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2017 Supreme(Cal) 56
IN THE HIGH COURT AT CALCUTTA
Jyotirmay Bhattacharya, Ishan Chandra Das, JJ.
Ashima Naha (nee Das) – Appellant
Vs
Ardhendu Das & Ors. – Respondents
F.A.T No. 360 of 2013
Decided on : 11-01-2017
Advocate Appeared:
For the Appellant : Ms. Manju Agarwal, Mr. Bajrong Manot, Ms. Barkha Kumari.
For the Respondent: Dr. H.K. Saha Roy, Mr. Samiran Giri, Mr. Madhusudan Saha Roy, Mr. Mrittynjoy Goswami, Mr. Parikshit Goswami.
A Will is valid and enforceable if it is properly executed and attested in accordance with Section 63(C) of the Indian Succession Act, and if the testator's intention is clear and unambiguous.
Headnote:
WILL - PROBATE - EXECUTION - VALIDITY - CONDITIONS - RESTRICTIONS - INTERPRETATION - SECTION 63(C) OF THE INDIAN SUCCESSION ACT - UNCERTAINTY - SUSPICIOUS CIRCUMSTANCES - FREE AND FAIR EXECUTION - DEPRIVATION OF SHARE DUE TO VOLUNTARY ABANDONMENT OF GUARDIANSHIP.
Fact of the Case:
The appellant, a daughter of the testator, challenged the probate of a Will executed by her father on the grounds that it was uncertain, executed under suspicious circumstances, and not in accordance with Section 63(C) of the Indian Succession Act.
Finding of the Court:
The court held that the Will was properly executed and attested in accordance with Section 63(C) of the Indian Succession Act, and that the testator's intention was clear and unambiguous. The court also held that the restrictions imposed on the appellant in the Will became redundant when she was given in marriage during the lifetime of the testator, and that she was not deprived of her share in the property due to non-fulfillment of the conditions in the Will.
Issues: 1. Whether the Will was uncertain and executed under suspicious circumstances. 2. Whether the execution of the Will was in accordance with Section 63(C) of the Indian Succession Act. 3. Whether the appellant was deprived of her share in the property due to non-fulfillment of the conditions in the Will.
Ratio Decidendi: 1. The court held that the Will was not uncertain as the testator's intention was clear and unambiguous. 2. The court held that the execution of the Will was in accordance with Section 63(C) of the Indian Succession Act as the attesting witness testified that the testator signed the Will in his presence and that he signed the Will in the presence of the testator. 3. The court held that the appellant was not deprived of her share in the property due to non-fulfillment of the conditions in the Will as the restrictions imposed on her became redundant when she was given in marriage during the lifetime of the testator.
Final Decision: The appeal was dismissed, and the judgment and order allowing the probate proceeding passed by the trial court were affirmed.
1. Claiming herself to be an aggrieved by the judgment and order of granting probate of the Will dated 30.06.1983, executed by one Usha Ranjan Das, the appellant herein, being one of the offsprings (daughter) of the said testator, is assailing such judgment and order passed by learned Additional District Judge, 4th Court at Barasat, North 24 Parganas in Misc Case No. 511 of 1997 (Original Suit No. 34 of 1999).
2. Shorn of unnecessary details, the facts of the instant case, as stated in the application of such proceeding is that one Usha Ranjan Das who died on 21.01.1994, executed a Will on 30.06.1983 bequeathing his property as per schedule of the Will and the respondents no. 1, 2 & 3 along with the appellant were appointed as executors of the said Will. It was further stated in the said application that the testator of the Will(i.e. Usha Ranjan Das)was a Hindu by religion and he passed away leaving two sons, Arabinda Das(respondent no.1)of the probate proceeding, Ardhendu Das, the petitioner therein, three daughters Mandira Deb, Ashima Naha @ Das & Indira Sarkar. Ashima, the appellant herein (being the defendant no. 3 of the probate proceeding & hereinafter referred to as the appellant) was a legatee co-executor under the Will. In the said application, it was stated that as per the Will, the petitioner of the original probate proceeding was asked by the testator to provide her with 5 cottahs of land with suitable constructions thereon, subject to condition that if the appellant would get her marriage with the approval of the other executors, otherwise she would be debarred from the privilege of such Will, as it was done in case of Indira Sarkar, the defendant no. 4 of the original probate proceeding.
3. Mandira, the defendant no. 2 of the original proceeding, as it is referred to in the impugned judgment did not raise any objection against the probate proceeding and the defendant no. 4 though filed a written statement but ultimately did not turn up to contest the same. The appellant herein being the defendant no. 3 of the original proceeding in her written statement questioned the maintainability of the same on certain legal infirmities like tampering of the Will, manipulation of the same etc. Denying proper execution of the Will, the appellant being the sole contesting defendant further stated that the attestation of such Will of the testator was not proper in terms of the relevant provisions of the Indian Succession Act rather she contended that though the Will was registered one but the execution of such Will was not a free Will of testator rather the same was managed by the profounder of the Will with an ill motive to frustrate the interest of the other successors in interest, taking advantage of old age ailments and simplicity of the testator.
4. On the strength of the rival pleadings of the parties, learned trial Court framed six issues altogether and upon conclusion of trial granted probate of the Will on contest against the defendant no. 3 (i.e. the appellant herein) and ex parte against the rest.
5. The point left for decision in this appeal is whether learned trial Court was justified in passing a decree allowing the probate proceeding as referred to above.
6. Learned counsel for the appellant, at the outset submitted with reference to Section 89 of the Indian Succession Act and urged that the Will should have been declared void by learned Court below for the simple reason of uncertainty. With reference to the averments in page 3 of the Will in question, she pointed out that her client was given interest as per para 3 of the said Will (Ext. 2 series) which was vague and uncertain as it was noted therein – “They shall also provide her with a suitable well-constructed brick built house with 5 cottahs of land elsewhere.”
7. Relying on a decision of the Hon’ble Apex Court in Gorantla Thataih Vs. Thotakura Venkata Subbaiha & Ors., reported in A.I.R. 1968 1332, she urged that the Will was executed under a s
