Calcutta High Court
Pradip Kr. Jaiswal vs Nirmala Devi Jaiswal on 14 December, 2023
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
Original Side
Present:
The Hon'ble Justice Arijit Banerjee
TS 13 of 2006
IA No. GA/10/2017
(Old No. GA/363/2017)
In the Goods of:
Kalap Nath Jaiswal (Deceased)
And
PRADIP KR. JAISWAL.
VS.
NIRMALA DEVI JAISWAL.
For the Plaintiffs : Mr. Dhruba Ghosh, Sr. Adv.
Mr. Soumyajit Ghosh, Adv.
Mr. Kaushik Mandal, Adv.
Ms. Pritha Bhowmik, Adv.
Mr. Altamash Alim, Adv.
For the Caveators : Mrs. Sumitra Mukherjee, Adv.
Mr. Jayanta Kumar Pain, Adv.
Date of Judgment : 14.12.2023
Arijit Banerjee, J.:
1. One Kalap Nath Jaiswal was a resident of Calcutta. He was a
successful businessman and a wealthy person. He had two wives (This was
when the Hindu Marriage Act, 1955, was not there). The first wife's name
was Kamla Devi (in short 'Kamla'). The second wife was Shanti Devi (in short
'Shanti').
2. Kalap Nath had 4 sons and one daughter from his first marriage,
namely, Ajay, Vinod, Manoj, Sanjay and Nirmala respectively. From his
second marriage Kalap Nath had two sons and five daughters namely Vijay,
Pradip, Pramila, Urmila, Meena, Beena and Shila respectively.
3. Kalap Nath died on June 16, 1996, having made and published, what
the plaintiff says, was his last Will dated October 5, 1994. The plaintiff and
Vijay (two sons from the second marriage) were named as executors in the
Will. In the Will, the branch of Kalap Nath's first wife was by-passed and
nothing was given to them. Kalap Nath devised and bequeathed all his
properties, immovable and movable, to the branch of the second wife and in
particular to Vijay and Pradip and their families. There was also a bequest in
favour of his second wife Shanti.
4. Vijay and Pradip filed an application for probate of the aforesaid Will of
Kalap Nath, being PLA no. 116 of 2003. The branch of the first wife of kalap
Nath filed caveat and affidavit in support thereof opposing the grant of
probate of the said Will in favour of Vijay and Pradip. Accordingly, the
matter became a contentious cause and was registered as TS 13/2006. It
may be noted that during pendency of the suit, Vijay passed away and
Pradip became the sole plaintiff.
5. No specific issues were framed by the learned Judge before whom
hearing of the suit commenced. However, the only issue according to me is
whether or not the Will in question is the last Will and testament of the
testator and whether or not it should be admitted to probate.
6. From the affidavit dated July 30, 2004, filed in support of the Caveat
and the supplementary affidavit dated January 14, 2010, it appears that the
defendants have opposed the plaintiff's prayer for the grant of probate on the
following grounds:-
(a) Kalap Nath did not have the capacity or power to make a Will
relating to the assets which are the subject matter of the Will since
such assets and/or properties belong to Kalap Nath Jaiswal HUF,
and the same were not his personal properties.
(b) Kalap Nath did not know English language. He could only put
his signature in English. Hence the Will is highly suspicious.
(c) The document described as a Will is a fabricated document
manufactured long after Kalap Nath's death.
(d) The propounders had failed to produce or file the original
engrossed Will with the probate application.
(e) Kalap Nath was not in a proper mental state to execute a Will.
He was made to execute the Will under undue influence/coercion.
The Will was not made on his own volition and does not reflect
Kalap Nath's true will and intention.
(f) The document alleged to be kalap Nath's Will, is unnatural,
clothed with suspicion, reveals suspicious circumstances and is
tainted with fraud.
7. On behalf of the propounders, three witnesses were examined. They were
Dinabandhu Mandal, Kaushik Mandal and Pradip Kumar Jaiswal
(propounder). Dinabandhu and Kaushik were witnesses to the said Will. On
behalf of the Caveators only one witness was examined i.e, Ajay Jaiswal.
Evidence
8. I may briefly note the gist of the depositions of the witnesses.
9. Dinabandhu, Senior partner of Fox & Mandal, Solicitors, deposed that
at the request of Kalap Nath, he had drafted the Will. The Will was signed in
his office. Kalap Nath signed the Will first, thereafter on his request,
Dinabandhu and then Kaushik signed the Will. Kalap Nath signed the Will
after understanding the contents thereof. He was in good health on the date
of the execution of the Will. The Will was executed in duplicate. The second
copy may be called 'certified true copy'. This was done so that if the original
was misplaced and/or not found, such certified true copy could be treated
as original. The Witness identified the signatures on the Will as that of Kalap
Nath, his own and of Kaushik Mandal.
10. The second attesting witness, Kaushik Mandal deposed that he was
working with the Solicitors' firm M/s. Fox & Mandal at the time when the
Will was executed by Kalap Nath in 1994. He identified the signature of
kalap Nath, his own signature and that of Dinabandhu, the other attesting
witness. He confirmed that the Will was signed in Dinabandhu's chamber, in
his presence. The sequence of signature was the same as mentioned by
Dinabandhu. He explained that Exhibit A is the original Will and Exhibit B
is a certified copy of the Will. He confirmed that the contents of the said two
Exhibits are the same. He further said that although Kalap Nath understood
English language, the Will was also explained to him in Hindi by
Dinabandhu in his presence. He also confirmed that the contents of the
affidavit that he affirmed and filed as an attesting witness as part of the
probate application, are true and correct. Witness also stated that the
normal procedure followed by M/s. Fox & Mandal, was to execute two sets of
the same Will by way of abundant caution.
