@JUDGMENT-JUDGMENT
Arijit Banerjee, J
This testamentary suit and an application filed by the defendant have been heard together. I propose to dispose of the defendant's application first
before deciding the issues framed in the suit.
Re: G.A. No.1745 of 2013
1. The defendant has taken out this application contending that the plaintiff is holding certain Relief Bonds, Insurance Policies, Shares and Debentures
which are in the name of the defendant and/or wherein the defendant is named as the sole beneficiary. The defendant relies on a letter dated 12
January, 2005 written by the plaintiff to her in this regard. The defendant has mentioned the particulars of the said instruments in Annexure - B to the
application. The defendant claims delivery of the said instruments to her.
2. It has been submitted on behalf of the plaintiff that the said letter was written when there were talks of settlement going on between the parties but
eventually the same did not materialize. It was submitted that the Relief Bonds, Insurance Policies, Shares and Debentures in which the defendant's
name appears as the nominee do not belong to the defendant. As the nominee of the testator, the defendant holds such moveable assets or any
accrual thereto for the benefit of the person entitled to it under the relevant laws of succession. It was submitted that if the plaintiff succeeds in the
testamentary suit, then the said assets of the testator would devolve upon the plaintiff as the sole beneficiary in spite of the defendant being named as
nominee in the instruments in question. In this connection learned counsel for the plaintiff relied on the decision of the Hon'ble Supreme Court in Smt.
Sarbati Devi and Anr. v. Smt. Usha Devi: (1994) 1 SCC 424 in support of the contention that a mere nomination does not have the effect of
conferring on the nominee any beneficial interest in the amount payable under a life insurance policy on the death of the assured. The nomination only
indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy.
On the death of the policy-holder the amount payable under the policy becomes part of his estate which is governed by the law of succession
applicable to him. Such succession may be testamentary or intestate. A nominee cannot be treated as being equivalent to an heir or a legatee. The
amount received under the policy can be claimed by the heirs of the assured in accordance with the law of succession governing them. For the same
proposition reliance was also placed on the decision of the Hon'ble Supreme Court in V. N. Khanchandani v. Vidya Lachmandas Khanchandi: (2002)
6 SCC 724.
3. It was further submitted on behalf of the plaintiff that the movable assets mentioned in the plaintiff's letter dated January 12, 2005 can be divided
into two categories. The first category comprises assets mentioned in the letter which have been subsequently included in the affidavit of assets filed
along with the probate petition, i.e., the movable assets belonging to the first category form part of the testator's estate. The second category
comprises assets which allegedly are in the name of the defendant, and, therefore, not part of the estate of the testator. As regards the first category
of assets, the persons on whom such movable assets would devolve would depend upon outcome of the testamentary suit. By claiming delivery of
such assets the defendant is disputing the title of the testator to such assets. This dispute cannot be gone into by the probate Court. In this connection
reliance was placed on the decisions of the Hon'ble Supreme Court in the cases of Hem Nolini v. Isolyne Sarojbashini: AIR 1962 SC 1471 and
Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors.: 1993 2 SCC 507.
4. As regards the second category of the assets which allegedly are in the defendant's name, it was submitted that the same do not belong to the
estate of the testator. Hence, any prayer in respect of such assets made by the defendant cannot be entertained in the instant probate proceeding.
5. I have considered the rival contentions of the parties. I am inclined to accept the submission made on behalf of the plaintiff. As regards the first
category of assets there appears to be a dispute as to whether the same belong to the estate of the deceased or to the defendant. This dispute as
regards title cannot be gone into by the probate Court since the probate Court does not decide the question of title to properties. As regards the second
category of assets, since they are not part of the estate of the deceased, in my opinion, it would not be proper for the Court to entertain any prayer in
respect thereof in this probate proceeding. The scope of the present testamentary suit is limited. The Court has to decide only whether or not, the Will
which is being propounded by producing an authenticated photocopy thereof, is genuine. If the Will is admitted to probate, consequences will follow in
accordance with law. The present application is, in my opinion, beyond the scope of the testamentary suit. I am not inclined to pass any order on this
application and the same is dismissed. Interim order, if any, passed on this application, shall stand vacated. Needless to say, if the defendant has any
claim to any of the movable properties mentioned in this application, she shall be at liberty to take appropriate steps for enforcing such claim before the
appropriate forum in accordance with law.
6. G.A. No.1745 of 2013 is accordingly disposed of.
Re: T.S. No.05 of 2007, PLA No.116 of 2004
1. One Pravin Kumar Kothari (hereinafter referred to as ""Pravin"") operated as a sub-broker at the Calcutta Stock Exchange. He had two children,
one son Ashok Kothari (hereinafter referred to as ""Ashok"") and one daughter Dipti Bavishi (hereinafter referred to as ""Dipti""). Till the year 2000
Pravin lived mostly in Calcutta. Both his children had settled down in the United States of America (""U.S.A.""). Pravin had done well in life. In
October, 1999 Pravin's wife Kushum Kothari, passed away in Ashok's house in Richland Hills, Texas, U.S.A. In April, 2000, Pravin came to Calcutta
after a visit to U.S.A. to wind up his affairs. On August 29, 2000 Pravin executed a document which Ashok claims is Pravin's last Will and
Testament. In the present proceeding Ashok has prayed that the said Will be admitted to probate.
2. Pravin died in Texas, U.S.A., on 10 February, 2004. Ashok applied for probate of the said Will in this Court in April, 2004, by filing P.L.A. No. 116
of 2004. It appears that although the Special Citation issued on 23 April, 2004 was dispatched from the Sheriff's office for being served by registered
post on Dipti at her U.S.A. address, the package containing the Special Citation was returned to the Office of the Sheriff, Calcutta High Court with
the remark 'refused'. On 23 September, 2004, the said Will of Pravin was probated by this Court. On or about February 7, 2005, Dipti filed G.A. No.
