in excess of the legal third, then such bequests take effect. Consent being given by the heirs before the death of the testator may hold good even after his death when such consent is not revoked. Anarali Tarafdar (supra) discuses these aspects in paragraphs 12 and 13 which are as follows:-
"12. As indicated already bequests in excess of the legal third can be effectual only if the heirs consent thereto. Such consent is to be by the heirs as at the time of the testator's death and not at the time of the execution of the Will (Baille 625). The consent to be effective is to be given after the death of the testator (Khajurinnissa v. Raoson, 3 I. A. 291 : (2 Cal 184 P.C.).
13. While discussing as to how the consent by the heirs as at the time of the death of the testator may be proved reference may be made to the observations in Sharifa Bibi v. Ghulam Mahomed 16 Mad. 43 at p. 47 : (3 M. L. J. 14). Consent having been given before the death of the testator and the same not having been revoked it holds good even after his death. Whether the heirs have consented to bequests in excess of the legal third may be signified by the conduct of the parties. Daulatram Khushalchand v. Abdul Kayum, 26 Bom. 497 : (4 Bom. L. R. 132), Mahomed Hussain v. Aishabai, 36 Bom. L. R. 1155 : (A. I. R. (22) 1935 Bom. 84). Consent is also presumed from passive acquiescence by the heirs. Satyendra Nath v. Narendra Nath, 39 C. L. J. 279 : (A. I. R. (11) 1924 Cal. 806). Where the testator left a registered will long silence by the heirs was held to raise a presumption of consent by the heirs Faquir Mohammaa v. Hasan Khan, 16 Luck. 93 at p. 99 :
(A. I. R. (28) 1941 Oudh 25)."
In Re: Begum Shanti Tufail Ahmad Khan (supra) is a testamentary proceedings for grant of probate of a deceased Mohamedan. After noticing various authorities including Anarali Tarafdar (supra) it is of the view that, a deceased testatrix had other heirs who were alive and that, without their consent which has nowhere being pleaded, the testatrix could not have made a bequest of more than one-third of a properties. Having done so, the will is invalid and inoperative.
Jayamma (supra) is a proceedings for grant of letters of administration of a Will. It notes Section 61 of the Karnataka Land Reforms Act, 1961 which imposes a restriction on transfer of land. It is of the following view:-
"15. The Court empowered to grant a letters of administration although ordinarily may not go into the question of title in respect of property sought to be bequeathed by the testator the situation would be different where the authority of the testator to execute a Will in relation to the subject matter thereof is in question. When a statutory embargo exists on execution of a Will, the court shall not refuse to determine the question as regards validity thereof, as in terms of the provisions of a statute, the same would be void ab initio."
In view of the statutory embargo existing in respect of execution of a Will, it finds that a Court should determine the question of validity of the Will in terms of the provisions of the concerned statute. A property guided by the provisions of the Karnataka Land Reforms Act, 1961 was sought to be bequeathed by a Will to a person who is not a member of the family. The application for grant of letters of administration was allowed by the Trial Court. On appeal the same was reversed. The appeal before the Hon'ble Supreme Court was dismissed. The ratio is inapplicable in the fact of the present case for the reasons discussed hereafter.
A Mahomedan does not suffer a complete embargo on making a bequest in excess of the legal third. He can make bequests in excess of the legal third with the consent of his heirs. Such consent must, however, continue even after his death. Bequests made without the consent of the heirs, in excess of the legal third can take effect provided the heirs of the testator consents thereto after the death of the testator. The heirs of the deceased Mahomedan can acquiesce in the bequests made in excess of the legal third after the death of the testator. Such acquiescence would make the bequests valid. Execution of a Will containing bequests in excess of the legal third by a Mohamedan, therefore, ipso facto does not become invalid. Such an act of the Mahomedan testator is depended upon the course of action taken by his heirs subsequent to his death. The heirs can consent to the bequests made in excess of the legal third. When such consent is given, the bequests made in excess of legal third become valid. Where there is no consent, bequests take effect in terms of the Will for the legal third while the balance two-thirds take on intestacy. Any person entitled to a probate or a letters of administration of a Will of a Mahomedan containing bequests in excess of the legal third can apply for the same before the forum competent to grant the same. Upon such an application being received, the competent forum will consider it in accordance with law.
