Full Judgment Text
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PETITIONER:
INDU BALA BOSE & ORS.
Vs.
RESPONDENT:
MANINDRA CHANDRA BOSE & ANR.
DATE OF JUDGMENT18/11/1981
BENCH:
ISLAM, BAHARUL (J)
BENCH:
ISLAM, BAHARUL (J)
SEN, A.P. (J)
CITATION:
1982 AIR 133 1982 SCR (1)1188
1982 SCC (1) 20 1981 SCALE (3)1766
CITATOR INFO :
RF 1987 SC 767 (2)
F 1990 SC 396 (21)
ACT:
Probate suit-Mode of onus of proof of a sale,
explained-Hindu Succession Act, section 63.
HEADNOTE:
One Ranendra died unmarried on November 16, 1952
leaving the alleged will (Exhibit-1) executed on November,
8, 1952. Ranendra left behind him three brothers-Jitendra
Chandra Bose, Gopendra and Manindra plaintiff No. 1.
Manindra and Jogendra (Plaintiff No. 2) had been appointed
executors of the will. By the will Ranendra bequeathed one-
half of his properties to his nephew, Bhabesh, who was the
son of his younger brother, Phanindra, who had predeceased
him, and the remaining half to his younger brother Manindra
for life, and after Manindra’s death to Bhabesh absolutely.
The executors of the will as aforesaid filed an application
before the Subordinate Judge. Alipore, for probate of a will
executed by Ranendra. Jitendra entered caveat and filed a
written statement and contested application for probate.
During the pendency of the suit, Jitendra died and his heirs
who were substituted, contested the suit.
The contentions were that Ranendra was not in a
physical or mental condition to execute a will; he was in a
semi-conscious state of mind and had not the testamentary
capacity to execute the alleged will and that the alleged
will was brought into existence at the instance, and under
the influence of the propounder Manindra; that the
signatures of Ranendra on the will were not genuine.
The trial court found that the signatures of the
testator and the attesting witnesses were genuine and that
the provisions of the will was neither unfair nor unnatural.
But the trial court dismissed the suit and refused to grant
probate of the will on the ground that there were certain
"doubts and suspicions about the condition of the testator’s
mind on 8-11-1952". In appeal before the High Court, the
decree of the trial court was set aside and the propounder
was granted probate of the will.
Dismissing the appeal by certificate granted by the
Calcutta High Court under Article 133(1)(b) of the
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Constitution, the Court,
^
HELD: 1.1. The mode of proving a will does not
ordinarily differ from that of proving any other document
except to the special requirement of attestation prescribed
in the case of a will by section 63 of the Successions Act.
[1191 D]
1:2. The onus of proving the will is on the propounder
and in the absence of suspicious circumstances surrounding
the execution of the will, proof of test-a
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mentary capacity and the signature of the testator as
required by law is sufficient to discharge the onus. Where,
however, there are suspicious circumstances, the onus is on
the propounder to explain them to the satisfaction of the
court before the court accepts the will as genuine. Even
where circumstances give rise to doubts, it is for the
propounder to satisfy the conscience of the court. The
suspicious circumstances may be as to the genuineness of the
signatures of the testator, the condition of the testator’s
mind, the dispositions made in the will being unnatural,
improbable or unfair in the light of relevant circumstances,
or there might be other indications in the will to show that
the testator’s mind was not free. In such a case the court
would naturally expect that all legitimate suspicions should
be completely removed before the document is accepted as the
last will of the testator. If the propounder himself takes
the prominent part in the execution of the will which
confers a substantial benefit on him, that is also a
circumstance to be taken into account, and the propounder is
required to remove the doubts by clear and satisfactory
evidence. If the propounder succeeds in removing the
suspicious circumstances the court would grant probate, even
if the will might be unnatural and might cut off wholly or
in part near relations. [1191 D-H 1192 A]
Shashi Kumar Banerjee & Ors.v. Subodh Kumar Banerjee &
Ors, A.I.R. 1964 S.C. 529; H. Venkatachala Iyengar v. B.N.
Thimmajamma & Ors., [1959] Supp. 1 S.C.R. 426; Rani Purnima
Devi and Another v. Kumar Khagendra Narayan Dev and Another,
[1962] 3 SCR 195 followed.
