Ramesh Lal Das & Another vs Dilip Kumar Das & Others
2023 Latest Caselaw 2428 Cal

                     IN THE HIGH COURT AT CALCUTTA
                               Civil Appellate Jurisdiction
                                  APPELLATE SIDE

Present:

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


                                      FA 6 of 2018
                                            +
                                  IA No.: CAN 2 of 2022

                               Ramesh Lal Das & Another
                                        versus
                               Dilip Kumar Das & Others



For the Appellants         :       Mr. Gopal Ch. Ghosh,
                                   Mrs. Jayeta Kaunda Mitra,
                                   Mr. Rajkrishna Mondal.



For the Respondent No.1    :       Mr. Haradhan Banerjee,
                                   Mr. Arif Ali.



Hearing is concluded on    :       20th March, 2023.



Judgment On                :       11th April, 2023.




Partha Sarathi Chatterjee, J.

1. Judgment dated 18th May, 2017 passed by the learned Additional

District Judge, 11th Court, Alipore, South 24 Parganas in O.S. No. 8 of 2014,

whereby direction was given to grant probate in respect of the Will dated

4.12.1999 executed by one Basant Kumar Das, has been called in question

in the present appeal.

2. One Dilip Kumar Das (in short, Dilip) filed one application under

Section 276 of Indian Succession Act, 1925 (in short, Act of 1925) on

01.02.2011 before the Court of District Delegate, Alipore, South 24 Parganas

which was registered as Act 39 case no. 42 of 2011, contending inter alia

that Basanta Kumar Das, since deceased (hereinafter referred to as the

testator) breathed his last on 15.2.1971 at his permanent place of abode

and prior to his death, on 4.12.1999 he made and published his last Will

and testament in which he appointed Dilip, who happens to be his nephew

(elder brother's son), as sole executor. It was claimed therein that the Will

was duly executed and attested in presence of the witnesses and the same

was registered on 28.1.2000.

3. Three next kin of the testator, who were arrayed as defendant nos.1

to 3, resisted the grant of probate by filing common written statement

rendering the case as contentious cause. However, ultimately, case was

registered as O.S. No. 08 of 2014 and was transferred to the learned Court

below for disposal.

4. Defence taken in the written statement is that the Will was

manufactured and signature of testator was forged in connivance with the

witnesses and Dilip is practically an abandoned child but in the body of the

Will, Dilip was described as son of Mohan Lal Das (in short, Mohan). In the

Will executed by the testator's father, Kartick Chandra Das on 29.8.1956, it

was recited that Mohan Lal Das died leaving behind his widow and two

minor sons. From the record of Corporation concerned, certificate of birth of

one Dilip Kumar Das was available wherefrom it was reflected that date of

birth of Dilip, who was described as son of Mohan was recorded as

24.12.1952 but simultaneously, record of Corporation shows that Mohan

died on 25.08.1949. It was alleged that insertion of such concocted story in

the body of the Will itself speaks that Will was manufactured long after the

death of testator and the same was registered by way of impersonation.

5. Records reveal that upon pleadings of the respective parties,

learned Court below framed as many as six issues. Dilip adduced oral

testimonies of two witnesses including himself and of one Ram Babu

Chowdhury, who were examined as PW-1 and PW-2 respectively and Dilip

tendered two documents, his certificate of birth and the Will, marked as

Ext.-1 and Ext.-2 respectively whereas the caveators adduced oral accounts

of one Ramesh Lal Das and they tendered four documents namely,

certificate of death of Mohan, Certificate of birth of Dilip, registered deed of

partition vide. No. 333 dated 12.2.88 and certificate of birth of Jiban Lal Das

which were marked as Ext.A to D respectively.

6. Upon contested hearing, the learned Court below held the Will as

genuine document. Aggrieved thereby, the defendants/appellants (in short,

the appellants) preferred this appeal alleging inter alia that the learned

Court below did not consider that Dilip made wrong assertion claiming

himself to be the nephew of testator and son of Mohan Lal Das but conjoint

reading of certificate of death of Mohan and certificate of birth of Dilip

reveals that Mohan passed away on 25.8.1949 whereas Dilip was born on

24.12.1952 and such anomaly has not been removed and hence, Dilip failed

to remove the suspicion surrounding the Will and the learned Court below

did not consider that Jiban, who was one of the attesting witnesses, was

minor on the date of execution of alleged Will and hence, Will was not

attested as per the provision of Section 63(c) of Act of 1925.

