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2006 Supreme(Cal) 571
High Court Of Calcutta
Before: Kalyan Jyoti Sengupta And Sanjib Banerjee, JJ.
PRATAP BHATTACHARYA - Appellant
Versus
ASHOKE BHATTACHARYA - Respondent
Arising Out Of F. A. T. 116 Of 2001
Decided On : 09/06/2006
ANIL KUMAR RAKSHIT, Diptendu Majumdar, Pasupati Jana
A holograph Will, coupled with registration, carries a presumption of genuineness but must be executed and attested in accordance with Section 63(c) of the Indian Succession Act, 1925, to be accepted as a testamentary instrument. The statement of the testator regarding the signature of an attesting witness is admissible under Section 6 of the Evidence Act, 1872, if it forms part of the same transaction and is made contemporaneously with the execution of the Will.
Headnote:
WILL - Execution and Attestation - Holograph Will - Registration - Admissibility of Statement of Testator - Suspicious Circumstances - Onus of Proof - Indian Succession Act, 1925, Sections 63(c), 68 - Evidence Act, 1872, Sections 6, 18(2) - A holograph Will, coupled with registration, carries a presumption of genuineness but must be executed and attested in accordance with Section 63(c) of the Indian Succession Act, 1925, to be accepted as a testamentary instrument.
Fact of the Case:
Puma Chandra Bhattacharya, the testator, executed a holograph Will in 1974, bequeathing all his properties to his second wife, Ashalata Debi, and appointing her as sole executrix. After her death, the estate was to be distributed among the testator's children as per his specifications. The appellant, Pratap, the testator's son from his first marriage, contested the Will, alleging fraud, coercion, undue influence, and mental incapacity of the testator.
Finding of the Court:
The Court held that the Will was valid and executed in accordance with the law. The Court found that the testator had signed the Will in the presence of two attesting witnesses, one of whom testified in court. The Court also found that the testator had acknowledged the signature of the other attesting witness, whose signature was not disputed. The Court further held that the statement of the testator regarding the signature of the other attesting witness was admissible under Section 6 of the Evidence Act, 1872, as it formed part of the same transaction and was made contemporaneously with the execution of the Will.
Issues: 1. Whether the Will was executed and attested in accordance with the provisions of Section 63(c) of the Indian Succession Act, 1925. 2. Whether the statement of the testator regarding the signature of the other attesting witness was admissible under the Evidence Act, 1872. 3. Whether there were any suspicious circumstances surrounding the execution and attestation of the Will.
Ratio Decidendi: 1. The Court held that the Will was executed and attested in accordance with the provisions of Section 63(c) of the Indian Succession Act, 1925, as the testator had signed the Will in the presence of two attesting witnesses, one of whom testified in court, and the testator had acknowledged the signature of the other attesting witness. 2. The Court held that the statement of the testator regarding the signature of the other attesting witness was admissible under Section 6 of the Evidence Act, 1872, as it formed part of the same transaction and was made contemporaneously with the execution of the Will. 3. The Court held that there were no suspicious circumstances surrounding the execution and attestation of the Will, as the testator had explained the reasons for depriving the appellant in the Will, and the disposition of the property was not unnatural or unusual.
Final Decision: The Court dismissed the appeal and upheld the Judgment and findings of the learned Trial Judge. The Court granted Letters of Administration with the copy of the Will annexed, modifying the order of the Trial Judge.
( 1 ) THIS was an appeal against the Judgment and order dated 18th November, 2000 passed by the learned Trial Judge in probate Suit No. 8 of 1959 whereby and whereunder Letters of administration were granted with the Will annexed to the probate application.
( 2 ) THE facts of the case leading to filing of this appeal are briefly stated hereunder: asoke Bhattacharya, the sole respondent herein, on or about 19th may, 1988 applied for grant of letters of administration with the copy of the Will annexed, of his father late Puma Chandra Bhattacharya. Purna died on 28th September, 1979 leaving behind a document said to be last testamentay one dated 2nd August, 1974. The said testamentary instrument is described to be a holograph will which was also registered in the office of the Sub-Registrar of Serampore on the same date. Purna had married twice. His first wife Chameli, pre-deceased him in 1930 and in 1932 he married Ashalata Debi. His first wife Chameli gave birth to three sons viz. Pratap who is the appellant before us, Kapil and one chandra Bhusan, a pre-deceased son and a daughter Shefali. His second wife Ashalata gave birth to two sons viz. Ashoke, being the respondent and Amiya who also died by this time leaving him surviving sole widow and Jayanti and his son, Amitabha and five daughters viz. Dipali, Sadhana, Aruna, Ruby and Bandana,
( 3 ) BY the said Will Purna had bequeathed all his properties left by him at the time of his death in favour of his second wife Ashalata Debi exclusively and he also appointed her as sole executrix for obtaining probate of the said Will. After her death, in terms of the Will, all his estate and properties if not disposed of by his second wife Ashalata during her life time, were devolve upon the persons in accordance with the specification and stipulation made by the said testator in his Will. It appears from the text of the Will that Asoke and Amiya, being the two sqns out of the second marriage, have been given their proprietory interest in the estate as specified in the Will. The testator Purna did not deprive Kapil being the son through his first wife. He has deprived the daughters of any proprietary right, title, interest in his estate. However, they have been given right to stay and use in the event new construction is made on the second floor of the main building by Amiya, the fourth son, in his allotment. Pratap, the appellant has been absolutely deprived for the reasons mentioned in his document. It further appears from the text of the document that at the time of execution, attestation and registration of the same, the appellant was allowed to stay temporarily in a tile shed room situate within the premises.
( 4 ) ADMITTEDLY there has been a delay in filing the application as the deceased died on 28th September, 1979 whereas the application was filed on 19th May, 1988. This delay is sought to be explained by the applicant/respondent stating that existence of this instrument was not within his knowledge and it was discovered while searching his deceased mother's trunk. Actually, this search was necessitated to be made for finding a draft deed of gift required to adduce same in evidence in Title Appeal Nos. 112 and 113 of 1984 in the Court of Assistant District judge. The testamentary document was found on 8th May, 1988.
( 5 ) DESPITE citations being issued upon all the heirs and legal representatives who could have inheritated in case of death intestacy none contested the proceedings except the appellant. In fact, it appears from the records that some of the heirs or heiresses filed no objection in writing. We need not specifically mention who filed written consent and who did not as it is not much relevant in testamentary proceedings. The Appellant alone contested taking various pleas, the substance of which is as follows:
(a) The said Will was not executed neither registered by his father purna nor was there any attestation hs any witness. (b) Even if it is pro
