Calcutta High Court
For The vs Rajendra Singh Lodha & Ors. : ... on 27 August, 2021
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
Original Side
Present:
The Hon'ble Justice Arijit Banerjee
TS 14 of 2006
In the Goods of:
Saroj Kumar Chatterjee (Deceased)
For the Plaintiff : Mr. Krishnendu Gooptu, Adv.
Mr. Prantik Garai, Adv.
Mr. C.K. Saha, Adv.
Mr. Partha Pratim Mukherjee, Adv.
For the legal heirs : Mr. Dhruba Ghosh, Sr. Adv.
Of the Caveator Mr. Soumyajit Ghosh, Adv.
Mr. Rohit Banerjee, Adv.
Heard on : 04.01.2017, 07.02.2017, 28.03.2017,
20.04.2017, 27.04.2017, 03.05.2017,
11.05.2017, 11.07.2017, 20.07.2017,
25.07.2017, 26.07.2017, 05.12.2019,
06.12.2019, 09.12.2019, 27.01.2020,
19.02.2021 & 23.02.2021
CAV on : 23.02.2021
Date of Judgment : 27.08.2021
Arijit Banerjee, J.:
1. This is a curious tale of two Wills. One is dated August 30, 1988
(hereinafter referred to as the 'First Will'). The other is dated August 31,
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1988 (hereinafter referred to as the 'Second Will'). Both are said to be Wills
executed by Saroj Kumar Chatterjee (in short 'Saroj') who died on September
03, 1988. The First Will was admitted to probate at the instance of one
Sabitri Chatterjee (who was named as the sole executrix in the First Will), by
this Court by an order dated December 11, 1997.
2. The executors of the Second Will filed the present probate application
on November 05, 1990 which was earlier than the date of filing of the
probate application in support of the First Will, i.e., June 19, 1991. Upon
becoming aware that the First Will had been probated by this Court by order
dated December 11, 1997, one of the executors of the Second Will (the other
executor having died) applied on January 27, 1998, for revocation of probate
that had been granted in respect of the First Will. By a judgment and order
dated July 27, 1998 (reported at 1999 (2) CLJ 272) the Learned Single
Judge dismissed the revocation application by observing inter alia, as
follows:
"23. According to me, it is correct to say that even if the
earlier order granting probate is not recalled but by virtue
of granting second probate, if any, earlier grant of probate
will automatically be annulled or revoked.
31. The case was rested thereon for the purpose of
delivering the judgment. But subsequently Mr.
Bhattacharya mentioned this matter with notice to the
parties by intimating the Court that the Section 118 of the
Indian Succession Act has no application in case of
Hindus. Therefore, the subsequent Will may not be
3
construed as prima facie bad Will. I have not called upon
to decide as to whether the subsequent Will wherein grant
of probate is still pending before this Court is genuine Will
or not but I have called upon to dispose of the applications
for the purpose of recalling and/or setting aside of as
order passed on 11th December, 1997 wherein a probate
was granted in respect of a Will.
32. Therefore, parties are at liberty to agitate the point as
to applicability and/or scope and submit of Section 118 of
the Indian Succession Act, at the time of disposal of the
subsequent probate application being contentions cause
i.e. a suit.
33. Since, I have already observed that the question of
annulment and/or revocation of the earlier probate is
dependable upon the result of the subsequent probate
proceedings, there is no scope of recalling or setting aside
the order passed by the Court granting probate on 11 th
December, 1997."
3. Two nephews of Saroj vis. Tapan and Kamal who were caveators in
respect of the First Will, had also filed applications for revocation of probate
of the First Will. Such applications were also dismissed by the judgment and
order dated July 27, 1998. Kamal had filed an appeal against the judgment
and order dated July 27, 1998. The appeal was dismissed.
4. In the present proceedings the surviving executor of the Second Will
prays for an order admitting the Second Will to probate.
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5. Saroj had done well in life and was also the beneficiary of substantial
inheritance. His wife predeceased him. He had no children. He died on
September 03, 1998, possessed of valuable immovable and movable
properties. As mentioned above, two documents of Saroj have seen the light
of the day, one dated August 30, 1988 and the other dated August 31, 1988,
both of which are claimed to be the last Will and testament of Saroj by the
executors of the respective Wills. As it stands at present, the First Will has
been probated by this Court, albeit in exercise of power under Order VIII
Rule 5 of the Code of Civil Procedure. Applications for revocation of such
probate have filed. An appeal filed by one of such applicants was dismissed.
The matter rested there. In other words, the order dated December 11, 1997
admitting the First Will to probate, has attained finality. The First Will of
Saroj has received this Court's certificate that it is a genuine Will of the
testator. In this testamentary suit what falls for determination is whether or
not the Second Will satisfies the requirements of law and should be
admitted to probate. If the Second Will is probated, automatically the
probate granted in respect of the First Will shall stand annulled. If not, then,
the probate granted in respect of the First Will will stand.
