Back
2006 Supreme(Cal) 28
High Court Of Calcutta
Bhaskar Bhattacharya, Pravendu Narayan Sinha
ARUN KUMAR DUTTA - Appellant
Versus
SANKAR KUMAR DUTTA - Respondent
F. A. 331 Of 1995
Decided On : 01/18/2006
NIRMAL BANERJI, RAMESHWAR BHATTACHARYA, Subrata Dhar, Tanmay Chawdhary
A testator has the freedom to give his property to whomsoever he likes, and the fact that other heirs are not given anything in the Will is not a ground to suspect its genuineness.
Headnote:
WILL - PROBATE - VALIDITY - CHALLENGED - GROUNDS - DEFECTIVE WILL - NO MENTION OF GIFT OR BEQUEATH - NOT FOLLOWING SUCCESSION ACT - SUSPICIOUS WILL - NO RELATIVES AS WITNESSES - TESTATOR'S DRAFT NOT PRODUCED - NO BEQUEATH TO OTHER BROTHERS AND NEPHEWS - EXECUTION AND ATTESTATION - MENTAL ALERTNESS OF TESTATOR - SOUND DISPOSING STATE OF MIND - PROPERTIES BEQUEATHED - PROBATE GRANTED - APPEAL DISMISSED.
Fact of the Case:
A Will was executed by the testator, bequeathing his entire movable and immovable properties to the sons of his eldest brother. The appellant, as caveator, challenged the Will on grounds of being defective, suspicious, and not following the provisions of the Succession Act. The appellant also contended that the testator's other brothers and nephews were not given anything in the Will, and that the propounders exerted coercion and undue influence on the testator.
Finding of the Court:
The Court found that the Will was not defective, as it clearly mentioned the testator's intention to bequeath his properties to the propounders. The Court also found that the Will was not suspicious, as the attesting witnesses were friends of the testator and there was no evidence of coercion or undue influence. The Court further held that the testator had the freedom to give his property to whomsoever he liked, and that the fact that other brothers and nephews were not given anything in the Will was not a ground to suspect its genuineness.
Issues: 1. Whether the Will was defective for not mentioning the mode of transfer of property and not following the provisions of the Succession Act? 2. Whether the Will was suspicious due to the absence of relatives as witnesses, non-production of the testator's draft, and exclusion of other brothers and nephews from the bequeath? 3. Whether the execution and attestation of the Will were valid, considering the testator's mental alertness and sound disposing state of mind? 4. Whether the probate granted by the trial court should be upheld?
Ratio Decidendi: 1. The Will was not defective as it clearly stated the testator's intention to bequeath his properties to the propounders. 2. The Will was not suspicious as the attesting witnesses were friends of the testator and there was no evidence of coercion or undue influence. The testator had the freedom to give his property to whomsoever he liked, and the fact that other brothers and nephews were not given anything in the Will was not a ground to suspect its genuineness. 3. The execution and attestation of the Will were valid as the testator had sound disposing state of mind and clearly understood the nature and effect of the dispositions. 4. The probate granted by the trial court was upheld as the Will was genuine and the propounders were entitled to obtain probate of the Will in respect of the properties mentioned therein.
Final Decision: The appeal was dismissed, and the probate granted by the trial court was upheld.
( 1 ) THIS appeal is directed against the judgment and decree dated 18th May, 1989 passed by the learned Additional District Judge, 1st Court, hooghly in Probate Suit No. 15/1984 thereby allowing the probate suit and granting probate in favour of the respondent propounders of the Will of late prasanta Kumar Dutta.
( 2 ) THE respondents as propounders filed the above stated suit for grant of probate under Section 276 of the Indian Succession Act and also as executors of the Will and testament executed by their uncle Prasanta Kumar Dutta (since deceased) on 23. 2. 81. In their application for grant of probate which was converted into a suit it was disclosed by them that the testator Prasanta Kumar dutta was full blood brother of their father late Anil Kumar Dutta of 43, Dharmatala lane, Bhadrakali within P. S. Uttarpara. The testator made the said Will on 23. 2. 81 in favour of the two propounders and their brothers namely, Sekhar Kumar Dutta, asis Kumar Dutta and Paramesh Dutta and bequeathed his entire properties as described in schedule A of the petition. The testator was a bachelor and he left behind his two brothers namely, Sisir Kumar Dutta, Dilip Kumar Dutta and one sister namely Sovona Basu. No other application was made by anybody in any Court, in India for obtaining probate of the said Will or for letters of administration in respect of estate of testator. It was also contended by the propounders that they have incurred Rs. 6,000/- as expenses for the funeral and sradh ceremony of the testator.
( 3 ) THE appellant as caveator contested the said suit by filing written statement denying therein all material averments of plaint. He inter alia contended that the Will is not a genuine one and it was procured by coercion, misrepresentation, fraud and undue influence on the testator. The testator was suffering from cancer and was being treated as indoor patient in PG Hospital but one of the propounders, namely, Sanka- Kumar Dutta, executing risk bond obtained discharge of the testator from hospital and took him away to house without consulting other brothers of testator or any other relative. The Will was executed within a fortnight from date of return of the testator from hospital and 45 days before-his death. The testator had great respect upon the O. P. 's father and other brother Dilip Kumar Dutta but, they were not given anything in the said Will and it establishes that at the relevant time of execution of Will the testator had no disposing capacity both mental and physical in respect of his properties. It was also alleged that the propounders have included in their claim the commuted value of the pension of the testator though it was not bequeathed in the Will and it shows that the Will was suspicious in nature.
( 4 ) ON the basis of such pleadings of the parties the learned trial Court framed six issues and thereafter, on consideration of oral and documentary evidence adduced by the parties and considering the evidence of the attesting witnesses of the Will allowed the suit and ordered that the propounders be granted probate of the Will of late Prasanta Kumar Dutta with a copy of the said will subject to payment of probate duty. The said judgment and decree have now been challenged by the appellant in the instant appeal.
( 5 ) MR. Banerjee, learned Advocate for the appellant first of all submitted that the Will is defective as it was not stated in the Will whether the property was bequeathed or gifted or in any other manner given to the propounders and provisions of the Succession Act were not followed. We are not at all impressed with this submission of the learned Advocate for the appellant and after going through the Will and its contents we find that in the Will it was specifically and clearly mentioned by the testator that as he was suffering from incurable disease and had become aged he was making settlement of the following properties in the following manner:-"i) After my death my aforesaid brothe
