Smt. Mousumi Roy Chowdhury vs Smt. Kanan Sarkar
2023 Latest Caselaw 1070 Cal

                                      1



                    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

                              FA 25 of 2011

                       Smt. Mousumi Roy Chowdhury
                                  Versus
                            Smt. Kanan Sarkar

For the Appellant             : Mr. Shohini Chakrabarty, Adv.
                                Mr. Intikhab Alam Mira, Adv.

For the Respondent            : Mr. Gopal Chandra Ghosh, Adv.

Mr. Dhananjay Nayak, Adv.

For the Added Respondent : Mr. Bhaskar Ghosh, Sr. Adv., Mr. Sanjay Mukherjee, Adv.

Mr. Supratim Dhar, Adv.

Ms. Madhu Priya, Adv.

Hearing concluded on          : 1st February, 2023

Judgment Dated                : 9th February, 2023

Soumen Sen, J: The appeal is directed against the judgment and

order dated 22nd June, 2010 in revocation case no.1 of 2002 passed by the

learned Addl. District Judge, Alipore, 24th Paraganas (South). The revocation

application was allowed on the ground of non-citation of one Kanan Sarkar.

The learned trial Court held that Kanan Sarkar is the "only legally married

wife" of the deceased Anil Sarkar @ Anil Chandra Sarkar. The probate was

revoked also on the ground that the appellant has failed to prove the

"genuinity of the Will".

This order is under challenged.

The identity of the testator as Anil Sarkar or Anil Chandra Sarkar,

mis-description of some properties in the Will and the status of Kanan and

Meena in relation to Anil Chandra Sarkar alias Anil Sarkar and the

circumstances under which the Will was executed by Anil Sarkar in relation

to properties which belonged to Anil Chandra Sarkar are the issues raised in

connection with revocation of the Will alleged to have been executed by Anil

Sarkar.

The trial court decided the issues in favour of Kanan and allowed the

application for revocation of the grant of probate.

The essential dispute is whether Anil Sarkar and Anil Chandra Sarkar

is one and the same person and consequent upon a finding to that effect the

relationship of Kanan, Meena and Mousumi vis-à-vis the true identity of Anil

need to be assessed to the extent necessary in determining the issues raised

in the revocation application.

The trial court in holding that Kanan was entitled to citation has also

arrived at a finding that the Will is not genuine.

Briefly stated, Mousumi Roy Chowdhury claiming herself, to be the

daughter of one Anil Sarkar, has filed an application for grant of probate

wherein she has stated that her father Anil Sarkar died leaving behind an

alleged Will dated 23rd February, 1998 bequeathing his properties in favour

of his wife Meena Sarkar. It is stated that the testator, at the time of his

death, was survived by his only daughter Mousumi and his wife Meena. On

receiving the application the probate Court on 7th March, 2001 while

accepting the highest stamp duty paid by the respondent executrix directed

publication of the citation in the newspaper and fixed 12th April, 2001 for

filing the newspaper publication. The prayer for publication was allowed on

the basis of the petition filed by Mousumi. The citation was published in the

Bengali Newspaper "Aajkal". On 12th April, 2001 the newspaper publication

was taken on record and the trial Court fixed 30th April, 2001 for order. The

matter was ultimately taken up for consideration on 22nd June, 2001.

Mousumi and one of the attesting witnesses Pradip Kumar Mistri were

examined. The original of the alleged Will was produced. The Will was

proved by the attesting witnesses and thereafter probate was granted on

that day i.e. 22nd June, 2001. The stamp duty was paid on 25th June, 2001

and the probate was signed by the learned District Deligate, Alipore on 25th

June, 2001 requiring Mousumi to file inventory within six month of vendor

account. Mousumi, however, did not file inventory.

In the meantime on or about 2nd January, 2002 Kanan Sarkar filed an

application for revocation of the grant of probate.

The basis of the application was non-citation and forgery.

Kanan claimed herself to be the wife of one Anil Chandra Sarkar. In

the application it is stated that Anil Chandra Sarkar died issueless on 14th

March, 1998 leaving behind his wife Kanan. Anil Chandra Sarkar was

always known and identified as Anil Chandra Sarkar and the description of

Anil Sarkar in the alleged Will is an incorrect misleading description of the

identity of Anil Chandra Sarkar. Anil Sarkar and Anil Chandra Sarkar are

not one and the same person. Anil Chandra Sarkar is one of the three sons

of Haranath Sarkar who died intestate on 25th December, 1955 leaving

behind three sons and two daughters. Gour Chandra Sarkar and Bholanath

Sarkar are the other two sons of Haranath Sarkar. Both of them died

intestate on 11th March, 1964 and 5th January, 1999 respectively leaving

behind their legal heirs and representatives. The heirs of Haranath Sarkar

in order to effect partition of the properties situated in Mouza Andharmanik

and Mouza Ebrahimpur described in revocation application, divided and

demarcated their respective portions by executing and registering two

separate deeds of partition. On the basis of the said partition deeds Kanan

had mutated her name in the record of rights and in possession of the

properties in question as absolute owner. Kanan became aware of the claim

made by Mousumi when a proceeding was initiated by Mousumi under

Section 144(2) of Cr.P.C. against one Ratan Kumar Sarkar and Raman

Kumar Sarkar near relations of Kanan in connection with the property in

possession of Kanan. Kanan alleged that in the application filed under

Section 144(2) Cr.P.C. Mousumi claiming herself to be the daughter of one

Anil Sarkar made a claim in respect of the properties by virtue of a probate

of an alleged Will executed by Anil Sarkar. Kanan claimed that Anil was

suffering from protracted illness and he became completely disabled. He

was completely bed ridden and was unable to move and write. Due to his

protracted illness his mental faculty and capacity deteriorated Kanan

claimed to have a good relationship with his husband till his death. Kanan

disputed the Will as genuine. Kanan claimed that the alleged Will might

have been obtained fraudulently incorporating the properties of Anil

Chandra Sarkar who was never known or identified at any point of time as

Anil Sarkar.

The revocation proceeding was contested by Mousumi. Mousumi in

denying the allegations made against her and her mother has stated that

there are anomalies in describing the legal status of Kanan in relation to

Anil Chandra Sarkar. Mousumi was not aware of any partition in respect of

property left by Haranath or her father Anil Sarkar. Kanan wanted to grab

the properties under the guise of legally married wife of Anil. She has no

locus to mutate her name in the record of rights. Anil was physically fit and

mentally alert at the time of execution of the Will. The Will was executed in

presence of two witnesses. One of the attesting witnesses have duly proved

the execution of the Will of Anil.

