Arun Kumar Mullick & Another vs Debabrata Seal & Others
2023 Latest Caselaw 1700 Cal

                     IN THE HIGH COURT AT CALCUTTA
                                 Civil Appellate Jurisdiction
                                    APPELLATE SIDE

Present:

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


                                       FA 46 of 2019
                                            with
                     IA No.: CAN 1 of 2018 (Old No. CAN 6043 of 2018)

                               Arun Kumar Mullick & Another
                                         versus
                                  Debabrata Seal & Others



For the Appellants         :       Mr. Sourav Sen,
                                   Mr. Soumen Das.



Hearing is concluded on    :       24th February, 2023.



Judgment On                :       15th March, 2023.




Tapabrata Chakraborty, J.

1. The present appeal has been preferred challenging the judgment dated

27th March, 2018 passed by the learned 3rd Judge, City Civil Court at Calcutta

in O.C. Case No.22 of 2014 dismissing the application for grant of probate of

the Will made and published by one Chintamoni Mullick, in a contentious

cause.

2. The application for grant of probate accompanied by an affidavit of

assets was filed by Arun Kumar Mullick (in short, Arun) and by one Gour

Gopal Mullick (in short, Gour) being the appellants herein stating inter alia that

one Chintamoni Mullick (in short, Chintamoni) was the owner of the said

assets and prior to his death on 13th December, 2002, he voluntarily executed

a deed of Will on 11th December, 2002 and the same was notarized on the same

date. Claiming the said Will to be his last Will, Chintamoni settled his right,

title and interest in the assets in favour of Gour and Arun. The said Will was

executed by Chintamoni in presence of two attesting witnesses, namely, Sri

Samir Kumar Seal (in short, Samir), an advocate and Dr. Shyamal Kanti

Mullick (in short, Shyamal). Arun and Gour were appointed as the joint

executors. The said Will was written in Bengali language and was read over

and explained to Chintamoni and thereafter, he put his Left Thumb Impression

(in short, LTI) voluntarily in presence of the attesting witnesses. In the said

application it was also averred that Chintamoni, a Hindu bachelor, was

governed by the Hindu Succession Act, 1956 (in short, the 1956 Act). He

expired on 13th December, 2002 and the names of the surviving heirs were

detailed in paragraph 7 of the application.

3. Supporting the contents of the probate application, one Shibananda

Mullick (in short, Shibananda), Chintamoni's step brother and one Gita Basak

(in short, Gita), his step sister submitted separate applications as consenting

parties. However, Debabrata Sil (in short, Debabrata), Chintamoni's nephew

and two nieces, namely, Chaitali Seth (in short, Chaitali) and Purnima Das (in

short, Gita) filed a joint written objection stating inter alia that the Will was a

fabricated one and that the same was prepared by the appellants after the

death of Chintamoni for grabbing his property by putting false thumb

impression of Chintamoni. At the time of execution of the alleged Will,

Chintamoni was unconscious and bedridden.

4. On the basis of the pleadings the learned Court below framed the

following issues :

i. Whether the case is maintainable in its present form and prayer ?

ii. Did the testator, Chintamoni Mullick execute his last Will and

Testament on 11.12.2012 in presence of the witnesses ?

iii. Are the applicants entitled to get the probate of the last will and

testament of Chintamoni Mullick executed on 11.12.2002 ?

iv. To what other relief or reliefs, if any, are the plaintiffs entitled ?

v. Was the deceased Chintamoni Mullick mentally alert and physically

fit at the time of executing the alleged Will ?

5. One attesting witness, namely, Samir, an advocate and one of the

propounders, namely, Gour deposed as PW1 and PW2. The Will and the

signatures were marked as Ext. 1 to 4, an authority letter dated 27th May, 2017

and the death certificate of Chintamoni were marked as Ext. 5 and Ext. 6

respectively. On behalf of the respondents, Debabrata deposed as DW1, the

record-in-charge of J.N. Roy Sishu Seba Bhawan, Manicktala, namely,

Dwiptendra Ghosh deposed as DW2. Upon contesting hearing and considering

the materials on record the learned Court below dismissed the probate

application observing inter alia that the circumstances surrounding the

execution of the Will were shrouded in suspicion as the LTIs of Chintamoni in

the Will were found to be overlapping and extended and that there was nothing

on record to show that the executant ever asked the typist or the learned

advocate to put a written endorsement in the last page of the Will. Samir, a

learned advocate discharged almost all the important functions relating to the

Will. The Court thereafter came to a finding that the appellants had failed to

discharge the essential initial burden of proof and to dispel the doubts.

