Calcutta High Court
Soumitra Dhar vs Ashim Kumar Nandy on 29 November, 2016
Author: R. K. Bag
Bench: Ranjit Kumar Bag
Form No.(J2) IN THE HIGH COURT AT CALCUTTA Testamentary and Intestate Jurisdiction ORIGINAL SIDE Present:
The Hon'ble Justice Ranjit Kumar Bag T. S. No.13 of 2012 With T. S. No.20 of 2012 Soumitra Dhar V. Ashim Kumar Nandy And Ashim Kumar Nandy V. Arati Dhar & Anr.
For the Plaintiff: Mr. Suman Dutta, Adv.
Ms. Debjani Ghosh, Adv.
Ms. Poulami Bose, Adv.
For the Defendants: Mr. A. C. Kar, Adv.
Mr. D. K. Dey, Adv.
Hearing concluded on: October 3, 2016.
Judgement delivered on: November 29, 2016. R. K. Bag, J. Two Testamentary Suits arose out of two separate applications for grant of probate - one application was filed by Ashim Kumar Nandy for grant of probate of the Will and testament dated February 3, 1988 executed by his father, Shyam Sunder Nandy in respect of his assets and properties which was registered as PLA No.244 of 2010 and another application was filed by Soumitra Dhar (hereinafter referred to as the plaintiff) for grant of probate of the last Will and testament dated January 28, 1995 executed by his grandfather, Shyam Sunder Nandy in respect of his assets and properties, which was registered as PLA No.278 of 2010. While Ashim Kumar Nandy (hereinafter referred to as the defendant) filed an affidavit in support of the caveat in connection with PLA No.278 of 2010, the matter became contentious and PLA No.278 of 2010 was converted to TS No.13 of 2012. On the other hand, PLA No.244 of 2010 was converted to TS No.20 of 2012 when Arati Dhar and Suniti Dey filed two separate affidavits in support of the caveat in connection with PLA No.244 of 2010 and the matter became contentious by the order of the court. Both TS No.13 of 2012 and TS No.20 of 2012 have been taken up for analogous hearing and as such both the above suits are disposed of by this common judgment.
2. One Shyam Sunder Nandy executed one registered Will and testament in respect of his assets and properties on February 3, 1988 and appointed his son - the defendant as the sole executor of the said Will. Subsequently, the said Shyam Sunder Nandy revoked his Will dated February 3, 1988 and executed another registered Will and testament in respect of his assets and properties on January 28, 1995 and appointed the defendant and the plaintiff as the joint executors of the said Will. The said Shyam Sunder Nandy died on July 30, 2003 leaving behind his wife - Parbati Nandy, his son - the defendant, his married daughter - Arati Dhar and his married daughter - Suniti Dey as his legal heirs. Subsequently on June 20, 2010 Parbati Nandy, wife of the deceased testator - Shyam Sunder Nandy expired leaving behind only the defendant and Arati Dhar and Suniti Dey as her legal heirs.
3. The fact of the case made out by the plaintiff is that his grandfather - Shyam Sunder Nandy specifically revoked his earlier registered Will dated February 3, 1988 and executed his last registered Will and testament on January 28, 1995 and appointed his maternal uncle - the defendant and himself as joint executors of the said Will. The plaintiff sent three separate letters dated July 28, 2010, August 10, 2010 and August 24, 2010 to the defendant through his Learned Advocate for joining him in filing application for grant of probate of the last Will and testament of Shyam Sunder Nandy or to renounce the executorship of the Will, so that the plaintiff alone can file the application for grant of probate of the said Will. The defendant did not respond to the said letters of the plaintiff, but he contested the probate proceeding by filing an affidavit in support of the caveat. According to the plaintiff, two other legal heirs of the deceased Shyam Sunder Nandy namely Arati Dhar and Suniti Dey have filed separate affidavits by which they have given consent to the grant of probate of the said Will in favour of the plaintiff. The affidavits filed by Arati Dhar and Suniti Dey in support of the caveat in connection with TS No.20 of 2012 indicate that Shyam Sunder Nandy gifted away entire first floor of the roof top of his residential building in favour of the defendant on October 1, 1986 and thereafter bequeathed his entire assets and properties in favour of the defendant by executing registered Will dated February 3, 1988 and appointed the defendant as the sole executor of the said Will. The specific case of the two daughters of Shyam Sunder Nandy is that the attitude of the defendant towards his parents was totally changed when the defendant constructed his flat on the 2nd floor of the residential building and after execution of the Will by his father - Shyam Sunder Nandy on February 3, 1988. The defendant was totally indifferent and negligent in maintaining his parents after execution of the Will by his father - Shyam Sunder Nandy on February 3, 1988. Shyam Sunder Nandy regretted for making Will in respect of his entire assets and properties in favour of the defendant and as such he changed his mind and revoked the Will dated February 3, 1988 and executed fresh registered Will in respect of his assets and properties on January 28, 1995 and appointed both the defendant and the plaintiff as joint executors of the said Will. The plaintiff has prayed for grant of probate of last Will and testament of Shyam Sunder Nandy executed on January 28, 1995 and has prayed for dismissal of T.S. No. 20 of 2012.
