JAGANHATH BANERJEE Vs. NIIAR BALA DEB

JUDGEMENT

(1.) THE plaintiff pro pounder is the appellant and his impugns a judgment and decree dated. the 27th November 1978 passed by the 8th court of the additional District judge Alipore in Original Suit no. . 5 of 1973 whereby the learned Trial Judge dismissed the proceeding for grant of probate in respect of the purported last Will and Testament executed by Smt. Surabala Debi of 19a, Tarak Dutta Road, P. S. Kareya, Calcutta-17.

(2.) THE pro pounder alleged that on 29th March, 1970 the testatrix executed a Will in respect of her properties which included, inter alia, the premises no. 19a, Tarak dutta Road, some money lying in the postal savings account no. 488172 with G. P. O. amounting to Rs. 5082/20 with interested the outstanding house rent amounting to Rs. 1025/ -. The testatrix died on 2. 12. 70. It is the pro pounder's contention that in the said Will he and his, brother, Kedareswar were named as executors, but since his brother Kedareswar expressed his unwillingness to join him in the application for probate, the pro pounder alone applied for probate. However, some of the near relations filed objection against the grant of probate and the matter became contentions. The trial court came to an over all finding that even though it cannot be contended that the testatrix did not have a sound disposing mind and the Will could not otherwise be challenged on the ground of un naturalness, there were sufficient suspicious circumstances which prompted the court to hold that the Will, Ext. J, was not a genuine document and hence, dismissed the suit and refused the grant of probate.