11. Pradip Jaiswal, P.W-3, deposed that he is a son of kalap Nath. He saw
the Will for the first time on July 18, 2002, when he collected the same from
the office of M/s. Fox & Mandal. His elder brother Vijay Jaiswal, the other
executer named in the Will died on November 27, 2005. He identified his
own signature and that of Vijay Jaiswal on the probate petition. He tendered
Kalap Nath's death certificate. He deposed that Kalap Nath was healthy on
the date the Will was executed. He narrated an incident of his step brothers
physically assaulting Kalap Nath, causing his death, arrest of the assailants,
murder trial and acquittal of the accused persons by way of benefit of doubt.
Witness deposed that the relationship between Kalap Nath and his sons
from his first marriage was bad. He tendered a complaint dated October 19,
1994, made by Kalap Nath against his sons from the first marriage. He
deposed that three other complaints (Exhibits M, N and O) were also made
by Kalap Nath to the police and other authorities. Such complaints were
filed as Ajay and Vinod Jaiswal, being the step brothers of the witness, were
assaulting Kalap Nath and trying to grab his properties. Witness tendered
newspaper reports published in 'Bartaman' and 'Ajkal' regarding the
aforesaid two step brothers assaulting Kalap Nath. He deposed that Kalap
Nath did not deprive his children from the first marriage. During his life time
he had given sufficient money, land and business to them. In answer to
queries raised by the Court, witness deposed in details how badly the
children from the second marriage treated Kalap Nath.
This witness was cross-examined extensively. He stood his ground and
did not say anything contrary to what he had said in examination-in-chief.
12. The only witness who deposed for the Caveators was Ajay Jaiswal, one
of Kalap Nath's children from the first marriage. He deposed that apart from
him, the other Caveators are his sister Nirmala and younger brothers Vinod
and Sanjay. He deposed that prior to the marriage of his step brother Pradip
Jaiswal, his relationship with Kalap Nath was very cordial. Subsequent to
the said marriage, the relationship became sour. On being shown the first
and last pages of the Will, he said that his father's signature was forged. He
said that the Will was not disclosed in the criminal proceedings nor in the
Kanpur suit between the parties. He said a lot of things regarding the family
business, his own business, Kalap Nath Jaiswal HUF, etc, which are not
strictly relevant for the purpose of deciding the issue involved in this suit. He
admitted that Kalap Nath had been residing with his second wife and the
children from her since 1993. He also admitted that after 1993, the
relationship between Kalap Nath and his first wife as also his relationship
with Sanjay and Vinod, two sons from his first wife, was not cordial. He
deposed that the properties mentioned in the Will were not Kalap Nath's
personal properties. He said that the case of forgery has been made out
since the Will was not executed in his presence. Further, the witnesses to
the Will not being forensic experts, they could not confirm Kalap Nath's
signature on the Will.
Arguments
13. Learned Advocate for the propounder submitted that the propounder
has proved that the Will was executed and attested as per the provisions of
Section 63 of the Indian Succession Act and in the manner contemplated
under Section 68 of the Indian Evidence Act. This will appear from the
evidence of the two attesting witnesses who are well reputed solicitors of this
Court. The Caveators have not been able to shake their testimony nor raise
any doubt regarding the execution or attestation process.
14. Learned Advocate submitted that when the probate petition was first
filed, the propounder had annexed the duplicate copy of the Will thereto with
an undertaking to produce the original engrossed Will later. Subsequently,
after the demise of the propounders' mother, they found the original
engrossed Will amongst the belongings of their mother and filed the same in
Court after obtaining the Court's leave. The attesting witnesses proved both
the original and the duplicate copy of the Will. The depositions of the three
witnesses from the side of the plaintiff, read together, leave no manner of
doubt that the Will in question was executed and attested following the
requirements of law and, should therefore be admitted to probate.
15. Learned Advocate further submitted that the fact that the first wife
and her branch were not beneficiaries in the Will, per se does not make the
Will unnatural. D.W. i.e. Ajay Jaiswal has admitted the acrimonious
relationship between Kalap Nath and his first wife as well as the children
from his first wife.
16. Learned Advocate then said that as regards lack of mental capacity of
the testator or any undue influence having been exerted on him, no evidence
has been tendered by the defendants excepting making a bald allegation.
17. As regards the defendants' case that Kalap Nath's signature on the
Will is forged, learned Advocate said that again, no evidence has been
adduced in support of such allegation. Neither have the Caveators led any
expert evidence on that score, nor have they produced any other signature of
the testator with which comparison can be made.
18. It was then submitted that the pleas that the Will is a forgery and that
the Will was procured by undue influence, are mutually destructive. Such
inconsistent cases have been run by the defendants in desperation.
