Calcutta High Court (Appellete Side)
Ramendra Sundar Mandal vs Smt. Chandralekha Roy on 29 September, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Uday Kumar
F.A. No.95 of 2022
Ramendra Sundar Mandal
Vs.
Smt. Chandralekha Roy
(Bharati Basu since deceased)
For the Appellant :Mr. Arijit Sarkar, Adv.,
Mr. Intikhab Alam Mina, Adv.,
For the Respondent :Mr. Surajit Nath Mitra, Sr. Adv.,
Mr. Debasish Roy, Adv.,
Mr. Asit Baran Ghosh, Adv.,
Mr. Piyush Chaturvedi, Adv.,
Mr. Chittapriya Ghosh, Adv.,
Mr. Somesh Ghosh, Adv.,
Mr. Komal Singh, Adv.
Hearing Concluded On : 8th September, 2022
Judgment On : 29th September, 2022
Soumen Sen, J.: The appeal is directed against the judgment passed
by the learned Additional District Judge, 5th Court, Burdwan, in connection
with an application for grant of probate of the Will claimed to be the last Will
and testament of one Prabal Ranjan Kar since deceased.
The probate was contested by the elder sister of the testator. The
learned Trial Judge refused to grant probate inter alia, on the ground that
the propounder has failed to prove that the testator executed the alleged Will
on his own accord and volition and he was physically and mentally capable
of executing such Will at the material point of time.
In short, failure to remove suspicious circumstances surrounding the
execution of the Will, has persuaded the learned Trial Judge in refusing to
grant probate.
Here is an unprivileged Will of one Prabal Ranjan Kar who it is said to
have drafted a Will in his own handwriting and carried it to one
Shyamalendu Goswami a typist in court premises of Burdwan District Court
to type out the said Will presumably on 6th February, 2009 near about 4
months before his death. He died at the age of 68. He was admitted to a
nursing home in and around June 13, 2009 before he expired for having his
old ailment of diabetes, high blood pressure and hypertension. He died on
the following day i.e., June 14, 2009. He at the relevant time was also
suffering from heart related ailments.
The executor is the sole beneficiary under the Will.
The beneficiary happens to be the advocate of the testator.
Under the Will, the testator alleged to have bequeathed all his movable
and immovable properties including dwelling house at 54/1 Kachhari Road,
P.S.-Burdwan in favour of the executor.
The stated consideration for such bequeath appears to be the unstinted
care, support and devotion of the executor to the testator during his life
time. The testator presumed to have satisfied about the integrity of the
executor acknowledged the service rendered by the executor in various
matters free of any charge or remuneration. The executor was alleged to be
faithful and trustworthy. It was also further stated that before drafting the
Will the testator had expressed his willingness to appoint the petitioner or
his wife as executor and on their expressed consent he appointed them as
executors of the said Will and bequeathed the entire property to the
executor. The petitioner says that at the time of the execution of the said
Will testator was physically fit and mentally alert and he was capable of
executing the said Will. It is stated that the Will was executed by the testator
on his own accord and volition.
The testator was a bachelor person. He was survived by his only legal
heir namely Bharati Basu, his elder sister. She was alive at the relevant
time. She contested the probate proceeding.
After citation of notice of the Will Bharati Basu entered appearance and
filed her objection.
In her objection Bharati has categorically stated that she maintained a
cordial relationship with the testator and she used to attend all his needs
and even purchased medicine for him. Her brother was suffering from High
Blood Pressure and High Blood Sugar for a prolonged period of time. She
denied execution of the Will and specifically contended that her brother
having regard to his physical condition and eye problem could not have
executed the said Will. She had further stated that her brother never used to
follow the advice of the doctors although he was himself a homeopath doctor
and because of such casual and irresponsible behaviour he lost his eye
sight. In fact in October, 2008 she brought him to one eye surgeon namely
Bikash Basu who upon examination had observed that the testator had lost
his eye sight due to detachment of Retina and as a result of which the
testator had no ability to read and write by himself. Since he himself was a
Homeopathic Physician he used to prescribe medicines to his patients which
were reduced to writing by his compounder and having regard to the
aforesaid fact it is completely unbelievable that he had drafted a Will in his
own hand on 6th February, 2009 and thereafter went to the Burdwan Court
to have it typed by a typist and then he executed a Will. She has specifically
alleged that the executor beneficiary was the advocate appointed by their
mother in an eviction suit during her lifetime and the said advocate taking
advantage of the impaired eye sight and failing health of the testator
fraudulently used some of the blank demi papers signed by the testator for
the aforesaid purpose. One of demi papers signed in blank by the testator
meant for court cases was used for manufacturing this alleged Will and the
outcome of such unfaithful conduct is the present Will.
On the basis of the pleadings and the documents four issues were
framed by the learned Trial Court.
During the trial the petitioner produced four witnesses to prove the due
execution and attestation of the Will. On the other hand two witnesses were
examined on behalf of the objector. Significantly, the objector produced the
death certificate and the certified copy of the objection dated 12th May, 2009
filed in Title Suit No.203 of 2004 and marked as Exbt. A and B.
The case of the appellant stands or falls on the appellant being able to
satisfy the conscience of the court with regard to due execution of the Will
upon removing all the suspicious circumstances surrounding it.
Before we go into details it is important that we give our observation on
the original Will produced before us from the safe custody of the court. It
consists of two pages. Both the pages were typed on a demi paper. Draft
handwritten Will was not disclosed. We are not aware of the existence of any
holograph Will or a handwritten draft Will typed later. The signature of the
testator appearing at the right hand corner on both the pages and marked
as Exbt.2/3 and 2/4 respectively are shaky, infirm and does not correspond
to a signature appearing on the left hand side immediately below the type
written words in Bengali. The English translation would read:
"I am the author of the Will and have the draft copy of the Will typed".
This signature was marked as Exbt. 2/5. The said signature
significantly differs from the other two signatures appearing on the right
hand corners of the first and second page of the said document. The
signature that we have immediately referred to being Exbt.2/5 could not
have signed on the same date. The said signature being Exbt.2/5 if at all we
are convinced to accept it to be the signature of the testator clearly shows
that the eye sight of the testator was seriously impaired. Apart from the said
signature being Exbt. 2/5 being more quivering, trembling, infirm and
shaky in comparison to Exbt. 2/3 and Exbt. 2/4 it is like scribblings
irregular and follows a completely different pattern in relation to the other
two signatures.
For convenience the scanned copy of the three signatures are
reproduced below:
All the aforesaid signatures demonstrate a debilitated mind and body.
Proof of the signature of the testator in a Will is an important matter which
requires to be proved. Even if it is proved by the attesting witnesses that
they have seen the testator executing the Will in their presence and they
have also put their signatures in the presence of each other and testator still
then it is to be proved that the testator had really subscribed to the terms of
the Will.
The propounder of the Will has not only to prove the Will in accordance
with Section 63(c) of the Indian Succession Act read with Section 68 of the
Evidence Act, 1925, but he is also required to adduce evidence to all the
suspicious circumstances in order to remove all possible doubts that are
likely to linger in the mind of the court and continue to prick its conscience.
Even if the executor is not expected to prove the Will with mathematical
accuracy but all reasonable doubts are to be cleared.
Ramendra Sundar Sarkar (in short, 'Ramendra') is the beneficiary
under the Will. In the Will it is stated that he used to look after the testator
and render service without any remuneration. He used to appear and/or
represent the testator in Court cases without fees. He used to attend to the
medical needs of the Testator.
Ramendra was PW1. He acknowledged a relationship of advocate and
client between the testator and him. He was representing the testator in
Title Suit No.203 of 2004. The said suit was pending before the Civil Judge
Junior Division 4th Court, Burdwan.
The suit was for eviction filed by one Anita Kar mother of the alleged
testator. After death of Anita the testator and his sister Bharati substituted
themselves as plaintiffs as legal heirs of Smt. Kar. He could not recollect
when he submitted the Vokalatnama on behalf of alleged testator. The suit
was not filed through him and no notice was served upon the tenants
through him. The testator according to the executor approached him almost
5 and 6 years back for filing the substitution application on this behalf.
Ramendra could not recollect the name of doctors who used to treat the
testator. He could not produce any document to substantiate that he made
arrangement for any medical treatment or purchase medicines for the
testator. He could not even recollect the medicines that the testator used to
take or any kind of medical investigation that the testator had done from
any diagnostic centre.
He has stated that the Will is the outcome of the desire of the testator.
However, he admitted that he did not see any draft from which the draft
copy of the Will or when such Will was drafted or typed. He stated that while
taking any step in any court matter signature of the client is generally
obtained on the right hand side top corner of the petition and thereafter the
advocate used to put his signature. He did not advise the testator to register
the Will.
The interesting part of the evidence was his explanation to the word 'by'
appearing at the right hand side top portion of the 1st page of the alleged
Will. It would be useful to reproduce the observation of the learned Trial
Judge in this regard:
"The Will in original was placed before the petitioner/deponent and one
question was put as to whether the signature of Prabal Ranjan Kar the
word "by" has been written on the right hand side top corner of the first
page of the Will or not? The witness after looking into the said page
carefully expressed his inability to understand as to whether the world
'by' has been written or not.
Not a fact that signature appearing in the left hand side bottom of page
no.2 of the Will and on the right hand side top of the same page are
totally different.
Not a fact that since some demi paper duly signed by my client Prabal
Ranjan Kar was lying with me I myself have used the said signed demi
paper and used the same as Will."
Ramendra stated that the testator was of sound mind at the time of
execution of the Will. He however, could not recollect the date, month or
year when alleged testator handed over the keys of the house to him.
However, he has stated that the keys of the house was handed over to him
at Burdwan Nursing Home at the time of his admission. He further stated
that at the time of alleged handing over of the keys neither the doctor nor
any nurse or anyone else was present. It is also significant to mention that
in his chief Ramendra has stated that on 6th February, 2009 the testator
decided to draft a Will and thereafter to get it transcribed and attested by
witnesses. This is stated in paragraph 10 of the affidavit in chief and
affirmed as true to his knowledge. The word 'by' was written in a different
ink.
The executor alleged that Bharati Basu never used to look after the
testator and she did not keep any relationship with the testator. The
petitioner was the only companion. The keys of the dwelling house was
handed over to him before the death of the executor and after the death of
the testator the executor kept the dwelling house under lock and key.
However, on 2nd August, 2009 Bharati Basu forcibly obtained possession of
the house after breaking open the padlock for which the petitioner has
lodged one G.D Entry at Burdwan P.S.
Bharati Basu the elder sister in her evidence has stated that her
brother was a chronic diabetic patient and was careless in taking medicine
and follow up regular medical check up. She produced the death certificate
of the testator and the certified copy of the petition filed by the testator in
Title Suit No.203 of 2004. She also tendered some medical prescriptions in
respect of the treatment of the testator that were marked X for identification
collectively. She has categorically stated that she used to attend to the need
of her brother and she had paid all the medical bills of the hospital.
According to Bharati the testator became seriously ill for about a month
before his death and during the period Bharati used to visit him and would
follow up treatment through the doctor attached to the testator namely Abu
Taleb and compounder Sudarsan Das.
In her examination in chief, she has stated that she took her brother to
two specialists, namely, Dr. Bikash Basu and Dr. Kusal Chowdhuri in
October, 2008 and her brother stayed with her for almost a month
thereafter. Dr. Basu advised him to control blood sugar and blood pressure
and due to high blood sugar and high blood pressure he has suffered
detachment of retina and could be blind for ever if he is not careful in
future. In view of the poor eye sight his brother was assisted by the
compounder and one junior doctor Abu Taleb. In or about December, 2008
his brother became seriously ill and on the advice of Dr. Amitava Mukherjee
he was admitted to "Diplomat nursing home on December, 5, 2008 and he
was in the ICU till 10th December, 2008, until he was shifted to a private
cabin on 12th December, 2008, after he was released he was unwell and
could not lead a normal life. Since October, 2008 he almost lost his eye sight
and was unable to write or read and was totally dependent upon his
compounder and the junior doctor.
