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IN THE HIGH COURT AT CALCUTTA
Mukul Gopal Mukherjee and Manabendra Nath Roy, JJ.
Musammat Fatema Bibi - Appellant
Versus
Ekramul Haq Ansari - Respondent
Appeal form Original Decree No. 85 of 1982
Decided On : November 15, 1989
WILL - PROBATE - SUSPICIOUS CIRCUMSTANCES - BURDEN OF PROOF - TESTAMENTARY CAPACITY - UNDUE INFLUENCE - MUSLIM LAW - TESTAMENTARY POWER - DISPOSITION OF PROPERTY.
Fact of the Case:
The appellant, the widow of Noor Muhammad Ansari, contested the probate of a Will executed by her husband, bequeathing two-thirds of his property to Ekramul Haq Ansari and Samim Qureshi, and providing her with a monthly maintenance of Rs. 150/-. The appellant contended that the Will was executed after her husband's death and that she was excluded from the Will without any explanation.
Finding of the Court:
The court found that there were suspicious circumstances surrounding the execution of the Will, including the involvement of a non-practicing lawyer who drafted the Will, the non-examination of the typist who typed the Will, and the unnatural disposition of the property, which excluded the appellant, the testator's wife, from inheriting any share of the property.
Issues: 1. Whether the propounder had discharged the burden of proving the due execution and attestation of the Will. 2. Whether the Will was executed under suspicious circumstances. 3. Whether the testator had the testamentary capacity to execute the Will. 4. Whether the Will was procured by undue influence or coercion. 5. The extent of the testamentary power of a Muslim under Muslim law.
Ratio Decidendi: 1. The court held that the propounder had not discharged the burden of proving the due execution and attestation of the Will, as there were suspicious circumstances surrounding the execution of the Will, including the involvement of a non-practicing lawyer who drafted the Will, the non-examination of the typist who typed the Will, and the unnatural disposition of the property, which excluded the appellant, the testator's wife, from inheriting any share of the property. 2. The court held that the testator had the testamentary capacity to execute the Will, as there was no evidence to suggest otherwise. 3. The court held that there was no evidence of undue influence or coercion in the execution of the Will. 4. The court held that a Muslim can only dispose of up to one-third of his property by Will, and that the remaining two-thirds must be distributed among his heirs according to Muslim law.
Final Decision: The appeal was allowed, the judgment and decree of the court below were set aside, and the probate of the Will was refused.
Mukherjee, J.: This appeal is directed against a judgment and decree dated December 1, 1981, passed by the learned Additional District Judge, First Court, Howrah, in Probate Suit No.4 of 1980, whereby the Probate was granted in respect of a Will of one Noor Muhammad Ansari. The wife of Noor Muhammad Ansari is the appellant.
2. The testator, Noor Muhammad Ansari died on February 16, 1980 at 484, G. T. Road (South), Sibpur. Howrah. On 7.2.80, he executed his last Will and Testament whereby he appointed his sister’s son Ekramul Haq Ansari, as the sole executor. At the time of death Noor Muhammad Ansari left behind him surviving his widow, the present appellant, Mussammat Fatema Bibi. According to the terms of the Will, the testator bequeathed Holding Nos. 74 and 75, Cows Ghat Road, with structures thereat to Ekramul Haq Ansari and one Samim Qureshi in equal shares and a provision was made that the appellant Fatima Bibi will be entitled to Rs. 150/- per month towards her maintenance from the income of the property. As Noor Muhammad was illiterate, he executed his Will by affixing his thumb impressions in presence of witnesses. On an application for probate having been made by Ekramul Haq Ansari, the appellant contested the same by filing a written objection. Her Her contention that she used to live with Noor Muhammad all along and that no such Will was at all executed by her husband. Had there been any Will, she would have known about the same. The Will in probability was manufactured after his death by procuring his thumb impression on a blank paper. It was further contended that Zubeda Khatunwas not the sister of Noor Muhammad, and that being so, Ekramul Haq Ansari was not the testator's full sister's son though it was admitted that by relation Ekramal Haq Ansari was a nephew (sister's son to the testator).
3. At the trial on behalf of the plaintiff five witnesses were examined. P. W. 1 was Muhammad Mustafa Qureshi, who was a sister's husband of one of the legatees, Samim Qureshi. He was a teacher in Howrah Muslim High School, who claimed to be a legal practitioner for sometime after having passed LL.B. Examination in 1975. He could not remember the date of his joining the Bar. He claimed to have practised law at Howrah Criminal Court as an Advocate for sometime, but clearly admitted that at the time of drafting the Will, he was not practising but he used to attend the chamber of one Ananda Singh, Advocate. Under the instruction of Noor Muhammad given at his house, be drafted the Will but he could not remember the date on which he was so instructed to instructed to draft out the Will. On 7.2.80, he prepared the draft which was typed on the same day and it was executed by the testator by putting his thumb impressions on the same. He knew that a Muslim could bequeath 1/3rd of his property, but ho did not know the limits of the testamentary power of a Sunni Muslim. He knew the testator as a friend of his father-in-law, Sk. Kalloo Qureshi. He drafted the Will and gave it to one Gorachand Das, a moharar of an advocate, M N Ghosal. Gorachand after getting it typed, handed over the same to him and it was he who read over and explained the Will to Noor Muhammad. He claimed that Gorachand Das, Asraf Ali, Muhammad Yusuf and Fatema Bibi were all present and they signed the Will in the presence of the witnesses but in reality Gorachand Das, Amjad Ali and Muhammad Yusuf were the attesting witnesses.
4. P. W. 2, was Ekramul Haq Ansari, who claimed to be the sister's son of the testator. His testimony was that he used to -reside with his maternal uncle the testator, from the age of 4/5 years. His version was that he was not present during the preparation of the Will. His maternal uncle never instructed him regarding preparation of the Will. He used to took after the payment of rent, attendance in Court matters, etc. on behalf of the testator. The testator, however, was illiterate. He himself read upto Class VII. He denied that he took thu
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