Sankari Prasad Das Ghosh, J.:— The main question for determination in this appeal is the validity of a will executed by one Nalini Sundari Debi, widow of Rai Bahadur Kalachand Moulik, on 24-4-1950 and registered on 13-2-52. After execution and registration of the Will Nalini Sundari died on 5-6-59, leaving four sons, Mukunda-lal, Pro vat, Sailendra and Ajit as well as a daughter named Kamala. She had two other daughters, Binapani and Renubala, who had died prior to the filing of petition for grant of Letters of Administration by Ajit, the youngest son of Nalini Sundari in the court of the District Delegate, Alipore, on 2-8-79. The plaintiff-appellant, Ajit Maulik, filed that petition for grant of Letters of Administration on alleging that he was the specific and universal legatee under the Will.
2. The suit in the court below was contested by the respondents 1 and 2, Mukunda and Provat. The defence was that Rai Bahadur Kalachand Maulik, husband of Nalini Sundari, was the sole and absolute owner of all the properties, including the properties mentioned in the Will. Nalini Sundari was only a benamdar. It was alleged that it seemed that Nalini was not aware of the contents of the Will and did not execute the Will, which was not a natural one.
3. The appellant examined himself as P.W 1. P.W 2 was Sri Suresh Chandra Mukherjee, one of the attesting witnesses of the will. It is in evidence that two other attesting witnesses of the Will, Monmohan Guha Thakurta and Dr. Kaliprosad Chakraborty, are dead. The respondent 1, Mukunda, examined himself as D.W 1. On a consideration of the evidences of these witnesses and the materials on record, the learned Additional District Judge, Third Court, Alipore, who tried the suit in the court below, dismissed the suit. According to the learned Additional District Judge, the conscience of the court was not satisfied inasmuch as, according to the evidences, Nalini was barely educated without any schooling and as such, could not have appreciated the plan appended with the Will. The absence of near relations of Nalini Sundari during the execution of the Will, the fact of execution of the Will at the house of a professional lawyer, the absence of any independent legal advice at the time of execution of the Will as well as the absence of proof of the plan appended with the Will, were the other circumstances weighing with the learned Judge for dismissing the suit.
4. Mr. Roy Chowdhury, the learned Advocate for the appellant has assailed the finding of the learned Additional District Judge. According to him the Will is to be taken to be duly executed and attested on the basis of the presumption in S. 90 of the Evidence Act and there was no suspicious circumstance attending the execution of the Will, as alleged by the learned Judge. Mr. Dasgupta, the learned Advocate for the contesting respondents, has drawn our attention to the case of Madhusudan Das v. Narayani Bai, AIR 1983 SC 114 and has contended that the appellate court having no advantage like the trial court of observing the manner in which witnesses gave their evidence in the court below, should permit the findings of fact rendered by the trial court to prevail, in the facts and circumstances of this appeal. According to him, S. 90 of the Evidence Act will be of little help to the appellant to remove the suspicious circumstances mentioned by the learned trial Judge, shrouding the execution of the Will.
5. Before discussing the respective cases of the parties, it is to be stated that when there is a conflict of oral evidence on any matter in issue in any suit and its resolution turns on the credibility of the witness, the general rule, as stated by the Supreme Court in the case of Madhusudan Das v. Narayani Bai, AIR 1983 SC 114 is no doubt that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or if there is a sufficient balance of improbability to displace the opinion of the trial court as to where the credibility of the witness lies. In this particular case the learned Judge has omitted to consider several glaring facts and as such on the basis of the decision of the Supreme Court in the case of Madhusudan Das (supra), it cannot be stated that the findings of the trial court should prevail in this case as the appellate court does not enjoy the advantage of observing the manner in which the witnesses gave their testimony in the court below.