(3.) THE testatrix, Surabala, was the second wife of one jnanendra Chandra Mukherjee, who made a gift of premises no. 19a Tarak Dutta Road, to the testatrix by a registered deed of gift dated 7. 1. 58. Atul Chandra Mukherjee, the sister's husband of Surabala, her brother Jagannath Banerjee and her father Bidhu Bhusan Banerjee ware all witness to the deed of gift. The deed of gift is Ext/ B. It has come out in evidence that with the partition of Bengal, the father and brother of Surabala came from eastern Bengal and took their shelter at 17, Turf Road, Bhawanipur, where surabala used to live with her husband Jnanendra. The address given in the deed of gift by her father and brother also show that they were both residents of 17, Turf Road. With the death of her husband, Jnanendra, Surabala used to live at 19a, Tarak Dutta Road and her father Bidhubhusan and her brother Jagannath also used to say in the said house. It transpired in evidence that the father Bidhubhusan was eager to sell out the house during the life time of surabala for which the latter entrusted the deed of gift and other documents of title with her sister, Niharkana, wife of Atul (O. P. W. ") Bidhubhusan, tine father of Surabala, married twice and Jagannath and Kedareswar were the sons by the second wife. Whereas Surabala, Niharkanta and Tarubala ware the daughters by the first wife. According to the version of Niharkana's husband, Atul, Jagannath was not liked by Surabala. Atul also did not know anything about the Will of Surabala, but or. the other hand, he received a letter from his father-in-law, Bidhubhusan immediately after the death of Surabala Ext. 45 which went a long way to establish the fact that Surabala left no will. The letter unequivocally reiterated, "let it be decided who is the owner and then all will be done". There was no disclosure about the Will in the said letter. The latter contained a recital also that Danu Mukherjee, i. e. Piyush who turned out to be one of the Caveators, had threatened Bidhubhusan.-The letter, Ext D, dated 17th June, 1971, issued from the Solicitors Sandersons and Morgans to sri Santimoy Chatterjee, written allegedly for and on behalf of Bidhubhusan, Claimed Bidlubhusan to be the only heir to Late Smt. Surabala Muknerjee. It was stated in the letter that Surabala died intestate on 2na December, 1980 without leaving any child and on her death, Bidhubhusan a her father became the only heir under the Hindu Succession act. The said letter also did not mention anything about the existence of any Will. Curiously enough, Bidhubhusan who was the beneficiary under the Will, Ext. 1, was not examined in the case and even though it was contended on behalf of the appellant that without examination of Bidhubhusan neither Ext. A5 nor Ext. . D could properly be explained, but then the fact remains that the trial court itself was satisfied about the surrounding suspicious circumstances which prompt-id it to hold that its conscience was not cleared in granting the probate of the Will. The appearance of the Will itself coupled with the fact that the second page of the Will was closely written and the Will itself was not a registered one even though registration itself was not compulsory went a long way to establish the fact that Bidhubhusan or for the matter of that Jagaanath, made use of two blank papers allegedly signed by Surabala on the to by way of conversion of the same into a Will. The draft of the Will was not produced - nd the finding of the will from the lawyers was itself suspicious. The trial court found all the witnesses examined by the pro pounder as attesting witnesses to the will to be the henchmen of the pro pounder. P. W. I. Rabindranath Chakraborty, claimed to be a relation of Bidhubhusan but did not know how he was so related, was under be a person who was most unlikely to be called by Surabala to be in attesting witness to her Will. P. W. 2 Swadesh who was no other than Kedareswar 's brother-in-law who used to visit the house of surabala at the relevant time even though Kedareswar and his wife were then living at Kanpur spoke of only one signature of Surabala in the deed. The third witness P. W. 3, Hemendra, who was the husband of a full sister of Jagannath was a resident of Shibpur and it was most unlikely that he would be visiting Surabal' s house in the middle of last week of March when Surabala would be asking her to come to her house on the last sun lay of March for the purpose of executing of the Will. Be that as it may it Bidhubhuan appeared to be the sole legatee to the Will , It was most unlikely that he would write to Atul in the manner it was so done in the letter Ext. A5. The trial court did not rule out the possibility of Bidhubhusan being in possession of some signed papers of Sufabala and obviously a plan was hatched in respect of the properties of Surabala after her death between Bidhubhusan and his sun Jagannath. Had there been a Will Bidhubhusan would not have caused a solicitor's letter to be served on one of the tenant in the manner it was so done in Ext. 0, dated 17. 6. 71. Even though the pro pounder P. W. 6, explained that he did not know, about the Will at the time of its execution or even at the "time of Surabala' s death and he came to know of the Will from bimal Khasnabis, Surabala's lawyer, we are constrained to hold that the finding of the Will had not been properly explained by the pro pounder. Bimal Khasnabis, however was dead and no light could be tarown as such by him to explain the circumstances under which the Will remained to be there in his hands but the scribe P. W. 5, Neelkamal Chakraborty, spoke about the Will being prepared on the basis of a draft earlier prepared by Bimal Babu which he claimed to have read over once, whereupon Surabala executed the Will. He also claimed to have signed the Will as writer after its execution and attestation. He brought the Will along with the draft and handed the same over to Bimal Babu and Surabala signed on each page of the Will. "he become a stamp vendor only for the last two or 2 1/2 years and before that he was a Moharar or a lawyer's clerk. He stated that Bimal babu died three years before the date of his deposition. He admitted that there was no endorsement to the disputed will that it was read over to the Executrix, Bimal Babu handed over the draft to him in the house at 17, Bijoy bose Road and none was present at that time and it was bimal Babu who asked to go to Tarak Dutta Road with tine draft and prepare the Will giving out the time as to when he was to go and he alone wont to Tarak Dutta Road. The lady she met in the room introduced here self as Surabala where he found 2/3 persons also present. He admitted that he was called to depose by Jagannath. He affixed his signature after Surabala's signature, he left with the Will and the draft. This was a statement contrary to his own in his examination in poosed in cross examination that he carried the draft along with his diary and conquest paper. He could not say why the second page of the Will was closely written. He denied the suggestion that Bimal did not prepare' the draft. Last bat not the least, he stated that he handed over the" Will aid the draft to Bimal Babu in his house. P. W. 6 sought to explain the circumstance by giving out that he did not know about the Will at the time of its execution or even at the time of Surabala's death according to him, he came to know of the Will from Bimal but there was no evidence as to when he came to know about the Will. It was his further explanation that he came to know of the Will when he went to Bimal Khasnabis with his father and there after he applied for probate. It was obvious that when on 17th June 1971 bidhubhuan gave instruction to his solicitors, he did not know of the Will Bidhubhusan however, did not come forward to say so. The trial court rightly came to an inference, on a construction of Ext. D, that Will 17th June 1971, the disputed Will was not in existence. Surabrla died on 2,12. 70. Even though according to the testimony of all the witness to the will, a draft was in existence and on the day of the writing and execution of tine Will, the draft was not forthcoming. To explain away non-production of the draft, P. W. 5 stated that he returned the draft and the Will to Bimal babu the lawyer, but he could not say what happened to the draft afterwards, even though how was at the relevant time the moharaf (clerk) of Bimal babu. 11 Bimal Babu really received the Will and the draft and was goes enough to return the Will to the Pro pounder after the eath of Surabala, there was not reason as to why he would withhold the draft. Hence, the non-production of the draft not having been sufficiently explained, it was rightly taken to , be one of suspicious circumstances which duly weighed with the learned trial Judge to add to the other surrounding suspicious circumstances. The draft was prepared by Bimal Khasnobis who way dead and hence, it is no possible for the court to come to a positive inference as to what art of instruction Bimal Babu received from 3 ba la. But Neelkainal, the scribe P. W. 5, stated that after they will was written, executed and attested, he came been with they will and the draft but P. W. 1 on the other hand stated that the scribe did not take it back with him. Even though it was argued by Mr. Roy Chowdhury that those ware all suspicious circumstances prior to the execution of the Will or circumstances after the execution of the Will the trial court's finding in. this regard about the entire surrounding circumstances being comprehensive enough to include the period both before and after the execution, cannot be taken into consideration ext. A5 and Ext. . D in arriving at a decision regarding genuineness of the Will. Even though there is no compulsion about registration of the Will when it is sought to be proved that the lawyer acted in the matter and Surabala was not physically weak to attend the registration office or even to admit execution before; a Sub-Registrar on commission, it way not clear before the trial court as to why there was no registration effected in respect of the will. The testatrix lived for more than a period of eight months after the alleged execution of the Will.