Sunday, 25 October 2015

Golden rules for appreciation of evidence given for proving execution of will

It is well-settled that even probate cannot be granted by mere proof of due execution of the Will by the testator and attestation thereof by the attesting witness by the propounder, unless the propounder succeeds in proving that there was no suspicious circumstances leading to the execution of the Will by the testator.
The Hon'ble Apex Court in the decision reported in AIR 1964 SC 529(SASHI KR. BANERJEE & ORS v SUBODH KUMAR BANERJEE) has been pleased to set out the example of suspicious circumstances to the following effect.
(i) That the suspicious circumstances may be as to the genuineness of the signature of the testator.
(ii) It may be the condition of the testator's mind.
(iii) The disposition made in the will have the un- natural, improbable or unfair in the light of relevant circumstances.
(iv) There might be other indications in the will to show that the testator's mind was not fit or free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as last will of the testator.
In fact, the Hon'ble Supreme Court in the case of Navneet Lal alias Rangi V. Gokul & Ors. reported in AIR 1976 SC 794 has given us the guidelines as to how the genuineness of the Will and the testator's mind set at the time of execution of the Will can be judged for ascertaining true intention of the testator for giving his estate to the beneficiaries of the Will and the reasons for exclusion of others from inheriting any part of his estate by way of testamentary succession. The following guidelines were given by the Hon'ble Supreme Court in the decision noted above.
(a) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances being considered to find out the intended meaning of such words employed therein.
(b) In construing the language of the will the Court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense-all as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.
(c) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
(d) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like.
Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create and such hiatus.
(e) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interest, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will.
It is therefore apparent from the principle laid down by the Hon'ble Apex Court that in construing the language of the Will the Court is required to put itself into the testator's arm chair and is also bound to bear in mind other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense all as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document.
It is not the wisdom of the Judge that is necessary for actual construction of the Will but learned Judge should place himself in the arm chair of the testator in order to appreciate the desire and intention of the testator in making such Will.
Kolkata High Court (Appellete Side)
Sri Birendranath Paul @ Barendra ... vs Sri Sankar Paul @ Kali Krishna Paul on 26 June, 2015
Present:

The Hon'ble Justice Jyotirmay Bhattacharya
        And
The Hon'ble Justice Debi Prosad Dey

                               F.A. 315 of 2005
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.
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 @ 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.
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.
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.
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.
Such decision of learned Trial Judge is now under challenge before us.
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 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.
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.
In support of his contention, he has referred to the following decisions reported in viz:- 2003(8) SCC 537 (RAMABAI PADMAKAR PATIL THROUGH LRS. AND OTHERS Versus RUKMINIBAI VISHNU VEKHANDE AND OTHERS), AIR 1976 SC 794, (2009) 11 SCC 141 (MAHESH DATTATRAY THIRTHKAR Versus STATE OF MAHARASHTRA), (1999) 8 SC CASES 649 (RAMMI ALIAS RAMESHWAR Versus. STATE OF M.P.) 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.
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.
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.
In support of his contention Mr. Roy Choudhury has referred to the following decisions viz. AIR 1962 SC 567(RANI PURNIMA DEBI AND ANOTHER Versus KUMAR KHAGENDRA NARAYAN DEB AND ANOTHER), AIR 1955 SC 346(GIRJA DATT SINGH Versus GANGOTRI DATT SINGH), AIR 1982 SC 133(SMT INDU BALA BOSE AND OTHERS Versus MANINDRA CHANDRA BOSE AND ANOTHER) and AIR 1972 SC 1471 (MOONGA DEVI AND OTHERS Vs. RADHA BALLABH).
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.
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.
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.
Again, this is not to say that the Court will thrust its own notions of what is just disposition or unfair and uphold only what is just in its opinion and rule against what seems unfair. Each case will be decided in the light of its peculiar facts and circumstances. The initial burden of proof is always on the person who propounds the Will.
Secondly, non-registration of a Will cannot constitute an inference against the genuineness of the Will, simultaneously mere registration does not dispel the requirement of proof of Will.
The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63of the Indian Succession Act.
