Calcutta High Court (Appellete Side)
Sri Deb Kumar Das vs Sri Pratap Chandra Haldar And Ors on 4 September, 2023
04.09.2023
Court No.13
Item No.36
AP
FA 313 of 2013
Sri Deb Kumar Das
Vs.
Sri Pratap Chandra Haldar and Ors.
Ms. Sohini Chakroborty
Mr. Falguni Majhi
... For the Appellant.
1. The appeal is directed against a judgment
and/or order dated 29th June 2013 passed by the
Additional District and Sessions Judge, Fast Track 2nd
Court at Burdwan in O.S. Will Case No.1/05
renumbered as 145/02.
2. The original applicant for probate of Will of late
Bhairab Chandra Das is one Pratap Chandra Haldar,
son of the sister of the testator. Probate was sought of
the Will dated 6th August 1993. The wife of the testator
pre-deceased him. The natural legal heirs are a son Deb
Kumar Das, daughter Purnima Sadhu and another
daughter Bijali Sen.
3. The testator committed suicide and died on 17th
July 2002.
4. The testator had earlier executed a registered
Will dated 4th August 1986 by which he bequeathed all
his property to his only son Deb Kumar Das.
5. By the said Will dated 6th August, 1993 the
testator passed on all his properties to Pratap Chandra
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Haldar, his nephew and his inherited his son and
daughters.
6. Upon the Will being cited, Deb Kumar Das, the
son of the deceased, filed an objection. The two
daughters did not participate or challenge the Will.
7. On receipt of the objection, the application for
probate was converted into a suit. The objector had
stated that the Will was procured by fraud. The testator
was a regular alcoholic and had no mental capacity. He
would have signed a Will in favour of anybody who
offered him a bottle of alcohol.
8. It was further stated that the testator was hard
of hearing and had poor eyesight. The attesting
witnesses were intimated with the beneficiary and the
propounder. The Will was manufactured taking
advantage of the unsoundness of the mind of the
testator.
9. The Court below on receipt of the objection
framed five several issues, which are set out
hereinbelow:-
"1. Is the petitioner entitled to get probate of the
Will?
2. Has the Will been duly executed properly by
the testatrix?
3. Is the Will in question last Will of the
testator?
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4. Has the Will genuine, legal, valid and has it
been executed with full sense and sound
disposition capacity?
5. To what other relief, if any, the petitioner is
entitled?"
10. Two witnesses deposed on behalf of the executor
namely Pratap Chandra Haldar himself (PW-1) and
Kamal Chandra Ghosh (PW-2), an attesting witness.
The objector Deb Kumar Das, son of the testator,
deposed himself as DW1.
11. Several documents particularly the holographic
Will and a suicide note of the deceased were brought on
record. A handwriting expert report was considered. The
said report confirmed the signature of the testator on
the Will by comparing it with that of the suicide note.
12. The Court below carefully examined the evidence
on record and with a detailed and succinct judgement
granted probate of the Will.
13. Ms. Sohini Chakroborty, learned counsel for the
appellant Deb Kumar Das, would argue that the Court
below had failed to notice the following suspicious
circumstances:-
(a) By the earlier Will dated 4th August, 1986,
the testator had bequeathed all his properties to
his son and also recorded love and affection to
his granddaughter (daughter of his son). In the
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subsequent Will dated 6th August, 1993, there
was no mention of his granddaughter.
(b) The scribe of the Will did not come forward
to depose.
(c) There was no draft Will prepared or
produced.
(d) The executor and the attesting witness
distinctly remember the date and time of
execution of the Will and registration thereof,
but could recollect the date on which the
testator decided to bequeath the property to his
nephew.
(e) The testator has stated that he has
consulted his sons-in-law before changing his
earlier Will of 1986 but the sons-in-law did not
come forward to depose in the suit.
(e) The testator was with poor eyesight and
could not have written the Will in question or
signed it.
(f) Pratap Haldar's father had an acrimonious
relationship with the deceased. It is suspicious
as to why the deceased would find faith and
affection on the propounder.
(g) The attesting witness was a good friend of
the respondent but not known to the testator.
14. This Court has very carefully considered the
objections of the learned counsel for the appellant. It is
noticed that since after the demise of the deceased wife,
he was lonely and depressed. The testator's son, the
appellant, left the house of the testator to live
separately. There were serious differences and acrimony
between the appellant's wife and the testator. The
appellant's wife did not take care of the testator.
15. This Court also notes from the evidence on
record that the signature of the testator on the Will has
substantially matched with the signature on the suicide
note of the deceased. The handwriting expert has
certified as such.
16. The suicide note was written in an orderly and
empirical manner. This would clearly show that the
testator was of clear mind and could see properly. His
signature on the suicide note was clear and normal.
Therefore if the testator was substantially sound
visually in 2002, his vision in the year 1993 must have
been much better. He must have been of clearer mind
in 1993.
17. Admittedly, the executor nephew living at a
distance of 2 km from the house of the testator took
very good care of his uncle. The testator had indicated
in his holographic Will that he has bequeathed a
portion of his house to his daughter Bijali Sen. The
other daughter was prosperous and living happily with
her husband. The testator had also spent substantial
amount of money in getting his daughters married.
18. These are a few factors that weighed with the
Court below and correspondingly weigh with this Court.
The testator had provided for his daughter sufficiently.
The son of the testator did not take care of him. The
testator was lonely and may have taken to alcohol to
deal with his solitude. The wellbeing of the testator to
whatever extent was only ensured by the propounder.
The testator was of sound mind and clear eyesight in
the year 1993.
19. The argument of Ms. Chakraborty that while the
executor and the attesting witness appeared to
distinctly remember the time and place of execution of
registration of the Will, they do not have clear memory
of the time when the testator had decided to bequeath
his properties to the nephew, might sound inconsistent,
but this Court is not convinced that the same by itself
would constitute a suspicious circumstance.
20. The non-examination of the scribe and the
absence of evidence from the attesting witnesses as
regards the mental health of the testator as argued by
Ms. Chakraborty, do not by themselves indicate any
suspicious circumstances of the Will.
21. This Court also does not see any suspicious
abnormal circumstance in the attesting witness being a
long standing friend of the propounder. It is quite
possible that he may have met the testator a few times.
22. The signature on the Will appears to be clear as
per the handwriting expert. The suicide of the testator
lends credence to the case of the propounder that the
testator was lonely in the later part of his life
particularly after the death of his wife and the son,
daughter-in-law and his daughters did not come
forward to take care of him.
23. In the above circumstances, taking an overall
view of the matter, this Court is of the view that the
Court below has considered all relevant factors to hold
that the respondents/propounders have been able to
dispel all suspicious circumstances surrounding the
execution of the Will dated 6th August, 1993. The
appellant has not been able to demonstrate any further
or other suspicious circumstances. The impugned
order, therefore, cannot be faulted.
24. This Court upholds the said impugned
judgement.
25. Hence, FA 313 of 2013 is dismissed.
26. Interim orders, if any, shall stand vacated.
27. There shall be no order as to costs.
28. Urgent certified photocopy of this order, if
applied for, be supplied to the parties expeditiously on
compliance of usual legal formalities.
(Rajasekhar Mantha, J.)
(Supratim Bhattacharya, J.)
