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1976 Supreme(Cal) 255
HIGH COURT OF CALCUTTA
Dipak Kumar Sen, J.
Netai Chand Mullick
Vs.
Biswanath Mullick & Ors.
Testamentary Suit No. 12 of 1971
Decided on : 23rd July, 1976
D.K. De, H.N. Sanyal for the plaintiff
Gouri Nath Mitter, Advocate General, H.M. Dhar, A. Ghosh for the defendants Nos. 1 and 2
Nirmal Mitra, G. Roy Choudhury for the defendant No. 3
Mrs. P. Banerjee for the defendant No. 4
The onus of proof is on the propounder of a Will to prove its due execution, registration, and the testamentary capacity of the testator. Suspicious circumstances surrounding the execution of a Will may raise a doubt as to whether the testator was acting of his own free will, but such circumstances can be removed by cogent and satisfactory evidence.
Headnote:
Will - Testamentary proceedings - Probate - Disputed Will - Execution - Registration - Free will and volition - Suspicious circumstances - Onus of proof - Genuineness of Will - Evidence - Attesting witnesses - Interested witnesses - Illiterate testator - Understanding of the Will - Complicated provisions - Explanation by solicitor - Day book entries - Absence of witness - Corroboration of evidence - Appointment of executor - Communication to solicitor - Delay in informing executor - Grant of probate - Costs.
Fact of the Case:
Saroj Kumari Dassi, a Hindu governed by the Dayabhaga, died intestate on 21st May, 1953, leaving behind her husband, three sons, and a daughter. In 1956, the eldest son filed a partition suit, which was decreed in 1962. Saroj Kumari continued to reside in the family dwelling house and enjoyed her properties absolutely. On 20th May, 1970, two of her sons filed a caveat against any Will coming to light. On 2nd September, 1970, an order was made directing one of the sons to open an iron safe, where the Will was found. The Will, dated 17th May, 1964, was registered and appointed Netai Chand Mullick as the sole executor. It bequeathed the family dwelling house and Clive Row premises to Lokenath, a portion of Goabagan Street property to Balaram, and a portion of Baishnab Sett Street property to Subasini for life and then to her son. The residue of the estate was bequeathed to Lokenath. Biswanath and Radhanath, along with their sons and grandsons, were excluded from inheritance. The petition for probate was filed on 7th January, 1971. Biswanath and Radhanath filed an affidavit in support of their caveat, alleging that the Will was unnatural and suspicious, as the testatrix had equal love and affection for all her children and grandchildren. They also alleged that the bequest to Balaram was illusory as the value of the property would be insufficient to cover the duties and expenses. They further alleged that Netai Chand, the executor, was the brother of Lokenath's wife, and that the attesting witnesses were strangers to the testatrix. Subasini filed an affidavit stating that the more valuable properties were bequeathed to Lokenath, and that the testatrix had left considerable jewellery and Government Securities. She alleged that the provisions of the Will were inherently suspicious and could not be the expression of the testatrix's free will.
Finding of the Court:
The Court found that the testatrix was illiterate but not unintelligent, and that she had managed her properties through her sons and son-in-law after her husband's death. The Court held that the Will was duly executed and registered, and that the testatrix understood its contents. The Court also found that the suspicious circumstances surrounding the execution of the Will had been sufficiently explained, and that the Will was the genuine expression of the testatrix's free will and volition. The Court granted probate of the Will, with costs of all parties to come out of the estate.
Issues: 1. Did Sm. Saroj Kumari Dassi (deceased) duly execute the alleged wm in question? 2. Was the alleged Will duly or at all registered as alleged in plaint? 3. Is the alleged Will the result of her own free will and volition? 4. To what relies if any, is the plaintiff entitled?
Ratio Decidendi: 1. The onus of proof is on the propounder of a Will to prove its due execution, registration, and the testamentary capacity of the testator. 2. Suspicious circumstances surrounding the execution of a Will may raise a doubt as to whether the testator was acting of his own free will, but such circumstances can be removed by cogent and satisfactory evidence. 3. The Court should not impose its own standard of behavior on the testator, and an individual may behave in an abnormal manner. 4. If the propounder succeeds in explaining the suspicious circumstances and removing the suspicion, the Court should grant probate even if the Will might be unnatural and might cut off wholly or in part, near relations.
