JUDGMENT
1. This appeal has been filed under Section 294 of Indian Succession Act. Vijai Kumar Banerjee, the appellant has challenged the order of Court below granting probate of will dated 11-1-1988 executed by his mother Smt. Bang Laxmi in favour of respondent No. 1 namely Arun Kumar Chakrawarti. Shri Arun Kumar Chakrawarti is sister's son of the testatrix, namely Smt, Bang Laxmi, of the will in question.
2. Smt. Bang Laxmi Banerjee (hereinafter to be referred as testatrix) an aged lady died on 16th January, 1988. She was hospitalised on 22nd December, 1987. During her hospitalisation she executed the disputed will on 11th January, 1988 and expired on 16th January, 1988. The respondent No. 1 on 26th October, 1988 filed the petition for grant of probate of will dated llth January, 1988. Smt. Bang Laxmi Banerjee was survived by 8 children as mentioned in the disputed will. She bequeathed some property including a residential house and tenanted shop in favour of the respondent No. 1. By the will she divided and bequeathed the remaining property to her other sons and daughters. The respondent No. 1 applied for grant of probate of the aforesaid will with allegation that the aforesaid will is the last will of the testatrix.
3. The said proceeding was contested by the present appellant on the allegation disputing the execution of the will in question by the testatrix. It was stated that she died at the age of 75 years and was not in a fit mental state to execute the will in question nor she had executed the said will. It was also stated that she executed the registered will dated 21st March, 1980 in favour of the objectors and the will dated 11-1-1988 is forged and fabricated document. Shri Arun Kumar Chakrawarti is mother's sister's son and Smt. Bang Laxmi Banerjee had two sons and as such there was no question of executing any will in favour of Shri Arun Kumar Chakrawarti. Moreover the deceased Smt. Bang Laxmi Banerjee has been survived by two unmarried daughters also and it is responsibility of the objector-appellant to get them married. The Court below granted the probate of the disputed will on the finding that the applicant has proved the due execution as well as attestation of the will and has further proved that the testatrix was of free and sound disposing mind at the time of executing the will. Challenging the judgment of the Court below the present appeal has been preferred by the son of Testatrix.
4. Heard the learned counsel for the parties and perused the record. It was submitted on behalf of the appellant that the findings of the Court below that the propounder of the will has explained the suspicious circumstances as well as that the will was duly executed and attested by Smt. Bang Laxmi Banerjee with her free will and sound disposition of the mind are perverse findings and are against the material on record. In contra the counsel for the respondent submitted that the testatrix was managing the property and her affairs being the owner, it was open for her to dispose of the property in the manner she liked. She disposed of the property through the disputed will in exercise of her right being owner of the disputed property.
5. I have given careful considerations to the respective submissions of the counsel of parties and perused the evidence as well.
6. On behalf of the propounder of the will only one witness was examined. The statement of Shri Shailesh Kumar Misra one of the attesting witnesses has been recorded. It is strange to note that the propounder of the will namely the respondent No. 1 could not dare to come in the witness box. No other witness was examined. Shri Shailesh Kumar Misra stated that he was called by the testatrix on 11th January, 1988. He visited the hospital and Smt. Bang Laxmi Banerjee --testatrix expressed her desire to execute a will in favour of her six daughters and two sons and the propounder of the will. A typed paper was already there. On this typed paper Smt. Bang Laxmi Banerjee put her thumb impression in the presence of him and one Shri P. N. Tripathi and thereafter we witnessed and attested the will in the presence of each other. In cross-examination he has stated that he was called on 10th January, 88 in the evening by Shri Arun Kumar Chakrawarti. She could not sign the document in question because on that day her hands were shaking. He pleaded ignorance about the typist of the will. In further cross-examination he deposed that no other person except P.N. Tripathi and Smt. Bang Laxmi Banerjee put his signature. Arun Kumar and some other ladies were present at that time. He could not tell the name of the sons of the testatrix. A close reading of the statement of the witnesses does not inspire any confidence. The Court below has failed to make analysis of the statement of the witnesses and was satisfied with the statement of witness as deposed by him that Smt. Bang Laxmi Banerjee put her thumb mark on the document in question in his presence. From the statement of the witnesses the following things are established :--
(i) The propounder of the will took active part in the execution of the disputed will. He went to call the witness on 10-1-88 and was present when the document was executed; (ii) The typed document was already there; (ii) He could not give any reason for bequeathing a portion of the property by the testatrix to the propounder of the will and thereby disinheriting her sons and daughters from that portion of the property; (iv) He was not well acquainted and familiar with the testatrix and her family members; (v) The testatrix put her thumb marks as her hands were shaking on that date; and (vi) Besides the testatrix's thumb impression, the disputed Will contains signature of two persons namely S. K. Mishra and P.N. Tripathi only.
7. The learned counsel for the appellant invited my attention towards the copy of the will on the record. The said copy contains the signatures of Vibha Chaterjee. Abha Chaterjee, A.C. Chaterjee and Pushpa Banerjee. Thus the statement of Shri S. K. Mishra is against the document in question. It was for the propounder of the will to explain the circumstances as to how these signatures have come into existence on the will in question. The Court below has conveniently overlooked.
8. From the perusal of the will it appears that it was typed by one Shri Shanker Jaiswal, the Collectorate of Kutcheary Best. The typist has mentioned that the said document was typed on the instructions of Smt. Bang Laxmi Banerjee. The propounder of the will was required to explain about the aforesaid noting made by the typist. The typist was not examined by the propounder of the will. Admittedly the testatrix of the will was hospitalised at the relevant time and she was in hospital since 22nd December, 1987. Obviously the testatrix of the will could not go to the Civil Court to call the typist and got the will typed out, Shri S.K. Misra, one of the attesting witness was examined who deposed that the testatrix was already having a typed document when he reached to the testatrix. This also makes the will in question suspicious.
