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

One Manindra Chandra Bose (original respo ndent 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, Jit endra 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 (Exhib it 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 bequeath ed 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 (Manindras) death to Bhab esh absolutely. During the pendency of the suit, Jitendra died and his heirs who were substituted, contested the suit3. 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 involved4. Th e 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 testators mind on 8.11.1952"5. The plaintiffs filed an appeal before the high Court. The High Court held that "there was no suspiciou s 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 us2. The material facts may be briefly stated as follows.

Reasoning: 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.