6. Ext. 5 is the relevant will executed by Nalini on 24-4-50. It shows how Nalini came to be the owner of premises Nos. 17A and 17B, Dr. Sarat Banerjee Road, P.S Tollygunge in the District of 14-Parganas. It shows that in the building at premises No. 17A, Dr. Sarat Banerjee Road, there are two blocks, each having one flat each in the ground floor, first floor and second floor and some vacant land. It further shows that in the building at premises No. 17B Dr. Sarat Banerjee Road, there is only one block having one flat each in the ground floor, first floor and second floor. It is stated in the Will that Nalini has four sons and three daughters, that these daughters were staying at their respective fathers-in-laws' houses with their husbands and children and with great happiness and were not in want. It is further stated in the Will that amongst her sons, her first son, Mukunda, (D.W 1) was in good service in a Government office and that his income was also very good. According to the Will, Provat, the second son of Nalini, served in a Merchant office and had good income. According to it, these two sons of the testatrix were in a very solvent condition, as compared with Sailendra, the third son of the testatrix, who was pot educated and was not earning and was being maintained by her husband during his lifetime and thereafter by her. The will shows that Sailendra had his wife and daughter. According to the Will, Ajit, the plaintiff-appellant, the fourth son of the testatrix, had been suffering from disease of glands for a long time and was unable to do anything in his life. It is stated in the will that the appellant was at first being maintained by the husband of the testatrix and thereafter, after his death, by the testatrix. Considering these financial conditions of her sons and daughters and their positions in life, the testatrix made the will bequeathing the premises No. 17B Dr. Sarat Banerjee Road, measuring more or less 2 cottahs 8 chittacks and 41 square feet and marked in yellow in the plan appended with the Will, with the building thereon to the appellant and Sailendra, to whom she also made a bequeath by the Will of Block 1 premises No. 17A, Dr. Sarat Banerjee Road, measuring about 2 cottahs 2 chittacks and 44 square feet with building thereon and marked in red in the plan appended with the will. As regards Block No. 2 of premises No. 17A Dr. Sarat Banerjee Road, measuring about 1 cottah, 9 chittacks and 31 square feet, with the building thereon, the will shows a bequest tothe respondents 1 and 2, Mukunda and Pro vat. This Block No. 2 of premises No. 17A, Dr. Sarat Banerjee Road, is marked in green in the plan appended with the will. As regards the vacant land, being Block No. 3 in premises No. 17A, Dr. Sarat Banerjee Road, the Will is to the effect that it will be owned and possessed by the four sons of the testatrix in equal shares and in absolute right. This vacant land is coloured in orange and violet in the plan appended with the Will. S. 90 of the Evidence Act is founded on necessity and convenience. It is extremely difficult and sometimes impossible to prove the handwriting or signature or execution of ancient documents after the lapse of many years. At the time of filing the petition for grant of Letters of Administration, the Will was filed in the court of the District Delegate by the appellant on 2-8-79. P.W 1 has pleaded ignorance about the time of execution or the manner of execution or attestation of the Will. According to him, he could first procure the Will from Kamala Mukherjee, the youngest sister (the respondent No. 12) in 1978. Whatever may be the defence in the written statement. D.W 1, the respondent 1, in his evidence also stated that he had no knowledge if his mother executed any Will during her lifetime. He (D.W 1) did not give any reply to the question as to whether the Will was genuine or not. In these circumstances, when the signatures of Nalini in the Will are not denied in evidence and there is no evidence that the signatures were procured on any blank paper, there is no reason why the presumption permitted by S. 90 of the Evidence Act about due execution and attestation of the Will should not be drawn in this case. Mr. Dasgupta has contended, by referring to the case of Kotiswar v. Paresh Nath, AIR 1956 Cal 205, that the presumption under S. 90 of the Evidence Act relates only to the signature, execution or attestation of a document and that S. 90 of the Evidence Act does not involve any presumption that the contents of the documents are true or that it had been acted upon. It appears that in the case of Munnalal v. Mst. Kashibai AIR 1947, P.C 15: 51 Cal WN 175, it has been held by the Privy Council that in the case of a Will, thirty years old and produced from proper custody, the presumption arising under S. 90 of the Evidence Act, 1872 of its due execution extends to testamentary capacity since a Will cannot be said to be “duly” executed by a person not competent to execute it. It was observed in that case of Munnalal (supra) that in the absence of any evidence as to the state of the testator's mind, proof that he had executed a Will, rational in character, in the presence of witnesses must lead to a presumption that he was of sound mind and understood what he was