Section 63 of the Indian Succession Act may be reproduced for proper appreciation of the lis under reference.
"Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:
(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and such of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Section 63(c) of Indian Succession Act thus provides that the Will shall be attested by 2 or more witness.
(i) Each witness must have seen the testator sign or affix his mark.
(ii) Each witness must have seen some other person sign the will in the presence of and by the direction of the testator.
(iii) If the will is already signed each witness must have received from the testator a personal acknowledgment of his signature or mark or of the signature of such persons signing for him.
The legal requirement of attestation should be proved and cannot be presumed. Section 68 of Indian Evidence Act specifically provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
It is well-settled that even probate cannot be granted by mere proof of due execution of the Will by the testator and attestation thereof by the attesting witness by the propounder, unless the propounder succeeds in proving that there was no suspicious circumstances leading to the execution of the Will by the testator.
The Hon'ble Apex Court in the decision reported in AIR 1964 SC 529(SASHI KR. BANERJEE & ORS v SUBODH KUMAR BANERJEE) has been pleased to set out the example of suspicious circumstances to the following effect.
(i) That the suspicious circumstances may be as to the genuineness of the signature of the testator.
(ii) It may be the condition of the testator's mind.
(iii) The disposition made in the will have the un- natural, improbable or unfair in the light of relevant circumstances.
(iv) There might be other indications in the will to show that the testator's mind was not fit or free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as last will of the testator.
In fact, the Hon'ble Supreme Court in the case of Navneet Lal alias Rangi V. Gokul & Ors. reported in AIR 1976 SC 794 has given us the guidelines as to how the genuineness of the Will and the testator's mind set at the time of execution of the Will can be judged for ascertaining true intention of the testator for giving his estate to the beneficiaries of the Will and the reasons for exclusion of others from inheriting any part of his estate by way of testamentary succession. The following guidelines were given by the Hon'ble Supreme Court in the decision noted above.
(a) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances being considered to find out the intended meaning of such words employed therein.
(b) In construing the language of the will the Court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense-all as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.
(c) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
(d) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like.
Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create and such hiatus.
(e) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interest, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will.
It is therefore apparent from the principle laid down by the Hon'ble Apex Court that in construing the language of the Will the Court is required to put itself into the testator's arm chair and is also bound to bear in mind other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense all as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document.
It is not the wisdom of the Judge that is necessary for actual construction of the Will but learned Judge should place himself in the arm chair of the testator in order to appreciate the desire and intention of the testator in making such Will.
Let us now test the genuineness of the Will and testator's mind set in execution of such Will for disposition of his estate in the manner it was done by sitting in the arm chair of the testator in the light of the guidelines given by the Hon'ble Supreme Court as mentioned above. We find from the evidence on record that Nilkrishna Paul had strained relationship with his sons namely Sankar and Bimal Paul. It is apparent from the evidence of the contesting defendant/respondent that Sankar Paul had love marriage and since the time of his marriage he had been living in separate mess. They did not take any information with regard to their mother and the testator. DW1 further admitted that his brothers (the appellants) used to look after the business of his father on and from 1979.
Since these two sons separated themselves from the testator's family and they did not maintain any relationship with the testator during his lifetime and further they withdrew themselves from assisting their father in carrying on the father's business, the testator(father) did not give any part of his property to these two sons by mentioning the reasons for their exclusion in his disposition, which appears to us very reasonable for a father, who was deprived and/or neglected by his own sons. On reading the evidence of the DW.1, we find that the contesting parties failed to prove that the reasons which were mentioned by the testator in Will for their exclusion from inheritance by testamentary succession were not correct. They could not prove that they did not separate themselves from the family of the testator since the time of their marriage and they took all necessary care for their father and the other members of his family in the manner as ordinarily a father expects from his son. In the absence of such proof, we have no hesitation to hold that the testator was not unreasonable in his disposition of his estate in the manner as it was done by him in his Will.
