suspicious will
Querist :
Anonymous
(Querist) 01 August 2011
This query is : Resolved
hi sir,
Based on two willdeeds one which is the final willdeed executed by the testator, and proved with out suspicion about the contents of said willdeed. where as their is a willdeed prior to the above willdeed where their is a suspicion with regard to the NAMES, CONTENTS AND SIGNATURE of the WILL.
In such circumstances plz kindly send me any judgement either of HIGH COURT OR SUPREME COURT dismissing the claim based on the willdeed under suspicion cercumstances.
prabhakar singh
(Expert) 02 August 2011
LAST WILL DEED WILL PREVAIL.FOR REST RELY ON YOUR COUNSEL,HE WILL DO ON HIS OWN.
Raj Kumar Makkad
(Expert) 02 August 2011
Pasupati Paul vs Rash Behari Paul & Ors on 31 March, 2008
Author: Bhaskar Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
PRESENT:
THE HON'BLE MR. JUSTICE BHASKAR BHATTACHARYA
AND
THE HON'BLE MR. JUSTICE RUDRENDRA NATH BANERJEE
F.A. 131 OF 2002
PASUPATI PAUL
- VERSUS -
RASH BEHARI PAUL & ORS.
For the appellant : Mr. Goutam Chakravarty,
Mr. J.N. Manna.
For the respondents : Mr. Gopal Chandra Ghosh.
Heard on:13.02.2008, 18.02.2008,19.02.2008.
Judgment on: 31st March, 2008.
2
RUDRENDRA NATH BANERJEE, J.:
This first appeal has been preferred by the appellant viz. Pasupati Paul, against the judgment dated 11th June, 2001of the Second Court of Additional District and Sessions Judge at Barasat, North 24 Parganas, in original suit No. 2 of 1994 granting letters of administration over the estate of Kalipada Paul @ Kali Charan Paul by virtue of his Will dated 21st March 1983. The case of the original petitioner, Kanan Bala Paul, the predecessor of the present petitioners in the Court below is that the said Kalipada Paul @ Kali Charan Paul executed his last Will written in Bengali on 21st March, 1983 and he died ultimately on 26th January, 1988 at Chittaranjan Medical College & Hospital, Calcutta - 14 while living at Natagarh, Ram Krishna Sarada Road, P.S. Khardah, Dist. North 24 Parganas. He left behind the original petitioner, namely, Kanan Bala Paul, his second wife, as the executrix of the Will and the four sons and two daughters through such second wife and three sons and two daughters through his first wife including Pasupati Paul, the present appellant, that is to mean he left behind altogether 12 heirs including the second wife. The said executrix prayed for probate in respect of schedule 'A' property to the application and the expenses for funeral and sradh ceremony to the tune of Rs.7000/- being shown under schedule 'B'.
3
While the application for probate of the said Will filed by Kanan Bala Paul was pending, she died leaving behind four sons and two daughters who were substituted and those substituted heirs prayed for letters of administration over the said estate under Section 278 of the Indian Succession Act by way of converting the prayer originally made by their predecessor. The three sons and two daughters of the first wife were made opposite parties to the proceedings. The present appellant, Pasupati Paul, contested the case in the Court below by filing a written statement, inter alia, contending that the said testator did not execute any Will and that the writings sought to be passed through as a Will was not genuine. It was alleged that the said Will was never executed by Kalipada Paul and the same was a forged and fraudulent document manufactured for the purpose of grabbing the property of the testator. According to the appellant-objector, the said Will was wholly unnatural. His father had much affection towards him, he being the eldest son. The stepbrothers instigated Kalipada Paul in different ways to create a bitter relation with him and even they assaulted him but ultimately, before the death of Kalipada Paul, the objector developed good relation with him. His father gave him some properties measuring about 10 cottahs of land and 6 feet wide road by way of a "salisnama" dated 20th July,1987 in presence of the police which was diarized under entry No. 1557 dated 20th July, 1987 at Kharda P.S.
