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HIGH COURT OF CALCUTTA
J. P. MITTER, J.
Maniklal Shah
Versus
Hiralal Shaw
Testamentary Suit No. 12 of 1948
Decided On : 09-03-1949
Probate - Testamentary Jurisdiction - Succession Act, 1925, Section 263, Section 800, Section 2, Section 35, Section 77, Section 300, Section 2(bb), Letters Patent (1865), Clause 34 - The court discussed the testamentary capacity of the deceased, validity of the Will, and jurisdiction of the High Court under the Succession Act, 1925. The court held that the testator had the requisite testamentary capacity, the Will was validly executed, and the High Court had jurisdiction to entertain and try the suit.
Fact of the Case:
The suit involved the grant of probate of the Will of the deceased, who had three sons. The plaintiff, executor under the Will, sought probate, while the defendant, another son, contested on grounds of absence of citation and lack of testamentary capacity of the deceased.
Finding of the Court:
The court found that the testator had the requisite testamentary capacity, the Will was validly executed, and the defendant failed to prove undue influence or coercion. The court also held that the High Court had jurisdiction to entertain and try the suit.
Issues: The issues included the testamentary capacity of the deceased, validity of the Will, alleged undue influence, and the jurisdiction of the court to entertain the suit.
Ratio Decidendi: The court's decision was based on the proof of testamentary capacity, validity of the Will, and the jurisdiction of the High Court under the Succession Act, 1925.
Final Decision: The court decreed that probate of the Will be granted to the plaintiff.
2. The original application for grant of probate was presented on 18th December 1947. Hiralals name not having been mentioned in the said application as one of the sons of the testator, no citation was issued to him, and in due course, probate of the Will, which is dated 12th October 1946 was issued on 22nd December 1947. On 7th May 1948, Hiralal made an application for the revocation of the probate on the ground of absence of citation on him. This application was heard by Majumdar, J. who held that the want of citation was a just cause within the meaning of S. 263, Succession Act, and by his order dated 20th July 1948, he revoked the said grant. The directions given by Majumdar, J. as to the filing of the caveat and the supporting affidavit as also those in respect of discovery and inspection were complied with and the proceedings were marked as a contentious cause.
3. The testator Narsing Prosad Shaw, who was a Hindu governed by the Mitakshara School of Hindu law, lived at Dum-Dum. He had three sons, Maniklal - the plaintiff, Hiralal - the defendant and one Pannalal who predeceased the testator. Pannalals widow Binapani and his son Mrityunjoy are living. The testator who was a well-known wrestler in the locality died on 5th November 1946, admittedly at a very old age. As I have said before, the disputed "Will is alleged to have been executed on 12th October 1946, that is, less than a month before the testators death. By the said Will, which is in the Bengali language and character, he bequeathed all his properties and credits to the plaintiff and his grandson, the said Mrityunjoy Shaw, in equal shares, and appointed the plaintiff the sole executor. Hiralal was completely left out. The reason for Hiralals exclusion from the "Will is stated in the within the following terms :
"My second son Sreeman Hiralal Shaw left me long ago and having built houses etc., at a different place is in the enjoyment and possession of the same. His financial position is also good. But it never strikes him that he ought to be tending and nursing his aged father."
4. Defendant Hiralals case, inter alia, is that the testator was about 100 years of age when the Will is said to have been executed and that by reason of his old age and illness to which he later succumbed, his father had no testamentary capacity, that the alleged signatures of the testator in the Will did not appear to be in the handwriting of the testator and that, if the signatures be held to be genuine, the plaintiff in collusion with two lawyer friends of his - Surath Nath Ganguli and Sachindra Nath Mitra - caused the alleged Will to be executed by his father "by undue influence, fraud and coercion." No particulars of the allegations of undue influence and coercion and of fraud were given and, curiously enough, no particulars were asked for on behalf of the plaintiff. After the opening by learned counsel on behalf of the plaintiff, the following issues were raised :
"(1) Had the deceased any testamentary capacity at the time of the execution of the Will ?
(2) Was the Will validly executed ?
(3) Was the Will executed under the under the influence of Maniklal ?
(4) Has this Court jurisdiction to entertain and try this suit ?"
To support his case the plaintiff, besides examining himself, called the two attesting witnesses to the Will - Surath Nath Ganguly and Sachindra Nath Mitra, as well as a neighbour by name Charu Chandra Samanta. [After dismissing the evidence His Lordships proceeded :] This brings me to the certified copy of the entry in the Register maintained by the Calcutta Corporation at the Cossipore Cremation Ghat. Chapter 31, Calcutta Municipal Act (1923) deals with the registration of
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