JUDGMENT
1. The facts of the suit in brief are that one Smt. Kalpana Rani Bhowmick, a Hindu governed by Dayabhaga School of Hindu Law died on 2nd day of January, 1992 at 54A. Pratapaditya Road, Kolkata-700026 outside the jurisdiction of this Court after having made and published her last Will and Testament dated 15th March, 1975 corresponding to the 1st day of Chaitra, 1381 B.S and the said Will was duly registered in the office of the Registrar of Assurance, Calcutta. In the said Will the Testatrix appointed her husband, Jagannath Bhowmick, the sole Executor in order to obtain Probate of the said Will. Before the said Executor obtained probate of the said Will he died intestate on 11-6-1997 at the same residence. The present petitioners being both the sons of the Testatrix and the Executor appointed by her are the ultimate legatees and beneficiaries named in the Will. In the said Will the Executor-husband of the Testatrix was given lifetime estate in respect of the said property covered in the Will. By the said Will the Testatrix bequeathed her estate to the present petitioners jointly and in equal shares subject to the life estate of the Executor. Kalpana died leaving her husband, two sons who are the present petitioners and five daughters namely Smt. Bijoya Das, Smt. Annapurana Ghosh, Smt. Sarbani Guha Mallick, Smt. Basanti Dutta and Smt. Chandana Dey as her legal heirs and they were entitled to inherit the properties left by Kalpana had there been no Will and the deceased would have died intestate. Jagannath Bhowmick, the sole Executor of the Will took her wife Kalpana to have died intestate and so under the impression that he along with the daughters and the petitioners would have inherited the property left by her wife for which he obtained five Deeds of Gifts executed and registered on 21-12-1992 in favour of Jagannath Bhowmick by the respective five married daughters in respect of their respective shares on the property in question. The petitioners did not know about the existence of the said Will which was discovered by them after the death of their father. In the circumstances, the present application was filed for granting Letters of Administration.
2. The petition has been contested by Smt. Sarbani Guha Mallick, one of the daughters of the Testatrix by filing an Affidavit in which it is inter alia stated that after the death of her mother who was the absolute owner of the property in question, the said property was managed and controlled by her father Jagannath Bhowmick. It is also stated that after the death of Jagannath, Sarbani along with her four other sisters being proportionately joint owners of the said property executed a power of attorney in favour of her two brothers, the present petitioners in the instant case empowering them to do certain acts. It is again stated that it was only from the special citation that they came to learn about the purported Will to have been executed by their mother Kalpana Rani Bhowmick in favour of their two brothers. Thus, they had no knowledge about the contents and execution of the said Will. Thereafter it further stated, “that the Will, if at all executed is not genuine in nature”. It is again stated that the dispositions contained in the said Will are “unnatural, improbable and unfair and has been made under duress” for which the application for grant of probate of the said Will should be dismissed with costs.
3. The application filed by the two brothers is also contested by another sister Smt. Basanti Dutta by filing an Affidavit in which it is inter alia stated that the purported Will was not the Will of Kalpana nor was it executed by her or she had no intention to execute the same on her own volition. The purported Will is a very cryptic and clothed with suspicion. It is also stated that at the material point of time Kalpana had no testamentary right or capacity to execute the alleged Will. It is also stated that Kalpana was not the real owner of the property but only a Benamder of the same as she had no independent income of her own. It is also stated that the said Will was not read over and explained to Kalpana by any of the attesting witnesses or by the executor and in such circumstances the application of the two brothers is liable to be rejected.
4. Upon the pleadings of both the parties the following issues were raised and settled:
1. Did the testatrix Kalpana Rani Bhowmick execute the Will out of her own free will during her lifetime?
2. Are the signatures of the testatrix Kalpana Rani Bhowmick appearing on the Will genuine?
3. Had the testatrix Kalpana Rani Bhowmick testamentary capacity to execute the Will?
4. Are the plaintiffs entitled to get Letters of Administration in respect of the Will in question as prayed for?
5. To what other relief, if any, are the plaintiffs entitled?
5. Issue Nos. 1 to 5. All these five issues are taken up together for consideration as they are indeed interlinked with each other.