The only point for challenging the Will as per the evidence of DW1 is that his father was bed ridden since 1975 on account of heart ailment and the signatures appearing in the Will are not of his father since his father was in non-ambulatory state. However, in his cross-examination DW1 could not produce any sort of medical paper in order to establish that his father was suffering from serious illness. DW1 further admitted in his cross-examination that he has got no other document having signature of his father and he never prayed for handwriting expert for comparison of the signature of his father. It is really surprising to note that the person, who is challenging the signature of his father, has not prayed for the service of handwriting expert in order to prove that the signatures appearing in the Will are not genuine signatures of his father. Secondly, being son of the testator and having so called good relation with the testator, DW1 could have produced sufficient medical papers with regard to the testator, who is said to have been suffering from serious ailment since 1975 on account of heart ailment and was in a non-ambulatory state. That having not been done, mere statement of DW1 is not sufficient to prove that the testator had been suffering from such serious ailment and that the signatures appearing on the Will are not of the testator. The contesting defendant/respondent however could not produce any such document /evidence in order to show that the testator had no ability or had been suffering from serious ailment. The respondent/defendant also failed to show that the signatures in the Will of the testator are not genuine.
PW1, Radheshyam Paul specifically stated that the testator divulged to him that the Will was scribed by one Biswanath Ghosh, Advocate of Alipore Court under the dictation and instruction of the testator and the testator read the contents of the Will and thereafter he had put his signature in presence of Dr. R. N. Das, Baidyanath Kundu, Ram Ikbal Das and PW1. Thereafter all the aforesaid 3 persons and PW1 had put their respective signatures on the same in presence of the testator who was then 66 years old with sound physique and mental fitness. He has also proved the Will, i.e. the Ext.1. He has proved the signatures of the testator on each page of the Will dated 01.10.1986 vide Ext. 1/1. It has been specifically stated by PW1 that Nilkrishna Paul had no sorts of ailment at the time of execution of such Will but he developed heart problem after execution of such Will.
As per PW1, the testator died on 30.10.1989 that is about 3 years after the date of execution of such Will. PW1, however, could not say whether the testator understood the contents of Ext. 1 at the time of signing the same. It is apparent from the evidence of PW1 that the testator died from heart attack in the year 1989. It is also apparent from the cross-examination of PW1 that Bimal and Sankar Paul used to reside at separate mess since 1979. It further appears from the cross-examination of PW1 that Bimal contracted love marriage without consent of his parents and the testator had no consent to such marriage and for that reason, Bimal started residing in separate accommodation. It is therefore apparent from the disposition of this Will that both the sons namely Sankar and Bimal used to reside in separate mess for quite a long time. The reasons for stating of both the sons in such separate mess are apparent from the cross- examination of PW1. Bimal got married without consent of the testator and that is why, the testator was definitely not happy in such marriage of Bimal. Accordingly, the relationship between father and his sons became strained and that is why both the sons left the residence of their father and started residing in a separate mess. We find candid disposition to that effect in the Will. Secondly, while interpreting the evidence of PW1, the learned Trial Court has dealt with some minor inconsistencies in the evidence of PW1 ignoring the fact that PW1 has categorically proved the Will and the signatures of the testator in terms of Section 63(c) of Indian Succession Act as well as under Section 68 of the Indian Evidence Act. The evidence of PW1 has to be interpreted or accepted in its totality and not with some fragmented statements of PW1. The Will was executed in the year 1986. PW1 appeared on dock firstly on 27th day of September, 2001 and lastly on 10th February 2004. That clearly goes to show that PW1 was asked to explain about the execution of the Will after 18 years from the date of execution of such Will. It is not possible for ordinary human being to have photographic memory and to depose in clear terms without any inconsistency about the execution of the Will which took place about 18 years ago. The Hon'ble Supreme Court in the decision reported in (2009) 11 SCC 141 (MAHESH DATTATRAY THIRTHAKAR v STATE OF MAHARASHTRA) has specifically observed that all inconsistencies in evidence cannot impeach the credit of the witness and hence reliability of its testimony. It has been further held by our Apex Court that inconsistencies in the evidence adduced by the appellant are only minor inconsistencies and do not warrant non-reliance of the same. If we consider the evidence of PW1 in it's totality we find that the evidence of PW1 is not only trustworthy but the evidence of PW1 appears to be genuine in view of such minor inconsistencies in his evidence. Had he been able to depose without having such minor inconsistencies, in that event the evidence of PW1 would have been doubtful. On the contrary, PW1 has clearly proved the genuineness of the execution of such Will by the testator in presence of the attesting witnesses. We have no hesitation to say that the learned Trial Judge has failed to appreciate the evidence of PW1 in the light of the decisions referred to herein above as well as in strict sense of the term as per Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act. PW2 Biswanath Ghosh drafted the Will of the testator and he has also proved his signature thereon vide Ext. 1/2. In his cross-examination PW2 has clearly stated that he prepared the draft as per the instructions of the testator and thereafter he handed over the same to the testator.
