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2019 Supreme(Cal) 713
IN THE HIGH COURT AT CALCUTTA
Sanjib Banerjee, Suvra Ghosh, JJ.
IN THE GOODS OF:
Paramesh Chandra Sen (Deceased)
And
IN THE MATTER OF:
Shyamal Kumar Sen - Appellant
Versus
Mrs. Sanjukta Mukherjee And Another - Respondent
APD No. 138 of 2018 In TS No. 6 of 2018
Decided On : 08-03-2019
For the Appellant : Mr Malay Kumar Ghosh, Sr Adv., Mr Rajarshi Dutta, Adv., Ms Nilanjana Addya, Adv., Mr Tapan Kumar Sil, Adv.
For the Respondent: Mr Rupak Ghosh, Adv., Mr Ranjit Kumar Basu, Adv., Mr Ayan Dutta, Mr Suman Dutt, Adv., Mr Debmalya Ghosal, Mr Bablu Boral, Advs.
The due execution of a Will requires the testator's signature and the signatures of two or more attesting witnesses, each of whom must have seen the testator sign the Will or have received from the testator a personal acknowledgment of his signature, and each of whom must have signed the Will in the presence of the testator.
Headnote:
The court found that the propounder had proved the due execution of the Will in accordance with the applicable law. The court set aside the judgment and decree impugned dated June 6, 2017, 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.
Fact of the Case:
Shyamal Kumar Sen, the propounder, applied for probate of a Will allegedly executed by his father, Paramesh Chandra Sen, on February 4, 1979. The Will bequeathed the entire estate of Paramesh to Shyamal, excluding his two sisters, Debjani Sen and Sanjukta Mukherji. Debjani and Sanjukta filed caveats and objected to the grant of probate, alleging that the Will was forged and that all three attesting witnesses were dead. The propounder claimed to have discovered the Will in an almirah that previously belonged to his mother, Kalindi Sen, after her death in 2004.
Finding of the Court:
The court found that the propounder had proved the due execution of the Will in accordance with the applicable law. The court held that the signatures of the testator and the attesting witnesses were genuine, and that the Will was properly attested. The court also found that the propounder had discharged the burden of proof under Section 69 of the Evidence Act, which provides that if no attesting witness of a Will can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
Issues: 1. Whether the Will was duly executed and attested in accordance with the law. 2. Whether the propounder had discharged the burden of proof under Section 69 of the Evidence Act. 3. Whether the Will was forged or genuine.
Ratio Decidendi: The court applied the principles of law governing the execution and attestation of Wills, as well as the provisions of Section 69 of the Evidence Act. The court held that the propounder had proved the due execution of the Will by proving the genuineness of the signatures of the testator and the attesting witnesses, and by discharging the burden of proof under Section 69 of the Evidence Act. The court also found that there was no evidence to support the defendants' allegation that the Will was forged.
Final Decision: The court set aside the judgment and decree impugned dated June 6, 2017, 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
