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2002 Supreme(Cal) 158
High Court Of Calcutta
Amitava Lala
PHANI BHUSAN SINHA - Appellant
Versus
. - Respondent
P. L. A. 154 Of 1997
Decided On : 03/08/2002
B.L.VYAS, DILIP SURANA, Swarnendu Ghosh
The propounder of a Will must prove the Will's genuineness and voluntariness. Surrounding circumstances can be considered in determining the genuineness of a Will.
Headnote:
The Court dismissed a testamentary suit for probate of a Will due to doubts about the genuineness of the Will's execution. The Court noted that the signature of the testator on the Will was disputed, and the attesting witness's testimony was not convincing. The Court also found it suspicious that the Will was executed in the office of a Chartered Accountant who was not a close friend or relative of the testator. The Court held that the propounder of the Will failed to discharge the onus of proving the Will's genuineness and voluntariness.
Fact of the Case:
The propounder, Smt. Purnima Sinha, claimed to be the executrix and beneficiary under the Will of her deceased husband, Phani Bhusan Sinha. The caveator, Sri Debungshu Sinha, their only son, lodged a caveat and filed an affidavit in support of it. The main issues before the Court were whether the signature of the executor under the Will was genuine, whether there were any surrounding circumstances to refuse the Will, and what reliefs the parties were entitled to.
Finding of the Court:
The Court held that the propounder failed to discharge the onus of proving the genuineness and voluntariness of the Will. The Court found that the signature of the testator on the Will was disputed, and the attesting witness's testimony was not convincing. The Court also found it suspicious that the Will was executed in the office of a Chartered Accountant who was not a close friend or relative of the testator.
Issues: 1. Whether the signature of the executor under the Will is genuine or not? 2. Whether there is any surrounding circumstances available to refuse the Will? 3. What reliefs the party or parties are entitled to?
Ratio Decidendi: The Court held that the propounder of a Will must prove the Will's genuineness and voluntariness. The Court found that the propounder failed to discharge this onus in the present case. The Court also held that surrounding circumstances can be considered in determining the genuineness of a Will. The Court found that the circumstances surrounding the execution of the Will in the present case were suspicious.
Final Decision: The Court dismissed the testamentary suit for probate of the Will.
( 1 ) THE Court: This is a testamentary suit in the goods of one Phani Bhusan Sinha, generally known as P. B. Sinha, deceased. Smt. Purnima Sinha, wife of the deceased has claimed to be the executrix and beneficiary under the Will. She is the propounder herein. Her only issue, Sri Debungshu Sinha is the caveator. At present the family consists of the widow (the propounder, the only son (the caveator), daughter-in-law and the sole grand-daughter of the deceased. The property under the Will consists of a three-storied house within a total land area of 3 cottahs and 9 sft. more or less.
( 2 ) ONE day after the death of the deceased, the Will came out from the custody of the propounder who, in turn, filed an application for grant of probate of the Will in this Court. Special citation was served. The caveator lodged the caveat and, thereafter, filed an affidavit in support of such caveat. Thus, it become contentious cause. The following issues framed hereunder: issues1. WHETHER the signature of the executor under the Will is genuine or not?2. WHETHER there is any surrounding circumstances available to refuse the Will?3. WHAT reliefs the party or parties are entitled to?additional ISSUE1. WHETHER the propounder has paid the appropriate ad valorem Court fee or not on the assets?
( 3 ) SINCE the additional issue is related to maintainability of the proceeding let the same be decided by me at first. The learned counsel for the caveator raised a dispute that under section 32 of the West Bengal Court Fees Act, 1970 no order entitling a person to grant a probate or Letters of Administration shall be made upon an application for such grant unless the petitioner pay the Court fees as per valuation of the property in the form set forth in Schedule III therein. The Court is to be satisfied that the fees mentioned in No. 10 of Schedule I has been paid on such valuation. Schedule III speaks about the market valuation of the assets etc. In determining such valuation for the purpose of payment of Court fees the date of application is to be counted as appropriate date but not the date of death as per Schedule I Article 2 of the Court Fees Act. The Court Fees Act is not the statute introduced for making order but it only shuts out the grant of probate or Letters of Administration so long the party claiming it, fails to disclose the valuation in respect of estate of the deceased and to pay the appropriate Court fees on it. He has relied upon paragraph 13 of the judgment reported in AIR 1965 All 211 (Smt. Rajeswari Misra and Anr. v. Markandeshwar Mahadeo and Ors. ). According to him, section 19 (h) and sub-clause (ii) of the West Bengal Court Fees Act stipulate that High Court shall cause notice of the application to be given to the Chief Controlling Revenue Authority for the area in which the property situates when such application is made before the High Court. No order can be made without ascertaining such position.
( 4 ) ACCORDING to the learned counsel, appearing for the propounder, non-payment of Court fees cannot be the ground of refusing the probate. The proper Court fees has been paid on the basis of Municipal valuation. There is no evidence whether valuation of the property is higher than the shown valuation herein. In the High Court, highest limit of Court fees is Rs. 10,000/- and in case of Will it is Rs. 5000/ -. It will appear from the cited judgment reported in 1974 CWN 272 (Pritish Kumar Mitra v. Prosanto Kumar Mitra and Anr.) that only when the Court arrive at a decision that the propounder is entitled to the grant of probate or Letters of Administration, then only, before the order entitling the petitioner to have the grant the Court fees mentioned in Article 11 of the first Schedule of the Court fees Act need to be paid upon the valuation found by the Court under section 19-H.
( 5 ) ACCORDING to me, there is a fallacy in the argument of the caveator in this respect. A grant of probate is a process having differe