about. This decision of the Privy Council in the case of Munnalal (supra), was followed by this court in the Division Bench case of Sarat Chandra v. Panchanan Mondal, 58 Cal WN 271 : AIR 1953 Cal 471. The presumption under S. 90 of the Evidence Act is one of due execution and attestation as well as of testamentary capacity of the testator executing a Will. This presumption does not extend to the truth of the contents of the Will, as stated by the Division Bench in the case of Kotiswar, AIR 1956 Cal 205 referred to by Mr. Dasgupta. Mr. Dasgupta has contended that in the facts and circumstances of this appeal, S. 90 of the Evidence Act cannot apply as the signatures of Nalini in the Will are not disputed. To lend support to this contention, Mr. Dasgupta has referred us to the case of Ganesh Prasad v. Narendra Nath, AIR 1953 SC 431. In the case of Ganesh Prasad (supra), the accounts consisted of some loose sheets of papers. It was held by the Supreme Court in that case that where accounts consisted of loose sheets of papers, they could not have the same probative force of account books which were regularly kept in the course of business, even though the signatures in these loose sheets of papers were not disputed. It was in this context that it was observed by the Supreme Court in the case of Ganesh Prasad that where the signature of a person was not in issue or sought to be established, S. 90 of the Evidence Act could not apply, even if the accounts were old and were produced from proper custody. In the present case, however, the execution and attestation of the Will are to be established. As already stated, the appellant (P.W 1) has pleaded his ignorance about execution or attestation of the will. P.W 2 is the sole surviving attesting witness of the will. He has proved the execution and attestation of the Will. There in no reason as to why his evidence should be disbelieved, in face of the evidence of D.W 1, who has also no knowledge about execution of any will by Nalini. In these circumstances, we are of the opinion that the presumption of due execution and attestation of the Will, Ext. 5, on the basis of S. 90 of the Evidence Act, should be drawn in this case. We are also of the opinion that the presumption of due execution and attestation of the will is supported by the evidence of P.W 2 and has not at all been rebutted in evidence.
7. The learned Additional District Judge has properly discussed the principles to be followed for proving a Will. The onus of proving a will is on the propounder. In the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and the signature of the testator, as required by law, are sufficient to discharge the onus. As stated by the learned Additional District Judge, where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine. The meaning of the term, “onus probandi”, is that if no evidence is given by the party on whom burden is cast, the issue must be found against him, Onus as a determining factor of a case can only arise if the evidence pro and con is so evenly balanced that no conclusion can be derived therefrom. In such a case, onus will determine the matter. But if a tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it and need not be further considered (Harmes v. Hinkson (AIR 1946 PC 156). The “onus probandi is generally discharged by proof of capacity and the factum of execution, from which knowledge and assent to its contents by the testator will be assumed. Once it is proved that a Will has been executed with due solemnity by a person of competent understanding and apparently a free agent, the onus probandi is to be taken to be discharged (Gomtibai v. Kanchhedilal AIR 1949 PC 272). In the present case, there is no dispute about the testamentary capacity of the testatrix, who died on 5-6-59 after executing the Will on 24-4-50 and herself presenting it for registration on 13-2-52. It is no doubt true that the mere fact that the will is registered will not by itself be sufficient to displace any suspicion regarding it, without submitting the evidence of registration to a close scrutiny. In the present case, the endorsement on the back of the will in the office of the Registrar does not show that the contents of the document, of which the testatrix was admitting execution, were i brought home to the testatrix. In the circumstances, on the basis of mere registration of the Will, the Will cannot be pronounced as valid Purnima Debi v. Khagendra Narayan, AIR 1962 SC 567; Anath Nath Das v. Bijali Bala, AIR 1982 Cal 236. The mere ability to sign one's name does not also necessarily imply the validity of a Will. The testator must have a disposing mind. He must be able to dispose of his property with understanding and reason. He must be able to appreciate his property and to form a judgment with respect to the parties whom he chose to benefit by it after death [Surendra Krishna Mondal v. Smt. Ranee Dassi 24 Cal WN 860 : (AIR 1921 Cal 677)]. We have already shown the various provisions of the Will. The evidences of P.W 1 and D.W 1 show that D.W 1, the respondent 1, served in a Military Audit Department and retired in 1962 and is still now drawing pension. D.W 1 has stated that the respondent 2, Provat, retired about 10 years ago from service. He admits that his brother, Sailen, is