1:3. A circumstance would be "suspicious" when it is
not normal or is not normally expected in a normal situation
or is not expected of a normal person. [1192 A-B]
1:4. A careful perusal of the eleven circumstance shows
that they are by no means suspicious circumstances and stand
self-explained. On the contrary the following circumstances
lend strong support to the plaintiffs’ case of genuineness
and valid execution of the will: (i) Gopendra one of the
brothers, who has not been given anything under the will had
filed a written statement stating that the "has no objection
to the grant of probate inasmuch as the will is executed and
attested according to law"; (ii) the disposition under the
will is quite fair and there are no suspicious circumstances
in it at all; (iii) as there were litigations between the
two groups of the brothers, the will was the natural outcome
to avoid further future litigation. [1194 F, 1196 B-C]
Harmes and Anr v. Hinkson, 50 C.W.N. 895, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1872 of
1970.
From the judgment and decree dated the 24th December,
1969 of the Calcutta High Court in appeal from Original
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Decree No. 843 of 1966 (Probate)
S.S. Ray and S. Ghosh for the Appellant.
V.S. Desai D.N. Mukherjee and N.R. Choudhary for the
Respondents.
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The Judgment of the Court was delivered by
BAHARUL ISLAM, J, This appeal by certificate granted by
the Calcutta High Court under Article 133(1) (b) of the
Constitution is from a decree dated December 24, 1969 and
arises out of a probate suit.
2. The material facts may be briefly stated as follows.
One Manindra Chandra Bose (original respondent No. 1 since
deceased) and Jogendra Nath Mitra (respondent No. 2 before
us) filed an application before the Subordinate Judge,
Alipore, for probate of a will alleged to have been executed
by one Ranendra Chandra Bose on November 8, 1952, Jitendra
Chandra bose, a brother of the testator entered caveat and
filed a written statement and contested the application for
probate. The plaintiffs’ case was that Renendra died
unmarried on November 16, 1952, leaving the alleged will
(Exhibit 1) executed on November 8, 1952. Ranendra left
behind him three brothers-Jitendra, aforesaid, Gopendra and
plaintiff No. 1. Manindra. Manindra and Jogendra (plaintiff
No. 2) had been appointed executors of the will. By the will
Ranendra bequeathed one-half of his properties to his
nephew, Bhabesh, who was the son of his younger brother,
Phanindra, who had pre-deceased him, and the remaining half
to his younger brother Manindra for life, and after his
(Manindra’s) death to Bhabesh absolutely. During the
pendency of the suit, Jitendra died and his heirs who were
substituted, contested the suit.
3. The contentions of the defendants were that Ranendra
on November 8, 1952, was not in a physical or mental
condition to execute a will; he was in a semiconscious state
of mind and had not the testamentary capacity to execute the
alleged will. They alleged that the will was brought into
existence at the instance, and under the influence of, the
propounder Manindra; that the signatures of Ranendra on the
will were not genuine and that must have been obtained on
blank papers by Manindra who was looking after the
properties of Ranendra as well as all litigations in which
Ranendra was involved.
4. The trial court found that the signatures of the
testator and the attesting witnesses on the will were
genuine, and that the provisions of the will was neither
unfair nor unnatural. But he dismissed the suit and refused
to grant probate of the will on the ground that there were
certain "doubts and suspicions about the condition of the
testator’s mind on 8.11.1952".
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5. The plaintiffs filed an appeal before the high
Court. The High Court held that "there was no suspicious
circumstance relating to the will and whatever little
suspicion there was has been satisfactorily explained by the
plaintiff", with the result that the High Court set aside
the decree of the trial court and granted probate of the
will. The judgment and decree of the High Court has been
challenged by the appellants before us.
6. Mr. S.S. Ray, learned counsel appearing for the
appellants has not challenged the trial court’s findings
that the signatures of the testator and the signatures of
the attesting witnesses on the will were genuine. In other
words, the execution and the attestation of the will have
not been challenged before us. The only submission of
learned counsel is that the "suspicious circumstances"
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surrounding the execution of the will have not been
satisfactorily explained by the propounders.
7. This Court has held that the mode of proving a will
does not ordinarily differ from that of proving any other
document except to the special requirement of attestation
prescribed in the case of a will by Section 63 of the
Successions Act. The onus of proving the will is on the
propounder and in the absence of suspicious circumstances
surrounding the execution of the will, proof of testamentary
capacity and the signature of the testator as required by
law is sufficient to discharge the onus. Where however there
are suspicious circumstances, the onus is on the propounder
to explain them to the satisfaction of the court before the
court accepts the will as genuine. Even where circumstances
give rise to doubts, it is for the propounder to satisfy the
conscience of the court. The suspicious circumstances may be
as to the genuineness of the signatures of the testator, the
condition of the testator’s mind, the disposition made in
the will being unnatural, improbable or unfair in the light
of relevant circumstances, or there might be other
indications in the will to show that the testator’s mind was
not free. In such a case the court would naturally expect
that all legitimate suspicions should be completely removed
before the document is accepted as the last will of the
testator. If the propounder himself takes a prominent part
in the execution of the will which confers a substantial
benefit on him, that is also a circumstance to be taken into
account, and the propounder is required to remove the doubts
by clear and satisfactory evidence. If the propounder
succeeds in removing the suspicious circumstances the court
would grant probate, even if the will might be unnatural and
might
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cut off wholly or in part near relations. (See AIR 1964 SC
529, [1959] Suppl. 1 SCR 426 & [1962]3 SCR 195).