Had there been no capacity of the testator to move from his bed, it would not have been possible on his part to visit the seresta of PW2 and to instruct him to draft and to type the Will. Therefore, the contention of the respondent that the testator was suffering from serious ailment and the testator was in non- ambulatory state appears to be not true. PW3 Ram Ikbal Das is another attesting witness of the Will. PW3 Ram Ikbal Das has categorically stated that Nilkrishna Paul read over the will and thereafter he signed in presence of all the witnesses and the witnesses also signed in presence of Nilkrishna Paul. PW3 Ram Ikbal Das has proved his signature vide exhibit 1/3. He has also identified and proved the signature of Nilkrishna Paul. PW3 has specifically stated that Nilkrishnababu was physically fit at the time of execution of the Will. As per the provision of law the evidence of PW3 Ram Ikbal Das is enough for proving the Will, if not the genuineness of the Will. Admittedly, PW3 Ram Ikbal Das signed in the Will about 14/15 years ago.
PW4 is one of the appellants/plaintiffs and his evidence has had no bearing in the instant case except that his father was hail and hearty till 1989.
Therefore, it is crystal clear from the evidence on record that Nilkrishna Paul personally had been to the Advocate to instruct him and got the Will typed by the Advocate. This fact has not been challenged and may safely be accepted. Secondly, Nilkrishna Paul personally read and explained the Will in presence of all the attesting witnesses and he also signed such Will in presence of the attesting witnesses. At least two attesting witnesses categorically stated that Nilkrishna Paul signed in their presence and thereafter all the attesting witnesses signed in presence of Nilkrishna Paul. PW1 further stated that at the outset he refused to sign after hearing the contents of the draft Will from Nilkrishna Paul as he did not make any provision for his wife who happens to be the sister of PW1, in the Will. Then the draft was changed after making provision for the wife of Nilkrishna Paul. The said fact has also been corroborated by the learned Advocate who prepared the draft and finally typed the Will of Nilkrishna Paul. The specific evidence of such attesting witnesses clearly goes to show that the Will was executed by the testator in presence of the witnesses and at the time of such execution there was absolutely no ailment of the testator. The testator was mentally alert and physically fit at the time of execution of the Will was registered on 06.10.1986 before the sub-registrar. The Will was produced by the testator himself and he was identified by one Sunil Mandal. The Learned Trial Court doubted the registration of such Will on the ground that the identifier of the executant was not produced by the propounder. It is true that registration of a Will does not give sanctity to the execution of the Will. The requirement of law is about the proper execution of the Will by the testator and not the registration of the Will. However, we find from the discussions made in the foregoing paragraphs that the propounders have been able to prove the due execution of the Will of the testator. Moreover, the said Will has also been registered in presence of the sub-registrar. Nothing has been stated with regard to any sort of collusion between the propounders or the sub-registrar about the registration of such Will. The settled principle of law in this regard is that a registered document has to be accepted as genuine unless contrary is proved. The contesting defendants/respondents could not produce any material before the Court of law to justify that the testator had no mental alertness or physical fitness at the time of execution of such Will. If we place ourselves in the arm chair of Nilkrishna Paul, we find that Nilkrishna Paul was perfectly justified in making provision of accommodation and marriage of his wife and unmarried daughter, respectively, while making such Will. The circumstances clearly reveal that only the appellants were residing with the testator and they were looking after their parents. The circumstances further reveal that the contesting respondents/defendants used to reside in separate mess since 1979. Admittedly, Bimal got married out of his own without the consent of his father and that is why Nilkrishna Paul thought it fit not to bequeath any of his property in favour of Sankar and Bimal Paul. Nilkrishna Paul found that his other daughters were living happily in the family of their in laws and that is why, he also did not think it fit to give any share of his property to his married daughters. In that view of this case we do not find any abnormality or partiality in the disposition of the Will executed by Nilkrishna Paul and the manner of distribution of the property of Nilkrishna Paul amongst his sons and wife.