7. Appellants have filed an application under Order 41 Rule 27 read

with Section 151 of the Code seeking leave to adduce additional evidence

(hereinafter called as the said application) with a view to bring three

documents on record namely, i) Will of Kartick Chandra Das dated

29.8.1956, ii) Will and codicil of Shankar Lal Das dated 12.3.1996 and

11.12.2005 and iii) certified copy of declaration of the testator given in Act

39 case no. 279 of 2016 in which Will of Shankar Lal Das was probated.

8. In the said application, it was contended inter alia that on behalf of

appellants, seven documents, detailed in paragraph-3 of the application,

were handed over to the learned advocate, who represented the appellant

before the learned Court below but that learned advocate tendered four

documents and three documents were somehow misplaced in his chamber

and ultimately, those three documents have been traced out and for the

proper adjudication of the lis, those three documents are required to be

brought on record as additional evidence.

9. Dilip filed an exception to the application alleging inter alia that due

to non-fulfillment of the requirements enshrined in Order 41 Rule 27 of the

Code, the application cannot be entertained at this stage.

10. Mr. Ghosh, learned advocate appearing for the appellant

strenuously contends that on plain perusal of the Will, it will be explicit that

propounder is either insane or temporarily lost his mind and he argues that

the Will is not the actual version of the testator. He contends that in the

Will, Dilip was described as son of Mohan but Dilip was born in 1952

whereas Mohan died in 1949. He submits that Mohan's father namely,

Kartick Chandra Das left behind four sons namely, i) Mohan, ii) Shankar Lal

Das, iii) Basanta Kumar Das, the testator and iv) Ratan Lal Das. Basanta

and Ratan both died bachelors. Kartick executed one Will which was

probated. In that Will, Kartick specifically mentioned that Mohan died

leaving behind two sons and his widow. He submits that on demise of

Mohan, properties left by Kartick were partitioned by one registered deed of

partition dated 12.12.1987 among the sons of Mohan, Shankar and

Basanta, sons of Kartick in which, name of Dilip as one of the sons of

Mohan has not found its reference and Dilip was not a party thereto. He

further submits that on all documents relating to the properties irrespective

of the fact whether those were written in Bengali or English language,

Basanta, the testator used to sign in English whereas in the subject Will,

testator allegedly signed in Bengali which also raised suspicion. He asserts

that if those three documents are brought on record, it would be crystal

clear that the present Will is nothing but an outcome of forgery.

11. He argues that person who prepared the Will was not aware of

history of the family the testator belonged to. Drawing our attention to the

cross-examination of Dilip, he submits that Dilip himself admitted that in

his voter's identity card, his father's name has been recorded as 'Basanta

Kumar Das'. He submits that in cross-examination, Dilip deposed that he

'did not know the names of the children and widow of Madan Lal Das,

Madhusudan Das and even he did not know the names of children of Janaki

Bala Dasi'. He submits that had he been the son of Mohan, Madan and

Madhusudan would have been his brothers whereas Janaki would have

been his mother but he could not say the names of the children of Janaki.

He further submits that Dilip in his deposition admitted he had 'never seen

any other signatures of Basanta Kumar Das save and except his signature

made in English' which statement has lent support to the claim of the

appellants that the testator used to sign in English on all documents

relating to properties.

12. He argues that PW-2, one of attesting witnesses happens to be the

brother-in-law of Dilip. PW-2 deposed that the testator read out the Will.

PW-2 admitted that he had never gone through the contents of the Will and

PW-2 did not know the original address of the father of Dilip and he knew

the learned advocate, Timir Baran Banerjee, who was his neighbour, since

2000. PW-2 deposed that the testator died on 15.2.2007. He also stated that

'I do not know the father's name of Dilip Kr. Das'.

13. He argues that evidence of PW-2 is not trustworthy and that such

aspect has not been taken into account by the learned Court below and

learned Court below just avoided to consider that Dilip could not dispel the

doubts surrounding the Will.

14. He further argues that the Will was shown to have been attested

by Jiban Lal Das and at the time of attestation, he was a minor and

attestation by one minor cannot be accepted to be valid attestation.

