TESTAMENTARY SUIT No.3 OF 2008 ------ In the matter of an application under Sections 273 and 276 of the Indian Succession Act for grant of probate of the registered will dated 22.11.2000 ------ Smt.Shefali Mukherjee wife of Sri Subroto Ramnath Mukherjee resident of 54. DD/6 Anupama Housing Estate, V.I.P. Road, Kolkata-700052……….. Applicant Versus Sidheshwar Chatterjee……… ……… ……. Defendant ------ For the Applicant: Mr. L.N. Das, Advocate For the Defendant: Mr. Ajeet Narayan Sinha, Advocate P R E S E N T THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA ----- R.K.Datta, J. The present suit was filed originally as Test Case No.5/2006 being an application for grant of probate in favour of the applicant-plaintiff, Smt.Shefali Mukherjee with respect to the will dated 22.11.2000 of late Renuka Chatterji, her mother. It was claimed that the said registered Will dated 22.11.2000 was the last will of late Renuka Chatterji. The same was executed and voluntarily signed in a sound state of health and mind and after fully understanding the contents without any undue influence of anybody in the presence of two witnesses, namely, Ranjay Nandi and Ibha Banerjee. The further case of the applicant- - 2 - plaintiff is that the testatrix was a Hindu governed by the Dayabhag School of Hindu Law and was a permanent resident of Park Road, P.S. Kadamkuan, Town and District-Patna. At the time of execution of the will she had one son and four married daughters and the subject matter of the will was the three storied building along with outhouse situated at Park Road, Kadamkuan, Patna. It was further stated in the application that the said Renuka Chatterjee died at Magadh Hospital, Patna on 14.3.2002 at 6.15 A.M. The applicant- propounder of the will, Smt. Shefali Mukherjee, has been named as the sole executor of the Will. As many as seven near relatives were named in the application, including the only son and two surviving daughters, the daughter-in-law, the grand son (son of son) and two other grand sons being sons of the deceased daughter. General citation was published in two news papers and special citation was also taken out and served upon seven near relatives mentioned in the application. Near Relative No.7, who is the grandson(daughter’s son) of the Testatrix appeared through vakalatnama and filed his No Objection petition for grant of probate in favour of the - 3 - applicant. However, Near Relative No.1, the son of the testatrix, also appeared and filed his caveat and objection petition opposing the grant of probate. The application was, accordingly, converted into the present Testamentary Suit. The plaintiff examined three witnesses on her behalf, namely, P.W.1, Ranjay Nandi, P.W.2, Ibha Banerjee, the two being the attesting witnesses, and she also got herself examined as P.W.3. The original will was produced and marked as Ext.1,; Exts.2/1 to Ext.2/8 are the signatures of the Testatrix on every page of the Will, Exts.3 to 3/5 are the signatures of the attesting witness Ranjay Nandi, P.W.1 on every page of the Will, and Exts.4 to 4/5 are the signatures of the attesting witness Ibha Banerjee, P.W.2 on every page of the Will. The defendant, Sidheshwar Chatterji, also examined three witnesses, in support of his case, including himself as D.W.1, D.W.2 Raj Kumar and D.W.3 Suresh Prasad. On a consideration of the respective cases of the plaintiff and defendant, the following issues were framed:- (a) Is the case as framed maintainable? - 4 - (b)Is the case barred by the principle of estoppel, waiver and acquiescence? (c) Is the case barred by law of limitation? (d) Had late Renuka Chatterjee executed the alleged will without any coercion and undue pressure? (e) Had late Renuka Chatterjee lost her power of understanding since October,1999 before the execution of the alleged will? (f) Was the alleged will drawn on the instructions of late Renuka Chatterjee? (g) To what relief or reliefs the plaintiff is entitled? Issues (d), (e) and (f) These issues, which are inter related, are taken up first for consideration. The stand of the plaintiff, who has examined herself as P.W.3 is that the Will was executed by her mother in the presence of two attesting witnesses, P.W.1 and P.W.2, and she was in sound state of health and mind on that day and had voluntarily executed the Will. The Will was - 5 - registered on the same day in the Registry Office, Patna. The corrections in the Will were also made in the pen of her mother, where she had put her full signature. During her cross-examination she has stated that her mother was well versed in English and the contents of the Will were read by her mother and after understanding the same she had put her signature and to that effect even endorsement has been made in the Will by typing out “executed the Will after knowing its contents” and beneath such endorsement her mother testatrix had signed in English. She has also stated that the Will was executed in her presence and at the time of preparation of draft Will her other sister and husband, who is an I.P.S. Officer were also present. She has admitted that she had filed the will from her custody as she was made the executor of the Will. She has also admitted that she has taken her mother to the Registry Office for registration of the Will. In her cross- examination, she has further accepted that she took the initiative to approach the lawyer for drafting the Will on the request of