389 of 2005 praying for revocation of grant of probate of Pravin's said Will. By a judgment and order dated February 20, 2006 passed by a Learned
Single Judge, the grant of probate was revoked. Ashok's appeal against the said judgment and order was dismissed by a Division Bench of this court
by a judgment and order dated 18 August, 2006. Subsequently, Dipti filed an affidavit in support of the caveat which she had lodged. The probate
application became a contentious cause and was registered as T.S. No. 5 of 2007. By an order dated 19 June, 2008 a Learned Judge of this Court
framed the following issues for adjudication:
1) Whether this court has jurisdiction to receive, try and determine the probate application?
2) Whether on the basis of the copy of the alleged Will a probate can at all be granted?
3) Whether there was any codicil to the alleged Will?
4) If probate can be granted on the basis of the copy of the alleged Will produced by the plaintiff, then whether he is entitled to grant of probate?
3. Evidence was adduced by Ashok, Dipti, one Ganshyam Das Kejriwal (one of the two attesting witnesses) and one Raj Kumar Agarwal (the other
attesting witness). By his Will, Pravin bequeathed all his properties movable and immovable, to Ashok and his wife Urvashi, except the amount of
Rs.31 Lakhs which Pravin bequeathed to his daughter Dipti.
4. Appearing for Dipti (the Caveatrix), Mr. P.K. Ghosh, Learned Senior Advocate, urged the following points:
i) Pravin never executed a Will.
ii) The document which Ashok alleges to be the last Will of Pravin, is a photocopy and the original has never been produced.
iii) There are highly suspicious circumstances surrounding the execution of the alleged Will.
iv) The alleged Will was executed under the undue influence of Ashok.
It was further argued that Pravin, due to his illness and advanced age did not have the mental capacity to execute a Will. Mr. Ghosh submitted that the
law requires that the original Will be produced, if available. The plaintiff is obliged to submit the original Will before he can seek grant of probate. The
only other alternative is to make out a case of 'lost Will' under Section 237 of the Indian Succession Act. However, no such case has been made out
by the plaintiff who could at best seek a limited grant under Section 237 but has not made any pleadings nor prayer in that regard.
5. It was submitted that the document produced by the plaintiff purports to be an attested copy of a photocopy of a notarized copy. The plaintiff's
contention is that the testator executed the original Will, had it notarized on the same day, then made a photocopy of the Notarized Will and had the
said photocopy attested once again by the same Notary Public on the same day. This is an extremely unusual procedure and difficult to believe. While
photocopying a document, the same can be manipulated in numerous ways and unless there is someone to testify that the photocopy is a true
reflection of the original, placing reliance on a photocopied document is generally very unsafe. Further, the notarization of the Notary Public has not
been proved. Ashok admittedly was not present in Calcutta when the Will is said to have been executed by Pravin in Calcutta.
6. As regards suspicious circumstances, Mr. Ghosh submitted that it is strange that neither Ashok nor Pravin mentioned anything about the Will to
Dipti at any point of time. The relationship between Dipti and Pravin was very cordial and there could be no reason for Pravin to execute a Will with
disproportionate bequest in favour of Ashok. The conduct of Ashok also points towards suspicious circumstances. Ashok applied for probate of the
said Will without any prior discussion with Dipti. In the probate petition there was a misstatement that Dipti would not object to the grant of such
probate. Further, copy of the probate petition that was handed over by Ashok to Dipti in America was not the same as the probate petition that has
been filed in this court. The copy of the probate petition that was handed over to Dipti mentions a Codicil dated 30.09.2000. However, in the probate
petition filed in this court the words 'read with Codicil dated 30.09.2000' have been deleted. There are other discrepancies including the fact that in the
copy of the probate application handed over to Dipti, her office address was deleted which is at variance with the petition filed in this court. Mr. Ghosh
submitted that the entire conduct of Ashok is highly suspicious which makes it unsafe for a court of conscience to grant probate of the Will that is
sought to be propounded. It is also suspicious that immediately upon obtaining probate ex-parte from this court and before revocation of probate,
Ashok sold of a very valuable flat that belonged to Pravin, situated on Camac Street, Kolkata. This also indicates the mala fides of Ashok.
7. Learned Senior Counsel then submitted that it has come out from the evidence on record that Pravin had made an earlier Will. However, such Will
was not kept in Ashok's custody. Hence, it is strange as to why Pravin would entrust custody of the present Will to Ashok. No satisfactory
explanation has been provided by Ashok as to why Pravin kept both the original and notarized copy of the alleged Will with Ashok in the year 2000.
8. As regards mental capacity of Pravin, Mr. Ghosh submitted, admittedly Pravin had undergone a bypass surgery in 1989 in Chicago. In January,
1998 Pravin suffered a massive brain hemorrhage and he had to go for brain surgery twice in Calcutta. He was paralysed and lost all memory due to
brain haemorrhage. After the operation, Pravin suffered mental lapses and could not even recognize persons. Dipti has deposed in no uncertain terms
that Pravin was not only depressed but he was not his own self after the brain haemorrhage in 1998. In these circumstances, the testator suffered
from loss of mental faculty.
9. Mr. Ghosh relied on certain observations made by the learned single judge in the judgment and order whereby grant of probate was revoked and
also on observations made in the Hon'ble Division Bench's judgment and order dismissing Ashok's appeal. I shall revert to those judgments later.
