Kashinath Ghosh vs Smt. Bhagirathi Mondal & Others
2022 Latest Caselaw 8413 Cal

                     IN THE HIGH COURT AT CALCUTTA
                                 Civil Appellate Jurisdiction
                                    APPELLATE SIDE


Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee



                                         FA 131 of 2016

                                       Kashinath Ghosh
                                            versus
                                Smt. Bhagirathi Mondal & Others



For the Appellant           :        Mr. Anit Rakshit,
                                     Mr. Chandan Misra,
                                     Ms. Sarda Sha.


For the Respondent No.1     :        Mr. Asit Kumar Routh,
                                     Mr. Tulshidas Ray,
                                     Mr. Tirthankar Roy.


Hearing is concluded on     :        2nd December, 2022.



Judgment On                 :        16th December, 2022.



Partha Sarathi Chatterjee, J.

1. The present appeal arises out of the judgment passed by the

learned Additional District Judge, 2nd Court, Nadia in O.S. no. 11 of 2000

whereby the prayer for grant of probate was turned down.

2. Before we delve into the contour of controversies involved in the

appeal, we may notice the facts of the case in brief, which are as follows :

a. One Kashinath Ghosh filed one application for grant of probate in

respect of last Will and testament of Kshudiram Ghosh on 02.05.2000

before the District Delegate, Ranaghat, Nadia and the said application

was registered as Misc. Case no. 111 of 1997 (Probate) but the

proceeding became contentious since one Bhagirathi Mandal filed

written objection with a view to impeach the Will and then the said

case was ultimately transferred to the learned Court below and was

registered as O.S. no. 11 of 2000;

b. In the application, it was recited that Kshudiram Ghosh (hereinafter

referred to the testator) during his life time by executing one Will

bequeathed his estate in favour of the petitioner, namely, Kashinath

Ghosh (hereinafter referred to as the petitioner) and the testator

expired on 12.02.1996 at his permanent place of abode;

c. In the application, it was stated that the testator left behind him, four

legal heirs namely, i) Radharani Ghosh, ii) Bhagirathi Mandal, iii)

Ashalata Ghosh and iv) Sri Binod Bala but Binod Bala was not the kin

of the testator and later on the name of Binod Bala was expunged and

during pendency of the proceeding, Ashalata died and consequently,

her name was also expunged.

3. Record reveals that requirements of Section 276 of Indian Succession

Act, 1923 (hereinafter referred to as the Act of 1923) were duly complied

with.

4. Bhagirathi Mandal filed written objection wherein it was specifically

contended that the Will was forged to grab the property of the deceased and

to deprive the natural heirs of testator from the estate of the testator. It was

further contended that Radharani was first wife of the testator and

Bhagirathi is the daughter of Radharani and testator whereas Ashalata

happened to be the second wife of testator and the petitioner is the son of

Ashalata and it was recited that the testator was on good terms with

Radharani and Bhagirathi, who also had love and affection towards the

testator and it was claimed that at his age of 75 years, testator went to

Ichapur to live with his first wife where he became seriously ill and then

after his sudden death, petitioner started propagating that the testator had

bequeathed his estate to the petitioner by executing one Will but at that

time testator had no physical and mental ability to make any Will and she

claimed that testator died intestate and she inherited the proportionate

share of properties left by the testator and the petitioner tried to dispossess

her from the properties which she inherited and hence, she filed two suits

vide. nos. T.S. 106 of 1996 and T.S. 38 of 2000 and on receipt of summons

of first suit, petitioner had filed this application for grant of probate and

lastly, prayer was made for dismissal of the application.

5. One Binod Bala also filed his written objection contending inter alia

that the Will was forged and not fit to be probated and that Ashalata

happened to be the maid servant of testator and the petitioner was her son

and he used to live with his mother and that Radharani and Bhagirathi used

to look after the testator and it was asserted therein that the testator had

never executed the alleged Will.