Dhane Ali Mia & Ors. (supra) and Anarali Tarafdar (supra) read together would mean that, a person can apply for grant of probate or letters of administration, as the case may be, of a Will of a Mahomedan where the bequest is more than the legal third and that, such proceedings must not be thrown out solely on the ground that a Mahomedan cannot make a Will in excess of one-third of the surplus after payment of funeral expenses and debts. Bequests made by a Mahomedan in his Will, in excess of one-third of the surplus of the estate left after payment of the funeral expenses and the debts, will be valid if the same is consented to by his heirs, after his death. The view expressed in Begum Shanti Tufail Ahmad Khan (supra) is not followed.
Abdul Rashid Abdulla Khan Musalman (supra) is of the view that, a Mahomedan Will can be admitted to probate although it purports to deal with more than the share over which the testator has disposing power. However, where more than the legal third is disposed of by the Will, the position of the executor with regard to the excess will be different in kind from that it would be if the testator had power to dispose of the whole. A probate Court has no jurisdiction to determine any such question or any other question of title. Chiranjilal Shrilal Goenka (supra) is of the view that, probate Court does not decide any question of title or the existence of the property itself. Kanwarjit Singh Dhillon (supra) is of the view that, the functions of a probate Court are to see that, the Will executed by the testator was actually executed by him in a sound disposing state of mind, without coercion or undue influence and the same was duly attested. A probate Court is not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired by the testator. Shehammal (supra) is in respect of a family settlement of a Mahomedan family. The ratio laid down therein, in my view, has no manner of application to the facts of the present case.
The plaintiff has duly established the execution of the Will by the testatrix in presence of the two attesting witnesses, with the attesting witnesses seeing the testatrix signing the Will and the attesting witnesses having signed Exhibit "A" at the request of the testatrix. The defendant has not been able to disprove the same.
In view of the discussions above, the first issue is answered in the affirmative, in favour of the plaintiff and against the defendant.
It is alleged by the defendant that, one of the beneficiaries of the Will was torturing the testatrix during her lifetime. The testatrix had her husband living at the time of execution of the Will. She had three sons and one daughter. No contemporaneous correspondence has been brought on record to suggest that, the testatrix was under the influence of any of the beneficiaries or that, she was being tortured. She did meet an unnatural death after the execution of the Will. Nothing has been established in evidence to suggest that, the executor or the beneficiaries were in any manner connected with the unnatural death of the deceased. The allegations of undue influence and coercion remain unsubstantiated. The evidence led by the parties does not establish that, the testatrix was suffering from any illness at the time of execution of the Will disabling her from executing the Will. She was of sound mind.
Exhibit "A" is in Bengali vernacular. It narrates the incidents and reasons which had necessitated the testatrix to make the Will. The incidents and reasons as narrated in Exhibit "A" have not been disproved by the defendant in evidence. The testatrix had described the properties available to her in Exhibit "A". She makes bequests in respect thereto. The narrations of events as appearing in Exhibit "A" have not been proved to be false by the defendant. She gives her reasons for making the bequests as she has done. A probate Court is not called upon the question the wisdom of a testatrix in making the bequest. In describing the properties available to her, the testatrix describes a property which does not belong to her, that is, Dag No. 220. Mis-description of an immovable property in the Will where various immovable properties are involved, ipso facto, does not invalidate the Will. At best, the bequest in respect of the immovable property will not take place. However, in a given situation it can be garnered from the terms of the Will that the testatrix intends to give such immovable property to an identified person. In such a situation, the bequest is valid and governs the mis-described immovable property concerned.
Exhibit "A" was executed on April 11, 2007. The evidence led on behalf of the plaintiff is that, the scribe writing Exhibit "A" was working as a Court Clerk at Basirhat District Court. The scribe went to the premises of the testatrix on the request of the testatrix. The attesting witnesses were present at the residence of the testatrix. Exhibit "A" was written by the scribe at her instructions and was executed by the testatrix in presence of the two attesting witnesses and that, the testatrix and the two attesting witnesses had set and subscribed their signatures in presence of each other. The defendant contends that, no person of the family of the defendant saw the three persons enter the residence of the testatrix for the purpose of execution of Exhibit "A". No reliance can be placed on such claim made on behalf of the defendant. It is a claim as against a written document which establishes the execution of the document on a particular day. The execution of the document stands established. Therefore, such claim of the defendant cannot be accepted.