10. Mr. Ghosh also relied on the following decisions:
i) Meghmala & Ors. v. G. Narasimha Reddy & Ors.: (2010) 8 SCC 383 (Para 23 & 24)
ii) Badami (deceased) by her LR v. Bhali.: (2012) 11 SCC 574
iii) Efari Dasya v. Podei Dasya.: AIR 1928 Calcutta 307
iv) T. L. Venkatarama Aiyar v. B.N. Thimmajamma.: AIR 1959 SCC 443 (Y 46 C 56)
v) Gurdial Kaur & Ors. v. Kartar Kaur & Ors.: (1998) 4 SCC 384
vi) Leela Rajagopal & Ors. v. Kamala Menson Cocharan & Ors.: (2014) 15 SCC 570
11. The first two of the aforesaid judgments were cited in support of the proposition that an act of fraud unravels everything. It was submitted that the
probate court being a court of conscience, if it is established that the plaintiff had committed any act of fraud, no discretion should be exercised in his
favour. The third decision pertains to Section 237 of the Indian Succession Act. The other three cases discuss what amounts to suspicious
circumstances.
12. Appearing for the propounder, Mr. Bhaskar Sen, Senior Advocate, submitted that the propounder had produced a photocopy of the Will of Pravin
dated 29 August, 2000 duly attested/certified to be a true copy by the Notary Public. The said last Will of Pravin has been marked as Exhibit-L. When
Pravin went back to U.S.A in 2000 after winding up his affairs in Calcutta, he had handed over the original Will together with an attested true copy
thereof to Ashok. However, after his father's death Ashok could not find the original Will which was lost and/or misplaced in his custody. It was
submitted that Ashok has proved an authenticated photocopy of the said Will by showing that the Will was signed by Pravin in the presence of two
witnesses who also signed the Will in Pravin's presence and in the presence of each other and at that time Pravin was of sound mind. In this
connection Learned Counsel referred to various parts of the depositions of the witnesses to which I shall advert later in this judgment. Reliance was
also placed on Sections 59 (person capable of making Wills), 63 (execution of unprivileged Wills), and 237 (probate of copy or draft of lost Will) of the
Indian Succession Act and Sections 67 and 68 of the Evidence Act. In support of the submission that Ashok has duly discharged his onus of proving
the Will in accordance with the law laid down by the Hon'ble Supreme Court by complying with the aforesaid provisions of the Indian Succession Act
and the Evidence Act, learned counsel relied on the following decisions:-
i) H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.: 1959 SC 443 (Para-18)
ii) Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee.: AIR 1964 SC 529 (V 51 C 67) (Para-4)
iii) Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr.: AIR 1982 SC 133 (Paras 7 & 8)
iv) Sm. Chinmoyee Saha v. Debendra Lal & Ors.: AIR 1985 Calcutta 349 (Para-6)
13. Mr. Sen submitted that what the plaintiff in the instant case is seeking to get probated is a photocopy of the Will in question duly
certified/authenticated to be a true copy by Notary. The photocopy of the Will being a certified/authenticated of the original through mechanical
process is admissible in evidence under Section 65 of the Evidence Act since the original is lost. In this connection reliance was placed on a decision
of the Andhra Pradesh High Court in the case of Amangenti Prameela & Anr. v. P. Venkat Reddy (died) by LRs & Ors.: (2004) 3 ALT 218.
14. Regarding good health and sound state of mind of the testator when he executed the Will, Mr. Sen referred to various parts of the evidence on
record. In particular he referred to the following 3 documents:
i) Certificate issued by Dr. Sitanshu Sekhar Nandi, Consultant Neuro Physician, on 11 May, 1998, stating inter alia that Pravin's 'current' neurological
state reveals normal mental function (PD-10).
ii) Report dated 13.10.1998 given by Pravin's personal physician in U.S.A. namely Dr. William Neal to the effect that Pravin had recovered after his
brain surgery in January, 1998.
iii) Letter written by Pravin in the year 1999 to Tauras (a company in Bombay) regarding his change of address. Mr. Sen submitted that this letter
would show that Pravin had recovered after brain surgery and had become mentally alert in 1999 before he made his Will on 29.08.2000 (Exhibit-F).
15. Mr. Sen relied on William on Wills (9th edition) (Para 4.13 of Chapter-4) in support of his contention that normally there is a presumption that the
testator was of sound disposing mind at the time when he made his Will. Complete proof of mental capacity of the testator or even proof beyond
reasonable doubt is not necessary.
16. As regards the allegation of there being suspicious circumstances under which the Will was executed, Mr. Sen agreed that it is settled law that the
onus is on the propounder to explain such circumstances to the satisfaction of the court before the Court accepts the Will as genuine and admits the
same to probate. He submitted that the Hon'ble Supreme Court in several decisions has consistently laid down as to what factors may indicate
suspicious circumstances surrounding execution of a Will. These are genuineness of the testator's signature; condition of the testator's mind; unfair
disposition; other indications in the Will to show that the testator's mind was not free. In this connection Learned Counsel referred to the decisions of
the Hon'ble Supreme Court in the following cases:
i) Rani Purnima Debi & Anr. v. Kumar Khagendra Narayan Deb & Anr.:AIR 1962 Supreme Court 567, (Para-5)
ii) Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee.: AIR 1964 Supreme Court 529, (Para-4)
iii) Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr.: AIR 1982 Supreme Court 133
17. Mr. Sen Submitted that there is no allegation in the affidavit filed by Dipti in support of her Caveat that the testator's signature is not genuine. In
the absence of any such allegation in the pleading, no evidence in support of such contention can be looked into by the Court. Genuineness of Pravin's
signature on the Will is not an issue for consideration of this Court. In this connection Learned Counsel referred to the following 3 decisions:
i) Commissioner of Income Tax, Bombay Presidency v. Ahmedabad New Cotton Mills Co. Ltd.: AIR 1930
ii) Bondar Singh & Ors. v. Nihal Singh & Ors.: (2003) 4 SCC 161, (Para-7)
iii) Rajgopal (Dead) By LRs. v. Kishan Gopal & Anr.: (2003) 10 SCC 653, (Para-9)
18. Regarding condition of the testator's mind, Mr. Sen submitted that there is no allegation in Dipti's affidavit in support of her Caveat that the
testator's mental capacity was impaired. The only allegation is regarding the health problems of the testator who had to undergo a bypass surgery in
1989 and a brain surgery in 1998. The evidence adduced by Ashok and the two attesting witnesses and the documents disclosed by Ashok including
the medical certificates show that Pravin had fully recovered after the two surgeries and was of sound physical and mental condition when he
executed his last Will on 29 August, 2000.