6. Before proceeding further, it may be noted that under the First Will,
the sole beneficiary was Sabitri who was also named as sole executrix of the
Will. All the properties of Saroj were devised/bequeathed to Sabitri under
the First Will. Sabitri executed a Will dated February 06, 2004, whereunder
she devised Premises No.143A & B, Rash Behari Avenue, Kolkata - 700 029
(which was a part of Saroj's estate) to one Prof. Gopal Mitra and the rest and
residue of her properties (which were also substantially part of Saroj's
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estate) to her daughter Anjana. Prof. Gopal Mitra was appointed as the sole
executor of Sabitri's Will. Paragraphs 3, 4 and 5 of the Will read as follows:
"3. I, Sabitri Banerjee, accordingly, leave, bequeath
and give the entirety of the Premises No.143A & B, Rash
Behari Avenue, Kolkata - 700029 to Prof. Gopal Mitra as
he has during my lifetime entered into a contract in which
I undertook to convey and transfer the property to him or
his nominee or nominees and against which I have
already received total consideration for my maintenance
and other expenditures which will be my just debts and
liabilities.
4. I, further leave, bequeath and give all other
properties including the movable properties lying in the
Locker No.233 in Punjab National Bank, Ballygunge
Branch and Locker No.564 in Allahabad Bank, Gariahat
Branch and all other assets acquired by virtue of the
probate being No.107A of 1991 by the Hon'ble High Court
at Calcutta to my only daughter Smt. Anjana Roy (nee
Banerjee) and others to be decided by Prof. Gopal Mitra
my said executor.
5. Subject to above specific legacies, I, Sabitri
Banerjee give, leave and bequeath the rest and residue of
my estate including all reversion, expectancy and future
assets both movable and immovable, if any, acquired by
me hereafter absolutely and forever unto and to the use of
6
my only daughter Smt. Anjana Roy (nee Banerjee) and
others to be decided by Prof. Gopal Mitra my said
executor. "
7. Under his Second Will, Saroj devised the properties at 143A & B, Rash
Behari Avenue, Kolkata and at 23 Jugal Kishore Das Lane, Calcutta,
absolutely to Bharat Sevashram Sangha, Rash Behari Avenue, Ballygunge,
Calcutta, subject to the condition that Bharat Sevashram Sangha would not
be entitled to dispose of the property at Rash Behar Avenue, Calcutta, but
shall develop the property for the purpose of using the same as a cultural
centre which shall bear the name of Haridas Chatterjee Cultural Centre
(Haridas Chatterjee was Saroj's father). Saroj gave/devised/bequeathed his
other immovable and movable properties to his relatives. Saroj appointed
one Romen Kumar Chatterjee (since deceased) & Kamalesh Bhattacharya as
the executors and trustees of his Second Will. Sharmistha Bhattacharjee
(wife of the surviving executor and the present plaintiff) is a beneficiary
under the Second Will of Saroj. In the aforesaid factual background, I may
now proceed to consider as to whether or not the Second Will of Saroj
passes the tests laid down by law including the relevant provisions of the
Indian Succession Act.
8. In the affidavit in support of caveat filed by Gopal it has been stated,
inter alia, as follows:
"10. On or about June 1, 2001, the Bharat Sevashram
Sangha filed a suit before the Learned Civil Judge (Junior
Division), 2nd Court at Alipore, South 24 - Parganas,
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against inter alia, Sabitri Banerjee claiming prayers inter
alia as contained in the plaint.
(a) A declaration that the plaintiff is a beneficiary to
the properties described in the Schedule below by
the strength of the Will dated 31.08.1988.
(b) A declaration that the defendant has no right to
deal with and/or transfer the property described
in the Schedule below till the Original Suit No.
G.A. 120 of 1998 is disposed of.
(c) A permanent injunction restraining the defendant
from dealing with the property described in the
Schedule below till the disposal of the O.S. No.
G.A. 120 of 1998.
(d) Cost;
(e) Receiver;
(f) Any other relief or reliefs the plaintiff is entitled to.
11. In the meantime, the said Sabitri Banerjee died on or
about August 30, 2004 after having made and published
her Last Will and Testament dated February 06, 2004
whereby she appointed me (Prof. Gopal Mitra) as the sole
Executor.
12. On or about November 24, 2004 I filed an
application for grant of probate of the said Will of Sabitri
Banerjee (being PLA No.340 of 2004) and the said
application was allowed on January 19, 2005. A copy of
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the said application along with the grant dated January
19, 2005 is annexed hereto and marked 'E' and 'F'
respectively.
.............................
15. On or about March 11, 2005, I (Prof. Gopal Mitra)
applied before the Learned Trial Court at Alipore (Learned
Civil Judge, Junior Division) for being substituted as
defendant instead and place of Sabitri Banerjee and was
impleaded as a party thereto.
16. The said suit filed by Bharat Sevashram Sangha
was left pending for a long time and no steps were being
taken by the plaintiff. In the circumstances, I moved a
revisional application before the Hon'ble High Court at
Calcutta for early hearing of the said suit and an order
was passed directing expeditious disposal of the same. In
the meantime, the Bharat Sevashram Sangha obtained
legal advice and admitted and the probate granted to
Sabitri Banerjee (since deceased) in respect of the Will
dated August 30, 1988 of the Late Saroj Kumar Chatterjee
was genuine and that she was the sole legatee of the
latest Will. Since the Bharat Sevashram Sangha was a
respectable public trust and did not wish to be involved in
any controversy relating to the untrue Second Will, the
said Organization decided to accept the Will dated August
30, 1988 and accept the fact that I was genuinely the
eventual legatee thereunder and as such approached me
for compromise of the said suit.