15. To bolster his submission, he placed reliance upon the judgments

delivered in cases of Niranjan Umesh Chandra Joshi v. Mridula Jyoti Rao

reported in AIR 2007 SC 614, K. Laxman v. Thekkayil Padmini reported in

(2009) 1 SCC 354, Surendra Pal v. Dr.(Mrs.) Saraswati Arora & Anr. reported

in AIR 1974 SC 1999, Jaswant Kaur v. Amrit Kaur reported in AIR 1977 SC

74, Gurdial Kaur v. Kartar Kaur reported in (1998) 4 SCC 384, Rama Dutta &

Ors. v. Atanu Dutta reported in 1999(1) CHN 35, Smt. Krishna Bera v. Sri

Prabir Bera reported in 2007(2) CLT 484.

16. In response, drawing our attention to the provisions of Order 41

Rule 27 of the Code, Mr. Banerjee argues that conditions incorporated in

Rule 27(1)(a) and 27(1) (aa) have not been satisfied. According to Mr.

Banerjee, it cannot be argued that without the documents sought to be

brought on record by the appellants, the Court would not be able to

pronounce the judgment and he vociferously contends that the application

seeking leave to adduce additional evidence should be dismissed. He

contends that the application has been filed to patch up the lacunae since in

the given case appeal was filed in 2017 whereas application for adducing

additional evidence was filed in 2022.

17. He further contends that the grounds mentioned in paragraph

nos. 3 and 7 of written statement that the Will was manufactured and the

same was registered by false personification and contents of plaint were

false, frivolous and contrary to the facts, are not sufficient to lead the Court

to deny to grant of probate since the caveators have failed to substantiate

such allegations by tendering clinching evidence.

18. He argues that nowhere it has been proved that the testator could

not sign in Bengali and in his view it was prerogative of the testator to sign

either in Bengali or in English since the testator could sign in both the

languages. Drawing our attention to the deposition of DW-1, he argues that

DW-1 admitted that it was his guess that Dilip had put forged signature of

the testator on the questioned Will. So, such claim of appellants was based

on mere guess and not based on any definite proof. He argues that DW-1

himself admitted that he did not know the meaning of expression 'false

personification'.

19. He submits that when Will was registered, genuineness of the Will

cannot be doubted. He argues that DW-1 admitted that no documents had

been filed to show that the testator was not in sound and disposing state of

mind.

20. He further argues that other legal heirs of the testator did not

object to grant of probate and only the legal heirs of Shankar Lal Das has

objected rather one legal heir of the testator, namely, Jiban Lal Das attested

the Will. He argues that nowhere it has been ruled that minor cannot attest

the Will.

21. He submits that in the Will, justification for deprivation of other

legal heirs has been given. He further argues that Court should sit in the

arm-chair of the testator and should honour the intention of the testator

and he contends that where execution and attestation have been proved, the

testamentary Court should ignore the aspect of suspicious circumstances.

No question has been put to PW-1 who falsely personified the testator and

appellants have failed to prove that Will was forged and/or manufactured. In

his view, the learned Court below has rightly directed to grant of probate.

22. To buttress his argument, Mr. Banerjee placed reliance upon the

judgments delivered in cases of Arun Ch. Sinha v. Lt. Satyendra Ch. Ghosh

Moulick reported in 39 CWN 322, Rabindra Nath Das v. Niloy Kr. Moitra

reported in (1994) 2 Cal LT 370, A. Andisamy Chettiar v. A Subburaj Chettiar

reported in (2015) 7 SCC 713, Saleha Bibi & Anr. v. Asim Kumar Chatterjee

reported in (2023) 1 ICC 327, N. Kasturi v. D. Ponnammal & Ors. reported in

AIR 1961 SC 1302, Navneet Lal @ Rangi v. Gokul & Ors. reported in (1976) 1

SCC 630, Gnanambal Ammal v. T.Raju Ayyar & Ors. reported in 1950 SCC

978, Uma Devi Nambiar & Ors. v. T.C. Sidhan (dead) reported in (2004) 2

SCC 321, Meenakshiammal (dead) thr. Lrs. & Ors. v. Chandrasekaran & Anr.

reported in (2005) 1 SCC 280, Sushila Devi (Smt.) -vs- Pandit Krishna Kumar

Missir & Ors. reported in (1971) 3 SCC 146, R. N. Banerjee & Anr. v.