19. As regards unfair disposition, Learned Counsel submitted that the testator has not deprived his daughter (Dipti) in his Will and has provided the
sum of Rs.31,00,000/- for her. In the document dated 30 September, 2000 written by Pravin (Exhibit-D at Page-69 of Judge's Brief) it is categorically
stated that Pravin had spent a lot of money on Dipti to make her life easy and always gave her whatever she required. It was further submitted by
Learned Counsel that in any event it has been held by the Courts that the testator has the freedom to give his property to who so ever he likes and the
fact that a natural heir has been excluded or has been given a lesser share cannot by itself amount to a suspicious circumstance. In this connection
Learned Counsel relied on the following decisions:
i) Surendra Paul & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr.: AIR 1974 Supreme Court 1999, (Para-9)
ii) Sm. Chinmoyee Saha v. Debendra Lal Saha & Ors.: AIR 1985 Calcutta 349, (Para-8)
iii) Rabindra Nath Mukherjee & Anr. v. Panchanan Banerjee (Dead) & Ors.: AIR 1995 Supreme Court 1684, (Para-4)
iv) S. Sundaresa Pai & Ors. v. Sumangala T. Pai & Anr.: (2002) 1 SCC 630, (Para-7)
v) Ramabai Padmakar Patil (Dead) & Ors. v. Rukminibai Vishnu Vekhande & Ors.: (2003) 8 SCC 537, (Para-8)
20. It was then submitted that there is no allegation in Dipti's affidavit to the effect that there are other indications in the Will to show that the
testator's mind was not free. Further, the propounder took no part in the execution of the Will. On 29 August, 2000, when the Will was executed in
Calcutta, the propounder was admittedly in U.S.A. It was submitted that none of the suspicious circumstances mentioned in the judgments of the
Hon'ble Supreme Court has been alleged or established. If there is nothing unnatural about the bequests and the evidence adduced satisfies the
requirement of proving a Will, the court would not hold the Will as 'not proved' on account of certain 'assumed suspicion' or 'supposition'. In this
connection Learned Counsel relied on the decision of the Hon'ble Supreme Court in the case ofM adhukar D. Shende vs. Tarabai Aba Shedage:
(2002) 2 SCC 85 (Paras 8 & 9).
21. As regards the allegations of undue influence, coercion and fraud made by the Caveatrix (Dipti) in her affidavit, Mr. Sen submitted that the onus
was on her to establish such allegations. In this connection reliance was placed on the following two decisions:
i) Rani Purnima Debi & Anr. vs. Kumar Khagendra Narayan Deb & Anr.: AIR 1962 SC 567 (Para-5)
ii) Surendra Pal & Ors. vs. Dr. (Mrs.) Saraswati Arora & Anr.: AIR 1974 Supreme Court 1999, (Para-7)
22. Mr. Sen submitted that no particulars of undue influence, coercion or fraud have been furnished by Dipti. Further, Dipti's evidence is full of
contradictions i.e., on one hand she has said that Pravin did not leave any Will and on the other hand she has said that Pravin's Will was procured by
Ashok by exercising undue influence on Pravin. Mr. Sen pointed out that when Dipti was asked in cross-examination what exactly was her case, she
said that since her father had died she can only speculate and all that she can say is that there is no Will. When asked whether her evidence was
speculative, she said that she could not tell the truth and what she was deposing was based on her belief (Questions 406 to 418, 436 to 446 and 461 to
465 of Dipti's cross-examination).
23. As regards the contention of the cavaetrix that the discrepancies between the copy of the draft probate application handed over by Ashok to
Dipti's Learned Advocate in Texas and the application filed by Ashok's Learned Advocate in this Court on 8 April, 2004, also indicate suspicious
circumstances, Mr. Sen submitted that such discrepancies cannot amount to suspicious circumstances surrounding the execution of Pravin's Will. He
submitted that the probate papers were prepared in or about the first week of April, 2004. The probate application was then signed by Ashok and the
two attesting witnesses and was thereafter stamped and punched. A copy of such application was handed over to Ashok by his Learned Advocates in
Calcutta. Ashok left for U.S.A. with copy of such draft application prior to 8 April, 2004. The original application duly stamped and punched and
signed by Ashok and two attesting witnesses remained with Ashok's Learned Advocates in Calcutta. Before filing the probate application in this court,
Ashok's Learned Advocates on having a closer look at the application detected certain mistakes. They then corrected such mistakes and filed the
application in this court on or about 8 April, 2004. The mistakes were corrected by replacing Pages 2, 3 and 5 of the probate application before filing
the same. Since the first page of the application was stamped and punched the same could not be replaced. Similarly, Page - 7 containing the
verification portion and Ashok's signature could not be replaced. On these two pages, corrections were made by hand. Mr. Sen submitted that the
following corrections were made in the probate application before filing the same:
i) The words 'read with Codicil dated 30.09.2000' at Pages 1, 2 and 5 (Prayer- a) and the words ""is misled"" at Page - 2 Paragraph - 2 of the
application were deleted.
ii) A number of words were added in paragraph 2 at page 2 of the application before the same was filed in this Court which were not there in the
copy of the application with which Ashok left Calcutta for U.S.A. and copy of which was handed over to Dipti's Advocate in Texas.
iii) In Paragraph - 6 and Prayer (f) of the application the office address of Dipti was deleted and only the residential address was retained.
iv) The words 'my knowledge' was replaced by the words 'based on my knowledge and belief' in the verification portion of the application before filing
the same in this court.