4
The learned Court below framed as many as nine issues and examined Kanan Bala Paul, the original applicant as P.W. 1, Abhoy Paul, the petitioner No. 2, as P.W. 2 and one Bidesh Paul as P.W. No. 3. While Pasupati Paul, the appellant deposed as O.P.W. 1 and one Laksmi Paul figured as O.P.W. 2 to oppose the grant. It may be mentioned in this connection that Kanan Bala Paul, the PW- 1, died before the completion of her cross-examination and her deposition was expunged vide order dated 10th November,1998. The learned Court below was of the view that the salisnama could not pass any title in favour of the appellant unless it was based upon a registered document. The learned Court below was also of the opinion that under the Indian law, it was not mandatory that the testator should sign in presence of the attesting witnesses and all that was required under Section 63 of the Indian Succession Act 1925 was that the signature of the executant must be on the Will at the time of attestation and the testator must acknowledge either expressly or by necessary implication the said signature to be his own before the witnesses. Accordingly, on the evidences on record, the learned Court below held that the said Will was the last Will of Kalipada Paul who was mentally alert and physically fit at the time of the execution and that he executed the same voluntarily and thus, the learned Court below granted letters of administration in favour of the applicant respondent Nos. 1 - 6.
5
Being aggrieved by such decision of the learned Court below, the said Pasupati Paul has preferred the instant appeal. Mr. Goutam Chakravarty, the learned Advocate for the appellant, has contended that there is no evidence on record to show that the father of his client executed the said Will by putting his signature or acknowledging the same in the presence of the attesting witnesses or that those attesting witnesses also put their signatures in his presence and accordingly, the Will cannot be said to have been executed in compliance with the provision of Section 63 of the Indian Succession Act 1925. It has been further contended by Mr. Chakravarty that the surrounding circumstances of the execution of the alleged Will appear to be suspicious justifying dismissal of the prayer of grant of letters of administration. Mr. Gopal Ch. Ghosh, the learned Advocate appearing for the respondents, has opposed the aforesaid contentions of Mr. Chakraborty and has contended that it is well established from the materials on record that there was strained relation between the appellant and the testator as would appear from the fact that in the past, on several occasions, the police had to intervene in the dispute between them. Mr. Ghosh submits that in spite of such fact, the testator did not deprive the appellant of his share in the property. Mr. Ghosh points out that if the Will fails the appellant will get 1/12th share in the property left by the testator whereas the Will has given him at least 5 cottahs of land along with a room. Mr. Ghosh contends that there exists no suspicious circumstance in the matter of 6
execution of the Will. According to Mr. Ghosh, the learned trial judge on consideration of the materials on record rightly granted letters of administration of the estate in favour of his clients.
In paragraph 4 of the written statement, the appellant has stated that the alleged Will was never executed by his father and the same was a forged and fraudulent document manufactured for the purpose of grabbing the properties left by his father. It is the further case of the appellant that at the instigation of the original petitioner and her sons, there was bitter relation with his father and ultimately, good relation was restored and out of love and affection, his father gave him 10 cottahs of land and 6 feet wide road out of a "salis". It will be profitable for us to examine the depositions of witnesses for both the sides speaking of or speaking against the execution and attestation of the Will. The P.W. 1 is Kanan Bala Paul, the second wife of the testator, who spoke of due execution of the said Will by Kalipada Paul while he was physically fit and mentally alert. However, while her cross-examination was incomplete and deferred to some other date, she died and vide order No. 17 dated 10th November, 1998, her deposition was expunged. Without raising any question as to whether it was lawful to expunge her deposition altogether, it is seen that learned Court below has at least not relied upon her evidence.
7
The P.W. 2 is Abhoy Paul, the petitioner No. 3, a son of Kalipada Paul through the second wife. He has spoken of his mother's death on December 5 1997 and also has spoken of their filing of application for treating the original application for probate as an application for letters of administration. He has also stated that the testator executed the Will dated March 21,1983 which was duly registered and he has also stated that the testator executed the said Will while he was physically fit and mentally alert. He has identified the signatures of the testator in each of the pages of the Will exhibit - '1'. He has denied that his mother instigated his father to create bitter relation with the appellant. He has proved the death certificate of the testator being ext. - 2 showing that the testator died on January 26 1988. He has also asserted that nobody influenced his father to execute the Will. He expressed ignorance of any salisnama. His deposition regarding the due execution and attestation of the Will would not be of any help to us as during his cross-examination, he admitted that he was not present when his father executed the Will. Of course, he has admitted that his father gave land to Pasupati Paul for his living just to the opposite side of their paternal house intervened by a road. He came to know of the Will when his mother filed a petition for probate. Peculiarly, during cross-examination by the present appellant, a suggestion was put to the witness that another Will besides the Will dated 20th July, 1983 was executed by his father which was denied by the witness. Such suggestion from the end of appellant is obviously a departure from the plea taken in the written objection.