Ramendra taking advantage of the testator being his client procured
signature of demi paper and thereafter converted it into the alleged Will. Mr.
Basu was supported by the evidence of Md. Abu Taleb. He was a homeopath
R.M.P.O and used to attend the chamber of the testator since 1993. He
confirmed the Sudarsan was the compounder.
Abu in his chief has stated that previously the testator himself used to
maintain patient's diary and used to write prescription by himself.
Subsequently, since October, 2008 he almost lost his eye sight. He went to
Calcutta in October, 2008 and returned after one month. At that time he
lost his eye sight completely. It was at the instruction of the testator he used
to write down case history of the patient in the diary and also medicine
prescribed. He confirmed that the testator was incapacitated to read or write
since November, 2008 till his death. Abu and Sudarsan got the testator
admitted in the Nursing Home. He was also extensibly cross-examined.
During this cross-examination he has stated that in the year 2008 when the
testator became seriously ill he was initially taken to one Dr. Kajal
Mukherjee and on his advice to Diplomat Nursing Home having ICU facility.
The chamber of Dr. Kajal Mukherjee and Diplomat Nursing Home are
located at Khasbagan, Burdwan.
Abu in his cross-examination has stated that signatures appearing on
the right hand corner of page 1 and 2 are appearing to be the signature of
the testator but the signature appearing on the bottom portion of the 2nd
page is doubtful as to whether the same is by the testator concerned or not.
On the basis of the oral and documentary evidence the learned Trial
Judge dismissed the probate suit on the ground that the executor has failed
to proof that the alleged testator executed the alleged Will on his own accord
and volition and he was physically and mentally fit to keep of executing the
Will at the material point of time. In short the probate case was dismissed as
the executor was unable to remove the suspicious circumstances
surrounding the execution of the Will.
Moloy Ghosh is one of the attesting witnesses of the alleged Will. He
was a resident of Town Hall in Burdwan and has not known to the testator.
According to his evidence the testator approached him to act as an attesting
witness of the Will. The testator alleged to have met him on the road. Moloy
was unable to say the date when the testator approached him. He claimed
to be an witness to the signature of the testator. He also claimed himself to
be an attesting witness. However, in his cross examination he could not
recollect the place where the Will was prepared or who has typed the Will.
He also admitted that he did not know the other witnesses. However, it is
established during cross examination that Ramendra represented him in a
criminal case and that is how he came to know of Ramendra. During his
cross examination he has stated that he had visited the chamber of the
testator for medical treatment but he could not recollect on which date he
visited the chamber of the testator. He also could not produce any
prescription showing that he had ever consulted the testator during his
alleged visit. He could not recollect the date on which the testator
approached him. He could not say where the Will was "scribed". He had
not seen any handmade Will or draft will. He was not present when the Will
was scribed. He also could not say who had typed the Will.
Sisir Koley, who claimed to be the other attesting witness by profession,
was a middleman working in the motor vehicle department. He admitted
that he has no relationship with the testator and had no idea about the
properties of the testator. He had not seen the testator to produce any draft
Will for typing nor had he seen any draft Will. He also could not recollect
when the testator approached him to be an attesting witness. He further
admitted that when he signed Moloy was not present and he himself did not
see the testator putting his signature in the Will. He has stated that during
his cross examination he did not see the testator "to scribe any Will". He
has also not seen any draft Will. He also could not say where the Will was
typed.
Shyamalendu Goswami, P.W.4 was typist by profession. He used to
work in the court premises of Burdwan District Court. He has stated that
there is no endorsement to the effect that the Will was typed as per the
instruction of the testator. He had no personal relationship with the
testator. He came to know only when the testator approached him at the
court premises for transcribing the draft Will. He did not see the testator
writing any document in his presence. However, he admitted that the
executor is known to him.
The learned Counsel for the appellant has strenuously argued that the
onus of fraud, undue influence or that the signatures appearing in the
alleged Will are not that of the testator lies on the caveatrix. In this regard,
he has relied upon the decision of the Hon'ble Supreme Court in Surendra
Pal & Ors., reported in AIR 1974 SC 1999: 1974 (2) SCC 600. It is
further submitted that the presumption contemplated under Section 111 are
only profession inferences.
The learned Counsel has further argued that the presumption that
Ramendra as advocate of the testator is in a position to dominate the will of
the testator and the Will was executed under undue influence are for the
caveatrix to prove. The caveatrix could not establish that the Will was the
product of any undue influence or a manufactured document.
Per contra, the learned Counsel for the caveatrix has submitted that
there are few unusual features in the Will which the appellant has failed to
explain. These unusual features are the mismatch of the signatures in the
two pages of the Will, word 'by' written in a different ink at the right corner
below the signature of the appellant, the two pages are of demi paper, one of
the attesting witnesses is a client of Ramendra, both the attesting witnesses
are unknown to the testator, testator with feeble eyeside and shaky hand
draft Will and the others contradiction in the evidence of the witnesses
produced by Ramendra. It is submitted that it is quite clear from the
evidence as also apparent from the signature in the alleged Will that
appellant was not physically well or was capable of singing any document.
Mr. Mitra has emphasized that the evidence of the caveatrix and Abu Taleb
has clearly established that eye sight of the testator was severely impaired.
With such physical health and poor eye sight it is unbelievable that the
testator would travel from his place alone to the court premises and get hold
of a scribe to type of draft Will alleged to be in the handwriting of the
testator and thereafter would find a willing person to attest the Will.
Mr. Mitra has accordingly submitted that the learned Trial Judge was
justified in rejecting the probate case.
A Will is a commitment, desire, inclination and intention to bequeath
and dispose of properties in the future, in favour of the beneficiary.
Dispositions of like nature at times raise issues like mental incapacity,
feeble mind, undue influence, coercion and fraud. The legal heirs who would
have ordinarily succeeded to the estate of the deceased but for the Will are
generally the persons aggrieved and very often the Will is challenged on the
ground of suspicious circumstances surrounding the execution of the Will.
The propounder who also becomes the beneficiary under a will taking a
prominent role in the execution of the Will, is one of the factors considered
as suspicious circumstances in deciding a contentious probate proceeding.
It is, thus, necessary to establish that the testatrix at the time of execution
of the Will was of sound disposing mind. When the Will is made, the law
requires that there should be sound disposing mind both at the time when
the instructions for the will is given and when the will is executed, but it
would appear that if the will is shown to have been drawn in accordance
with the instructions given while the testator was of sound disposing mind,
it is sufficient that, when he executes it, he appreciates that he is being
asked to execute a will, a document drawn in pursuance of those
instructions shall remain valid. It is presumed that the testator was sane at
the time when he made his Will but if the question of his insanity or mental
incapacity is contested, the initial onus is on the propounder to prove that
the testator was of sound disposing mind and have the required mental
capacity at the time when he made his Will. While there must be a vigilant
examination of all the evidence, if the court feels that there is no doubt
substantial enough to defeat a grant of probate, then the grant must be
made. The law does not require complete proof of mental capacity and
sound disposing mind or even proof beyond reasonable doubt is not
essential (See. Wellesley v. Vere (1841)2 Court 917, Re Flynn, Flynn v
Flynn 1982(1) All ER 882 at 890. (Clancy v. Clanc (2003) EWHC 1885
(CH), and Re: Perrins v Holland (2009) EWHC 2029 (CH) (WLLR).
The law requires that at the time of bequeath the testator has a
disposing mind so that he is able to make a disposition of his property with
understanding and reason.
The mode and manner of execution of a Will has been lucidly
discussed in Savithri & Ors., v. Karthyayani Amma & Ors., reported in
2007(11) SCC 621 in paragraphs 19 to 20. The said paragraphs are
reproduced below:
"19. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors.,
this Court held:
32. Section 63 of the Indian Evidence Act lays down the mode and
manner in which the execution of an unprivileged Will is to be proved.
Section 68 postulates the mode and manner in which proof of execution
of document is required by law to be attested. It in unequivocal terms
states that execution of Will must be proved at least by one attesting
witness, if an attesting witness is alive subject to the process of the
court and capable of giving evidence. A Will is to prove what is loosely
called as primary evidence, except where proof is permitted by leading
secondary evidence. Unlike other documents, proof of execution of any
other document under the Act would not be sufficient as in terms of
Section 68 of the Indian Evidence Act, execution must be proved at least
by one of the attesting witnesses. While making attestation, there must
be an animus attestandi, on the part of the attesting witness, meaning
thereby, he must intend to attest and extrinsic evidence on this point is
receivable.
33. The burden of proof that the Will has been validly executed and is a
genuine document is on the propounder. The propounder is also
required to prove that the testator has signed the Will and that he had
put his signature out of his own free will having a sound disposition of
mind and understood the nature and effect thereof. If sufficient
evidence in this behalf is brought on record, the onus of the propounder
may be held to have been discharged. But, the onus would be on the
applicant to remove the suspicion by leading sufficient and cogent
evidence if there exists any. In the case of proof of Will, a signature of a
testator alone would not prove the execution thereof, if his mind may
appear to be very feeble and debilitated. However, if a defence of fraud,
coercion or undue influence is raised, the burden would be on the
caveator. See Madhukar D. Shende v. Tarabai Shedage and Sridevi and
Ors. v. Jayaraja Shetty and Ors. Subject to above, proof of a Will does
not ordinarily differ from that of proving any other document.
20. Therein, this Court also took into consideration the decision of this
Court in H. Venkatachala Iyengar (supra), wherein the following
circumstances were held to be relevant for determination of the existence of
the suspicious circumstances:
34. ........ (i) When a doubt is created in regard to the condition of mind
of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the
light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of
Will which confers on him substantial benefit.(emphasis supplied)
It is trite law that the burden of proof is on the propounder to prove
that the Will has been voluntarily executed, that the testator has signed the
Will and put his signature on his own free will having sound disposition of
mind, understanding the nature and effect thereof and that the Will is a
genuine document. The onus of the propounder may be discharged if he
succeeds in bringing on record sufficient cogent evidence in this regard and
removing all suspicions. However, the burden of proof shifts to the caveator
if a defence of undue influence, fraud or coercion is raised.
As held in Barry v. Butlin reported in (1838) 2 Moo PC. 480, the law
is well settled that the onus probandi lies on the person who propounds the
Will, and this onus is in general discharged by proof of capacity, and the fact
of execution, from which the knowledge and the assent to its contents by the
testator will be assumed. But where a Will is prepared and executed under
circumstances which excite the suspicion of the Court it is for those who
propound the Will to remove such suspicion, and to prove affirmatively that
the testator knew and approved of the contents of the document as opined
in Tyrrell v. Painton reported in L.R. 1894 Page 151. Where once it has
been proved that a Will has been executed with due solemnities by a person
of competent understanding and apparently a free agent, that is, when the
propounder of the Will has discharged the onus: the burden of proving that
it was executed under undue influence is on the party who alleges it as
observed in Boyse v. Rossborough reported in (1857) 6 H.L.C. 2: 26 L.J.
Ch. 256. It was also held that influence in order to be undue within the
meaning of any rule of law which would make it sufficient to vitiate a Will
must be an influence exercised either by coercion or by fraud. To the same
effect is the statement in Barry (supra) which held that the undue influence
and the importunity must be of the nature of fraud or duress if they are to
defeat a Will. As observed in Craig v. Lamoureux L.R., reported in (1920)
A.C. 349 the burden of proving undue influence is not discharged by merely
establishing that a person has the power unduly to overbear the will of the
testator. It must be shown that in the particular case the power was
exercised, and that it was by means of the exercise of that power that the
Will was obtained.