17. On or about November 11, 2005 the Bharat
Sevashram Sangha and I filed a written compromise
petition before the Learned Trial Court at Alipore (2nd Civil
Judge, Junior Division) 24 Parganas (South), whereunder
it was agreed between the parties to seek a compromise
decree to be passed in the said suit whereunder the
defendant (Prof. Gopal Mitra) would be declared the sole
and absolute owner in respect of the premises No.143A,
Rash Behari Avenue, Kolkata and the suit would stand
withdrawn. A copy of the said petition for compromise
jointly signed by me and the authorised representatives of
the Bharat Sevashram Sangha is annexed hereto and
marked 'H'. A copy of the Power of Attorney executed on
behalf of the Bharat Sevashram Sangha authorising Shri
Dulal Chakraborty to take all steps in the suit on their
behalf is also annexed hereto and marked 'I'.
18. By an order dated November 24, 2005 the Learned
Trial Court at Alipore was pleased to dispose of the said
application by dismissing the said suit. Copies of the
relevant orders are annexed hereto and collectively
marked 'J'.
19. It shall appear from the said compromise petition
that the Bharat Sevashram Sangha had admitted that the
Will dated August 30, 1988 was the genuine Will of Saroj
Chatterjee and not the Will dated August 31, 1988 (which
is the subject matter of the present proceedings.)
................................
25. I state and submit that in view of the Probate
already being granted in favour of the Will dated August
30, 1988, the question of there being another grant of
Probate does not arise in respect of a later Will, especially
since the application for Probate being P.L.A. No.138A of
1990 has not been proceeded with by the propounders for
so long and has been left pending for over 15 years.
26. Further, in view of the categorical admission made
on behalf of the Bharat Sevashram Sangha regarding the
genuineness of the earlier Will and the invalidity of the
later Will dated August 31, 1988, it is clear that no
reliance can be placed on the validity of the later Will. I put
the propounders to strict proof of the said Will and pray
that same may be proved in solemn form before grant. I
have in my possession true signatures of the Testator,
Saroj Chatterjee on several documents and it is imperative
that I will be given an opportunity to inspect the original
Will dated August 30, 1988. I reserve my right to make
appropriate submissions in respect thereof only thereafter.
I further reserve the right to take further ground after
inspection of the Will in support of the Caveat filed by me.
27. In the circumstances, I submit that the instant
application be dismissed with costs. I state that the
purported document dated August 31, 1988 sought to be
relied upon by the petitioners (being Kamalesh
Bhattacharjee and Romen Chatterjee) is not a genuine Will
in law or on fact and it is unlikely that the said document
has been executed in accordance with law or by the
alleged Testator at all. I state that Smt. Sabitri Banerjee
had genuinely looked after the said Saroj Chatterjee
during the last years of his life and it would be completely
unnatural for the said Testator to deprive her of his estate
and give the same to complete stranger. In any event, the
beneficiary of the alleged Will itself has discarded the
genuineness of the same. In the circumstances, it is only
just and proper that the above application be dismissed.
28. I state that I have come to learn that subsequently
the Bharat Sevashram Sangha has purported to resile
from their joint compromise and filed an application for
recalling the compromise petition filed before the Ld. Court
at Alipore. No order has yet been passed. In any event it
shall appear from a perusal of the plaint filed herein, that
suit is wholly misconceived, as it purports to rely upon an
unprobated Will in legal proceedings.
29. I state that I have been allowed to file the Caveat by
this Hon'ble Court and am sufficiently intestated in the
estate of the deceased. I state that it is apparent from the
records I have seen that the purported Will dated 31.08.88
is not genuine, contrived and not executed in accordance
with law. The entire execution of such an unnatural Will is
stranded in suspicious circumstances. I state that it
appears that the alleged beneficiary is in the habit of
claiming to be beneficiaries to the estates of several
deceased persons and their bonafide is in doubt as will
appear from several orders of the Court I have seen
regarding them. "
9. Upon consideration of the pleadings filed by the parties, by an order
dated February 24, 2009, a Learned Judge of this Court framed the
following issues:
"1) Is the above Testamentary suit maintainable in its
present form on facts and on law?
2) Is the alleged document dated August 31, 1988
sought to be propounded executed as a Will in
accordance with law?
3) Is the document sought to be propounded genuinely
a later Will of Saroj Kumar Chatterjee than the Will
dated August 30, 1988 (for which Probate has
already been granted)?
4) To what relief, if any, is the plaintiff entitled?"
10. Sabitri died on August 30, 2004. Gopal Mitra applied for grant of
probate of Sabitri's Will mentioned above. The application was registered as
PLA No.340 of 2004. Probate was granted by this Court to Gopal Mitra on
January 19, 2005. Gopal Mitra had filed a caveat in respect of the present
proceedings. The caveat was subsequently found to be defective. On an
application made by Gopal Mitra being GA No.349/2006, this Court
extended the time for Gopal to file caveat by a week from the date of the
order. The order also recorded that in case Gopal did not file his affidavit in
support of his caveat within the period stipulated under the Original Side
Rules of this Court, the caveat would stand discharged. In respect of the
plaintiff's contention that Gopal did not have a caveatable interest in respect
of the Saroj's estate, the Court held that such question would be considered
at the time of final hearing of the suit.
11. It is not in dispute that Gopal filed a fresh caveat within the extended
time period granted by the Court and also filed affidavit in support of the
caveat within the time period prescribed by the Original Side Rules of this
Court. Accordingly, PLA 138A of 1990 was marked as a contentious cause
and was renumbered as TS No.14 of 2006.
