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2008 Supreme(Cal) 597
High Court Of Calcutta
Indira Banerjee, J.
Maya Sinha - Appellant
Versus
Somendra Sinha Alias Somendra Prasad Sinha – Respondent
A.P.D. 556 of 1994 Testamentary Suit No.4 of 1989
Decided on : Jun 19, 2008
The execution of a will surrounded by suspicious circumstances, the testator's feeble and debilitated mind, or an unnatural, improbable or unfair will, casts the burden on the propounder to remove all legitimate doubts before the will can be accepted as genuine.
Headnote:
INDIAN SUCCESSION ACT - WILL - EXECUTION AND ATTESTATION - PROBATE - GENUINENESS - TESTAMENTARY CAPACITY - UNDUE INFLUENCE - SUSPICIOUS CIRCUMSTANCES - BURDEN OF PROOF - ANCESTRAL PROPERTY - UNNATURAL BEQUEST - EVIDENCE - APPRECIATION.
Fact of the Case:
A single Judge of the Calcutta High Court dismissed a testamentary suit filed by the propounder of a will, holding that the will was not genuine and that the conscience of the Court was not satisfied that the will had been executed by the testator of his own free will and volition. The propounder appealed against the judgment.
Finding of the Court:
The Division Bench of the Calcutta High Court held that the appeal should be dismissed. The Court found that the execution of the will was surrounded by suspicious circumstances and that the propounder had not been able to remove all legitimate doubts. The Court also found that the bequest of ancestral property to an outsider, to the exclusion of the testator's own blood relations, was unnatural and improbable.
Issues: 1. Whether the will was genuine and had been executed by the testator of his own free will and volition? 2. Whether the testator had testamentary capacity at the time of execution of the will? 3. Whether the will had been obtained by fraud, undue influence or coercion? 4. Whether the bequest of ancestral property to an outsider, to the exclusion of the testator's own blood relations, was unnatural and improbable?
Ratio Decidendi: 1. The onus of proving a will is on the propounder. 2. When there are suspicious circumstances, the onus is on the propounder to clear the suspicion so that the will could be accepted as genuine. 3. If the propounder has himself taken a prominent part in the execution of the will, which confers on him substantial benefits, the Court would satisfy its conscience that all legitimate suspicion were completely removed before the document was accepted as the last will of the testator. 4. Bequest of property to an outsider in preference to family members is not in itself unnatural, but one does not ordinarily bequeath ancestral property including the residential house to outsiders in preference to the blood related lineal descendents of those from whom the testator inherited the property.
Final Decision: Appeal dismissed.
1. THE Judgment of the Court was as follows: This appeal is against the judgment and decree dated 22nd July, 1994 passed by the learned Single Judge, dismissing Testamentary Suit No.4 of 1989, inter alia holding, that there were suspicious circumstances surrounding the execution of the Will and that the conscience of the Court was not satisfied that the Will dated 24th May, 1988 had been executed by the testator of his own free will and volition.
2. THE above appeal was heard by a Division Bench comprising A.K. Banerjee and T.K. Giri, JJ. THE Division Bench, however, could not agree and the appeal has accordingly been referred by the Hon'ble Chief Justice to me, as third Judge.
While A.K. Banerjee, J. is of the view that the appeal should be allowed and probate of the Will, as prayed for, be granted, T.K. Giri, J. is of the view that the appeal should be dismissed.
3. THE issues before the learned single Judge were whether the Will dated 24th May, 1988 was genuine, whether the Will had duly been executed and attested; whether the testator had testamentary capacity at the time of execution of the Will; whether the Will had been obtained by fraud, undue influence or coercion as alleged in support of the caveat and the relief to which the parties were entitled.
4. THE learned single Judge found that the Will was not genuine, in the sense that it was not a Will made by a man of his own free will, having sound state of mind, as the testator had no testamentary capacity at the time of execution of the Will.
On the basis of the evidence on record, the learned Single Judge concluded that the execution of the Will was surrounded by suspicious circumstances and the propounder had not been able to clear the conscience of the Court that the Will was genuine, and made by the testator of his free will, in sound disposing state of mind.
5. THE learned single Judge, however, held that the Will had been executed and attested in accordance with the provisions of section 63 of the Indian Succession Act. THE caveator had failed to discharge his onus of establishing that the Will had been obtained by fraud, undue influence or coercion.
6. A.K. Banerjee, J. is of the view that the appeal should be allowed since the learned single Judge has held that the execution of the Will has been proved, and the caveators have failed to discharge their onus of establishing that the Will was obtained by fraud, coercion or undue influence, and also since there is no evidence on record to show that the testator was not of sound mind at the time of execution of the Will.
The properties of the testator included an undivided 1/3rd share in 18 cottahs of land at 39L Suren sarkar Road, in the heart of the city of Calcutta and 1/3rd share in a dwelling house at 39K Suren Sarkar Road, separated from 39L Suren Sarkar Road by a lane. With the rising demand for apartments in the city, the properties are a gold mine for developers and promoters.
7. THE testator died on 21st July, 1988. THE purported will as allegedly executed on 24th May, 1988, less than two months before the death of the testator and registered in the office of the Sub-Registrar, Sealdah on the same day. THE Sub-Registrar was apparently brought to the residence of the testator on commission. None of the witnesses who deposed on behalf of the propounder seem to know who called the sub-registrar to the testator's residence.
8. THE testator a bachelor has purportedly bequeathed his entire ancestral properties, including his ancestral residential dwelling house to the propounder, a servant, who worked at the testator's cowshed, to the exclusion of his own nephews and nieces including Somendra Prasad Sinha, the only surviving son of his deceased elder brother, Provat Kumar Sinha, who also resided in the same dwelling house with the members of his family. THE propounder has himself, in reply to Question No.135 to 137 and 140 admitted that he took part in the preparation of the will.
There also be doubt th