unemployed and that his youngest brother, the plaintiff, suffered from glandular T.B It is in the evidence of P.W 1 that Sailen was unemployed and was totally dependent on them and their mother. It is in his evidence that in 1939 Sailen married and that in 1947 a daughter was born to Sailen. The evidence of P.W 1 further shows that though he is a graduate, he suffered from glandular T.B for 12 years, and that it was detected in 1939. In these circumstances, the Will is not at all unnatural or unreasonable or unfair, having regard to the claims of affection on each son of the mother and their respective positions in life when the Will was executed. By making the Will, the testatrix was only making the provision for future maintenance of the appellant and Sailen, both of whom had to be maintained by her husband and thereafter by her and had no other means for maintenance after her death. As the Will is to be presumed to be duly executed and attested, on the basis of the presumption under S. 90 of the Evidence Act and has been proved to have been duly executed and attested on the basis of the evidence of P.W 2, the onus probandi has been sufficiently discharged by the appellant, specially when D.W 1 has no knowledge about the execution of any Will by his mother. These glaring facts were overlooked by the learned Judge in the court below.
8. The learned Additional District Judge in the court below was in a difficulty to believe that the testatrix could have appreciated the plan by perusing it by herself when she was barely educated and had no schooling. There was no evidence to prove the plan. No doubt, the evidences of P.W 1 and D.W 1 show that the testatrix was barely educated and had no schooling. Even then, the plan is an integral part of the Will. The presumption of the due execution and attestation of the Will also attaches to the plan appended with the Will, the plan bearing signatures also of the testatrix and of the three attesting witnesses. The absence of proof as to who prepared the plan is, in these circumstances, of little significance in view of the presumption under S. 90 of the Evidence Act.
9. Mr. Dasgupta made a grievance of the fact that the Will was registered on 13-2-52 after its execution on 24-4-50. The will itself shows that at the time of executing the Will, the testatrix wanted to have it registered. Due to lapse of so many years since execution, it may not be possible for the plaintiff to adduce any evidence as to why the Will was presented for registration after about 2 years from its execution. This is not, however, a suspicious circumstance to throw aside the will when the testatrix had an intention of registering it, even as per the averments in the Will.
10. Out of the three attesting witnesses in the Will P.W 2 is an Advocate, who prepared the draft of the Will. The will was executed in the house of Monomohan Guha Thakurata, another Advocate at Chetla. There is no evidence that any near relation of the testatrix was present at the time of execution of the i Will. As per the evidence of P.W 2, Jogesh Chandra Chatterjee, the eldest son-in-law of the testatrix, took the testatrix to P.W 2,, who drafted the Will, P.W 2 being a relation of Jogesh. According to the evidence of P.W 2, another person, presumably another relation of the testatrix, took the testatrix to the residence of Monmohan Guha Thakurta at Chetla at the time of execution of the Will. It is in evidence that the husband of the testatrix was a Rai Bahadur and that the testatrix had many respectable relations. The absence of any relation of the testatrix at the time of execution of the Will as well as the place of execution of the will have been the subject-matter of comments both by the learned Judge in the court below as well as by Mr. Dasgupta. It is not possible for the court to surmise as to what was the reason for Nalini to go to the house of Monmohan at Chetla for execution of the Will instead of execution of the Will by her at her residence in presence of her relations. This is at best shrouded in mystery in evidence as the reason for the same has not been stated by any of the parties in evidence. For this fact, however, the Will cannot be pronounced as invalid or not genuine, specially when it was a rational, fair and just testament on a consideration of the financial conditions of the sons of the testatrix, at the time of execution or registration of the Will. There is nothing to show that P.W 2 or Monmohan, though advocates, had any personal motive or bias or had a conspiracy to forge the Will. The Will cannot be taken to be unnatural because two advocates happened to be the attesting witnesses, out of the three attesting witnesses of the Will [Beni Chand v. Kamala Kanwar, AIR 1977 SC 63]. The Will shows the reason for not making any bequest to any of the daughters of the testatrix as they were solvent and were living with happiness in their father-in-law's houses. The Hindu Succession Act, 1956 was not in the picture when the Will was executed and registered and hence, the question of excluding the daughters from the bounties of the mother did not arise, in so far as the Will was concerned. In fact, a letter, Ext. 1(a), explains why the Will was not being made available to the appellant. It appears that