2019 Supreme(Cal) 680

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Sanjib Banerjee, Suvra Ghosh, JJ.
In Goods of : Paramesh Chandra Sen (Deceased) – Petitioner
Versus
Sanjukta Mukherjee & Another – Respondents
APD No. 138 of 2018 & Testamentary Suit No. 6 of 2018
Decided On : 08-03-2019

The court held that the propounder met the tests under Section 69 of the Evidence Act, but the propounder also proved the third - and most difficult - limb of Section 63 of the Succession Act upon Partha's signature being proved and such signature being below the relevant declaration.

Headnote:

[KEYWORD] - [SUBJECT] - [ACT SECTION LIST] - [SUMMARY]

Fact of the Case:

Paramesh Chandra Sen, a middle-level employee in the Refugee Rehabilitation Department of the State Government, retired as a poor man. He had two daughters, Debjani and Sanjukta, and a son, Shyamal. Debjani and her husband moved into 29, Ballygunge Place shortly after Shyamal went to England in 1966 or within a few months thereafter. 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 died in 2003 and Kalindi died in 2004. Shyamal was not there to attend to the funeral ceremonies of either parent but 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. In early 2005, Shyamal claimed to have discovered the Will along with the document of 1960 (Exhibit-C) from an almirah that was previously used by his mother. Upon Shyamal expressing a desire that he needed the almirahs polished, Debjani, who used to look-after her mother while staying at the 29, Ballygunge Place paternal home, cleaned out the almirahs by removing all of the mother's clothes and articles therefrom. However, according to Debjani, even after she cleaned out the principal almirah of her mother, "there were a few letters - death certificate and may be a few other letters. The original death certificate as well as a few xerox copies of it were kept in the almirah." Debjani claimed to have handed over the keys to the two almirahs and a safe which were in the mother's erstwhile bedroom to Shyamal at the time that Shyamal was possibly trying to re-arrange everything on the first floor after the death of his mother. 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. In early 2005, Shyamal claimed to have discovered the Will along with the document of 1960 (Exhibit-C) from an almirah that was previously used by his mother. Upon Shyamal expressing a desire that he needed the almirahs polished, Debjani, who used to look-after her mother while staying at the 29, Ballygunge Place paternal home, cleaned out the almirahs by removing all of the mother's clothes and articles therefrom. However, according to Debjani, even after she cleaned out the principal almirah of her mother, "there were a few letters - death certificate and may be a few other letters. The original death certificate as well as a few xerox copies of it were kept in the almirah." Debjani claimed to have handed over the keys to the two almirahs and a safe which were in the mother's erstwhile bedroom to Shyamal at the time that Shyamal was possibly trying to re-arrange everything on the first floor after the death of his mother.

Finding of the Court:

The trial court erred in assessing the matter or adopting a flawed methodology of assessment would not imply that the judgment and order impugned may be set aside and the war would have been won by the propounder. In the testamentary jurisdiction, a court is required to positively find a Will to have been executed in accordance with law before probate thereof can be granted and the duty cast on the court is onerous, particularly as in the instant case where the attesting witnesses may have all died by the time the Will surfaced and, as such, the two key provisions - Section 63 of the Succession Act and Section 68 of the Evidence Act - cannot be satisfied in terms without recourse to some other applicable provision to prove the due execution of the Will.

Issues: Whether the testator during his lifetime executed the will by putting his signatures therein? Whether the will is shrouded by suspicious circumstances and the executor is able to dispel the same? Whether the purported will has been proved by the executor and Section 69 has any manner of application in the instant case? And Whether the affidavit executed in 1980 should have been marked as an Exhibit under Section 90 of the Evidence Act?

Ratio Decidendi: 1. The court found that the propounder had an onerous duty to discharge and the fact that the Will was discovered nearly 20 years after the death of the testator should not be held against the propounder since it made the propounder's duty even more difficult to establish due execution of the Will. 2. The court held that the propounder met the tests under Section 69 of the Evidence Act, but the propounder also proved the third - and most difficult - limb of Section 63 of the Succession Act upon Partha's signature being proved and such signature being below the relevant declaration. 3. The court found that the document of February 4, 1979 is the last Will and testament of Paramesh.

Final Decision: The judgment and decree impugned dated June 6, 2017 is set aside. The testamentary suit is decreed in favour of the propounder and it is hereby directed that the probate of the last Will of Paramesh Chandra Sen of February 4, 1979 be granted in favour of executor Shyamal Kumar Sen.