her mother that she wanted to execute the Will with regard to her properties and the said request was made in - 6 - presence of her sister Swapna Mukherjee and her husband, the I.P.S. Officer and with them she went to the lawyer. She has stated that her mother never herself visited the lawyer and no lawyer ever came to meet her mother and whatever she desired was conveyed to the lawyer for being included in the Will. She has also accepted that she got the Will typed and accompanied her mother to the Registry Office. She has further stated in the cross-examination that her name was included as one of the beneficiaries in the Will as her mother trusted her and no stranger/outsider should enter into the house; besides that she has no interest in the property. She has denied that the Will is forged one and misusing the confidence of the mother she got the will executed. She has further asserted that both the attesting witnesses were not only known to her and to her mother but to all the members of the family from before and they had become attesting witnesses to the Will after having seen her mother executing the Will at her request. She has admitted that being the executor in the Will it was her duty to request the witnesses to become attesting witnesses and she had called them. She has further stated that - 7 - P.W.2, Ibha Banerjee, was the tenant in her uncle’s house which is just by the side of the subject matter of the Will and also teaches in the same school in which her sister-in-law teaches, who is the wife of the defendant. She has denied that attesting witnesses are in collusion with all of them stating that they were also known to the defendant, P.W.1 being an agent in the Post-Office near their house who helps them in purchasing the Kisan Vikas Patra, etc. P.W.1, Ranjay Nandy is one of the attesting witnesses to the Will. He has stated that the testatrix had executed the will dated 22.11.2000 in her sound state of health and mind voluntarily and after understanding its contents in his presence as well as in presence of P.W.2, Ibha Banerjee. He has proved the Will and he has also proved the signatures of late Renuka Chatterji on each and every page of the Will to which he had become an attesting witness at the request of the testatrix and signed on each and every page on her wishes. He has further stated that he had signed in the presence of the testatrix as also Smt. Ibha Banerjee, P.W.2. He has also proved the signatures of the other - 8 - witness, P.W.2, Ibha Banerjee, on each and every page of the Will stating that the testatrix and the two attesting witnesses had signed on the Will in presence of each other. In his cross- examination he has stated that he was working as Financial Advisor in Mutual Funds and was Financial Advisor to Mithun Chatterji and also the testatrix. He has stated that he was called on telephone by the plaintiff and when he reached the place, he found the typed copy of the Will in the hand of Renuka Chatterji, who asked him to put his signature as a witness of the Will. He has, however, submitted that the Will was not registered in his presence. He has also stated that when he reached the place, he found the plaintiff and Mithun Chatterjee among other family members, who were present. He has denied that Renuka Chatterji was illiterate woman stating that she used to put her signature. He, however, admits that no one had read and explained the contents of the Will to her in his presence nor she had read the Will in his presence. He has, however, stated that although he did not know the age of testatrix, but from her appearance, she looked an old lady and she was sitting on the chair when he - 9 - reached her house. He has denied that she was suffering from any ailment. He has further denied that she had lost her senses or was a mentally disturbed person since October, 1999. He has also denied that he was in league with Mithun Chatterji and Shephali Chatterji. P.W.2, Ibha Banerjee is the other attesting witness. She has also stated that the mental and physical health of the testatrix on the date of execution of the Will was absolutely prefect. She has further stated that she had executed the Will voluntarily after understanding its contents in her presence as well as in the presence of P.W.1 and thereafter signed on each and every page. On her request the two attesting witnesses, P.W.1 and P.W.2 herself also signed as witness on every page of the Will. In her cross examination, she has said that Mithun Chatterji was working with her in St. Columbus Schoool, Kadamkuan and she was called by the plaintiff to be a witness to the Will. She has also stated that she had found 7-8 persons present when she went to become witness to the deed of Will. She has denied that the testatrix did not put her signature in her presence or she became witness to the Will on - 10 - any pressure of Mithun Chatterji and the plaintiff. She, however, admits that the Will was not registered in her presence. The defendant has examined himself as D.W.1. He has stated that the testatrix was a semi literate lady and she could sign on the dictates of others. He has denied that she executed any will on her own. He has also alleged that the Will in question had been executed by the plaintiff and Mrs. Mithun Chatterji, his wife. He has also alleged that the Will was not drafted or typed on the instructions of his mother nor she called any one to