SHASHI KUMAR BANERJEE Vs. SUBODH KUMAR BANERJEE

JUDGEMENT

(1.) This is an appeal on a certificate granted by the Calcutta High Court. The appellants are the sons of Ramtaran Banerjee deceased (hereinafter referred to as the testator). They had been appointed executors under a will purported to have been executed by the testator on August 29, 1943. The testator was about 97 years old when he died on April 1, 1947. The appellants applied for probate of the will in the Court of the District Judge in June 1947. Their case was that the will in dispute was the last will and testament of the testator and had been duly executed. The petition was opposed by Subodh Kumar Banerjee and Sukumar Banerjee who are also sons of the testator as well as by the decendants of Sushil Kumar Banerjee and Sanat Kumar Banerjee, two other sons of the testator who had predeceased him. The main ground of opposition was that the will had not been properly executed and attested, though it was also contended that it was not genuine, and the testator did not have testamentary capacity at the time of signing the alleged will and that the execution of the will had been obtained by undue influence, fraudulent misrepresentation and coercion.

(2.) Four main issues arose on these pleadings, namely, -

(3.) The present respondents then went in appeal to the High Court, and the only issue that was urged before the High Court was with respect to the due execution and attestation of the will. The main contention in that behalf was that though the will appeared to be dated August 29, 1943, the signature of the testator appearing at the bottom of the will could not have been made in 1943, and reliance in this connection was placed on the evidence of a handwriting expert. The High Court first examined the evidence of the handwriting expert as to the date on which the signature appearing at the bottom of the will could have been made. The High Court differed from the trial court which had also considered the evidence of the expert and had refused to rely upon it in preference to the evidence of the attesting witnesses and came to the conclusion, relying on the evidence of the expert, that the signature could not have been put at the foot of the will in the year 1943 and similarly the names on the plan attached to the will could not have been written in 1943. Therefore having come to this conclusion, the High Court held that that was the end of the case of the propounders and the attesting witnesses must also be held to have deposed falsely. Having reached this conclusion, the High Court then went on to consider the evidence of the attesting witnesses and said that independently however of the view expressed by it as to the evidence of the expert it was not possible to rely on the evidence of the two attesting witnesses and consequently found that due execution and attestation of the will had not been proved. On this finding, the High Court reversed the judgment of the District Judge and rejected the petition for probate. As the High Court's judgment was one of reversal and the amount involved was over rupees twenty thousand, the High Court granted a certificate of fitness to enable the appellants to appeal to this Court; and that is how the matter has come up before us.