4. The defendant has contested the probate proceeding by filing an affidavit in support of the caveat in connection with the last registered Will and testament of Shyam Sunder Nandy executed on January 28, 1995. The specific case made out by the defendant is that Shyam Sunder Nandy had no testamentary capacity at the age of 81 years when his last Will dated January 28, 1995 was executed. The defendant has specifically denied that he neglected to maintain his parents at any material point of time. The defendant had to stay outside his residence intermittently in connection with his official duty as an officer of the bank and his two sisters - Arati Dhar and Suniti Dey used to visit their parents taking advantage of the absence of the defendant from the house. It is specifically alleged that the Will dated January 28, 1995 executed by Shyam Sunder Nandy is vitiated by coercion and undue influence. The defendant has also specifically denied the execution and attestation of the Will dated January 28, 1995. The defendant has prayed for dismissal of T.S. No.13 of 2012 and for grant of probate of the registered Will and testament dated February 3, 1988.
5. On the above pleadings the issues framed for adjudication of the disputes involved in both the suits are recast as follows:
(i) Is the Will dated January 28, 1995 executed and attested as per provision of law?
(ii) Is the Will dated February 3, 1988 revoked by Shyam Sunder Nandy in accordance with law?
(iii) Had the testator - Shyam Sunder Nandy testamentary capacity to execute the Will dated January 28, 1995?
(iv) Is the Will dated January 28, 1995 vitiated by coercion and undue influence as alleged in the written statement?
(v) Is the Testamentary Suit being TS No.20 of 2012 maintainable in law?
(vi) Is the plaintiff entitled to get the probate of the Will dated January 28, 1995?
6. Issue no.(i): The plaint case is that the testator - Shyam Sunder Nandy executed his last Will and testament in respect of his assets and properties on January 28, 1995. The case made out by the defendant in paragraph 20 of the written statement is that no Will was executed by Shyam Sunder Nandy on January 28, 1995. The onus lies on the propounder of the said Will to prove execution and attestation of the Will as per provision of Section 63 of the Indian Succession Act. The attesting witness - Sukumar Dey has proved the execution and attestation of the Will dated January 28, 1995 which is marked Exhibit-D. It transpires from the evidence of Sukumar Dey that one Netai Charan Mullick, Solicitor and Advocate drafted the said Will as per instruction of the testator - Shyam Sunder Nandy and the Will was signed by both the testator - Shyam Sunder Nandy and the witness - Netai Charan Mullick. The defendant has stated in his evidence before the Court that Netai Charan Mullick since deceased was the son of maternal uncle of the defendant. The reply of the defendant to question no.275 to question no.283 during cross- examination indicates that the defendant has also admitted the signature of the testator - Shyam Sunder Nandy and the signature of the attesting witness - Netai Charan Mullick on the Will marked Exhibit-D. The specific reply of the defendant to question no.316 during his cross-examination further indicates that the defendant has candidly admitted the signature of the testator - Shyam Sunder Nandy on the Will marked Exhibit-D. Since the witness - Sukumar Dey has proved the execution and attestation of the Will dated January 28, 1995 (Exhibit-D), I can safely hold that the plaintiff has been able to prove due execution and attestation of the Will dated January 28, 1995 (Exhibit-D) as per provision of Section 63 of the Indian Succession Act. This issue is, thus, decided in favour of the plaintiff.