On the basis of the pleadings the learned trial court framed the five

issues for consideration. The issues essentially are:

i) Whether non citation of the petitioner in the proceeding of probate case fatal since Kanon claims herself to be the only legal heir and inherited the property left by Anil Chandra Sarkar.

ii) Whether the said Will was executed by Anil Chandra Sarkar or not or the said Anil Sarkar and Anil Chandra Sarkar is the same person?

iii) Whether the probate was obtained by means of an untrue allegation of a fact or the Will of which probate was obtained was forged?

iv) Whether the probate was obtained fraudulently by making a false suggestion or by concealing something material to the case?

v) Whether the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of law?

Before the learned trial court Kanan in order to prove that she is the

real and only wife of Anil Chandra Sarkar has examined herself and three

other witnesses one of whom claimed himself to be the priest who has

performed their marriage rituals.

Kanailal Chakraborty deposed as PW3 stated in his evidence that he

was a priest for the bride and the marriage of Kanan was performed

according to Hindu rites and rituals.

Bholanath Dhali was examined as PW4. He claimed to be the match

maker of the marriage. In his evidence he has stated that Kanan married

Anil in the year 1964.

Apart from such oral evidence Kanan in order to prove her legal

relationship with Anil as wife has produced RS record of rights marked as

Exbt.1 series, LR record of rights marked as Exbt.2 series, death certificate

of Haranath Sarkar marked as Exbt.3, death certificate of Anil Chandra

Sarkar marked as Exbt.3(a), death certificate of Bhola Nath Sarkar marked

as Exbt. 3(b), death certificate of Gour Chandra Sarkar marked as Exbt.

3(c), the registered deed dated 25.09.1936 between Haranath Sarkar and

Jadavpur Estate marked as Exbt. X for identification, deed of family

settlement dated 04.11.1999 marked as Exbt.X(I) and deed of family

settlement dated 17.05.2001 marked as Exbt.X(II). All these documents

would disclose the identity of the person as "Anil Chandra Sarkar" with his

residential address as Andhar Manik. Kanan in referring to the aforesaid

documents has categorically stated that in all such public and private

record and documents Anil Chandra Sarkar was described and identified as

"Anil Chandra Sarkar".

The specific case of Kanan before the trial court was that she was

married in the year 1964 prior to any alleged marriage with Meena Sarkar,

in the year 1972 and registered on 11th March, 1998 prior to three days

before death of Anil Chandra Sarkar i.e. 14th March, 1998. Kanan has

disputed the existence of any person by the name of Meena Sarkar. It was

stated that one Mina Chatterjee has been wrongly stated to be Smt. Mina

Sarkar. She was deserted by her husband. In or about 1977 Mina

Chattterjee was brought to Andhar Manik by Bholanath Sarkar who

happened to be Kanan's "Mejo Bhasur" (second elder brother of Anil) in

order to look after his ailing mother as a maid servant and since then she

used to reside there in a thatched house situated at the corner of the

premises until the death of her mother-in-law in 1985. After her death she

was relieved of her duty.

Since the date of her marriage on 9th May, 1964 till closure of Bengal

Lamp Company, 1976 she used to reside with her husband Anil Chandra

Sarkar at his Jadavpur residence at premises no.18, Central Road, Kolkata-

700 002 (formerly known as 51/1 Central Road, Kolkata - 700 032).

Thereafter, on and from 1976 and till the death of Anil Chandra Sarkar they

used to reside together at village Andher Manik P.O. Andhar Manik, P.S.

Bishnupur, District; 24-Parganas (South), as husband and wife.

Kanan became aware of the probate from a proceeding initiated by

Mina Chatterjee under Section 144(2) Cr.P.C. as a concubine of Anil

Chandra Sarkar. Mina Chatterjee who asserted to be Meena Sarkar does not

reside in village Andher Manik at all. The elder brother of Anil died in the

year 1975. The properties claimed by Mina Chatterjee as her own had never

belonged to her and are the properties allotted to Kanan by virtue of the

deed of partition dated 14th December, 1998. In the said partition deed the

name of Anil Chandra Sarkar was mentioned as the husband of Kanan.

There is misdescription in the properties in the Will. Out of 18 Dag numbers

mentioned in the Will the lands appertaining to Dag number 3418, 3419

and 3240 belonged to one Nanilal Kayal and Others and Dag number 3759

has no existence. During her cross-examination she has specifically stated

that Anil Sarkar was not related to her in any way. There is no proof that the

testator of the Will, namely, Anil Sarkar had married Kanan. She had

referred to the name of the persons who have witnessed her marriage to Anil

Chandra Sarkar. She had also relied upon two deed of partition to establish

her identity and relation with Anil Chandra Sarkar. She has specifically

stated that her husband was admitted at the M.R. Bangur Hospital on 11th

March, 1998 at 11p.m. in the night and died on 14th March, 1998.

Kanan denied that Tinkari Roychowdhury, husband of Mousumi

admitted Anil to the hospital.

Smt. Chabi Sarkar, wife of Late. Gour Chandra Sarkar, brother of Anil

Chandra Sarkar, has deposed as PW-2 she has stated in her evidence that

Kanan Sarkar was the wife of Anil Chandra Sarkar. Anil Chandra Sarkar

was issueless. Meena Sarkar is not the wife of Anil Chandra Sarkar and

Mousumi Sarkar is also not the daughter of Anil Chandra Sarkar. Chabi

Sarkar specifically stated that Kanan is the wife of Anil Chandra Sarkar.

Anil Chandra Sarkar was the youngest of the three sons of Haranath

Sarkar. She has stated that she was present at the said marriage and had

witnessed the marriage. All the three sister-in-law used to stay together.

Anil and Kanan stayed as husband and wife since their marriage at Andhar

Manik. Before Anil Chandra Sarkar was admitted in the M.R. Bangur

Hospital he was almost bed ridden. He was admitted to the nursing home

by the local people along with Kanan on 14th March, 1998. He died due to

cardiac failure. He was cremated at Kaoratola Mahasasan Crematorium and

the last rite was performed by the eldest son of Chabi namely Ratan Kumar

Sarkar. At that time Kanan was with Chabi at the village residential house.

She denied existence of Mousumi or Meena Sarkar. It was stated that after

the death of Anil Chandra Sarkar his wife Kanan had left for her paternal

house in order to attend to her ailing none-generian mother. She used to

come on and off to her matrimonial home and at the relevant time she was

residing with Chabi as the house in which Kanan used to reside was in a

dilapidated condition.