6. Mr. Ashim Banerjee, the learned Counsel appearing for the defendant No. 1 argues that the present petition lacks in special citation and in this connection he has referred to the provision of Section 263 of the Succession Act and Rule 12 in Chapter 35 of Original Side Rules of Calcutta High Court. It is also pointed out by him that although notice sent in the name of the defendant No. 1 came back with postal remark “not known”, the defendant No. 1 subsequently appeared in the suit. It is also pointed out by him that no near relation or independent witness was present at the time of execution of the Will and the instant application was filed after the long lapse of the death of Kalpana Rani Bhowmick and there is no explanation as to why the petition was filed after inordinate delay. It is further argued by him that there are circumstances present casting cloud over the Will and in this connection he has pointed out that there is no endorsement in the Will itself that it was ever read over and explained to the Testatrix and though four of the daughters were not married at the time of execution of the said purported Will there is no provision for them in the Will. It is also pointed out by him that after the death of their mother their father called the daughters to execute deed of gifts and their father spent a sum of Rs. 25,000/- towards the Stamp Duty for the purpose. Mr. Banerjee did not find any plausible reason as to why the father should spend such amount for the said purpose. Mr. Banerjee has also raised question as regards the delay in filing the application by the two brothers and as to why such secrecy was maintained as regards the execution of such purported Will.
7. Mr. Banerjee also argues that registration itself does not dispel the question of genuineness of any instrument and particularly when it is a Will executed by the Testatrix. He has referred to the questions being Nos. 21, 22, 30, 38 and 51 put to the P.W 1 and the answers given thereto during his examination as a witness and contends that it would be clear from those questions and answers that the execution of the Will and registration thereof were all either made on the same sitting or P.W 1 was present on both the occasions and if that be so the answer to question No. 38 given by the P.W 1 is unexpected. Mr. Banerjee further argues that although it is stated in Paragraph 6 of the plaint that the petitioners discovered the Will after the death of their father, they did not disclose the date on which they discovered the said Will. It is also not clear whether both the petitioners together discovered the Will, Mr. Banerjee further argues. Mr. Banerjee then points out that the name of the declarant was typed in the petition as Shyama Pada Roy although he signed as Shyama Pada Raj against that declaration in the petition for granting Letters of Administration and again he deposed as P.W 1 stating his name as Shyama Pada Raj. It is further argued by Mr. Banerjee that the P.W 2 was a mere boy when the purported Will was executed and being a propounder he cannot prove the execution of the Will. It is also pointed out by him that even the P.W 1 could not say when the Testatrix signed in the Will and from all this the only conclusion left is that the Will has not been properly proved before this Court.
8. Mr. Murari Mohan Roy, the learned Counsel for the defendant No. 2 has adopted the submission made by Mr. Banerjee, the learned Counsel for the defendant with the exception that admittedly the defendant No. 2 received the citation.