8
The P.W. 3, Bidesh Paul, is an attesting witness to the Will. According to him, Kalipada Paul executed the Will by putting his signature on the Will. The witness also stated that besides him, Shibnath Paul and Tapas Paul also signed the Will in his presence. According to him, Kalipada Paul first put his signature on the Will and thereafter, they put their signatures. He has also asserted that Kalipada Paul executed the Will when he was mentally alert and physically fit and the same was executed by him voluntarily. From the cross-examination of this witness, it is gathered that he knew Kalipada Paul since 1959. Kalipada Paul himself called him at the time of execution of the Will. He was not looking tired at the time of execution of the Will. The Will was prepared at his residence and the witness signed the Will there. He himself did not peruse the Will personally. The testator told him that he executed the Will in respect of the property and he was giving all the properties amongst the sons and daughters. The witness has also stated that Kalipada Paul also told him that he made separate arrangement for Pasupati Paul in his Will. The witness has denied that the Will was not executed by the said testator and that the said Will was a forged one. The witnesses has also denied the suggestion of the defence that there was a salis at the local P.S. on 20th July, 1983 in the presence of Kalipada Paul and his sons and it was decided that 10 cottahs of land in favour of the appellant would be transferred by him.
9
In this connection, a glance on the Will reveals that the same was a typed one in Bengali by Amar Nath Mukherjee of Sealdah Civil Court and the attesting witnesses were Biswanath Paul, Shibnath Paul, Tapas Paul and Bidesh Paul.
Mr. Chakravarty, the learned Advocate for the petitioner, has contended that the witness P.W. 3 Bidesh Paul did not mention the name of Biswanath Paul as attesting witness, which, according to him, shows the falsehood of his statement. But it cannot be left unnoticed that the Will was prepared on 21st March, 1983 and this witness deposed before the learned Trial Court on 29th September, 1999, about 16 years after the execution of the Will. Thus, it is not unnatural for the witness to miss the name of one of the four attesting witnesses present at the time of execution of the Will.
Besides, such evidence of attestation and execution of the Will by the testator and the circumstances prevailing at the time of execution of the Will, the appellant has examined himself and another witness to establish his case in the written statement that the Will was a forged and fraudulent document manufactured for the purpose of grabbing the property of the objector. The appellant himself as O.P.W. 1 has denied the execution of the Will by his father and has also denied his father's signature on the Will. But he has not adduced any further evidence to disprove the execution of and putting the 10
signature by the testator on the registered Will. He could have got the signature of his father on the Will compared with any of his admitted signatures by an expert. Thus, the appellant failed to prove his own story pleaded in the written objection.
Mr. Chakraborty, learned Advocate for the appellant has strenuously contended that there was suspicious circumstances at the time of making out of the Will indicating that the Will was not the free expression of the will of the testator and accordingly the prayer for probate or letters of administration ought to have been refused by learned Court below.
It is true, that the Court while granting probate or letters of administration, cannot overlook any special circumstances bringing suspicion in the mind of the Court as to the genuine execution of the Will of the testator free from any undue influence.
The case of the written statement of the appellant as made out in the para 5 thereof is that the Will was wholly unnatural as the testator had initially an affection towards the appellant, the eldest son of his first wife, but, at the instigation of his second wife and step brothers a bitter relation was created between the testator and him. It is the appellant's further case that ultimately out of love and affection, the said testator gave him 10 cottahs of land and 6 feet 11
wide road and a well by executing a salisnama on 20th July, 1983 and the same was duly diarised in Kharda P.S. on the same day. In order to prove such circumstances, the appellant has examined himself as O.P.W. 1, who has stated, that his father gifted 10 cottahs of land, which is evident from the salisnama exhibit - 3. According to him, he has been residing in the house upon such land and has been occupying the same for the last 20/22 years. The boundary of that land was demarcated by raising pillars in presence of his father. It is gathered from his cross-examination that the testator had start a criminal case against him.