6. Mr. Sen, learned advocate appearing for the appellants submits that

on the basis of a mere allegation in the written objection that the Will was a

fabricated one, the learned Judge erred in law in dismissing the probate

application failing to appreciate that it was incumbent upon the respondents to

give the particulars of such fabrication with specific dates and events as per

the provisions of Order 6 Rule 4 of the Code of Civil Procedure (in short, CPC).

7. He further submits that the LTI of Chintamoni was identified by the

Samir, learned advocate, an attesting witness. The provisions of Section 63(c)

of the Indian Succession Act stand satisfied as both the attesting witnesses

had seen the testator to put his LTI and they have also signed the Will in

presence of the testator. Such fact was duly corroborated by Samir through

his deposition. Thus, though the Will was executed in consonance with the

provisions of Section 63(c) of the Indian Succession Act, the learned Judge

glossed over the said issue and did not return any finding on the same and

erred in law in dismissing the probate application.

8. According to him, the testator's thumb impressions did not extend

over unnaturally to create any suspicion. The last LTI was found to be faint

though from the original Will it would be evident that the said LTI was

perceptible. The learned Court below ought to have appreciated that even if the

testator was capable of writing but on account of weakness he was unable to

put his signature, he could have executed the Will by affixing a mark. Such

thumb impression does not cast any suspicion and there is no requirement to

achieve any mathematical precision. In support of such argument reliance has

been placed upon the judgments delivered in the cases of Subhas Chandra

Saha and Ors. -vs- Haridas Saha and Ors., reported in AIR 2014 Cal 1,

Ramabai Padmakar Patil (D) through LRs. And Ors. -vs- Rukminibai Vishnu

Vekhande and Ors., reported in AIR 2003 SC 3109.

9. Mr. Sen argues that Chintamoni was not residing with the

respondents. Such fact would be explicit from the deposition of Debabrata,

DW1 wherein he categorically stated that 'it is a fact that we did not look after

Chintamoni as we were residing elsewhere'. In the Will itself Chintamoni had

given appropriate explanation as to why he did not wish to grant any part of

his assets to the respondents. Reasonable explanation also emerges from the

contents of the Will as to why the testator has given his entire property to Arun

and Gour. It thus cannot be said that the Will was unnatural. The Will has to

be understood by taking into consideration the circumstances that were

prevailing at the relevant point of time and the same has to be construed from

the mindset and desire of the testator. Chintamoni was being looked after by

the appellants and their family members and he was in the same mess with

them and as such the disposition made in the Will cannot be construed to be

improbable or unfair. In support of such contention reliance has been placed

upon the judgments delivered in the cases of Birendranath Paul and Ors. -vs-

Sankar Paul, reported in AIR 2015 Cal 272, Uma Devi Nambiar and Ors. -vs-

T.C. Sidhan (Dead) reported in AIR 2004 SC 1772, Swapan Kumar Nandan -vs-

Ram Kishore Duby and Ors., reported in 2008 (3) CHN 631.

10. He contends that the learned Judge ought not to have drawn any

negative presumption since the typist, namely, R.N. Mitra was not examined.

The Court cannot impose its own standard of behaviour upon those who

execute Wills, moreso when the Will had been executed in consonance with the

provisions of Section 63(c). In support of such contention reliance has been

placed upon the judgment delivered in the case of Savithri and Ors. -vs-

Karthyayani Amma and Ors., reported in AIR 2008 SC 300.

11. Heard Mr. Sen, learned advocate appearing for the appellants and

considered the materials on record.

12. Records reveal that by an order dated 17th September, 2019 the

application for injunction being CAN 2 of 2018 (Old No. CAN 6208 of 2018) was

disposed of. By an order dated 22nd December, 2020 passed by a coordinate

Bench of this Court, the application for additional evidence being CAN 6043 of

2018 was directed to be heard along with the appeal. By an order dated 5th

March, 2021 it was noted that service upon the respondents was complete. In

spite of service of notice, no one has appeared on behalf of the respondents.