9. Mr. Kashi Nath De, the learned Counsel appearing for the petitioners has contended that the defendant No. 1 appearing before the Court filed a petition on 16-3-2001 with the prayer to dispense with special citation and Mr. D.K Seth, J., by His order dated 20-3-2001 allowed the said petition. Thus, it is not true that the instant case suffers from the infirmity of special citation. Mr. De then argues that the case of the defendant No. 1 is self-contradictory as sometime it is said that there is no execution of the Will by the Testatrix and then it is said that the Testatrix did not put her signature of her own and that she put her signature under coercion. It is also pointed out by him that the defendant No. 2 also took the same stand but she did not examine herself before this Court nor any witness has been examined on her behalf. Mr. De has then pointed out that the Will was executed as back as in 1975 whereas the Testatrix died in the year 1992. It is also pointed out by him that Jagannath Babu died in the year 1997 and the application for grant of probate was filed in the month of April, 2000. And in such circumstances, Mr. De raised the question, why the Testatrix did not revoke the Will? It is also pointed out by Mr. De that the petitioners were 15/16 years and 7/8 years of age in the year 1975 when the Will was executed and registered and in such circumstances there cannot be any reason to presume that the petitioners had any hands or role in the execution and registration of the Will in question. Mr. De has also argued that it is not correct that the Will is silent as regards the provisions for the daughters. According to him the Will has been proved by the evidence of the P.W 1 when in cross-examination against the question No. 78 the P.W 1 specifically stated that the Will was read over and explained to the Testatrix. It is also pointed out by him that the D.W 1 was of 76 years of age when he deposed before the Court. As regards the dispute of “Roy” and “Raj” Mr. De contends that there is absolutely no cross-examination of the P.W 1 disputing or challenging his identity and according to him the surname “Raj” appearing in the declaration is nothing short of a typographical mistake as it would be candid from the signature of the declarant where he signed his name as Shyama Pada Raj. Mr. De has also argued that it would be clear from the evidence of the P.W 2, one of the brothers of the defendants that after the discovery of the Will he had contacted the sisters. As regards the execution of the Will Mr. De has drawn my attention to question No. 97 put to the D.W 1 and tries to impress upon me that from the said question and answer given thereto the execution of the Will has been admitted by the P.W 1 and only the question raised there is that the Testatrix had “no intention”. Mr. De thus argues that had the Testatrix had no intention to execute the Will she could have very well revoked the Will subsequently and if it was known to the P.W 1 that the Testatrix had no intention to execute the Will she could have come forward to challenge the same long before the present petition was filed by the petitioners. From the evidence of the D.W 1, Mr. De further argues, the signature of the Testatrix has been proved and admitted. Mr. De has also pointed out that the Will was written in Bengali and the signature of the Testatrix appears to be steady. From the endorsement of the register made in the Will to the effect that the execution was admitted by the Testatrix, Mr. De argues that there cannot be any doubt as regards the execution and registration of the Will.
10. In reply Mr. Banerjee, the learned Counsel for the defendant No. 1 argues that only one attesting witness has been examined in the instant case and particularly in view of the fact that when the said witness could not prove the execution of the Will the examination of the other attesting witness was required.
11. Let me take up the argument of the learned Advocate for the defendant No. 1 that the case suffers from the inherent infirmity for not making the special citation for consideration. What is citation? And what is special citation? Halsbury 3rd Edition Volume 16, Page 160 defines citation as follows:
“A citation is an instrument issuing from the principal probate registry under the seal of the Court, signed by one of the Registrars, containing a recital of the reason for its issue and the interest of the party extracting it, and calling upon the party cited to enter an appearance and take steps therein specified, with an intimation of the nature of the order the Court is asked to and may make, unless good cause is shown to the contrary.”
As regard the special citation it is not obligatory on the part of the Court to issue any special citation but it is desirable that the Court should issue special citation where necessary for the ends of justice particularly when the interests of the persons like minors are affected by the Will. But in the instant case admittedly special citation was issued upon the defendant No. 2. The defendant No. 1 had herself waived the need for special citation by filing a petition on 16-3-2002 and the order was passed to that effect by the Court on 20-3-2001. Beside all this, the fact remains that the defendant No. 1 is contesting the Suit at the heels. Thus, I do not find any merits in the submission of the learned Advocate for the defendant No. 1 that the suit suffers from any infirmity for the lack of special citation because of the reasons that the defendant No. 1 has got full opportunity to contest the suit and she herself had waived the need for special citation.