6. Upon pleadings of the respective parties, the learned Court below

framed as many as 7(seven) issues. To substantiate his claim, the petitioner

adduced oral accounts of one Bijan Kumar Ghosh, of himself, of Monju

Ghosh and also of one Sri Haradhan Nayak, who were examined as PW 1 to

4 respectively and petitioner produced the Will, marked as Ext.-1. On the

other hand, the opposite parties adduced oral testimonies of Binod Bala and

Bhagirathi Mandal, who were examined as O.P.W.-1 and 2 respectively.

Upon scrutiny of the pleadings and evidence of the respective parties, the

learned Court below dismissed the suit and refused to grant probate in

respect of the Will of Kshudiram.

7. The petitioner has impugned the judgment, inter alia, on the grounds

that the learned Court below erred in overlooking the comprehensive

evidence of PW-1 as regards the valid execution and attestation of the Will

and even if it was found that evidence regarding attestation was technically

insufficient, the learned Court below ought to have given opportunity to

adduce further evidence. The learned Court below took an erroneous view

regarding custody of the Will and erroneously observed that the Will is

tainted with suspicious circumstances since in the Will there was no

reference to first wife. The learned Court below should have granted the

probate since petitioner had discharged his burden to prove that the Will

was duly executed and attested.

8. Assailing the judgment impugned, Mr. Rakshit, learned advocate for

the appellant, drawing out attention to Section 63(c) of Act of 1923,

vociferously contends that two signatures of attesting witnesses are not

required to be appended at the same time and signature of one attesting

witness in presence of the testator will suffice. He argues that the petitioner

discharged his burden by proving execution and attestation of the Will and

hence the Will was fit to be probated. In support of such contention, he

placed reliance upon a unreported judgment of Hon'ble Supreme Court

passed in Civil Appeal no. 202 of 1952 (Naresh Charan Das Gupta -vs-

Paresh Charan Das Gupta & Anr.).

9. Per Contra, to lend support to the judgment impugned, Mr. Routh,

learned advocate for the opposite parties, drawing our attention to the

evidence of PW-1 submits that when the Will was scribed, the attesting

witness was present but there is no indication that he was seen by the

testator to attest the Will. He argues that execution and attestation of the

Will have not been proved and evidence of PW-1 is not trustworthy and from

the evidence it has surfaced that one lady was all along present at the time

of alleged execution and that the petitioner is her son i.e. the beneficiary and

the said lady, namely, Ashalata took active part in preparation of the alleged

Will. He further argues that, in the Will there is no reference to the first wife,

namely, Radharani and her daughter, namely, Bhagirathi and it is explicit

from the recital of the Will that the testator had made two contradictory

statements, once he depicted Ashalata as his sole wife and mother of his son

and in another portion depicted Ashalata as his second wife. Such

inconsistent statements give rise to a suspicion as regards authenticity of

the Will. He asserts that the Will was prepared only to deprive Radharani

and Bhagirathi. He argues that the learned Court below has passed a

reasoned order leaving no scope to be interfered with. To buttress his

argument, he has placed reliance upon the judgments delivered in the cases

of Benga Behara & Anr. -vs- Braja Kishore Nanda & Ors., reported in (2007)

9 SCC 728, Ramesh Verma (Dead) Thr. LRs. -vs- Lajesh Saxena (Dead) by

LRs. & Anr., reported in (2017) 1 SCC 257 and K. Laxmanan -vs- Thekkayil

Padmini & Ors., reported in AIR 2009 SC 951.

10. To prove due execution and valid attestation of the Will, the PW1

deposed that he was a stamp vendor in Santipur Registry office. He stated

that the Will was scribed by one Trilokesh Indra under instruction of the

testator and the same was executed by the testator putting his signature on

each page and he was present when the Will was scribed and he deposed

that the scribe of the Will was alive but other witnesses of the Will are dead

and in course of cross-examination he deposed that one lady was present at

the time of execution of the Will but he could not say as to whether the said

lady was the wife of testator. He had no knowledge about the number of the

testator's children and he could not state the date on which the Will was

prepared and the exact time when the deed was written. He also could not

state as regards the time consumed for scribing the Will. He stated that he

does not know whether Kshudiram executed the Will and then said that the

Will was executed by the testator in favour of his son.

