Case: Indu Bala Bose &amp; Ors Vs. Manindra Chandra Bose &amp; Anr

it a month earlier. (ix) No body knows what alterations were m ade in the draft. (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 th e 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 ther e 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 re gard to the diary of P.W. 3. P.W. 3 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 testators 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". 11. 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 testators advocate. But there is nothing to show th at 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 compl aint 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-examina tion. 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 no t 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 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 wi ll. Even D.W. 2 Sailendra Bose who visited Ranendra during his illness, and 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 plaintiffs 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 st ating 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 litigati ons 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 lear ned counsel are not only not suspicious but normal as pointed out above. The rule, as observed by the Privy Council, is tha:t "where a will is charged with suspicion, the rules enjoin a reasonable septicism, not as obdurate persistence in disbeli ef. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 CourtA 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 th e 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 ther e 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 re gard to the diary of P.W. 3. P.W. 3 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 testators 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 testators advocate. But there is nothing to show th at 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 compl aint 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-examina tion. 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 812. On the contrary the following circumstances lend strong support to the plaintiffs 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 st ating 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 litigati ons between the two groups of the brothers, the will was the natural outcome to avoid further future litigation13. We do not find any suspicious circumstance surrounding the execution of the will. The circumstances pointed out by lear ned counsel are not only not suspicious but normal as pointed out above. The rule, as observed by the Privy Council, isthat"where a will is charged with suspicion, the rules enjoin a reasonable septicism, not as obdurate persistence in disbeli ef. 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." (See14. The trial court was wrong in holdingthatthe 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 Court8. Needless to saythatany and every c ircumstance 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.