F.A. No. 315 of 2005. Case: Birendranath Paul and Ors. Vs Sankar Paul. High Court of Calcutta (India)
| Case Number | F.A. No. 315 of 2005 |
| Counsel | For Appellant: Joydeep Kar, Setabuddin Khondekar, Shabana Hasin and Mobaidur Hossain, Advs. and For Respondents: Sandip Roy Choudhury, Adv. |
| Judges | Jyotirmay Bhattacharya and Debi Prosad Dey, JJ. |
| Issue | Indian Evidence Act, 1872 - Section 68; Indian Succession Act, 1925 - Sections 63, 63(c) |
| Citation | AIR 2015 Cal 272 |
| Judgement Date | June 26, 2015 |
| Court | High Court of Calcutta (India) |
Judgment:
Debi Prosad Dey, J.
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This First Appeal is directed against the judgment and decree passed by the learned Additional District Judge, 10th Court, Alipore, 24 Parganas(South) in Original Suit No. 11 of 1998 wherein and whereby the learned Judge dismissed the prayer for granting probate in favour of the appellants. Being aggrieved by and dissatisfied with such judgment and decree of the learned Trial Judge, the plaintiffs/appellants have preferred this appeal on amongst other grounds that learned Trial Judge could not properly appreciate the evidence on record and thereby came to an erroneous finding in respect of the execution of the Will by the testator and that learned Trial Judge failed to appreciate the dispositions made in the 'Will' in its true perspective and in terms of the desire and intention of the testator and that the learned Trial Judge erroneously came to a decision ignoring the evidence on record that the Will is not fettered by any of the suspicious circumstances, as alleged in the written statement.
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The fact of the case under reference may be summed up as follows:
Nilkrishna Paul, prior to his death made and published his last Will and testament on first day of October, 1986 whereby he appointed the plaintiffs (his two (2) sons), as joint executors and left and bequeathed his estate and effects there to. At the time of his death, Nilkrishna Paul left behind him his 4 sons viz. Birendranath Paul, Bikash Paul, Sankar Paul alias Kali Krishna Paul, Bimal Paul and four (4) daughters viz. Shibani Paul nee Das, Gouri Paul nee Sarkar, Kalyani Paul nee Kundu, Smt. Mousumi Paul and widow Smt. Santirani Paul.
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Nilkrishna Paul appointed the plaintiffs/appellants as executors of the Will. The estate of Nilkrishna Paul was bequeathed to executors/plaintiffs to the extent of 2/3rd share and remaining 1/3rd was bequeathed to the wife of Nilkrishna Paul for life. The wife of Nilkrishna Paul would enjoy such 1/3rd share during her lifetime and on her death, her share would be devolved upon both the plaintiffs/appellants in equal share. Provision has also been made in the said Will for the marriage of unmarried daughter of Nilkrishna Paul. The right of residence of such unmarried daughter of Nilkrishna Paul was also provided in the estate of Nilkrishna Paul till her marriage.
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One of the sons of Nilkrishna Paul, namely, Sankar Paul contested the suit by filing written statement denying all the material allegations contained in the plaint. The specific defence case is that Nilkrishna Paul had been suffering from cardiac problem before his death and remained bed ridden, having lost his physical ability as well as mental alertness. Taking advantage of such vegetative condition of Nilkrishna Paul, the plaintiffs/appellants in collusion with each other might have procured and/or obtained the signature of the testator on some blank papers and subsequently they created/manufactured such Will by utilizing those signed blank papers. The further case of the respondent/defendants is that the relation between the respondents/defendants with their father was all along cordial and a suit for partition is now pending by and between the parties before the Court of the learned Civil Judge (Senior Division, Sealdah), South 24 Parganas.
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The contesting defendant specifically stated that the alleged Will is not a genuine one and as such the plaintiffs are not entitled to get any relief. He has also prayed for dismissal of the probate application as according to him the Will is an unnatural Will which the testator could not have made, had he been physically fit and mentally alert. The learned Trial Judge considering the evidence on record, came to the conclusion that the Will under reference could not be accepted as a product of free will of the testator in view of suspicious circumstances, which engulfed the making of such Will and as such the learned Trial Judge dismissed the suit on contest.
