Smt. Pushpa Kejriwal & Ors vs Sri Om Prakash Kejriwal & Ors
2023 Latest Caselaw 1407 Cal

                     IN THE HIGH COURT AT CALCUTTA
                                 Civil Appellate Jurisdiction
                                    APPELLATE SIDE

Present:

The Hon'ble Justice Tapabrata Chakraborty
                       &
The Hon'ble Justice Raja Basu Chowdhury


                                   F.A. 167 of 2017

                              Smt. Pushpa Kejriwal & Ors.
                                     versus
                          Sri Om Prakash Kejriwal & Ors.



For the Appellants           :         Mr. Ratul Das,
                                       Mr. Sarbojit Mukherjee


For the Respondents          :         Mr. Pramod Kumar Drolia,

Ms. Deblina Lahiri, Mr. Mrinmoy Chatterjee, Ms. Teresa Chetri

Hearing is concluded on : 8th December, 2022

Judgment On : 24th February, 2023

Raja Basu Chowdhury, J.:

1. The present appeal has been preferred challenging the judgment

dated 31st January, 2017 passed by the Additional District

Judge, FTC-IV, Alipore, South 24-Parganas, in O.S. No. 01 of

2017, granting probate of the Will made and published by Uma

Sankar Kejriwal, in a contentious cause.

2. Shorn of unnecessary details the facts leading to filing of the

instant appeal are set out hereunder:

i) The Uma Sankar Kejriwal (hereinafter referred to as the

deceased) during his life time made and published a Will and

appointed Om Prakash Kejriwal, as the sole executor of the

said Will.

ii) The said Uma Sankar died on 5th July, 1999 leaving behind

and surviving the following natural heirs and

representatives:

    Sl.      Name & Address                                    Relationship

    No.

             Bal Krishna Kejriwal, 485, Rabindra Son
    01.
             Sarani, Calcutta-34.

             Om Prakash Kejriwal, 87/88, Jadu Son
    02.
             Colony, P.S. Behala, Calcutta-34.

             Sushila    Agarwal, W/o Sri Anand Daughter
    03.
             Swaroop       Agarwal,        C/o     Capital

             Electronics        P-161,       VIP       Road,

             Calcutta-54.

             Smt.      Sharda     Kumar,         W/o     Sri Daughter
    04.
             Virendra Kumar 271, Asian Games

             Village, New Delhi-49.

3. The said Om Prakash Kejriwal (hereinafter referred to as the

propounder), having survived the deceased, filed an application

for grant of probate of the aforesaid Will, claiming the same to be

the last Will and testament of the deceased.

4. The said application was accompanied by an affidavit of assets

affirmed by the propounder and an attesting witness's affidavit

affirmed by Uchhal Kumar Bhadra, stating that the deceased, in

the presence of Mr. B. L. Vyas, Barrister-at-law and in his

presence had executed the Will and that the said deceased at

the time of execution of the Will was "hale and hearty".

5. The aforesaid probate proceedings were contested by Bal

Krishna Kejriwal by filing written statement. In the written

statement filed by the Bal Krishna Kejriwal, the predecessor in

interest of the appellants, (hereinafter referred to as the

objector), claimed that the Will of which, the propounder was

seeking probate, was a product of coercion, fraud and undue

influence. There were suspicious circumstances surrounding the

Will. Apart from the aforesaid, the following defences were also

raised by the objector:

a) the alleged Will is undated;

b) the signatures of the witnesses made in the will do

not show that the alleged testator and the witnesses

have signed at a time in presence of each other;

c) the alleged Will is totally one sided in favour of

propounder and is unnatural;

d) no reason whatsoever has been assigned as to why

the testator deprived his other legal heirs and legal

representatives of their legitimate share in the assets

and property of the deceased;

e) the deceased wanted to make some alleged

provisions for his two daughters also, i.e., defendant

nos. 2 and 3 and in paragraph 10 of the alleged Will

depicts a picture of getting sometime in the alleged

Will, but it will appear that the propounder will also

share equally with the sisters and the amount to be

received by the defendants no. 2 and 3 is practically

nil;

f) all movable and immovable assets of the deceased

have been bequeathed to the plaintiff and his son,

depriving the other heirs absolutely;

g) in normal circumstances, no father will deprive his

other three children (all full-blooded to the plaintiff)

and bequeath everything to one child, the plaintiff

herein unless there are some threat or evil influence;