19. As regards the allegation that Kalap Nath was not the owner of the
property as mentioned in the Will and as such could not have devised/
bequeathed the same by way of the Will, learned advocate for the
propounder said that the probate Court does not decide the title to the
property mentioned in a Will. Further, in the Kanpur Suit, The Caveators
have proceeded on the basis that some of such properties belong to Kalap
Nath.
20. Learned Advocate then submitted that a bald allegation has been
made that there are suspicious circumstances surrounding the execution of
the Will. Some of the contentions of the defendants do not even relate to the
circumstances surrounding the execution of the Will. It was submitted that
the alleged discrepancies in the evidence of the plaintiff's witnesses as to the
custody of the original Will and the duplicate Will or the delay in filing the
probate petition do not concern the execution of the Will. Similarly, the
plaintiff never mentioned the Will in the criminal proceedings initiated
against the defendants since it was not necessary to do so. In any event
such proceedings were being prosecuted by the State and not by the
plaintiff.
21. Finally, as regards the point of limitation, learned Advocate submitted
that although in the cases relied upon by the Caveators, the Supreme Court
has observed that Article 137 of the Schedule to the Limitation Act would
apply to all application including probate application, the Hon'ble Court also
observed that the time from which limitation period commences is, "when
the right to apply accrues." Article 137 does not read "when the right to sue
first accrues". Therefore, the time did not start running from the date of the
testator's death, but from the date when it became necessary for the
executors to apply for probate. In this connection learned Counsel for the
plaintiff relied on the decision of the Hon'ble Supreme Court in the case of
Union of India & Ors. v. West Coast Paper Mills Limited & Anr.,
reported at (2004) 2 SCC 747 para 21.
22. Learned Counsel submitted that the two decisions relied upon by the
defendants on the point of limitation, i.e., Kunvarjeet Singh Khandpur v.
Kirandeep Kaur & Ors., (2008) 8 SCC 463 para 14, Krishan Kumar
Sharma v. Rajesh Kumar Sharma, reported at (2009) 11 SCC 537 para
14 , do not help the defendants. Learned Counsel relied on he decisions of
the Bombay High Court and the Madras High Court in the cases of Vasudev
Daulatram Sadaranganj v. Sajni Prem Lalwani, reported at AIR 1983
Bomb 268 and E. Devaranjan & Ors. v. E. Ramiah, reported at AIR
1991 MAD 214.
23. Learned Advocate for the Caveators argued that Kalap Nath died
intestate in 1996. The alleged Will was manufactured after his death by the
propounders to usurp the properties belonging to the HUF by the name of
M/s Kalap Nath Jaiswal as well as the personal properties of Kalap Nath.
24. Learned Counsel tried to point out inconsistencies between the
evidence of the witnesses examined by the propounders. For example, P.W. 2
(Kaushik Mandal) deposed (Q.56) that Ganga Prasad Jaiswal was present at
the time of execution of the Will, but P.W. 3 (Pradip Jaiswal) deposed (Q 194)
that Ganga Prasad was sitting outside. Again, with reference to Q 55 and 62
of P.W 2's deposition, it was submitted that P.W. 2 deposed that Kalap Nath
went to the office of M/s. Fox & Mandal on the day of execution of the Will
around mid day. It follows that the Will was prepared, explained to Kalap
Nath and signed on the same day. No draft of the Will was prepared. This
raises a strong suspicion.
25. Learned Advocate then argued that P.W. 1 gave contradictory answers
regarding the alleged Will in response to Q 35 to 39. The said questions and
answers read as follows:-
"35. You have also deposed before My Lord that you do not
recollect if you had dealt with Kalap Nath Jaiswal before execution
of this Will. Am I Correct?/ I have not said before execution. I do
not recollect whether I had dealt with him in any other matter or
not.
36. Therefore, do I take it that this was for the first time that you
saw somebody who represented himself to be Kalap Nath Jaiswal?
He was accompanied by our own client, Ganga Prasad Jaiswal who
was very old. He was related to Kalap Nath Jaiswal. That is how he
came to our office.
37. According to you, the identification of the testator was made by
Ganga Prasad Jaiswal ?/ He never signed.
38. There was no means to ascertain whether the person who
signed this document is actually Kalap Nath Jaiswal or anybody
else?/ We do not do those things. We verify those.
39. Other than being assured by Ganga Prasad Jaiswal, you have
no other means to verify or ascertain that the person signing the
document was Kalap Nath Jaiswal himself. Do you follow my
question?/ Yes, I follow. I myself have to verify or appoint the
detective agency to verify whether that person is actually Kalap
Nath Jaiswal as he representing."
26. Learned Counsel then argued that Kalap Nath allegedly executed the
Will on October 5, 1994, and passed away on June 16, 1996. However, the
propounders allegedly collected the Will on July 18, 2002, i.e., more than 6
years after their father's death from the office of M/s. Fox and Mandal. This
also raises a suspicion as regards the genuineness of the alleged Will.
27. It was submitted that pursuant to a complaint lodged by the
propounders, a criminal case was initiated in the year 1997 against Vinod
Jaiswal, Sanjay Jaiswal and Ajay Jaiswal under Section 302/34 of IPC for
the alleged murder of Kalap Nath. The 6th Additional District and Sessions
Judge acquitted the accused persons by a judgment and order dated
February 15, 1999. In the said criminal proceedings, the propounders never
disclosed the existence of any Will of Kalap Nath.