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Such decision of learned Trial Judge is now under challenge before us.
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Learned Senior Counsel, Mr. Joydeep Kar, appearing on behalf of the appellant contended that the learned Trial Judge has failed to appreciate the evidence on record and thereby erroneously came to a decision that the appellants/plaintiffs have failed to remove the suspicious circumstances leading to execution of such Will.
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He further contended that despite execution of the Will has been duly proved by two of the attesting witnesses in terms of Section 63 of Indian Succession Act read with Section 68 of Indian Evidence Act, the learned Trial Judge expressed his doubt about due execution of the Will by the testator by giving importance to some minor inconsistencies in the evidence of the attesting witnesses and thus misdirected himself in deciding the lis.
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He further contended that the Will under reference has to be understood/construed by taking into consideration the circumstances that was prevailing at the relevant point of time and the same has to be construed from the mind set and desire of the testator and not from the wisdom and legal knowledge of the learned Trial Judge.
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In support of his contention, he has referred to the following decisions reported in viz:, 2003 (8) SCC 537: (AIR 2003 SC 3109) (Ramabai Padmakar Patil through Lrs. and others v. Rukminibai Vishnu Vekhande and others), AIR 1976 SC 794 (2009) 11 SCC 141: (AIR 2009 SC 2238) (Mahesh Dattatray Thirthkar v. State of Maharashtra) (1999) 8 SCC 649: (AIR 1999 SC 3544) (Rammi Alias Rameshwar v. State of M.P.)
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Learned Advocate Mr. Sandeep Roy Choudhury appearing on behalf of the contesting respondent vehemently argued that the learned Trial Judge was perfectly justified in refusing to grant probate to the said Will as the Will under reference was engulfed by suspicious circumstances and the attesting witnesses were not uniform in their evidence regarding due execution of the Will by the testator and attestation thereof by the attesting witnesses.
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By referring to the evidence of the attesting witnesses he pointed out that the attesting witnesses contradicted each other about the order of signing the said Will by the attesting witnesses. He also pointed out from the evidence of the attesting witnesses that though they stated that the testator read the Will before signing but nobody has said that the testator executed the said Will after understanding the purports thereof. He thus supported the judgment of the learned Trial Judge.
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According to him, the Will is an unnatural Will as the testator had no justifiable reason to execute the said Will for depriving his two sons, namely Sankar and Bimal who were equally loved by him like his other two sons, namely Birendranath and Bikash.
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In support of his contention Mr. Roy Choudhury has referred to the following decisions viz. AIR 1962 SC 567 (Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another), AIR 1955 SC 346 (Girja Datt Singh v. Gangotri Datt Singh), AIR 1982 SC 133 (Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another) and AIR 1972 SC 1471 (Moonga Devi and others v. Radha Ballabh).
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Let us now consider the merit of this appeal in the facts of the present case in the light of the submission made by the learned Advocates of the respective parties.
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In the case under reference, Nilkrishna Paul bequeathed 2/3rd of his entire property in favour of the appellants and 1/3rd with life interest in favour of his widow. He has also made provision for accommodation of his widow in his residential house till her death and provision for marriage and accommodation of his unmarried daughter in his residential house was also made in the Will. Admittedly, the remaining daughters are all married and they are residing with their respective husbands in their respective matrimonial houses. No provision was made for other two sons, namely, Sankar and Bimal as they married their wives and against the wish of the testator and they are living separately since the time of their marriage.
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A testamentary disposition always speaks from the grave of the testator, as it were, the standard of proof that the Courts expect for a Will is very high. It is not mere testamentary capacity but every conceivable aspect of human behaviour would have to be examined to draw the inference that whether the instrument is genuine or false, natural or artificial, improbable or possible. It is not of course possible to lay down any specific formula for determining these factors but it is imperative that the judicial conscience is satisfied.
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Again, this is not to say that the Court will thrust its own notions of what is...
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