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2006 Supreme(Cal) 140
High Court Of Calcutta
Bhaskar Bhattacharya And P. N. Sinha, JJ.
ASHIS SEN - Appellant
Versus
ARUN KUMAR BOSE - Respondent
F. A. T. 2639 Of 2005
Decided On : 03/07/2006
BADAL CHANDRA SAHA, Bidyut Kumar Banerjee, DWIJADAS CHAKRABORTY, JAHARLAL DEY, JIBAN RATAN CHATTERJI, PRABAL MUKHERJI, SWAPAN CHAKRABORTY
In order to successfully contest a will, the contestant must provide evidence to support their allegations of undue influence or mental incapacity. In the absence of such evidence, the will is presumed to be valid.
Headnote:
The testator executed a will in favor of his daughter, Gita Rani Sen, who was suffering from tuberculosis at the time. The appellants, the testator's son and other heirs, contested the will, alleging that it was obtained through undue influence and coercion, and that the testator was mentally unsound at the time of execution. The trial court granted probate in favor of the respondent, Gita Rani Sen, and the appellants appealed.
Fact of the Case:
The testator, Bimal Behari Sen, executed a will on 1st March, 1949 in favor of his daughter, Gita Rani Sen, who was suffering from tuberculosis at the time. The appellants, the testator's son, Broja Behari Sen, and other heirs, contested the will, alleging that it was obtained through undue influence and coercion, and that the testator was mentally unsound at the time of execution.
Finding of the Court:
The trial court granted probate in favor of the respondent, Gita Rani Sen, and the appellants appealed. The High Court dismissed the appeal, holding that there was no evidence to support the appellants' allegations, and that the testator was of sound mind and disposing memory at the time of execution.
Issues: Whether the will was obtained through undue influence and coercion, and whether the testator was mentally unsound at the time of execution.
Ratio Decidendi: The High Court held that there was no evidence to support the appellants' allegations, and that the testator was of sound mind and disposing memory at the time of execution. The court noted that the testator had a law degree, and that he was aware of the contents of the will and the effect of his disposition. The court also noted that the testator had executed the will in the presence of two attesting witnesses, and that there was no evidence to suggest that the testator was under any undue influence or coercion at the time.
Final Decision: Appeal dismissed.
( 1 ) THIS first appeal is at the instance of dendants No. 1 (a)to l (c) in a probate proceeding and is directed against the judgement and decree dated 29th June, 2005 passed by the learned Additional District Judge, fast Track Court No. 1, Alipore in Original Suit No. 3 of 2005 (Old No. O. S. 56 of 1950) thereby allowing the application for grant of probate filed by the plaintiff/respondent as executor in respect of the Will dated 1st March. 1949 executed by the testator Bimal Behari Sen (since deceased) in favour of his daughter Gita Rani Sen.
( 2 ) THE facts of the case may be summarised as follows: the name of plaintiff has appeared in the cause title of appeal and in lower Court Record in different manner; somewhere as Arun Kumar Bose, somewhere Arun Coomar Bose and in the Will as Aroon Kumar Bose. For the sake of convenience in this judgment we shall use his name as Aroon kumar Bose.
( 3 ) THE plaintiff/respondent instituted the suit for grant of probate of the last Will and testament of one Bimal Behari Sen (since deceased) dated 1st march, 1949 bequeathing premises No. 29, Pipe Road, Khidderpore exclusively to his daughter, Gita Rani Sen who was then a minor. In the said Will one Ajit Kumar Bose was appointed as the first executor. His son aroon Kumar Bose was made the second executor. It was mentioned in the will that in case the first executor was not Willing to do needful or apply for probate of the Will or to act as executor in the said Will, the second executor would be entitled to do the needful. The first executor Ajit Kumar Bose refused to act as executor and as such the second executor namely Aroon kumar Bose, as plaintiff, filed the application on 8. 12. 1949 for grant of probate on the Will dated 1st March, 1949 made by the testator Bimal Behari Sen and as it was contested it was registered as 0. S. No. 56 of 1950.
( 4 ) IT was disclosed in the said application for probate that the deceased was governed by the Dayabhaga School of Hindu Law and at the time of his death the testator had his permanent place of residence at 26b, Ashutosh mukherjee Road within the Police Station Bhawanipore. The said Will was duly executed and attested in presence of witnesses and was proved by the declaration of Dr. Arun Prasad Ghosh, one of the attesting witnesses of the will. The testator at the time of his death left behind him his surviving son broja Behari Sen and three daughters namely, Smt. Biva Rani Mitter, Smt. Mira Rani Ghosh and Kumari Gita Rani Sen and widow mother Smt. Surabala Sen. It was also mentioned in the said application that no previous application was made to any Court for probate of the said Will or for letters of administration. The deceased prior to his death deposited the said Will with the Registrar of Assurance, Calcutta for safe custody. The petitioner has learnt that Broja Behari Sen (since deceased) has entered a caveat in the case and accordingly he filed the application for probate and is ready to pay ad valorem duty after the caveat is discharged.
( 5 ) BROJA Behari Sen (since deceased) contested the suit by filing written statement and, inter alia, contended that his father died leaving behind him as his only son, two married daughters, one unmarried daughter and aged widow mother. The applicant Aroon Kumar Bose is the son of Ajit Kumar bose, brother of the wife of the testator and they were residents of 76, amherst Row, Calcutta. Ajit Kumar Bose and Aroon Kumar Bose are suppliers of labourers to tea gardens and have allied business situated at room. No. 2, Church Lane, Calcutta. Since the death of grandfather late bipin Behari Sen, his father was all along under the influence and control of ajit Kumar Bose and his family. His father was made Director and employee in some of the concerns of the said Ajit Kumar Bose and Aroon Kumar bose. Shares of the siad companies stood in his name which were transferred by him in their favour in or about the time of execution of the alleg