7. Issues No. (iii) and (iv): Both these issues are inter-related and as such these issues are taken up together for convenience of discussion. The specific case made out by the defendant in paragraph 11, 19, 23 and 27 of the written statement is that the testator - Shyam Sunder Nandy was suffering from various ailments at the age of 81, when the Will dated January 28, 1995 was executed. The case of the defendant is that in the year 1990 father of the plaintiff being the eldest son-in-law of the testator - Shyam Sunder Nandy died and thereafter he became very sympathetic to the mother of the plaintiff. The further case made out by the defendant is that he used to stay extensively outside the city of Kolkata in connection with his official duty, and the two sisters of the defendant including the mother of the plaintiff took advantage of the situation and dominated the Will of Shyam Sunder Nandy. The specific case of the defendant is that the testator - Shyam Sunder Nandy had no sound disposing mind at the time of execution of the Will dated January 28, 1995. According to the defendant, the Will dated January 28, 1995 is vitiated by coercion and undue influence.
8. The defendant has stated in reply to question no.21 and question no.90 that the testator - Shyam Sunder Nandy was suffering from loss of memory and he was not in a position to recollect the names of persons and he also used to forget many incidents immediately after participating in those incidents. The defendant has also claimed to have paid municipal tax of premises no.172/21, Acharya Jagadish Chandra Bose Road, though the tax receipts (collectively Exhibit-1) indicate payment of rent by the testator - Shyam Sunder Nandy. By producing income tax return of the testator - Shyam Sunder Nandy (Exhibit-2) for the period from 01.04.1997 to 2002-2003 (collectively Exhibit-2), the defendant has claimed to have filed the said income tax return after obtaining signature of his father. The documents marked Exhibit-3 and Exhibit-4 indicate that the telephone standing in the name of the testator - Shyam Sunder Nandy was transferred to the defendant and the telephone bill was paid by the defendant. By producing medical bill of the year 2003 (collectively Exhibit-5) the defendant has tried to establish that the defendant paid the medical expenditure incurred by his father - Shyam Sunder Nandy. The documents marked Exhibit-6, 7 and 8 go to establish that the corporation tax of the premises no.172/21, Acharya Jagadish Chandra Bose Road was paid by the defendant from the year 1998- 1999 onwards. By pointing out the above evidence Mr. Kar, Learned Counsel for the defendant contends that the testator - Shyam Sunder Nandy had no sound disposing mind for execution of the Will dated January 28, 1995.
9. In "Madhukar D. Shende V. Tarabai Aba Shedage" reported in (2002) 2 SCC 85 the Supreme Court has laid down in paragraph 9 how the onus of proof shifts on the propounder to satisfy the court about the sound disposing capacity of the testator in order to dispel the suspicious circumstances. It is pertinent to quote some portion of paragraph 9 of the said judgement, which is as follows:
"9. It is well-settled that one who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. The contestant opposing the Will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. ...."
10. Similarly, in "Pentakota Satyanarayana V. Pentakota Seetharatnam"
reported in (2005) 8 SCC 67, the Supreme Court has held in paragraph 24 when the onus of proof shifts on the propounder to establish the sound disposing capacity of the testator at the time of execution of the Will. I would like to quote relevant portion of paragraph 24 of the judgement, which is as follows:
"24. .... In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same."
