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SUPREME COURT OF INDIA
A.P. SEN AND BAHARUL ISLAM, JJ.
Smt. Indu Bala Bose and others, Appellants
Versus
Manindra Chandra Bose and another, Respondents.
Civil Appeal No. 1872 (N) of 1970
Decided on 18-11-1981.
* Decree from Probate Suit before Calcutta High Court, D/- 24-12-1969.
Constitution of India, 1950 - Article 133 (1) (b) – Civil matter – Testator – Caveat - Respondent No. 1 since deceased and respondent No. 2 filed an application before Subordinate Judge, for probate of a will alleged to have been executed by one Ranendra Chandra Bose on November 8, 1952. Jitendra Chandra Bose, a brother of testator entered caveat and filed a written statement and contested the application for probate - Plaintiffs, case was that Ranendra died unmarried on November 16, 1952, leaving alleged will (Exhibit 1) executed - Ranendra left behind him three brothers - Plaintiff No. 1 and 2) had been appointed executors of will - Contentions of defendants were that Ranendra on November 8, 1952, was not in a physical or mental condition to execute a will; he was in a semiconscious state of mind and had not the testamentary capacity to execute the alleged will - Held, On contrary following circumstances lend strong support to plaintiffs case of genuineness and valid execution of will. (1) Gopendra, one of brothers, who has not been given anything under will had filed a written statement stating that he "has no objection to grant of probate inasmuch as will is executed and attested according to law - We do not find any suspicious circumstance surrounding execution of will - Circumstances pointed out by learned counsel are not only not suspicious but normal as pointed out above - Rule, as observed by Privy Council, is that "where a will is charged with suspicion, rules enjoin a reasonable scepticism, not as obdurate persistence in disbelief - They do not demand from Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity - He is never required to close his mind to truth - Trial Court was wrong in holding that circumstances in question were suspicious and High Court was fully justified in setting aside judgment of trial Court - Appeal dismissed.
Factual Background: Application for probate of will executed by Ranendra Chandra Bose on November 8, 1952, who died unmarried on November 16, 1952, leaving three brothers; executors were Manindra Chandra Bose (plaintiff No. 1, a brother) and Jogendra Nath Mitra (plaintiff No. 2); will bequeathed half properties to nephew Bhabesh and half to Manindra for life then to Bhabesh; caveat filed by brother Jitendra Chandra Bose, contested by his heirs after death. [1000194580001][1000194580002]
Defendants' Contentions: Testator lacked physical/mental capacity on execution date, was semi-conscious; will created under influence of propounder Manindra, who managed properties/litigations; signatures not genuine, obtained on blank papers. [1000194580002]
Trial Court Findings: Signatures of testator and attesting witnesses genuine; provisions fair/unnatural; suit dismissed due to doubts/suspicions on testator's mental condition on November 8, 1952. [1000194580003]
High Court Decision: No suspicious circumstances; minor suspicions explained satisfactorily; set aside trial court decree, granted probate. [1000194580004]
Appellate Challenge: Execution and attestation not disputed; only issue is whether suspicious circumstances around execution satisfactorily explained by propounders. [1000194580005]
Legal Principles on Proving Will: Mode of proof similar to other documents except attestation under S. 63 Succession Act; onus on propounder; in absence of suspicious circumstances, proof of capacity and signature suffices; if suspicious circumstances exist (e.g., genuineness of signature, mental condition, unnatural dispositions, propounder's active role/benefits), propounder must explain to court's satisfaction; court expects removal of legitimate suspicions; even unnatural will valid if suspicions removed. [1000194580006]
Definition of Suspicious Circumstance: Not any/every circumstance; only abnormal, not expected of normal person/situation. [1000194580007]
Appellate Review of Trial Court: Appellate court can review if trial findings based on inferences/assumptions from documents/facts without direct support, not just witness impressions; should not lightly interfere if evidence reasonably justifies trial conclusion. [1000194580008] (!) (!) (!)