13. The application being CAN 6043 of 2018, which has been heard

along with the appeal, was preferred praying for leave to produce and rely upon

the documents marked as Annexure-'E' to the application. The said documents

are medical prescriptions of J.N. Roy Sishu Seba Bhawan, medicine bill, a bio-

chemical report, a blood report and a visitor pass. The said documents had

been issued during the period from 11th December, 2002 to 13th December,

2002. The learned Court below had already observed that it was the admitted

case of both the parties that on 11th December, 2002, the testator was

admitted in the hospital in the evening. In view thereof, there is no

requirement to let in fresh evidence when even without such evidence this

Court can pronounce the judgment. The said application is, accordingly,

dismissed.

14. The intention of the testator has to be primarily ascertained by the

Court from the totality of the facts and circumstances and the Court is entitled

to put itself in the testator's arm chair and to ascertain the intention of the

testator. From the evidence on record it transpires that Chintamoni was literate

and could write and sign documents but the Will was executed obtaining his

LTI. No plausible explanation is forthcoming as to why LTI was taken in the

document when Chintamoni was literate. Such act does not appear to be

normal and gives rise to suspicion.

15. The testator expired on 13th December, 2002, i.e., two days after the

Will was allegedly executed on 11th December, 2002. There was thus a

proximate nexus between the death of Chintamoni and the execution of the

Will. It is a settled principle of law that when the respondents on the basis of

the materials on record are able to expose suspicious circumstances, the

burden shifts upon the applicants to dispel the doubts. In the present case the

appellants could not successfully rebut the respondents' contention that the

testator did not execute the Will out of his own volition and that he was not

mentally alert and physically fit to know the consequences of execution of the

said Will. The appellants have also not been able to dislodge the suspicion

which has occurred from the sequence of facts revealing that Samir had

performed three roles, i.e., he had signed the Will, he had identified the

testator's LTI and had also signed the endorsement that the Will was read over

and explained in Bengali to the testator. The doubt expressed by the learned

Court below about the endorsement made in the bottom of the Will is also not

without substance. The overlapping and extension of the thumb impressions of

the testator in the document are visible to the naked eyes and the Will does not

inspire confidence that the same is genuine.

16. In course of his deposition Samir had stated inter alia that he visited

the house of Chintamoni only twice. The second visit was about one and half

month after the first. On the first date he was asked by Chintamoni to draft a

Will and accordingly the same was drafted and on perusal of the draft, the Will

was typed. However, Samir could neither produce any draft Will nor could

establish in any manner that Chintamoni had approved the contents thereof.

Chintamoni's residence was also far away from Samir's chamber and as such

the learned Court below arrived at a finding that the Will was not drafted on

the date of Samir's first meeting with Chintamoni and the same was in fact

placed before the executant on 11th December, 2002 itself.

17. Suspicion means doubt, conjecture or mistrust. Courts do not

approach a Will with doubts but examine it cautiously and with

circumspection. The allegations levelled against the appellant are neither bald

nor pertain to mere skirmishes. The plentitude of contradictions,

inconsistencies and the lack of adequate explanation of the lacunae leave

cleavages creating suspicious circumstances surrounding the execution of the

Will.

18. There is no dispute as regards the proposition of law laid down in the

judgments upon which reliance has been placed on behalf of the appellants.

However, a decision is an authority for what it decides and not what can

logically, be deduced therefrom. Even a slight difference in fact or addition of

fact may make a lot of difference in the decision making process. The judgment

is a precedent for the issue of law that is raised and decided and not

observations made in the facts of any particular case. By its very nature, in a

probate case, the facts cannot be similar and the dispute involves human

issues which are always complex and complicated.

19. The judgment impugned reflects conscious application of mind and

the findings arrived at by the learned Court below are fortified with appropriate

reasons. We do not find any illegality or infirmity in the judgment of the

learned Court below and we have no hesitation to accept the same.

20. We, accordingly, affirm the judgment dated 27th March, 2018 passed

by the learned 3rd Judge, City Civil Court at Calcutta in O.C. Case No.22 of

2014 and dismiss the appeal, without any order as to costs.

21. The Lower Court records be sent back at the earliest.

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

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

formalities.

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