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Calcutta High Court
PRADYOT KUMAR BANERJEE AND SHARMA, JJ.
Susama Bala Devi - Appellant
Versus
Anath Nath Tarafdar - Respondents
A. F. O. D. No. 293 of 1967
Decided On : 25 June 1976
WILL - PROBATE - SUSPICIOUS CIRCUMSTANCES - DELAY IN APPLYING FOR PROBATE - DISINHERITANCE OF SONS - UNEXPLAINED MUTILATION OF DRAFT WILL - ABSENCE OF SCHEDULE - INCONSISTENCY BETWEEN DRAFT AND WILL - FAILURE TO EXPLAIN DELAY - PROBATE REFUSED.
Fact of the Case:
The appellants, Sambhunath Tarafdar and his mother Sushamabala Devi, applied for probate in respect of a will left by Nisi Kanta Tarafdar, father of the first appellant and husband of the second. The grant of probate prayed for was opposed by Anathnath Tarafdar and Bhabanath Tarafdar, the first two of the three sons of Nisi Kanta Tarafdar and Sushamabala Devi, on the ground that the will was forged, executed under undue influence, not properly executed or legally attested, and that various suspicious circumstances surrounding the execution of the will and long disregard for it, including the delay of fifteen years in applying for probate, were highly suspicious.
Finding of the Court:
The court found that there were many suspicious circumstances surrounding the execution of the will, including the unexplained delay in applying for probate, the disinheritance of the elder sons, the unexplained mutilation of the draft will, the absence of a schedule, the inconsistency between the draft and the will, and the failure to explain the delay. The court held that the propounders had failed to remove the suspicion from the mind of the court and that probate could not be granted.
Issues: 1. Whether the suspicious circumstances surrounding the execution of the will were sufficient to justify refusing probate? 2. Whether the delay in applying for probate was unexplained and suspicious? 3. Whether the disinheritance of the elder sons was unnatural and suspicious? 4. Whether the unexplained mutilation of the draft will and the absence of a schedule were suspicious circumstances? 5. Whether the inconsistency between the draft and the will was a suspicious circumstance?
Ratio Decidendi: 1. The court held that the suspicious circumstances surrounding the execution of the will, including the unexplained delay in applying for probate, the disinheritance of the elder sons, the unexplained mutilation of the draft will, the absence of a schedule, the inconsistency between the draft and the will, and the failure to explain the delay, were sufficient to justify refusing probate. 2. The court held that the delay of fifteen years in applying for probate was unexplained and suspicious, as the propounders had not provided a satisfactory explanation for the delay. 3. The court held that the disinheritance of the elder sons was unnatural and suspicious, as the sons had been in amity with their father and had helped him financially. 4. The court held that the unexplained mutilation of the draft will and the absence of a schedule were suspicious circumstances, as they raised questions about the authenticity of the will. 5. The court held that the inconsistency between the draft and the will was a suspicious circumstance, as it raised questions about whether the will had been properly executed.
Final Decision: The appeal was dismissed, and probate was refused.
SHARMA, J.:- Sambhunath Tarafdar his mother Sushamabala Devi applied for probate in respect of a will left by Nisi Kanta Tarafdar father of the first applicant and husband of the second. The grant of probate prayed for was opposed by Anathnath Tarafdar and Bhabanath Tarafdar, the first two of the three sons of Nisi Kanta Tarafdar and Sushamabala Devi, and this conflict gave rise to Original Suit No. 14 of 1961, in the Additional Court of District Judge, hence this appeal.
2. Stated in short plaintiff-appellants case reveals that Nishi Kanta Tarafdar on his death on August 8, 1945, left behind a number of properties which have been set out in 28 lots in the schedule of properties attached to the petition filed by the plaintiff-appellants. He also left behind him his aforenamed wife and three sons besides four daughters: Jayantibala Devi, wife of Bagalaprassanna Roy Choudhury, Prativasundari Devi, wife of Dr. Pragnath Banerjee, Banalata Devi and Shohalata Devi (the last two being unmarried at the time of his death). The appellants case is that sometime before his death Nisi Kanta Tarafdar had been ailing from various illnesses. Apprehending that his end was coming he made in his own hand writing a draft will of his own which he got approved by a lawyer.
3. Later on, after incorporating some changes in the terms of the draft, he executed his last will and testament. Under the will he made provisions for the marriage of his unmarried daughters and also charged some immovable properties with the expenses of their marriage; but in case the properties were not required to be sold for defraying the expenses of their marriage, those properties were to go under the will to his youngest son Sambhunath Tarafdar who was staying at home and had no ostensible means of livelihood. Under the will nothing was left for other sons, the defendant respondents, except the testators goodwill, because they were well settled in life. Nothing was also left to the two married daughters. The rest of the property was left to his widow Sushamabala Devi, Though the will was executed on November 12, 1944, and its existence was all along known, application for probate was filed only on March 11, 1961, that is, after fifteen years from the date of demise of the testator.
4. The suit was contested by the two elder sons on the ground inter alia that at the time of death Nisi Kanta Tarafdar had no mental and physical capacity to make the will and the alleged will was a forged one and the same was executed under undue influence and the same was not properly executed or legally attested. It was also contended that various circumstances surrounding the execution of the will and long disregard for it including the delay of fifteen years in applying for probate, were highly suspicious and so the plaintiffs were not entitled to a grant of probate prayed for.
5. On the basis of these pleadings the learned Additional District Judge, Nadia, raised issues and tried the suit. After considering various documentary evidence on record as well as oral testimony of the witnesses given in the suit, the learned Court below found that there were many suspicious circumstances surrounding the execution of the will and the circumstances seen and noticed were not removed from the mind of the Court by the propounders. Taking this view of the matter the learned court below dismissed the suit and refused the probate prayed for.
6. The suspicious circumstances which led the court below to doubt the genuineness of the will may now be noticed, The learned Judge was of the opinion that the circumstances which preceded and followed the alleged date of the execution of the will militated against the fact of such execution. He was of the opinion that the letters written by the testator to his sons Anath Nath Tarafdar and Bhabanath Tarafdar did not show any unfavourable disposition towards them and so the allegation contained in paragraph 1 of the alleged will could not have emanated from the
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