Brojendra Nath Roy Chowdhury vs Chittaranjan Ghosh And Ors
2023 Latest Caselaw 1739 Cal

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                     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 146 of 2008

                      Brojendra Nath Roy Chowdhury
                                  Versus
                       Chittaranjan Ghosh and Ors.


For the Appellants             : Mr. Sabyasachi Chowdhury, Adv.
                                 Mrs. Sohini Chakraborty, Adv.

Order dated                    : 16th March, 2023


        Soumen Sen, J. (Oral): The appeal is arising out of a judgment and

decree dated 20th September, 2006 passed in O.C. Suit No. 1 of 2002.


        The appellant is aggrieved by the judgment passed by the learned

Trial Judge in refusing to grant probate of the Will dated 23rd January,

1969 executed by one Basanta Kumari Ghosh, since deceased.


        Briefly stated, Basanta Kumari Ghosh executed a Will on 23rd June,

1965 appointing Brojendra Nath Roy Chowdhury as sole executor of the

Will.   The executor is also the beneficiary of the assets of the testatrix.

Basanta Kumari Ghosh died on 29th August, 1965. The executor earlier

filed an application for grant of probate being probate case no. 74 of 1969.

The said probate case was allowed by the learned District Delegate,

Serampore on 27th June, 1970. One Surendra Nath Ghosh (predecessor in
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interest of the original respondent no. 1(A), 1(B)and 1(C) along with others

filed a suit being revocation case no. 6 of 1972 praying for revocation of the

probate granted earlier. The learned Additional District Judge, 2nd Court,

Hooghly on consideration of the fact that the applicants in the revocation

case ought to have been cited as they would have succeeded were entitled

to the estate of the said deceased but for the Will allowed the revocation

application on 17th January, 1975.

In view of the aforesaid the plaintiff filed a fresh application being

probate case no. 128 of 1997 before the learned Chief Judge, City Civil

Court praying for grant of probate of the Will dated 23rd June, 1965 in

which the original respondent on being cited filed written objection and

upon the said probate case was marked as contentious cause it was

renumbered as O.C. Suit No. 1 of 2002. The respondents in their objection

have denied all the material allegations and it was specifically contended

that Basanta Kumari Ghosh never had executed the Will under

consideration nor any such Will was executed voluntarily. At the relevant

time she was very sick and she was not in a position to execute the Will or

dispose of her assets voluntarily. The alleged will is forged and fabricated

for making wrongful gain. The said Will was manufactured and/or brought

into existence by the plaintiff with an ulterior motive.

On the basis of the pleadings the trial Court framed seven issues.

The trial Court dismissed the probate suit, inter alia, on the ground

that the propounder has failed to disclose the name of the scribe or that the

said Will was written in his presence. There is no indication in the Will that

the said Will was read over and explained to the testatrix.

There are two attesting witnesses in the Will. One Pulin Behari

Mazumder is the scribe-cum-attesting witness. Pulin Behari Mazumder

died prior to the filing of the probate case. Pulin Behari Mazumder died on

31st March, 1990. The other attesting witness was not produced.

According to the plaintiff he was present at the time of execution of the

alleged Will and the two attesting witnesses alleged to have put their

respective signatures on the Will in his presence. However, the learned

trial Court was of the view that it was more of an excuse on the part of the

plaintiff for not producing the other attesting witness and the explanation

offered for not being able to produce the other witness Bhavatosh is not at

all satisfactory. As the essential requirement for proving the Will by one of

the attesting witnesses is not fulfilled, the will is not proved in accordance

with law.

The present appellants are the legal heirs of the original

executor/plaintiff.

Mr. Sabyasachi Chowdhury, learned Counsel appearing on behalf of

the appellants have submitted that the Will is proved in accordance with

Section 63(c) of the Indian Succession Act, 1925 read with Section 68 of the

Indian Evidence Act. It is submitted that the Will is required to be proved

by an attesting witness and in view of the fact that Pulin Behari one of the

attesting witnesses was examined as an witness in the earlier probate case

in which he had proved the due execution of the Will, the said evidence is

relevant and sufficient compliance of the aforesaid requirements of the law.

Mr. Chowdhury submits that the learned trial Judge has completely

overlooked the fact that the requirement of law contemplated under the

aforesaid provisions have been fulfilled.

Mr. Chowdhury submits that there is no real challenge to the said

Will. The objectors did not allege that the signature of the Will was forged

or there was any undue influence or suspicious circumstances surrounding

the execution of the Will. The allegations are general in nature and without

any substance. Mr. Chowdhury referred to the deposition of Pulin Behari

dated 2nd May, 1970 in the earlier probate proceeding and submits that the

said attesting witness has clearly stated that he was the scribe and

attesting witness to the Deed. The relevant portion of the evidence relied

upon by Mr. Chowdury reads:

Basanta Kumari ghose executed a Will. I scribed the deed. This is the

Will written by Basanta Kumari gave instruction to write the Will. The

Will was read over to her. After fully understanding the contents, she

signed. I was also an attesting witness to the deed. The executants

signed in presence of the witnesses. The witnesses signed in her

presence. This is the Will. (ext.1).

