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IN THE HIGH COURT OF CALCUTTA
Jyotirmay Bhattacharya and Debi Prasad Dey, JJ.
Sri Birendranath Paul @ Barendra Krishna Paul and another - Appellants
Versus
Sri Sankar Paul @ Kali Krishna Paul - Respondent
F.A. 315 of 2005
Decided On : 26.6.2015
WILL - PROBATE - SUSPICIOUS CIRCUMSTANCES - EXECUTION - ATTESTATION - INTERPRETATION - DISTRIBUTION OF PROPERTY - VALIDITY OF WILL UPHELD.
Fact of the Case:
Nilkrishna Paul, prior to his death, made and published his last will and testament on the first day of October 1986, whereby he appointed the plaintiffs (his two sons) as joint executors and left and bequeathed his estate and effects there to. The will was contested by one of the sons, Sankar Paul, who denied all the material allegations contained in the plaint and claimed that the will was not genuine and was procured by the plaintiffs taking advantage of their father's vegetative condition.
Finding of the Court:
The court found that the plaintiffs had failed to remove the suspicious circumstances surrounding the execution of the will, and that the will was not a product of the free will of the testator. The court dismissed the plaintiffs' suit for probate.
Issues: 1. Whether the plaintiffs had proved the due execution and attestation of the will. 2. Whether the will was procured by the plaintiffs taking advantage of their father's vegetative condition. 3. Whether the will was a product of the free will of the testator. 4. Whether the will was valid and enforceable.
Ratio Decidendi: 1. The court held that the plaintiffs had failed to prove the due execution and attestation of the will as required by Section 63 of the Indian Succession Act. 2. The court held that the will was procured by the plaintiffs taking advantage of their father's vegetative condition, as evidenced by the fact that the testator was bedridden and had lost his physical and mental abilities. 3. The court held that the will was not a product of the free will of the testator, as it was executed under suspicious circumstances and the testator was not in a position to understand the contents of the will or to give his consent to its execution. 4. The court held that the will was invalid and unenforceable.
Final Decision: The court dismissed the plaintiffs' suit for probate.
Debi Prosad Dey, J.
1. This First Appeal is directed against the judgment and decree passed by the learned Additional District Judge, 10th Court, Alipore, 24 Parganas(South) in Original Suit No.11 of 1998 wherein and whereby the learned Judge dismissed the prayer for granting probate in favour of the appellants.
2. Being aggrieved by and dissatisfied with such judgment and decree of the learned Trial Judge, the plaintiffs/appellants have preferred this appeal on amongst other grounds that learned Trial Judge could not properly appreciate the evidence on record and thereby came to an erroneous finding in respect of the execution of the Will by the testator and that learned Trial Judge failed to appreciate the dispositions made in the Will in its true perspective and in terms of the desire and intention of the testator and that the learned Trial Judge erroneously came to a decision ignoring the evidence on record that the Will is not fettered by any of the suspicious circumstances, as alleged in the written statement.
3. The fact of the case under reference may be summed up as follows:-
Nilkrishna Paul, prior to his death made and published his last Will and testament on first day of October, 1986 whereby he appointed the plaintiffs (his two (2) sons), as joint executors and left and bequeathed his estate and effects there to. At the time of his death, Nilkrishna Paul left behind him his 4 sons viz. Birendranath Paul, Bikash Paul, Sankar Paul @ Kali Krishna Paul, Bimal Paul and four (4) daughters viz. Shibani Paul nee Das, Gouri Paul nee Sarkar, Kalyani Paul nee Kundu, Smt. Mousumi Paul and widow Smt. Santirani Paul.
4. Nilkrishna Paul appointed the plaintiffs/appellants as executors of the Will. The estate of Nilkrishna Paul was bequeathed to executors/plaintiffs to the extent of ?rd share and remaining ?rd was bequeathed to the wife of Nilkrishna Paul for life. The wife of Nilkrishna Paul would enjoy such ?rd share during her lifetime and on her death, her share would be devolved upon both the plaintiffs/appellants in equal share. Provision has also been made in the said Will for the marriage of unmarried daughter of Nilkrishna Paul. The right of residence of such unmarried daughter of Nilkrishna Paul was also provided in the estate of Nilkrishna Paul till her marriage.
5. One of the sons of Nilkrishna Paul, namely, Sankar Paul contested the suit by filing written statement denying all the material allegations contained in the plaint. The specific defence case is that Nilkrishna Paul had been suffering from cardiac problem before his death and remained bed ridden, having lost his physical ability as well as mental alertness. Taking advantage of such vegetative condition of Nilkrishna Paul, the plaintiffs/appellants in collusion with each other might have procured and/or obtained the signature of the testator on some blank papers and subsequently they created/manufactured such Will by utilising those signed blank papers. The further case of the respondent/defendants is that the relation between the respondents/defendants with their father was all along cordial and a suit for partition is now pending by and between the parties before the Court of the learned Civil Judge (Senior Division, Sealdah), South 24 Parganas.
6. The contesting defendant specifically stated that the alleged Will is not a genuine one and as such the plaintiffs are not entitled to get any relief. He has also prayed for dismissal of the probate application as according to him the Will is an unnatural Will which the testator could not have made, had he been physically fit and mentally alert. The learned Trial Judge considering the evidence on record, came to the conclusion that the Will under reference could not be accepted as a product of free will of the testator in view of suspicious circumstances, which engulfed the making of such Will and as such the learned Trial Judge dismissed the suit on contest.
7. Such decision of learned Trial Judge is now under
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