The O.P.W. 2, the other witness examined from the end of the appellant, also speaks of testator's gift of 10 cottahs of land to Pasupati Paul at Kharda P.S., and the witness also put his signature on such document of salish. During cross-examination, the witness has also stated that the testator went to the Thana and put his signature for avoiding creation of any disturbance to his son's possession. Such salishnama was brought into existence at the Police Station at the instance of the present appellant and obviously on a bargain of withdrawal of respective cases between the testator and the appellant. Obviously the testator was forced to sign the same, rather the same goes to indicate a bitter relation between the testator and the appellant even after the execution of the Will. Such subsequent salisnama dated July 20, 1983 neither confers any title to the 12
appellant in respect of the 10 cottahs of land mentioned therein nor does the same cast any cloud to the execution of the Will.
Rather, if we look to the Will itself, exhibit 1, we find that the testator has made a provision in respect of 5 cottahs of land out of his 56 decimals of land in the plot no. 4002, whereupon, a room alotted to the appellant, already existed. The Will itself, rather speaks of a salisnama dated 15th November, 1982, prepared by the arbitrator, which the appellant refused to accept. However, such salisnama is also not produced before the Trial Court. However, it cannot be overlooked that had there been no such Will of the testator, on the death of the testator in 1988, the appellant would not have got more than 5 cottahs of land in such plot, rather, the testator was cautious of the situation like the bitter relationship between himself and the present appellant and made provision for such appellant in the Will so that the legatees of the Will might not disturb the appellant's possession in future after his death. It cannot also be overlooked that there is enough evidence on record that it was the said executrix of the Will who despite such bitter relation saved the appellant from being discarded by the testator, his father. Mr. Chakraborty, has also pointed out to the recital of the Will of the testator, - ' Nana bidho karone ami baroi klanto'. But such recital by itself does not create any suspicious circumstances to show that the testator was not mentally alert and physically fit, 13
at the time of execution of the Will. By such recital, the testator wanted to indicate the bitter relationship between him and the present appellant. The Will itself indicates that despite such bitter relationship he made provisions for the present appellant by giving him 5 cottahs of land along with a room thereon, to avoid future dispute between the appellant and the legatees. Thus, considering all such facts and circumstances, we have no hesitation to hold that there was no suspicious circumstances prevailing at the time of execution of the Will, upon which the Will can be seen with a doubtful eye. Mr. Chakravarty has emphasized that such attestation and execution of the will cannot be said to have been carried out strictly under Section 63(c) of the Indian Succession Act 1925. The Section 63 of the said Act runs as follows: "63. Execution of unprivileged Wills.- Every testator, not being a solider employed in an expedition or engaged in actual warfare, or a mariner at sea shall execute his Will according to the following rules: -
(a) The testator shall sign or affix his mark 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.
14
(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 acknowledgement of his
signature or mark, or the signature of such other
person; and each 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."
It is true that the evidence is that the testator executed the Will by putting his signature which was identified by one of the attesting witnesses namely P.W. 3, Bidesh Paul, and at least two other attesting witnesses also signed in presence of the said P.W. 3. Thus, when the witness says that he himself and at least two other witnesses signed at a time after Kalipada Paul put his signature, the question of personal acknowledgement by the testator of his signature does not arise. It is apparent that the testator saw the attesting witnesses signing the deed and the attesting witnesses also saw him signing the Will. Thus, it cannot be said that the due execution and the attestation of the Will has not been proved. It is true that Biswanath Paul, the attesting witness who signed the Will first has not been examined and his name has not been mentioned by the P.W. 3, the other attesting witness. But for such absence of Biswanath Paul in the witness box, his attestation cannot be doubted due to the following last portion of 15
Section 63 of the said Act: "but it shall not be necessary for more than one witness be present at the time..........."
Mr. Chakravarty, learned Advocate appearing for the petitioner has relied upon the decision reported in AIR 2003 Supreme Court 761 (Janki Narayan Bhoir - Vs. - Narayan Namdeo Kadam) while contending that mere signature of the testator in the Will, does not prove execution and attestation of the Will. In the said decision, the applicant was the only daughter of the testator Honaji Dama Kadam. The respondent was the son or cousin brother of the said Honaji Dama Kadam. The respondent claimed the suit properties on the basis of the Will dated 23rd October,1975, said to have been executed by the said Honaji Dama Kadam.
