T.S. No. 46 of 2016. Case: Nurun Nahar and Ors. Vs Sheikh Abdul Mukim. High Court of Calcutta (India)

Case NumberT.S. No. 46 of 2016
CounselFor Appellant: S. Deb, Rabindra Nath Basak, Arik Banerjee and Keya De, Advocates and For Respondents: Arindam Mukherjee, Debjani Ray, Md. Zafirul Islam and Md. Shamim Halder, Advocates
JudgesDebangsu Basak, J.
IssueIndian Succession Act, 1925 - Sections 211, 307, 63; Karnataka Land Reforms Act, 1961 - Section 61
Judgement DateApril 05, 2017
CourtHigh Court of Calcutta (India)

Judgment:

Debangsu Basak, J.

  1. In this testamentary suit, the plaintiff seeks probate of the last Will and testament of the deceased Nurun Nahar dated April 11, 2007.

  2. The plaintiff is the executor of the Will dated April 11, 2007. The Will is of a Mahomedan lady. The testatrix had died on March 10, 2008 at her residence. The grant of the probate is contested by one of the sons of the deceased. In the affidavit in support of the caveat the defendant has alleged that, the bequest is void under Mahomedan Law. The Will is a manufactured document. It was obtained by undue influence and coercion. The execution of the Will is surrounded by suspicious circumstances. The testatrix did not execute the Will. The signature in Will is not of the testatrix.

  3. The probate proceeding was set down as a contentious cause. The parties have adduced evidence through commission.

  4. The issues that arise for consideration in the present testamentary suit and as framed by the Order dated November 22, 2016 are as follows:-

  5. Was the last Will and Testament of Nurun Nahar, since deceased executed by her in accordance with law?

  6. Was the said Will and Testament of Nurun Nahar a product of undue influence or coercion as alleged by the said caveator in paragraphs 2(b) of his affidavit in support of caveat affirmed by him on September 5, 2016?

  7. Was the bequest made by the said Will and Testament of Nurun Nahar unnatural as alleged in paragraphs 2(g) and 2(h) of the said affidavit affirmed by the caveator in support of the caveat?

  8. Is the Will forged and fabricated document?

  9. Did the testatrix have the testamentary capacity to make and publish the Will?

  10. Is not the will tainted with suspicious circumstances?

  11. To what relief, if any, is the plaintiff entitled?

  12. Learned Advocate for the plaintiff submits that, the testatrix is a Mahomedan lady. Although the personal laws of a Mahomedan allows a Mahomedan lady to execute a Will in respect of 1/3rd of her estate, a will executed for the entirety of the estate is not void ab initio by reason of the bequest being for the entire estate. A probate Court is not concerned with the title of the testatrix. It is not concerned with which 1/3rd of the estate that the testatrix has bequeathed by her Will. He relies upon two passages on Mulla's Principles of Mahomedan Law 19th Edition, All India Reporter 1978 Calcutta page 399 (Dhane Ali Mia & Ors. v. Sobhan Ali & Ors.), All India Reporter 1951 Calcutta 7 (Anarali Tarafdar v. Omar Ali & Ors.) and 32 Indian Appeal page 244 (Mirza Kurratulain Bahadur & Ors. v. Nawab Nuzhat-Ed-Dowla Abbas Hossein Khan) in support of such contentions. He submits that, by conduct the heirs of a deceased Mahomedan can acquiesce in the bequest of the entirety of the estate of the deceased by a Will. He refers to the conduct of the defendant herein and the pleadings in G.A. No. 3023 of 2016. He relies upon All India Reporter 2008 Supreme Court page 306 (Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon & Ors.) and All India Reporter 2013 Gauhati page 24 (Ka Riverretta Diengdoh v. Ka Trially Sara Rymbai & Anr.) in support of such contentions.

  13. Learned Advocate for the plaintiff submits that, a probate Court does not decide title of the parties. He relies upon All India Reporter 1938 Nagpur page 173 (Abdul Rashid Abdulla Khan Musalman v. Dr. Syed Minhazul Hasan Naiwuddin Musalman & Anr.), 1993 Volume 2 Supreme Court Cases page 507 (Chiranjilal Shrilal Goenka v. Jasjit Singh & Ors.), 2007 Volume 11 Supreme Court Cases 357 (Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon & Ors.) in support of such contention. Relying upon 2011 Volume 4 Calcutta High Court Notes (Cal) page 643 (In the Goods of: Nurun Nahar) he submits that, the plaintiff is entitled to seek probate of the Will of the deceased.

  14. So far as the allegation of the Will being a manufactured document and the execution of the Will being surrounded by suspicious circumstances is concerned, learned Advocate for the plaintiff submits that, the execution of the Will has been duly established in evidence. The manner of execution of the Will would dispel all allegations that the Will was executed under suspicious circumstances. He points out that, the testatrix is not illiterate. She is not a Pardanashin lady. He points out that, the defendant did not allege, contemporaneously to any authority, with regard to any of the alleged wrong doings by one of the beneficiaries. In such circumstances, he submits that, the allegation of the Will being a manufactured document and the same being executed under such suspicious circumstances has no basis.

  15. Learned Advocate for the defendant submits that, the Will which is marked as Exhibit "A" is a manufactured document. He refers to the signatures of the attesting witnesses appearing in Exhibit "A". He submits that, as Exhibit "A" stands, there is an apparent attempt to fit in the signatures in the first page as also in the second page of the so-called executants of the document. He refers to the user of the Bengali word at the fag end of the Will and submits that, such a word is used while a letter is written. He submits that, it is quite possible that the testatrix was asked to execute a blank document stated to be a letter rather than Will. Such blank document was subsequently filled in to be the purported Will of the testatrix. Therefore, the Court should not grant probate on Exhibit "A". He highlights the manner in which the two attesting witness have appended their signatures on Exhibit "A". He also highlights the conduct of the two attesting witnesses and their relationship with the testatrix. He refers to the evidence to the effect that, the scribe on Exhibit "A" had visited the testatrix and the manner of the so-called execution of the purported Will. Referring to the succession of the testatrix he submits that, the testatrix is survived by her three sons and one daughter. He refers to the contents of Exhibit "A" and submits that, properties which admittedly did not belong to the testatrix were sought to be incorporated in the purported Will. He refers to Dag No. 220 in the Will and submits that, the record of rights being Exhibit "1" shows that, the testatrix was not the owner thereof. He refers to the application for re-examination of the witness of the plaintiff which was made at the behest of the plaintiff.

  16. On the conduct of the plaintiff, learned Advocate for the defendant submits that, the plaintiff is the named executor in Exhibit "A". The plaintiff claims to be the scribe of Exhibit "A". He is a Court Clerk working at the Basirhat Court. He submits that, the testatrix was living at the same residential complex as that of the defendant. He submits that, no family member of the defendant had seen the executor being the plaintiff herein or the two attesting witnesses to arrive at the premises on the fateful day and spend such period of time with the testatrix while the Exhibit "A" was being prepared and executed. He contends that, one of the beneficiaries to the purported Will used to torture the testatrix. The testatrix was in a traumatic condition. She had died an unnatural death within 11 months from the execution of the Will. In fact, the testatrix had committed suicide. Referring to these suspicious circumstances relating to Exhibit "A" he submits that, the plaintiff is not entitled to the probate of Exhibit "A". Referring to 2004 Volume 7 Supreme Court Cases page 459 (Jayamma v. Maria Bhai & Anr.) and 2011 Volume 9 Supreme Court Cases page 223 (Shehammal v. Hassan Khani Rawther & Ors.) he submits that, a probate Court...

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