12. Mr. Ashim Banerjee, the learned Advocate for the defendant No. 1 has referred to the ratio decided in the case of Dinabandhu Roy Brajaraj Saha, Firm v. Sarala Sundari Dassya, AIR 1940 Cal 296 and tries to impress upon me that the special citation in a testamentary suit is the condition precedent and the lack of the same vitiates the suit. But it was held in that case while interpreting the provisions of Section 283(1)(c) of the Succession Act, 1925 by the Division Bench of our High Court that only a real interest however small in the estate of the deceased testator entitles the man to oppose a grant of probate or to apply for revocation of a grant thereof for just cause. But here in the instant case full opportunity to contest the suit by the defendant No. 1 has been availed of and thus I do not find any application on the ratio decided in the case of Dinabandhu Roy (supra).
13. The next argument of Mr. Banerjee to attack the Will is that there was no near relation or independent witness present at the time of execution of the Will. But this is far from the reality as the husband of the testatrix was himself present and he was made executor of the Will. That part the P.W 1 Shyamapada Raj, an attesting witness of the Will appears to be an independent witness.
14. Mr. Banerjee has also raised the question as regards the delay to apply for probate/letter of administration and there is, according to him, absolutely no explanation for such delay. In this connection, he has referred to the ratio decided in the case of Dinesh Kumar v. Khazan Singh, AIR 1988 Delhi 273. In the said case Testatrix appointed her husband sole legatee excluding her four sons and two daughters. Testatrix died after four years of execution of the Will and the Will was brought to light after three years of her death and thus complete secrecy was maintained about the Will. Only one attesting witness for two was examined though other witness was available. And in such circumstances it was held that the Will was not genuine and hence grant of letter of administration was not valid. Thus, on perusal of the facts of the said judgment and the decision taken by the learned single Judge of Delhi High Court it appears that after having considered all the circumstances the learned Judge came to the conclusion that the Will was not genuine. True, in the instant case there is delay in filing the suit for letter of administration and one of the attesting witnesses out of the two has been examined. But what is the material difference of fact here is that the Testatrix did not make any provision for her husband in the Will and not only that on perusal of the original Will (Ext. A) it appears that it was typed in Bengali and the Testatrix appears to have considered the interests and position of her five daughters. It is also in the Will that out of her five daughters Bijaya Das, her first daughter was married and the other four daughters were not married at the time of execution of the Will. In the Will she had made provision for marriage of those four daughters from the income of the property in question. These facts are not present in the case of Dinesh Kumar (supra) and as such I am not inclined to place my reliance on the ratio decided in the case for the purpose of the instant suit.
15. Mr. Banerjee has also argued that the other circumstances like, (1) that the Will was not read over and explained to the Testatrix, (2) that the daughters were called by the father to execute the deeds of gift after the death of their mother, (3) that the father had spent a sum of Rs. 25,000/- for the purchase of Stamp Duty all cast clouds over the execution of the Will. In this connection, he has referred to the ratio decided in the case of H. Venkatachala Iyengar v. B.N Thimmajamma, AIR 1959 SC 443. In the said case the Hon'ble Apex Court had dealt with the special type of proof for the Will and it was held as below (Para 19):
“However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.”
The Hon'ble Supreme Court had also dealt with the other suspicious circumstances and the nature of the signature of the testator in dealing with that case.
16. It is true that there appears nothing from the Will itself that the same was read over and explained to the Testatrix. But a striking feature of the instrument, I mean the Will, is that it was typed in Bengali and the Testatrix put her signature on each and every pages of the Will in Bengali and all signatures were made in steady hand. Moreover it is a registered Will and the endorsement of the Registrar on the back of the first page reads as below:
“Execution is admitted. Kalpana Rani Bhowmick wife of Jagannath Bhowmick of 52 Ahiritola Street, Cal. Hindu Landholder. The Testatrix put her signature twice on the left side of the said endorsement.”
In this connection Mr. Kashinath De, the learned Advocate for the plaintiffs has drawn my attention to the answer given to question No. 78 by the P.W 1 in his cross-examination. The question and answer in cross-examination by the defendant No. 1 go as below:
“Can you tell whether Kalpana Rani Bhowmick has ever gone through the Will or not?/Yes, she executed the Will after going through the contents of the Will.”