11. In view of the above proposition of law laid down by the Supreme Court and in view of the specific allegation of the defendant that the testator - Shyam Sunder Nandy had no sound disposing mind at the time of execution of the Will dated January 28, 1995, the onus shifts on the propounder of the Will to establish that the testator - Shyam Sunder Nandy had sound disposing mind at the time of execution of the said Will. Before embarking upon the exercise to scan the evidence on record to decide whether the testator - Shyam Sunder Nandy had sound disposing mind at the time of execution of the Will dated January 28, 1995, it will be wise and prudent on my part to discuss the tests laid down by the Court for assessing sound disposing mind of the testator. Relying on "Surendra Krishna Mondal V. Sreemati Ranee Dassi" reported in 24 CWN 860, Mr. Kar, Learned Counsel for the defendant, contends that the deceased - Shyam Sunder Nandy had no sound disposing mind to comprehend the extent of his property and to form judgement with respect to cancellation of his previous Will due to his old age and ailments at the time of execution of the Will on January 28, 1995. In the said report, it is held by the Division Bench of our High Court in page 867 that "mere ability to sign one's name does not necessarily imply the possession of the full mental powers requisite for a valid disposition of property. Nor is it sufficient to show that the testator was conscious when he executed the instrument." To establish disposing mind of the testator it must be proved, as observed in page 867 of the judgement, that "he must be able to understand his position, he must be able to appreciate his property, to form a judgement with respect to the parties whom he chose to benefit by it after death, and if he has capacity for that, it suffices." The disposing mind of the testator in order to execute a valid Will can be ascertained, as observed in page 867 of the judgement, when "one must have sufficient active memory to recollect his family and his property and to form a rational judgement in regard to the deserts of the one and the disposition of the other with reference to such deserts."
12. The test of sound disposing mind is laid down by the Division Bench of our High Court in "A.E.G. Carapiet V. A. Y. Derderian" reported in AIR 1961 Cal 359, wherein it is held in paragraphs 16 to 19 as follows:
"16-19. ... ..The test of a sound disposing mind is in law a workable test. It means in plain language an appreciation of the fact that the man is making a Will, an appreciation of the contents of that Will and an appreciation of the nature of disposition that he is making having regard to the claims of affection and family relationship and claims of the society or community to which he belongs. ......"
It is further held in the said paragraphs that the illustrations of Section 59 of the Indian Succession Act make it clear "that a mere perception of what is going on in the immediate neighbourhood and an ability to answer familiar questions but without competent understanding as to the nature of his property or the persons who are kindred to him or in whose favour it would be proper that he should make his Will, will not be enough proof of a sound disposing mind within the meaning of Section 59 of the Succession Act. ..."
13. Let us now scan the evidence on record to find out whether the plaintiff has been able to establish by cogent evidence that the testator - Shyam Sunder Nandy had sound disposing mind at the time of execution of the Will dated January 28, 1995. There is no dispute that the testator - Shyam Sunder Nandy died on July 30, 2003 leaving being his wife - Smt. Parbati Nandy, son - the defendant, daughter - Smt. Arati Dhar and another daughter - Smt. Suniti dey as his legal heirs. It has also not been disputed that Smt. Parbati Nandy died on June 20, 2010. The further admitted position is that the testator - Shyam Sunder Nandy executed one Will in respect of his assets and properties on February 3, 1988 by which he bequeathed his entire assets and properties in favour of the defendant and appointed him as the sole executor of the Will. It has been established from the evidence on record that testator - Shyam Sunder Nandy executed his last Will and testament in respect of his assets and properties on January 28, 1995 and bequeathed his assets and properties in favour of his son - the defendant and two daughters - Arati Dhar and Suniti Dey and appointed his son - Ashim Kumar Nandy and his grandson - Soumitra Dhar as Joint Executors of the said Will. The testator - Shyam Sunder Nandy was alive for a period of almost 8 years after execution of his last Will and testament on January 28, 1995. No evidence is forthcoming before the Court to indicate what was the specific ailment for which the testator - Shyam Sunder Nandy was suffering at the age of 81. What transpires from the evidence on record is that the testator -Shyam Sunder Nandy had undergone Hernia operation long back and he was admitted to the nursing home immediately before his death in the year 2003. The defendant has tried to establish by adducing evidence that the testator - Shyam Sunder Nandy was suffering from loss of memory and he was not in a position to recollect the names of the persons with whom he conversed and the incidents in which he took part.