24. Mr. Sen submitted that the first correction was made because before filing the probate application Ashok's Learned Advocates realized that the
document dated 30 September, 2000 is a letter and not a Codicil. Learned Counsel referred to the definition of Codicil in Section 2(b) of the Indian
Succession Act. He submitted that even if the said letter is treated as a Codicil, it would make no difference to the case.
Regarding the second correction Mr. Sen submitted that the expression 'is misled' which was there in the probate application before correction, is a
meaningless expression and had to be deleted and replaced. While making such replacement the fact that Ashok did not have the original Will and the
same was lost and misplaced was added to avoid any confusion.
As regards the third correction it was submitted that Ashok's Learned Advocates in Calcutta thought it prudent to use one address of Dipti for
communication purpose.
As regards the fourth correction, Mr. Sen Submitted that the same was made to comply with the specific provisions of Section 280 of the Indian
Succession Act.
25. As regards non-service of Citation on Dipti in U.S.A., Mr. Sen Submitted that Ashok cannot be held responsible for the same. Regarding filing of
Caveat on behalf of Ashok, it was submitted that the same was a mistake. Regarding the statement made in the probate application that Dipti had no
objection to grant of probate in favour of Ashok, it was submitted that such statement was made on the basis of the impression carried by Ashok that
Dipti would not object to the grant of probate.
26. Mr. Sen then submitted that two additional points were recorded by the Hon'ble Division Bench while dismissing Ashok's appeal from the order of
the Learned Single Judge revoking the grant of probate. These were firstly, that a factual misstatement has been made in the probate application that
there was no other proceeding filed before any other court in respect of the assets of the testator. In fact Dipti had already taken out an application
for grant of Letters of Administration before a court in Texas and Ashok was aware of the same. Mr. Sen submitted that the said incorrect statement
in the probate application was a mistake committed by Ashok's Learned Lawyers and the same cannot be a suspicious circumstance surrounding
execution of Pravin's Will. The second point noted by the Division Bench was that since the propounder did not state in the probate application that the
Will was lost subsequent to the death of the testator, a presumption under Section 70 of the Indian Succession Act arises about revocation of the Will.
Such a presumption though rebuttable, had not been rebutted by Ashok. Mr. Sen submitted that these reasons recorded by the Division Bench is no
longer applicable since from the evidence of Ashok it is clear that the original Will was with Ashok in U.S.A. from the time it was handed over to him
by Pravin in October, 2000, till Pravin died on 10 February, 2004. Ashok has also deposed that he had discovered that the Will was lost from his
custody only after his father's death (Question 16 of Ashok's chief and Question 170 of his cross).
27. The Caveatrix has contended that it is also suspicious and unusual that photocopy of the Will was made and notarized on the same day on which
the original Will was executed. In response, it was submitted on behalf of Ashok that the original Will (Document-W) was signed by the testator and
the two attesting witnesses. Document - W was then notarized and a Notarial Certificate was issued certifying that the Instrument annexed to the
Notarial Certificate was the original Will. The Notarial Certificate and the Instrument annexed thereto were stitched together with Green Ribbon
(Document-X). Thereafter, Document - X was photocopied (call this photocopy document (Y)), which contained photocopy of the original notarial
certificate and a photocopy of the original Will. Document - Y was then taken to the notary for obtaining a certificate that the same was a true copy
of the original Notarial Certificate and the original Will. The notary put his stamp on each page of Document - Y and authenticated Document - Y
(call this Document - Z). Document - X (containing the original Notarial Certificate together with the original Will) and Document - Z being a
photocopy of Document - X duly authenticated to be true copy by the notary were handed over by Pravin to Ashok in U.S.A. Document - X
containing the original Notarial Certificate and the original Will was lost from the custody of Ashok in U.S.A. which Ashok discovered after Pravin's
death. Document - Z containing photocopy of the original Will and photocopy of the Notarial Certificate, both certified to be true copies by the Notary,
were handed over by Ashok to his Advocates in Calcutta which have been filed in this Court in the present proceeding.
28. On the basis of the aforesaid submission Mr. Sen submitted that the propounder has proved an authenticated copy of the Will in accordance with
law and the same should be admitted to probate.
Court's View
29. Before taking up the issues involved in the suit it would be helpful to note the contents of the Will of which probate is being sought. By the said
Will Pravin bequeathed all his properties, movable and immovable to his son Ashok and Ashok's wife Urvashi excepting Rs.31,00,000/- which he
bequeathed to Dipti.
30. Subsequently Pravin executed a document dated 30 September, 2000 (PD- 7, Exhibit-D). In the said document Pravin noted that he had executed
his Will on 29 August, 2000 and had got it certified by a Notary. He further noted that he had bequeathed Rs.31,00,000/- to Dipti which was lying
invested in 9% Relief Bonds and the Maturity Value whereof would be Rs.48,14,300/-. He also noted that he was executing the said document to
clarify things so that no dispute may arise in future. Pravin further noted that his daughter would not have any other right as he had spent lot of money
to make her life easy and even till the date of execution of the said document, Pravin gave her occasionally whatever she required, clothes, jewellery,
etc. Towards the end of the said document Pravin recorded that his daughter loved him very much and he also loved his daughter. The document
ended thus:
I pray God for her & her family i.e. her husband Nileshbhai & 2 sons namely Ajay (6) year old & Anish (10) year old for happy prosperous and long
life and may God fulfil all their ambitions of life.