12. Upon the demise of Gopal, his legal heirs were substituted as
defendants in the present suit. In the course of hearing of the suit, Learned
Counsel appearing for the propounder/plaintiff again raised the point that
Gopal had no caveatable interest and accordingly the caveat filed by him
should be discharged. Learned Counsel for the plaintiff submitted that the
said point should be decided as a preliminary point. By a judgment and
order dated September 06, 2017, I had held that there was no warrant for
deciding the question of Gopal's caveatable interest as a preliminary issue. I
recorded in that Order that the issue of Gopal's caveatable interest shall be
decided along with the other issues.
13. Accordingly, the same shall be an additional issue in the suit. In my
opinion, the said issue needs to be addressed first since, if the plaintiff is
correct in saying that Gopal did not have a caveatable interest in the estate
of Saroj, the caveat must be immediately discharged and Gopal's affidavit in
support of the caveat must be ignored by the Court.
Issue as to whether or not Gopal had caveatable Interest:
14. It was submitted on behalf of the plaintiff that Gopal's right, title and
interest in respect of the Rash Behari Avenue property which formed part of
Saroj's estate, devolved on Gopal by virtue of Sabitri's Will which was
probated by this Court. Sabitri's right, title and interest in respect of the
said property is based on Saroj's First Will which has also been admitted to
probate. However, as held by the Learned Judge hearing the applications for
revocation of probate of the First Will, if Saroj's Second Will is probated by
this Court, the probate in respect of the First Will will automatically stand
annulled. Consequently, Gopal or his legal heirs will cease to have any right,
title or interest in respect of the aforesaid Rash Behari Avenue property. In
other words, Gopal only had a contingent right in respect of the said
property, as opposed to any vested right. Contingent right cannot create any
caveatable interest.
15. It was further submitted that Gopal had no direct interest in the
estate of Saroj. He was not a legatee or heir or beneficiary or caveator in
respect of Saroj's Second Will. He is trying to come in through Sabitri who
was the caveatrix but who abandoned her claim and failed to file affidavit in
support of her caveat. Gopal did not have any real interest in the estate of
Saroj.
16. Finally it was submitted that Gopal, prior to filing his caveat and
affidavit in support thereof, had sold off the Rash Behari Avenue property to
third parties and thereby created adverse right/title on the estate of the
testator.
17. In support of his submissions Learned Counsel relied on the following
decisions:
i) Krishna Kumar Birla v. Rajendra Singh Lodha & Ors. : (2008) 4
SCC 300.
ii) Jagjit Singh & Ors. v. Pamela Manmohan Singh : (2010) 5 SCC
157.
iii) Suraj Lamp & Industries Private Limited v. State of Haryana &
Anr. : (2012) 1 SCC 656.
iv) Usha Subbarao v. B.N. Vishveswaraiah & Ors. : (1996) 5 SCC
201.
v) Reliance was also placed on the definition of 'contingent interest' in
Black's Law Dictionary.
18. Appearing for the caveator, Mr. Dhruba Ghosh, Learned Senior
Advocate, submitted that a caveat can be entered by any person having or
asserting an interest in the estate of a deceased person and it has been held
that he must show that he has that interest by inheritance or otherwise. It is
not the extent of his interest that is important. Even a minuscule interest
would suffice. He submitted that the test generally is: Will the grant of
probate to the petitioner displace any right to which the caveator is
otherwise entitled? If so, he has an interest. If not, he has none. In this
connection he relied on the decision in the case of Swatantranandji v.
Lunidaram Jangaldas : AIR 1937 BOM 397.
19. Mr Ghosh also relied on the case of Nabin Chandra Guha v. Nibaran
Chandra Biswas and Ors. : AIR 1932 Cal 734 wherein it was observed
that taking the words of Section 283 of the Indian Succession Act in their
natural meaning, it is sufficient to interpret them as implying a real interest,
which is or is likely to be prejudicially or adversely affected by the Will in
question. The court further held that a purchaser from an heir after the
death of the testator has locus standi to oppose grant of probate in respect of
the testator's Will; and it is not necessary for the objector to show that he
had an interest in the estate at the time of the testator's death.
20. Chapter IV under Part IX of the Indian Succession Act, 1925 (in short
'the said Act') pertains to grant and revocation of probates and letters of
administration. Section 284 of the said Act provides for lodging of caveats
against grant of probate or administration. Section 285 of the Act provides
that no proceeding shall be taken on a petition for probate or letters of
Administration after a caveat against the grant thereof has been entered
with the District Judge or District Delegate until after such notice to the
person by whom the caveat has been entered, as the Court may think
reasonable. The said Act does not clarify as to who is entitled to lodge a
caveat against grant of probate or what amounts to caveatable interest.
21. The propositions laid down in the cases of Swatantranandji v.
Lunidaram Jangaldas (Supra) & Nabin Chandra Guha v. Nibaran
Chandra Biswas and Ors. (Supra) relied upon by Learned Counsel for the
caveator, have been noted above. In effect, both the said decisions lay down
that if a person has a real interest in the estate of the deceased, however
slight that interest may be, he would be entitled to contest a proceeding for
obtaining probate of the Will of the deceased by filing caveat. In other words,
if grant of probate of a Will in any manner affects the rights of a person, he
would be having a caveatable interest.