28. Learned Counsel then argued that the original letters exchanged
between Vijay Kumal Jaiswal and M/s. Fox & Mandal i.e., letter dated
09.05.2002 written by Vijay, letter dated May 10.05.2002 written by M/s.
Fox & Mandal or letter dated 18.07.2002 written by Vijay and Pradip Jaiswal
to Fox & Mandal were not produced by PW 1 (Dinabandhu Mandal), Senior
partner of M/s Fox & Mandal. Strong suspicion arises because of non
production of such records.
29. It was then argued that there are inconsistencies as to when the
alleged Will came to the knowledge of the propounders. P.W. 1 stated that
the alleged Will was executed in duplicate and kept in the custody of Fox &
Mandal (Q. 16,17,43). P.W. 1 also deposed that after execution of the alleged
Will, the same was kept in safe custody of his office (Q. 43, 74, 86 and 87). A
statement to the same effect was made by P.W. 2 (Q. 31). According to P.W.
2 the original Will and true copy thereof - Exhibits A and B - were kept in
the office of M/s Fox & Mandal (Q 31 and 32). P.W. 2 deposed that initially
one Will was misplaced but he did not say when it was found to be
misplaced and how it was traced back. He also did not say whether the
original Will or the true copy thereof was misplaced (Q 33). P.W. 3 deposed
that he saw the Will for the first time 13 days after his father's death (Q 156,
366 to 372). In cross examination he gave contradictory answer (Q 488).
P.W. 3 also deposed that the Will was retrieved from Fox & Mandal on
18.07.2002 and then only he saw the Will (Q 60, 158).
In the petition affirmed by P.W. 3 on March 30, 2009, he stated that
his mother Shanti Devi died on 11.01.2009 and while going through her
belongings, P.W. 3 discovered the original engrossed Will. In paragraph 8 of
the application P.W. 3 stated that neither he nor his elder brother Vijay,
since deceased, being the other executor named in the Will, were aware that
the original engrossed Will was lying along with the belongings of Shanti
Devi.
30. Learned Advocate argued that the aforesaid contradictions in the
depositions of the three witnesses put forward by the propounder, regarding
the existence of the alleged Will and the knowledge of the propounders about
the same, raise serious suspicion about the genuineness of the Will.
31. It was then submitted that the Caveators had filed a suit for
declaration challenging the genuineness of the alleged Will before the 2nd
Civil Judge (Junior Division), Sealdah, being TS 416 of 2002. However, the
propounders filed the probate application in the Calcutta High Court in
February, 2003. When the said fact was brought to the notice of the learned
Sealdah Court, an order dated January 12, 2004, was passed by the learned
Court dismissing the suit, holding that it had no jurisdiction to entertain the
suit.
32. It was then submitted that 6 years after filing of the probate
application, the petition dated March 30, 2009, was filed before this Court
praying for leave to file the purported original engrossed Will. An ex-parte
order dated April 6, 2009, for disclosure of documents was obtained by the
propounder.
33. Learned Advocate then submitted that it is the duty of the propounder
of the Will to satisfy the conscience of the Court that the Will was duly
executed by the testator. The Court will not refuse to probe deeper into the
matter only because the signatures on the Will are otherwise proved. If the
Will is surrounded by suspicious circumstances, it is the duty of the
propounder to explain the same.
34. In connection with the delay in producing the original engrossed will,
learned Advocate relied on the decision of the Privy Council in Mt. Biro v.
Atma Ram AIR 1937 PC 101.
35. Learned Counsel then made detailed submission on how Kalap Nath
had come to reside in Calcutta from Village Bangaon, Azamgarh, Uttar
Pradesh, some time before 1947 and how he built up a business along with
his family members acting as a 'Hindu Undivided Family' (HUF). Essentially
what learned Counsel tried to impress upon me is that the properties
devised/bequeathed by Kalap Nath in the Will are HUF properties and as
such, Kalap Nath had no right to deal with such properties in his Will. He
was the Karta of M/s. Kalap Nath Jaiswal HUF governed by Hindu
Mitakshara School. Any of the properties of such HUF could not be legally
disposed of by Kalap Nath by the alleged Will or otherwise.
36. Learned Advocate for the Caveators submitted that the application for
probate is barred by limitation. According to him the application for probate
should have been filed within 3 years of Kalap Nath's death. Since the same
was not done, the probate application became barred by law in terms of
Article 137 of the Schedule to the Limitation Act, 1963. In this connection
learned Advocate relied on the followed decisions (i) Krishan Kumar
Sharma v. Rajesh Kumar Sharma (2009) 11 SCC 537, Para - 14. (ii)
Kerala State Electricity Board Trivandrum v. T.P. Kunhaliumma
(1976) 4 SCC 634.
37. Learned Advocate also submitted that the delay in applying for
probate of a will would result in suspicion. The greater the delay, greater
would be the suspicion. In the present case, the Will surfaced in 2002, six
years after the death of Kalap Nath. The original engrossed Will was filed in
Court in 2009, 13 years after Kalap Nath's death. These facts indubitably
indicate suspicious circumstances and raise doubts about the genuineness
of the Will.
38. On the point of suspicious circumstances, learned Advocate referred
to the following decisions i.e.