9. Further in the disputed will it is mentioned that this is the first and last will by the testatrix. The appellant produced a certified copy of the registered will dated 23-3-1980. The Court below has observed that since 1980 to 1988 a sufficient time had elapsed and the testatrix might have changed her mind. Had it been the second will of the testatrix out of her own free mind and in sound disposition of the mind, she must have mentioned the factum of the earlier will which was registered one. The Court below has very lightly brushed aside the said circumstances, in favour of the propounder of the will.
10. In this connection it is important to note that the propounder of the will has taken active part in the execution of the disputed will and is also related to the testatrix. But he could not dare to come in the witness box and to face the cross-examination. The Court below has met this point by making observation that it was not necessary for the propounder of the will to cross-examine himself as he is not one of the signatories to the will.
11. A Division Bench of this Court in Arjun Singh v. Virendra Nath AIR 1971 All 29 has held that a party living and capable of giving evidence must come before the Court to explain the circumstances and the Court would not imagine an explanation which a party himself has not chosen to give. Meaning thereby the propounder of the will had to come in the witness box to explain all the suspicious circumstances surrounding the execution of the will. Being petitioner for grant of probate it was incumbent upon him to explain the signatures of various persons other than the attesting witnesses of the will. He had to explain as to how Smt. Bang Laxmi Banerjee while confined in Hospital instructed the typist in the Civil Court to type out the will in question. The aforesaid observation has been approved by the Supreme Court in the case of Ishwar Bhai C. Patel v. Harihar Behara, AIR 1999 SC 1341. Applying the above principle to the instant case it would be found that the propounder of the will being absent from the witness box and having not made any statement on oath in respect of his pleadings, an adverse inference is to be drawn against him. It is a case of utter failure of the propounder of the will to prove the allegations made in the probate petition.
12. The onus lies upon the propounder to prove the will. In discharging that burden he must not only prove that the will was properly executed and attested but also that it is the last will of a free and capable testatrix. The Supreme Court in Shashi Kumar Banerjee v. Subodli Kumar Banerjee, AIR 1964 SC 529, in para 4 has observed as follows :--
"The principles which govern the proving of a will are well settled; (See H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 Supp (1) SCR 426 : AIR 1959 SC 443 and Rani Purnima Devi v. Khagendra Narayan Dev, (1962) 3 SCR 195 : AIR 1962 SC 567. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession 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 pro-pounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be to the genuineness of the signature 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 indication 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 suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes 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 cutoff wholly or in part near relations".
13. As observed above by the Supreme Court the suspicious circumstances may be as to the genuineness of the signatures of the testatrix, the conditions of the testatrix's mind, the dispositions made in the will be unnatural if probable or unfair in the light of the relevant circumstances. Examining the facts of the present case, as it is clear that the suspicious circumstances are with regard to the genuineness of the signatures of the testatrix, the conditions of the testatrix's mind and the dispositions made in the will being unnatural, improbable or unfair it has come on evidence that the testatrix used to sign and put her signatures on the documents. The disputed will contains her thumb impression. Attempt has been made by the sole witness examined on behalf of the propounder that on that day her hands were shaking. There is no other evidence whatsoever on the record. The propounder of the will could have produced some medical certificates regarding the condition of health of the testatrix by producing doctor or the prescriptions. He could have explained this by examining himself.
14. The propounder of the will has also failed to establish that Smt. Bang Laxmi Banerjee, testatrix, was in fit mental state to execute the will in question. In absence of any cogent material on record about the sound and fit mental state of the testatrix the execution of the will by a lady of 75 years of age in the Hospital is itself a circumstance which speaks against the propounder of the will. There was no necessity to bequeath any part of the property to the propounder of the will. In the will there is a mention that the propounder of the will raised residential portion and got constructed shops out of his own fund. This averment in the will has not been substantiated by any evidence oral or documentary. The Testatrix of the will was having immovable properties and was also partner of fifty per cent share in the firm of which the propounder of the will was partner for the remaining fifty per cent. Thus, apparently there was no occasion for the propounder of the will to raise constructions on the landed property of the testatrix.
15. The will in question does not appear to be a natural will. The propounder of the will has not been able to show a single circumstance as to why the testatrix has preferred him in place of her daughters and two sons. There is absolutely no evidence to show that the relations were strained or not good. Relation of the testatrix were not good or strained with that of her daughters and sons. The making of the bequest in favour of the respondent No. 1 is not at all understandable looking the facts of the case on the record. The findings recorded by the Court below are findings based on guess, conjectures and surmises. It has failed to properly appreciate the evidence and material on the record. It has granted the probate of the Will in question without carefully appreciating the suspicious circumstances surrounding the Will in question and the law relating to the Will. There was absolutely no circumstances for Smt. Bang Laxmi Banerjee-testatrix to execute the Will during her hospitalization on 11th January, 1988. No reliance can be placed upon the statement of the sole attesting witness and the Court below has committed factual and legal error in granting the probate of the Will. The Will being of doubtful nature it is expected that before grant of probate of Will all suspicious should be completely removed. In absence of the material that the testatrix was at the relevant time in disposing state of mind and that she understood the nature and fact of dispositions and put her thumb impression out of her own freewill, the Court below committed illegality in granting the probate of the Will in question. Thus, the argument of the counsel for the respondent that the testatrix disposed of the property through the disputed Will after fully understanding every thing is not substantiated.
16. In the result the appeal is allowed. The judgment and decree of the Court below granting probate of the Will dated 11th January, 1988 in favour of the respondent No. 1 is set aside. The respondent No. 1 shall deposit and return the grant in the Court below. The appeal is allowed with costs.