Much is said on behalf of the defendants, about the manner in which the signatures of the respective executants appear in Exhibit "A". Exhibit "A" is a Will in Bengali vernacular. It ends with a particular word which is usually used in Bengali vernacular at the end of a letter. Mahomedan law does not prescribe any form for making a Will. Exhibit "A", therefore, cannot be said to be against a prescribed form. The intention of the testatrix is clear from Exhibit "A". Exhibit "A" satisfies all ingredients of a Will. The signatures of the respective executants are duly proved. The manner in which Exhibit "A" is written, will establish that, it is done in one sitting as the hand writing in Exhibit "A" tends to fray as the writing progresses. Normally, the hand writing tends to fray after a given point of time. The scribe is said to be working as a Court Clerk. The scribe, therefore, has taken the pre-caution of not keeping any space in Exhibit "A" for the possibility of inclusion of words in Exhibit "A" subsequent to its execution. This lack of space is highlighted at the behest by the defendant. In the facts of the present case, the lack of space in Exhibit "A" reinforces the view that, Exhibit "A" was duly executed. The signatures of the attesting witnesses appear at the designated places in Exhibit "A". The signatures were obviously affixed subsequent to Exhibit "A" being written down in accordance with the instructions of the testatrix. That explains the signatures of the testatrix and the attesting witnesses as appearing in Exhibit "A".
Surendra Pal & Ors. (supra) is of the following view:-
"7. The propounder has to show that the will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. (See H. Venkatachala Iyengar v. B. N. Thimmajamma, and Rani Purnima Devi and Anr v. Kumar Khagendra Narayan Dev.) In the latter case this Court, after referring to the principles stated in the former case emphasized that where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will which may be unnatural or unfair or improbable when considered in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the will had been obtained by fraud or undue influence, a probate of the will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. The observations of the Privy Council in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga support the above proposition. Mr. Ammer Ali observed at p. 33:
It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the will on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case.
In the light of what has been stated if the various requirements of a valid will are established, then as observed by the Privy Council in Motibai Hormusjee Kanga's came at p. 33:
A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition.
Smt. Indu Bala Bose & Ors. (supra) is of the following view:-
"7. This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Successions Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the disposition made in the Will being unnatural, improbable or unfair in the light of 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 naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.
If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations."
Ammu Balachandran (supra) is of the view that, since a Will is not registered, the same does not give rise to suspicious circumstances. If some of the pages are not signed, that by itself cannot also be said to give rise to a suspicious circumstance.
Bengal Behera & Anr. (supra) finds that, the execution of the Will in the facts of that case was not adequately proved. It goes on to say that, the Court must satisfy itself not only of the genuineness of the document but also any suspicious circumstance.
Exhibit "A" deals with properties in excess of the legal third that the testatrix was entitled to bequest. All the heirs of the testatrix have not consented to the bequests made in excess of the legal third. The testatrix is survived by three sons and one daughter. Apart from the defendant, who is one of the sons of the testatrix, all other heirs of the testatrix have not contested the proceedings in spite of notice. This non contest, in spite of notice, can be construed to mean their acquiescence in the bequests made in the Will in excess of the legal third. The contention of the defendant that, the bequests do not identify the legal third remains. It is not for the probate Court to identify the legal third. The parties are at liberty to have the same resolved by an appropriate proceeding.
In view of the discussions above, the second to the fourth issues are answered in the negative, in favour of the plaintiff and against the defendant. The fifth issue is answered by holding that, the testatrix had the testamentary capacity to make and publish the Will. The sixth issue is answered by holding that, the Will is not tainted with any suspicious circumstances. The seventh issue is answered by holding that, the plaintiff is entitled to a decree in terms of prayer (c).
The parties will bear their respective costs.
T.S. No. 46 of 2016 is decreed accordingly.
The department will draw up and complete the decree as expeditiously as possible.
[DEBANGSU BASAK, J.] Later:-
Learned Advocate for the defendant prays for stay. The same is considered and refused.
[DEBANGSU BASAK, J.]