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IN THE HIGH COURT AT CALCUTTA
RAJASEKHAR MANTHA, SUPRATIM BHATTACHARYA, JJ.
Sri Bijon Behari Dhar - Appellant
Versus
Dipti Pal & Anr. – Respondents
F.A. No. 2 of 2013 with I.A. No. CAN 4 of 2023
Decided On : 01-08-2023
WILL - REVOCATION - WILL EXECUTED IN 1965 REVOKED BY SUBSEQUENT WILL EXECUTED IN 2002 - SECOND WILL PROVED BY REGISTRATION AND EVIDENCE OF ATTESTING WITNESS - SUSPICIOUS CIRCUMSTANCES NOT DISPELLED BY RESPONDENTS - LETTERS OF ADMINISTRATION GRANTED TO RESPONDENTS SET ASIDE.
Fact of the Case:
Prasadmoni Dasi executed a Will in 1965 bequeathing her properties to her two daughters. In 2002, she executed a second Will revoking the earlier one and bequeathing one of the properties to her grandson. The appellant, who was the adopted son of Prasadmoni Dasi, challenged the 1965 Will and sought letters of administration to the estate of Prasadmoni Dasi based on the 2002 Will. The respondents, the daughters of Prasadmoni Dasi, opposed the application, claiming that the 2002 Will was invalid.
Finding of the Court:
The Court held that the appellant had proved the execution of the 2002 Will by examining himself and one of the attesting witnesses. The Court also found that the respondents had failed to prove the mental or physical incapacity of the testator while executing the 2002 Will. The Court further held that the respondents had withheld certain documents from the Court, which could have supported the appellant's case, and drew an adverse inference against them.
Issues: 1. Whether the 2002 Will was validly executed? 2. Whether the respondents had proved the mental or physical incapacity of the testator while executing the 2002 Will? 3. Whether the respondents had withheld certain documents from the Court?
Ratio Decidendi: 1. The Court held that the appellant had discharged the onus of proving the 2002 Will by examining himself and one of the attesting witnesses. 2. The Court held that the respondents had not been able to demonstrate or establish the mental or physical incapacity of the testator while executing the 2002 Will. 3. The Court held that the respondents had withheld certain documents from the Court, which could have supported the appellant's case, and drew an adverse inference against them.
Final Decision: The Court allowed the appeal, set aside the impugned judgment, and set aside the letters of administration granted to the respondents.
JUDGMENT :
(Rajasekhar Mantha, J.) :
1. The appeal is directed against a judgement and order dated 13th July, 2012 passed by the learned Fourth Bench of the City Civil Court at Calcutta in O. C. No. 20 of 2006.
2. Originally an application under Section 278 of the Indian Succession Act, 1925 for Letters of Administration to the Estate of Late Prasadmoni Dasi was filed by Parul Bala Mallick and Juthika Pal the respondent herein. The said case was numbered as L. A. Case No. 21 of 2005.
3. On an objection being raised by Shri Bejon Behari Dhar, the appellant herein, alleging that Prasadmoni Dasi had executed her last will and testament on 12.12.2002, superseding the earlier will dated 20.11.1965.
4. L A Case No. 21 of 2005 was converted and registered as a suit being O. C. Case No. 20 of 2006. The application under Section 278 was treated as a plaint and the written objection was treated as a written statement by the trial Court’s order dated 7th June, 2006.
5. The facts of the case are that Prasadmoni Dasi was a widow of late Kamala Kanta Dhar. She died on 27th July, 2004 at Premises No. 3A, Rup Chand Roy Street, P.S.-Barabazar, Kolkata-700007, West Bengal.
6. The Respondents/Applicants are the two daughters of Prasadmoni Dasi, namely Parul Bala Mullick and Juthika Paul. The Appellant/Objector, Bejon Behari Dhar, admittedly is the adopted son of late Prasadmoni Dasi and late Kamala Kanta Dhar. After the death of her husband, Prasadmoni Dasi gifted and transferred some movable and immovable properties in favour of the Appellant/Objector, Bejon Behari Dhar.
7. On 20th November, 1965 late Prasadmoni Dasi executed and registered a Will in favour of her two daughters, the Respondents herein. In the said Will Parul Bala Mullick was given one property located at 1/30, Bipin Behari Ganguly Street, Kolkata. Two properties, situated and lying at 100/A and 100/B, Elliot Road, were bequeathed to Juthika Paul, her second daughter. The said Bijon Bihari Dhar, and Gaur Chandra Paul, their son-in-law, were appointed executors of the will.
8. Bejon Behari Dhar has given Rs.30,000/-payable to the testator under Suit No.3413 of 1954 in the High Court at Kolkata. A further sum of Rs.15,000/-being proceeds of an Insurance Policy has also been given to Bejon Behari Dhar.
9. As already stated, Bejon Behari Dhar was already been given a property at premises No.3A, Rup Chand Roy Street, Barabazar, Kolkata700007 where the testator, her late husband, and the Objector, Bejon Behari Dhar, resided along with his family.
10. Upon the death of Prasadmoni Dasi, the two daughters, respondents herein, by letters dated 24th December, 2004 and 23rd February, 2005 requested the surviving executor, the appellant herein, to take out a probate of the said Will dated 20th November, 1965. The appellant did not respond. As a consequence, the Respondents filed the application under section 278 of the said Act, seeking letters of Administration to the Estate of their late son. The appellant challenged the maintainability of the application under section 278 filed by the Respondents, inter alia, on the ground that the late Prasadmoni Dasi executed another Will on 12th December, 2002 that was registered on 17th December, 2002 with the office of the Additional Registrar of Assurances, Kolkata. The appellant also claimed that after execution of the second Will Prasadmoni Dasi sent letters dated 26th December, 2002 and 28th December, 2002 to the Respondent sisters enclosing therewith copies of the Will dated 12th December, 2002, which was subsequently registered on 17th December 2002.
11. In support of their prayer for letters of administration the respondents examined and proved the Will dated 20th November, 1965.
12. The Appellant has not seriously disputed such Will in the suit. The cross-examination on this score has also been rather half-hearted. The thrust of the case of the appellant was that the Will of 1965 has been revoked in and superseded by reason of the subsequent Wi
A registered Will is presumed to be validly executed, and the onus of proof lies on the person who challenges it to prove its invalidity.
The absence of an original Will does not invalidate its probate if secondary evidence sufficiently proves its execution and the delay in application is justified.
Important Point : A will can be proved through secondary evidence if the original is lost, and Letters of Administration can be granted when no executor is appointed.
(1) When a Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between plaintiff and defendant.(2) Genuineness of Will must be proved by proving intention of testator to make....
A holographic Will is presumed valid unless strong evidence is presented to the contrary. Delays in seeking letters of administration do not invalidate the Will if the right to apply arises from lega....
The validity of a Will is determined by the testator's capacity and the absence of suspicious circumstances; the burden lies with propounders to prove legitimacy.
A will must be executed in accordance with statutory requirements, and any suspicious circumstances must be adequately addressed by the propounder for the will to be validated.
The court reaffirmed that a will must be executed in compliance with statutory requirements, and any suspicion regarding its validity must be adequately addressed by the propounder.
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