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2019 Supreme(Cal) 800
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SHIVAKANT PRASAD, J.
Kishan Lal Chadha @ Krishan Lal Chadha (Deceased) and Another – Plaintiffs
Versus
Kamini Sarin – Defendant
T.S. No. 21 of 2012, P.L.A. No. 3 of 2012
Decided On : 19-11-2019
Advocate Appeared:
For the Plaintiffs : Aniruddha Mitra, Dhilin Sengupta, Shib Sundar Das.
For the Defendants : Kashinath De, Sandip Kumar De.
The main legal point established in the judgment is that the propounder of a Will must prove the sound and disposing state of the testator's mind and his signature as required by law. The burden of proving that a Will was executed under undue influence is on the party who alleges it. The presence of suspicious circumstances makes the initial onus heavier, and the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
Headnote:
Probate - Last Will and Testament - Indian Succession Act, 1925 - Section 63 - Section 68 of the Indian Evidence Act - Electronic Records - Suspicious Circumstances - Execution of Will - Undue Influence - Coercion - Testamentary Capacity
Fact of the Case:
The suit is for grant of probate on the last Will and testament dated 17th July, 2007 of the testator Kishan Lal Chadha @ Krishan Lal Chadha (deceased). The plaintiff's case is that the deceased executed the Will appointing the petitioner as the sole executor in the presence of two attesting witnesses. The defendant contested the probate proceeding, alleging coercion, undue influence, and suspicious circumstances surrounding the Will.
Finding of the Court:
The court found that the Will was executed by the testator in compliance with the provisions of Section 63 of the Indian Succession Act, 1925. The court held that the Will was not vitiated by undue influence or coercion, and the testator signed the Will out of his own volition. The court also found that the testator was not under the control and dictate of the petitioner. The court concluded that the Will was valid and genuine, and the plaintiff was entitled to grant of probate of the said Will.
Issues: The court decided the issues as follows: (1) The Will and testament dated 17.7.2007 has been executed by the testator. (2) The will is not vitiated by undue influence and/or coercion. (3) The signature appearing in the alleged Will is the signature of the testator out of his own volition. (4) The testator was not under the control and dictate of the petitioner. (5) The Will has been executed in compliance of the provisions of Section 63 of the Indian Succession Act, 1925. (6) The Will is valid and genuine and the plaintiff is entitled to grant of probate of the said Will.
Ratio Decidendi: The court held that the propounder of a Will must prove the sound and disposing state of the testator's mind and his signature as required by law. The court also emphasized that the burden of proving that a Will was executed under undue influence is on the party who alleges it. The court further stated that the presence of suspicious circumstances makes the initial onus heavier, and the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
Final Decision: The court granted probate annexed to the Will dated 17th July, 2007 in favor of the propounder/plaintiff after finding that the Will was genuine and free from undue influence or coercion.
JUDGMENT :
SHIVAKANT PRASAD, J.
1. This is a suit for grant of probate on the last Will and testament dated 17th July, 2007 of the testator Kishan Lal Chadha @ Krishan Lal Chadha (deceased).
2. The plaintiff's case in brief is that the deceased Kishan Lal Chadha @ Krishan Lal Chadha used to reside at Flat No. 3 at 8, Chapel Road, Hasting, 2nd floor, Kolkata-700 022 who died on 5th April, 2010. During his life time he was carrying on partnership business under the name and style of M/s. Bharat Commercial Enterprises his place of business at 26, C.R. Avenue, Kolkata who used to maintain Bank Account No. 33610052758 and 33610160844 with Standard Chartered Bank, Church Lane Branch, Kolkata-700 001 with balance of Rs. 36,792.23 p. and Rs. 1,39,617.92 p. also left behind various Bank Balances and Deposits in then Grindlays Bank PLC, now known as Standard Chartered Bank which are movable, and other immovable asset situated both within and outside the jurisdiction of this Hon'ble Court, particulars of which are set forth in the affidavit of Assets affirmed by the petitioner on the 21st day of December, 2010 and he left behind him, his wife, son and two daughters as his only heirs/heiress and legal representatives under the Hindu Succession Act:
| S. No. | Name | Address | Relation |
| 1. | Vimla Chadha | 8, Chapel Road, Hasting, 2nd floor, Kolkata-700 022 | Wife |
| 2. | Anup Chadha (Executor) | 8, Chapel Road, Hasting, 2nd floor, Kolkata-700 022 | Son |
| 3. | Ritu Maira wife of Rajiv Maira | 5, Nizzamuddin (East), New Delhi | Daughter |
| 4. | Kamini Sarin wife of Lalit Sarin | 19, 12, Cross Street, Indra Nagar Adyan, Chennai | Daughter |
3. The said deceased published his last registered Will and Testament on 17th July, 2007 by appointing petitioner as the sole executor of his said Will in presence of two attesting witnesses namely, Sri Gazi Faruque Hossain of Village Uttarpara (N12), P.O. Jaynagore, 24-Parganas (S) and Tarun Bhattacharya of 68, Ghosepara Road, Barrackpore, 24- Parganas (N).
4. The gross value of assets and properties of the said deceased is Rs. 28,59,667.63p but no estate duty is payable in view of the recent abolition of the Estate Duty Act. The petitioner is the fit and proper person for grant of probate in respect of the said registered Will dated 17th July, 2007, ready and willing to pay maximum ad-valorem duty in respect of the net assets of the said deceased.
5. Defendant/Caveatrix has contested the probate proceeding by filing an affidavit of caveat through her Constituted Attorney namely Ganesh Sarin contending that the testator was lastly residing with the beneficiary and the present petitioner, his son and the testator was fully under their control and dictate. Petitioner has not disclosed the proper particulars of some other properties and assets of the testator, viz. (a) House property at N-14 Panchsheel Park, New Delhi-110017; (b) Flat Nos. 3 and 4 at 2nd floor of 8 Chapel Road Hastings Kolkata-700022; (c) Income from the Partnership Business in the name and style of M/s. Bharat Commercial Enterprises; shares in various companies as invested by the testator and (d) Jewellery and Bank deposits of the testator and properties and assets have not been valued in appropriate manner and that the signature in the Will is not of the testator out of his own volition and the said Will is the result of undue influence and coercion. The attesting witnesses to the Will are also the men and agents of the petitioner.
6. On the pleadings of the parties to the suit following issues were framed:
(1) Whether the Will and Testament dated 17.7.2007 has been executed by the testator?
(2) Is the Will vitiated by undue influence and/or coercion?
(3) Is the signature appearing in the alleged Will is not the signature of the testator out of his own volition?
(4) Was the testator under the control and dictate of the petitio
