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High Court Of Calcutta
G. N. RAY, SANKARI PRASAD DAS GHOSH
CHINMOYEE SAHA - Appellant
Versus
Rajendralal Saha - Respondent
A. F. O. D. 171 Of 1981
Decided On : 07/27/1984
SUCCESSION ACT, 1925 - SECTION 63 - PROBATE - GRANT OF - BURDEN OF PROOF - SUSPICIOUS CIRCUMSTANCES - EXPLANATION - UNNATURAL DISPOSITION - SHARE OF PARTIES - REGISTRATION OF WILL - NON-EXAMINATION OF ATTESTING WITNESS - NON-PRODUCTION OF DRAFT WILL - DELAY IN MAKING APPLICATION FOR PROBATE.
Fact of the Case:
Sundari Saha, the wife of Shiblal Saha, executed a Will dated 10-2-1970 under which Netai and Gour, the sons of Debendra, were made the legatees and Chinmoyee Saha, the wife of Debendra, was appointed as executrix. After the death of Sundari, Chinmoyee applied in the court of the District Delegate, Alipore on 5-4-1978 for obtaining probate of the Will. This application for grant of probate was refiled in the court of the District Judge, 24 Parganas, at Alipore on 1-9-1978, as the matter became contentious. The application for grant of probate was registered as O. S. No. 72 of 1978. The suit, which was subsequently numbered as O. S. No. 8 of 1979, was dismissed on contest with cost. It is against this order of dismissal of the suit that the present appeal has been filed.
Finding of the Court:
The Will was properly executed and attested and that Sundari was in sound disposing mind at the time of executing the Will. The alleged suspicious circumstances, stated to be surrounding the Will, have been thoroughly explained by the propounder.
Issues: 1. Whether the Will was properly executed and attested? 2. Whether Sundari was in sound disposing mind at the time of executing the Will? 3. Whether the alleged suspicious circumstances, stated to be surrounding the Will, have been thoroughly explained by the propounder?
Ratio Decidendi: 1. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances, surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator, as required by law, is sufficient to discharge the onus. 2. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. 3. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. 4. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the disposition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. 5. In such a case, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. 6. If the propounder himself takes a prominent part in the execution of the Will, which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.
Final Decision: Appeal allowed on contest with costs against the contesting respondents and without contest and without cost against the rest.
( 1 ) THIS appeal is directed against the judgment and decree passed by the learned Additional District Judge, 9th Court, 24 Parganas, in O. S. No. 8 of 1979. The propounder, Sm. Chinmoyee Saha, is the appellant.
( 2 ) ONE Shiblal Saha was the owner of premises No. 1, Hazra Road, Calcutta-26 and premises No. 24, Basantalal Saha Road, Calcutta-53. There was a rice mill under the name and style of Satyanarayan Rice Mill at 24, Basantalal Saha Road. Sundari Saha was the wife of Shiblal. Shiblal adopted a son named Kishorilal Saha, who died on 8-2-1957. Kishori had two wives, Phulrani and Anima. Debendra, Rajendra, Narender and Manindra are the sons of Kishori by Phulrani. Jogmaya and Mahamaya are their two daughters. Shiblal died on 6-1-1964. Sundari died on 13-4-1970. Prior to her death, Sundari executed a Will dated 10-2-1970 under which Netai and Gour, the sons of Debendra, were made the legatees and Chinmoyee Saha, the wife of Debendra, was appointed as executrix. This Will was not registered. After the death of Sundari, Chinmoyee applied in the court of the District Delegate, Alipore on 5-4-1978 for obtaining probate of the Will. This application for grant of probate was refiled in the court of the District Judge, 24 Parganas, at Alipore on 1-9-1978, as the matter became contentious. The application for grant of probate was registered as O. S. No. 72 of 1978. At the trial, five witnesses were examined for the propounder. They were Khagendra Nath Bera (P. W. 1), Bimal Ghosh (P. W. 2), Chinmoyee Saha, the propounder and the appellant (P. W. 3), Dilip Kumar Guha alias Chanchal of 21, Priyanath Mallick Road, Calcutta-26 (P. W. 4) and Nagendra Kumar Roy (P. W. 5 ). For the contesting defendants, being defendants Nos. 2 to 4, 6 and 8 (Rajendra, Narendra, Manindra, Phulrani and Jogmaya), four witnesses were examined, including Rajendra (D. W. 2) and Manindra (D. W. 3), the two sons of Kishori. The other two witnesses were Rabindra Nath Das (D. W. 1) and Gopal Chandra Konar (D. W. 4 ). On a consideration of the evidences of these witnesses and the documentary evidence the learned Additional District Judge was of the opinion that the plaintiff-propounder had not been able to remove the suspicion surrounding the execution and attestation of the will from the mind of the Court. As such, the suit, which was subsequently numbered as O. S. No. 8 of 1979, was dismissed on contest with cost. It is against this order of dismissal of the suit that the present appeal has been filed.
( 3 ) THE case of the propounder-appellant is that Sundari had great attachment for her great-grand sons, Netai and Gour. She executed a Will after making it known that she would make over her assets to Gour and Netai. By the Will, the executrix, Chinmoyee, was directed to make over the assets of Sundari on the attainment of majority by Gour and Netai. Debendra alias Nataraj extended the properties and business. He was made invalid by taking excessive wine. Rajendra took advantage of this illness of Debendra and intended to grab the whole property. He had a mind of snatching away the Will. On 13-10-1970, some arrangements were made temporarily over the assets covered by the Will. The executrix was under constant threat from Rajendra who put pressure on her to hand over the Will and teased her through other female-folk, including her both mother-in-laws. Ultimately, the executrix had succeeded in applying for probate of the Will. It was alleged that the testatrix had 8 annas share and the heirs of Kishori had 8 annas share in the property left by Shiblal.
( 4 ) THE defence was that Shiblal and his elder brother, Basanta Lal, since deceased, constituted a Hindu joint family. Basanta Lal died as a childless widower. Shiblal became the owner of the property after the death of Basanta Lal. By an agreement of partition dated 22-5-1967, the deceased, Sundari, each of the four sons of Kishori and the two daughters of Kishori had 1/8th share
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