14. The plaintiff has proved photocopy of one letter dated May 30, 1996 (Exhibit-H) which was addressed to the Collector of Kolkata Municipal Corporation by the testator - Shyam Sunder Nandy in connection with assessment of tax of premises no.172/21, Acharya Jagadish Chandra Bose Road. The reply given by the defendant to question no.235 to question no.242 during cross-examination indicates that the testator - Shyam Sunder Nandy had written the said letter to the Collector of Kolkata Municipal Corporation for reduction of tax of premises no.172/21, Acharya Jagadish Chandra Bose Road, as he was getting tax bill at enhanced rate in spite of reduction of the tax by way of assessment and as such he was not in a position to pay arrears of tax for almost last six years. The defendant candidly admitted during cross-examination in reply to question no.242 that his father (testator - Shyam Sunder Nandy) was in a position to comprehend the problem he was facing with the Corporation and he had the clarity of thought to write the letter by enclosing relevant bills by his own hand writing for consideration of the Corporation in the year 1996. The signature of the testator - Shyam Sunder Nandy and the endorsement made by the testator - Shyam Sunder Nandy on the said letter dated May 30, 1996 (Exhibit- H) was specifically admitted by the defendant during cross- examination. The defendant also admitted in reply to question no.272 during cross-examination that his father, the testator - Shyam Sunder Nandy could comprehend what was written in the letter (Exhibit-H & I) before signing the same.
15. The testator - Shyam Sunder Nandy got new Permanent Account No.AAEPN9149D from the income tax department accompanied by a letter dated April 16, 1998 which is admitted into evidence and marked Exhibit-K on admission of the defendant during cross- examination on September 21, 2016. The reply to question no.342, question no.343 and question no.344 given by the defendant during cross-examination goes to show that the testator - Shyam Sunder Nandy could compute his income tax, maintain his accounts and file his return personally without engaging any lawyer and the same was done by him till the year 2003. It has, thus, been established from the above evidence on record that the testator - Shyam Sunder Nandy had the capacity to write to the Collector of Kolkata Municipal Corporation raising objection for receiving tax bill at enhanced rate in spite of reduction of the tax by way of assessment and by making endorsement on the letter in his own hand writing for enclosing the copy of previous tax bills and to comprehend what was written by him and to understand about the fall out of his action. The fact of submission of income tax return by maintaining statement of account and by getting a new PAN from the income tax department personally without having any legal assistance, unerringly points out that the testator - Shyam Sunder Nandy was able to understand his position, appreciate his income and property and to form a rational judgement in respect of disposition of his assets and properties at the time of execution of his Will dated January 28, 1995. It passes my comprehension to believe that the testator - Shyam Sunder Nandy was suffering from loss of memory or that he was not in a position to recollect the recent incidents in which he participated as reflected from the evidence of the defendant.
16. The dwelling house of the testator - Shyam Sunder Nandy bequeathed by the Will dated January 28, 1995 is described as premises no.172/21 and 172/21/1, Acharya Jagadish Chandra Bose Road in the said Will marked Exhibit-D. It appears from the various documentary evidence produced before this court that the said dwelling house is described as premises no.172/21, Acharya Jagadish Chandra Bose Road. Moreover, the testator has bequeathed 1st floor of the dwelling house with right to use common space and staircase to his eldest daughter - Arati Dhar and the ground floor of the dwelling house with right to use common space and staircase to his youngest daughter - Suniti Dey and tenanted premises on the back portion of the dwelling house consisting of ground floor and 1st floor and one garage to his son - the defendant. The testator has mentioned in the Will that his eldest daughter and the youngest daughter will also get proportionate share of land on which the dwelling house is situated along with 1st floor and ground floor of the said dwelling house. Admittedly, the testator - Shyam Sunder Nandy gifted the roof top of the 1st floor of the said dwelling house and the proportionate land on which the dwelling house is situated to his son
- the defendant by registered deed of gift dated October 1, 1986. The further admitted position is that the defendant has constructed a flat on the roof top of 1st floor of dwelling house and the defendant has been residing in the said flat along with members of his family. The said deed of gift is marked Exhibit-L. Mr. Kar, Learned Counsel for the defendant, submits that the inconsistency in describing the premises of the dwelling house bequeathed by the testator - Shyam Sunder Nandy and allotment of proportionate share of land to his two daughters - Arati Dhar and Suniti Dey along with 1st floor and ground floor of the dwelling house respectively after gifting away proportionate share of land of the dwelling house along with roof top of the 1st floor to his son - the defendant under registered deed of gift marked Exhibit-L, indicate that the testator - Shyam Sunder Nandy was not aware of the property bequeathed by him and as such he had no sound disposing mind at the time of execution of the Will dated January 28, 1995.