31. Thus, from the tenor of the Will read with the document dated 30 September, 2000, it appears that Pravin had equal love and affection for Ashok
and Dipti. However, Pravin was of the opinion that he had spent sufficient sums of money on Dipti to give her a comfortable life and hence he did not
think it necessary to leave much of his properties to his daughter. However, it is not that Dipti was totally deprived by Pravin in the Will. As noted, 9%
Relief Bonds with face value of Rs.31,00,000/- and Maturity Value of over Rs.48,00,000/- were left for Dipti. It has also come out from the evidence
on record that Dipti and her husband are both well established in U.S.A. and between the two of them, they earn over 1 million U.S. dollars per year.
This factor is also likely to have played in the mind of the testator in deciding that it was not necessary to leave much for Dipti who was financially
more than secure. Just because the bequests in favour of the testator's two children are not equal and may even be disproportionate, the same in my
view, per se would not amount to a suspicious circumstance or make the Will unnatural. A Will is generally made when the testator desires to alter the
natural course of succession. As observed by the Apex Court in the case of Ramabai Padmakar Patil (Dead) v. Rukminibai Vishnu Vekhande
(supra), a Will is executed to alter the natural mode of succession and by the very nature of things it is bound to result in either reducing or depriving
the share of a natural heir. If a person intends his property to pass equally to his natural heirs there is no necessity at all of executing a Will. It is true
that the propounder of a Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural
heirs or some of them have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious
circumstance.
32. Now I come to the issues framed. The first issue is whether or not this Court has jurisdiction to receive, try and determine the probate application.
The defendant has not pressed this issue. No argument has been advanced on behalf of the defendant to the effect that this court lacks jurisdiction to
entertain or decide the probate application which has since been registered as the present testamentary suit. Even otherwise, I do not see as to why
this Court will not have jurisdiction to entertain and decide the present proceeding. Admittedly, some of the properties left behind by the testator are
located within the territorial jurisdiction of this Court. This issue need not detain me any further. I hold that this Court has jurisdiction to receive and
decide the present proceeding.
33. The second issue is whether or not on the basis of a copy of the alleged Will a probate can be granted. Section 237 of the Indian Succession Act
provides as follows:-
237. The Probate of copy or draft of lost Will- When a Will has been lost or mislaid since the testator's death, or has been destroyed by wrong or
accident and not by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft,
limited until the original or a properly authenticated copy of it is produced.
It is thus clear that Section 237 contemplates grant of probate of copy of a Will in certain circumstances. However, such grant would be limited until
the original or a properly authenticated copy of the Will is produced. Hence the second issue, which is theoretical in nature, is decided in favour of the
plaintiff to the extent that in certain circumstances copy of a Will which has been lost or mislaid may be admitted to probate. Whether or not the
plaintiff in the instant case is entitled to probate of the photocopy of the Will that has been produced will be decided while deciding Issue no.4
34. The third issue is whether or not there was any codicil to the alleged Will. Learned Counsel for the defendant argued that there was such a codicil
executed by the testator on 30 September, 2000. This codicil also finds mention in the copy of the probate application supplied by Ashok to Dipti's
Lawyer in U.S.A. However, the probate application filed in this court has deleted the reference to such codicil. The plaintiff has not prayed for
probate of such codicil.
35. On the other hand Learned Counsel for the plaintiff urged that there is in fact no codicil. Under a misconception, the document dated 30
September, 2000, was initially treated as a codicil and the probate application was drafted on that basis. A copy of such draft application, before the
same was filed in court, was made over by Ashok to Dipti's Lawyer in U.S.A. However, before the application was filed in this Court the plaintiff's
Lawyer realized that the document in question is not a codicil in the eyes of law and hence, any reference to codicil was deleted from the probate
application before the same was filed in the court.
36. 'Codicil' is defined by Section 2(b) of the Indian Succession Act, 1925 as an instrument made in relation to a Will, and explaining, altering or adding
to its dispositions, and shall be deemed to form part of the Will. I have referred to and noted the contents of the document dated 30 September, 2000
(Exhibit-D) herein above. The document does not in any manner alter or add to the dispositions made in the Will in question. The document merely
reiterates, in substance, that Dipti shall not get anything from the testator's estate excepting the 9% Relief Bonds of the face value of Rs.31,00,000/-
and Maturity Value of about Rs.48,00,000/-. In my opinion the said document is not a codicil as the term is legally understood. By the said document
the testator merely recorded his reason for bequeathing only the said Relief Bonds to Dipti and nothing more. Such recording of reasons or explanation
was not necessary under the relevant law to attach sanctity to the Will in question. If the Will is found to be otherwise executed in accordance with
law, it would stand on its own and would not require support from the document dated 30 September, 2000.
37. For yet another reason I am not inclined to treat the document dated 30 September, 2000, as a Codicil. The word 'Codicil' is derived from the
Roman word 'Codicillus' meaning an informal Will. A Court will admit to probate a Codicil which is duly attested and treat it as a Codicil of the Will
referred to therein. A Codicil is of similar nature to a Will and in general is supplementary to a Will previously made and is executed for the purpose of
adding or varying or revoking the provisions of that Will.
38. Section 63 of the Indian Succession Act delineates the manner in which an unprivileged Will may be executed. The requirements contained therein
are mandatory and are to be strictly adhered to the testator to execute a legally valid Will. The Indian Succession Act does not provide the manner in
which a Codicil is required to be executed. However, since a Codicil is akin to a Will and generally is executed to alter or revoke the provisions of a
Will, in my opinion, the procedure that has to be followed for execution of an unprivileged Will as laid down in Section 63 of the Indian Succession Act,
must also be followed for execution of a valid Codicil. According to author Mantharama Murthy (Law of Wills, 5th Edition, Page-322), a Codicil for its
validity must be executed and attested in the same manner as a Will.
