Calcutta High Court
Ranjusree Pal vs Suparna Pal Chowdhury & Ors on 3 April, 2025
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
TS/26/2018
IA NO: GA/1/2018 (Old No: GA/558/2018)
IN THE GOODS OF:
GIRINDRA KISHORE PAL CHOUDHURY, DEC.
-AND-
RANJUSREE PAL
-VS-
SUPARNA PAL CHOWDHURY & ORS.
For the Plaintiff : Mr. A.C. Kar, Sr. Adv.
Ms. Sarmila Das, Adv.
Hearing concluded on : 26/03/2025
Judgment on : 03/04/2025
Sugato Majumdar, J.:
This is an application for grant of letters of administration of the last will and
testament of the deceased Girindra Kishore Pal Choudhury dated 30/11/2006.
The Testator Girindra Kishore Pal Choudhury breathed his last on
29/04/2015. His last abode was at 123, M.S. Mukherjee Road, P.O - B.D. Sopan,
P.S: Khardah, District - 24 Parganas (N), Kolkata - 700116. Prior to his death, the
Testator made his last will and testament on 30/11/2006 appointing his two sons,
Subir Pal Chowdhury and Prabir Pal Choudhury as joint and several executors. One
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of the executors, Subir Pal Chaudhury breathed his last prior to the death of the
Testator. The said Subir Pal Chaudhury died intestate leaving behind him his widow
and son.
There are two attesting witnesses of the will, namely, Swapan Debnath and
Rathin Saha and the executant was identified by Sri Somnath Chakraborty, Advocate
on the same day before the Notary Public Mr. Sita Ram Shaw.
One of the attesting witnesses, Swapan Debnath expired on 22/04/2016. A
copy of death certificate is annexed to the instant application. Death certificates of
the Testator as well as the deceased Executor are also annexed along with the instant
application.
The sole surviving Executor of the will avoided to make application for grant
of probate in spite of repeated persuasions by the present Petitioner who is the
beneficiary of the will. On being constrained the Beneficiary filed the present
application for grant of letter of administration of the last will and testament of the
Testator dated 30/11/2006.
General and special citations were issued.
Caveats were filed on behalf of Smt. Suparna Pal Choudhury, wife of the
deceased Executor Subir Pal Chaudhury. Prabir Pal Chaudhury who was appointed
as the other executor, renounced his executorship by filling an affidavit in this Court,
to that extent and lodged caveat. Both the Caveatrix and the Caveator filed affidavit
supporting the caveats.
Contentions of Sri Prabir Pal Chaudhury are that the will is not a genuine
will, it's rather an unnatural will. The Testator had no intention to execute any such
will. Both the sons of the Testators were in his good book. The Executors, being the
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sons of the Testators are the owners of the demised property located at Salt Lake,
Kolkata. The Testator never expressed any willingness during his lifetime to execute
any will in respect of the demised property. The instant will is a product of fraud and
evil machination of the propounder who received substantial benefit under the will.
The Testator was a man of weak intellect, too old and mentally retarded and devoid
of understanding. The Testator must not have executed the will, as alleged. The
beneficiary, being the present Petitioner is a stranger to the family. Testamentary
disposition of property in her favour is unnatural raising serious cloud surrounding
execution. All other contentions of the instant application are denied.
Similarly, the contentions of the Caveatrix Smt. Suparna Pal Choudhury, are
that the instant will was never executed by the Testator. The Testator was a man of
weak intellect, too old and mentally retarded and devoid of understanding. The
instant will is product of fraud and evil machination of the propounder. All other
contentions of the instant applications were refuted.
The probate proceeding became contentious on filing of the caveats. It was
renumbered.
Following issues were framed:
1. Whether the instant will is the last will and testament of the
deceased Girindra Kishore Pal Choudhury?
2. Whether the Testator was physically fit and mentally alert
at the time of execution of the will?
3. Whether the will was properly executed in terms of law?
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4. Whether the execution of the will was tainted with
suspicious circumstances?
5. Whether the will was got executed by practicing fraud and
exercise of evil machination by the propounder of the will?
6. Whether letter of administration can be granted, as prayed
for?