Alleged Suspicious Circumstances (11 Listed, Found Normal/Self-Explained): (i) Concealment of illness nature; (ii) No dates for testator-lawyer interactions; (iii) Draft not produced; (iv) No date for summoning lawyer; (v) Lawyer's diary not produced; (vi) Senior lawyer/PW3 partisan not examined; (vii) Employee Bangshidhar not examined; (viii) Propounder's knowledge timing inconsistent; (ix) Draft alterations unknown; (x) Scribe/witnesses connected to propounders; (xi) Propounder's evidence partly false. Explanations: Lapse of 13 years affects memory; no duty to preserve draft/diary; no need to examine all peripherals; normal to use known persons (friends/relations/employees) not strangers; minor inconsistencies not fatal. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Testator's Health Evidence: Suffered high BP, diabetes, acidosis, kidney issues, limited diet pre-execution; PW2 (doctor): not in coma, conversed 8 days post-execution, died suddenly of coronary thrombosis; no evidence of lost mental capacity; defense witnesses did not claim coma/incapacity. (!)
Circumstances Supporting Genuineness: (1) Brother Gopendra (disinherited) filed no-objection statement, affirmed legal execution/attestation; (2) Fair dispositions, no suspicions; (3) Will natural to prevent litigation amid brotherly disputes. (!)
Conclusion on Suspicion: No suspicious circumstances; alleged ones normal; rule requires reasonable skepticism, not impenetrable disbelief; judge must not close mind to truth even in grave suspicion. Trial court erred; High Court justified in reversal. (!)
JUDGMENT
BAHARUL ISLAM, J.:— This appeal by certificate granted by the Calcutta High Court under Art. 133 (1) (b) of the Constitution is from a decree dated December 24, 1969 and arises out of a probate suit.
2. The material facts may be briefly stated as follows. One Manindra Chandra Bose (original respondent No. 1 since deceased) and Jogendra Nath Mitra (respondent No. 2 before us) filed an application before the Subordinate Judge, Alipore, for probate of a will alleged to have been executed by one Ranendra Chandra Bose on November 8, 1952. Jitendra Chandra Bose, a brother of the testator entered caveat and filed a written statement and contested the application for probate. The plaintiffs, case was that Ranendra died unmarried on November 16, 1952, leaving the alleged will (Exhibit 1) executed on November 8, 1952. Ranendra left behind him three brothers - Jitendra, aforesaid, Gopendra and plaintiff No. 1, Manindra. Manindra and Jogendra (plaintiff No. 2) had been appointed executors of the will. By the will Ranendra bequeathed one-half of his properties to his nephew, Bhabesh, who was the son of his younger brother, Phanindra, who had pre-deceased him, and the remaining half to his younger brother Manindra for life, and after his (Manindras) death to Bhabesh absolutely. During the pendency of the suit, Jitendra died and his heirs who were substituted, contested the suit.
3. The contentions of the defendants were that Ranendra on November 8, 1952, was not in a physical or mental condition to execute a will; he was in a semiconscious state of mind and had not the testamentary capacity to execute the alleged will. They alleged that the will was brought into existence at the instance, and under the influence of, the propounder Manindra; that the signatures of Ranendra on the will were not genuine and that they must have been obtained on blank papers by Manindra who was looking after the properties of Ranendra as well as all litigations in which Ranendra was involved.
4. The trial court found that the signatures of the testator and the attesting witnesses on the will were genuine, and that the provisions of the will were neither unfair nor unnatural. But he dismissed the suit and refused to grant probate of the will on the ground that there were certain "doubts and suspicions about the condition of the testators mind on 8-11-1952."
5. The plaintiffs filed an appeal before the High Court. The High Court held that "there was no suspicious circumstance relating to the will and whatever little suspicion there was has been satisfactorily explained by the plaintiff", with the result that the High Court set aside the decree of the trial court and granted probate of the will. The judgment and decree of the High Court has been challenged by the appellants before us.
6. Mr. S. S. Ray, learned counsel appearing for the appellants has not challenged the trial courts findings that the signatures of the testator and the signatures of the attesting witnesses on the will were genuine. In other words, the execution and the attestation of the will have not been challenged before us. The only submission of learned counsel is that the "suspicious circumstances" surrounding the execution of the will have not been satisfactorily explained by the propounders.
7. This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by S. 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubt
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