Before the learned trial court it was submitted that the sale deed

registered on 8th September, 1985 before the Addl. District Sub-Registrar ,

Bishnupur, South 24 Paraganas during the lifetime of Anil Chandra Sarkar

would show that Anil Chandra Sarkar is the son of late Haranath Sarkar

and Anil Chandra Sarkar sold his property to one Subrata Mondal. Anil

Chandra Sarkar himself signed his name in the document as Anil Chandra

Sarkar. Both the witness to the marriage certificate and the alleged Will are

same persons and apart from the said marriage certificate, no other

documents were produced to show that Mina Sarkar is the wife of Anil

Sarkar alias Anil Chandra Sarkar. In fact the marriage certificate mentions

Anil Sarkar as the husband of Mina Sarkar. It would establish that the

person named as a testator in the alleged Will as Anil Sarkar is not Anil

Chandra Sarkar and the said document was forged, manufactured and

fabricated to deprive Kanan the only married wife of Anil Chandra Sarkar

from the enjoyment of the properties.

Before the trial court Mousumi did not adduce any evidence. It was

argued on behalf of Mousumi that Mina Sarkar is the actual wife of Anil

Chandra Sarkar. The probate was obtained following due procedure and

there has been no suppression of fact. She denied the existence of Kanan

Sarkar. It was argued that Mina Sarkar is the actual wife of Anil Sarkar

alias Anil Chandra Sarkar and Mousuni is their only daughter.

On the basis of the evidence, pleadings and the arguments made on

behalf of the parties the learned trial court accepted the version of Kanan on

the basis of preponderance of probabilities. The learned trial court was of

the view that the oral and documentary evidence are greatly in favour of

Kanan claiming her right as wife of Anil in contrast to the claim of Mousumi

that her mother Meena is the legally married wife of Anil Chandra Sarkar.

The learned trial court has relied upon various documents exhibited

by Kanan to arrive at a finding that the real identity of the person is Anil

Chandra Sarkar and not Anil Sarkar. It was on the basis of the oral and

documentary evidence of strongly suggesting that Anil Chandra Sarkar is

the real person and Kanan is married to him it was held that Kanan was

entitled to citation. As a corollary the trial court held that the Will is forged.

The trial court on the basis of evidence overwhelmingly pointing out to

suspicious circumstances surrounding the making and execution of the Will

held the Will to be forged and not genuine.

Mousumi is aggrieved by the said judgment.

Miss Sohini Chakraborty, learned Counsel appearing on behalf of the

appellant has submitted that the trial court in a probate proceeding could

not have decided the marital status of her mother. In probate proceeding the

marital status of Kanan and Mina could not have been decided and settled.

The trial court disregarded the evidence of the probate proceeding where the

Will was proved in accordance with the provisions of the Indian Succession

Act, 1925.

Mrs. Chakroborty submits that in her cross-examination on 20th

February, 2006 Kanan has specifically stated that Anil Sarkar was not

related to her in any way. The death certificate marked as Exbt. 3(a) issued

on 11th April, 2002 has described the deceased as Anil Chandra Sarkar

although the date of death was 14th March, 1998 and the date of registration

of such death was also dated 14th March, 1998 which would show that the

said death certificate [Exbt. 3(a)] was not original.

Mrs. Chakraborty has referred to the ration card of Kanan to show

that after the death of Anil his name was inserted in the said document as

the husband of Kanan. Previously it refers the name of the father of Kanan

and the address mentioned in the said document would still show the home

address of her father. The insertion of the name of Anil after his death

clearly proves that the same was done intentionally to procure a document

to establish that Kanan was related to Anil.

It is submitted that the duplicate 'stay in' certificate issued by Bangur

Hospital would show that Anil Sarkar was admitted in the said Nursing

Home under the care of Shri Tinkari Roychowdhury with the address of

Tinkori where Anil was residing last. It proves that Anil was under the care

and supervision of Mousumi and her family contrary to the claim that Anil

was all along with Kanan till his death. The documents produced by Kanan

would further show that Anil Chandra Sarkar was also described as Anil

Sarkar in official document also and not always as Anil Chandra Sarkar as

claimed by Kanan. The fact that Kanan produced duplicate documents

instead of any original document regarding hospitalisation of Anil in M.R.

Bangur Hospital would further prove that Kanan was not present at the time

of death of Anil.

Mrs. Chakraborty has submitted that the identity of Anil Sarkar is

clearly established from the "stay in" certificate produced by Bangur

Hospital, Marriage Certificate of Anil with Mina, Votar Card of Kanan and

Information Slips as to pendency of legal proceedings. These evidence could

not be dislodged by Kanan in her evidence.

It is submitted that the Trial Court has decided the forgery of the Will

without any material produced before the learned Trial Judge as

foundational facts and evidence in arriving at the said conclusion were

absent.

In fact the Trial Court failed to appreciate the materials which are on

record in connection with the probate case which would clearly prove that

the appellant/executrix obtained probate after duly proving the Will in terms

of Section 63 of the Indian Succession Act.

Mrs. Chakraborty has submitted that the evidence of Kanailal and

Bholanath are hearsay. It is submitted that the evidence of Chabi that since

marriage of Kanan and Anil used to reside at Andhar Manik is in clear

contradiction to the statement made by Kanan in paragraph 89 and 90 of

her affidavit in chief where she has clearly stated that from her date of

marriage till closure of Bengal Lamp Company in 1976 she had stayed with

her husband at Jadavpur and on and from 1976 till the death of her

husband she stayed at Andhar Manik. The oral evidence of Kanan and other

witnesses do not conclusively establish her marriage with Anil. The oral

evidence are contradictory.

In fact such evidence were not relevant under Section 50 of the Indian

Evidence Act for the Court to form an opinion regarding relationship

between Anil and Kanan. The documentary evidences like Ration Card

produced by Kanan to prove her marriage shows that the same was all

obtained after death of Anil. In some documents like death certificate of Anil,

his name was subsequently changed as Anil Chandra by Kanan. The deed of

partition executed among the family members and Kanan after the death of

Anil, cannot be a proof of her marriage with Anil. On the other hand Kanan

produced an extract of the Hindu Marriage Register (Exhibit 7) which shows

that marriage between Mina and Anil dated 22nd April, 1972 which took

place at Santoshpur and was duly registered on 11th March, 1998. All these

facts and circumstances, in fact prove that Anil Babu before his death, to

protect the interest of Mina, his wife, got their marriage registered and

executed the Will in favour of Mina to save her from the greed of his brothers

and their family, who left no stones unturned to deny the Mina's right,

marital status and even damaged her reputation by calling her maid servant

of the house and setting up a stranger as his wife and even denied the

legitimacy of Mousumi.

Mrs. Chakraborty has submitted that the probate court in a

revocation application cannot decide the genuineness of the Will. Once a

probate court has come to a finding that the grant was made without citing

parties who ought to have been cited, the probate court is required to give

an opportunity to the executrix to prove the Will in accordance with law.

The executrix cannot be denied the opportunity to prove the Will afresh.