by a letter, Ext. 1, Jogesh, the eldest son-in-law of the testatrix, informed the appellant that he had left the Will in the custody of Madhu alias Kamala Mukherjee (vide evidence of P.W 1). This letter, Ext. 1, was dated 14-9-60. It is in the evidence of P.W 1 that during the Sradh ceremony of his mother, after Jogesh came to their house in June, 1959, Jogesh informed them about the Will. One is to rely on this evidence of P.W 1. The evidence of D.W 1 that in June, 1979 in a meeting of their brothers, the lawyer of the plaintiff read over a Will and that they then came to learn about the Will made by mother is not worthy of credence as by the letter, Ext. 1, Jogesh had informed Ajit on 14-9-60 that he left the Will in the custody of Madhu. The letter, Ext. 1(a), dated 30-8-61, written by Madhu to Jogesh shows that the will had been kept with Madhu, the respondent 12, as stated by Jogesh in his letter, Ext. 1. It is stated in the letter, Ext. 1(a), that knowing that the Will was with her, everybody was aggrieved and dissatisfied with Madhu. It is further stated in that letter, Ext. 1(a), that Chhorda (meaning the appellant) repeatedly told Arun (the respondent 7) that the three sisters would have full right to the property of maternal uncle's house and that the sisters should not forego a single pie. It is stated in the letter, Ext. 1(a), that for this reason Madhu (the respondent 12) had kept the Will with her without asking Jogesh and the husband of the second elder sister of Madhu. The contents of the Will were being kept secret from Ajit in spite of his writing for the will to Jogesh in 1960, on the fond hope by the respondent 12, on the basis of the alleged assurance by the appellant, that she and her sisters would have Bull right to the property. The evidences of P.W 1 show that it was in 1978 that she could get the Will from Madhu. In these circumstances, the absence of any application for grant of Probate by Jogesh, the Executor appointed in the Will or the application for grant of letters of Administration on 2-8-79 by the appellant in the court of the District Delegate calls for no comment, though contended as suspicious circumstance by Mr. Dasgupta.
11. The inability of the testatrix, who was barely literate, without any schooling, to understand the different portions marked in different colours in the plan appended with the Will as well as the user of English alphabets to demarcate these portions marked in different colours in the plan and given to the plaintiff-appellant and the other sons of the testatrix have been the subject-matter of comment by Mr. Dasgupta. Mr. Dasgupta has also commented on the inability of the testatrix to understand meaning of the English words, apart from the English alphabets, used in the Will. It appears that in the Will, Ext. 5, several English words have been used to describe the different colours used in the plan and the Block number of premises No. 17A, Dr. Sarat Banerjee Road. Some other English words such as “generally”, “common passage”, “sole executor” have also been used in the Will. So far as the user of these English words to denote the different colours in the plan or block number of premises No. 17A, Dr. Sarat Banerjee Road, or the other aforesaid English words are concerned, it is to be stated that invariably the Bengali words for these colours or blocks or for these other English words are mentioned in the Will. The lady who does not understand English, will be able to understand these corresponding Bengali words mentioned in the Will itself. As regards the English alphabets to demarcate the different portions of the two premises Nos. 17A and 17B, Dr. Sarat Banerjee Road, it is to be stated that the portions demarcated by these English alphabets are invariably described by Bengali words, giving out the areas of these different portions in the two premises, the buildings thereon and other details so as to understand what was meant by the English alphabets used to demarcate these portions. The rule in Tyrrell v. Painton, (1894) P 151 = 70 LT 453, requiring proof that the testator actually knew and approved the contents of the Will does not apply unless the surrounding circumstances excite suspicion [Sham Churn Kundu v. Khettromoni Dassi, (1900) 27 Ind App 10; Ramesh Chandra v. Lakhan Chandra, AIR 1961 Cal 518 at P. 519]. As the different portions mentioned in the Will with the help of English alphabets are described also in Bengali on giving out the number of the premises, the block of the premises, the area of the premises as well as the structures on the premises, no suspicion can arise about the inability of the testatrix to understand these portions demarcated by English alphabets. After all, as in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty [Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 at p. 77]. Even though the testatrix may not have any knowledge of English, the Bengali words used in the Will itself in place of the English words as well as the description of the different portions given to the donees under the Will are sufficient for understanding the contents of the Will by the testatrix. The grant of Letters of Administration cannot thus be refused on the ground that the testatrix was not conversant with the English language.