8. Needless to say that any and every circumstance is
not a ’suspicious’ circumstance. A circumstance would be
’suspicious’ when it is not normal or is not normally
expected in a normal situation or is not expected of a
normal person.
Learned counsel relied on the decision of this Court in
the case of Rani Purnima Devi and Another v. Kumar Khagendra
Narayan Dev and Another. In this case the will in question
gave the entire property by the testator to a distant
relation of his to the exclusion of the testator’s widow,
sister and his other relations, and even his daughter, who
would be his natural heirs, but subject, of course, to the
condition that the legatee would maintain the widow and the
sister of the testator. The testator’s signatures were not
his usual signatures, nor in the same ink as the rest of the
will; the testator used to sign blank papers for use in his
cases in court and he used to send them to his lawyer
through his servants; the testator did not appear before the
Sub-Registrar for the purpose of registration of the will
but the Sub-Registrar sent only his clerk to the residence
of the testator for the purpose of registration; there were
16 attesting witnesses who attested the will, but of them,
only 4 interested witnesses were examined to the execution
of disinterested witnesses. The above are undoubtedly
suspicious circumstances, circumstances creating doubt in
the mind of the Court. In spite of these circumstances, it
was held by the Trial Court that the will was duly executed
and attested. On appeal, the High Court affirmed the order
of the Trial Court. On further appeal, this Court held that
the circumstances were suspicious and were not
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satisfactorily explained and hence held that "the due
execution and attestation of the will were not proved."
9. As in the instant appeal, the judgment of the High
Court is one of reversal of the judgment of the Trial Court,
we should also examine the law under which the order of the
appellate court can be or should be interfered with,
inasmuch as learned counsel has cited the two following
decisions before us, and urged that the High Court ought not
to have interfered with the judgment of the Trial Court. The
first case cited is The Bank of India Ltd. and others v.
Jamsetji
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A.H. Chinoy and Messrs. Chinory and Co. In that case the
Privy Council has held:
"The appellate Court would be reluctant to differ
from the conclusion of the trial Judge if his
conclusion is based on the impression made by a person
in the witness box. If however, the trial Judge based
his finding and his opinion of the person on a theory
derived from documents and a series of inferences and
assumptions founded on a variety of facts and
circumstances which, in themselves, offer no direct or
positive support for the conclusion reached, the right
of the appellate Court to review this inferential
process cannot be denied."
The other case cited is Madholal Sindhu of Bombay v.
Official Assignee of Bombay and others, in which the Federal
Court held:
"It is true that a Judge of first instance can
never be treated as infallible in determining on which
side the truth lies and like other tribunals he may go
wrong on question of fact, but on such matters if the
evidence as a whole can reasonably be regarded as
justifying the conclusion arrived at, the appeal Court
should not lightly interfere with the judgment."
10. Keeping the above principles of law in view let us
now turn to the facts of the present case.
Learned counsel for the appellant has enumerated the
following 11 ’suspicious’ circumstances:
(i) Attempt on the part of the propounder to conceal
the real nature of testator’s illness.
(ii) The propounder failed to tell the date when the
testator went to his lawyer (P.W. 3s’) house or
when the draft was given by the lawyer to the
testator.
(iii)The draft has not been produced and no explanation
has come forth as to what happened to the draft.
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(iv) No date has been mentioned when the testator sent
for his lawyer trough Banqshidhar for corrections
in the draft.
(v) The diary of P.W. 3 has not been produced.
(vi) The senior lawyer (Sudhangshu Babu) has not been
examined. The lawyer examined, namely P.W.3, is a
partisan witness.
(vii)Banqshidhar has not been examined as a witness
although he was attending court during the trial
of the suit.
(viii)The statement of the propounder, Manindra, that
he knew about the will only three or four days
after its execution cannot be accepted as true
when one of the attesting witnesses, namely P.W.
5, had been told of it a month earlier.
(ix) No body knows what alterations were made in the
draft.
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(x) The scribe and one of the attesting witnesses are
employees, another witness (P.W.4) is a friend and
the other attesting witness (P.W.5) is a relation.