h) the affidavit sworn by one of the alleged attesting

witness Shri Uchhal Kumar Bhadra is false, and

fabricated and the manner of signature on the last

page of the Will by the said Uchhal Kumar Bhadra

abundantly shows that the said signatures were put

on the alleged Will subsequently. It is further

significant that while the address of said Uchhal

Kumar Bhadra appears in the Will annexed, there is

no address on the Xerox copy;

i) the other attesting witness Shri B. L. Vyas who had

been one of the closest friend and legal adviser of the

deceased denies having known or ever seen Shri

Uchhal Kumar Bhadra;

j) The statement made by Shri Uchhal Kumar Bhadra is

false and fabricated;

k) The deceased has made corrections in the draft copy

of the will in his own handwriting and that Mr Vyas

by incorporating the corrections had prepared a draft

will. Thus the will of which, the propounder was

seeking probate had been revoked;

6. Since the proceedings for grant of probate were contested, the

same was converted to a contentious cause and tried as a suit.

The learned Trial Judge on the basis of the pleadings of the

parties framed 6 several issues. In course of the aforesaid

proceedings, the propounder proved and exhibited the original

Will executed by the deceased including other documents.

7. The propounder also examined himself in support of his case.

8. The objector on the other hand examined himself as defendant

witness no. 1 as also the two daughters of the deceased and

exhibited documents.

9. The objector also introduced a photocopy of a draft Will of Uma

Shankar Kejriwal which, however, was not proved and was

marked for identification. The learned judge after scanning each

and every document including the affidavit of B. L. Vyas

concluded that one of the attesting witness, namely, Uchhal

Kumar Bhadra, who had been examined as attesting witness,

PW-2, had been able to prove that the deceased had signed the

Will in his presence and in presence of the other witness thereby

raising a strong presumption of its regularity.

10. The learned judge by the judgment impugned in this appeal,

held that there was a strong presumption of regularity and due

execution of the Will, concluded that the propounder had been

able to prove and explain due execution of the Will and that

there was no suspicious circumstances surrounding the Will

attached to the execution of the will, granted probate of the Will

executed by the deceased.

11. Being aggrieved, the instant appeal has been filed.

12. Mr. Das learned advocate representing the appellants has

strenuously argued that the propounder had failed to prove due

execution of the Will. By relying on an affidavit sworn by B. L.

Vyas, Barrister-at-law, it is contended that the deceased did not

execute the said Will in his presence and that when the said B.

L. Vyas put his signature on the Will as witness, there was no

signature of Uchhal Kumar Bhadra.

13. Mr. Das contends that the propounder had failed to present

both the attesting witnesses. Having thus failed to produce both

the attesting witnesses, the propounder had failed to explain the

suspicious circumstances surrounding the Will. By referring to

Exhibit-F, which is a deed of gift executed by the deceased, it

was contended that the deceased having already gifted the third

floor of his residential premises to the propounder, could not

have again bequeathed the said third floor to the propounder.

This according to him makes the Will unnatural. No reason had

also been provided by the deceased as to why his elder son had

been deprived. Ordinarily no man would deprive his own son

and daughters. The propounder has failed to explain the

aforesaid.

14. By referring to the examination of the propounder, he says that

the Will had been produced by the propounder from the almirah

of the deceased and the propounder was in control thereof. He

then refers to the examination-in-chief of the attesting witness,

Mr. Uchhal Kumar Bhadra, in particular, where the attesting

witness had said that "to the best of my recollection, it was

sometime in the latter part of 1991." Referring to the cross-

examination of the attesting witness, he submits that he had

contradicted himself and was not even certain as to when the

Will was executed and as such no credence can be given to the

deposition of the attesting witness.

15. He then refers to the affidavit of the other attesting witness, Mr.

B. L. Vyas affirmed before a notary public on 9th June, 2000, in

particular two paragraphs of the said affidavit wherein it is

recorded as follows:

"That some times in the year 1991, Sri Uma Shaknar Kejriwal produced before me in my chamber at No.38, Baranasi Ghosh Street, Calcutta-7, a document purported to be his will and testament duly signed by him for my attestation to his signatures. At his request, I attested his signatures on the said document and signed my names as an attesting witness. At the time, I attested the signatures of Sri Uma Shaknar Kejriwal, there were no signatures of any other attesting witness on the said document at all. The said document was undated."

16. By referring to the aforesaid affidavit, it is submitted that there

had been no due attestation of the signature of the deceased. By

further referring to the aforesaid affidavit, it is claimed that Mr.