The denial of any such right would be contrary to law and denial of justice

to the executrix. In any event the trial court was required to consider the

evidence before the probate was granted. The trial court having failed to

consider such evidence has clearly erred in law in deciding the genuineness

of the Will as the Will was already proved in accordance with law under

Section 63(c) of the Indian Succession Act, 1925. It is submitted that defect

in the procedure even if accepted cannot invalidate a grant obtained in

accordance with Section 63(c) of the said Act.

Per contra Mr. Gopal Chandra Ghosh learned Counsel appearing on

behalf of Kanan has submitted that although Mousumi claimed to be the

daughter of Anil Chandra Sarkar and Meena Sarkar as her mother,

curiously neither Mousumi nor Meena had come forward and deposed in

support of their legal status and to prove the Will afresh. It is submitted

that it is a cardinal rule of evidence that the best evidence available should

be brought before the court to prove a fact or points in issue as held in

Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271. Mr.

Ghosh submits that under the facts and circumstances of the case the

obvious question that would arise in the mind of the court is "why would the

defence not lead the best evidence available to establish its case?"

Mr. Ghosh has referred to Section 114 illustration (g) of the Indian

Evidence Act to argue that in absence of any evidence being adduced by

Mousumi or Meena in support of their legal status and reluctance to give

evidence to prove the solemnity attached to the execution of the Will an

adverse inference is required be drawn against them. It is submitted that

death certificate furnished in the Probate proceeding by the appellant does

not reflect the name of the father of Anil Sarkar whereas the death

certificate (Exbt. 3(a) and R.S. Porcha (Exbt. 1) exhibited by the respondent

would clearly show the name of the father of Anil Chandra Sarkar. It is

submitted that there are various discrepancies in the documents produced

by the appellant with regard to the identity and residential address of Anil

Chandra Sarkar. The learned Counsel has referred to "stay in" certificate of

M.R. Bangur Hospital which showed Anil Sarkar's address as 347 B

Baishnabghata (Exbt. 4) whereas the sale deed (Exbt.20) executed by Anil

Chandra Sarkar during his lifetime and his death certificate would show

that Anil Chandra Sarkar was the resident of Andhar Manik, South 24

Paraganas. It is argued that no one had come forward to depose that Anil

Sarkar was also known as Anil Chandra Sarkar and he had a daughter by

the name of Mousumi Roy Chowdhury. Mousumi did not produce either

birth certificate or school certificate showing Anil Sarkar @ Anil Chandra

Sarkar as her father.

The Will is shrouded in suspicious circumstances, as certain

properties are included in the Will which never belonged to Anil Chandra

Sarkar as also certain Dag Nos. are mentioned which are not even in

existence.

The judgment of the Trial court covers all the issues framed. The

learned Trial Judge has held with reasons that the (i) Will is not genuine; (ii)

Testator is not genuine; (iii) non-citation of the interested parties and thus

there is no scope for reopening of the case.

It is submitted that the probate was obtained by practicing fraud on

the basis of manufactured and fabricated documents. In fact, there is a

clear and deliberate statement that the testator had no other relations or

heirs other than Mousumi and Meena whereas the evidence on record would

reveal that Kanan Sarkar was the wife of Anil Chandra Sarkar and there are

other co-sharers of Anil Chandra Sarkar which appears even in the body of

the Will and they should have been cited. It is submitted that the funeral

rites performed by the nephew of Anil also could not be rebutted.

Mr. Ghosh further submitted that it is interesting to note that

although Meena claimed to have married Anil in the year 1972, the said

alleged marriage was registered only on 11th March, 1988 only three days

prior to the death of Anil on 14th March, 1988. Apart from the fact that

there is a serious dispute with regard to the identity of Anil Sarkar with Anil

Chandra Sarkar, Mousumi was expected and obliged to lead evidence in the

revocation proceedings with regard to the validity and execution of the Will

by removing all suspicious circumstances.

It is submitted that PW-1 in her cross-examination could not be

unbuckled from her position that she is the only married wife of Anil

Chandra Sarkar. Mere incorporation of the first name "Anil" in the Ration

card or voter ID in itself does not in any manner dilute her claim of being

the wife of Anil Chandra Sarkar. Marriage of Kanan Sarkar with Anil

Chandra Sarkar stands proved. Therefore the claim of executrix that her

mother Mina Sarkar married some Anil Sarkar @ Anil Chandra Sarkar and

her claim that Mina Sarkar is the only legally married wife cannot be

sustained. In any event, since the marriage of Kanan has been proved in

prior point in time (1964) to the alleged claim of marriage by Mina (1972) in

such circumstances, the entire edifice of claim of executrix falls flat.

During her cross-examination, PW-1 categorically proved the

registered deed of partition wherein she had been shown to be the wife of

Anil Chandra Sarkar. PW-1 further stated that her elder Chabbi Jaa would

depose and she would bring witnesses to prove her marriage which she had

done and in absence of documentary evidence to substantiate her marriage,

the oral evidences of PW2, PW3 and PW4 become very vital and relevant

under Section 50 of the Indian Evidence Act. All these witnesses faced cross

examination and their deposition goes on to prove that Kanan is the wife of

Anil Chandra Sarkar. All the said witnesses are now dead.

It is highly suspicious that Anil Chandra Sarkar would sign a

document as vital as a Will as "Anil Sarkar" and not "Anil Chandra Sarkar,"

which was his full name. Mere glance at the signatures appended in the

WILL having signature of "Anil Sarkar" and the Exhibit 20 bearing signature

of "Anil Chandra Sarkar" would reveal that the signatures are of different

persons and an attempt to make it look similar.

The Probate application contains several misstatements based upon

WILL like being the "son of second wife of Haranath" - which is not correct

and Anil Chandra Sarkar could not have claimed that in his proper frame of

mind, if he himself made the WILL. Misstatements are galore as the

properties of third parties having no connection with Anil Chandra Sarkar

were included. If real Anil Chandra Sarkar made the Will, he would not

have committed such serious mistakes.

In the face of such overwhelming evidence on record corroborating

and uncontroverted in nature, the Learned Trial Court rightly held that

Kanan Sarkar is the wife of Anil Chandra Sarkar and Mina Sarkar cannot be

considered to be the wife of Anil Chandra Sarkar. The conclusion of the trial

court is in view of the specific claim of executrix that the Will executed by

Anil Chandra Sarkar is perfect and in order since it was benefitting wife and

daughter of Anil Sarkar. Therefore, the argument made on behalf of the

Appellant that the learned Trial Court could not have given a declaration as

to the marriage of Anil Chandra Sarkar is not correct. It is submitted that

the learned trial Court has only declared that the probate granted by the

district delegate is not in order and the same is required to be revoked. The

observation of learned trial court as regards the status of Kanan and Mina is

in the course of arriving at the conclusion about the revocability of the

probate granted to the alleged Will. The said observation cannot prevent

Mousumi or Meena to claim a proper declaration through a different

proceeding like paternity suit.

