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High Court Of Calcutta
P. K. BANERJI, B. N. MAITRA
BIBHUTI BHUSAN MAYUR - Appellant
Versus
BHABESH BHUSAN MAYUR - Respondent
F. A. 384 Of 1964
Decided On : 03/04/1982
PROBATE - REVOCATION - FRAUD AND UNDUE INFLUENCE - DELAY IN FILING APPLICATION - ADMISSION OF EXECUTION AND GRANT OF PROBATE - EFFECT - EVIDENCE ACT, 1872, SECTION 114, ILLUSTRATION (A).
Fact of the Case:
Petitioner sought to revoke the probate granted to the Respondents, alleging that the will was obtained by fraud and undue influence, and that he was not served with the citation. The Respondents denied the allegations and asserted that the will was duly executed and attested.
Finding of the Court:
The court found that the petitioner had knowledge of the grant of probate since 1954, as evidenced by his own document, and that he had not provided a satisfactory explanation for the delay in filing the application for revocation. The court also found that the petitioner had admitted the execution of the will and the grant of probate in the said document, and that such admission was not withdrawn or proved to be erroneous. The court further found that there were no suspicious circumstances surrounding the execution of the will and that the attesting witnesses' testimonies corroborated the genuineness of the document.
Issues: 1. Whether the petitioner's delay in filing the application for revocation of probate was fatal to his case. 2. Whether the petitioner's admission of the execution of the will and the grant of probate in his own document was conclusive evidence against him. 3. Whether there were any suspicious circumstances surrounding the execution of the will that would warrant revoking the probate.
Ratio Decidendi: 1. The court held that the petitioner's unexplained delay of 13 years in filing the application for revocation of probate was fatal to his case, as it raised doubts about the genuineness of his allegations. 2. The court held that the petitioner's admission of the execution of the will and the grant of probate in his own document was substantive evidence against him, and that such admission was not withdrawn or proved to be erroneous. 3. The court held that there were no suspicious circumstances surrounding the execution of the will, as the attesting witnesses' testimonies corroborated the genuineness of the document and the petitioner had acted upon the provisions of the will by selling one of the properties mentioned therein.
Final Decision: The court dismissed the appeal and upheld the grant of probate, finding that the petitioner's allegations of fraud and undue influence were not substantiated and that there was no reason to revoke the probate.
( 1 ) THE petitioner made an application for revocation of the probate. His allegation is that his father, Panchkari, died on the 22nd Oct. , 1940, leaving the petitioner as son of his first predeceased wife, opposite party No. 2 Nripanandini as his widow and some children by Ms second wife. Panchkari inherited the premises No. 8/1, Ghosepara Lane, from his father. He had another house at Mahinath para Lane and 18 bighas of arable land at Garbhawanipur within the Police Station Amta. From one month before his death he was lying bed-ridden and at last on 22-10-1940 he expired. One week before his father's death the opposite party No. 1 in collusion with opposite party No. 2 took advantage of the bad state of health of his father and with a view to depriving him of the property, obtained Panchkari's thumb-impressions on the alleged fraudulent will said to have been executed on 20-10-1940. Actually that will was obtained by exercising undue influence and Panchkari had no knowledge of its contents. Opposite party No. 1 Bhabesh used to manage Panchkari's affairs. A few days before Panchkari's death, Bhabesh obtained petitioner's signature on a blank piece of paper on the false representation that the same would be used for settlement of some properties. There was no citation of that probate case on him. The land at Garbhawanipur was the petitioner's personal property. On the 26th April, 1957, he first came to know of alleged fraudulent and forged will in course of a domestic quarrel.
( 2 ) OPPOSITE party Nos. 1-3 denied the petitioner's allegations. The defence is that the will was duly executed and attested. Panchkari executed the same voluntarily and with full knowledge of its contents. He had testamentary capacity to execute the same. The petitioner put his thumb impression on the will as an attesting witness.
( 3 ) THE learned Subordinate Judge rejected the petitioner's contention and dismissed the suit with costs. Hence this appeal by the petitioner.
( 4 ) THE learned Advocate appearing on behalf of the appellant has stated that the learned Subordinate Judge has referred to certified copies, Exts. B and B (1), and stated that in view of the contents of those documents there would be a presumption of service of citation. In fact, that is not at all a presumption of law. Reference has been made to the case of Promode Kumar Roy v. Sephalika Dutta, to show that the court can go into the question of genuineness of the will. The court has to see whether the will was a genuine document and if the court's conscience has been satisfied. Reference has also been made to the case of (1971) 75 Cal WN 63 at page 66. It has been contended that the suspicious circumstances have not been removed. It is true that by executing the document (Ext. D) the petitioner stated that in fact a probate had been granted, but such statement has no value in the eye of law because in the case of Brinda Chowdhrain v. Radhica Chowdhrain reported in (1885) ILR 11 Cal 492 at page 494 it has been stated that mere notice or knowledge of the probate proceeding before its grant is not sufficient to refuse the petitioner's application for revocation of the grant. The case reported in (1941) 45 Cal WN 44 : (AIR 1941 Cal 353) (Manindra Chandra Roy Chowdhury v. Gopi Ballav Sen) has also been cited. It has been contended that the alleged scribe or attesting witnesses have not been examined. The beneficiaries are also the widow and children of Panchkari's second wife. By executing the alleged will, which was obtained by practising fraud and undue influence, the petitioner has been deprived of a share in the ancestral property. So it is a fit case for revoking the grant of probate and there was no citation on him.
( 5 ) THE learned Advocate appearing on behalf of the respondents has joined issue and stated that the will was a genuine document and there are no suspicious circumstances.
( 6 ) THE date of alleged execution of the will is 22-10-1940 and t
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