attest the alleged Will nor any one attested it in her presence. He has stated that she lost her power of understanding since October, 1999 and was not in a position to understand the contents and effect of any document or deed. He has, however, stated that the testatrix was ailing since 1998 and being regularly treated by the Doctor. Nobody other than him served his mother. He has further stated that his mother had expressed her wish not to dispossess him from the ground floor of the main building where he has been living, whereas in the alleged Will he has been allotted outhouse which is in dilapidated - 11 - condition and in rainy season its ground floor becomes inundated. He has stated that his mother had no exclusive title to the property under the Will and it is surrounded by suspicious circumstances. In cross examination, he has denied that his mother was a student of Bethal School of Kolkata, which is English medium school and asserted that his mother knew only Bengali Language. He has, however, admitted that she had Bank Account which she used to operate by putting signature on cheque. On being shown page 4 of the will he has admitted that his mother had opened a joint account in her name along with his wife for meeting the education expenditure of his son in the Post Office in the year 2000. He has admitted that his mother was operating the pension account till last day of her life. He has accepted that he was in the Indian Revenue Service and in the normal course would have retired in the year 2010, but he has denied that he was dismissed from service, stating that he took voluntary retirement. On a question by the Court whether he can produce his order of voluntary retirement, he has however said that it was not possible as he had taken voluntary retirement way back in the - 12 - year 1994. He has further stated that he was not getting any pension after voluntary retirement on serving the Department for 19 years. He has also denied that there was any departmental proceeding against him before his taking voluntary retirement. He has denied that he had accompanied his mother and sister at the time of registration of the Will to the Registry Office nor that he had taken them in the Car. He, however, admitted that on the day the Will was executed, he was present in his house. On question by the Court, he stated that he was present when the Will was being executed but did not object to his mother while executing the Will. He has further denied that his sister was not interested in the property or that she has no lure for this property because she owns a huge property in America as well as in Kolkata. He has, however, stated that she has already got citizenship of U.S.A. He has further stated that he did not know as to why his mother created such a Will nor did he know the state of her mind and also he did not know as to whether the Will was created on account of his mental problem. He has denied that he is still under treatment for some mental disease. He has further accepted that the - 13 - property is in two parts; the main building and the out-house and he has been given entire outhouse under the Will and further that even in the main building he has been given his right, of course along with his wife, sister and son. He has also admitted that he was gifted exclusively property at Varanasi by his parents. He further stated that he does not know the attesting witnesses. D.W.2, Raj Kumar, is an electrical worker who claims to visit the house of the defendant in connection with repair of electrical installation and D.W.3, Suresh Prasad Jaiswal, claims to have a Readymade Garments shop in Thakurbari Road. Both of them have stated that they had visited the defendant’s house 3 to 5 times in connection with repair of electrical work or sale of Readymade Garments for his mother and they had seen him serving his mother and his mother used to love him very much. Due to her old age she was unable to do her usual work without him. Both of them have admitted that they do not know any of the members of the family of the defendant nor can recognize them. From a consideration of the materials on - 14 - the record, it is evident that the plaintiff has produced both the attesting witnesses, who have deposed that the Will was executed in their presence by the Testatrix and that they had signed as attesting witnesses to the Will in the presence of the Testatrix and others. These two essential ingredients of the due execution of the Will as laid down in Section 63 of the Indian Succession Act have been proved by the plaintiff. The stand of the learned counsel for the defendant, however, is that the Will was obtained by coercion and is an unnatural Will. It is submitted by him that the beneficiaries, who were present at the time of execution of the Will, hatched up a plan for the execution of the same for their benefit. It is submitted by him that the defendant, who is the only son, has been given very little share in the main building. It is further submitted by learned counsel that from a perusal of the last part of the first page of the Will, which contains the names of legatees, it is evident to the naked eye that the same has been typed later, after the execution of the Will and thus creates a suspicious circumstance and therefore the entire will ought to be thrown out. - 15 - It is further contended by learned counsel that the testatrix being an illiterate