22. In the case of Brindaban Chandra Shaha vs. Sureswar Saha
Pramanik : 10 CLJ 263 it was held that since grant of probate operates as
a judgment in rem, it is of utmost importance that such grant should be
made after full opportunity to enter appearance has been afforded to all
persons who are likely to be affected by the grant. In that case the following
passage from Williams on Executors Vol. I Page 245, was quoted:
"Any interest however slight and even it seems the bare
possibility of an interest is sufficient to entitle a party to
oppose a testamentary paper. Thus where a testator
disposed of all his personal estate by his Will and gave
his real estate but none of his personal, to his brother's
children, and by a codicil he gave them pecuniary legacies
revoking the devise to them of the real estate which was of
greater value than the legacies, it was held that they
might oppose the codicil alone, notwithstanding their only
right to a share of the personal estate was under it.
Though a next-of-kin may as such oppose all the
testamentary papers, he has not a right to oppose any
particular one he may think fit; for some interest in it
however remote is necessary."
The court went on to observe as follows:
"This statement of the law is amply borne out by cases of
the highest authority Kipping v. Ash (1845) 1 Rob 270:
4 Cas 177; Bashcomb v. Harrison (1849) 2 Rob 118: 7
N Cas 275; Crispin v. Doglioni (1860) 2 S & T. 17;
Dixon v. Allinson (1864) 3 S. & T. 572. In more than
one of these cases, it was stated that the bare possibility
of an interest was sufficient to enable a person to oppose
a testamentary instrument. Substantially the same rule
has been adopted in the American Courts as consistent
with the principles of reasons and justice. Thus in
Encyclopedia of Pleading and Practice Vol.16 Pages 1009
and 1015, it is stated that a contestant must be a person
interested though his interest may be very small and not
entirely free from contingencies or doubts. Reference is
made to the case of Dower v. Church (1864) 3 Sw. &
Tr. 572 in which it was held that where the interest of the
plaintiff in a bill contesting a Will consists in his claim
under an earlier Will not probated, the Court will not try
the validity of the former Will, but it is sufficient if the
contestant sets up a bonafide claim."
23. In Krishna Kumar Birla v. Rajendra Singh Lodha & Ors. (supra) a
Division Bench of the Supreme Court held, inter alia, as follows:
"84. Section 283 of the 1925 Act confers a discretion
upon the court to invite some persons to watch the
proceedings. Who are they? They must have an interest in
the estate of the deceased. Those who pray for joining the
proceeding cannot do so despite saying that they had no
interest in the estate of the deceased. They must be
persons who have an interest in the estate left by the
deceased. An interest may be a wide one but such an
interest must not be one which would not (sic) have the
effect of destroying the estate of the testator itself. Filing of
a suit is contemplated inter alia in a case where a
question relating to the succession of an estate arises.
85. We may, by way of example notice that a
testator might have entered into an agreement of sale
entitling the vendee to file a suit for specific performance of
contract. On the basis thereof, however, a caveatable
interest is not created, as such an agreement would be
binding both on the executor, if the probate is granted, and
on the heirs and legal representatives of the deceased, if
the same is refused.
86. The propositions of law which in our considered
view may be applied in a case of this nature are:
(i) To sustain a caveat, a caveatable interest must
be shown.
(ii) The test required to be applied is: Does the
claim of grant of probate prejudice his right
because it defeats some other line of
succession in terms whereof the caveator
asserted his right?
(iii) It is a fundamental nature of a probate
proceeding that whatever would be the interest
of the testator, the same must be accepted and
the rules laid down therein must be followed.
The logical corollary whereof would be that any
person questioning the existence of title in
respect of the estate or capacity of the testator
to dispose of the property by will on ground
outside the law of succession would be a
stranger to the probate proceeding inasmuch
as none of such rights can effectively be
adjudicated therein."
...............................
94. A will is executed when the owner of a property
forms an opinion that his/her estate should not devolve
upon the existing heirs according to the law governing
intestate succession. When, thus, a person who would
have otherwise succeeded to the estate of the testator,
would ordinarily have a caveatable interest, any other
person must ordinarily show a special interest in the
estate.
95. Such a special interest may be a creditor of the
deceased as was the case in Sarala Sundari Dassya v.
Dinabandhu Roy Brajaraf Saha (Firm) : AIR 1944 PC
11. But, in our opinion, the same would not mean that
even if the estate of the deceased is being represented by
the legal heirs, caveat can be entertained at the instance
of a person who has no real interest therein or in other
words would merely have a contingent interest."
24. In G. Gopal v. C. Bhaskar & Ors.: (2010) 10 SCC 489 it was held,
inter alia, that a person who has even a slight interest in the estate of the
testator is entitled to file caveat and contest the grant of probate of the Will
of the testator.
25. In Jagjit Singh & Ors. v. Pamela Manmohan Singh (Supra)
another Division Bench of the Supreme Court noticed the conflicting views
expressed by two earlier Division Benches of the Supreme Court in Krishna
Kumar Birla's case (supra) and G. Gopal's case (supra) as regards what
amounts to caveatable interest. The court refered the matter to the Hon'ble
Chief Justice for having the issue decided by a Larger Bench and I am told
by Learned Counsel for the parties that such matter is still pending before a
Larger Bench.
