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1998 Supreme(Cal) 335
IN THE HIGH COURT AT CALCUTTA
Ajoy Nath Ray & Dipak Prakas Kundu, JJ.
Rama Dutta & Ors.
vs.
Atanu Dutta
CIVIL APPEAL (PROBATE) APD No. 482 of 1989
Decided On : August 06, 1998
Pradip Ghosh, Dhruba Ghosh, M.S. Bhattacharjee Advocates for the appellant;
B.K. Bachawat, R.P. Mitra, D.N. Mishra Advocates for the respondent.
A propounder of an unnatural Will must provide a satisfactory explanation for any suspicious circumstances surrounding the making of the Will, failing which probate will be refused.
Headnote:
WILL - PROBATE - GRANT OF - UNNATURAL WILL - BURDEN OF PROOF - EXPLANATION BY PROPONDER - MYSTERIOUS CIRCUMSTANCES - FAILURE TO EXPLAIN - REFUSAL OF PROBATE.
Fact of the Case:
Judhistir Dutta, a wealthy spice merchant of Calcutta, executed a Will in 1971, granting life interest to his second wife Bhanumati and the rest of the absolute beneficial interest to their son Atanu, while specifically excluding his son Rabindra Nath Dutta from the Will. Rabindra Nath Dutta filed a caveat challenging the Will, alleging that it was unnatural and that his stepmother Bhanumati had influenced Judhistir to exclude him. The probate court granted probate to the propounder, Bhanumati.
Finding of the Court:
The court found that the execution and attestation of the Will were beyond suspicion and that Judhistir Dutta had the testamentary capacity and mental health to make the Will. However, the court found that there were suspicious circumstances surrounding the making of the Will, particularly the sudden change in Judhistir's mind to exclude Rabindra Nath Dutta from the Will within a span of six days, the involvement of Bhanumati and her brother Samarendra Nath Dawn in the execution and registration of the Will, and the lack of knowledge of the Will by Bhanumati and Atanu until after Judhistir's death. The court also found that the propounder had failed to explain these suspicious circumstances.
Issues: 1. Whether the Will was unnatural and required an explanation from the propounder. 2. Whether the propounder had provided a satisfactory explanation for the suspicious circumstances surrounding the making of the Will.
Ratio Decidendi: 1. An unnatural Will, which excludes expected heirs on intestacy, raises a suspicion of undue influence and requires the propounder to provide an explanation. 2. The propounder must dispel all reasonable suspicion and mystery surrounding the execution of the Will by providing a satisfactory explanation. 3. Failure to provide a satisfactory explanation for suspicious circumstances surrounding the making of the Will will result in the refusal of probate.
Final Decision: The court refused to grant probate of the Will, holding that the propounder had failed to dispel the suspicion of undue influence and to explain the mysterious circumstances surrounding the making of the Will.
The Court: The case concerns the grant of probate of a Will of Judistir Dutta, a reasonably wealthy spice merchant of Calcutta.
2. The Will was executed in July 1971. Judhistir died in 1978.
3. In the Court below probate was granted to the propounder being the Executrix Bhanumati Dutt, the second wife of Judhistir.
4. Sometime in the thirties Judhistir's first wife died leaving her surviving a son and a daughter named Rabindra and Anima. In the late thirties Judhistir married his second wife Bhanumati some 15 years younger than him. He had a son and a daughter again by his second wife they are Atanu and Arupa.
5. In the Will Bhanumati was granted life interest and Atanu was granted the rest of the absolute beneficial interest in practically all the properties of the deceased.
Rabindra Nath Dutta was specifically mentioned as excluded.
Thus the steep mother and the step brother got the property from Judhistir and Rabindra Nath Dutt, the Caveator was totaly excluded. This is as the will would appear to be from the point of view of the Caveator.
6. Rabindra's sister Anima also lodged a caveat but the case of the Caveatrix is much weaker than that of the Caveator because in this traditional North Calcutta Bengali family the daughters knew that they would not get much property and their brothers would get the property.
7. The probate application was made soon after Judhistir's death. The hearing of the probate matter went on from day to day and was concluded in 1984.
The judgment in the case by grant of probate was delivered to fewer than five years after the hearing was concluded. Thus, although the hearing was over in 1984 the present judgment under appeal was made known and published in 1989.
8. Twice during this long, unsatisfactory and unexplained span of five years, the matter appeared as For Judgment in the list but those appearances were not fruitful. We are of the opinion that there being no satisfactory explanation of the long gap of five years which occurred between the conclusion of hearing and the delivery of judgment, the judgment itself can be said to be a product, not of the hearing, which was five years old. It might be a product of notes or a re-reading of the papers but in all reasonable human minds a five year old hearing will have last much of its impact.
9. If it were possible for us, we would have remanded the matter for fresh trial as soon as the unexplained gap of five years (which had occurred some three years before the concerned Judge's retirement) was brought to our notice but a re-trial now would be impossible. Why it would be impassible will appear from the facts which are stated below.
When Judhistir died in 1978 he was full 70 years of age, as Rabindra said from the box. Therefore, in 1971 he was 63. At that time second wife was somewhere around 50 and Atanu was just under 18 years of age.
The Will was attested by one B.N. Dutt, a long standing practising Solicitor and Advocate of this Court; he had known Judhistir for upwards of 40 years. He had also known Rabindra practically from the time of his birth. Unfortunately B.N. Dutta is now dead. He had come before the Court as the first witness called by the propounder.
The other attesting witness to the Will was one Samarendra Nath Daw. He was Bhanumati's brother. Atanu has referred to him as his maternal uncle in his evidence. Samarendra Nath Daw did not come to the box but he died in the long span of five years i.e. during the period of reservation of the judgment.
The porpounder had called only two witnesses i.e. B.N. Dutt and Atanu. The propounder Bhanumati has died during the pendency of the appeal and Atanu has been substituted in her place and stead. Bhanumati never came to the box.
Rabindra Nath Dutt examined himself in support of his caveat He is also no longer alive. He has died some time around the delivery of the judgment, just a little before it actually got pronounced.
Two other witnesses came to oppose the Will, one being a private tutor and ano
