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2002 Supreme(Cal) 435
IN THE HIGH COURT AT CALCUTTA
Asok Kumar Ganguly, Hrishikesh Banerji, JJ.
Pran Krishna Dutta (Dead) and on his death his legal heir Sm. Basanti Rani Dutta – Appellant
Versus
Paresh Chandra Dutta & Another – Defendants•
First Appeal No. 243 of 1992
Decided On : July 5, 2002
Mr. Bidyut Kr. Banerjee and Asit Kr. Bhattacharjee for the Appellant
In matters of granting probate of a will, the propounder must discharge the onus of proving the genuineness of the will by producing satisfactory evidence to the effect that (i) the will was signed by the testator, (ii) that the testator at the relevant time was in a sound state of mind, (iii) that he understood the nature and the effect of the disposition, (iv) that he put his signature to the document of his own free will.
Headnote:
WILL - PROBATE - EXECUTION - PROOF - ATTESTING WITNESSES DEAD - EVIDENCE ACT, 1872 - SECTION 68 - INDIAN SUCCESSION ACT, 1925 - SECTION 63(b) - GENERAL CLAUSES ACT, 1897 - SECTION 3(56).
Fact of the Case:
Dispute over the grant of probate of a will executed by the deceased aunt of the appellant. The appellant challenged the validity of the will, alleging that it was forged and obtained by fraudulent means. The propounder of the will, who was the brother's son of the deceased, claimed that the will was genuine and executed by the deceased in a sound state of mind.
Finding of the Court:
The court found that the will was duly executed by the deceased and that the attesting witnesses had identified the deceased's signature and thumb impression on the will. The court also found that the propounder had discharged the onus of proving the genuineness of the will by producing disinterested witnesses and that the appellant had admitted in cross-examination that he gave his consent to the grant of probate, as the will was genuine.
Issues: 1. Whether the execution of the will by the deceased was established. 2. Whether the death of the attesting witnesses was proved. 3. Whether the will was proved under Section 68 of the Evidence Act, 1872.
Ratio Decidendi: 1. The court held that the execution of the will was established by the evidence of the scribe and the attesting witnesses, who identified the deceased's signature and thumb impression on the will. 2. The court held that the death of the attesting witnesses was proved by the production of death certificates. 3. The court held that the will was proved under Section 68 of the Evidence Act, 1872, as the propounder had discharged the onus of proving the genuineness of the will by producing disinterested witnesses and that the appellant had admitted in cross-examination that he gave his consent to the grant of probate, as the will was genuine.
Final Decision: The court dismissed the appeal and affirmed the judgment of the trial court granting probate of the will.
Ganguly, J. : This first appeal has been filed challenging the judgment and decree dated 28th June, 1991 delivered by Additional District Judge, Second Court, Alipore in O.S. No.1 of 1988.
2. The material facts of this case are as follows.
3. One Srimati Khanta Bala Dutta, wife of late Bhawani Prasad Dutta, aunt of the appellant died on 17th April, 1971 at 16, Chandra Mondal Lane, P.S. Tollygunge, Calcutta - 26. Khanta Bala [hereinafter referred to as the testatrix] was a widow and had no issue at the time of her death.
4. The dispute is over the grant of probate of a will, which the testatrix is said to have executed on 24th May, 1950. The said will was registered on 26th July, 1950. Under the will the testatrix bequeathed her entire property in favour of the defendant/opposite party No.1, Sri Paresh Chandra Dutta. On or about 12th May, 1987 the defendant/opposite party Paresh Chandra Dutta, the propounder filed an application for probate.
5. Certain admitted facts may be noted. The testatrix, at the time of her death, left behind three persons who claimed themselves as her heirs and legal representatives. They are (1) Paresh Chandra Dutta, the brother's son of the testatrix and the propounder of the will, (2) Pran Krishna Dutta, brother's son of the testatrix and (3) Gopal Dutta, brother's son of the testatrix who did not contest the probate proceeding. It is also not in dispute that all the parties including the testatrix lived at 16, Chandra Mondal Lane, P.S. Tollygunge, Calcutta 26.
6. Initially when the petition for probate was filed by Paresh Chandra Dutta, Pran Krishna, since deceased, gave his consent to the application for probate whereas Gopal another brother of the propounder, filed an objection and the probate application was treated as contentious and was registered as a suit. Thereafter, Gopal filed a written statement denying the validity of the will but ultimately filed a petition describing the will as a genuine one and did not contest the suit. But Pran Krishna even though initially gave consent to the probate application subsequently filed an application challenging the validity of the will and wanted to contest the suit. Accordingly, permission was given to Pran Krishna tp contest the proceeding which was numbered as O.S. No.1 of 1988.
7. In the suit a written statement was filed by Pran Krishna that the will is not a genuine document and the discovery of the same after 15 years of the death of testatrix is one of the suspicious circumstances. It was further stated that the signature of the testatrix was forged and the recitals in the will created suspicion. It was further stated that the testatrix who died in 1971 could not be expected to make the will in 1950 which is more than 20 years before her death.
8. It was also stated that there was nothing to show in the will that its contents were read over and it explained to the testatrix who was an illiterate lady. It was also stated that Kalipada Bose who is one of the attesting witnesses and who signed the petition for grant of probate and also signed the will was not one and the same person and the will is a forged one.
9. On the basis of the pleadings between the parties the following issues were framed by the Trial Court:–
“1. Is the suit maintainable as framed?
2. Is the suit barred by limitation?
3. Is the suit had for defect of parties?
4. Is the impugned will dated 24-07-50 executed by Khantabala Dutta is forged and obtained by fraudulent means as alleged?
5. Is the plaintiff entitled to get Probate of the will as prayed for?”
10. Of these issues, the first three issues were not pressed at the trial.
11. In this case, in order to prove the will the propounder has examined 5 (five) witnesses and the appellant has examined himself as the only witness on his side.
12. It is an admitted position that both the attesting witnesses to the will, namely Kalipada Bose and Chinta Haran Das died at the time when the probate proceeding were going on. As such they cannot