Oral as well as documentary evidences were adduced. Beneficiary of the will,
one of the attesting witnesses Rathin Saha and one advocate in whose presence the
instant will is said to be executed, were examined as witnesses on behalf of the
Plaintiff. Although the Defendants contested the probate proceeding they did not
produce any witness though P.W. 2 and P.W. 2 were cross-examined by the
Defendants.
Issue No.1:
The Defendants, although refuted all the contentions made in the application,
did not raise any defense that the Testator left behind him any subsequent will
whereby the present will had been cancelled. It is the defense case that the present
will was got executed by practicing fraud, not that any other subsequent will was
there. Therefore, it is decided that the instant will is the last will and testament of
the deceased Girindra Kishore Pal Choudhury.
This issue is decided in favour of the Plaintiff.
Issue No. 2,3,4,5:
All these issues are taken up together since these are co-related issues.
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It is asserted and pleaded in the probate application that the instant will is the
last will and testament of the Testator and it was executed in accordance with law.
Section 63 of the Indian Succession Act, 1925 provides with mode of execution
of unprivileged will.
"63. Execution of unprivileged Wills.-- Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner at sea, shall execute his Will
according to the following rules:--
(a)The testator shall sign or shall affix his mark to the Will, or
it shall be signed by some other person in his presence and by his
direction.
(b)The signature or mark of the testator, or the signature of
the person signing for him, shall be so placed that it shall appear
that it was intended thereby to give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the Will or
has seen some other person sign the Will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgement of his signature or mark, or the
signature of such other person; and each of the witnesses shall
sign the Will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary."
Section 68 of the Indian Evidence Act provides:
"68. Proof of execution of document required by law to be
attested. If a document is required by law to be attested, it shall not be used
as evidence until 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 :[Provided
that it shall not be necessary to call an attesting witness in proof of the
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execution of any document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration Act, 1908 (XVI of
1908), unless its execution by the person by whom it purports to have been
executed is specifically denied."
Section 69 provides with mode of proof of a document where no attesting witness is
found.
"69. Proof where no attesting witness found. If no such attesting
witness can be found, or if the document purports to have been executed in
the United Kingdom, it must be proved that the attestation of one attesting
witness at least is in his handwriting, and that the signature of the person
executing the document is in the handwriting of that person."
In the instant case one of the attesting witnesses was examined since the other
attesting witness is dead. Section 71 of the Indian Evidence Act, 1872 is relevant
herein:
"71. Proof when attesting witness denies the execution. If the
attesting witness denies or does not recollect the execution of the
document, its execution may be proved by other evidence."
Mr. Kar, the Learned Senior Counsel appearing for the Plaintiff argued that
the only attesting witness who was examined could not recollect the attestation of the
will. In that circumstance the Plaintiff examined another witness in whose presence
the attesting witness attested the will by putting his signature. Execution and
attestation of the will has duly been proved under Section 71 of the Indian Evidence
Act, 1872 according to Mr. Kar. It is further argued by Mr. Kar that the Petitioner
was present at the time of execution of the will. The Petitioner identified the
signatures of the Testator. The wife of the Testator was also present at the time of
execution of the will. The whole array of evidence proves the execution of the will
repelling any cloud of doubt surrounding execution and attestation of the will. The
Learned Counsel relied on the decision of the Supreme Court of India Janki
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Narayan Bhoir Vs. Narayan Namdeo Kadam [(2003) 2 SCC 91] to support
his contention that due execution of the will may be proved with aid of Section 71 of
the Indian Evidence Act, 1872 where the attesting witness fails to recollect execution
of the document.