Mr. Ghosh has also submitted that it is important to take into

consideration that the relatives of Anil Chandra Sarkar would not

unnecessarily give recognition to Kanan as the legally married wife of Anil

Chandra Sarkar and would agree to partition the property, giving thereby

Kanan her share which ultimately Kanan could sell accordingly to her wish.

Mr. Ghosh submits that judicial notice of this fact is required to be taken

into consideration as the family of Anil Chandra Sarkar namely his sister-in-

law, nephew and niece all have recognised Kanan as the wife of Anil

Chandra Sarkar and even ensure that Kanan gets her due share in the

property.

It is submitted that the appellant had claimed Anil Sarkar and Anil

Chandra Sarkar are one and the same person. The burden of proof lies on

the appellant to establish such identity. However, neither any question was

put to any of the petitioner witnesses nor any evidence was adduced by the

appellant to establish her contention.

Since all the original documents have come from PW1, in the form of

death certificates, deeds of conveyance and all these documents remain

uncontroverted throughout till now, the evidence adduced by PW1 is of

much higher and greater significance. Even if for a moment, it is accepted

that Kanan is not the wife of Anil Chandra Sarkar, and hence not cited, still

there is no reason for not citing the brothers of Anil Chandra Sarkar.

Mr. Ghosh submits that there are three important factors that the

probate court is required to consider in the matter of grant. They are:

(a) 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

(b) 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, and

(c) 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 other words, the onus on the

propounder can be taken to be discharged on proof of the essential facts

indicated herein. [1999(1) CHN 35 Rama Dutta & Ors. Vs. Atanu Dutta

Para-43, 46 and 47; FA 42 of 2014 Smt. Moyna Bhattacharjee vs. Sri

Ashim Kumar Bhattacharjee & Ors. on 5th September 2022].

It is submitted that when a Will is allegedly shrouded in suspicion, its

proof ceases to be a simple lis between the plaintiff and the defendant. What

generally is an adversarial proceeding, becomes in such cases, a matter of

the Court's conscience and the true question which arises for consideration

is, whether, the evidence led in by the propounder of the Will is such as

would satisfy the conscience of the Court and the Will was duly executed by

the testator. 1977(1) SCC 369 (Jaswant Kaur Vs. Amrit Kaur & Ors.)

paragraph 9; 2008(7) SCC 695 (Anil Kak Vs. Sharada Raje)

Mr. Bhaskar Ghosh, the learned Senior Advocate representing the

transferees from Kanan has supplemented the argument of Mr. Gopal

Chandra Ghosh, Advocate by emphasising that the appellant has not put

her case in cross-examination to any of the witnesses of the original

respondent Kanan nor in respect of clear assertions made by Kanan with

regard to non-citation, relationship between Kanan and Anil and

genuineness of the alleged Will.

Mr. Ghosh submits that a party is obliged to put her case in cross-

examination to the witness of the opposite party and is an essential

requirement and not an empty formality or a matter of procedure. In

absence of any cross-examination on the aforesaid issues the statement of

Kanan and other witnesses on behalf of the original respondent has to be

accepted, in view of the decision of the Hon'ble Supreme Court in

Muddasani Venkata Narsaiah (D) Th. Lrs. Vs. Muddasani Sarojana

reported at 2016(12) SCC 288 (paragraph 15).

Mr. Ghosh has argued that the contention raised on behalf of the

appellant that an opportunity is required to be given to the appellant to

prove the Will afresh is untenable. It is submitted that in the revocation

proceeding the court can always consider the genuineness and proper

execution of the alleged Will. In fact, our attention is drawn to the issues

settled by the learned trial Judge in the revocation application where the

validity of the Will was put in question. It is submitted that once the parties

are aware of the nature of the disputes and the issues involved in a lis have

with their eyes wide open have participated in the trial and adduced

evidence in this regard, it would no more be opened for a party to raise an

issue of jurisdiction unless there is an inherent lack of jurisdiction. The

probate court in fact has the jurisdiction to decide the said issue and the

said issue has been decided on evidence. Kanan in her application for

revocation has specifically raised the issue of genuineness and validity of the

Will and she along with the other witnesses were able to establish that the

Will is forged, fabricated and manufactured. On such circumstances there

is no requirement to remand the matter for proving the Will as argued on

behalf of the appellant.

Mr. Ghosh has submitted that by reason of long passage of time most

of the witnesses are dead and unavailable and it would not be in the interest

of justice to remand the matter for retrial to decide the probate proceeding

afresh. Mr. Ghosh submits that in a similar situation the Division Bench of

this Court in Rama Dutta & Ors. v. Atanu Dutta reported at 1999(1) CHN

35; 1998 SCC Online Cal 253 had declined to remand the matter for fresh

consideration and decided the genuineness of the Will on the basis of the

evidence on record. Mr. Ghosh has further submitted that remanding the

matter at this stage to the trial Court would result in another round of

litigation that needs to be avoided in view of the decision of the Hon'ble

Supreme Court in K. Krishna Reddy v. Special Deputy Collector reported

in AIR 1988 SC 163 (paragraph 12). In a situation like this where the

appellant did not avail the opportunity to lead evidence remanding the

matter would give an undeserving lease of life of the lis in a situation as

observed by the Hon'ble Supreme Court in P. Purushottam Reddy & Anr.

v. Pratap Steels Ltd. reported in 2002(2) SCC 686 (paragraph 10).

Mr. Ghosh submits that in a revocation application where there is a

serious doubt with regard to the execution of the Will and where there is "a

mystery or a puzzle, the probate court can ask for clarification from the

propounder" per Rama Dutta (supra) and in such a situation the probate

court will be required to consider the matter afresh which would require the

propounder to lead fresh evidence to remove such suspicion mystery. Mr.

Ghosh has relied upon the paragraph 25 and 26 of the said report which

read:

"25. In a situation like this, where there is a mystery or a puzzle, the probate court asks for the clarification from the propounder. There are three important points for the probate court to consider in the matter of a grant. The first is the due execution and attestation of the Will. The second is the testamentary capacity and mental health of the testator at the time of execution. The third is the free agency of the testator, i.e. whether the Will was truly the testator's Will and testament or was it somebody else's Will which the testator was making out as his own.

26. Where there is mystery or suspicion pointing towards the absence of any of these factors, viz. Execution capacity or own volition, the probate court asks for a clearing up of the mystery and a removal of suspicion. In our case the execution and attestation are beyond suspicion. Indeed Rabindra Nath Dutt tried to throw doubts on the signature of his father from the box but those doubts are in no way reasonable one. The probate court is not concerned with any and every doubt which might be thrown by the caveator, but only with reasonable ones."