Learned Advocate appearing on behalf of the contesting respondent Mr. Roy Choudhury has referred to the following decisions in support of his contention. The Hon'ble Apex Court in AIR 1982 SC 133(SMT. INDU BALA BOSE AND OTHERS versus MANINDRA CHANDRA BOSE AND ANOTHER) has set out some of the examples of suspicious circumstances viz.
(i) Genuineness of the signature of the testator.
(ii) The condition of testator's mind.
(iii) The dispositions made in the will being un-natural, improbable or unfair in the light of relevant circumstances.
(iv) There might be other intention in the will to show that the testator's mind was not free, etc. On perusal of the said decision we find that one Ranendranath Bose executed a will and bequeathed ½ of his properties to his nephew (his brother's son, who predeceased Ranendranath) and remaining ½ to his another brother(with life interest) in exclusion of his other brothers. The objections raised by the objectors in the said suit were ultimately rejected by the High Court and thereafter confirmed by the Supreme Court. The facts and circumstances of the said case are not similar to the given facts and circumstances of this case. The genuineness of the signature of the testator Nilkrishna Paul has not been challenged. On the contrary, the condition of testator's mind and dispositions made in the Will were challenged. The propounders have adduced sufficient evidence in order to clear those circumstances and as such we do not find any reason to accept the applicability of the said decision in this case.
In AIR 1972 SC 1471(MOONGA DEVI AND OTHERS Vs. RADHA BALLABH), the Apex Court remanded the matter to the High Court on the ground of misconduct of learned Advocate, who did not perform in accordance with the instructions given by his client.
In AIR 1962 SC 567(RANI PURNIMA DEBI AND ANOTHER versus KUMAR KHAGENDRA NARAYAN DEB AND ANOTHER) the propounder could not remove the suspicious circumstances and as such Apex Court dismissed the suit by allowing the special leave.
In AIR 1955 SC 346(GIRJA DATT SINGH Versus GANGOTRI DATT SINGH) the propounder could not prove the due execution and attestation of the will and accordingly the same was rejected.
The Learned Trial Judge has pointed out some scattered statements of PW1, Radheshyam Paul and came to a decision that the dispositions of the will are not in accordance with the Will and desire of the testator. The suspicious circumstances pointed out by the learned Trial Judge are as follows:-
(i) PW1, Radheshyam Paul was an employee of the testator.
(ii) PW1 stated about sweet relation of testator with the defendants/respondents and as such the disposition in the Will that they had strain relation with the testator are not correct.
(iii)Thirdly, there may be various reasons for staying separately by the other brothers and such separate residence shall not be a ground for exclusion of other brothers from the properties of the testator.
In the present case we find that PW1 specifically stated that Will was not registered but actually the will was registered.
In our view this part of the evidence of the PW1 cannot vitiate the genuineness of the Will as it may so happen that he was not informed about the registration of the said Will which was registered four days after its execution We have minutely considered the evidences on record and it appears, from the totality of the evidences on record that the learned Trial Judge failed to appreciate the evidences on record in its true perspective.
PW1, Radheshyam Paul is not only an employee of the testator but he is the brother of the wife of the testator. At the outset he refused to sign on the Will as the testator did not make any provision for his wife in the Will. Thereafter, the draft of the Will was altered and provision for the wife of the testator was made in the Will. Then, PW1 signed in the Will. Such fact has been elicited in the cross examination of PW1. The Learned Trial Judge has not only overlooked such evidence but misread the evidence of PW1 to suit the objection raised by the contesting defendant/respondent.