The Trial Court accepting the Will on the basis of the evidence placed on record decreed the suit. The District Judge in the Regular First Appeal set aside the decree passed by the Trial Court. The High Court, in the second appeal set aside the judgment of the First Appellate Court and restored the judgment and decree passed by the learned Trial Court by the impugned judgment and decree. There, in that case, the evidence of execution of the Will by one of the attesting witnesses was relied upon by the Trial Court and the Will was accepted. The learned First Appellate Court on appreciating the evidence placed on record held that the execution of the Will was not duly proved by such witness and accordingly, reversed the decree of the Trial Court and dismissed the suit. The 16
scribe, namely, Duttatray Rajkar was examined. Out of the two attesting witnesses Ramkrishna Wagle and Prabhakar Sinkar, the later was examined, but he deposed that he did not know whether the other attesting witness Ramkrishna Wagle was present at the time of execution of the Will or not. He also did not say that the scribe was present at the time of his putting signature. The High Court, in the second appeal, took the view that though Wagle, the other attesting witness, was not examined, yet, his signatures on the Will was not disputed. It was not necessary to examine both the attesting witnesses and in case, one of the attesting witnesses examined was unable to remember whether the other attesting witness was present and had signed, it was open to the Court to rely upon the surrounding circumstances as well as the testimony of other witnesses. Accordingly, the High Court reversed the judgment and decree of the 1st Appellate Court. But the Supreme Court, on special leave, as it appears from paragraph 9 and 10 of the decision observed as follows :
"9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested 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 17
Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses. Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words. If one attesting witness can prove execution of the Will in terms of clause (c ) of Section 63, viz., attestation by two attesting witnesses in the manner 18
contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
Ultimately, it was held by the Supreme Court that the High Court committed a manifest error in reversing the judgment and decree of the First Appellate Court and accordingly such judgment of the High Court was set aside. Under the present set of facts, as discussed earlier, the attesting witness P.W.3, Bidesh Paul has proved attestation of the Will by at least two other attesting witnesses whereas in the cited decision attestation by one attesting witness was proved. Thus, the cited decision does not come to help the appellant. 19
Mr. Chakravarty has strenuously contended that the attestation and execution has not been proved under law by referring to the decision reported in AIR 1955 Supreme Court 346 (Girja Datt Singh - Vs. - Gangotri Datt Singh). In the said case, it appears, that Gangotri was one of the beneficiaries under a registered Will, which was sought to be probated, but none of the two attesting witnesses, viz. Mahadeo Pershad and Nageshur had been examined. The said Will was held to be not properly executed and attested. It may be mentioned that in the said case no reliance could be placed upon the oral testimony of other two witnesses claimed to be the attesting witnesses. The Supreme Court held in para 15 of the said reported decision as follows : "15. When this position was realised the learned counsel for Gangotri fell back on an alternative argument and it was that the deceased admitted execution and completion of the will Ex. A. 36 and acknowledged his signature thereto before the Sub-Registrar at Tarabganj and this acknowledgment of his signature was in the presence of the two persons who identified him before the Sub- Registrar, viz., Mahadeo Pershad and Nageshur who had in their turn appended their signatures at the foot of the endorsement by the Sub-Registrar. These signatures it was contended were enough to prove the due attestation of the will Ex. A. 36. This argument would have availed Gangotri if Mahadeo Pershad and Nageshur had appended their signatures at the foot of the endorsement of registration 'animo attestandi'.
But even apart from this circumstance it is significant that neither Mahadeo Pershad nor Nageshur was called as a 20
witness to depose to the fact of such attestation if any. One could not presume from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68 Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri."
In the case before us are of the attesting witnesses has proved due attestation and execution of the Will. Therefore, the aforesaid decision cannot help Mr. Chakravarty's client in any way.
Thus, in view of all the aforesaid decisions we are of the opinion that the Will Exhibit - 1 which was a registered one was duly exeucted by the testator Kalipada Paul and the Will was duly attested by the attesting witnesses. There is also no evidence of any suspecious circumstances prevailing at the time of making out of the Will as suggested by Mr. Chakravarty.
21
Accordingly, we do not find any reason to interfere with the decision of learned Court below granting letters of administration in favour of the petitioners.
Accordingly, the appeal is dismissed.
There shall be no order as to costs.
Urgent xerox certified copy be given to the parties expeditiously, if applied for.
(Rudrendra Nath Banerjee, J.)
I agree,
(Bhaskar Bhattacharya, J.)