As stated above, execution and due attestation of a will is governed by Section
63 of the Indian Succession Act, 1925 whereas Section 68 of the Indian Evidence Act,
1872 provides mode of proof of a will. A person propounding the will must prove
that it was duly and validly executed and shall also repel any clouds of suspicion
surrounding the execution of the will. Although the will is required to be attested by
two witnesses, for the purpose of proof of the will one attesting witness can be
examined to prove the execution of the will. But the said single attesting witness
must be in a position to prove the execution of the will. He must prove that the will
was signed by the Testator and attested by two attesting witnesses in accordance with
Section 63 (c) of the Indian Succession Act, 1925. Observations made by the
Supreme Court of India in Janki Narayan Bhoir's case (supra) may be referred to:
"11. Section 71 of the Evidence Act is in the nature of a safeguard to the
mandatory provisions of Section 68 of the Evidence Act, to meet a situation
where it is not possible to prove the execution of the will by calling the
attesting witnesses, though alive. This section provides that if an attesting
witness denies or does not recollect the execution of the will, its execution may
be proved by other evidence. Aid of Section 71 can be taken only when the
attesting witnesses, who have been called, deny or fail to recollect the
execution of the document to prove it by other evidence. Section 71 has no
application to a case where one attesting witness, who alone had been
summoned, has failed to prove the execution of the will and other attesting
witnesses though are available to prove the execution of the same, for reasons
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best known, have not been summoned before the court. It is clear from the
language of Section 71 that if an attesting witness denies or does not recollect
execution of the document, its execution may be proved by other evidence.
However, in a case where an attesting witness examined fails to prove the due
execution of will as required under clause (c) of Section 63 of the Succession
Act, it cannot be said that the will is proved as per Section 68 of the Evidence
Act."
In Jagdish Chand Sharma Vs. Narain Singh Saini [(2015) 8 SCC 615] the
scope of Section 63 (c) of the Indian succession Act, 1925 as well Section 68 and
Section 71 of the Indian Evidence Act, 1872 was considered again referring to Janki
Narayan Bhoir's case:
"57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily
accorded a strict interpretation. The two contingencies permitting the play of
this provision, namely, denial or failure to recollect the execution by the
attesting witness produced, thus a fortiori has to be extended a meaning to
ensure that the limited liberty granted by Section 71 of the 1872 Act does not in
any manner efface or emasculate the essence and efficacy of Section 63 of the
Act and Section 68 of the 1872 Act. The distinction between failure on the part
of an attesting witness to prove the execution and attestation of a will and his
or her denial of the said event or failure to recollect the same, has to be
essentially maintained. Any unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the predication of Section 63
of the Act and Section 68 of the 1872 Act, otiose. The propounder can be
initiated to the benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced and in clear terms
either denies/deny the execution of the document or cannot recollect the said
incident. Not only, this witness/witnesses has/have to be credible and
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impartial, the evidence adduced ought to demonstrate unhesitant denial of the
execution of the document or authenticate real forgetfulness of such fact. If the
testimony evinces a casual account of the execution and attestation of the
document disregardful of truth, and thereby fails to prove these two essentials
as per law, the propounder cannot be permitted to adduce other evidence
under cover of Section 71 of the 1872 Act. Such a sanction would not only be
incompatible with the scheme of Section 63 of the Act read with Section 68 of
the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity
thereof, a consequence, not legislatively intended. If the evidence of the
witnesses produced by the propounder is inherently worthless and lacking in
credibility, Section 71 of the 1872 Act cannot be invoked to bail him (the
propounder) out of the situation to facilitate a roving pursuit. In absence of
any touch of truthfulness and genuineness in the overall approach, this
provision, which is not a substitute of Section 63(c) of the Act and Section 68
of the 1872 Act, cannot be invoked to supplement such failed speculative
endeavour."
Coming to the case in hand, the petitioner was examined as PW 1, she testified
that the will was signed by Girindra Kishore Pal Choudhury, the Testator in his
presence. The petitioner proponent of the will deposed in this case. She identified
the signatures of the Testator. He stated that he signed the document in front of his
Advocate Birendra Chandra Chakraborty. She was not cross-examined.
Mr. Birendra Chandra Chakraborty stated in examination-in-chief that he was
well-acquainted with the signature of the Testator. Mr. Rathin Saha deposed as
attesting witness. In examination-in-chief, he was asked whether he did know
Girindra Kishore Pal Choudhury who signed the will; he answered:
"I do not know him".