In RM. Ak. P. Kannammal Achi & Ors., v A.N. Narayanan
Chettiar reported in (1970) 1 MLJ 252 it was held that "While the burden
on the propounder of the Will is to show that the testator executed the Will in
his right mind and with disposing mental capacity, the caveator to succeed
and have the Will thrown out should establish that the Will was executed
under undue influence and the evidence in regard to this must be of the
exercise of influence either by coercion or by fraud. Mere persuasion and
importunity which do not unduly overbear the will of the testator would not be
undue influence that would vitiate the Will." (emphasis supplied)
It is paramount duty of the propounder to explain away the suspicious
circumstances attending the execution of the Will. This burden gets
heightened when a caveat is entered challenging the Will as forged or
vitiated by undue influence etc. These principles are elaborately stated by
the Hon'ble Supreme Court in H. Venkatachala Iyengar v. B.N.
Thimmajamma, reported in 1959 (Supp) 1 SCR 426: AIR 1959 SC 443.
In H. Venkatachala Iyenger (supra) the Court clearly distinguished
the nature of proof required for a Will as opposed to any other document
reads as under:-
"18. The party propounding a will or otherwise making a claim under
a will is no doubt seeking to prove a document and, in deciding how it is to
be proved, we must inevitably refer to the statutory provisions which govern
the proof of documents. Sections 67 and 68 of the Evidence Act are relevant
for this purpose. Under s. 67, if a document is alleged to be signed by any
person, the signature of the said person must be proved to be in his
handwriting, and for proving such a handwriting under ss. 45 and 47 of the
Act the opinions of experts and of persons acquainted with the handwriting of
the person concerned are made relevant. Section 68 deals with the proof of
the execution of the document required by law to be attested; and it provides
that such a document shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its execution.
These provisions prescribe the requirements and the nature of proof which
must be satisfied by the party who relies on a document in a court of law.
Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant.
Section 59 provides that every person of sound mind, not being a minor,
may dispose of his property by will and the three illustrations to this section
indicate what is meant by the expression "a person of sound mind " in the
context. Section 63 requires that the testator shall sign or affix his mark to
the will or it shall be signed by some other person in his presence and by his
direction and that the signature or mark shall be so made that it shall
appear that it was intended thereby to give effect to the writing as a will.
This section also requires that the will shall be attested by two or more
witnesses as prescribed. Thus the question as to whether the will set up by
the propounder is proved to be the last will of the testator has to be decided in
the light of these provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in the will? Did he put his
signature to the will knowing what it contained? Stated broadly it is the
decision of these questions which determines the nature of the finding on
the question of the proof of wills. It would prima facie be true to say that the
will has to be proved like any other document except as to the special
requirements of attestation prescribed by Section 63 of the Indian
Succession Act. As in the case of proof of other documents so in the case of
proof of Wills it would be idle to expect proof with mathematical certainty. The
test to be applied would be the usual test of the satisfaction of the, prudent
mind in such matters." (emphasis supplied)
The Privy Council in discussing the onus to prove the Will by the
propounder in Gomtibai v. Kanchhedilal & Ors., reported in AIR 1949
PC 272 has stated:
"The onus probandi to establish a Will lies on the person who
propounds it. This onus is in general discharged by proof of capacity,
and the fact of execution, from which the knowledge and the assent
to its contents by the testator will be assumed. But where a Will is
prepared and executed under circumstances which excite the
suspicion of the court, it is for those who propound the Will to remove
such suspicion and to prove affirmatively that the testator knew and
approved of the contents of the Will. Where once it is proved that a
Will has been executed with due solemnities by a person of
competent understanding and apparently a free agent, that is when
the propounder of the Will has discharged the onus, the burden of
proving that it was executed under undue influence is on the party
who alleges it." (emphasis supplied)
It is well-established that in a case in which a Will is prepared under
circumstances which raise the suspicion of the court that it does not
express the mind of the testator, it is for those who propound the Will to
remove that suspicion. [See. Gorantla Thataiah v. Venkatasubbaiya,
reported in AIR 1968 SC 1332: Indu Bala Bose v. Manindra Chandra
Bose, reported in AIR 1982 SC 133.]
A Will is one of the most solemn documents known to law. By it a
dead man entrusts to the living, the carrying out of his wishes, and as it is
impossible that he can be called either to deny his signature or to explain
the circumstances in which it was executed it is essential that trustworthy
and effective evidence should be given to establish compliance with the
necessary forms of law [Ram Gopal Lal v. Aipna Kunwar, reported in AIR
1922 PC 366]. It seems impossible to enunciate any specific standard of
proof which will be required to establish the authenticity of a Will in any
given case. Everything depends upon the circumstances of the particular
case under consideration. (Keshev v. Vithal; AIR 1925 Nag 427, Per
Findley O.C.J).
In S.R. Srinivasa v. S. Padmavathamma, reported in 2010(5) SCC
274 the Hon'ble Supreme Court after taking into consideration the earlier
decisions with regard to the mode, manner and the relevant legal provisions
which govern the proof of Will has summarized the law with regard to the
proof of Will in the manner following:
"38. The aforesaid statement of law was further clarified by Chandrachud
J. in the case of Jaswant Kaur v. Amrit Kaur reported in (1977) 1 SCC
369 as follows:
1. Stated generally, a Will has to be proved like any other document, the
test to be applied being the usual test of the satisfaction of the prudent
mind in such matters. As in the case of proof of other documents, so in the
case of proof of Wills, one cannot insist on proof with mathematical
certainty.
2. Since Section 63 of the Succession Act requires a Will to be attested, it
cannot be used as evidence until, as required by Section 68 of the Evidence
Act, one attesting witness at least has been called for the purpose of
proving its execution, if there be an attesting witness alive, and subject to
the process of the court and capable of giving evidence.
3. Unlike other documents, the Will speaks from the death of the testator
and therefore the maker of the Will is never available for deposing as to the
circumstances in which the Will came to be executed. This aspect introduces
an element of solemnity in the decision of the question whether the
document propounded is proved to be the last Will and testament of the
testator. Normally, the onus which lies on the propounder can be taken to
be discharged on proof of the essential facts which go into the making of the
Will.
4. Cases in which the execution of the Will is surrounded by suspicious
circumstances stand on a different footing. A shaky signature, a feeble
mind, an unfair and unjust disposition of property, the propounder himself
taking a leading part in the making of the Will under which he receives a
substantial benefit and such other circumstances raise suspicion about the
execution of the Will. That suspicion cannot be removed by the mere
assertion of the propounder that the Will bears the signature of the testator
or that the testator was in a sound and disposing state of mind and
memory at the time when the Will was made, or that those like the wife and
children of the testator who would normally receive their due share in his
estate were disinherited because the testator might have had his own
reasons for excluding them. The presence of suspicious circumstances
makes the initial onus heavier and therefore, in cases where the
circumstances attendant upon the execution of the Will excite the suspicion
of the court, the propounder must remove all legitimate suspicions before the
document can be accepted as the last Will of the testator.
5. It is in connection with Wills, the execution of which is surrounded by
suspicious circumstances that the test of satisfaction of the judicial
conscience has been evolved. That test emphasises that in determining the
question as to whether an instrument produced before the court is the last
Will of the testator, the court is called upon to decide a solemn question and
by reason of suspicious circumstances the court has to be satisfied fully
that the Will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the
execution of the Will, such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances surrounding the execution of
the Will may raise a doubt as to whether the testator was acting of his own
free Will. And then it is a part of the initial onus of the propounder to remove
all reasonable doubts in the matter." (emphasis supplied)
In Bharpur Singh & Ors., v. Shamsher Singh, reported in 2009 (3)
SCC 687 at Paragraph 16 has stated the following three aspects that must
be proved by a propounder:
"16..... (i) that the Will was signed by the testator in a sound and disposing
state of mind duly understanding the nature and effect of disposition and he put his
signature on the document of his own free Will, and (ii) when the evidence adduced
in support of the Will is disinterested, satisfactory and sufficient to prove the sound
and disposing state of testator's mind and his signature as required by law, Courts
would be justified in making a finding in favour of propounder, and (iii) If a Will is
challenged as surrounded by suspicious circumstances, all such legitimate doubts
have to be removed by cogent, satisfactory and sufficient evidence to dispel
suspicion." (emphasis supplied)
Thereafter, in paragraph 23, the Apex Court has narrated a few
suspicious circumstances, as being illustrative but not exhaustive, in the
following manner:-
"Suspicious circumstances like the following may be found to be surrounded in
the execution of the Will: (i) The signature of the testator may be very shaky and
doubtful or not appear to be his usual signature. (ii) The condition of the testator's
mind may be very feeble and debilitated at the relevant time. (iii) The disposition may
be unnatural, improbable or unfair in the light of relevant circumstances like
exclusion of or absence of adequate provisions for the natural heirs without any
reason. (iv) The dispositions may not appear to be the result of the testator's free Will
and mind. (v) The propounder takes a prominent part in the execution of the Will. (vi)
The testator used to sign blank papers. (vii) The Will did not see the light of the day
for long. (viii) Incorrect recitals of essential facts." (emphasis supplied)
In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors.,
reported in (2006) 13 SCC 433 at paragraphs 34, 35 & 36 the Hon'ble
Supreme Court reiterated the circumstances that could be considered to be
suspicious in the following words:-
"34. There are several circumstances which would have been held to be
described by this Court as suspicious circumstances: (i) when a doubt is created in
regard to the condition of mind of the testator despite his signature on the Will; (ii)
When the disposition appears to be unnatural or wholly unfair in the light of the
relevant circumstances; (iii) where propounder himself takes prominent part in the
execution of Will which confers on him substantial benefit.
35. We may not delve deep into the decisions cited at the Bar as the question
has recently been considered by this Courts in Venkatamuni v. C.J. Ayodhya Ram
Singh reported in (2006) 13 SCC 449 wherein this Court has held that the court
must satisfy its conscience as regards due execution of the Will by the testator and
the court would not refuse to probe deeper into the matter only because the signature
of the propounder on the Will is otherwise proved. The proof of a Will is required not
as a ground of reading the document but to afford the Judge reasonable assurance of
it as being what it purports to be.
36. We may, however, hasten to add that there exists a distinction where
suspicions are well founded and the cases where there are only suspicions alone."
(emphasis supplied)
Similarly, in Leela Rajagopal & Ors., v. Kamala Menon Cocharan &
Ors., reported in (2014) 15 SCC 570, at paragraph 13 the Hon'ble Supreme
Court opined as under:-
"13. A Will may have certain features and may have been executed in certain
circumstances which may appear to be somewhat unnatural. Such unusual
features appearing in a Will or the unnatural circumstances surrounding its
execution Will definitely justify a close scrutiny before the same can be
accepted. It is the overall assessment of the court on the basis of such scrutiny;
the cumulative effect of the unusual features and circumstances which would
weigh with the court in the determination required to be made by it. The judicial
verdict, in the last resort, will be on the basis of a consideration of all the
unusual features and suspicious circumstances put together and not on the
impact of any single feature that may be found in a Will or a singular
circumstance that may appear from the process leading to its execution or
registration. This, is the essence of the repeated pronouncements made by this
Court on the subject including the decisions referred to and relied upon before
us." (emphasis supplied)
At the beginning we have expressed our serious doubt with regard to
the physical and mental ability of Prabal to execute any document. The
evidence of Bratati and Abu has clearly established that at the relevant time
Prabal was seriously ill and having regard to the nature and complication of
the disease it was highly unlikely if not impossible that Prabal on his own
would go to the court premises with a hand written draft Will to be
transcribed by a scribe whom he found in the Burdwan Court premises and
thereafter he met one of the attesting witnesses on the road who readily
agreed to put his signature on the document as attesting witness.