Mr. Bhaskar Ghosh, Senior Advocate has strongly objected to any

remand and submitted that the appeal should be dismissed.

The issues raised has reminded me of the opening paragraph of the

judgment of Mr. Panna Lal Basu, First Addl. Judge, Dacca in Title Suit no.

38 of 1935 [Kumar Ramendra Narayan Roy v. Sreemati Bibhabati Devi, by

Rai Sahib Upendra Nath Ghosh, Manager, Court of Wards and Others]

decided on 24th August, 1936 which had beautifully and succinctly captured

the issues that had some relevance in this appeal as it concerns establishing

the identity of few persons. Although the facts are dissimilar but the

poignance attached to the relationship we need to decide I am inclined to

rely on the observation made by the learned Judge. It states:

"The principal question raised in the suit is a question of fact. It

respects the identity of an individual. It is not outside judicial

experience, nor is the suit unprecedented, but it is very extraordinary

and its gravity arises from the magnitude of the property at stake and

certain personal relations it affects."

It is true that the nature of the instant proceeding is different from

above and the facts are not identical but to the extent of the true identity of

Anil and his relationship with Kanan, Meena and Mousumi are concerned

such observations are relevant. It is also relevant having regard to the

nature and extent of property and personal relationship of Anil with Kanan,

Meena and Mousumi it would likely to affect.

The principal issue raised in this appeal is the declaration of status of

Kanan in the revocation proceeding as the only married wife of Anil Sarkar

@ Anil Chandra Sarkar.

The other issue was with regard to declaration that the Will was forged

as a consequence whereof the probate was revoked. The probate court is a

court of conscience. The executor is required to remove all doubts that are

likely to arise in a probate proceeding where the execution of the Will is

shrouded by suspicious circumstances. The evidence on record strongly

suggests that Kanan is the wife of Anil Chandra Sarkar. The oral and

documentary evidence clearly suggest that Anil Chandra Sarkar and not

Anil Sarkar is a co-sharer of a large number of properties along with his step

brothers.

Both Kanan and Chabi could recollect that one lady by the name of

Meena used to look after their ailing mother in law since 1977 till 1985 and

after her death she was relieved. It was, thus, not unnatural that Meena

would have required information of Anil which is capable of being used for

financial benefits. Curiously Meena did not come and depose in the

revocation proceeding although she could have done so in order to demolish

the evidence of Kanan and Chabi and she could have established her right

as wife of Anil Sarkar @ Anil Chandra Sarkar and could have given credence

to her marriage certificate. It was also essential to give legitimacy to

Mousumi. Kanan was not expected or required to lead any better or further

evidence to establish her legal status as wife of Anil Chandra Sarkar. Kanan

had never accepted that Anil Sarkar and Anil Chandra Sarkar could be or is

one and the same person. No suggestion was put to any of the witnesses in

the revocation application in this regard. In any event, when the respondent

was able to establish her legal relationship with Anil Chandra Sarkar the

onus is on Mousumi to establish her relationship with Anil Sarkar @ Anil

Chandra Sarkar. It is not a case where Kanan had failed to discharge her

burden of proof at least to claim citation and then put an assault on the

alleged Will. In a revocation application while deciding the legal requirement

of citation upon heirs who are likely to succeed in absence of the Will the

court is required to form an opinion as to whether the applicant seeking

revocation was able to make out a case for citation.

A Will is a commitment, desire, inclination and intention to bequeath

and dispose of properties in the future, in favour of the beneficiary.

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.

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.

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 circumstance, 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."

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.

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 Anil Kak v. Sharada Raje reported in (2008) 7 SCC 695 at

paragraphs 52, 53, 54 & 55 the Apex Court opined that the court is required

to adopt a rational approach and is furthermore required to satisfy its

conscience as existence of suspicious circumstances plays an important

role. The court observed:

"52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.

53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.

54. It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.

55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation." (emphasis supplied)

Similarly, in Leela Rajagopal and others v. Kamala Menon

Cocharan and others, 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 12 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)

In the instant case, it can be unhesitatingly concluded on the basis of

the preponderance of evidence that Kanan was entitled to a citation. It is

unbelievable that Meena would not be aware of the existence of Kanan or

her sister in laws or the other brothers of Anil Chandra Sarkar. Mousumi

and Mina possibly could not comprehend that there could be a challenge to

the probate by Kanan and have for reasons best known to them abstained

from giving any evidence which has proved fatal from them.

In fact, Mousumi in the probate application at paragraph 6 has spelt

her mother as "Smt. Meena Sarkar (Wife) P.O. and Vill.- Andhar Manik, P.S.

Bishnupur, Dist- 24 Parganas (South), whereas in the objection to the

revocation application she has described her mother as Mina". (emphasis

supplied). She also could not explain the difference in the spelling of the

name of her mother. In fact, she did not prove that Anil and Meena @ Mina

are her parents.

It is quite clear from the conduct of Meena and Mousumi that they did

not want to face cross-examination.

The probate Court in deciding a revocation application which is, inter

alia, based on non-citation is required to form an opinion on the status of

the applicant vis-à-vis the testator and in the instant case, the trial court

has precisely made the said exercise only for the purpose of ascertaining

whether Kanan ought to have been cited. The observation of the learned

Trial Judge that Kanan was the only legal married wife has to be read and

understood in the aforesaid context.

In any event, if we assume that Anil Sarkar and Anil Chandra Sarkar

are the same person then Anil could not have married Mina during the

subsistence of his earlier marriage. When there is a requirement of an

opinion as to the relationship of one person to another the evidence of

person who was the member of the family or otherwise has special means of

knowledge on the particular subject of relationship is relevant and

admissible evidence Per A.K. Sarkar, J., Dolgobinda Paricha Vs. Nimai

Charan Misra & Ors., reported in AIR 1959 SC 914.

Although both Mousumi and Mina had the opportunity to adduce

evidence in rebuttal they kept quiet and did not file any affidavit of evidence.

Moreover, it is established that some of the properties mentioned in the

alleged Will belonged to Anil Chandra Sarkar and not Anil Sarkar and in

respect of few Anil was not the owner.

This clearly raised a doubt with regard to the genuinity of the Will. The

conduct of Mousumi is not as innocent as it is tried to be projected and/or

portrayed in the appeal. If Mousumi was absolutely confident about the

authenticity and genuinity of the said Will and its due execution she could

have in the revocation proceeding prove the Will afresh in accordance with

Section 63 of the Indian Succession Act, 1925 and produce all relevant

documents and evidence to dispel the serious doubt and suspicious

circumstances raised by Kanan with regard to the genuineness of the Will.