B. L. Vyas in paragraph 5 thereof has claimed that the deceased

has expressed his desire to revoke his earlier Will. Mr. Das

submits that since Mr. Vyas had a direct contact with the

deceased, the existence of the subsequent Will cannot be

doubted. He says that the deceased had a change of heart, since

the relationship between the deceased and the propounder had

deteriorated, and it is for such reason the subsequent Will was

executed. He then relies on the photocopy of the Will which had

been introduced by the objector but the same had not been

exhibited and only marked as X for identification. By relying on

the aforesaid documents he submits that the propounder had

failed to prove due execution of the Will and failed to remove the

suspicious circumstances surrounding execution of the Will and

the grant of probate should be revoked.

17. Per contra, Mr. Drolia, learned advocate appearing on behalf of

the propounder submits that from the pleadings filed by the

objector it would be apparent that only the following objections

have been raised:

a. Will is undated;

                b. Signatures       of   the   witnesses   not   made   in
                   presence of each other;

c. Will is one sided in favour of propounder and is unnatural;

d. No reason to deprive other heirs to share of the assets of the deceased;

e. Provision made for two daughters but practically nil in the assets of the testator;

f. All moveable and immoveable assets of deceased bequeathed to the respondent no.1 and his son; g. Bequeath to the respondent no.1 is not natural; h. Affidavit sworn by the attesting witness is false and fabricated;

i. Both the attesting witnesses were not present at the time of execution of Will;

j. One Mr. B.L. Vyas, the other attesting witness has sworn an affidavit disclosing different fact.

18. He says despite the objector contending that the aforesaid Will

had been revoked by a subsequent Will, no such Will had been

produced. On the contrary, a xerox copy of a draft had been

produced which had also not been exhibited but had only been

marked 'X' for identification. The said document according to the

learned advocate representing the propounder, is not even in the

handwriting of the deceased. He says that the original Will had

been marked as Exhibit-1, while several letters written by the

deceased to the propunder had also been exhibited which are

marked Exhibit 3 series. By relying on such letters, it is

submitted that the aforesaid letters are proof of the fact that the

Will is not unnatural and the same explains why the objector

had been deprived by the deceased. He then submits that the

affidavit of B. L. Vyas relied on by the objector has no

evidentiary value as the said affidavit cannot be termed as

evidence as per the Indian Evidence Act. B. L. Vyas has never

come forward for being examined. No credence can be attached

to the same.

19. By referring to the document which was marked for

identification, it is submitted that as per such document, B. L.

Vyas had been bequeathed a flat on the terrace by the deceased.

By relying on such document, it is submitted that B. L. Vyas

had acted in collusion with the objector to affirm the affidavit on

9th June, 2000.

20. He says that the document marked for identification cannot be

termed as either a Will or as a draft Will. By further referring to

the cross-examination of the objector held on 2nd May, 2008, he

says that the objector had admitted that he had not introduced

any document to demonstrate that the Will in question had been

revoked by the deceased. He says that the purported document

which has been marked for identification has neither been

proved nor has the same been marked as exhibit.

21. He says it is not mandatory that both the attesting witnesses

should come forward to testify due execution of a Will. In

support of his aforesaid contention he places reliance on a

judgment delivered by the Hon'ble Supreme Court in the case of

Janaki Naraya Namdeo v. Narayan Namdeo, reported in

(2003) 2 SCC 91. He also places reliance on a judgment

delivered by the Orissa High Court in the case of Bishnupriya

Mohapatra and Others v. Bata Krushna Mohapatra and

Others, reported in AIR 1993 ORISSA 218, in support of his

contention that it is not necessary for the attesting witness to

certify that he had attested the document in presence of the

testator.

22. He says merely because the Will is undated, the same does not

become invalid and that there is no requirement in law that a

Will should be dated. In support of the aforesaid proposition he

places reliance on the judgment delivered in the case of Corbett

v. Newey and Others, reported in 3 W.L.R. 729 to 734(H).

23. He says that the propounder had discharged his onus and had

proved due execution of the Will, inter alia, including the mental

and physical capacity of the testator. By referring to the

depositions, he submits that the propounder had categorically

stated that the deceased had executed a deed of gift in favour of

the propounder in respect of the first floor, prior to execution of

the Will and in respect of the third floor, subsequent to

execution of the Will and that the deceased at the time of

execution of the Will was "hale and hearty" and was of sound

mind.