26. In Priyamvada Devi Birla v. Madhav Prasad Birla : (2005) SCC
OnLine Cal 138 (Para - 39) this Court held that the words 'all persons
claiming to have any interest' in Section 283 (1) (c) of the said Act, are to be
understood in a liberal sense. The Court held:
".... for issuance of citation, the nature of claim or interest
of the person concerned is not to be examined on the anvil
of genuineness or legitimacy. Anyone's mere claim is
sufficient to receive citation. For example, a person in
occupation of a property being the subject matter of the
estate in the Will irrespective of legitimacy of his right, can
claim interest and such claim is good enough to receive
citation. But the Court has to examine the nature and
substance of the interest, if the person concerned decides
to oppose the grant. On examination, if the Court finds
that the interest or claim is of substance and further, the
same is such that likely to be defeated by the grant, then
his or her or its objection is considered."
27. From the above it is clear that generally a lenient test is applied to
decide whether or not a person has locus standi to oppose the grant of
probate in respect of a Will. Even going by the more stringent test indicated
by the Supreme Court in Krishna Kumar Birla (supra), I have no doubt in
my mind that Gopal had caveatable interest and, as such, the standing to
oppose the grant of probate of Saroj's Second Will. By reason of Saroj's First
Will and subsequently Sabitri's Will being admitted to probate, the Rash
Behari Avenue property of Saroj devolved upon and vested in Gopal. If
Saroj's Second Will is probated, necessarily his First Will and the probate
granted in respect thereof will stand annulled. This would mean that Sabitri
would stand divested of the said property and through a spiralling effect,
Gopal would also stand divested of the said property. Hence, rights of Gopal
and/or his legal heirs would be adversely affected if Saroj's Second Will is
probated in the present proceedings. In that view of the matter it would be
preposterous to hold that Gopal or his legal heirs do not have caveatable
interest and are not entitled to contest the present probate proceedings.
28. The plaintiff argued that Gopal had only a contingent interest in the
estate of Saroj. This argument is clearly fallacious. As noted above, by virtue
of Saroj's First Will and subsequently Sabitri's Will being probated, a part of
Saroj's estate vested absolutely in Gopal. The interest of Gopal or his legal
heirs in such portion of Saroj's estate is real and in praesenti. There is
nothing contingent about it. The fact that Gopal or his successors may
stand divested of such portion of Saroj's estate if Saroj's Second Will is
admitted to probate, does not make the interest of Gopal or his legal heirs
contingent. 'Contingent Interest' has been defined in Black's Law Dictionary
(11th Edition) as an interest that the holder may enjoy only upon the
occurrence of a condition precedent. No such question arises in this case.
The interest in the Rash Behari Avenue property that Gopal enjoyed was a
vested one, albeit, the same being liable to be defeated or annulled if the
Second Will of Saroj is probated.
29. Accordingly I hold that Gopal had caveatable interest and was entitled
to, and after his death his legal heirs are entitled to, contest this
testamentary suit.
30. Now coming to the real question, although four issues have been
framed, essentially there is only one issue, i.e., whether or not Saroj's
Second Will should be admitted to probate? In other words, whether the
plaintiff has been able to prove due execution of such Will.
31. Section 63 of the Indian Succession Act, 1925, prescribes the manner
of execution of an unprivileged Will. The requirements are as follows:
(a) The testator shall sign or shall affix his mark to the will, or it
shall be signed by some other person in his presence and by
his direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear
that it was intended thereby to give effect to the writing as a
will.
(c) The will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the will
or has seen some other person sign the will, in the presence
and by the direction of the testator, or has received from the
testator a personal acknowledgement of his signature or
mark, or of the signature of such other person; and each of
the witnesses shall sign the will in the presence of the
testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular form
of attestation shall be necessary.
32. The burden of proving valid execution of a Will and that it is a genuine
document is squarely on the propounder. He must establish that the
testator has signed the Will within his free will and having a sound
disposition of mind and understood the nature and effect of the instrument
on which he was appending his signature. The testamentary capacity of the
propounder must also be established. The propounder must explain to the
satisfaction of the Court suspicious circumstances, if any, surrounding the
execution of the Will.
33. A Will has to be proved like any other document. Section 68 of the
Indian Evidence Act provides that if a document is required by law to be
attested, it shall not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution, if there be an
attesting witness alive and capable of giving evidence. The proviso to
Section 68 clarifies that it shall not be necessary to call an attesting witness
in proof of the execution of any document, not being a Will, which has been
registered in accordance with the provisions of the Indian Registration Act,
1908, unless its execution is specifically denied by the person by whom it
purports to have been executed. Section 69 of the Evidence Act provides for
the manner of proof of execution of a document which is required by law to
be attested, when no attesting witness is found. We are not concerned with
such a situation.
34. The only question is whether or not the plaintiff has been able to
prove due execution of the Second Will by Saroj. The plaintiff has examined
four witnesses. They are, Purnendu Sarkar, one of the attesting witnesses;
Kamalesh Bhattacharjee, the surviving executor; Swami Biswa Atma Nanda,
a monk belonging to Bharat Sevashram order and Biplab Kumar Majumdar,
a handwriting expert. The defendant examined one witness, namely
Purushottam Chatterjee, another handwriting expert.
35. Both the handwriting experts were given copies of both the Wills of
Saroj. They were asked to opine as to whether the signatures on the two
Wills were of the same person. Both the handwriting experts unequivocally
opined that the signature on the Second Will is not of the person whose
signature appears on the First Will in the capacity of testator.