It is also significant that the language of the two pages of the document
which is claimed to be a Will typed on demi papers is legal and may not be
possible unless it is drafted by an advocate or an experienced scribe worked
in court premises. It starts with the opening words in Sanskrit which is
usually mentioned if drafted by a lawyer. The first few words before "Amar
Bartaman" which in English means "my present" are in Sanskrit and
commonly used by an advocate. It is not usually expected from a person
who is not conversant with the drafting of a Will or having a legal
background. Ramendra nor the scribe could produce the draft Will. Having
regard to the condition of the eyes it was well neigh impossible for Prabal to
execute any document. Although the medical prescriptions and other
documents relating to treatment of Prabal were marked X for identification
the caveatrix at least was able to establish that the testator was suffering
from high blood sugar, high blood pressure and impaired vision. She had
named the doctors and nursing homes where her brother was admitted. She
has also specifically stated that she had taken her brother to doctors and
she has specifically named three doctors who were consulted and diagnosed
her brother in her evidence. Her evidence was corroborated by Abu who was
working with the testator for many years. The evidence of the caveatrix and
Abu has remained unshaken during cross-examination.
On the contrary, the executor has failed to furnish any document in
support of any medical treatment and he could not name a single doctor
who used to be consulted by the testator during his life time. He could not
even prove the essential facts relating to rendering service free of cost and
attending to his medical need which forms the basis for the testator to give
preference to him over his elder sister.
Ramendra could not show that apart from the said eviction suit he had
represented and/or advised the testator in any other legal matter. The basis
of the Will as appeared from the recitals is greatly flawed and manipulated.
All legitimate doubts surrounding the creation and execution of the Will
could not be removed. Ramendra has failed to prove good faith and show
affirmatively that the testator could have formed a free and unfettered
judgment in the matter having regard to his physical and mental condition.
In England the Law Society has published rules regulating the conduct of a
solicitor who had taken a benefit under a Will or gift. In Re: a Solicitor
[1975] QB 475: 1974(3) All ER] it was held that when a Will is prepared by a
solicitor under which he takes a benefit the solicitor has a duty not merely
to tell the client that he should obtain independent advice but, if the client
declines to do so, to refuse to act further in the matter. Although in our
country there is no such rules the truth and faith that a client reposed on
his lawyer cannot be overlooked. In fact, Section 111 of the Evidence Act in
illustrator (a) has recognised this principle.
The "blind faith" reposed by almost a "blind man" on his advocate has
resulted in the coming into existence of the alleged Will.
Remendra in our view has acted contrary to the trust and in breach of
the relationship that is expected in an advocate-client relationship.
In view of the fact that Ramendra has failed to remove the suspicious
circumstances surrounding the execution of the Will I am of the view that
the learned Trial Judge was justified in dismissing the probate suit.
The appeal is dismissed with cost assessed at Rs.30,000/- to be paid to
the State Legal Services Authority that may be utilized for legal awareness.
(Soumen Sen, J.)
Uday Kumar, J. This appeal has been directed against the judgment
and Order dated 31st January, 2013 passed in O.S.(WILL) CASE NO. 05 of
2011/12 of 2010, whereby the Ld. Additional District Judge, 5th Court,
Burdwan, has dismissed the prayer of the Appellant/Petitioner, resulting in
rejection of the appellant's prayer for grant of probate in relation to the Will
dated 06th February, 2009, said to have been executed by the Prabal Ranjan
Kar, a 68 year old bachelor.
Hereinafter we referred it as 'the contested Will' or 'the Will in question'
or the 'document in question'.
The prayer of the appellant for grant of probate in relation to the Will in
question has been declined by the Trial Court essentially after finding
several unexplained suspicious circumstances surrounding the Will in
question. Being aggrieved, the petitioner-appellant, who was appointed as
the Executor of the Will in question and who was, admittedly, the sole
beneficiary thereunder, has preferred this appeal while maintaining that
execution of Will by the Testator with due compliance of all the requirements
of law has been clearly established on record and there has not been any
such suspicious circumstance which might operate against the genuineness
of the Will in question.
Therefore, essentially the point for determination in this appeal is as to
whether the Trial Court was justified in declining to grant probate in relation
to the Will dated 06th February, 2009 as prayed for.
THE PARTIES AND THE WITNESSES
For comprehension of the subject-matter and for effective
determination of the questions raised in this appeal, I may take note of the
principal parties and the witnesses involved in the matter with their
respective roles as infra:
TESTATOR
The Testator Prabal Ranjan Kar, 68 year old bachelor, died issueless
on 14th June, 2009 in Nursing Home at Burdwan, out of his prolong severe
heart ailment and diabetes, leaving behind his elder sister Bharati Basu, the
sole contesting party or objector/respondent herein. Testator was a
Homeopathic doctor by profession but due to detachment of retina he lost
his eyesight from October 2008. He was living alone in the house at 54/1
Kachchari Road, Burdwan, which is the subject matter of the Will in
question.
EXECUTOR
The Appellant/ Executor is Ramendra Sunder Mondal, who is
advocate by profession and was engaged as attorney by Anita Kar, Mother of
Testator and after her death by Testator and his sister, in a Title Suit being
number 203 of 2004 pending in the court of Ld. Civil Judge (Junior
Division), Burdwan. No way, he is related to Testator except the relationship
of Attorney and Client. He is shown as the Executor of the Will in question
and is the sole beneficiary thereunder. He filed the petition seeking probate
of the Will but the same has been declined by the Trial Court. He challenged
the same in this Appeal. He kept the premises under lock and key when
testator was admitted in Nursing home for treatment.
OBJECTOR
Respondent / Objector is Bharati Basu, who is the elder sister of the
Testator. She does not live in Burdwan but she lives in Kolkata, despite that
she used to take care of his brother by arranging medicines for him through
his junior doctor and compounder and used to visit Burdwan off and on.
After citation of notice of 'Will', the objector namely Bharati Basu
appeared in court and filed a written objection against Executor in
proceeding, wherein she denied and disputed all the material allegations
made in the application by stating that testator Prabal Ranjan Kar had
never executed any such 'Will' and the same has been manufactured by
petitioner on the blank signed paper taken by him for taking steps in the
pending suit, after the death of Testator.
She also stated that she had good relation all along with the Testator,
who was suffering from High Blood Pressure and High Blood Sugar since
long and she always keep in touch with her brother. She further stated that
her brother did not bother to follow the instruction of doctors due to which
he lost his eye sight. Thereafter she brought him to eye surgeon Dr. Bikash
Basu at Kolkata, for treatment of his eyes in the month of October, 2008
who diagnosed that Testator had lost his eye sight due to detachment of
Retina and was not able to read and write by himself. Though he was
Homeopathic Physician, he himself was not able to prescribe medicines to
his patients and his compounder used to assist him for that. As such it was
not possible for him to draft any 'Will' and on 6th February, 2009 the
petitioner being lawyer of the testator obtained many blank signed demi
papers from the testator and he manufactured the instant 'Will' by using
said demi papers with intention to grab the valuable properties of his client/
testator.
THE ATTESTING WITNESSES:
PW-2 is Shri. Malay Ghosh S/O Nishikant Ghosh, resident of
Townhall para Burdwan, does not know the Testator. He stated that
Testator approached him to be "attesting witness" of the Will on a road but
cannot say the date on which Testator approached him. He claimed himself
as a witness of the Will but admitted in cross-examination that he cannot
say where the Will was scribed, who scribed it nor had acquaintance with
another witness Sisir Koley. He further admitted in his cross-examination
that there is a criminal case pending against him and petitioner / executor
Ramendra Sundar Mondal is his lawyer in that case.
PW3 Sisir Koley S/O Sudhakar Koley of Village Nadra P.S Bhatar, a
tout in M.V department by profession, is the other attesting witness of the
'Will'. He explicitly admitted that he has no relation with Testator and hadn't
any idea about the property of the Testator including the property under the
Will and he hadn't seen the testator to scribe the Will nor seen any draft of
the Will. He further admitted that he cannot say when Testator approached
him to be an attesting witness of the Will but at that time none except both
of them were present.
SCRIBE
PW4 is Shyamlendu Goswami, a typist by profession and who typed
the Will in question. He stated that there is no endorsement to the effect
that "the same was typed as per instruction of the testator and that on the
date of typing he himself experienced the physical ability and capability of
testator and that he had no personal relation with the testator and that
earlier he had no access to the house of the testator and that he got
acquainted with the testator in connection with the job he assigned him to
do and that generally person intended to execute a Will approach any
advocate first, then to him for drafting of the Will but he did not enquire the
name of advocate who drafted the Will and Testator was stating that "he was
not physically well at that time and that he hadn't seen the Testator to write
any document and that he didn't see any medical prescription of the
testator." He also admitted that appellant /petitioner / executor is known to
him.
PROPERTY IN QUESTION
The property in question is identified as a dwelling house bearing
number 54/1 at Kachhari road under P.S. Burdwan, forms the subject of
bequeath and which is the major bone of contention in this case. Details of
property as per schedule of affidavit of assets annexed with petition is -
"54/1 kachhari road, district and police station Burdwan, Mouza
Radhanagar,
J.L No. 39, C.S Khatian No. 1121, L.R Khatian No. 25/353, Dag
No. C.S. 7272, L.R 6379,
Class Bastu and building measurement 2 and 1/2 Katha, valued
about 6,42,000/-. the house was constructed by his father."
THE WILL IN QUESTION
The contested Will dated 06.02.2009 has been placed on record as
Exbt. 2. The Trial Court has analysed and taken into account several
suspicious circumstances surrounding this Will. Having regard to the
questions involved, it would be apposite to take note of the features and
attributes of the contested Will to appreciate the stand of the contesting
parties as also the findings in the impugned judgments.
The Will in question is drawn up in two pages. It is unregistered Will.
This Will is said to have been executed on 06.02.2009 by Sri Prabal Ranjan
Kar while residing alone in the house in question at 54/1, Kachhari road
Burdwan in the presence of the attesting witnesses.
SUMMARY OF PLEADINGS, ISSUES AND EVIDENCE
Having taken note of the particulars of the parties and the property
involved as also the contents of the Will in question, I may now summarise
the pleadings of the parties, the issues framed by the Trial Court, the
material aspects of evidence led by the parties and the relevant part of the
proceedings in the Trial Court, which have bearing on the questions involved
herein.
Briefly put, the petition was filed by the appellant / applicant on 19th
Feb, 2010 in the Court of District Judge at Burdwan under Section 276 of
the Indian Succession Act, 1925, for grant of probate of the Will in question,
said to have been executed by his client Sri Prabal Ranjan Kar by stating
Bharati Basu, the elder sister of the Testator, as his near relative relating to
the property under the Will.
The property described in the Will was enjoyed by Prabal Ranjan Kar
S/O Late Probodh Ranjan Kar, 54/1, Kanchhari road Burdwan, who died on
14th June, 2009 due to his prolong severe illness of heart and diabetes, had
voluntarily executed the unregistered "WILL" on 06th Feb, 2009, in presence
of two witnesses namely Shri. Malay Ghosh s/o Nishikant Ghosh resident of
Townhall para Burdwan and Sisir Koley S/O Sudhakar Koley of Village
Nadra P.S Bhatar, in fit state of physical and mental status. The ailing
Testator was unmarried and his elder sister Bharati Basu, never cared of his
health. Only petitioner was taking his all care relating to medical treatment
and medicines. Therefore, the Testator in his lifetime had executed this Will
on 06th February, 2009 in favour of his advocate i.e. Sri Ramendra Sundar
Mondal, to bequeath the property in Will to him. The Testator handed over
the Will and the key of his house to Executor. After the death of Testator,
the Executor kept the building under lock and key but on 02nd October,
2009, Bharati Basu broke open the pad lock of the house and took her
possession thereof. On this matter, a general diary being number 127 of
2009 was lodged at Burdwan police station by Executor. The Testator Probir
Ranjan Kar was a Hindu by religion died on 14th June, 2009 leaving behind
his elder sister Bharati Basu, in a Nursing home at Burdwan, lying within
the jurisdiction of the trial Court. As it was his last "WILL", So Executor
claimed for probate of the Will as only he was entitled to get the order.