I fail to understand as to what prompted the learned Advocate for the defendant No. 1 to invite the said answer in the cross-examination from the P.W 1 who is none less than an attesting witness. From all this I must come to the conclusion that there cannot be any question as to the execution of the Will by the Testatrix, although the learned Advocate for the defendant No. 1 tries to establish from the question Nos. 21, 22, 30, 38 and 51 made to the P.W 1 and the answers given there against that it is not clear as to whether that the execution and registration of the Will were both made on the same sitting and that the P.W 1 was present on both the occasions.
17. As regards the objection of Mr. Banerjee for non-production of the other attesting witness, though available, I do not find anything that the production of all the attesting witnesses is mandatory and in the absence of the same the execution of the Will cannot be proved. In the instant case from the materials produced before me and the averments, so also the provisions made in the Will and also the circumstances stated above I do not find anything to hold that in the absence of examination of the other attesting witness the execution of the Will can be taken as not proper.
18. As regards the discrepancy of the surname of the P.W 1 who is one of the attesting witnesses of the Will in the verification of the application for letter of administration in particular I am absolutely in agreement with the learned Advocate for the plaintiffs that such discrepancy of the surname is nothing short of typographical mistake.
19. The another striking feature of the instant suit is that out of the five sisters only two namely Smt. Basanti Dutta and Sarbani Guha Mallick are contesting the suit although they executed the deed of gift in favour of their father and two brothers in respect of their share on the suit property consciously.
20. The surrounding facts of the instant suit also include the deed of gift (Ext. D) executed by Smt. Basanti Dutta who is the defendant No. 1 in respect of the suit property to the extent of her 1/10th share in favour of her father and the two brothers. It is true that the said deed of gift creates an impression that the donor did not know about the existence of the Will. If that be the position was if a fact that after disclosure of the Will the defendant No. 1 came forward to contest the suit only for the purpose of contest and to vindicate her self ego? This comes in my mind because of the reason that the person who had relinquished her interest and share in the property in favour of her father and two brothers by virtue of a registered deed of gift has again come forward to claim the same after the disclosure of the existence of the Will. There is absolutely no case of the defendant in the written statements that the said deed of gift was executed under misrepresentation and not voluntarily. It is also a pointer to note that the said deed of gift was accepted by the donees and the deed of gift has been produced before the Court by the plaintiffs.
21. The fact also includes the power of attorney (Ext. E) executed by Testatrix Smt. Kalpana Rani Bhowmick in respect of her property during her life time in favour of her husband Jagannath Bhowmick for the administration of her property in question. It is also a noteworthy that all the five sisters including the defendant Nos. 1 and 2 had executed a power of attorney before the Notary Public in favour of their two brothers, the plaintiffs after the demise of their father authorising the plaintiffs to administer the property in question. All this goes to establish the fact that the relation between the siblings was perfectly well before the discovery of the Will. The sisters did not show any interest either in the administration of the property in question or to have any share out of that said property. But the trouble started only after the discovery of the Will and all plausible objections appear to have been taken mainly by the defendant No. 1 out of the five sisters. It may also be pointed out here that the main contestant of the Will is the defendant No. 1 and the defendant No. 2 tried to stand by her. Other sisters did not show any interest to contest the suit.
22. Now from the above discussion it is abundantly established that the Testatrix Kalpana Rani Bhowmick executed and registered the said Will absolutely on her own will without any influence exercised by anybody on her having full testamentary capacity to execute the same. The defendants miserably failed to establish that the signatures of the Testatrix appearing in the Will are not of her own. The plaintiffs are thus entitled to get the letters of administration.
23. Accordingly, all the five issues are decided in favour of the plaintiffs/propounders.
24. The suit is therefore decreed. Let the letters of administration of the Will and testament of Kalpana Rani Bhowmick dated 15th March, 1975 be granted to the plaintiffs as the legatees and beneficiaries of the Will on payment of usual Court fees, if not already paid, and on fulfilment of other necessary formalities.
25. There shall be no order as to costs.
Suit decreed.
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