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IN THE HIGH COURT OF CALCUTTA
I.P. MUKERJI, J.
Seema Sarin & Reema Sarin
Vs.
Sudesh Chander Talwar
G.A. No. 3043 of 2010; P.L.A. No. 324 of 2007
Decided on: September 10, 2012
PROBATE - Revocation - Grounds - Fraud, Forgery - Applicants challenged grant of probate in common form alleging fraud and forgery in the will - Court held that applicants, being educated and professional women, had signed consent affidavits for grant of probate after understanding the contents of the will and that there was no fraud or coercion - Application for revocation of probate dismissed.
Fact of the Case:
The applicants, Seema and Reema Sarin, challenged the grant of probate in common form to their uncle, Sudesh Chander Talwar, as the executor of their grandmother's will. They alleged that the will was a forgery and that they had been fraudulently induced to sign consent affidavits for the grant of probate.
Finding of the Court:
The court found that the applicants were educated and professional women who had signed the consent affidavits after understanding the contents of the will. The court also found that there was no fraud or coercion involved in obtaining the applicants' signatures. The court further found that the signatures on the will were genuine and that there was no doubt in the mind of the court as to the execution of the will.
Issues: 1. Whether the applicants were fraudulently induced to sign the consent affidavits for the grant of probate? 2. Whether the will was a forgery? 3. Whether the signatures on the will were genuine?
Ratio Decidendi: 1. The court held that the applicants were not fraudulently induced to sign the consent affidavits as they were educated and professional women who had understood the contents of the will. 2. The court held that the will was not a forgery as the signatures on the will were genuine and there was no doubt in the mind of the court as to the execution of the will.
Final Decision: The court dismissed the application for revocation of probate.
I.P. Mukerji, J.:
INTRODUCTION
1. Mrs. Bhagwati Talwar lived mostly in Kolkata. Her residence was at 8 Dover Park, Kolkata-19. She also resided, sometimes in New Delhi where her home was at 6, Kautilya Marg, Chanakyapuri.
2. She had two sons, Sudesh Chander and Jagdish Chander and two daughters, both married, Mrs. Neena Sarin and Mrs. Kuku Narang.
3. Mrs. Kuku Narang died prematurely, on 12th May, 1979.
4. For whatever reason, Mrs. Neena Sarin and her family resided in Mrs. Talwar's residence in New Delhi for a long time, since September 1977. Mrs. Neena Sarin lived there with her husband Uday and their two daughters, Seema and Reema. Both these daughters are educated and professional women.
5. Mrs. Bhagwati Talwar is said to have made her last Will and Testament on 3rd January, 1995. The document shows attestation by two witnesses, Mr. B.D. Khaitan of 38. Ballygunge Park, Kolkata-19 and Mrs. Sarla Gulati of 36 D, Beniapukur Road, Kolkata-14.
6. The relevant part of the bequest was that the Delhi property was given to her two sons Jagdish Chander and Sudesh Chander and her daughter Mrs. Neena Sarin absolutely in equal shares. But the bequest had a condition. In case Mrs. Neena Sarin died before the testatrix, the property would go to her two sons equally. In case any of the sons died his share would go to his heirs. The testatrix appointed her son Sudesh Chander as the executor of the alleged will.
7. Very unfortunately Mrs. Neena Sarin, did not survive the testatrix. She died on 16th May, 2003.
8. The testatrix died on 29th November, 2006.
9. The executor obtained probate of the Will, from this Court, in common form, on 18th December, 2007, the formal document being issued on 10th January, 2008. The probate was granted amongst other things on the basis of consent affidavits sworn by Seema and Reema Sarin. Now, Seema and Reema Sarin come up before this Court, challenging the grant of probate, urging that the will be proved by the executor, in solemn form.
MORE DETAILS
10. Now, the facts leading up to the grant of probate and its challenge in this Court have to be examined.
11. On 6th September, 2007, Mr. Sudesh Talwar wrote to Ms. Seema Sarin that an affidavit (draft) was enclosed with the letter in connection with "Mummy's probate". She had to get the affidavit "notorised in Delhi" and return it as soon as possible. It was also mentioned that she could retain an enclosed copy thereof. As this letter is of great importance, in my opinion, I read it in full :
" 6th September, 2007
Seema Sarin
6, Kautilya Marg
Chanakyapuri
New Delhi-110 021
Dear Seema,
Enclose herewith an affidavit which I need you to sign (full signature i.e. Seema Sarin) and fill in the date (in the places marked with pencil). Please get this affidavit notarized in Delhi and send it back to me as soon as possible. I require this for Mummy's probate. (I need the green paper' one back and the white paper one is a photocopy for you to keep.)
Lots of love,
Yours affectionately,
Shudu Mama"
12. The draft consent affidavit appended to the letter, according to its contents, was being filed in a proceeding marked as PLA 324 of 2007 in this High Court in its Testamentary and Intestate jurisdiction. In the cause title part of the affidavit it was spelt out that it was a testamentary matter relating to Bhagwati Talwar. The draft affidavit disclosed that apart from Mrs. Seema Sarin. Bhagwati Talwar had left behind Jagdish and Sudesh Talwar, her sons, Ms. Navina Punj and Mr. Devinder Raj Narang, daughter and son respectively of the deceased daughter of Bhagwati Talwar, Kuku Narang and Ms. Reema Sarin, as her natural heirs. Furthermore, Bhagwati Talwar had left behind her last Will and Testament dated 3rd January, 1995. Ms. Reema Sarin had no objection to the grant of probate of this Will granted to Mr. Sudesh Talwar, the executor. An identical draft affidavit was also prepared for the signing of Ms. Reema Sarin.
13. Ms. Seema Sarin affirmed this affidavit before a Notary in De
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