24. He says that once the propounder had discharged his onus as

aforesaid, it is for the objector to dislodge the presumption

which is raised, and it is for him to establish the circumstances,

to show suspicious circumstances surrounds the Will. In

support of the aforesaid contention, he places reliance on a

judgment delivered by the Hon'ble Supreme Court in the case of

Surendra Pal & Ors. v. Dr (MRS) Saraswati Arora & Anr.,

reported in AIR 1974 SC 1999. He then says that merely

because Mr. Das has submitted that natural heirs did not get

shares, the same does not necessarily mean that there is

suspicious circumstances surround the Will. In support of the

aforesaid proposition, he places reliance on the judgment

delivered by the Hon'ble Supreme Court in the case of Uma Devi

Nambiar & Ors. v. T.C. Sidhan (Died), reported in (2004)2

SCC 321.

25. He submits that mere intention to revoke the Will does not

tantamount to revocation of a Will, unless carried into effect in a

manner required by law. He says that the testator had never

executed any document so as to revoke his previous Will and as

such the Will has not been revoked. In support of the aforesaid

proposition, he place reliance on a judgment delivered by the

Hon'ble Supreme Court in the case of Anil Behari Ghosh v.

Smt. Latika Bala Dassi & Ors., reported in AIR 1955 S.C.

566. He has also places reliance on a judgment delivered by the

Hon'ble Supreme Court in the case of MRS HEM NOLINI JUDAH

(SINCE DECEASED) AND AFTER HER LEGAL

REPRESENTATIVE MRS MARLEAN WILKINSON -VERSUS-

MRS ISOLYNE SAROJBASHINI BOSE AND OTHERS, reported

in AIR 1962 SC 1471, inter alia, to contend that the Court

exercising testamentary jurisdiction is not concerned about the

title of the property bequeathed but only concerned with the

genuineness and due execution of the Will.

26. On the issue of execution of the deed of gift, it is submitted that

simply because the deceased had executed a Will, same does not

bar the deceased to deal with his property during his life time,

which forms subject matter of the Will. Dealing with the

property during the life time of the deceased, does not have the

effect of revoking the Will. In support of the aforesaid contention

he has placed reliance on a judgment delivered by the Hon'ble

Kerala High Court in the case of Sridevi Amma & Ors. v.

Venkitaparasurama Ayyan & Ors., reported in AIR 1960 Ker

1.

27. He submits that no case has been made out by the

appellants/objector warranting interference and the instant

appeal deserves to be dismissed with costs.

28. We have heard the learned advocates appearing for the

respective parties and have considered the pleadings, the

exhibits and all documents forming part of the record.

29. We find that the learned Judge on the basis of the pleadings of

the parties had framed the following issues :

"Issue:-

On the basis of the averments of both Sides following

issues are framed namely:-

a) Is the suit maintainable in its present form and

prayer?

b) Had the testator any Testamentary capacity to

execute this Will?

            c)         Is the WILL genuine?




           d)        Was    the    WILL       procured   under   suspicious

           circumstances?

           e)        Is the plaintiff entitled to get the probate of the

           Will?

f) To what relief, if any, is the plaintiff entitled?"

30. We also notice that propounder had examined himself and one

attesting witness and had exhibited the following documents in

support of his case:

a) Exhibit 1 (Original WILL).

b) Exhibit 2 (the original school leaving certificate of Uma

Shankar Kejriwal).

c) Exhibit 3, 3/1 to 3/15 (letter written by Uma Shankar

Kejriwal to the plaintiff).

d) Exhibit 4 (death certificate of Uma Shankar Kejriwal).

31. We also notice that the original defendants, including the

objector had examined themselves and had exhibited the

following documents:

           a)      Exhibit A one photograph

           b)      Exhibit B & B/1 two photographs

           c)      Exhibit C & C/1 two letters,

           d)      Exhibit D handing/taking over certificate of United

                   India Suppliers Limited,

           e)      Exhibit E certified copy of Form no. 32




           f)    Exhibit F certified copy of deed of gift.

           g)    Exhibit G photograph

And another Xerox copy of a will allegedly executed by

Uma Shankar Kejriwal has been produced by the

Defendants which has been marked as X for

identification.

32. We find from the Exhibit 1 that the Will is in fact undated. We

find that the learned judge had considered the effect of an

undated Will by referring to the treaties and has concluded that

an undated Will does not affect genuineness of such Will, when

such imperfection is explained by way of evidence. We find that

the propounder had produced the original school leaving

certificate of the deceased, which has been marked as Exhibit 2.

The date of birth of the deceased is mentioned as 2nd May, 1920.

From the oral testimony of the attesting witness, it appears that

the Will was executed sometimes in the year 1991, although Mr.