(xi) The evidence of the propounder, Manindra, is
partly false; he disavows all knowledge of the
will.
A careful perusal of the above circumstances shows that
they are by no means suspicious circumstances and stand
self-explained. Circumstances Nos. (ii) and (iv) are really
test of memory. It may be remembered that the witnesses were
deposing thirteen years after the execution of the will. It
will be difficult for any witness after such a long lapse of
time to give the dates when the testator went to the house
of his lawyer or when the draft was given by the lawyer to
the testator or when the testator sent for the lawyer
through Banqshidhar for correction of the draft. With regard
to circumstance No. (iii) there is no evidence to show that
there was any invariable practice that the draft of a will
had to be preserved. No question was put in cross-
examination to the scribe (P.W. 1) who perhaps might have
been able to say what he had done with it. Similar is the
position with regard to the diary of P.W. 3. P.W. 3
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who deposed that his diary would show that he had drafted
the will was not asked in cross-examination as to whether he
at all preserved in 1965 the diary of 1952 or whether he
could produce it. With regard to grievances Nos. (vi) and
(vii) we do not see any necessity of calling the testator’s
employee Banqshidhar, as witnesses in the case. So far as
Sudhangshu Babu was concerned, Manindra was not asked as to
why he had not been called as a witness; possibly he had
died as P.W. 3 spoke of him as "my late senior". With regard
to circumstance No. (ix), it may be said that there was no
necessity of knowing what alterations had been made in the
draft. With regard to the circumstance that the scribe and
the attesting witnesses were either employees, or friend or
relation of the propounders’ group, the answer is simple. No
body would normally invite a stranger or a foe to be a
scribe or a witness of a document executed by or in his
favour; normally a known and reliable person, a friend or a
relation is called for the purpose. The same argument
applies to P.W.3 who is said to be a partisan witness for
the reason that he was the testator’s advocate. But there is
nothing to show that he was not telling the truth in his
deposition. With regard to the circumstances Nos. (viii) and
(x) that Narendra was not telling the whole truth, when he
said that he had come to know of the will three or four days
after its execution the complaint may be correct, although
it was not impossible that he had not been taken into
confidence in the matter of the will in his favour, although
P.W. 5 had been. Another possibility is that Manindra
deposed so in order to avoid cross-examination. In any case
this does not appear to be a suspicious circumstance
surrounding the execution of the will.
With regard to circumstance No. (i), the submission is
that the testator, according to the medical evidence, was at
the time of the execution of the will suffering from high
blood pressure, diabetes, acidosis, kidney trouble and that
he had no food for two days before 8.11.1952. The evidence
of P.W.2 Naresh C. Das Gupta who is a medical practitioner
is that "Ranen Babu was not taking his meals and usual
food", which means, he was taking sick diet with ’hydro-
protien’ prescribed by him. But P.W. 2 deposes in cross-
examination that "the patient was not in coma .... The
patient had talks with me on the last day" which was eight
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days after the execution of the will when the testator
"suddenly" died of coronary thrombosis in the lap of his
employee, Banqshidhar. There is no evidence that Ranendra
did not have the mental capacity to execute the will. Even
D.W. 2 Sailendra Bose who visited Ranendra during his
illness, and
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D.W. 1, Dr. Amal Chakravorty who deposed by perusing the
prescriptions, did not depose that Ranendra was in coma or
had lost his mental faculty.
12. On the contrary the following circumstances lend
strong support to the plaintiff’s case of genuineness and
valid execution of the will. (1) Gopendra, one of the
brothers, who has not been given anything under the will had
filed a written statement stating that he "has no objection
to the grant of probate inasmuch as the will is executed and
attested according to law." (2) The disposition under the
will is quite fair and there are no suspicious circumstances
in it at all. (3) As there were litigations between the two
groups of the brothers, the will was the natural outcome to
avoid further future litigation.
13. We do not find any suspicious circumstance
surrounding the execution of the will. The circumstances
pointed out by learned counsel are not only not suspicious
but normal as pointed out above. The rule, as observed by
the Privy Council, is that "where a will is charged with
suspicion, the rules enjoin a reasonable septicism, not as
obdurate persistence in disbelief. They do not demand from
the judge, even in circumstances of grave suspicion, a
resolute and impenetrable incredulity. He is never required
to close his mind to the truth." (See 500 C.W.N. 895)
14. The trial court was wrong in holding that the
circumstances in question were suspicious and the High Court
was fully justified in setting aside the judgment of the
trial court. We are in entire agreement with the judgment of
the High Court.
In the result this appeal fails and is dismissed with
costs.
S.R. Appeal dismissed.
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