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1993 Supreme(Gau) 20
GAUHATI HIGH COURT
D.N.Baruah, J.
Bimalendu Das -Appellant
Versus
Manjushree Chakraborty Mouzamichakraborty -Respondent
M.A. (F) No. 24 of 1985
Decided On : 29-01-1993
A.B.Choudhury, M.H.Rajbarbhuiyan, S.R.Bhattacharjee
The execution of a will must be proved by the propounder, and if there are suspicious circumstances, the propounder must remove the suspicion by adducing sufficient and acceptable evidence.
Headnote:
WILL - PROBATE - EXECUTION - SUSPICIOUS CIRCUMSTANCES - DISINHERITING WIFE - REMOVAL OF SUSPICION - GRANT OF PROBATE.
Fact of the Case:
The appellant, an advocate, filed a petition for grant of probate of a will executed by the deceased, Dr. Chakraborty, disinheriting his wife (respondent) and bequeathing his properties to his brothers and the appellant. The respondent challenged the genuineness of the will, alleging that it was forged and created by the appellant in collusion with the brothers to grab the deceased's property.
Finding of the Court:
The court found that the execution of the will was proved by disinterested witnesses and that the testator had sound and disposing state of mind at the time of execution. The court also found that the testator had sufficient reasons to disinherit his wife, who had left him in ailing condition and neglected him during his illness.
Issues: 1. Whether the execution of the will was proved beyond doubt. 2. Whether the disinheriting of the wife was justified.
Ratio Decidendi: 1. The court held that the onus of proving the execution of the will by the propounder had been duly discharged. The evidence of disinterested witnesses established that the testator had signed the will and was in sound and disposing state of mind at the time of execution. 2. The court found that the testator had sufficient reasons to disinherit his wife, who had left him in ailing condition and neglected him during his illness. The court held that this was a sufficient circumstance to remove the suspicion regarding disinheriting the wife.
Final Decision: The court set aside the impugned judgment and allowed the appeal, granting probate as prayed for.
2. The facts of the case are that late Dr. Amarendra Kumar Chakraborty, husband of the first respondent and father of the second respondent, was a railway Doctor. He used to reside in Railway quarter at Karimganj in the district of Cachar. He died on 2.2.81 at his residence at Karimganj. Late Dr. Amarendra Kumar Chakraborty had been suffering from various ailments for several years prior to his death. On 28.1.81 late Dr. Chakraborty executed a will and that was claimed to be the last will of Dr. Chakraborty by the appellant. This will was registered on the date of execution. At the time of his death, he left behind his wife, the first respondent and his minor daughter - the second respondent. He also left behind his brothers Arabinda Chakraborty and Anil Kumar Chakraborty. By the said will he appointed the appellant -Bimalendu Das, a local Advocate as executor. As per the will the first respondent was totally disinherited, however, his minor daughter (second respondent) was given certain benefits from the property.
3. After the death of the testator- Dr. Chakraborty, the appellant filed an application for grant of probate of the will before the District Judge, Cachar, Silchar (Miscellaneous Case No. 141/81) which was subsequently renumbered as Testamentary Suit No. 4/82. The appellant was not in any way related either to the testator or to any of his relations. In the will, late Dr. Chakraborty bequeathed his properties to his two brothers besides certain benefits to his minor daughter-second respondent. The reason mentioned in the will for totally disinheriting the wife was that she did not take care of him when he was lying ill and suddenly without his knowledge and information left the house with his minor daughter by taking away the ornaments and savings, therefore, he had no faith on her.
4. After usual notice, the respondents filed their written statement. In the written statement the respondents denied the execution of the will in question and also denied that the will annexed to the petition was the last will of her late husband. She further stated that the alleged will was a forged document and the contents of the said document were not known to her husband - the testator. It was not written at the instance of her husband. In short, the will was a false and fabricated document created by the propounder of the will in collusion with the brothers of her late husband for their common benefit to grab the entire property of her husband depriving her and her minor daughter. She further challenged that at the time of execution of the will her late husband was in sound and disposing state of mind and had the capacity to make the will. At the time of his death he was in helpless condition and completely under the domination and influence of his brother and they took the advantage of his mental incapacity, because of his illness.
She further stated that the contents of the will was totally false. She also denied that she left her husband with her minor daughter as alleged. According to her, she was married to Dr. Chakraborty after obtaining her Graduation Science and used to reside in the Railway quarter. The brothers of her husband were living separately at different places, one at Karimganj and another at Badarpur. After the marriage both the first respondent and her husband purchased valuable movable properties according to their choice. The elder brother of her husband-Arabind Kr. Chakraborty was serving as TTE in NF Railway and his Headquarter was at Badarpur. The younger brother - Anil Kr. Chakraborty was leading a reckless life residing at Subha