Panchanan Banerjee (dead) by Lrs. & Ors. reported in (1995) 4 SCC 459,

Madhukar D. Shinde v. Tarabi Aba Shedage reported in (2002) 2 SCC 85, M.

H. Kanga v. J.H. Kanga reported in AIR 1924 PC 28, Ugar Ahir & Ors. v. State

of Bihar reported in AIR 1965 SC 277, Beni Chand (since dead) now by Lrs.

V. Smt. Kamla Kunwar & Ors. reported in AIR 1977 SC 63.

23. The provisions of Order 41 Rule 27 of the Code read as under:

'27. Production of additional evidence in Appellate Court.-(1) The parties

to an appeal shall not be entitled to produce additional evidence, whether

oral or documentary, in the Appellate Court. But if -

(a) the Court from whose decree the appeal is preferred has refused to

admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that

notwithstanding the exercise of due diligence, such evidence was

not within his knowledge or could not, after the exercise of due

diligence, be produced by him at the time when the decree appealed

against was passed, or

(b) the Appellate Court requires any document to be produced or any

witness to be examined to enable it to pronounce judgment, or for any

other substantial cause,

the Appellate Court may allow such evidence or document to be

produced or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an

appellate Court, the Court shall record the reason for its admission.'

24. So, additional evidence can be taken on four grounds, namely, a)

where the learned trial Court ought to have admitted evidence but refused to

admit the same; b) such evidence was not within knowledge or could not be

produced in spite of due diligence exercised by the party seeking to adduce

such evidence; c) appellate Court requires such evidence to pronounce

judgment or d) for any other substantial cause.

25. General rule is that ordinarily the appellate Court should not

travel outside the record of the lower Court but Order 41 Rule 27 of the

Code curves out an exception to the general rule and enable the appellate

Court to take additional evidence on fulfilment of certain conditions and/or

contingencies. We cannot be oblivious of the settled proposition that Order

41 Rule 27 has not been engrafted in the Code to enable any party to the lis

to patch up the weak points in the case and fill up any lacunae or gap in the

evidence by adducing additional evidence.

26. In the given case, appellant's prayer for adducing additional

evidence does not satisfy the any of the conditions incorporated in sub-rule

1(a) and 1(aa) of Rule 27 and it is to be noted that the words 'or for any other

substantial cause' must be read with the word 'requires' which is set out at

the commencement of the provision. It means that when appellate Court

requires additional evidence, appellate Court can accept the same as per

sub-rule 1(b) of Rule 27. In other words, when it would be apparent that

without taking additional evidence, appellate Court would not be able to

pronounce the judgment, then it can take additional evidence. [See the case

of A. Andiwamy Chettiar (supra)].

27. In the case at hand, appellant wants the appellate Court to take

additional evidence to convince that Dilip was not son of Mohan and Will

does not contain correct fact. We are of the view that the evidence brought

on record are sufficient enough to enable the Court to decide such issue and

hence, application taken out under Order 41 Rule 27 read with Section 151

of the Code is rejected.

28. It is axiomatic that a propounder of a Will must prove that the Will

was outcome of free will of a capable and competent testator i.e Will was

signed by the testator in sound and disposing state of mind understanding

the nature and effect of disposition. Propounder must prove that Will was

attested in conformity with the provisions of Section 63(c) of Act of 1925 i.e.

two or more witnesses attested the Will and each of whom has seen the

testator to sign the Will or affix his mark thereon or has seen some other

person to sign in the presence and by the direction of the testator or has

received from the testator a personal acknowledgment of his signature and

each of such witnesses shall sign the Will in presence of the testator in the

mode and manner prescribed in Section 68 of Indian Evidence Act.

29. There are repetitive pronouncements on the proposition that 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. 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. The presence of suspicious circumstances

makes the onus heavier on the propounder.

30. In the case of K. Laxmanan (supra), it was ruled that when there

are suspicious circumstances regarding the execution of the Will, the onus

is also on the propounder to explain them to the satisfaction of the Court

and only when such responsibility is discharged, the Court would accept the

Will as genuine. Even where there are no such pleas, but circumstances give

rise to doubt, it is on the propounder to satisfy the conscience of the Court.