12. Mr. Dasgupta has made another grievance about the absence of proof of the plan appended with the Will. We have already discussed that the plan is an integral part of the Will. As P.W 2 has proved the execution and attestation of the Will and there is a presumption of execution and attestation of the Will under S. 90 of the Evidence Act, no separate proof of the plan is required when the Will was executed in 1950 and the drawing up of the plan must have preceded the execution of the Will. It is in the evidence of P.W 2 that he prepared the draft of the Will under instruction of the testatrix and that the Will was typewritten on the basis of that draft prepared by him. The plan must have been prepared prior to the preparation of the draft by P.W 2 when the different portions given to the sons of the testatrix and the demarcation of these portions in different colours are mentioned in the Will itself and must have been mentioned by P.W 2 at the time of preparation of the draft of the Will. It is in the 1 evidence of P.W 2 that the allotments as per the sketch were made according to the instructions of the testatrix. Though there is no evidence as to who prepared the plan, the evidence of P.W 2 shows that the allotments in the plan were according to the instruction, of the testatrix. In these circumstances, grant of Letters of Administration cannot be refused on the ground that the propounder has failed to prove as to how the plan was prepared or who prepared the plan.
13. The learned Judge in the court below commented on the absence of independent legal advice at the time of execution of the Will. The evidences of P.W 2, however, show that he drafted the Will at the request of the testatrix. Even though there is no evidence that the testatrix had independent legal advice before the drafting of the Will, the various provisions in the Will show that it was a rational and just testament. As such, the validity of the Will cannot be challenged on the ground of absence of evidence of independent legal advice to the testatrix prior to the preparation of the Will.
14. All the contentions of Mr. Dasgupta fail. The appellant is to be given Letters of Administration with a copy of the Will, as prayed for. It appears from Ext. 4 that there was Estate Duty Certificate dated 8-1-79 as regards the house-property at premises Nos. 17A and 17B, Dr. Sarat Banerjee Road. The record of the court below does not, however, show the issue of a notice to the Collector under S. 31 of the West Bengal Court Fees Act, 1970 for giving valuation of the two premises and the structures thereon. No Letters of Administration can be given under S. 32 of the West Bengal Court Fees Act, 1970 unless proper court fee is paid for the same. In these circumstances, Letter of Administration is to be given to the appellant on payment of proper court-fee after valuation of the two premises Nos. 17A and 17B, Dr. Sarat Banerjee Road, Calcutta, by the Collector.
15. The appeal is, accordingly, allowed. The judgment and decree passed by the learned Additional District Judge, 3rd Court, Alipore in Original Suit No. 12 of 1970 are set aside. The suit in the Court below is decreed on contest against the contesting defendants and without contest against the rest. Let Letters of Administration with copy of the Will annexed be granted to the plaintiff-appellant on payment of proper court-fee by him under S. 32 of the West Bengal Court Fees Act, 1970, after receipt of the Collector's valuation under S. 31 of that Act by the court below.
16. In the special circumstances of this appeal, the parties to bear their own costs of the suit and the appeal.
L.M Ghosh, J.:— 17. I agree.
Appeal allowed.