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IN THE HIGH COURT AT CALCUTTA
TAPABRATA CHAKRABORTY, RAJA BASU CHOWDHURY, JJ.
Pushpa Kejriwal and Others – Appellants
Versus
Om Prakash Kejriwal and Others – Respondents
FA No. 167 of 2017
Decided On : 24-02-2023
Probate - Will - O.S. No. 01 of 2017 - [Issue: On the basis of the averments of both Sides following issues are framed namely: (a) Is the suit maintainable in its present form and prayer? (b) Had the testator any Testamentary capacity to execute this Will? (c) Is the WILL genuine? (d) Was the WILL procured under suspicious circumstances? (e) Is the plaintiff entitled to get the probate of the Will? (f) To what relief, if any, is the plaintiff entitled?]
Fact of the Case:
The deceased made and published a Will appointing the sole executor. The propounder filed for probate, contested by the objector claiming coercion, fraud, and undue influence in the Will.
Finding of the Court:
The court found that the propounder proved due execution of the Will and removed suspicious circumstances, granting probate in favor of the propounder.
Issues: Testamentary capacity, genuineness of the Will, suspicious circumstances, entitlement to probate.
Ratio Decidendi: The propounder proved due execution of the Will and removed suspicious circumstances, justifying the grant of probate.
Final Decision: The appeal was dismissed, and probate was granted in favor of the propounder.
JUDGMENT :
RAJA BASU CHOWDHURY, J.
1. The present appeal has been preferred challenging the judgment dated 31st January, 2017 passed by the Additional District Judge, FTC-IV, Alipore, South 24-Parganas, in O.S. No. 01 of 2017, granting probate of the Will made and published by Uma Sankar Kejriwal, in a contentious cause.
2. Shorn of unnecessary details the facts leading to filing of the instant appeal are set out hereunder:
(ii) The said Uma Sankar died on 5th July, 1999 leaving behind and surviving the following natural heirs and representatives.
3. The said Om Prakash Kejriwal (hereinafter referred to as the propounder), having survived the deceased, filed an application for grant of probate of the aforesaid Will, claiming the same to be the last Will and testament of the deceased.
4. The said application was accompanied by an affidavit of assets affirmed by the propounder and an attesting witness’s affidavit affirmed by Uchhal Kumar Bhadra, stating that the deceased, in the presence of Mr. B.L. Vyas, Barrister-at-law and in his presence had executed the Will and that the said deceased at the time of execution of the Will was “hale and hearty.”
5. The aforesaid probate proceedings were contested by Bal Krishna Kejriwal by filing written statement. In the written statement filed by the Bal Krishna Kejriwal, the predecessor in interest of the appellants, (hereinafter referred to as the objector), claimed that the Will of which, the propounder was seeking probate, was a product of coercion, fraud and undue influence. There were suspicious circumstances surrounding the Will. Apart from the aforesaid, the following defences were also raised by the objector:
(b) the signatures of the witnesses made in the will do not show that the alleged testator and the witnesses have signed at a time in presence of each other.
(c) the alleged Will is totally one sided in favour of propounder and is unnatural.
(d) no reason whatsoever has been assigned as to why the testator deprived his other legal heirs and legal representatives of their legitimate share in the assets and property of the deceased.
(e) the deceased wanted to make some alleged provisions for his two daughters also, i.e., defendant nos. 2 and 3 and in paragraph 10 of the alleged Will depicts a picture of getting sometime in the alleged Will, but it will appear that the propounder will also share equally with the sisters and the amount to be received by the defendants no. 2 and 3 is practically nil.
(f) all movable and immovable assets of the deceased have been bequeathed to the plaintiff and his son, depriving the other heirs absolutely.
(g) in normal circumstances, no father will deprive his other three children (all full-blooded to the plaintiff) and bequeath everything to one child, the plaintiff herein unless there are some threat or evil influence;
(h) the affidavit sworn by one of the alleged attesting witness Shri Uchhal Kumar Bhadra is false, and fabricated and the manner of signature on the last page of the Will by the said Uchhal Kumar Bhadra abundantly shows that the said signatures were put on the alleged Will subsequently. It is further significant that while the address of said Uchhal Kumar Bhadra appears in the Will annexed, there is no address on the Xerox copy.
(i) the other attesting witness Shri B.L. Vyas who had been one of the closest friend and legal adviser of the deceased denies having known or ever seen Shri Uchhal Kumar Bhadra.
(j) The statement made by Shri Uchhal Kumar Bhadra is false and fabricated.
(k) The deceased has made corrections in the draft copy of the will in his own handwriting and that Mr. Vyas by incorporating the corrections had prepared a draft will. Thus the will of which, the propounder was seeking probate had been revoked.
6. Since t
The propounder must prove due execution of the Will and remove suspicious circumstances to justify the grant of probate.
Revocation of Probate – Exclusion of natural heir by testator does not make Will unnatural nor does the same gives rise to suspicious circumstances – Mere intention to execute a Will does not have ef....
The validity of a Will is upheld when properly executed, and the burden of proving undue influence or fraud lies with objectors, not the propounder.
The propounder of a will must remove all suspicious circumstances surrounding its execution, particularly when natural heirs are excluded from the bequest. Failure to prove due execution and disregar....
The execution and integrity of a Will can be upheld despite minor discrepancies or the presence of the beneficiary at signing, provided proper attesting witnesses confirm its authenticity.
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