39. In Bhagat Ram & Anr. v. Suresh & Ors.: (2003) 12 SCC 35, the Hon'ble Supreme Court observed as follows:-
We hold that the same rules of execution are applicable to codicil which applies to a Will to which the codicil relates. So also the evidence adduced in
proof of execution of a codicil must satisfy the same requirements as apply to proof of execution of a Will.
40. In view of the aforesaid, the document dated 30 September, 2000, cannot be treated to be a Codicil in the eye of law. It is not executed in the
manner in which a Will is required to be executed. However, the Court may look at an unattested Codicil in order to ascertain the intention of the
testator. [Please see Green v. Marsden: (1853) 1 DREW 646]
41. Accordingly, the third issue is decided in favour of the plaintiff. I hold that there is no codicil executed by the testator.
42. Even if I were to hold that the document dated 30 September, 2000, is a codicil, in my opinion the same would have no material bearing on the
decision of this case. The disposition recorded in the Will in question, will in no way be affected by the said document. The said document (Exhibit-D)
has been duly proved and is part of the evidence on record. If I were of the opinion that the said document is a codicil, I would have perhaps granted
an opportunity to the plaintiff to amend the pleadings and the prayer in the probate application and seek probate also in respect of such codicil.
However, these observations are academic since according to me the document dated 30 September, 2000, is not a codicil.
43. This brings me to the final issue, which according to me is the only real issue, i.e., if probate can be granted on the basis of a copy of the alleged
Will produced by the plaintiff, then whether he is entitled to grant of probate of copy of the alleged Will.
44. The document of which probate is sought for is a notarized photocopy of the original notarized Will. The plaintiff's case is that Pravin had executed
the Will in Calcutta on 29 August, 2000, and then went to America and entrusted the plaintiff with the original Will as well as with a notarized
photocopy of the original Will. The same was thereafter in the plaintiff's custody. However, after the demise of the testator, the plaintiff discovered
that the original Will had been misplaced and was missing. Hence the plaintiff has produced before this court a notarized photocopy of the Will for
being admitted to probate.
45. Section 64 of the Evidence Act provides that ""documents must be proved by primary evidence except in the cases hereinafter mentioned."" Section
65 of the Evidence Act provides, inter alia, that secondary evidence may be given of the existence, condition or contents of a document when the
original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or
neglect, produce it in reasonable time. Section 62 of the said Act defines primary evidence as the document itself produced for the inspection of the
court. Section 63 of the said Act provides that secondary evidence means and includes ""copies made from the original by mechanical processes which
in themselves insure the accuracy of the copy, and copies compared with such copies."" Hence, the general law of evidence, as codified in the
Evidence Act, contemplates proof of a document by secondary evidence. In the present case, the document which is sought to be admitted to probate
is an authenticated photocopy of the original Will. Hence, in my view the same may be accepted as secondary evidence. Further, Section 237 of the
Indian Succession Act contemplates that when a Will has been lost or mislaid since the testator's death, a copy of the Will may be admitted to probate
limited until the original or a properly authenticated copy of it is produced. In the present case the plaintiff has deposed that it came to light that the
original Will had been mislaid only after the testator passed away. This part of his evidence has stood the test of cross-examination. Hence, the
document in question can be admitted to probate subject to the other conditions of valid execution of a Will being satisfied.
46. The defendant's case is that Pravin never executed a Will. However, when she was asked exactly what her case was, she said that since her
father had died she could only speculate and all that she could say is that there is no Will (Question 460 of Dipti's deposition). When she was asked
whether her evidence was speculative, she answered that she could not say what the truth is (Question 461). On an overall assessment of the oral
evidence adduced by Dipti, I am not impressed with her contention that Pravin did not execute a Will. Elsewhere in her evidence she has deposed that
her father could not have executed a Will where the two children did not have equal shares. The defendant has also run a case of undue influence and
the document in question being a manufactured document. These are mutually destructive contentions. If indeed the defendant wanted to assail the
authenticity of the document, she should have asked for appointment of a handwriting expert for examining the signature of the testator on the
document in question. She never did that. In any event the case of Ashok having procured the Will from his father by exerting undue influence is not
substantiated by Dipti's evidence on record. Ashok was in U.S.A. when Pravin executed the Will in Calcutta.
47. As regards the mental capacity of the testator to execute a Will, the defendant has contended that Pravin's state of mind was not such that he
could have executed a Will. On a careful scanning of Dipti's deposition I find that she has at several places referred to failing physical health of the
testator but she has not adduced any evidence to support her contention that the testator was not in control of his mental faculties and/or was not in a
position to realize what he was doing while executing the document in question. The defendant has deposed that after suffering brain haemorrhage in
1998, the testator was depressed and this was aggravated by the brain surgery in 1998. However, no acceptable evidence has been adduced in
support of this contention. On the other hand, the plaintiff has produced a certificate issued by Dr. S.S. Nandi, Consultant Neuro-Physician on 11 May,
1998, certifying that Pravin's neurological state revealed normal mental functioning. The plaintiff also produced a report dated 30 October, 1998 given
by the testator's personal physician in U.S.A to the effect that Pravin had recovered after his brain surgery in January, 1998. The attesting witnesses
have also deposed that Pravin was fully alert mentally and was regularly attending office in Calcutta at the time of execution of the Will. The
presumption that the testator was of sound disposing mind at the time when he made the Will has not been displaced or rebutted by the defendant in
the facts of the case. On an overall analysis and appreciation of the evidence on record, I am unable to hold that Pravin did not have the requisite
mental capacity to execute his Will.