There are misstatements in the Will with regard to relationship and

description of properties. Misstatement in the recitals in a Will is one of the

grounds on which probate can be revoked. [See. Bharpur Singh & Ors.

(supra)]

Interestingly, all the documents produced by Kanan to prove her

relationship with Anil Chandra Sarkar are much prior in point of time in

relation to the application for grant of probate and the dispute arose

between the parties.

The judgment of a court of probate is a judgment in rem and it binds

the world. A judgment in rem cannot be revoked or set aside by a judgment

which is only conclusive inter-parties therefore, even when there is

allegation of forgery, the proper remedy of party who wants revocation of a

grant of probate, is to apply to the probate court under Section 263 and not

by way of a civil suit.

In a revocation proceeding the genuinity of the Will can be questioned.

In Promode Kumar Roy v. Sephalika Dutta reported in AIR 1957

Cal 631 while dealing with the rights of persons who can apply for

revocation of the grant of probate on 'just cause' in paragraphs 14 and 24 it

is stated:

"14. The net position then is that an applicant for revocation must, in order to succeed, establish just cause within the meaning of Section 263 that is, as laid down in clauses (a) to (e) thereof, but even if just cause be established revocation may still be refused by the Court in the exercise of its discretion under that section, if the facts and circumstances of the particular case would warrant such refusal. In this view we shall consider first whether the appellant

has succeeded in proving any just cause for revocation in the present case and if we hold in the affirmative on that question we shall consier next whether, in the circumstances of the present case, an order for revocation should be made in the exercise of our discretion under the Section.

24. In the above view of the matter we are not prepared to hold that the absence of a specific challenge to the genuineness or validity of the Will or its existence would not by itself be fatal to the revocator's case and, in our opinion, an implied challenge would be quite sufficient from this point of view........"

The court also discussed the order that could be passed upon

revocation in paragraphs 26 and 27 which read:

"26. Prima facie the appellant is entitled to an order of revocation but the position will entirely Change if the respondent succeeds in proving the Will according to law. This she may be allowed to do in the present proceedings and the revocation order may be deferred until the Court considers the entire matter and decides whether the Will has been proved or not, or an order of revocation may be made forthwith and the Letters of Administration proceeding revived and restored to file or a fresh proceeding started therefore and the question of genuineness or validity of the Will or its existence, so far as it is relevant in the Probate Court, reconsidered in that proceeding in accordance with law. Either course has the sanction and support of precedent and authority and the Court is entitled to adopt the one or the other according to the circumstances before it. The Supreme Court in Anil Behari's case (J), did certainly lay down that the question of genuineness or validity of the Will or its existence is not outside the scope of revocation proceedings and may be considered by the revocation court in deriding whether the grant should be revoked or not in the exercise of its judicial discretion but, at the same time, it cannot be seriously argued -- at any rate, we are not convinced -- that their Lordships ever intended to rule that no order for revocation can be made under, the first three Clauses of Section 263 of the Indian Succession Act unless and until the question of genuineness and validity of the Will or its existence is decided against the grantee of the probate or letters of administration. Such a view would be productive of very serious inconvenience and grave complications and we do not find anything in the statute or in the pronouncement of their Lordships or in any principle, precedent or authority to compel its acceptance. In our view the law is this : (i) Where the attack on the Will forms the only ground or just cause for revocation, that must be considered by the revocation court, the onus being on the applicant for revocation to prove his case, (ii) Where the attack on the Will forms only one of the several grounds of just causes for revocation under Clauses (a) to (c) of the section, the other grounds should be considered first and if they or any of them be established and the Court finds no reason to refuse revocation in the exercise of its discretion, the propounder should be called upon to prove the Will, the onus of proof being cast upon him, and if he succeeds, the grant would stand;

otherwise it would be revoked. If the other grounds fail, the court should consider the ground of attack on the Will, placing the onus on the revocator. (iii) Where the just causes, pleaded in a particular case, under Clauses (a) to (c) do not comprise any attack on the Will, --and this is quite possible as we have already seen, -- the court may, in a proper case, consider the Question of genuineness or the validity of the Will or its existence for proper exercise of its discretion under the section but it is not obliged to do so in every case. Such consideration may be appropriate where the parties have adduced evidence on the point or where there are before the Court all relevant details of the necessary averments or where the question admits of decision on proved or admitted facts; otherwise, ordinarily, at least, the grant should be revoked in the absence of circumstances compelling refusal of revocation in the exercise of the court's judicial discretion, and the original proceeding for the grant should be revived and reopened or a fresh proceeding for the grant should be initiated and the will proved over again and the question of grant considered afresh in that proceeding.

27. Generally speaking, this will be a very convenient course having the undoubted support of plain commonsense and to the adoption of such a course in such cases law seems to present no obstacle. We do not, however propose to lay down any absolute rule in this matter and the court should be free to decide what course should be followed in a particular case. It should be guided by the facts and circumstances before it and should have power to make necessary adjustments to shorten litigation and avoid unnecessary delays." (emphasis supplied)

In Anil Bihari Ghosh v. Smt. Latika Bala Dassi & Ors., reported in

AIR 1955 SC 566 the Hon'ble Supreme Court in paragraph 15 discussed

the issue whether question of genuineness of Will can be raised in a

proceeding for revocation of grant of probate. It reads:

"14. It was vehemently argued at all stages of the case including the appeal before us that admittedly no citation was issued against Girish Chandra Ghosh aforesaid and as he was the person most interested in the testator's estate besides the legatees named in the will, the case came directly within the purview of clause (a) of the Explanation and Illustration (ii) quoted above. Girish Chandra Ghosh has been found by the Judge in the first instance to have been the person most vitally interested in the estate of the testator, whether he died intestate or leaving a will, in the events which had happened. The learned counsel for the contesting respondent suggested that it had not been found by the lower Appellate Court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator or that Charu

had murdered his adoptive father, though these matters had been assumed as facts. The courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu, if he was the murderer of the testator. On this question the courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence. However, for purposes of this case we shall assume in favour of the appellant that Charu was the murderer. The result of such an assumption is that Girish being the nearest reversioner to the estate of the testator, in case of intestacy after the death of the testator's widow in 1921; or in case of testamentary succession after the death of the two legatees, the testator's daughter-in-law and the nephew's wife aforesaid, and the failure of the legacy in favour of Charu on account of the murder would, in either event, have sufficient interest in the estate of the testator to entitle him to challenge the grant and to obtain revocation. But it is noteworthy that Girish who died in 1940, lived for about 19 years after the grant and took no steps in that direction. There may be some doubt as to Girish's knowledge of the probate proceedings and of the grant until 1933; but, in our opinion, there is ample evidence in support of the finding arrived at by the Court of Appeal below that Girish was aware of the grant at the latest in 1933 when Debi Prosad Mitter took proceedings to obtain a grant in his own favour also. In his application, as indicated above, he clearly stated that Charu was the murderer of his adoptive father and that Girish would succeed to his estate, which otherwise would have gone to Charu. If Girish had initiated proceedings for revocation of the grant and had insisted on the will being proved in his presence, the courts would have had no difficulty in having all the necessary evidence before it because the chief person who had played the most leading part in the execution of the will, in its registration and in its being admitted to probate, viz., Anil Nath Basu, was then alive and could have been examined. But for reasons not made clear in these proceedings Girish did not think it worth his while to take any steps in court to challenge the will or the grant. The estate was worth anything between five to forty lakhs, perhaps nearer five lakhs than forty lakhs.