The complete addresses of the heir is given in the petition is:-
"Bharati Basu wife of Sudhamoy Basu
3F, Safier Court, No. 74,
Golf Club Road, Calcutta".
Thereafter Ld. Trial Court has issued citation of notice of Will, upon
which objector Bharati Basu appeared and filed written objection against
the said petition wherein she refuted the claim of the appellant and
contended, inter alia, that the Will in question was forged and fabricated, as
Prabal Ranjan Kar never executed any Will in his lifetime and the Will in
question was manufactured by petitioner on the blank signed paper taken
by him for talking steps in the pending suit. She also contended that she
had good relation all along, with his brother/ Testator, who was suffering
from high blood pressure and high blood sugar but he was always negligent
to the medical advice. As a result thereof, he lost his eyesight since October
2008 due to detachment of retina as diagnosed by an eye surgeon Dr.
Bikash Basu at Kolkata. Since then he was unable to read and write. His
compounder or junior doctor used to reduce his suggestions into writing, as
suggested by him as Homeopathic Physician. So it was not possible for
testator either to draft or to execute any Will on 06th February, 2009 and
that the Will is manufacture after the death of Testator, so it couldn't be
registered despite the Executor is an Advocate.
She further contended that the petitioner being a lawyer of the
testator, he obtained blank signed demi paper/s from him and he used the
same to manufacture the instant Will with a view to grab the valuable
property of his client.
The Trial Court framed the following issues for determination of the
questions involved in the matter: -
1. Is the case maintainable in its present form and prayer?
2. Was the testator in sound disposing mind at the time of
execution?
3. Was the Will validly executed and attested?
4. Is the petitioner entitled to get probate in respect of the subject
Will as prayed for?
In evidence, the appellant examined himself as PW-1; and the two
attesting witnesses of the Will, Shri Malay Ghosh and Sri Shisir Koley as
PW-2 and PW-3 respectively. Shri Shyamlendu Goswami, the scribe of Will,
was also examined as PW-4, while objector examined herself as OPW1, and
Abu Taleb, junior doctor under testator is examined as OPW2 and submitted
death certificate of testator as marked Exbt. 1, and the Will in question
marked as Exbt. 2 as documentary evidence.
It was the consistent case of the appellant that the Will in question was
duly executed by Testator; at his residence, on the same date as stated
therein, in accordance with law and there was no cogent ground for refusal
of the prayer for grant of probate. He also asserted that the testator was
suffering from severe ailments and no one was there to take his care except
him. Out of love and affection he executed this Will in his favour for better
management of his property under Will. There was no good relation with
Testator and his sister.
The Appellant admitted in his cross-examination that:
(i) he hadn't any relationship with testator (either through father or
mother side), except the relationship of Advocate and Client as Anita Kar,
the mother of Testator had engaged him to contest Eviction Suit 203 of
2004 which is still pending before the Civil Judge (Junior Division), 4th
Court, Burdwan and after her demise, the name of Testator Prabir Ranjan
Kar and his sister Bharati Basu, the objector were substituted in the suit.
Appellant unable to say about number of appearance he made in the suit
and about his professional fees; whether ever paid by either Anita Kar or
her legal heirs to him or not.
(ii) He admitted about the ailments of Testator but failed to recollect
the names of doctor to whom he or Testator had visited for treatment and
that he made arrangement for his medical investigation and to purchase
medicines for him, but he didn't produce any documents in support
thereto.
(iii) Before execution of the alleged Will, alleged Testator had
expressed his desire to execute one Will in his favour; in early part of 2009
but he didn't recollect the exact date and month thereof.
(iv) He neither advice him to get the alleged Will drafted by a lawyer
nor saw any draft of the alleged Will nor could say the date when the draft
of the alleged Will was prepared.
(v) He asserted that "While taking any step in court; generally on the
top of right side, or any parties of the petition we (advocates) write the name
of the client concerned and then write the word "by" and then we put his
signature under the same". He was uncertain to say that generally
advocates used to keep signed blank demi paper of their old and ailing
clients to use the same in court for taking necessary steps but he denied if
he keeps any such blank signed demi papers of his client. The alleged
original Will was shown to him and asked about the insertion of word "by"
below the signature of the Testator, made at the right side top of the first
page of Will to which, "he expressed his inability to understand as to
whether "by" is written or not.
(vi) He neither advised to the alleged testator to get the Will
registered when he brought the said Will before him nor advised to get the
Will attested by his sibling.
(vii) the testator was suffering from prolonged heart disease but he
failed to recollect as to whether on 12th may, 2009 he filled any application
before the Civil Court that "his client had been suffering from heart disease
and defect in eye sight."
(viii) The alleged Testator was Homeopathic practitioner and he
handed over keys of his house to him at Burdwan Nursing Home when he
was admitted there.
(ix) The relations of the Testator and the objector was strained but
when she forcefully entered into the premises by breaking open the lock
and key of the house he didn't make any complaint to any neighbour.
(x) He submitted death certificate of testator (Exbt.1) and original
Will executed by testator (Exbt.X for identification)
PW-2 and PW-3, the attesting witnesses, specifically admitted that
Testator was not their relative.
PW2 admitted that "the testator approached him to attest the Will on
the road" but didn't recollect the date either of when testator approached
him for doing so or date of execution of Will or hasn't any information as to
the date, time and place where the Will was authored or as to the exact
location and detail particulars of the property or he ever visited there or saw
any draft copy of Will and he was not present when the Will was typed. He
further admitted that he never attested any other Will prior to or after this
one and he didn't ask testator about the reason why he put his signature
together in English and Bengali language on the Will. He yet further
admitted that "there is criminal case pending in court against him and the
petitioner/executor Ramendra Sundar Mondal is his advocate in the said
case".
Similarly PW-3 Sisir Koley deposed that Testator was not known to
him. He had no idea about his ancestral house nor about the particular and
details of the property belonged to him as he had no occasion to visit there
at any point of time. He admitted in his cross examination that he hadn't
seen the testator to scribe any Will or seen any draft of the said Will nor had
idea about where and when the Will was typed. Even he didn't say the date
when testator approached him to attest the Will but at that time none except
testator was present there and before putting his signature, he went through
the content of Will but he didn't ask testator as to whether alleged Will was
drafted by any advocate or he suggest him to get the Will registered or he
ask him to approach any of his neighbour to attest the Will. He further
admitted that none of his neighbour was present there at the time when he
attested the Will and he didn't verify as to whether testator had any
complain in his vision or not. He yet further admitted that he also arranged
documents of ambassador car being no.WB -41B / 5522 of Testator.
PW4 Shyamlendu Goswami is the typist, who scribed the Will. He
admitted that the Will was typed by him but there was no endorsement on it
that "the same was typed by him as per instruction of Testator" and that "he
find the testator was physically able and capable". Despite he observed that
testator was not physically well at the time of execution of alleged Will. He
further admitted that he never visited to the house of the testator prior to
this job, and that generally a person who is intending to execute a Will is
used to approach any advocate for drafting of Will first, then to typist to
prepare it but he did not enquire about the name of advocate who drafted
the Will. He yet further admitted that "he didn't see the testator to write any
document" and petitioner Ramendra Sundar Mondal is advocate in Burdwan
Bar is known to him.
In opposition, the contesting respondents / objector Bharati Basu
deposed as OPW1 and Abu Taleb as OPW 2.
The respondent in her evidence, inter alia, deposed that the Testator is
her younger brother, who was living in a house at Burdwan which was
constructed by her father in 1966. She used to stay at Kolkata but keeps in
touch with Testator, his compounder, Junior Doctor and she was in good
terms with Testator. She got information about his hospitalisation at 9.00-
9.30 pm of 13th June, 2009 and on next day, heard about his death, from
the compounder Sudershan Das and she reached Burdwan after two days of
the death of Testator and that she paid the bill raised by nursing home, bills
of medicine etc. through OPW2.
She stated that Physical condition of testator was not critical but due
to high level of sugar he lost his eyesight since October 2008, so he couldn't
write or watch T.V. She denied the signature of alleged Testator on the
alleged Will. She further stated that the Will was manufactured by
Executant and that she had broken the lock and key of the house as the
Executant had forcefully snatched it from Laxmi, the caretaker, with
intention to grab the same after demise of Testator. She produced death
certificate of testator (Exbt. A), certified copy of a petition signed by testator
in T.S. 203/2004 (Exbt.B) and medical prescriptions of testator (Exbt. X for
identification)
Abu Taleb, OPW No. 2 stated in his evidence, inter alia, that he was
Homeopath R.M.P.O. and was working under Testator since 1993 as his
junior and Sudersan was his compounder and that since October 2008 he
was unable to read and write due to weak eye sight and he used to prepare
prescription as per his advice and Laxmi was his neighbour looked into him
and he alongwith Sudershan admitted Prabal babu in Diplomate Nursing
Home and had taken the dead body to cremation ghat and he informed the
fact of his death to Bharati Basu over phone who came Burdwan after two
days of his death. He further stated that Prabal Babu never executed any
Will.
He admitted in his cross-examination that he was junior under
Testator who used to prescribe medicines on the reverse of envelop and OPW
writes instructions as to how medicines are to be taken on the front of the
envelop and before October 2008 he was physically fit but since October
2008 he faced problem in his eye sight so he visited Kolkata for it's
treatment and returned after one month therefrom. Initially he was able to
read by using lens but later he couldn't read even with the help of lens and
since November 2008 he engaged one Laxmi as maid servant for cooking.
Laxmi was residing opposite to his house.
He further admitted that one Chowdhury Babu, his son, son of Laxmi,
Sudershan, Bansi and other 10 to 12 persons accompanied him to
cremation ghat and death certificate was issued by Burdwan nursing home
and in the register at burning ghat his name were recorded as carrier of the
dead body.
He yet further admitted that signature of testator appearing on the
right hand corner of first and second page of the alleged Will were made by
testator but the signature appearing on the bottom of second page of Will is
doubtful as to whether same is of testator or not.
Before proceeding further, the peculiar aspects of the matter, which
carry its own bearing on the relevant questions emanates from the record of
proceedings of the Trial Court, may be noticed as infra.
It appears that since beginning of proceedings in the Trial Court, the
relations of the appellant and the respondent (objector in the Trial Court)
was not cordial. She alleged that the Will is surrounded by suspicious
circumstances as recounted below -
i. the petitioner, beneficiaries of the alleged Will, was engaged as an
advocate by alleged Testator in T.S 203/2004, pending before Civil
Judge (Junior Division) 4th Court Burdwan. as such there was
client- advocate relationship subsisted between them.
ii. signature of alleged testator at the bottom of second page of the
alleged Will seems doubtful to OPW2
iii. the witnesses of alleged Will hadn't any acquaintance either
with the alleged testator or his relative or property under Will,
rather they had more proximity with executant
iv. typist or any of the witnesses hadn't seen any draft copy of the
Will prepared by any advocate, and seen the testator signing the
alleged Will nor they had seen him to read and write nor, they had
seen each other to sign the Will as they were not present there,
together.
v. none of the witnesses had seen any advocate who either advised
the testator to prepare a draft Will or prepared draft Will for his
perusal or suggested the testator for get the Will registered.
vi. The witnesses admitted that physical and mental condition of
testator was not good and he was ill at the time of execution of Will
and since October, 2008 he was unable to see, read and write as
he lost his eye sight due to detachment of retina.
vii. kept the house of testator under lock and key without getting
order of probate on the alleged Will.
