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IN THE HIGH COURT AT CALCUTTA
Subhro Kamal Mukherjee & Tarun Kumar Gupta, JJ.
Ranjan Kumar Mitra
Versus
Swapanendra Krishna Deb & Ors.
F. A. No.47 of 2008; F. A. T. No.1704 of 2005
Decided on : December 23, 2011
WILL - PROBATE - EXECUTION - VALIDITY - FORGED SIGNATURE - COMPARISON OF SIGNATURES - SECTION 73 OF INDIAN EVIDENCE ACT - INTERPRETATION - COURT'S POWER - SUSPICIOUS CIRCUMSTANCES - PROOF OF WILL - ADMISSIBILITY OF EVIDENCE - RELEVANCE - FACTORS TO CONSIDER - TESTATOR'S CAPACITY - UNDUE INFLUENCE - BURDEN OF PROOF - INTERPRETATION OF WILL - BENEFICIARIES - SELECTION - REASONS - PROBABILITY - COURT'S DISCRETION - APPEAL - INTERFERENCE - COSTS.
Fact of the Case:
Probate proceeding contesting the validity of a will executed by Sudhindra Krishna Deb, deceased, appointing the plaintiffs as executors. The main contentions were that the testator lacked testamentary capacity, the will was not signed out of free volition, it was not properly attested, it was not genuine and valid, and the applicants were not entitled to probate. The Trial Court granted probate, and the appellant, Ranjan Kumar Mitra, representing his deceased mother, Geeta Rani Mitra, appealed.
Finding of the Court:
1. The testator had the capacity to execute the will and signed it out of his free volition. 2. The will was properly attested and proved according to law. 3. The signature on the will, though different from the admitted signatures of the testator, was not forged. 4. The will was not executed under suspicious circumstances. 5. The beneficiaries were selected by the testator for valid reasons, considering their close relationship and financial needs.
Issues: 1. Whether the testator had testamentary capacity to execute the will. 2. Whether the testator signed the will out of his free volition. 3. Whether the will was properly attested. 4. Whether the will was genuine and valid. 5. Whether the applicants were entitled to probate.
Ratio Decidendi: 1. The Court has the power to compare disputed signatures with admitted signatures under Section 73 of the Indian Evidence Act. 2. The mere presence of some differences in signatures does not render a signature forged, especially when executed by an aged person on an important document like a will. 3. The burden of proving undue influence lies on the party alleging it. 4. The selection of beneficiaries in a will is a matter of the testator's discretion, and the Court will not interfere unless there are compelling reasons.
Final Decision: The appeal was dismissed, and the order granting probate was upheld. No order was passed as to costs.
Tarun Kumar Gupta, J.:-
This appeal is directed against judgment and decree dated March 25, 2005 passed by learned Judge 3rd Bench City Civil Court, Calcutta in O. C. No.13 of 1996. By the impugned judgment learned Trial Court granted probate in respect of the will dated April 19, 1992 executed by one Sudhindra Krishna Deb appointing the plaintiffs as executors.
2. Being aggrieved with said judgment and decree this appeal has been filed by Ranjan Kumar Mitra being substituted Opposite Party No.3 in place of his mother Geeta Rani, since deceased.
3. Respondent No.1 and 2 claiming to be executors of the will dated April 19, 1992 executed by Sudhindra Krishna Deb, filed said case praying for probate of the will. According to them Sri Sudhindra Krishna Deb alias Kumar Sudhindra Krishna Deb executed his last will dated April 19, 1992 bequeathing all his properties, both movable and immovable, through said will appointing said petitioners as joint executors. Accordingly, there is a prayer for probate of said will.
4. Said probate proceeding was contested by Smt. Ashalata Mitra, Opposite Party No.2 (proforma respondent No.4) and present appellant Ranjan Kumar Mitra, Opposite Party No.3 by filing two separate written statements on affidavits. Their main contentions were as follows:-
5. Deceased Sudhindra Krishna Deb died on November 5, 1994 as bachelor leaving behind his brother Sailendra Krishna Deb (Opposite Party No.1), Sister Ashalata Mitra (Opposite Party No.2) and sister Geeta Rani Mitra (Opposite Party No.3) as his only legal heirs. The deceased was highly educated and he would not have signed the will knowingly as it was drafted with poor English. The testator had best of relation with his sisters namely Ashalata Mitra and Geeta Rani Mitra and their sons namely Asoke Mitra and Ranjan Mitra. Rather he was not at all in good terms with alleged executors namely Swapanendra and Samirendra being sons of his two pre-deceased elder brothers namely Sourindra and Sudhirendra. The testator was not also very happy with Sandipendra, the son of his younger brother Salilendra. It is quite unbelievable that the testator will bequeath all his properties in favour of his three nephews namely Swapanendra, Samirendra and Sandipendra and his younger brother Salilendra depriving his living sisters namely Ashalata Mitra and Geeta Rani Mitra. The testator lost his mental faculties and was suffering from various ailments for last 8-10 years before his death. In 1992 he was not mentally and physically fit to execute the alleged will knowing its contents. The signatures appearing on the will also did not tally with the admitted signatures of the testator. The beneficiaries as well as attesting witnesses of the will were not in conformity with the liking and taste of the testator. Salilendra, the younger brother of the testator, did not disclose about the alleged will even after death of the testator and rather asserted that there was no will of he testator. Salilendra, on the other hand, tried to pursue their sisters namely Ashalata and Geeta Rani to take some money and to relinquish their claim over the property of testator. As those sisters were not agreeable to said proposition the alleged will was later on produced. It was either obtained on exercise of undue influence or by manufacturing forged signatures of the testator thereupon. The will was clouded with suspicious circumstances and its probate should not be granted.
6. On the basis of the pleadings of the parties learned Trial Court framed the following issues for determination.
1. Had the testator testamentary capacity to execute the Will?
2. Did the testator sign the Will out of his free volition?
3. Is the Will properly attested?
4. Is the Will genuine & valid?
5. Is the applicant entitled to probate of the will?
6. To what relief, if any, is the applicant entitled?
7. Executors examined three witnesses namely Megnath Banerjee (P.W.1), Kamal Krishna Ghosh (P.W.2) and Swapendra Krishna
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