The court affirmed the validity of the testator's Will, executed in accordance with legal requirements, despite challenges regarding mental capacity and undue influence.

JUDGMENT :

ARIJIT BANERJEE, J.

1. One Kalap Nath Jaiswal was a resident of Calcutta. He was a successful businessman and a wealthy person. He had two wives (This was when the Hindu Marriage Act, 1955, was not there). The first wife’s name was Kamla Devi (in short ‘Kamla’). The second wife was Shanti Devi (in short ‘Shanti’).

2. Kalap Nath had 4 sons and one daughter from his first marriage, namely, Ajay, Vinod, Manoj, Sanjay and Nirmala respectively. From his second marriage Kalap Nath had two sons and five daughters namely Vijay, Pradip, Pramila, Urmila, Meena, Beena and Shila respectively.

3. Kalap Nath died on June 16, 1996, having made and published, what the plaintiff says, was his last Will dated October 5, 1994. The plaintiff and Vijay (two sons from the second marriage) were named as executors in the Will. In the Will, the branch of Kalap Nath’s first wife was by-passed and nothing was given to them. Kalap Nath devised and bequeathed all his properties, immovable and movable, to the branch of the second wife and in particular to Vijay and Pradip and their families. There was also a bequest in favour of his second wife Shanti.

4. Vijay and Pradip filed an application for probate of the aforesaid Will of Kalap Nath, being PLA no. 116 of 2003. The branch of the first wife of kalap Nath filed caveat and affidavit in support thereof opposing the grant of probate of the said Will in favour of Vijay and Pradip. Accordingly, the matter became a contentious cause and was registered as TS 13/2006. It may be noted that during pendency of the suit, Vijay passed away and Pradip became the sole plaintiff.

5. No specific issues were framed by the learned Judge before whom hearing of the suit commenced. However, the only issue according to me is whether or not the Will in question is the last Will and testament of the testator and whether or not it should be admitted to probate.

6. From the affidavit dated July 30, 2004, filed in support of the Caveat and the supplementary affidavit dated January 14, 2010, it appears that the defendants have opposed the plaintiff’s prayer for the grant of probate on the following grounds:

(a) Kalap Nath did not have the capacity or power to make a Will relating to the assets which are the subject matter of the Will since such assets and/or properties belong to Kalap Nath Jaiswal HUF and the same were not his personal properties.

(b) Kalap Nath did not know English language. He could only put his signature in English. Hence the Will is highly suspicious.

(c) The document described as a Will is a fabricated document manufactured long after Kalap Nath’s death.

(d) The propounders had failed to produce or file the original engrossed Will with the probate application.

(e) Kalap Nath was not in a proper mental state to execute a Will. He was made to execute the Will under undue influence/coercion. The Will was not made on his own volition and does not reflect Kalap Nath’s true will and intention.

(f) The document alleged to be Kalap Nath’s Will, is unnatural, clothed with suspicion, reveals suspicious circumstances and is tainted with fraud.

7. On behalf of the propounders, three witnesses were examined. They were Dinabandhu Mandal, Kaushik Mandal and Pradip Kumar Jaiswal (propounder). Dinabandhu and Kaushik were witnesses to the said Will. On behalf of the Caveators only one witness was examined i.e. Ajay Jaiswal.

Evidence

8. I may briefly note the gist of the depositions of the witnesses.

9. Dinabandhu, Senior partner of Fox & Mandal, Solicitors, deposed that at the request of Kalap Nath, he had drafted the Will. The Will was signed in his office. Kalap Nath signed the Will first, thereafter on his request, Dinabandhu and then Kaushik signed the Will. Kalap Nath signed the Will after understanding the contents thereof. He was in good health on the date of the execution of the Will. The Will was executed in duplicate. The second copy may be called ‘certified true copy’. This was done so that if the original was misplaced a