31. In the case of Bharpur Singh reported in (2009) 3 SCC 687, some

illustrations of suspicious circumstances were given which are as follows :

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.

32. Hence, incorrect recital of essential facts in the Will is one of the

suspicious circumstances. In the body of the Will, it was recited that Mohan

had three sons, namely, Madan, Madhusudan and Dilip and in another

place of the Will, it was mentioned that Dilip being the son of Mohan

happens to be the brother's son of the testator.

33. Now, from certificate of death of Mohan which was marked as

Ext.-A on admission, it would be evident that Mohan died on 25.8.1949 and

from the certificate of birth of Dilip, which was also admitted as Ext.-B on

admission, it would be explicit that Dilip was born on 24.12.1952. So, Dilip

can never be the son of Mohan. Mohan happened to be the own brother of

the testator. So, testator in his own Will could not have incorrectly recited

that Mohan had three sons and Dilip was youngest son of Mohan. More so,

Dilip admitted that in his voter's identity card, name of his father has been

recorded as 'Basanta Kumar Das'.

34. Propounder has miserably failed to dispel such doubt surrounding

the Will. Propounder could not mention the number of children of Madan

and Madhusudan, his so-called brothers and even he could not say the

number of children of Janaki whom he claimed to be his mother.

35. PW-2, one of the attesting witnesses, deposed that the testator

himself read the Will. It is absurd to believe that the testator, who is a

literate person, even after going through such incorrect recital of the Will

signed the Will.

36. PW-2, who claimed himself to be brother-in-law of Dilip but he

expressed his ignorance regarding address of father of Dilip and even, he

could not say the name of the father of Dilip.

37. After expiry of Mohan, properties left by Kartick were devolved

upon two sons of Kartick and sons of Mohan who partitioned the properties

by executing one deed of partition dated 12.12.1987 in which as sons of

Mohan, only Madan and Madhusudan joined as parties to the deed along

with Basanta and Sankar and Basanta was one of the signatory of that

deed. In that deed, nowhere it was mentioned that Mohan had another son

namely, Dilip.

38. Although the testamentary Court is not a Court of suspicion but a

Court of conscience but such incorrect recital in the Will must raise

suspicion in the conscience of the testamentary Court and as has been

stated earlier, propounder has miserably failed to remove such suspicion.

39. It goes without saying that the mere fact that a Will is registered

Will not by itself be sufficient to dispel the suspicion where the suspicion

exits. Basically, registration of Will does not change the onus of proof from

the propounder and merely because a Will is registered, its genuineness

cannot be presumed and registration does not give sanctity to the execution

of the Will. In case of Smt. Krishna Bera (supra), it was observed that mere

registration in presence of the Registrar concerned is not sacrosanct to

accept a document to be genuine.

40. Word or words used in the recital of the Will regarding paternity of

Dilip does or do not signify any ambiguous meaning and consequently, the

judgments relied upon by Mr. Banerjee regarding construction of Will or

regarding interpretation of the word or words embedded in the Will do not

come in aid of the propounder.

41. The doubts and discrepancies crept in the case at hand cannot be

dispelled by authority of precedents. Despite having unquestionable value of

the proposition laid down in the judgments relied upon on behalf of the

propounder, those are not sufficient to lead us to gloss over the doubts,

contradictions and discrepancies impugned in the given case.

42. Hence, from the discussion made hereinabove, it is explicit that

the evidence of PW-2 is not inspiring and propounder has failed to dispel the

doubt regarding incorrect recital of essential facts in the body of the Will and

registration of Will and authority of precedents relied upon on behalf of the

propounder could not cover up the cleavages in the evidence and

consequently, even if caveators did not take any step to discharge their

burden to prove that the Will was manufactured and the Will was registered

by way of false personification, yet the propounder is not entitled to get the

probate and the learned Court below has misdirected itself in not

considering the aspect.

43. In conclusion, the appeal succeeds. Judgment impugned herein is

set aside. O.S.no. 8 of 2014 is dismissed. Parties to bear their own costs.

44. Let a decree be drawn up, accordingly.

45. Let a copy of this judgment along with the LCR be sent down

forthwith.

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

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

formalities.

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