Viii. PW2 Malay Ghosh is accused of a criminal case and petitioner
is his lawyer in respect of said case.
ix. PW4 typist used to work in the varandah of Bar Association and
therefore, executant had general acquaintance with the petitioner.
Hereinabove, I have expansively recounted the suspicious
circumstances raised before the Trial Court by the contesting respondent /
objector.
FINDINGS OF THE TRIAL COURT
Having glanced through the pleadings and evidence of the parties,
having taken note of the contents and frame of the Will in question, and
having also taken note of the relevant parts of proceedings before the Trial
Court, I may look at the findings of the Trial Court in its judgment dated
31st January, 2013, particularly the reasons that weighed with it while
declining the prayer for probate of the Will in question.
The Trial Court took into account various circumstances which
appeared to be suspicious. In the first place, the Trial Court considered on
the fact admitted by executant that he is lawyer/ attorney of testator Prabal
Ranjan Kar and his sister objector Bharati Basu in T.S 203/2004. Ld. Trial
court has observed that provision of section 111 of Indian Evidence Act will
be attracted in this case because he relied on the view that if propounder of
the Will takes an active part in the execution of the Will and receives total
benefit under it, then such a circumstance is generally treated as suspicious
one. As regard to facts of the case at hand, the Trial Court found that the
appellant played an active role in execution of the Will in question and at the
same time, he was the sole beneficiary thereunder. The suspicion became
more grave when facts are indicating the existence of fiduciary relationship
between executant and testator as advocate and client so the executant was
in position to have active confidence or undue influence over testator.
Secondly, the Trial Court was of the view that the genuineness of Will
was challenged on the ground of insertion of word "by" below the signature
of the testator on the first page of Will which was also creating a suspicious
circumstance therein. The Court took into consideration the statement of
PW1 deposed in his cross examination, where he seemed confused to
ascertain whether any word of "by" was written under the signature of
testator or not. Generally there shouldn't be insertion of word "by" at that
place. In such condition presumption of Section 111 of the Indian Evidence
Act 1882 will come into play. In that situation it is the obligation of
propounder of will to remove the element of suspicion but he failed to do so
which further darken the clouds of suspicions on the due execution of Will.
Thirdly, the Trial Court also found that the alleged testator had
problem in his eye sight and the same was not denied by PW1 petitioner in
his evidence. PW2 and PW3 stated in their evidence that they have seen the
testator writing prescription to his patients but they didn't specify the period
thereof, because the evidence clearly revels that before October 2008, the
testator could read and write as he lost his eye sight thereafter. However,
none of the witnesses seen the testator to write or sign upon the Will in
question.
Fourthly, the Trial Court find that health of testator was not sound at
the time of execution of Will. Every witnesses including PW1 asserted the
same. OPW1 stated that testator was suffering from ailments of high blood
pressure and high blood sugar which made his condition critical. It was
obligation on the executant/petitioner to bring the fact of physical and
mental fitness of testator on record but he failed. It further, darken the
shadow of doubt over genuineness of Will.
Fifthly, the Trial Court was of the view that the attesting witnesses
were unreliable and they were not known to testator but were closely
associated with petitioner/appellant. PW2 is an accused of a criminal case
in which he engaged petitioner as his advocate. So he had close relation with
petitioner but had no idea about executor and his property. Same was with
PW-3 who had no acquaintance with testator, his relatives and property as
well. Normally persons having close acquaintance are called as attesting
witness. It is not expected that alleged testator will ask any stranger to be
attesting witnesses of his Will because it is deemed as a secret and
confidential document, which can't be disclosed to strangers. It raised
further suspicions on the genuineness of the Will in question.
Sixthly, the Trial Court also took into consideration that PW4 typist
who allegedly typed the Will in question from its draft copy, was used to
work at the varandah of Burdwan Bar Association, where the
petitioner/appellant was professing his advocacy and in all probability,
there was a chance of prior acquaintance with petitioner due to common
work place. So Ld. Trial Court considered that the suspicions raised by
objector cannot be thrown out. No cogent evidences were adduced by
petitioner to mitigate these circumstances.
Seventhly, the Trial Court took into consideration the contradictions
in the statements of the witnesses, which raised doubts as to the
genuineness to the story of the appellant.
Lastly Ld. Trial Court referred the decisions in H.Venkatachala
Iyengar vs. B.N. Thimmajamma reported in AIR 1959 SC 443 in which
Hon'ble Supreme Court has observed that "if propounder of the Will takes
an active part in the execution of the Will and receives substantial benefit
under it, then such a circumstance is generally treated as suspicious one".
As regards the facts of the case at hand, the Trial Court found that the
appellant played an active role in execution of the Will in question and at the
same time, he was the sole beneficiary thereunder.
While elaborately dealing with all the suspicious circumstances
concerning the Will and unreliability of the evidence led by the appellant,
the Trial Court found that the appellant had not been able to remove the
suspicions or to give proper explanation of those circumstances by adducing
cogent and reliable evidences and he failed to prove that alleged testator
executed the Will on his own volition and in his sound mind and hence,
dismissed the petition.
THE APPELLANT
Being aggrieved by the judgment so passed by the Trial Court
dismissing the O.S. Will Case 5 of 2011/12 of 2010 and maintaining
rejection of his prayer for grant of probate, the petitioner-appellant has
preferred this appeal on the ground that Ld. Trial Court has proceeded on a
wrong premise that the transaction between advocate and client could be
automatically considered as a transaction which has been a result of undue
influence by the advocate.
The grounds of challenge are summarised below:
i. Appellant was advocate of testator, ipso-facto is not bar to
execution of a valid Will in favour of the appellant and attracted
Section 111 of Evidence Act to hold that any transaction made in
such relationship Will come under suspicious circumstances
ii. The word "by" written below the signature of testator on the first
page of Will is totally irrelevant
iii. Testator was physically and mentally debilitated so he couldn't
execute a valid Will.
Assailing the impugned judgments, learned counsel for the appellant
has strenuously contended that due execution of the Will, as per the
requirements of the Succession Act, having been proved in accordance with
procedure prescribed by the Evidence Act; and no cogent reason or
circumstance having been established on record against the genuineness of
the contested Will, a clear case for grant of probate is made out but the Trial
Court has proceeded to reject the prayer of the appellant on entirely
baseless considerations while doubting the Will in question on the so-called
suspicious circumstances, though there is none.
Elaborating on his submissions, the learned counsel for the appellant
has submitted that a Will has to be proved like any other document but, it
has to satisfy the requirements of Section 63 of the Succession Act in the
manner necessary for due execution, the testator has to sign or affix his
mark on the Will or it has to be signed by some other persons in the
presence of testator and under his direction; and the Will has to be attested
by two or more witnesses, each of whom has seen such signing or affixation
by testator or by other person acting as per the directions of the testator.
Further to that, as per Section 68 of the Evidence Act, at least one attesting
witness has to be examined in proof of a Will. The learned counsel would
submit that in the present case, all the requirements of section 63 of the
Succession Act are duly satisfied in the execution of the Will in question;
and the same has been duly proved with examination of both the attesting
witnesses before the Court as PW-2 and PW-3. The learned counsel has
contended that the appellant having duly discharged his burden and
nothing concrete having been brought on record so as to create any
legitimate suspicion, there is no reason to deny probate as prayed for.
While asserting the case of the appellant for grant of probate in
relation to the Will in question, the learned counsel has, in the first place,
questioned the stand of Ld. Trial Court in attracting the provision of Section
111 of the Evidence Act 1882 to raise issues about the genuineness of the
Will in question.
The learned counsel has referred Surendra Pal & Ors. (supra) in
support of his contention that relationships of advocate-client is not
fiduciary in nature and will not lead a presumption of undue influence. He
further submitted that mere exclusion of the natural heirs from any benefit;
or acquaintance of the propounder with any witness is not sufficient to
make suspicious circumstances as to create legitimate doubts on the
genuineness of the Will.
The appellant further stated that respondent/ objector is elder sister
of testator but had no relation with him and she had never taken his care.
Her objections are baseless and untenable.
As regards to the testimonies of the two attesting witnesses, the
learned counsel submitted that they have clearly proved the material facts
relating to due execution of Will and attestation by them; and the doubts
sought to be thrown upon them with reference to some minor and natural
discrepancies, or their acquaintance with the appellant are of no
consequence. The learned counsel has contended that the minor variations
on details are inevitable.
The learned Counsel has also submitted that though the initial onus
to prove the Will is on the propounder but once that burden is discharged,
any suspicion alone cannot form the foundation of judicial verdict; and any
suggestion about suspicion ought to be examined by the Court while
guarding against conjectures and mere fantasy of a doubting mind.
Thus, he submitted that the Will in question is the genuine and last
Will of the testator; and the appellant being the executor, may be granted
probate as prayed for.
While countering the submissions made on behalf of the appellant,
learned Counsel for the respondent filed the objections and consistently
contested the matter, recounted the suspicious circumstances taken into
account by the Trial Court.
Learned Counsel for respondent maintained that this respondent has
all through disputed the very execution of the Will by her brother and the
suspicious circumstances having not been removed, the prayer for grant of
probate has rightly been rejected.
WILL - PROOF AND SATISFACTION OF THE COURT
The moot question involved in this appeal is to determine as to
whether the Trial Court was justified in declining to grant probate in relation
to the Will dated 06th February, 2009 as prayed for.
Obviously, a just and proper determination of this point would revolve
around the applicable legal principles and the relevant factual aspects of the
case. Before entering into the factual aspects and the questions in
controversy, it is appropriate to take note of the applicable legal provisions
and principles concerning execution of a Will, its proof, and its acceptance
by the Court.
It remains trite that a Will is the testamentary document that comes
into operation after the death of the testator. The peculiar nature of such a
document has led to solemn provisions in the statutes for making of a Will
and for its proof in a Court of law.
RELEVANT PROVISIONS OF LAW / STATUTE
Section 59 of the Succession Act provides that every person of sound
mind, not being a minor, may dispose of his property by Will. A Will or any
portion thereof, the making of which has been caused by fraud or coercion
or by any such importunity that has taken away the free agency of the
testator, is declared to be void under Section 61 of the Succession Act; and
further, Section 62 of the Succession Act enables the maker of a Will to
make or alter the same at any time when he is competent to dispose of his
property by Will and Chapter III of Part IV of the Succession Act makes the
provision for execution of unprivileged Wills.
Section 61 and 63 of the Succession Act, relevant for the present
purpose, could be usefully extracted as under: -
"61. Will obtained by fraud, coercion or importunity.- A Will or any
part of a Will, the making of which has been caused by fraud or
coercion, or by such importunity as takes away the free agency of
the testator, is void.
**
63. Execution of unprivileged Wills.-Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, or
an airman so employed or engaged, or a mariner at sea, shall
execute his Will according to the following rules:-
(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 witness, 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 acknowledgment of his signature or mark, or 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."
Elaborate provisions have been made in Chapter VI of the Succession
Act (Sections 74 to 111), for construction of Wills which, in their sum and
substance, make the intention of legislature clear that any irrelevant
misdescription or error is not to operate against the Will; and approach has
to be to give effect to a Will once it is found to have been executed in the
sound state of mind by the testator while exercising his own free will.