(i) Bhagwan Kaur W/o Bachan Singh v. Kartar Kaur W/o Bachan
Singh, reported at (1994) 5 SCC 135,
(ii) Bindeshri Prasad & Anr. v. Mst. Baisakha Bibi & Ors. reported
at AIR 1920 PC 70,
(iii) Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors. reported at (1977)
1 SCC 369 Para 9.
39. As regards delay in producing the Will raising suspicion, reliance was
placed on Bharpur Singh & Ors. v. Shamsher Singh (2009) 3 SCC 687
(Para 23-25) and S. R. Srinivasa & Ors. v. S. Padmavathamma (2010) 5
SCC 274 (paragraph 38, 56, 65).
Court's view
40. At the very outset it would be helpful to note the relevant contents of
the Will of which probate is being sought. In paragraphs 4, 5 and 6 of the
Will, Kalap Nath stated as follows:-
"4. I was living with my maternal uncle Shri Sumer Ram Shaw
since deceased at Kanpur during my childhood for my education
and thereafter I came to Calcutta with Shri Chandrabali Shaw,
eldest son of my said uncle and also started living with him in
Calcutta. Gradually I learned business from my said maternal
brother Shri Chandrabali Shaw and started my own business. All
properties and business established by me are out of my self
acquired property.
5. I have three other sons viz. Ajay Kumar Jaiswal, Vinod Kumar
Jaiswal and Sanjay Kumar Jaiswal from my first wife. I have given
them business and moneys and as such not making any provision
for them under my Will. Specially for the last few months they are
misbehaving with me and abusing me openly and publicly. It is my
desire that they should vacate the Second Floor of my residential
house where they are now staying.
6. I have one daughter from my first wife and five daughters from
my second wife. They are all married and I have spent considerable
amount at the time of their marriage and as such I am not
providing anything to them in this my Will."
41. By the subsequent paragraphs in the Will, Kalap Nath devised and
bequeathed the residential house at Premises No. 3B Hazi Zakaria lane,
Kolkata to Vijay and Pradip (the propounders). A property measuring about
4 bighas at Kanpur, was devised to Kalap Nath's second wife Shanti Devi,
Vijay and Pradip, their respective wives and kalap Nath's grandson Vivek
Jaiswal, in equal shares. Kalap Nath devised land at Transport Nagar
measuring approximately 300 Square Yds. to Vijay and Pradip. The tenancy
right in respect of the shop at 248C Acharya Prafulla Chandra Road,
Kolkata- 7000 006, was given to Vijay and Pradip. Kalap Nath bequeathed
his entire interest in the partnership carrying on business under the name
and style of 'Vijay Iron Trading Company', to his sons Vijay and Pradip. The
rest and residue of his estate, Kalap Nath devised and bequeathed to Vijay
and Pradip.
42. Kalap Nath therefore made it clear in the Will that he had given
business and money to his sons from the first marriage and hence was not
making any provision for them in the Will. An additional reason for not
including the three sons from the first marriage, in the Will, is that they
used to misbehave with Kalap Nath. As regards the daughter from the first
marriage and the five daughters from the second marriage, Kalap Nath did
not provide for them in the Will as he had married them off well spending
substantial sums of money. To my mind, there is nothing unnatural about
the disposition made in the Will in spite of Kalap Nath favouring the children
from his second wife.
43. Just because the branch of the second wife are the beneficiaries under
the Will to the exclusion of the branch of the first wife, the Will cannot be
said to be unnatural. A will is generally made when the testator desires to
alter the natural course of succession. As observed by the Hon'ble Apex
Court in the case of Ramabai Padmakar Patil (Dead) through LRS. &
Ors. v. Rukminibai Vishnu Vekhande & Ors., (2003) 8 SCC 537, a Will is
executed to alter the mode of succession and by the very nature of things it
is bound to result in either reducing or depriving the share of a natural heir.
If a person intends his property to pass equally to his natural heirs, there is
no necessity at all of executing a Will. It is true that the propounder of a Will
has to remove all suspicious circumstances. Suspicion means doubt,
conjecture or mistrust. But the Fact that the natural heirs or some of them
have been excluded or a lesser share has been given to them, by itself
without anything more cannot be held to be a suspicious circumstance.
44. Now I come to the question as to whether or not the execution of the
Will has been duly proved. Sec. 63 of the Indian Succession Act, 1925
prescribes the manner of execution of an unprivileged Will. The
requirements are as follows:-
"(a) The testator shall sign or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by his
direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that
it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the Will or
has seen some other person sign the Will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgement of his signature or mark, or of the
signature of such other person; and each of the witnesses shall
sign the Will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same time,
and no particular form of attestation shall be necessary."
45. The burden of proving valid execution of a Will and that it is a genuine
document is squarely on the propounder. He must establish that the
testator has signed the Will within his free will and having a sound
disposition of mind and understood the nature and effect of the instrument
on which he was appending his signature. The testamentary capacity of the
propounder must also be established. The propounder must explain to the
satisfaction of the Court suspicious circumstances, if any, surrounding the
execution of the Will.