17. It appears from the copy of registered deed of gift dated October 1, 1986 (Exhibit-L) that the testator - Shyam Sunder Nandy gifted away the roof top of 1st floor of the dwelling house along with proportionate share of land to the defendant. The dwelling house is described as premises no.172/21 and 172/21/1, Lower Circular Road (presently Acharya Jagadish Chandra Bose Road) by the registered deed of gift dated October 1, 1986 (Exhibit-L). The defendant has stated in evidence that the description of the premises in the deed of gift dated October 1, 1986 (Exhibit-L) is incorrect. Since the defendant has accepted the gift under registered deed dated October 1, 1986 (Exhibit-L) in spite of having wrong description of the dwelling house, I don't think that the defendant will have any problem in identifying the said dwelling house. There cannot be any problem in acquiring proportionate share of land on which the dwelling house is situated either by the son - the defendant or by the daughters - Arati Dhar and Suniti Dey when they will get their respective demarcated share in the dwelling house bequeathed by the testator - Shyam Sunder Nandy. Since the defendant already constructed one flat on the roof top of the 1st floor of the dwelling house after obtaining the gift from his father - Shyam Sunder Nandy on October 1, 1986, the testator - Shyam Sunder Nandy has bequeathed back portion of the dwelling house consisting of two floors and garage to the defendant, while 1st floor of the dwelling house was bequeathed to the eldest daughter - Arati Dhar and the ground floor of the dwelling house was bequeathed to the youngest daughter - Suniti Dey by the Will dated January 28, 1995. Had there been no sound disposing mind of the testator - Shyam Sunder Nandy, he would not have distributed his property in almost equal share among his son and daughters by executing the Will on January 28, 1995 (Exhibit-D).
18. In "Gunjari Das V. Subal Chandra Das" reported in 2009(4) CHN 784 the Division Bench of our High Court considered the effect of misdescription of the property on the testamentary capacity of the testatrix at the age of 95 years when the Will was executed. In this report the testatrix gifted one cottah of land with structure out of four cottahs of land with structure thereon to her granddaughter who happens to be the daughter of predeceased son of the testatrix. The testatrix omitted to mention this fact in the Will due to forgetfulness of memory, which resulted in misdescription of the property bequeathed by the testatrix. The Division bench of our High Court granted probate of the Will by holding that the misdescription of the property bequeathed by the Will due to forgetfulness of memory of the testatrix, cannot be construed as lack of testamentary capacity of the testatrix to execute the Will, particularly when she lived for about four years after execution of the Will and when execution and attestation have been duly proved by the attesting witness as per provision of Section 63 of the Indian Succession Act. By applying the above test in the facts of the present case I can safely hold that the inconsistency in describing the dwelling house of the testator - Shyam Sunder Nandy cannot be construed as lack of testamentary capacity to execute the Will dated January 28, 1995, when the testator - Shyam Sunder Nandy had the active memory to maintain the accounts of his income, compute income tax and submit income tax return personally without any legal assistance long after execution of the said Will in 1995 and when he was able to make representation to Kolkata Municipal Corporation for reduction of tax of his property and to form rational judgement not only with respect to his property, but also with respect to the legacy he chose to bequeath to his legal heirs after his death.