11. The petitioner, as PW-2, deposed that when the Will was prepared, he

was a child and he was not present at the time of execution of the Will and

he could not say who handed over the Will to him. He further stated that

Radharani was the wife of Kshudiram whom he used to call 'boroma'. PW-3,

the daughter-in-law of the testator stated that the testator had discussed

about the Will with her after six months of her marriage and the PW-4 spoke

about the relationship between the testator, the petitioner and others.

12. O.P.W.-2 deposed that her father had never executed any such Will

and Ashalata was not legally related to Kshudiram and the Will was a forged

one and she stated that she along with her mother, Radharani inherited the

property left by her father and they also sold out the property to Binod Bala.

13. It is axiomatic that to obtain a probate or letters of administration, as

the case may be, in respect of one Will, the propounder must prove that the

Will was signed by the testator i.e. the Will was duly executed and the same

was validly attested. He must also establish that the testator was in sound

disposing state of mind at the time of execution of the Will and that he knew

and approved the contents of Will. The testator understood the nature of

disposition and he put his signature on the Will out of his own free will. The

propounder is also required to dispel all suspicious circumstances

surrounding the Will and once these elements are established, it can held

that the propounder has discharged his onus and if Will is challenged on the

ground of fraud, misrepresentation of fact or on the ground the testator was

put under undue influence or coercion, then burden rests on the objector to

prove the same.

14. Although in the judgment impugned, it was mentioned that the

signature of the testator was marked as Ext. 1(a) but nowhere in the

evidence of the petitioner, the signature of the testator was identified and/or

proved. Although the PW-1 stated that he attested the Will under the

instruction of testator but he did not state that he and other witnesses put

their respective signatures on the Will in the presence of the testator, which

is a mandatory requirement for the attestation of the Will and his evidence

stands shaken in cross-examination and such evidence does not inspire

confidence in the mind of the Court to hold that Will was duly executed and

attested.

15. Regarding the argument as advanced on behalf of the

petitioner/appellant to the effect that two signatures of the attesting

witnesses are not required to be appended at a time, it needs to be stated

that it is true that two witnesses are not required to sign the Will at the

same time but they are required to sign the Will in the presence of the

testator. From the evidence of PW-1, it is not apparent whether the

witnesses put their signatures to attest the Will in presence of testator and

hence, the learned Court below has rightly held that this aspect creates

suspicion surrounding execution and attestation of the Will. Factual matrix

of the case cited on behalf of the appellant is totally different from the case

at hand and hence, such judgment is distinguishable on facts.

16. On perusal of the contents of the Will, it transpires that on the first

page, testator addressed Ashalata as his only wife whereas on the second

page, he addressed her as his second wife. In the Will, there is no reference

to Radharani or Bhagirathi. In view thereof, suspicion would arise in the

mind of any prudent man as to whether the Will was scribed under the

instruction of the testator and as to whether testator knew and approved the

contents of the Will. Suspicion would also arise as to whether the testator

understood the nature of disposition and as to whether the Will was an

outcome of his own free will. We are of the considered view that such

suspicions have not been removed by the petitioner.

17. Although, it was claimed that the testator breathed his last on

12.02.1996 but the petitioner could not take any step to prove the same.

When the Will was allegedly executed, the petitioner was 8 (eight) years of

age and he could not say wherefrom he got the Will and under whose

custody the Will was kept for such long years i.e. from 1973 to 2000. He

miserably failed to dispel the suspicions surrounding the execution and

attestation of the Will from the conscience of the learned Court and as such

the learned Court below has rightly refused to grant probate in respect of

the Will in question.

18. Consequently, the appeal being devoid of merit is dismissed. The

judgment impugned is hereby affirmed.

19. There shall, however, be no order as to costs.

20. Let a copy of this judgment along with the LCR and the Will be sent

to the learned Court below forthwith.

21. Urgent Photostat copy of this judgment, if applied for, shall be

granted to the parties as expeditiously as possible, upon compliance of all

formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)