46. A Will has to be proved like any other document. Sec. 68 of the Indian
Evidence Act provides that if a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at least has been
called for the purpose of proving its execution, if there be an attesting
witness alive and capable of giving evidence. The proviso to Sec. 68 clarifies
that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration Act, 1908, unless
its execution is specifically denied by the person by whom it purports to
have been executed. Sec. 69 of the Evidence Act provides for the manner of
proof of execution of a document which is required by law to be attested,
when no attesting witness is found. We are not concerned with such a
situation.
47. In the instant case, it appears from the evidence on record that the
Will was signed by Kalap Nath in the presence of two witnesses
(Dinabandhu Mandal and Kaushik Mandal) and the two witnesses then put
their signatures on the Will in front of the testator. The Will was thus
executed in accordance with law.
48. No argument has been advanced on behalf of the Caveators to the
effect that Kalap Nath did not have the mental capacity to make the said
Will.
49. As regards the legal capacity of the testator, it was argued on behalf of
the Caveators that Kalap Nath was not the owner of the properties which are
the subject matter of the Will. They are HUF properties. Therefore, Kalap
Nath could not have devised such properties in the Will. This point cannot
be considered in the present proceeding. The probate Court does not decide
whether or not the testator had title to a property which is the subject
matter of his Will.
50. It was argued on behalf of the Caveators that there were suspicious
circumstances surrounding the execution of the Will which have not been
explained by the propounder. However, the instances of suspicious
circumstances given by learned Advocate and recorded above, do not pertain
to execution of the Will. All such instances relate to circumstances post
execution of the Will, even assuming that they can be described as
suspicious circumstances.
51. As regards the decision of the Hon'ble Supreme Court in Bhagwan
Kaur v. Kartar Kaur, (supra), on facts, the Hon'ble Supreme Court found
that there were suspicious circumstances surrounding execution of the Will.
The legatee took active part in the execution of the Will. No provision was
made in the Will for the two widows. Only a pious wish was recorded in the
Will that the legatee would look after the testator's widows. The Hon'ble
Supreme Court held that because of the suspicious circumstances, the Will
should not be admitted to probate. In Bindeshri Prasad v. Baisakha Bibi,
(Supra), the Privy Council set aside the decree of the High Court granting
probate of a Will. The ratio decidendi of that decision is that in a suit by
heirs of a deceased person for declaration that the alleged Will of the
deceased whereby they were deprived of the succession to his estate, is a
forgery, the burden of establishing without reasonable doubt that the Will
propounded is of the deceased, is upon those propounding the Will. There is
no quarrel with this proposition of law. In the facts of this case, that decision
has no manner of application.
52. Although one of the points taken in the affidavit in support of the
caveat is that the signature on the Will is not that of Kalap Nath, the point
has not been seriously pressed. The Caveators did not produce any admitted
signature of kalap Nath for comparison with the signature on the Will. They
did not also adduce evidence of any hand writing expert.
53. In Smt. Jaswant Kaur v. Amrit Kaur, Supra, (another case relied
upon by the Caveators), it was 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 comes up initially as an adversarial
proceeding, becomes in such cases, a matter of the court's conscience and
the true question that then arises 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.
I respectfully agree with the aforesaid observation as I must and I am
bound by the same. However, in the facts of this case, I have not found any
suspicious circumstance surrounding the execution of the Will.
54. Another decision relied upon by the Caveators is that of the Hon'ble
Supreme Court in Bharpur Singh v. Shamsher Singh, (Supra). At
paragraph 23 of the reported judgment examples of suspicious
circumstances surrounding the execution of a Will are indicated 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."
55. However, in paragraph 24 of the judgment the Hon'ble Court added
that the circumstances narrated are not exhaustive.
56. The Caveators also relied upon the decision of the Hon'ble Supreme
Court in the case of SR Srinivasa v. S. Padmavathamma, (supra). In
paragraphs 38, 56 and 65 of the reported judgment, which were relied upon
by learned Counsel, the Hon'ble Court discussed how a Will ought to be
proved; what could be suspicious circumstances surrounding the execution
of a will; the onus of proving a Will; and the obligation of the propounder to
explain the suspicious circumstances, if any. These are general principles of
law. I reiterate, that I have not found any suspicious circumstance
surrounding the execution of the Will, in the present case.
57. It has also been argued on behalf of the Caveators that although the
Will is dated October 5, 1994, it surfaced for the first time in 2002 i.e., after
8 years and the original thereof was filed in Court only in 2009 i.e., 13 years
after the testator's death, This would also indicate that the Will is a
manufactured one.
I am unable to accept the aforesaid argument. While it is true that
delay in propounding a Will would create some suspicion, but such delay
has to be an inordinate and un-explained one. Generally speaking the longer
the delay, the stronger the suspicion. However, in the present case, the
propounder has offered satisfactory explanation. He has said that in the
criminal proceedings initiated against the three sons of the testator from the
first marriage of the testator, there could be no question of disclosing the
Will as the same was irrelevant for those proceedings. In any event the State
was prosecuting that matter. It was only when the propounders found that
the Caveators were disposing of and/or otherwise dealing with properties
belonging to the estate of Kalap Nath, that they found it necessary to apply
for probate of the Will. Initially the true copy of the Will which was kept in
the safe custody of Fox & Mandal, Solicitors, was filled with the probate
application since the original was not traceable at that time. Subsequently,
when the plaintiff found the original Will while going through the belongings
of his mother after her demise, the original Will was also filed in the present
proceedings. I find the explanation of the plaintiff to be quite acceptable.