It is submitted that this evidence clearly establishes that the Will was

read over to the testatrix and after fully understanding of the contents the

testatrix signed the Will. Pulin Behari signed the will in presence of the

witnesses and the witnesses signed the Will in presence of the testatrix.

Mr. Chowdhury submits that on the basis of the aforesaid evidence the Will

was marked as Exbt.1. This evidence has not been shaken in the

subsequent proceeding. Mr. Chowdhury submits that in view of

compliance of the aforesaid provisions the learned trial Court could not

have come to the conclusion that there has been no due execution and

attestation within the meaning of Section 68 of the Indian Evidence Act.

Mr. Chowdhury submits that there was not even an iota of evidence on the

basis of which the learned trial Court could have arrived at a conclusion

that the Will was surrounding by the suspicious circumstances.

We have considered the pleadings, the evidence of the parties and the

judgment under appeal. It is an admitted position that the parties who

ought to have been cited were not cited when the probate was obtained

earlier. The probate was revoked on 17th June, 1975. At the relevant time

the scribe-cum-attesting witnesses was alive. Surprisingly after 22 years a

fresh probate proceeding was filed with a prayer for grant of probate in

favour of the propounder who also happens to be the beneficiary. No

explanation has been offered for long delay of almost 22 years in filing the

probate application. The delay has not been satisfactorily explained. If the

executor was really interested to have the probate there was no reason for

him to wait for almost 22 years to file a fresh case by which time the scribe-

cum-attesting witness is dead. It is true that the scribe-cum-attesting

witness was examined in the earlier proceeding and he was able to prove

the Will in accordance with Section 63 of the Indian Succession Act read

with Section 68 of the Indian Evidence Act. However, the said attesting

witness was not cross-examined. By reason of the revocation of the earlier

proceeding the earlier probate perished. The propounder is the executor

and the beneficiary. He appears to have taken a prominent role in the

execution of the Will. It is presumed that the propounder would be

knowing particulars and address of the attesting witness as he claimed to

have been present at the time of execution and attestation of the Will. At

the time when the probate case was filed the other attesting witness was

not produced. It is a fate accompli for the petitioner as the Will is required

to be proved by an attesting witness. He did not apply for issuance of any

summons for appearance of the other attesting witnesses. If the

propounder was actually present at the time of execution of the said will, it

is expected he would have all details of the attesting witnesses. He did not

explain the circumstances under which the said Will was executed. He did

not produce any cogent evidence to show that the testatrix was physically

fit and mentally alert at the time of execution of the Will. His evidence of

being present at the time of execution of the Will cannot dispense with the

requirement of the evidence of an attesting witness. In order to attract

Section 69 of the Indian Succession Act it has to be satisfactorily proved

that no attesting witnesses could be found.

In view of the fact that in the earlier proceeding the probate case was

dismissed, the evidence of the scribe-cum-attesting witness would would

not be of much evidentiary value as the respondents did not have the

opportunity to cross examine the said attesting witness with regard to his

involvement at the time of preparation of the Will as they were not cited. In

Chatoo Kurmi vs. Rajaram Tewari reported at 11 CLJ 124, it was held

by a Full Bench of this Court, that it is the right of every litigant in a suit,

unless he waives his right to cross-examine witnesses whose testimony is

to be used against him. Mr. Chowdhury has submitted that the evidence of

Pulin Behari proves the Will. We are unable to hold that the Will is proved

since evidence of Pulin Behari has remained untested since he was not

cross-examined. The said evidence would remain on record but its

evidentiary and probative value is very weak for the reasons we have

indicated above. There is another aspect of the matter. The original

plaintiff could have filed the probate case soon after the revocation

application was allowed and could have made a fresh attempt to prove the

Will with the scribe-cum-attesting witness who was alive till 1990. It raises

a serious doubt as to whether the scribe-cum-attesting witness was at all

present at the time of execution of the said Will or that the said Will was

executed voluntarily. It is trite law that the propounder is required to

remove all legitimate suspicion before the document can be accepted as the

last Will of the testatrix. Over the years in deciding probate cases the courts

have evolved the test of satisfaction of the judicial conscience and 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.

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." [See. S.R.

Srinivasa v. S. Padmavathamma, 2010(5) SCC 274].

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."

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. (emphasis supplied)

In the instant case we are of the view that the Will is not proved in

accordance with Section 63(c) of the Indian Succession Act and Section 68 of the

Indian Evidence Act. Moreover, the propounder chooses to let a long time elapse

before he filed the second application for probate he is not entitled to any

indulgence at the hands of the court. He has disabled himself to take the benefit of

Section 69 of the Indian Evidence Act by his own conduct as by reason of the long

inexplicable delay Pulin Behari claimed to be one of the attesting witnesses have

died. The inordinate delay in applying for the probate for the second time naturally

gives rise to some suspicion. The propounder has also failed to remove the

suspicion circumstances surrounding the execution of the Will.

The appeal fails. All interim order shall stand vacated.

However there shall be no order as to costs.

      I agree                                                (Soumen Sen, J.)


      (Uday Kumar, J.)