However, as per Section 81 of the Succession Act, extrinsic evidence is
inadmissible in case of patent ambiguity or deficiency in the Will; and as per
Section 89 thereof, a Will or bequest not expressive of any definite intention
is declared void for uncertainty. Section 81 and 89 read as under:-
"81. Extrinsic evidence inadmissible in case of patent ambiguity or
deficiency.- Where there is an ambiguity or deficiency on the face of a
Will, no extrinsic evidence as to the intentions of the testator shall be
admitted.
*** *** ***
89. Will or bequest void for uncertainty.- A Will or bequest not
expressive of any definite intention is void for uncertainty." Moreover,
it is now well settled that when the Will is surrounded by suspicious
circumstances, the Court would expect that the legitimate suspicion
should be removed before the document in question is accepted as the
last Will of the testator.
As noticed, as per Section 63 of the Succession Act, the Will ought to
be attested by two or more witnesses. Hence, any document propounded as
a Will cannot be used as evidence unless at least one attesting witness has
been examined for the purpose of proving its execution, if such witness is
available and is capable of giving evidence as per the requirements of
Section 68 of the Evidence Act, that reads as under: -
"68. Proof of execution of document required by law to be attested.-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 subject to the process of the Court and capable of giving evidence:
Provided 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 (16 of 1908), unless its execution by the person
by whom it purports to have been executed is specifically denied."
We may now take note of the relevant principles settled by the
consistent decisions in regard to the process of examination of a Will when
propounded before a Court of law.
In the case of H. Venkatachala Iyengar v B. N. Thimmajamma &
Ors. reported in 1959 AIR 443, 1959 SCR Supl. (1) 426 Hon'ble Apex
Court has traversed through the vistas of the issues related with execution
and proof of Will and enunciated a few fundamental guiding principles that
have consistently been followed and applied in almost all the cases involving
such issues. The synthesis and exposition is expressed in paragraphs 18 to
22 of the said decision :-
"18. What is the true legal position in the matter of proof of
wills? It is well known that the proof of wills presents a recurring
topic for decision in courts and there are a large number of judicial
pronouncements on the subject. The party propounding a will or
otherwise making a claim under a will is no doubt seeking to prove a
document and, in deciding how it is to be proved, we must inevitably
refer to the statutory provisions which govern the proof of
documents. Section 67 and 68, Evidence Act are relevant for this
purpose. Under Section 67, if a document is alleged to be signed
by any person, the signature of the said person must be proved to be
in his handwriting, and for proving such a handwriting under
Sections 45 and 47 of the Act the opinions of experts and of
persons acquainted with the handwriting of the person concerned
are made relevant. Section 68 deals with the proof of the execution
of the document required by law to be attested; and it provides that
such a document shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its
execution. These provisions prescribe the requirements and the
nature of proof which must be satisfied by the party who relies on
a document in a Court of law. Similarly, Sections. 59 and 63 of
the Indian Succession Act are also relevant. Section 59 provides
that every person of sound mind, not being a minor, may dispose of
his property by will and the three illustrations to this section indicate
what is meant by the expression "a person of sound mind" in the
context. Section 63 requires that the testator shall sign or affix his
mark to the will or it shall be signed by some other person in his
presence and by his direction and that the signature or mark
shall be so made that it shall appear that it was intended thereby to
give effect to the writing as a will. This section also requires that the
will shall be attested by two or more witnesses as prescribed. Thus
the question as to whether the will set up by the propounder is
proved to be the last will of the testator has to be decided in the light
of these provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in the will? Did
he put his signature to the will knowing what it contained? Stated
broadly it is the decision of these questions which determines the
nature of the finding on the question of the proof of wills. It would
prima facie be true to say that the will has to be proved like any
other document except as to the special requirements of attestation
prescribed by Section 63 of the Indian Succession Act. As in the
case of proof of other documents so in the case of proof of wills it
would be idle to expect proof with mathematical certainty. The test to
be applied would be the usual test of the satisfaction of the prudent
mind in such matters."
19. However, there is one important feature which distinguishes
Wills from other documents. Unlike other documents the will speaks
from the death of the testator, and so, when it is propounded or
produced before a Court, the testator who has already departed the
world cannot say whether it is his will or not; and this aspect
naturally introduces an element of solemnity in the decision of the
question as to whether the document propounded is proved to be the
last will and testament of the departed testator. Even so, in dealing
with the proof of wills the Court will start on the same enquiry as in
the case of the proof of documents. The propounder would be called
upon to show by satisfactory evidence that the will was signed by
the testator, that the testator at the relevant time was in a sound
and disposing state of mind, that he understood the nature and
effect of the dispositions and put his signature to the document of his
own free will. Ordinarily when the evidence adduced in support of
the will is disinterested, satisfactory and sufficient to prove the
sound and disposing state of the testator's mind and his signature
as required by law, Courts would be justified in making a finding in
favour of the propounder. In other words, the onus on the
propounder can be taken to be discharged on proof of the essential
facts just indicated.
20. There may, however, be cases in which the execution of the
will may be surrounded by suspicious circumstances. The alleged
signature of the testator may be very shaky and doubtful and
evidence in support of the propounder's case that the signature in
question is the signature of the testator may not remove the doubt
created by the appearance of the signature; the condition of the
testator's mind may appear to be very feeble and debilitated; and
evidence adduced may not succeed in removing the legitimate doubt
as to the mental capacity of the testator; the dispositions made in
the will may appear to be unnatural, improbable or unfair in the light
of relevant circumstances; or, the will may otherwise indicate that
the said dispositions may not be the result of the testator's free will
and mind. In such cases the Court would naturally expect that all
legitimate suspicions should be completely removed before the
document is accepted as the last will of the testator. The presence of
such suspicious circumstances naturally tends to make the initial
onus very heavy; and, unless it is satisfactorily discharged, Courts
would be reluctant to treat the document as the last will of the
testator. It is true that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect of the execution of the
will propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his own free will in
executing the will, and in such circumstances, it would be a part of
the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just
referred in some cases the wills propounded disclose another
infirmity. Propounders themselves take a prominent part in the
execution of the wills which confer on them substantial benefits. If it
is shown that the propounder has taken a prominent part in the
execution of the will and has received substantial benefit under it,
that itself is generally treated as a suspicious circumstance
attending the execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory evidence. It is in
connection with wills that present such suspicious circumstances
that decisions of English Courts often mention the test of the
satisfaction of judicial conscience. It may be that the reference to
judicial conscience in this connection is a heritage from similar
observations made by ecclesiastical Courts in England when they
exercised jurisdiction with reference to wills; but any objection to the
use of the word 'conscience' in this context would, in our opinion, be
purely technical and academic, if not pedantic. The test merely
emphasizes that, in determining the question as to whether an
instrument produced before the Court is the last will of the testator,
the Court is deciding a solemn question and it must be fully satisfied
that it had been validly executed by the testator who is no longer
alive.
22. It is obvious that for deciding material questions of fact which
arise in applications for probate or in actions on wills, no hard and
fast or inflexible rules can be laid down for the appreciation of the
evidence. It may, however, be stated generally that a propounder of
the will has to prove the due and valid execution of the will and that
if there are any suspicious circumstances surrounding the execution
of the will the propounder must remove the said suspicions from the
mind of the Court by cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of these two
general and broad principles would always depend upon the facts
and circumstances of each case and on the nature and quality of the
evidence adduced by the parties. It is quite true that, as observed by
Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (AIR 1946 PC
156), "where a will is charged with suspicion, the rules enjoin a
reasonable scepticism, not an obdurate persistence in disbelief. They
do not demand from the Judge, even in circumstances of grave
suspicion, a resolute and impenetrable incredulity. He is never
required to close his mind to the truth". It would sound platitudinous
to say so, but it is nevertheless true that in discovering truth even in
such cases the judicial mind must always be open though vigilant,
cautious and circumspect."(emphasis supplied)
WHAT CONSTITUTE SUSPICIOUS CIRCUMSTANCES
Needless to say that any and every circumstance is not a "suspicious"
circumstance. A circumstance would be "suspicious" when it is not normal
or is not normally expected in a normal situation or is not expected of a
normal person. The Court relying on various judgments, observed that when
it comes to a 'suspicious circumstance' any circumstance that is not
"normally expected in a normal situation" may be considered as a
suspicious circumstance. Certain elements, such as,
i. a shaky and doubtful signature,
ii. a feeble or uncertain mind of the testator,
iii. unfair disposition of property,
iv.. unjust exclusion of legal heirs, and
v. the active involvement of the major beneficiary in the execution of the will,
are indications of suspicious circumstances.
Further, the Supreme Court reiterated that an important element to
keep in mind is that the analysis with regard to whether suspicious
circumstances surround a will is to be done on the basis of a holistic view of
the matter and consideration to all the unusual circumstances. Moreover,
the Court found that even in the absence of a plea or contest to a will, the
very existence of suspicious circumstances may give rise to a doubt that the
will has not been executed by the testator of his free Will.
A Will is executed to alter the ordinary mode of succession and by the
very nature of things it is bound to result in earlier reducing or depriving the
share of natural heirs. If a person intends his property to pass to his natural
heirs, there is no necessity at all of executing a Will. It is true that a
propounder of the Will has to remove all suspicious circumstances.
Suspicion means doubt, conjecture or mistrust. But the fact that natural
heirs have either been excluded or a lesser share has been given to them, by
itself without anything more, cannot be held to be a suspicious
circumstance specially in a case where the bequest has been made in favour
of an offspring in Jaswant Kaur v. Amrit Kaur (supra).
In the case of Jaswant Kaur, Hon'ble Apex Court held that "in cases
where the execution of a will is shrouded in suspicion, its proof ceases to be
a simple lis between the plaintiff and the defendant. What, generally, is an
adversary proceeding becomes in such cases a matter of the court's
conscience and then the true question which arises for consideration is
whether the evidence led by the propounder of the will is such as to satisfy
the conscience of the court that the will was duly executed by the testator. It
is impossible to reach such satisfaction unless the party which sets up the
will offers a cogent and convincing explanation of the suspicious
circumstances surrounding the making of the will." The onus of proving the
Will is on the propounder to explain them to the satisfaction of the court
who accepts the Will as genuine.
As held in P.P.K. Gopalan Nambiar vs P.P.K. Balakrishnan
Nambiar & Ors., reported in 1995(2) SCR 585, it is the duty of the
propunder of the Will to remove all the suspected features, but there must
be real, germane and valid suspicious features and not fantasy of the
doubting mind. It has been held that if the propounder succeeds in
removing the suspicious circumstances, the court has to give effect to the
Will, even if the Will might be unnatural in the sense that it has cut off
wholly or in part near relations. .....
Shivakumar & Ors., v. Sharanabasppa & Ors., in Civil Appeal
No. 6076 of 2009 the Hon'ble Supreme Court decided on 24th February,
2020, this Court, after traversing through the relevant decisions, has
summarised the principles governing the adjudicatory process concerning
proof of a Will as follows:-
"1. Ordinarily, a Will has to be proved like any other document; the
test to be applied being the usual test of the satisfaction of the
prudent mind. Alike the principles governing the proof of other
documents, in the case of Will too, the proof with mathematical
accuracy is not to be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is required to
be attested, it cannot be used as evidence until at least one attesting
witness has been called for the purpose of proving its execution, if
there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the
testator and, therefore, the maker thereof is not available for
deposing about the circumstances in which the same was executed.