58. Learned Advocate for the Caveators also argued that there are
inherent inconsistencies and contradictions in the evidence adduced by the
witnesses for the plaintiff. I have indicated some such alleged
inconsistencies above. I do not find the same to be of any appreciable
significance or such as would detract from the credibility of the concerned
witnesses.
59. Coming to the question of limitation, the Caveators relied on the
decision in the case of Kerala SEB v. T.P. Kunhaliumma, (supra). That
case concerned the provisions of the Indian Telegraph Act, 1885 and the
Indian Electricity Act, 1910. In that case the respondent before the Supreme
Court had filed a petition under Sections 10 and 16 (5) of the Indian
Telegraph Act, 1885 read with Section 51 of the Indian Electricity Act, 1910,
claiming compensation against the appellant Electricity Board for having cut
and removed some trees standing on the respondent's property for the
purpose of laying electric line. The Board assessed the compensation at Rs.
1619.90/-. The respondent filed a petition before the District Judge,
Tellicherry, under Section 16(3) of the Indian Telegraph Act, 1885, claiming
enhanced compensation. One of the issues that arose was whether or not
the petition was barred by time under Article 137 of the Schedule to the
Limitation Act, 1963. The District Judge held that the application was
governed by Article 137 and the petition having been filed beyond 3 years,
was barred by time. The respondent filed a revisional petition before the
Kerala High Court. The High Court set aside the order of the District Judge
and remanded the matter for fresh consideration. The matter having
ultimately reached the Supreme Court, it was held that Article 137 of the
1963 Limitation Act will apply to any petition or application filed under any
Act in a Civil Court. Article 137 is not confined to applications contemplated
by or under the Code of Civil Procedure.
60. The Caveators also referred to the decision of the Hon'ble Supreme
Court in the case of Krishan Kumar Sharma v. Rajesh Kumar Sharma,
(supra),. In that case the Delhi High Court held that Article 137 of the
Limitation Act, 1963 does not apply to probate proceedings. The matter
being carried to the Hon'ble Supreme Court, it was held that Article 137 is
applicable to applications for grant of probate or letters of administration.
61. Article 137 of the Schedule to the Limitation Act reads as follows:-
Description of suit Period of limitation Time from which
period begins to run
137. Any other Three Years When the right to
application for which no apply accrues.'
period of limitation is
provided elsewhere in
this division.
62. The Bombay High Court in the case of Vasudev Daulatram
Sadaranganj v. Sajni Prem Lalwani, reported at AIR 1983 BOM 268
(Supra), held that under Article 137, the right to apply necessarily need not
accrue on the date of the death of the deceased in case of an application for
probate or letters of administration. Such an application is for the Court's
permission to perform a legal duty created by a Will or for recognition as a
testamentary trustee and is a continuous right which can be exercised at
any time after the death of the deceased, as long as the right to do so
survives and the object of the trust exists or any part of the trust, if created,
remains to be executed. The right to apply would accrue when it becomes
necessary to apply which may not necessarily be within 3 years from the
date of the death of the testator. The paragraphs of the judgment of the
Bombay High Court in which the aforesaid observations were made, were
extracted by the Hon'ble Supreme Court in its judgment in the case of
Krishan Kumar Sharma v. Rajesh Kumar Sharma, (supra) .
63. In the case of S. Krishnaswami, E. Devaranjan & Ors. v. E.
Ramiah, Re, AIR 1991 MAD 214 (supra), at paragraph 24 of the reported
judgment, the Madras High Court noted as follows:-
"24. In a proceeding, or in other words, in an application filed for
grant of probate or letters of administration, no right is asserted
or claimed by the applicant. The applicant only seeks recognition
of the Court to perform a duty. Probate or letters of
Administration issued by a competent Court is conclusive proof of
the legal character throughout the world. An assessment of the
relevant provisions of the Indian Succession Act, 1925 does not
convey a meaning that by the proceedings filed for grant of
probate or letters of administration, no rights of the applicant are
settled or secured in the legal sense. The author of the testament
has cast the duty with regard to the administration of his estate,
and the applicant for probate or letters of administration only
seeks the permission of the Court to perform that duty. There is
only a seeking of recognition from the Court to perform the duty.
That duty is only moral and it is not legal. There is no law which
compels the applicant to file the proceedings for probate or letters
of administration. With a view to discharge the moral duty, the
applicant seeks recognition from the Court to perform the duty. It
will be legitimate to conclude that the proceedings filed for grant
of probate or letters of administration is not an action in law.
Hence, it is very difficult to and it will not be in order to construe
the proceedings for grant of probate or letters of administration as
applications coming within the meaning of an 'application'
under Art. 137 of the Limitation Act, 1963."
64. In Krishan Kumar Sharma, Supra, Hon'ble Supreme Court
observed that the nature of a petition for grant of probate or letters of
administration has been rightly described by the Madras High Court in E.
Devaranjan & Ors. v. E. Ramiah, Supra. However, the Madras High Court
was not corrected in observing that such an application is not covered by
Article 137 of the Schedule to the Limitation Act, in view of the decision of
the decision of the Supreme Court in the case of Kerala SEB (supra).