Secondly, it is apparent from the evidence of DW1 that he used to reside in separate mess since 1979. It is also apparent from his evidence that the business of his father had been managing by the appellants since 1979. It has been elicited in the cross examination of PW1 that Bimal got married out of his own and without the consent of the testator. That goes to show that the testator was definitely not happy because of such marriage of Bimal. Thus, sufficient reasons were given for exclusion of other sons by the testator. Accordingly, such dispositions in the Will cannot be said to be suspicious circumstances to reject the testamentary application.
PW1 Radheshyam Paul and Ram Ikbal Das have in clear tone supported the execution and attestation of exhibit 1. Law does not provide that all the attesting witnesses are to be produced for proving due execution and attestation of the Will. The Learned Trial Judge has failed to consider the true import of Section 63 of Succession Act read with Section 68 of the Indian Evidence Act.
Non production of Dr. R. N. Das has had no telling effect in the execution and attestation for exhibit 1 in view of sufficiency in the evidence of Radheshyam Paul(PW1) and PW3(Ram Ikbal Das).
The Will was executed and attested by the witnesses on 01.10.1986. The same was registered on 06.10.1986. The testator himself produced the same before the Sub-registrar and he was identified by one Sujit Mandal. The PW1 therefore, stated candidly that the Will was not registered because the Will was not registered on 01.10.1986. It was beyond the knowledge of PW1 that the Will was registered on 06.10.1986. Such statement of PW1 cannot be interpreted to be suspicious circumstances.
The Learned Trial Judge instead of interpreting the Will, sitting in the arm chair of testator, tried to infuse his own wisdom and intellect to interpret the situations prevalent at the relevant point of time and thereby definitely decided the lis, having erroneous approach to the actual state of affairs.
Registration of Will is optional. Moreover, LTI of the executant was obtained and the Sub-registrar being responsible government officer registered the document. If non-production of Sujit Mandal is a suspicious circumstance, then non-production of the sub-registrar should have been interpreted as another suspicious circumstance. No evidence is forthcoming that the propounders took active part in getting such Will registered. Therefore, learned Trial Judge has wrongly considered such matter as one of the suspicious circumstances ignoring the factum of due attestation and execution of the exhibit 1(will). PW1 Radheshyam Paul admitted that the testator died of heart attack on 30.10.1989 i.e. 3 years after the execution of such Will. There cannot be any presumption that the testator was in coma on account of such heart ailment. Heart ailment does not render the intellect and mental alertness of a person in-effective. In that view of this case, the learned Trial Judge wrongly placed importance of such ailment of the testator. More so, we find that testator himself instructed about the drafting of such will, got the same typed by an Advocate, executed and got the Will attested by 4 witnesses and subsequently he himself produced the Will for registration and got the same registered. We do not find any reason to concur with the learned Trial Judge that on account of such ailment the testator had no capacity to execute the will.
The testator excluded his married daughters in his will. The married daughters also did not contest the suit and thereby they have accepted the last desire of their father. The testator has specifically made provision for accommodation for his only unmarried daughter Mousumi in the Will. The testator has also made specific provision in the Will that both the appellants would have to take the liability of the marriage of Mousumi, if the testator died prior to the marriage to Mousumi. That goes to show that the testator duly thought about the future of Mousumi and made specific provision for the accommodation and marriage of Mousumi.
The Learned Trial Judge did not consider this aspect of the Will and simply incorporated some reasons without due application of the principles of law stated herein above.
In the premises set forth above we have no hesitation to say that learned Trial Judge misdirected himself in interpreting the circumstances by injecting his own findings and thereby erroneously disposed of the suit.
The judgment and decree passed by the learned Additional District Judge, 10th Court, Alipore, South 24 Parganas, is set aside.
Let probate be granted in favour of the plaintiffs/appellants on usual terms and conditions. We make no order as to cost of the suit. Let a copy of this judgment be forwarded to the learned Trial Court forthwith.
Let the lower Court records, be sent down to the learned Court below by Special Messenger, at the cost of the appellants. Such cost should be deposited by the appellants within a week from date.
Formal decree need not be drawn up.
Urgent Photostat copy of the judgment be given to the parties, if applied for, as per usual terms and conditions.


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