48. The other point urged by the defendant is that execution of the Will is shrouded by suspicious circumstances. I have noted above what according
to defendant the suspicious circumstances are. I have also noted the response of the plaintiff to such allegation. Learned Counsel for the defendant
put emphasis on the discrepancy between the probate petition filed in this court and copy of such petition that was made over by Ashok to Dipti's
Lawyer in U.S.A. This discrepancy, in my opinion has been sufficiently explained by the plaintiff. I have noted such explanation above and to avoid
undue prolixity I do not repeat the same here. There is nothing incredible about the explanation advanced by the plaintiff and the same is quite
acceptable.
49. In any event the suspicious circumstances or alleged mala fide conduct of the plaintiff as urged by the defendant, have no bearing on the act of
execution of the Will. In the case of Surendra Paul & Ors. v. (Mrs.) Dr. Saraswati Arora (supra), at Paragraph 9 of the reported Judgment, the
Hon'ble Supreme Court observed inter alia as follows:
It is not for us to fathom the motivations of a man. His actions and reactions are unpredictable as they depend upon so many circumstances. There is,
however, always some dominant and impelling circumstance which motivates a man's action though in some cases even a trivial and trifling cause
impels him to act in a particular way which a majority of others may not do. At times, physiological factors and the frame of mind in which he is, may
determine his action.
50. In Smt. Chinmoyee Shah v. Debendra Lal (supra) a Division Bench of this Court inter alia observed as follows at Paragraph 8:
It has been held even by this Court in the case of Ajit Chandra v. Akhil Chandra64 Cal WN 576: (AIR 1960 Cal 551) that the testator, who has full
testamentary powers and a disposing mind, cannot be dictated by the Court as to what is a fair and an urgent disposition. The Will is the Will of the
testator and he has, under the law, the freedom to give his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an
unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and
with a sound disposing and understanding mind. But once it is established that the testator was free and had a sound disposing mind, it is no longer the
duty of the Court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to the Court's own standard.
51. In S. Sundaresa Pai vs. Sumangala. T. Pai (supra), the Hon'ble Supreme Court observed at Paragraph 7 of the judgment inter alia as follows:
The uneven distribution of assets amongst children, by itself, cannot be taken as a circumstance causing suspicion surrounding the execution of the
will. One son was given bulk of immovable properties; another none; another half share in one immovable property; other half being given to the
plaintiff and another daughter and husband were given nothing. It is also not in dispute that some properties were given in gift to the plaintiff by her
mother during her lifetime. There was nothing unnatural.
52. In Ramabai Padmakar Patil (Dead) v. Rukminibai Vishnu Vekhande (supra), at Paragraph 8 of the judgment, the Hon'ble Supreme Court
observed as follows:
A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a
natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of
the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been
excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case
where the bequest has been made in favour of an offspring. In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it has been held that it is the
duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy
of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a
suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed. In Pushpavathi v.
Chandraraja Kadamba it has been held that if the propounder succeeds in removing the suspicious circumstance, the court would have to give effect
to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part the near relations. In Rabindra Nath Mukherjee v.
Panchanan Banerjee it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea
behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course,
it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High
Court for doubting the genuineness of the Will on the aforesaid ground was reversed.
53. Section 63 of the Indian Succession Act prescribes the manner of execution of unprivileged Will. The requirements are as follows:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by this direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other
person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature
or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
54. The burden of proving valid execution of a Will and that it is a genuine document is squarely on the propounder. He must establish that the testator
has signed the Will within his free will and having a sound disposition of mind and understood the nature and effect of the instrument on which he was
appending his signature. The testamentary capacity of the propounder must also be established. The propounder must explain to the satisfaction of the
Court suspicious circumstances, if any, surrounding the execution of the Will.
55. In the facts of this case I find that there is no real challenge to the authenticity of the signature that purports to be of the testator on the
authenticated photocopy of the Will. The two attesting witnesses have proved the testator's signature and have deposed that the testator signed the
Will in their presence and they signed the Will as witnesses simultaneously in the presence of the testator and in the presence of one another. As
noted above, no case has been made out that the testator lacked mental capacity to execute the Will or there were suspicious circumstances
surrounding the execution of the Will. In my opinion, all the legal requirements for executing a valid Will have been satisfied in this case. I am satisfied
that the Will was validly executed in accordance with law by Pravin and it is his last Will. Whether by her pleadings or by her evidence the defendant
has not been able to establish that Pravin lacked the mental capacity to execute the Will. On the contrary I am satisfied that Pravin knew exactly what
he was doing by executing the Will. He further recorded the reasons for executing the Will in the manner he did, in the subsequent document dated
30th September, 2000. The Will was executed without any fraud or undue influence being exercised on him. There were no suspicious circumstances
surrounding the execution of the Will.
56. In view of the aforesaid and taking a careful and realistic view of the facts of the case and the evidence on record I am satisfied that the
authenticated photocopy of the Will in question should be admitted to probate. Since the photocopy that is produced is an authenticated photocopy of
the Will in question, in my opinion, the question of limited grant until the original or a properly authenticated copy of the Will is produced as
contemplated in Section 237 of the Indian Succession Act, would not arise.
57. There shall be an order in terms of prayer (a) of the probate petition, i.e., probate of the last Will and testament dated 29 August, 2000 of the
deceased be granted to the plaintiff as the Executor named therein having effect throughout the territory of the Union of India. Costs of and incidental
to this proceeding incurred by the plaintiff shall come out of the estate of the deceased.
58. T.S. No.5 of 2007 is accordingly disposed of.
Urgent certified copy of the judgment and order, if applied for be given to the parties upon compliance of necessary formalities.
