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2000 Supreme(Cal) 219
High Court of Calcutta
Samaresh Banerjea & G.C. De, JJ.
Smt. Promila Sundari Devi & Ors.
Vs.
Bijoy Ghosal & Ors.
F.A. No. 38 of 1987
Decided on : 28th April, 2000
Animesh Ghoshal, Chandramala Mukherjee, Joydip Ghosh for the petitioner
S.P. Roychowdhury, Tapas Middya, Banani Chatterjee for the respondent
The propounder of a Will has the onus to prove the due and valid execution of the Will and to remove any suspicious circumstances surrounding the execution of the Will.
Headnote:
WILL - Execution and Attestation - Testamentary Capacity - Proof - Onus - Suspicious Circumstances - Removal - Genuine Will.
Fact of the Case:
Appellants filed an application for grant of Letter of Administration with the Will annexed for the estate of Late Nepal Chandra Acharyya Ghosal, the husband of the appellant No.1 and father of the other appellants. The respondent contested the said proceeding by filing objection specifically pleading inter alia, that the alleged Will is not a genuine Will of the testator; the same has not been duly attested or executed; the same does not contain expression of free Will of the testator and the testator had no physical or mental capacity to execute the alleged Will at the time of alleged execution of the same.
Finding of the Court:
The learned Judge after consideration of the entire evidence on record, in the impugned judgment and decree has held that the Will was not signed by the testator in the manner it was indicated by the plaintiff and on perusal of the Will it will appear that the signature of the testator was already in existence on the said dead and therefore the Will is not a genuine Will. It has also been held by the learned Judge that the testator had no testamentary capacity at the time of execution of the Will. The learned Judge has also held that there was suspicious circumstances surrounding the execution of the Will and the propounder failed to remove such suspicion.
Issues: 1. Whether the Will was duly executed and attested? 2. Whether the testator had the testamentary capacity to execute the Will? 3. Whether there were suspicious circumstances surrounding the execution of the Will?
Ratio Decidendi: 1. The propounder of a Will has the onus to prove the due and valid execution of the Will and to remove any suspicious circumstances surrounding the execution of the Will. 2. In the instant case, the propounder failed to prove the execution of the Will by the testator and the Will was not a genuine Will. 3. The Will was shrouded with suspicion due to the placement of the testator's signature below the signature of the attesting witnesses, the existence of two signatures of the testator, and the position of the signature of the attesting witnesses just below the writings of the Will above the signature of the testator. 4. The propounder failed to remove the suspicious circumstances surrounding the execution of the Will by giving a satisfactory explanation.
Final Decision: The appeal was dismissed, and there was no order as to costs.
Samaresh Banerjea, J.
The present appeal arises out of a Letter of Administration suit wherein by judgment and decree dated 7th October, 1985, the trial court has refused grant of Letter of Administration.
2. The appellants herein filed an application for grant of Letter of Administration with the Will annexed for the estate of Late Nepal Chandra Acharyya Ghosal, the husband of the appellant No.1 and father of the other appellants.
3. It is the case of the plaintiff that said Nepal Chandra Acharjya Ghosal, the husband of the appellant No.1 and father of the other appellants the testator, before his death on 14th October, 1974 executed a Will of June 26, 1974 corresponding to 11th Ashar, 1381 B.S. in presence of the witness without appointing any executor of his Will, bequeathing his property to the appellants, out of his free will and having the testamentary capacity.
4. The respondent herein contested the said proceeding by filing objection specifically pleading inter alia, that the alleged Will is not a genuine Will of the testator; the same has not been duly attested or executed; the same does not contain expression of free Will of the testator and the testator had no physical or mental capacity to execute the alleged Will at the time of alleged execution of the same. It was also pleaded that such Will is a product of misrepresentation and fraud and signature of the testator are to genuine and such Will is a unnatural Will. It was further specifically pleaded that the testator was suffering from senile decay due to his old age and he was suffering from Dropsy and blood vomitting and he was ultimately hospitalised and he was almost blind at the time of alleged execution of the Will; the testator was ill-treated by the second wife (appellant No.1) and ultimately died at hospital. It was further pleaded that the alleged Will is not the Will of testator and in any event the same was not voluntary act or expression of free will of the testator.
5. At the hearing of the suit the propounder examined the scribe of the Will of Krishna Chandra Ghosh, as also the two attesting witnesses Palan Chandra Naskar and Makhan Lal Naskar as also Niranjan Acharjya, brother-in-law of the testator (wife's brother) who was allegedly present at the time of execution of the Will.
6. The learned Judge after consideration of the entire evidence on record, in the impugned judgment and decree has held that the Will was not signed by the testator in the manner it was indicated by the plaintiff and on perusal of the Will it will appear that the signature of the testator was already in existence on the said dead and therefore the Will is not a genuine Will.
7. It has also been held by the learned Judge that the testator had no testamentary capacity at the time of execution of the Will. The learned Judge has also held that there was suspicious circumstances surrounding the execution of the Will and the propounder failed to remove such suspicion.
8. Having heard the learned Advocate for the parties and considering the entire material on records we are in full agreement with the learned Judge that the Will is not genuine and the plaintiff failed to remove the suspicious circumstances surrounding the execution of the Will and do not find any reason to interfere with the judgment and decree of the trial court.
9. Before going into the merits of the case, it is indeed fruitful to refer to the decision of the Supreme Court in the case of M. Venkatachala Iyengar vs. B.N. Thimma Jamma & Ors., reported in AIR 1959 S.C. 443, where the Supreme Court had occasion to summarise the law relating to onus of proof of a Will; nature of appreciation of evidence and duty of the court in respect thereof.
10. In this connection paragraphs 18, 19 and 20 of the said judgment may be quoted hereunder wherein Their Lordships of the Supreme Court laid down the law as to the proof of execution of the Will, nature of appreciation of evidence and duty of the court.
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