19. The defendant has made out a case that the Will dated January 28, 1995 is vitiated by coercion and undue influence, as his two sisters were in a position to dominate the Will of his father taking advantage of his absence from the dwelling house after the death of eldest son- in-law of the testator - Shyam Sunder Nandy. There is no iota of evidence adduced by the defendant to establish that the testator - Shyam Sunder Nandy was coerced by his daughters or by the plaintiff who happens to be the grandson of the testator for execution of the Will dated January 28, 1995. The frequent visit of the plaintiff to the house of the testator after the death of his father is quite natural on consideration of human relationship. There is nothing on record to indicate that the testator - Shyam Sunder Nandy was completely bedridden or was not in a position to take independent decision due to mental incapacity or physical ailments at the time of execution of the Will on January 28, 1995. The fact that the testator - Shyam Sunder Nandy was alive for almost 8 years after execution of the Will dated January 28, 1995 speaks volume against allegation of undue influence labelled by the defendant. In my view, the defendant has failed to adduce cogent evidence to establish that the plaintiff or the two daughters of the testator Shyam Sunder Nandy were in a position to dominate the Will of the testator either before the execution of the Will or after the execution of the Will dated January 28, 1995. In view of my above observations, I would like to hold that the testator - Shyam Sunder Nandy had sound disposing mind at the time of execution of the Will dated January 28, 1995 and the said Will is not vitiated by coercion and undue influence. Issue no.(iii) is decided in the affirmative and issue no.(iv) is decided in the negative.
20. Issues No.(ii) and (v): Both these issues are inter-connected and as such the same are taken up together for convenience of discussion. I have already observed during discussion of issue no.(i) that the Will dated January 28, 1995 (Exhibit-D) was duly executed and attested as per provision of Section 63 of the Indian Succession Act. The Testamentary Suit No.20 of 2012 arose out of probate proceeding initiated by the defendant for grant of probate of the Will and testament dated February 3, 1988 executed by his father - Shyam Sunder Nandy in respect of his assets and properties. It appears from Exhibit-D that the testator - Shyam Sunder Nandy revoked his previous Will and testament dated February 3, 1988. Since I have already observed that the testator - Shyam Sunder Nandy had the testamentary capacity to execute the Will and testament dated January 28, 1995 (Exhibit-D), the former Will executed by the same testator - Shyam Sunder Nandy on February 3, 1988 deserves to be revoked as desired by the testator - Shyam Sunder Nandy. On perusal of the recitals of the Will marked Exhibit-D, I find the reasons for revocation of the former Will dated February 3, 1988 by the testator - Shyam Sunder Nandy. The testator has stated in the Will (Exhibit-D) that his eldest son-in-law died in the year 1990 and his eldest daughter to whom no property was given by the testator in his previous Will dated February 3, 1988, has been residing in a tenanted accommodation. The testator did not suppress his great affection for his grandson, the plaintiff whose father died premature death. The testator has also indicated in page 2 of the Will (Exhibit- D) that his son - the defendant Ashim Kumar Nandy is not looking after him, though he has already gifted roof top of the 1st floor of the dwelling house on which he constructed his flat and residing there with members of his family. So, there were valid reasons for revocation of former Will dated February 3, 1988 by the testator - Shyam Sunder Nandy. The reasons given by the testator - Shyam Sunder Nandy for revocation of the former Will dated February 3, 1988 seems to be valid and as such the said former Will dated February 3, 1988 executed by the testator - Shyam Sunder Nandy stands revoked. In view of my such findings, Testamentary Suit No.20 of 2012 instituted by the defendant for grant of probate of the former Will dated February 3, 1988 is not maintainable in law. Issue no.(ii) is decided in the affirmative and issue no.(v) is decided in the negative.
21. Issue no.(vi): It appears from the last Will and testament dated January 28, 1995 (Exhibit-D) that the testator - Shyam Sunder Nandy appointed the plaintiff and the defendant as joint executors of the said Will. The letters dated July 28, 2010, August 10, 2010 and August 24, 2010 (collectively Exhibit-F) issued to the defendant on behalf of the plaintiff indicates that the plaintiff requested the defendant either to join him for obtaining probate of the Will dated January 28, 1995 or to renounce executorship of the said Will, so that the plaintiff alone can obtain probate of the said Will from the appropriate court of law. The defendant admitted during cross- examination that those letters were received by members of his family and he was aware of the contents of those letters. However, the defendant has stated in evidence that he did not join the plaintiff in obtaining probate of the Will dated January 28, 1995 as one of the joint executors of the said Will, as he wanted to contest the present probate proceeding and as the entire property covered under the Will dated January 28, 1995 was bequeathed in his favour by the testator
- Shyam Sunder Nandy in the Will dated February 3, 1988. By referring to Section 141 of the Indian Succession Act Mr. Dutta, Learned Counsel for the plaintiff contends that the defendant is not entitled to get the legacy under the Will dated January 28, 1995 (Exhibit-D). He has also relied on two decisions reported in AIR 1973 SC 2583 and AIR 2004 Cal 217 in support of his above contention.