65. What emerges from the aforesaid discussion is that an application for
probate or letters of administration has to be made within three years from
the date on which the right to apply accrues. It may be noted that the
phrase is "right to apply accrues" and not "right to apply first accrues". In
my view, the right to apply for probate is a continuous right. If it could be
termed as a cause of action (which probably it cannot be), then I would say
that such cause of action arises afresh every moment. It is the executor's
right to seek court's permission to perform a duty cast on him by the
testator. It is the pious obligation of the executor to carry out the wishes of
the testator as reflected in his last Will. For this purpose the executor needs
the courts certificate that the Will is a valid and genuine one. The executor
need not rush to the Court and apply for probate immediately upon the
death of the testator. He may do so when the need to apply for probate
arises which may be beyond three years from the date of demise of the
testator.
66. Furthermore, in Kunvarjeet Singh Khandpur v. Kirandeep Kaur &
Ors., (Supra), at paragraph 15 of the reported judgment, the Hon'ble
Supreme Court held that conclusion (b) of the Bombay High Court in
paragraph 16 of the judgment in the case of Vasudev Daulatram
Sadaranganj (supra), is not correct but conclusion (c) is the correct
position of law. Paragraph 15 reads as follows:-
"15. Similarly reference was made to a decision of the Bombay High
Court's case in Vasudev Daulatram Sadarangani v Sajni Prem Lalwani
(AIR 1983 Bom.268). Para 16 reads as follows:
"16. Rejecting Mr. Dalapatrai's contention, I summarise my
conclusions thus:--
(a) under the Limitation Act no period is advisedly prescribed
within which an application for probate, letters of administration
or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply
necessarily accrues on the date of the death of the deceased, is
unwarranted;
(c) such an application is for the Court's permission to perform a
legal duty created by a Will or for recognition as a testamentary
trustee and is a continuous right which can be exercised any time
after the death of the deceased, as long as the right to do so
survives and the object of the trust exists or any part of the trust,
if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to
apply which may not necessarily be within 3 years form the date of
the deceased's death.
(e) delay beyond 3 years after the deceased's death would arouse
suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the
absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no
longer operates".
The conclusion 'b' is not correct while the conclusion 'c' is the
correct position of law."
67. Therefore, even as per the above decision of the Hon'ble Supreme
Court, the right to apply for probate accrues on the date of death of the
testator and is a continuous right which can be exercised at any time after
the death of the deceased.
68. In view of the aforesaid, I reject the contention of the Caveators that
the present probate proceedings are barred by limitation.
69. I have considered the evidence adduced by the parties as a whole. It is
trite law that the totality of the evidence on record will have to be looked into
in coming to a conclusion as to whether or not a Will has been duly proved
and the requirements of Section 61 and 63 of the Indian Succession Act
have been complied with. I am more than satisfied that the Will in question
is the last Will and testament of late Kalap Nath Jaiswal which he executed
voluntarily and in sound state of mind and health. It is a rational Will and
makes complete sense. The testator's relationship with the branch of his
first wife was admittedly acrimonious as his clear from the evidence on
record.
70. In H. Venkatachala Iyengar v. B. N. Thimmajamma & Ors., AIR
1959 SC 443, which both the sides relied on, the Apex Court observed,
inter alia, as follows:-
"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.
Hinkinson, (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 covering truth even in such cases the
judicial mind must always be open though vigilant, cautious and
circumspect."
71. A certain degree of solemnity attaches to a Will by reason of the fact
that it contains the last wish of the testator as to how his properties will
devolve upon his departure from this world and also because by the very
nature of the document, the testator cannot be called as a witness to prove
the Will. In my opinion, it is the solemn duty of the Probate Court to try and
give effect to the last desire of the testator unless the same becomes
impossible for the reasons discussed above. Of course, the Probate Court is
a Court of conscience and unless its conscience is satisfied that a Will has
been executed voluntarily by the testator following the requirements of law
with full alertness of mind, without undue influence and without being a
victim of fraud, probate will not be granted. Such satisfaction will have to
come from the entire conspectus of a particular case as is revealed by the
pleadings and evidence on record. The law is not, as I understand, that a
Will has to be proved with mathematical precision.
72. I am satisfied that the Will in question was validly executed in
accordance with law by Kalap Nath and it is his last Will. Whether by their
pleadings or by their evidence, the defendants have not been able to
establish that Kalap Nath lacked the mental capacity to execute the Will. On
the contrary I am satisfied that Kalap Nath knew exactly what he was doing
by executing the Will. The Will was executed without any fraud or undue
influence being exercised on him. There were no suspicious circumstances
surrounding the execution of the Will.
1. In view of the aforesaid and taking a careful but realistic view of the
facts of the case and the evidence on record, I am satisfied that the Will in
question should be admitted to probate. Accordingly, there will be an order
in terms of prayer (c) of the probate petition, i.e., probate of the last Will and
testament dated October 5, 1994, executed by late Kalap Nath Jaiswal,
lately residing at no. 3B Hazi Zakaria Lane, 700 006, be granted to the
petitioner/plaintiff as the executor thereof. Costs of this suit incurred by the
plaintiff shall come out of the estate of the deceased. TS 13 of 2013 is
accordingly disposed of and the connected application if any, is also
disposed of.
73. Urgent certified copy of the judgment and order, if applied for be given
to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)