lady nothing has come in evidence to show that any one had read and explained the will to her as P.W.1 admits that the same was not done in his presence. It is also submitted by learned counsel that the mere fact of registration of the Will by itself cannot be proof of its genuineness. Learned counsel harps upon the facts that both the attesting witnesses have accepted that the Will was not registered in their presence. Unnaturalness of the Will, according to learned counsel, is clearly proved by the fact that the testatrix had as many as four daughters but nothing was given to the other three daughters, except the plaintiff, who has walked away with major share of the property and it is evident from the materials on the record that she had taken active part at all stages in the preparation and execution of the Will. For the said reasons, it is urged by learned counsel that the Will is not genuine and no probate ought to be granted. In support of the same, learned counsel for the defendant relies upon a decision of the - 16 - Supreme Court in the case of Ram Piari v. Bhagwant and others: AIR 1990 S.C. 1742, in paragraph No.4 of which it has been held as follows: “4.Ratio in Malkani v. Jamadar, AIR 1987 SC 767 was relied on to dissuade this Court from interfering, both, because the finding that Will was genuine, was a finding of fact and omission to mention reason for disinheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani’s case was land. Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property or agricultural holdings from going out of family is well known. Even though it cannot be said to be hard and fast - 17 - rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. Although this Court does not normally interfere with findings of fact recorded by Courts below, but if the finding is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136.” Learned counsel for the plaintiff, however, counters the aforesaid submission by stating that the Will was registered on the same day of its execution on 22.11.2000 and thereafter the testatrix remained alive for more than 15 months and did not choose to revoke the same for such long time, which proves the genuineness of - 18 - the will and that the Will was an expression of the desire of the testatrix. It is also his contention that neither of the two other daughters, who have allegedly been disinherited, have come forward to contest the grant of probate, whereas the notices were duly served upon them. Similarly none of the three grand sons has also come forward to contest the grant of probate, rather near relative No.7 who is the son of pre-deceased daughter has supported the stand of the plaintiff when he had filed his No Objection. It is also submitted by him that the plaintiff has produced both the attesting witnesses and they have testified that the testatrix was in a sound state of health and mind and had executed the will without any undue pressure or influence by any-body at the time of execution and the same could not be demolished even in cross-examination. Learned counsel further submits that the defendant has admitted the fact of his presence at the time of execution and that he did not raise any objection. In fact, according to learned counsel, the defendant had no cause to raise any - 19 - objection as he has been given the maximum portion of the property. He has been directly given 1/3rd portion of the first and second floor of the main house besides the entire out-house. In addition, he had already received earlier the entire property of the family at Varanasi as gift and even under the Will his wife has received half portion on the ground floor and his son has received 1/3rd share on the first and second floors. Thus, according to learned counsel, the defendant alone has received much more than what he would have been entitled under the general law of succession under the Dayabhag School of Hindu Law and in addition substantial portion of the main building has been given to his wife and son. There can thus be no cause for making any complaint on his behalf. It is urged by learned counsel that those who were left out and not given anything are not contesting whereas the defendant who has been given much more than his due share has come forward challenging the genuineness of the Will. Despite admitting his presence at the time when the Will was executed, he raised no such issue with his mother at that or any subsequent point of - 20 - time, with whom he admits he was very close and was having good relation and who remained alive for more than 15 months after the execution of the Will. It is evident from the evidence on record that the plaintiff has been able to satisfy the requirement of Section 63 of the Indian Succession Act, so far as the due execution of the Will is concerned. However, in the present matter the issue has been raised that the will having been obtained by coercion and undue pressure upon the testatrix, under Section 61 of the Indian Succession Act the Will is void. It has been held by the Courts that a mere persuasion or inducement to make a Will in favour of a particular person is not sufficient to bring it within the mischief of Section 61 of the Act. It must be actual coercion in the sense that the testatrix had been coerced into something which she did not desire to do. Such coercion may be actual violence or a person may have become so weak and feeble