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IN THE HIGH COURT OF CALCUTTA
SANJIB BANERJEE, SUVRA GHOSH, JJ.
In the goods Of:
Paramesh Chandra Sen (Deceased) – Appellant
And
In the matter of:
Shyamal Kumar Sen
Versus
Mrs Sanjukta mukherjee and Another – Respondent
APD No. 138 of 2018 In TS No. 6 of 2018
Decided on : 08-03-2019.
The testator's Will was discovered nearly 20 years after his death. The attesting witnesses were dead. The court had to determine whether the Will was duly executed and whether the suspicious circumstances surrounding its discovery had been dispelled.
Fact of the Case:
The testator, Paramesh Chandra Sen, died in 1985. His son, Shyamal Kumar Sen, discovered the Will in 2005 in an almirah that previously belonged to his mother. The Will was dated February 4, 1979, and it bequeathed the testator's entire estate to Shyamal. The testator's two daughters, Debjani Sen and Sanjukta Mukherji, contested the Will. They claimed that it was a forgery and that Shyamal had manufactured it to disinherit them.
Finding of the Court:
The court found that the Will was duly executed and that the suspicious circumstances surrounding its discovery had been dispelled. The court noted that the Will was signed by the testator in the presence of three attesting witnesses, all of whom were dead at the time of the trial. The court also noted that the Will was consistent with the testator's testamentary intentions, as expressed in a settlement agreement that he had entered into with his brother in 1960. The court rejected the daughters' claim that the Will was a forgery, finding that the evidence did not support their allegations.
Issues: 1. Whether the Will was duly executed. 2. Whether the suspicious circumstances surrounding the discovery of the Will had been dispelled.
Ratio Decidendi: 1. To determine whether a Will is duly executed, the court must consider the following factors: * Whether the Will was signed by the testator in the presence of two or more attesting witnesses. * Whether the testator declared to the attesting witnesses that the document was his Will. * Whether the attesting witnesses signed the Will in the presence of the testator and each other. In this case, the court found that all of these requirements were met. The Will was signed by the testator in the presence of three attesting witnesses, all of whom were dead at the time of the trial. The testator declared to the attesting witnesses that the document was his Will. The attesting witnesses signed the Will in the presence of the testator and each other. 2. Suspicious circumstances surrounding the execution of a Will may be dispelled by evidence that the Will is consistent with the testator's testamentary intentions, as expressed in other documents or statements. In this case, the court found that the Will was consistent with the testator's testamentary intentions, as expressed in a settlement agreement that he had entered into with his brother in 1960. The court also found that the daughters' claim that the Will was a forgery was not supported by the evidence.
Final Decision: The court decreed the testamentary suit in favor of the propounder and directed that the probate of the last Will of Paramesh Chandra Sen of February 4, 1979 be granted in favor of executor Shyamal Kumar Sen.
JUDGMENT :
SANJIB BANERJEE, J.
Life in the Sen family of 29, Ballygunge Place was no different in the 1960s through the end of the century than in many other Bengali families in the then Calcutta: two daughters of the family were married off and the son went abroad in the hope of greener pastures. Paramesh Chandra Sen retired as a middle-level employee in the Refugee Rehabilitation Department of the State Government. His wife Kalindi was with Life Insurance Corporation of India and signed off as a Development Officer. The paltry salary of Paramesh and the reasonable commission that Kalindi earned was supplemented by the rental income from an outhouse or annexe in the ancestral property at Ballygunge. The family was not affluent, but life was not difficult for parents Sens as they brought up their son and three daughters.
2. By the time eldest son Shyamal left the country to try his luck in England in 1966, daughters Debjani and Sanjukta had already been married off for more than five years and Paramesh had retired from his meagre government service with apparently no pension in those days. Eldest daughter Debjani moved out of the Ballygunge Place house after her marriage, spent a few years with her husband in Kalyani and returned to the paternal house, husband in tow, within a few months of Shyamal having left for England. Second daughter Sanjukta moved out of the paternal home after her marriage, but lived close by at 92, Ballygunge Place with her husband’s family. Sanjukta’s husband, Partha, was a childhood friend of Shyamal. Tragedy struck the Sen family when the youngest daughter died in a road accident in 1968, only a few days before she was to be married.
3. Shyamal, who claimed to have reached England with only a few pounds in his pocket, found himself a job, dutifully came back to India to collect his bride and returned to the Blighty where his wife found a good job and in 1975 Shyamal’s elder child, a daughter, was born in England and mother Kalindi spent some time in England to help out the young parents. In due course, a son was born to Shyamal – both the children are apparently doctors in England – and the initial infrequent visits to the homeland changed and Shyamal would make regular visits to his parents thereafter.
4. Paramesh died in 1985 at the age of 80. Wife Kalindi took to the wheelchair within a few years thereafter as her arthritis got the better of her. Kalindi had Debjani and her husband for company at 29, Ballygunge Place apart from the tenants who occupied the outhouse on the ground floor, the rent wherefrom went some distance in covering her monthly expenses.
5. Sanjukta’s husband Partha died in 2003 and Kalindi died in 2004. Shyamal was not there to attend to the funeral ceremonies of either parent but he arrived with his wife within a few days of his mother’s death to perform the mother’s sradh ceremony early in December, 2004. Shyamal and his wife stayed back that winter, possibly to take care of the new arrangements at home after his mother’s death. Shyamal had retired by then or retired shortly thereafter and was able to spend as much time in this country as he wanted.
6. There is nothing to gauge that the relationship between brother Shyamal and sisters Debjani and Sanjukta was strained or anything less than cordial up to the beginning of year 2005. It appears to be the fairly admitted position that several years after Paramesh’s death and during the lifetime of Kalindi, there was some kind of an informal family arrangement in or about the year 1999 under which Sanjukta was to get the ground floor of the ancestral building that Paramesh inherited from his grandfather at 29, Ballygunge Place; Shyamal and his mother were to keep the first floor; and, Debjani and her husband would have the second floor, which had to be constructed.
7. It is Debjani’s evidence that elder brother Shyamal provided the funds for the construction of the second floor where Debjani and her husband moved into, though Debjani had
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