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In examination-in-chief, he also stated that he could not remember the exact time of
signing of the document. Suggestion was given to him that signature in the will was
that of Girindra Kishore Pal Choudhury being the Testator and he signed the same in
his presence of this witness to which he replied that he did not agree. He stated that
he signed the will as per dictate of Somnath Chakraborty, Advocate; after advocate
Somnath Chakraborty signed the will he asked the witness to put signature on the
will. Suggestion was also given in Question no.36 that signature of Girindra Kishore
Pal Choudhury was put in presence of Somnath Chakraborty while the witness was
present to which he answered:
"When learned advocate Somnath Chakraborty and I signed on the
Will, Mr. Girindra Kishore Pal Chowdhury was not present."
In answer to Question no. 37 he stated:
"Learned advocate Somnath Chakraborty after putting his signature
on the will had asked me to sign on the will and I do not know
whether the signature of Girindra Kishore Pal Choudhury was there
or not. I did not see because in our shersta many a times it happens
he signed a document without going through the particulars."
Once again, he was asked in Question no. 41 that Girindra Kishore Pal Choudhury
had signed the will in his presence he disagreed and stated that Testator was not
present. Again, suggestion was given to him in Question no. 47 that all the attesting
witnesses and Mr. Somnath Chakraborty were present when this will was executed by
the Testator in the chamber of Mr. Somnath Chakraborty. His answer was:
"I do not agree. Only the learned advocate Mr. Somnath
Chakraborty was present at the sheresta at that point of time."
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In answer to Question no. 61 he reiterated that no one was present except himself and
Mr. Somnath Chakraborty. In answer to Question no. 63 he stated that Mr. Somnath
Chakraborty gave him a will and said that the former signed the will and asked the
witness to put signature of that. In answer to Question no. 71 he reiterated that when
the document was signed by the witness and Mr. Somnath Chakraborty only two
persons, namely, the witness and advocate Somnath Chakraborty was present.
Again, he answered in reply to the Question no. 74 that he did not know the Testator
and there was no third person of the room at the point of time. Question no. 75 as
well as Question no. 79 with their answer can be quoted here:
Question No.75: - "I am suggested it to you that Girindra Kishore Pal
Choudhury was personally present when this document was signed
in the serestha? / No."
******
Question No.79: - "All the signatures appearing in the Will of
Girindra Kishore Pal Choudhury is that of the testator himself? / I
cannot say that. I do not know him and I do not know his signature
also."
In answer to Question no. 80 he reiterated that he neither knew Girindra Kishore Pal
Choudhury nor his signature.
Evidence of the attesting witness Mr. Rathin Saha is clear and unambiguous.
Repeated questions were put to him and his repeated answer is - he did not see the
Testator to put signature in the will in his presence. He was not acquainted with the
signature of the Testator. There is no ambiguity in evidence. In very clear terms it
was stated when he put signature in the will as an attesting witness, only himself and
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Somnath Chakraborty was present. Testimony of the attesting witness Mr. Rathin
Saha is very clearly proved that neither it's a case of oblivion nor denial of execution.
He did not say that Girindra Kishore Pal Choudhury was not signatory to the
document. In other words, he never said that Girindra Kishore Pal Choudhury did
not sign the document. On the other hand, there is no denial of his attestation of the
document. This is a case with neither comes within the ambit of Section 71 of the
Indian Evidence Act, 1872.
Attesting witness, namely, Mr. Rathin Saha was not present when the Testator
was not signed the document. When this attesting witness put his signature on the
will, neither the Testator was present, nor his signatures were there on the will. The
attesting witness put his signature not in presence of the Testator. Somanth
Chakroborty was not examined in this case. Moreover, since this is neither a case of
oblivion or denial Section 71 cannot be resorted to. The will was to be proved in terms
of Section 68 of the Indian Evidence Act, 1872. Therefore, it is inevitable conclusion
that the execution and the attestation of the will are not proved in accordance with
the mandatory provisions of Section 63(c) of the Indian Succession Act, 1925 read
with section 68 of the Indian Evidence Act, 1872. In nutshell, the execution of the
will is not proved as a result of which letter of administration, as prayed for, is hereby
refused and the will is not eligible for probate. All these issues are decided
accordingly.
Issue no. 6 & Additional Issue:
Since it is concluded that execution and attestation of the will is not proved.
Considerations of these issues are redundant.
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In nutshell, the instant application stands dismissed. The instant application
stands disposed of accordingly with pending applications, if any.
(Sugato Majumdar, J.)