This introduces an element of solemnity in the decision of the
question as to whether the document propounded is the last Will of
the testator. The initial onus, naturally, lies on the propounder but
the same can be taken to have been primarily discharged on proof of
the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by
suspicious circumstances stands on a different footing. The presence
of suspicious circumstances makes the onus heavier on the
propounder and, therefore, in cases where the circumstances
attendant upon the execution of the document give rise to suspicion,
the propounder must remove all legitimate suspicions before the
document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges
fraud, undue influence, coercion et cetera in regard to the execution
of the Will, such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances surrounding the
execution of the Will may give rise to the doubt or as to whether the
Will had indeed been executed by the testator and/or as to whether
the testator was acting of his own free will. In such eventuality, it is
again a part of the initial onus of the propounder to remove all
reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not
normally expected in a normal situation or is not expected of a
normal person'. As put by this Court, the suspicious features must
be 'real, germane and valid' and not merely the 'fantasy of the
doubting mind.'
7. As to whether any particular feature or a set of features qualify
as "suspicious" would depend on the facts and circumstances of
each case. A shaky or doubtful signature; a feeble or uncertain mind
of the testator; an unfair disposition of property; an unjust exclusion
of the legal heirs and particularly the dependants; an active or
leading part in making of the Will by the beneficiary thereunder et-
cetera are some of the circumstances which may give rise to
suspicion. The circumstances above-noted are only illustrative and
by no means exhaustive because there could be any circumstance or
set of circumstances which may give rise to legitimate suspicion
about the execution of the Will. On the other hand, any of the
circumstance qualifying as being suspicious could be legitimately
explained by the propounder. However, such suspicion or suspicions
cannot be removed by mere proof of sound and disposing state of
mind of the testator and his signature coupled with the proof of
attestation.
8. The test of satisfaction of the judicial conscience comes into
operation when a document propounded as the Will of the testator is
surrounded by suspicious circumstance/s. While applying such test,
the Court would address itself to the solemn questions as to whether
the testator had signed the Will while being aware of its contents
and after understanding the nature and effect of the dispositions in
the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded
in suspicion, it is a matter essentially of the judicial conscience of the
Court and the party which sets up the Will has to offer cogent and
convincing explanation of the suspicious circumstances surrounding
the Will."
Recently, the Hon'ble Supreme Court in the case of Kavita Kanwar v.
Mrs. Pamela Mehta reported in 2021(11) SCC 209 has extensively
discussed certain key factors that may render a will surrounded by
suspicious circumstances as invalid.
Indian law is very clear with regard to the essentials of a valid will.
These include the testator's capacity to execute a will, clarity in relation to
inheritance under the will, and witnesses to the will.
The Supreme Court, at the outset, stated that a will has to be proved
like any other document. However, the Court will expect the executor to
show by satisfactory evidence that the will was -
(i) signed by the testator,
(ii) the testator at the relevant time was in a sound and disposing
state of mind,
(iii) the testator understood the nature and effect of the dispositions,
and
(iv) the testator has put his signature on the document of his own
free will.
DISCUSSION
As noticed, the Trial Court has found some suspicious circumstances
as to whether the testator duly executed the Will in question after
understanding its contents or not. Keeping the applicable principles in view,
I may examine the factors and circumstances which are suspicious in
character and they are overall impact on the document in questions. While
entering into the facts and circumstances related with the Will, profitable it
would be to recapitulate the background and the set up in which the
contested Will is said to have been executed.
In relation to the Will in question, the Trial Court found several
unexplained suspicious circumstances surrounded the Will, which are of
material bearing and which have renamed unexplained, compelled the court
to decline the grant probate of Will in favour of executor. The circumstances
are:
1. The active involvement of the major beneficiary in the execution of
the Will creates suspicious circumstances surrounded the Will. In
this case, the appellant had fiduciary relation with testator. Both of
the attesting witnesses and scribe are unknown to testator but were
very close to executor. None of the neighbours were present at the
time of execution of the Will and the witnesses were not present
together nor they see draft Will or testator to sign the Will. They
create suspicions as to the genuineness of Will. In these
circumstances Trial Court has taken help of section 111 of Evidence
Act to draw the presumption of good faith in the transaction between
attorney and client and had rightly derived that Executor was
attorney of Testator in T.S. 203/2004 and this transaction was held
during continuance of said relationship because being attorney,
executor was in position of active confidence or exert undue
influence on the testator which created doubt to the court whether
Testator has put his signature on the document of his free Will or
agency. Burden was upon the Executor to prove the good faith of the
transaction and Testator put his signature on his own volition but he
failed to discharge his burden. The illustration (a) of the section 111
of Evidence Act is directly related to the good faith of a sale by a
client to an attorney is in question in a suit brought by the client, the
burden of proving the good faith of the transaction is on the attorney.
He did not adduce anything in his testimony except that there is no
legal barrier on transaction by client in favour of his attorney. To
fortify his contention he relied on the contention of Surendra Pal &
Ors. (supra) in which hon'ble Supreme Court has decided that
relationships of advocate-client is not fiduciary in nature and will not
be considered that such relationship will undue influence the desire
of client. In common parlance this contention may be correct but
when the transaction is challenge by client or his representative, the
burden to prove the good faith of transaction will come to the fore
and onus is thus required to be discharged by Executor.
Now I think it necessary to have a look on the provision of section 111
of the evidence Act.
The Section 111 of Indian Evidence Act provides that "Where there is
a question as to the good faith of a transaction between parties, one of
whom stands to the other in a position of active confidence, the burden of
proving the good faith of the transaction is on the party who is in a position
of active confidence.
Illustrations
The good faith of a sale by a client to an attorney is in question in a
suit brought by the client. The burden of proving the good faith of the
transaction is on the attorney.
The good faith of a sale by a son just come of age to a father is in
question in a suit brought by the son. The burden of proving the good faith
of the transaction is on the father. The provision clearly put the executor
under direct liability to establish the existence of good faith in transaction.
The second circumstances in the Will, which create suspicions as to
it's genuineness, is the strange manner of writing and execution of the
Will. Where the word "by" found inserted or written below the signature of
Testator put on the top of the right side of first page of Will. Such word is
unwarranted for Will. In his cross-examination PW1 admitted that while
taking steps in court; generally at the top of right side, advocates write the
name of client and then put the word "by" and then advocate put his
signature under it. But was uncertain to say that generally advocates used
to keep signed blank demi paper of old and ailing clients to use the same for
taking necessary steps, in court but he denied if he keeps any such blank
signed demi papers of his client. In fact there is no requirement of Law to
insert word "by" below the signature of testator in Will because his signature
on Will does not required to be identified. Its presence indicates that either
the signature was made by Testator for different purpose or he was unable
to understand the nature and effect of the disposition when he made his
signature thereupon. Such circumstances are sufficient to create suspicions
on genuineness of the execution of Will. However he escaped to give any
satisfactory explanation thereof.
Third circumstances are related to a shaky and doubtful signature of
the Testator on the Will. OPW1 denied the signature of alleged Testator on
the alleged Will. She further stated that the Will was manufactured by
Executor by using blank signed demi papers of testator kept with him for
taking steps in eviction suit. OPW 2 also admitted in his cross-examination
that Signature of alleged testator at the bottom of second page of the alleged
Will seems doubtful. He has not been contradicted on this point by
Executor. Since he worked as Junior under Testator for long period, a
general presumption of law is in his favour that he should have been
acquainted with his signature. PW2, PW3 and PW4 also admitted that they
did not see the testator signing on the document. Absence of any relative or
known person or neighberouers at the time of execution of Will added more
doubts as to the genuineness of Will. Signature of Testator in English and
Bengali is also create a suspicious circumstances. Executor failed to
demolish the adverse presumption raised against proper execution of Will
due to cumulative effect of these contradictions available in evidence.
The attesting witnesses were unreliable and there are contradictions
in the statement of witnesses. None of the witnesses had any prior
acquaintance or relation with Testator, as they admitted in their oral
testimonies. PW2 stated that testator approached him to be attesting
witness of the Will on a road but cannot say the date on which testator
approached him. PW3 explicitly admitted that he has no relation with
testator and hadn't any idea about the property of the testator including the
property under the Will and PW4 also stated that he had no personal
relation with the testator and had no access to the house of the testator and
he got acquainted with the testator in connection with this job as he
assigned him.
Generally no testator call a stranger to be a witness of his Will. All the
witnesses are not only stranger to testator but were also closely related to
executor. Such circumstances are doubtful and executor failed to remove
the doubts.
It is admitted fact that physical condition of Testator was not good.
OPW1 and OPW2 has specifically stated that since October 2008, he lost his
eye-sight due to detachment of retina as diagnosed by Dr. Bikas Basu, an
eye surgeon at Kolkata. PW3 also admitted that he did not see the testator
to scribe the Will. OPW2 has admitted that Testator was unable to write
medical prescription since October 2008 and he was not contradicted on
this point by Executor. PW4 admitted that he did not endorse anything on
the Will as to the effect that the same was typed as per instruction of
testator and that on the date of typing he himself experience the physical
ability and capability of testator was not good and he had not seen the
testator to write any document". Plethora of evidences on record are
available to show bad physical condition of Testator but nothing is available
on record to explain his mental health. PW1 deposed that the Will was
authored by Testator in his sound mind. But when the genuineness of will is
challenged by objector, the mental soundness of Testator will come to the
fore. The burden was upon the Executor to prove that the testator at the
relevant time was in a sound and disposing state of mind but he again failed
to discharge the same.
The Will was not scribed in presence of witnesses as PW2 admitted
that he cannot say where the Will was scribed and who scribed nor had
acquaintance with another witness Sisir Koley. PW3 also stated that he
hadn't seen the testator to scribe the Will nor see any draft of the Will. PW4
admitted that generally person intend to execute a Will approach any
advocate first for drafting of the Will but he did not enquire the name of
advocate who drafted the Will and he hadn't seen the testator to write any
document. More so, Will was not signed by testator in presence of PW2 and
PW3 which amount to violation of Section 63 of Indian Succession Act,
which requires that the Will has to be attested by two or more witnesses,
each of whom has seen such signing or affixation by testator.
Unjust exclusion of legal heirs is another indication as to suspicious
circumstances of the Will. What was the compelling circumstances under
which Testator was forced to disposed off his property to a person who was
not related to him. Executor stated that he was taking care of Testator but
he failed to substantiate his contention by supportive evidence. Evidences
are silent on the purchase of medicines, appointment to doctor for the
treatment of Testator, carried him to nursing home or cremation ghat.
OPW2 was there and stated names of other persons was accompanied
OPW2. Name of Executor were not taken by him. On the contrary Executor
neither adduced any evidence to fortify his contention nor he cross
contradicted OPW2 on this point.
Lastly, the evidences on record shows the active involvement of the
beneficiary in the execution of the will, is also an indications of strong
suspicions as to genuineness of Will.
Moreover, it is an ancestral property and the testator knowingly could
not have bequeathed the entire property in favour of the alleged
executor/beneficiary.
The relevant consideration would be about the quality and nature of
each of these factors and then, the Cumulative effect and impact of all of
them upon making of Will with free agency of the testator. In other words,
an individual factor may not be decisive, but if after taking all the factors
together, conscience of the court is not satisfied that the Will in question
truly represents the last wish and proposition of the testator and is duly
executed in accordance with law the Will cannot get approval of court.
Conclusion
The discussion foregoing is sufficient to find that thick clouds of
suspicious circumstances are hovering over the Will in question which have
not been cleared; rather abovementioned suspicious circumstance of the
Will, effectively and completely demolishes the case of appellant. As a result,
I find enough and cogent reasons to affirm the material findings of the trail
court that it cannot be said that the testator executed and signed the
document in question as his Will after having understood the meaning,
effect and purport of the contents. The result, inevitable, is that this appeal
deserves to be dismissed. Accordingly, and in view of the above this appeal
fails and is, therefore, dismissed with cost assessed at Rs.30,000/- to be
paid to the State Legal Services Authority that may be utilized for legal
awareness.
(Uday Kumar, J.)