Final Decision: Probate of the Will was granted, with costs of all parties to come out of the estate.
These testamentary proceedings' were instituted for obtaining probate of disputed Will dated the 17th May, 1964, of one Saroj Kumari Dassi, deceased. The propounder Netai Chand Mullick claims to be the executor nominated in the said Will. Facts, some of which are matters of record and are not disputed are noted as follows.
2. Late Mohanlal Mullick the husband of Saroj Kumari, was a Hindu governed by the Dayabhaga. He died intestate on the 21st May, 1953, leaving him surviving his widow, Saroj Kumari and his three sons, Biswanath, Radhanath and Lokenath, as his legal heirs and representatives. Subasini Mullick, the married and the only daughter of Mohanlal, also survived her father.
3. On the 28th August, 1956, Biswanath, the eldest son of Mohanlal, filed a suit in this Court, being Partition Suit No. 2303 of 1956, claiming inter alia, partition and division of the assets and properties left by Mohanlal, Saroj Kumari, Radhanath and Lokenath were impleaded as defendants in that suit. On the 11th September, 1956, by consent of the parties, a Commissioner of Partition was appointed. The assets and properties of Mohanlal were duly divided and the Commissioner filed his Return on the 9th May, 1960. This Return was confirmed by a decree dated the 6th March, 1962 passed in the said partition suit.
4. The properties and assets, allotted to Saroj Kumari being one fourth share in the estate of her deceased husband Mohanlal consisted, inter alia, of the following :-
(a) A portion of the family dwelling house at premises No.26/1E, Prosonno Kumar Tagore Street;
(b) A portion of the premises No.6, Clive Row;
(c) A portion of premises No.19C, Goabagan Street and
(d) A portion of premises No.5A, Baishnab Sett Street.
5. It is not disputed that after the partition Saroj Kumari and her three sons, Biswanath, Radhanath and Lokenath continued to reside in the family dwelling house in Prosonno Kumar Tagore Street in their respective allotted portions. Since the partition, till her death, Saroj Kumari held and enjoyed the aforesaid properties absolutely and in her own right and the same are the subject matter of the disputed will.
6. It is common case that Saroj Kumari was illiterate and could not read or write English. She died on the 26th April, 1970 at her residence in the family dwelling house. At that time she was about 70 years old. She had maintained fairly good health all along.
7. On the 20th May, 1970, within a month of the death of Saroj Kumari, Biswanath and Radhanath jointly filed a caveat in this Court before any Will came to light.
8. At that time it was alleged by Netai Chand Mullick, the executor, that the Will of Saroj Kumari was in her iron-safe, the keys whereof were being retained by Biswanath, Biswanath denied that he had such keys. He also denied any knowledge of the Will.
9. On an application made by the executor under S. 267 of the Indian Succession Act, an order was made on the 2nd September, 1970, inter alia, directing Biswanath to open the iron safe. Biswanath produced the keys and the safe was opened on the 19th September, 1970. A locked steel box was found inside the safe. As the keys of this box were not found, another order was obtained on the 22nd September, 1970 and the box was opened with the help of a locksmith. It was in this box that the document purporting to be the Will of Saroj Kumari was found. The execution of this document is signified by a cross mark, which is alleged to be that of Saroj Kumari. The document was registered on the 19th May, 1964.
10. The provisions of the purported will are, inter alia, that Netai Chand Mullick of No. 200, Bipin Behari Ganguly Street, Calcutta is nominated as the sole executor. The assets and properties of Saroj Kumari are disposed of as follows:-
11. The portions of the family dwelling house at prosonna Kumar Tagore Street, Calcutta and that of the premises No. 6, Clive Row, Calcutta belonging to Saroj Kumari are given absolutely to Lokenath.
12. The portion of the property bein
