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HIGH COURT OF CALCUTTA
DAS,DEBABRATA MOOKERJEE, JJ.
Sarat Chandra Mondal
Versus
Panchanan Mondal
A. F.O.D. (Probate) No.39 of 1951
Decided On : 11-02-1953
WILL - Presumption of due execution and attestation - S.90, Evidence Act - Applicability to Wills - Extent of presumption - Rebuttal - Undue influence - Delay in publication of Will - Omission to mention movables in application for Letters of Administration - Locus standi of heirs of executor to apply for Letters of Administration - Residuary legatee.
Fact of the Case:
The testator, Giridhar Mondal, executed a Will on 18-2-1920, which was registered on 10-3-1920. He died on 11-7-1921. The Will was tendered for proof in 1950. The objectors challenged the due execution and attestation of the Will, claiming that the formalities were not complied with. They also alleged undue influence, suspicious circumstances, and defects in the application for Letters of Administration.
Finding of the Court:
The Court held that the presumption of due execution and attestation under S.90 of the Evidence Act applies to Wills. The Court further held that the presumption was not rebutted by the evidence led by the objectors. The Court also found that there was no evidence of undue influence or suspicious circumstances. The Court dismissed the objections and granted Letters of Administration with a copy of the Will annexed.
Issues: 1. Whether the presumption of due execution and attestation under S.90 of the Evidence Act applies to Wills. 2. Whether the presumption was rebutted by the evidence led by the objectors. 3. Whether there was undue influence or suspicious circumstances. 4. Whether there were defects in the application for Letters of Administration. 5. Whether the heirs of the executor had locus standi to apply for Letters of Administration.
Ratio Decidendi: 1. The Court held that the presumption of due execution and attestation under S.90 of the Evidence Act applies to Wills, relying on the decisions in Gobinda Chandra Pal v. Pulin Behary, Mahendra Nath Surul v. Netai Charan Ghosh, and Munnalal v. Mst. Kashibai. 2. The Court held that the presumption was not rebutted by the evidence led by the objectors, as the evidence did not conclusively establish that the formalities were not complied with. 3. The Court held that there was no evidence of undue influence or suspicious circumstances. 4. The Court held that there were no defects in the application for Letters of Administration, as the omission to mention movables and the failure to cite certain heirs were not fatal defects. 5. The Court held that the heirs of the executor had locus standi to apply for Letters of Administration, as Shyamacharan, the executor, was a residuary legatee under the Will.
Final Decision: The Court dismissed the objections and granted Letters of Administration with a copy of the Will annexed.
DAS, J.: - This is an appeal by the objectors against a decision of Mr. R.N.Roy, learned Subordinate Judge, 6th Court, 24-Parganas, granting Letters of Administration to the estate of Giridhar Mondal with a copy of the Will dated 18-2-1920, annexed.
2. The Will which is in question in this appeal was executed by Giridhar Mondal on 18-2-1920, and was registered on 10-3-1920. The terms of the Will will be set out hereafter. In order to appreciate the contentions which have been urged in this appeal it is necessary to set out the genealogical tree.
The testator was suffering from dysentery for some time and it is admitted by the witnesses on behalf of the propounder that his hands and feet were swollen and that he was physically weak. No steps were taken to propound the Will till 1947. The testator died on 11-7-1921. The learned Subordinate Judge, as I have already said, granted Letters of Administration with a copy of the Will annexed. Mr. Roy Choudhury who has appeared in support of the appeal has raised several contentions.
3. In the first place, he was contended that the Will has not been proved to have been duly executed and attested. In particular, he has admitted that there is no evidence that the formalities attending due attestation were complied with in this case. He has referred us to the evidence of the witnesses who had deposed to the attestation" of the Will. The evidence of these witnesses merely shows that the testator signed the Will and that they attested the Will. It has not been definitely stated by them that they signed in the presence of the testator. On this submission, a question of law arises, namely, whether the Court is entitled to presume the due execution and attestation of a Will such as the present one is, under S.90, Evidence Act. The Will bears the date 18-2-1920. It was registered on 10-3-1920. The testator died on 11-7-1921. The Will was tendered for proof on 27-6-1950 and on that date the Will was proved by P.W. 1 Jogendra and was marked as Exht.1.
4. Under S.90, Evidence Act, the Court may presume that any document purporting to be, or proved to be, 30 years old, and produced from proper custody, was duly signed by the person by whom it purports to have been signed. There is also a presumption that in case of a document which purports to have been signed and attested the Court may presume that it was duly signed and attested. The question which has been canvassed in this appeal is that the presumption which arises under S.90, Evidence Act, should not be drawn in case of a Will the genuineness of which is in controversy in the Probate Court. The reason suggested is that the propounder may antedate the Will and thereby call in his aid the presumption under S.90, Evidence Act. Some support for this view may be found in a decision of this Court in the case of Shyam Lal Ghosh v. Rameswari Bosu, AIR 1916 Cal 938 (A). In a later decision of this Court in the case of - Gobinda Chandra Pal v. Pulin Behary, AIR 1927 Cal 102 (B), the view expressed in the above case of AIR 1916 Cal 938 (A) was distinguished on the ground that the observations therein contained were obiter dicta. The view taken in the case of AIR 1927 Cal 102 (B) was affirmed by this Court in the case of - Mahendra Nath Surul v. Netai Charan Ghosh, ILR (1943) 1 Cal 392 (C). The view taken in the last two decisions of this Court has now been approved by the Judicial Committee in the case of - Munnalal v. Mst. Kashibai, AIR 1947 PC 15 (D).
5. This, however, does not dispose of another contention which was raised on behalf of the appellants, namely, that the period of three (thirty?) years would run not from the date of the Will but from the date on which the testator died. The reason given for this contention is that the Will does not operate till the death of the testator. This submission cannot, however, be accepted. The reason for the rule embodied in S.90, Evidence Act, is based on the impossibility of obtaining living testimony to
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