Girish was a mere pensioner belonging to a middle class family. Either he did not think it worth his while to embark on a litigation with all its uncertainties or he had not the wherewithal to do so. The record as it stands does not satisfactorily explain the reasons why Girish refrained from making any attempts to get this large estate. If the will was not genuine or valid, Girish would take the reversionary estate at once

because the testator's widow died in 1921 and there was no other impediment in his way, except to get rid of the will. If, on the other hand, the will was genuine and valid, even then he would stand to gain all the interest which had been bequeathed in favour of Charu. The fact that Girish did not take advantage of his position as the nearest reversioner as on partial intestacy goes a long way to support the great probability of the will being valid and genuine, especially as it had been probated and because the appellant in his long petition for revoking the grant has not made the least suggestion casting any doubt on the genuineness and validity of the will. But it was argued on behalf of the appellant that that stage had not yet arrived and that it would be open to the appellant after obtaining an order of revocation of the grant to show that the will was either not genuine or had not been validity executed. Great reliance was placed in this connection on the judgment of a Division Bench of the Calcutta High Court in Mokshadayini Dasi v. Karnadhar Mandal (19 C.W.N. 1108) where the following observations have been made :-

"No question of the genuineness of the will arises for consideration till the Court has decided that the probate must be revoked on one or more of the grounds specified in section 50 of the Probate and Administration Act. The only matter for consideration at this stage is, whether the appellants have made out a just cause for revocation of the probate which was granted without notice to them : Brindaban v. Sureshwar 10 C.L.J. 263. The question of genuineness cannot be considered till a case for revocation is made out: Durgavati v. Sourabini I.L.R. 33 Cal. 1001."

The observations relied upon by the appellant were made with reference to the facts of that case and were not intended to be of universal application. As pointed at above, section 263 of the Act also contemplates a case for revocation based on the single ground that the will in respect of which the grant in question was obtained was as forged one. In such a case, whether or not the will was a forged one would be the only question to be canvassed before the court before the order of revocation could be made." (emphasis supplied)

The aforesaid authorities clearly show that in a revocation proceeding

the genuinity of the Will can be considered and adjudicated upon by the

probate court. In fact, in the revocation proceeding issues were framed

regarding the gunuinity of the Will in question. Pleadings were filed to that

effect. There were evasive denials in the objection filed by Mousumi. In the

instant case the pleadings are not at variance with the proof. The parties

were aware of the nature of the dispute and the evidence that the parties are

expected to lead in support of their respective claim. The plaintiffs have led

evidence to establish that the Will is required to be revoked for just cause.

In fact, "just cause" would also include the Will of which probate was

obtained was forged. We are in agreement with the submission made by Mr.

Bhaskar Ghosh, Senior Advocate that the reluctance of Mousumi or her

mother to give evidence on the relationship as well as valid execution of the

Will and failure to put their essential and material case in cross-examination

proved abortive and fatal. It affirms that all is not well with the execution of

the Will. The failure to put essential question in cross examination has been

succinctly stated in A.E.G. Carapiet v. A. Y. Derderian reported in AIR

1961 Cal 359 in paragraph 10 of the said judgment. Chief Justice

Mukherjee as His Lordship then was, in His Lordship's inimitable style had

summarised the principle in paragraph 10 it reads thus:

"10. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross examination is being made comes to give and lead evidence by producing witnesses. It has been stated on his authority of the House of Lords that this much a counsel is bound to do when cross examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case

made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated." (emphasis supplied)

The said judgment has also addressed the importance of sound mind

if it is raised as one of the issues in challenging the validity of the Will. The

test of a sound disposing mind would mean an appreciation of the fact that

the man is making a Will on appreciation of the contents of the Will and on

appreciation of the nature of the disposition that he is making having regard

to the claims of affection and family relationship and claims of the society or

community to which he belongs. It may not be a perfectly healthy and

perfect mind but the testator should have the mental capability and faculty

to appreciate the aforesaid fact. In the instant case, the testator died within

three days from the date of his admission and he was suffering from severe

respiratory problem. The marriage with Mina was registered on 11th March,

1988 only three days prior to the death of Anil. On the very same date, i.e.

11th March, 1988, Anil was admitted at M.R. Bangur at 11 p.m. The alleged

Will was dated 23rd February, 1998. The evidence of Kanan and Chabi was

that at the relevant time Anil was completely bed ridden. The law is well

settled that the burden of proof is on the propounder to prove that: i) the

Will has been voluntarily executed, ii) the testator had signed the Will and

put his signature on his free will having sound disposition of mind and iii)

upon understanding the nature and effect thereof.

Mousumi filed an objection in the revocation proceeding. However, she

did not give any evidence in support of her objection. It has proved fatal for

her. It discredits her case. On the basis of the evidence overwhelmingly

against Mousumi, the reluctance of Mousumi not to give evidence makes the

improbability of the Will and its genuinity more stronger.

On the basis of the evidence it can be safely concluded that Kanan

was able to raise suspicious circumstances surrounding the execution of the

Will. Kanan was able to discharge her burden of proof in establishing that

the identity of Anil as testator is doubtful if not an imposter and that it

contains incorrect recitals with regard to relation and properties of Anil

Chandra Sarkar and is a forged Will. We have noticed that Mousumi and

Meena had remained inexplicably silent and abstinence to lead evidence in

the said proceeding to disprove Kanan and establish the genuinity of Will.

There are sufficient material on record to excite the suspicion of the court

with regard to preparation and execution of the alleged Will.

In view of the fact that the issue of genuinity of the Will can be

decided in the revocation proceeding and has been decided in the said

proceeding and as the first appellate court we can decide the said issue on

the basis of the materials on record we find no reason to remand the matter

for a fresh adjudication on the "genuinity of the Will".

The appeal stands dismissed, however, there shall be no order as to

costs.

         I agree                                   (Soumen Sen, J.)



         (Uday Kumar, J.)