36. The First Will contained seven signatures of Saroj. The Second Will
contained only one signature of Saroj. While examining the signatures,
Biplab Majumdar marked the seven signatures on the First Will as Q.1 to
Q.7 and marked the signature on the Second Will as Q.8. In his report the
expert observed that the signatures marked as Q.1 to Q.7 contained good
line quality as well as consistency in execution. He found no signs of
unusual pen lifts or halts. All the pictures reflected sound pen control of the
writer. He concluded that these signatures displayed all signs of
genuineness. In respect of the signature marked as Q.8, he observed that
the same displayed some unusual features, especially in respect of its line
quality. He noted that the signature reflects a lifeless appearance having a
number of significant defects in its execution. He concluded that the
signature marked as Q.8 contained all signs of spuriousness. He further
stated that the signature marked as Q.8 was imitation of the model of the
signatures marked as Q.1 to Q.7.
37. From the evidence-in-chief of Biplab Majumdar it would appear that
he has obtained a Diploma in a course of Document Examiner from National
Institute of Criminology and Forensic Science, New Delhi and as on the date
of deposition, he was attached to the QDCB (Questioned Documents
Examination Bureau), CID, West Bengal. The Diploma obtained by him is
recognized by the Government of India (Qs.2, 3, 5, 7). In his evidence he
stated that upon judging the line quality of the signatures on the Will dated
August 31, 1988, it appeared that the said signature is spurious (Q.32).
Upon being asked if there is any old age tremor detectable in the signature
marked as Q.8 (signature on the Second Will), Mr. Majumdar answered in
the negative (Qs.38-40). Although Mr. Majumdar stated (Q.22) that he did
not have any admitted signature of Saroj Kumar Chatterjee before him, he
was quite steadfast in his stand that the signature marked as Q.8 was
spurious.
38. The other handwriting expert, Mr. Purushottam Chatterjee, arrived at
the same conclusion. He marked the seven signatures on the First Will as 'A
series' and the signature on the Second Will as 'Q series'. His conclusion is
that the 'A series' signatures are not of the person who signed as testator on
the Second Will. He has given his reasons in his Report dated September 17,
2009 which is a part of the record. The said report contains eight
photographic enlargements of the 'A series' and 'Q series' signatures for
illustration and demonstration of formation of loss and defects of writing
habits in the signatures. In the report and in his deposition he has said that
in the signatures marked as 'A series', there are no signs of forgery.
However, in the signature marked as 'Q series' there are unusual pen lifts,
hesitations, poor line quality and slow drawing motion. He stated that the
signatures marked as 'A series' show a good amount of consistency and, as
such, it can be concluded that all those signatures have been written by the
same person. Further, the signature in the 'Q series' appears to be full of
inconsistencies, and thus, may be forged. However, since he did not possess
any admitted signature of Saroj Kumar Chatterjee, he did not opine as to
which one is actually Saroj's signature (Qs.3-11, 15, 16, 19, 20).
39. Mr Chatterjee clarified in his evidence that his duty was to compare
the signatures present on the two documents. Upon doing so he has
concluded that the signatures marked as 'A series' are not the same as the
signature marked as 'Q series' (Q.21). He further opined that if a set of
signatures are completely identical, then the same would suggest forgery.
However, there are signs of natural variations and consistency in writing
habits with respect to the signatures marked as 'A series' (Qs.22, 23). There
are signs of forgery in the signature marked as 'Q series'. Although he has
not used the word 'forgery' per se in his report, he has mentioned the word
'imitation' which according to him means and includes forgery (Qs.25, 26).
He opined that while there may be some loss of pen control, unusual pen
lifts, hesitations or poor line quality in the writing of an old person, any
experienced handwriting expert can say whether these are imitation writing
or writing of a genuine nature (Q.28).
40. Thus, both the handwriting experts, one being the plaintiff's witness
and the other being the defendant's witness, have opined that the signatures
on the First Will are not of the person who signed the Second Will as
testator. Further, they have also expressed their views that the signatures of
Saroj on the First Will appear to be genuine and Saroj's signature on the
Second Will appears to be forged or an imitation.
41. Under Section 45 of the Indian Evidence Act, handwriting expert
evidence is admissible in Court. The opinion of a handwriting expert, if
proved by him in Court, becomes admissible as evidence. None the less, it
still remains an opinion of the handwriting expert and is not binding on the
Court. In other words, the Court is not bound to accept such opinion as
sacrosanct and is not obliged to base its decision solely on such opinion.
The Court is entitled to come to its own conclusion on an issue like whether
or not two signatures on two different documents are of the same person.
However, since a handwriting expert is especially trained and skilled in the
matter of ascertaining as to whether or not two signatures on two separate
documents are of the same person, the Court would ordinarily give due
weightage to his opinion.
42. It is the unequivocal view of both the handwriting experts who have
been examined in this case, one at the instance of the plaintiff and the other
at the instance of the defendant, that the signature of the testator on the
Second Will is not of the same person who signed the First Will as testator.
In other words, both the signatures are not of Saroj. By reason of this Court
having puts its seal of approval on the First Will by admitting it to probate,
Saroj's signature as testator on the First Will must be accepted to be the
genuine or authenticate signature. Even if I keep aside for a moment the
evidence of the two handwriting experts, to the naked eye of a non-expert
like me, it clearly appears that the signature in the Second Will is definitely
not of Saroj whose signature on the First Will is visibly different.