22. It is relevant to quote the provisions of Section 141 of the Indian Succession Act, which is as follows:
"141. Legatee named as executor cannot take unless he shows intention to act as executor. If a legacy is bequeathed to a person who is named an executor of the Will, he shall not take the legacy, unless he proves the Will or otherwise manifests an intention to act as executor."
The question for consideration of the Court is whether the defendant who did not express his intention to act as executor in spite of having notice of the Will dated January 28, 1995, is entitled to the legacy under the said Will. In "Mst Bhagwani Kuer V. Smt. Tapeswari Kuer"
reported in AIR 1973 SC 2583, the Supreme Court dealt with the issue whether by taking part in cremation ceremony of the testator and by helping two daughter-in-law to manage properties, the executor manifests his intention to act as an executor and is, therefore, entitled to claim his legacy. It is held by the Supreme Court that the executor did not manifest his intention to act as an executor of the Will by performing cremation ceremony of the testator, as the testator desired in the Will that his executor would perform Shradh Ceremony and thereby the executor cannot take the legacy of the Will as laid down in Section 141 of the Indian Succession Act. In "Siddamurthy Jayarami Reddy V. Godi Jayarami Reddy" reported in (2011) 5 SCC 65 the Supreme Court held that the legacy bequeathed to the executor by the testator did not vest in the executor as he did not discharge his obligation under the Will as an executor and as he was instrumental in frustrating the adoption of son by testator's daughter, and thereby the executor is not entitled to any interest in the estate of the testator. In "Himangshu Kumar Basu V. Sudhangshu Kumar Basu" reported in AIR 2004 Cal 217 both the plaintiff and the defendant were appointed as joint executors under the Will and the plaintiff did not join hands as executor to obtain the probate of the Will, but the defendant obtain the probate of the Will. Subsequently, the plaintiff brought a civil suit against the defendant for delay in administration of the estate under the Will and claimed allotment of property in spite of pendency of the administration by executors. The trial court dismissed the suit on the basis of preliminary issue that the suit is not maintainable in law. By reversing the order of the first appellate court Learned Single Judge of our High Court restored the order of the trial court on the ground that the suit is barred under Section 141 of the Indian Succession Act.
23. In the present case the defendant did not join the plaintiff to act as joint executors for obtaining grant of probate of the Will dated January 28, 1995, and did not manifest his intention to act as executor of the said Will. On the contrary the defendant contested the probate proceeding by filing an affidavit in support of the caveat and thereby the defendant did not express his intention to act as an executor of the Will. By following the decision of the Supreme Court in "Mst. Bhagwani Kuer V. Smt. Tapeswari Kuer" (supra) and "Siddamurthy Jayarami Reddy V. Godi Jayarami Reddy" (supra) and the dictum of the provisions of Section 141 of the Indian Succession Act, I can safely hold that the defendant is not entitled to the legacy bequeathed by the testator - Shyam Sunder Nandy under the Will dated January 28, 1995 (Exhibit-D).
24. In view of my above findings, the plaintiff is entitled to get probate of the Will executed by testator - Shyam Sunder Nandy on January 28, 1995. The defendant is not entitled to the legacy bequeathed under the Will dated January 28, 1995 due to specific bar under Section 141 of the Indian Succession Act. This issue is, thus, decided in favour of the plaintiff.
25. T. S. No.13 of 2012 is decreed on contest against the defendant. The plaintiff, thus, do get order of grant of probate of the Will executed by Late Shyam Sunder Nandy on January 28, 1995 along with a copy of the Will annexed thereto. The balance of the stamp duty, if any, must be deposited by the plaintiff within a period of four weeks from this date. The department is directed to draw up the decree expeditiously. T. S. No.20 of 2012 is dismissed.
The urgent xerox certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
(R. K. Bag, J.)