Das had attempted to impeach such testimony by, inter alia,

contending that the attesting witness could not identify the

exact date on which he had attested the Will, however, the entire

testimony of the attesting witness clearly indicates due

execution of the Will by the deceased. The contention of Mr. Das

that the undated Will had raised a suspicion, which has not

been removed is, thus, rejected.

33. Relying on an affidavit sworn by B. L. Vyas, Mr. Das has

strenuously argued that the propounder had failed to establish

that there had been due execution of the Will. Although the

affidavit of the other attesting witness had been produced, the

said witness had not come forward to prove his affidavit or to

dispute his signature in the Will.

34. Admittedly, none of the parties have produced any other Will

made and published by the deceased. Only a photocopy of a

document has been produced which has been marked 'X' for

identification. We find that it has been rightly contended by the

respondent that mere intention to execute a Will does not have

the effect of revoking the previous Will.

35. We also find that the Mr. Drolia has relied on a judgment

delivered by the Hon'ble Supreme Court reported in AIR 1955

SC 566 in the case of Anil Behari Ghosh (Supra) and another

judgment delivered by the Hon'ble Bombay High Court in the

case of Kaikhushru Jehangir v. Bai Bachubai Jehangir &

Others, reported in AIR 1951 Bom 339, inter alia, to contend,

mere intention to revoke does not have the effect of revoking the

Will.

36. We, thus, find that the aforesaid contention raised by the

appellants is not sustainable and is accordingly rejected.

37. We find that Mr. Das by relying on Exhibit F which is a certified

copy of Deed of gift has attempted to make out a case that the

deceased having gifted a part of the immovable property in

favour of the propounder had no occasion to execute a Will and

the same is unnatural and creates suspicion. We find that in

this context, the learned advocate representing the propounder

has rightly contended that in a probate proceedings the Court is

not concerned with the title of the property and in support

thereof he has relied on the judgment delivered by the Hon'ble

Supreme Court in the case of Mrs. Hem Nolini Judah (Since

Deceased) and after her legal representative Mr. Marlean

Wilkinson (Supra). The jurisdiction of the testamentary Court

does not concern the title to the property is no longer res integra.

We also find that the affidavit of B. L. Vyas could not have been

used as an evidence to either discredit the attesting witness or

to question due execution of the Will. The appellants did not

choose to produce B. L. Vyas for being examined. We find that

the learned Judge after discussing about the affidavit sworn by

B. L. Vyas has categorically concluded that such document

cannot be used to contradict the other attesting witness. He has

also concluded that the other attesting witness despite lengthy

cross-examination did not yield and make his testamentary

doubtful. We find that the learned judge has also rightly held

that it is not mandatory for propounder to call both the attesting

witnesses to prove the Will. In this context, it would be profitable

to refer to the judgment delivered by the Hon'ble Supreme Court

in the case of Janaki Narayan Nemdeo Kadam v. Narayan

Namdeo, reported in (2003) 2 SCC 91.

38. It is, therefore, clear that there is no requirement in law to

produce both the attesting witnesses. As such the propounder

cannot be faulted for having proved due execution of the Will by

producing only one attesting witness.

39. Although, it has been argued that no person would deprive his

sons and daughters and the very fact of depriving the objector

by the deceased makes the Will unnatural, we are not in

agreement of the same. We find that the testator in this last Will

has provided reasons why he had deprived the predecessor of

the appellants. We find that the objections raised by the learned

advocate have all been considered by the learned Trial Judge.

The exclusion of natural heir by the testator does not make the

Will unnatural nor does the same gives rise to suspicious

circumstances. The judgment delivered by the Hon'ble Supreme

Court in the case of Uma Devi Nambiar & Ors. v. T. C. Sidhan

(dead), reported in (2004) 2 SCC 321 as relied on by the

advocate representing the propounder, supports the above view.

40. As such we do not find the Will to be unnatural. We have also

independently considered the objections raised by the learned

advocate representing the appellants both on the aspect of due

execution of the Will as also on the question of suspicious

circumstances surrounding the Will. We must say that not only

the propounder had been able to prove due execution of the Will

but also had been able to remove the suspicious circumstances

surrounding a Will. As such the learned Court below had rightly

granted probate in favour of the propounder. We, thus, do not

find any reason to interfere with the grant of probate.

41. The appeal fails, the same is accordingly, dismissed.

42. Department is directed to send down the records at once.

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

44. Urgent certified copy of the aforesaid order if applied for be made

available to the parties on urgent basis upon compliance of

necessary formalities.

(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)