Back
High Court Of Calcutta
Asit Kumar Bisi
TARA SUNDARI GHOSH (DEED.), RAJENDRA NATH GHOSH - Appellant
Versus
SADHANA BALA BANERJEE - Respondent
E. O. S. 1 Of 1989
Decided On : 08/28/2003
WILL - PROBATE - TESTAMENTARY CAPACITY - EXECUTION - ATTESTATION - NATURALNESS - UNDUE INFLUENCE - FRAUD - COERCION - SUSPICION - EVIDENCE ACT, 1872, SECTION 68 - INDIAN SUCCESSION ACT, 1925, SECTIONS 63, 71.
Fact of the Case:
Plaintiff, son of the deceased, filed a suit for grant of probate of the Will dated 25th February, 1972 executed by Tara Sundari Ghosh in his favour. Defendant No. 1, daughter of the deceased, contested the suit and resisted the application for grant of probate filed by the plaintiff by filing a written statement wherein it was averred that the alleged Will was forged, fraudulent and created by the plaintiff in collusion with attesting witnesses in absence of the testatrix.
Finding of the Court:
1. The testatrix had testamentary capacity to execute the Will dated 25.2.1972. 2. The Will was duly executed and attested in accordance with the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. 3. The Will is not unnatural as the testatrix had bequeathed all her properties to her only son, the plaintiff, and had excluded her daughter, defendant No. 1, on the ground that she had already received her share in the property. 4. There was no evidence of undue influence, fraud or coercion on the part of the plaintiff or any other person in the execution of the Will. 5. The suspicions raised by the defendant No. 1 were not sufficient to rebut the presumption of validity of the Will.
Issues: 1. Whether the plaintiff is entitled to get declaration that the testatrix Tara Sundari Ghosh has died and/or is presumed to be dead as prayed for in prayer (aa) of the application for grant of probate of the Will? 2. Did the testatrix have testamentary capacity to execute the Will dated 25. 2. 1972? 3. Was the Will made by the testatrix herself out of her own volition? 4. Could the testatrix appreciate the significance of the provisions made in the Will? 5. Was the Will forged, fraudulent and created by the plaintiff in collusion with the attesting witnesses in absence of the testatrix as alleged by defendant No. 1 in paragraph 4 of her written statement? 6. Does the Will appear to be unnatural as pleaded in paragraph 4 of the written statement filed by defendant No. 1? 7. Is the plaintiff entitled to get probate of the Will dated 25. 2. 1972 executed by the testatrix Tara Sundari Ghosh as prayed for? 8. To what other relief, if any, is the plaintiff entitled?
Ratio Decidendi: 1. The plaintiff has discharged the onus of proving the Will by adducing evidence of due execution and attestation of the Will by one of the attesting witnesses, Jyotirmoy Mitra. 2. The corrections made in the Will after execution do not amount to alternation and do not affect the validity of the Will. 3. The Will is not unnatural as the testatrix had excluded her daughter, defendant No. 1, on the ground that she had already received her share in the property. 4. The evidence of defendant No. 1 and her witnesses is contradictory and does not establish any fraud, coercion or undue influence in the execution of the Will. 5. Suspicion cannot take the place of legal proof and the evidence on record does not raise any credible doubt about the genuineness or validity of the Will.
Final Decision: The suit was decreed in terms of prayer (a) of the application for grant of probate of the Will. The probate of the Will dated 25th February, 1972 executed by the testatrix Tara Sundari Ghosh was granted to the plaintiff Rajendra Nath Ghosh on payment of requisite Court-fees.
( 1 ) THIS suit arises out of an application for grant of probate of the Will dated 25th February, 1972 executed by Tara Sundari Ghosh in favour of the propounder rajendra Nath Ghosh (hereinafter referred to as the plaintiff ). Tara Sundari ghosh (hereinafter referred to as the testatrix) was suddenly found missing on and from 18th March, 1977 from her residence at 16, Rajendra Lai Street, p. S. Narikeldanga, Calcutta-6. The plaintiff is her only son and defendant No. 1 smt. Sadhana Bala Banerjee is her only daughter. As per the case of the plaintiff he spares no efforts and left no stone unturned for finding out her missing mother and inspite of all his searches he failed to find out his mother. The testatrix has not been heard of for seven years or more either by him or by those who would naturally have heard of her if she was alive and she is presumed to be dead in the eye of the law. During her lifetime the testatrix made and published her last Will and testament on 25th February, 1972 whereby she bequeathed her movable and immovable properties to the plaintiff and appointed the latter as executor of the said Will. The plaintiff is entitled to obtain probate of the Will dated 25th February, 1972 left by the testatrix.
( 2 ) DEFENDANT No. 1 Sadhana Bala Banerjee has contested the suit and resisted the application for grant of probate filed by the plaintiff by filing the written statement wherein it has been averred niter alia that Tara Sundari ghosh never executed any Will on 25. 2. 72 or on any date. It has been denied by defendant No. 1 that the alleged Will was made by the testatrix herself and that after hearing the contents of the alleged Will or realising or appreciating meaning, purport or implication of the alleged Will the testatrix executed the alleged Will in presence of the alleged witnesses. It is also denied that the alleged Will was registered on execution by the testatrix. It has been further averred by defendant No. 1 in her written statement that the alleged Will is not the Will of the alleged testatrix and the same is forged, fraudulent and created by the plaintiff in collusion with attesting witnesses in absence of the testatrix. It has been denied by defendant No. 1 that the alleged testatrix published the Will or appointed the plaintiff as executor. Further case of defendant No. 1 as made out in the written statement is that the testatrix had no physical or mental capacity to execute the Will nor she gave her L. T. I, or signature therein and as such there cannot be probate of the alleged Will which is an unnatural one. It has also been alleged by defendant No. 1 in the written statement that due to physical and mental torture perpetrated by the plaintiff on the alleged testatrix she lost complete balance of mind and left the house. The plaintiff caused her disappearance and/or death.
( 3 ) DEFENDANT No. 2 Sri Bomkesh Ghosh has not come to the contest the suit though he has filed the written statement wherein he has alleged inter alia that he is an unnecessary party in this proceeding as he is neither a legatee nor an heir in respect of the property left by the deceased.
( 4 ) ON pleadings of the contesting parties the following issues have been framed for the purpose of trial: 1. Is the plaintiff entitled to get declaration that the testatrix Tara Sundari ghosh has died and/or is presumed to be dead as prayed for in prayer (aa) of the application for grant of probate of the Will? 2. Did the testatrix have testamentary capacity to execute the Will dated 25. 2. 1972? 3. Was the Will made by the testatrix herself out of her own volition? 4. Could the testatrix appreciate the significance of the provisions made in the Will?
( 5 ) WAS the Will forged, fraudulent and created by the plaintiff in collusion with the attesting witnesses in absence of the testatrix as alleged by defendant No. 1 in paragraph 4 of her written statement?
( 6 ) DOES the Will appear to be unnatural as pleaded i
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