43. The plaintiff heavily relied on the evidence of Purnendu Sarkar. He
deposed that the testator signed the Second Will in his presence and in the
presence of Sudhir Lal Roy (other attesting witness, since deceased) and the
two attesting witnesses appended their signatures on the Second Will in the
presence of the testator and in the presence of each other. However, a few
points in Purnendu's evidence has created doubt in my mind as regards his
credibility. They are:
(i) He said that Saroj was a regular client of his employer, Anil
Mitra. However, he also said that Saroj did not get any
litigation or documentation work done through his employer.
It is not clear, in what capacity Saroj was the client of
Purnendu's employer.
(ii) In cross examination Purnendu admitted that Anil Mitra was
present at the time of execution of the Second Will. Without
meaning any disrespect to Purnendu, it appears to be rather
curious that instead of Anil Mitra himself acting as an
attesting witness to the Will or asking a colleague or junior
associate to be a witness to the Will, he would get the Will of a
valued client attested by his clerk. Interestingly, Purnendu
has admitted that apart from the said Second Will of Saroj, he
has never attested anybody else's Will as witness.
(iii) Purnendu has deposed that before signing the said Will as a
witness, he read through the document and came to know
that it was a Will. Assuming that Anil Mitra instructed
Purnendu to act as a witness to the execution of the Second
Will, it seems strange and quite improbable that Purnendu
would first read a document to satisfy himself about the
nature of the same when his master/employer asked him to
be a witness to the execution of the document.
(iv) There is nothing on record to show that in fact Purnendu was
an employee of Anil Mitra, Solicitor.
(v) Purnendu has deposed that in the office of Anil Mitra a daily
log book was maintained recording which persons visited the
office. However, on August 31, 1988, no entry was made in
such log book.
44. The aforesaid are a few aspects of Purnendu's evidence which has
made me reasonably suspicious about the truthfulness and reliability of his
evidence.
45. There is another reason which makes me suspicious about the
authenticity of the Second Will. On August 30, 1988, Saroj executed a Will.
The sole executrix and beneficiary of such Will was Sabitri. Such Will having
been probated by this Court, the authenticity thereof is a question which
cannot be raised in this Court. The said First Will can only lose effect or be
displaced by a Will subsequently executed by the testator following the
requirements of law. Otherwise, genuineness of such Will stands confirmed.
Attempts at having the probate of the said Will revoked, failed. The question
is, having executed a Will on August 30, 1988, why would Saroj execute
another Will on the very next day whereunder, the executors and
beneficiaries are totally different? Although there is nothing illegal about
executing two Wills on successive days, the same is definitely a little
unusual, to say the least, especially when the substance of the two Wills are
completely different - no common beneficiaries, no common executors. This
is not ordinary human behaviour. Even assuming that a person executes
two Wills on successive days, it is more probable than not that he would
mention in the Second Will that he had executed another Will the day
before, which he is cancelling or annulling by execution of the Second Will.
This is how, in my opinion, a reasonable man of ordinary prudence would
normally apt. The Second Will of Saroj is completely silent about the First
Will. This is definitely a suspicious circumstance.
46. The evidence of the plaintiff/surviving executor or of Swami Biswa
Atma Nanda, in my opinion, are not very helpful for deciding the issue
involved one way or the other. Neither of them was present at the time of
alleged execution of the Second Will. Further, the credibility of Swami Biswa
Atma Nanda has been sufficiently dented in cross-examination. The wife of
the plaintiff is a beneficiary under the Second Will. Of course this does not
disqualify him as a witness. However, he being an interested party, I am not
inclined to give much weightage to his evidence.
47. The plaintiff argued that the First Will was a manufactured document.
It is wholly unnatural that Saroj would leave behind all his properties to
Sabitri who was nothing more than a caretaker for Saroj. I do not agree with
the plaintiff. Saroj was a widower. He had no children. It is admitted even by
the plaintiff in his evidence that Sabitri used to live in the same house as
Saroj and she was the wife of a predeceased cousin brother of Saroj. From
the entire evidence on record it is quite clear that Sabitri looked after and
took care of Saroj during his last years. In advanced age, any human being
craves for care, affection and attention. It seems to me on an overall
consideration of the facts of the case that Sabitri provided the comfort to
Saroj that an elderly man requires and yearns for. Nobody else looked after
Saroj and hence I do not find it unnatural at all for Saroj to have left his
entire estate to Sabitri. However, this is an academic discussion since
authenticity of the First Will is not and cannot be an issue in the present
proceedings.
48. A certain degree of solemnity attaches to a Will by reason of the fact
that it contains the last wish of the testator as to how his properties will
devolve upon his departure from this world and also because by the very
nature of the document, the testator cannot be called as a witness to prove
the Will. The Probate Court is a Court of conscience and unless its
conscience is satisfied that a Will has been executed voluntarily by the
testator following the requirements of law with full consciousness of mind
and without undue influence and without being a victim of fraud, probate
will not be granted. Such satisfaction will have to come from the entire
conspectus of a particular case as is revealed by the pleadings and evidence
on record.
49. In the present case, for the reasons discussed above, I am of the
opinion that the document which the plaintiff claims is the last Will
executed by Saroj, is not so. The signature that purports to be of Saroj is not
of Saroj. In other words, Saroj did not execute the said document. Hence,
the question of admitting the so-called second Will of Saroj to probate,
cannot and does not arise.
50. TS 14 of 2006 is dismissed with costs assessed at Rs. 50,000/-. All
interim orders/ interlocutory orders passed in the suit shall stand vacated.
Urgent certified copy of the judgment and order, if applied for be given to the
parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)
