Mukul Chatterjee and Others vs Bhabani Shankar Chatterjee and Another

Gurusharan Sharma, J.—One Gouree Pado Chatterjee of Chaibasa got a son. Kamakhya Pado Chatterjee from his first wife, Smt. Sulochana Debi, who predeceased him in the year 1919. He also got two daughters and two sons, namely, Purnima Devi. Nilima Debi alias E(sic)y, Bitabani Shankar Chatterjee alias Chandan and Sanat Kumar Chattopad-hyaya. from his second wife, Smt. Shibani Chatterjee alias Debi. He died on 25.7.1986.

After his death, his two sons, Bhabani Shankar Chatterjee and Sanat Kumar Chat-topadhyaya filed Probate Case No. 25 of 1989, u/s 270 of the Indian Succession Act, 1925, for grant of probate of the Will said to have been executed by him on 7.7.1984.

In paragraph 11 of the probate petition, names of near relatives of the deceased testator, namely his widow Shibani Chatterjee, eldest son, Kamakhya Chatterjee and two daughters. Purnima Debi and Nilima Debi were mentioned.

Probate case was filed on 1.5.1989. It was admitted on 9.5.1989 and notices were issued to the aforesaid near relatives of the testator fixing 29.5.1989 for appearance. Notices were served validly. Only one of them, namely. Kamakhya Pado Chatterjee filed objection to the grant of probate on 29.11.1990.

The said Kamakhya Pada Chatterjee died on 7.6.1991. His name was expunged and by order dated 12.2.1992, his widow and two daughters were substituted in his place.

On 16.7.1993 Probate Case No. 25 of 1989 was converted into Title Suit No. 15 of 1993. Substituted defendants 1 to 3 filed joint written statement on 6.9.1995 and contested the suit.

Objector''s contention was that grant of probate of unregistered Will was barred under, Section 16(2)(iii) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. 1961 and hence probate can be granted. Besides that the alleged Will was a forged document and did not represent true and actual Will, testament and disposition of the testator in respect of his estate, consequent to his death as it was got executed by the plaintiffs by undue influence, coercion, fraud and pressure upon the testator. The testator was about 89 years old and was absolutely under plaintiffs'' influence by virtue of his being totally dependent upon them at the time of execution of the Will and it cannot be said that testator was in possession of his full sense and faculties on account of old age at that time.

The Will is said to have been executed on 7.7.1984 and testator was alive for more than two years thereafter but no step was taken for its registration, which behind his testamentary capacity. Objector''s further case was that Will was not properly attested as required by law.

A perusal of the Will (Ext. 2) reveals that it was typed by one Rabi Patro. Date of its execution and age of testator were filled in on the blank space at page 1 by testator himself and certain minor corrections including of plot number were also done by him. The testator put his initials on each pages 1 to 6 and his full signature with date on the last page No. 7 as well as on each of the seven maps attached thereto. On its last page No. 7 three attesting witnesses, namely Dr. Kirti Choudhary (PW 2) Sri Satyeshwar Roy (PW 1) and Sri Bishwaha Das put their full signatures with date.

PW 1 was one of the attesting witnesses on the Will. His signature thereon was marked as Ext. 1 and signature of testator was proved and marked as Ext. 1/A. This witness stated that on each page of the Will in question, testator had put his initials in his presence. Those initials were marked as Exts. 1 /B to 1 /G. He further stated that at the time of execution of Will and attestation other attesting witnesses, namely. Dr. K. Choudhary and Sri B. Das were also present and one of the beneficiaries, namely, plaintiff No. 2 was also there. Both the attesting witnesses had put their signatures at the time of execution of the Will in his presence.

PW 2 is another attesting witness. He claimed to have known the testator and whenever he was at Ranchi, in course of his illness, had treated him many times. According to this witness, before his death, the testator was quite sound and alert and it was not correct to say that at the time of execution of the Will, on account of old age. he was not in full consciousness. He admitted that the testator had put his signature on the Will in his presence and the other two attesting witnesses had also put their signatures on the Will in his presence.

Both the attesting witnesses stated that they had gone there on being called by the testator himself and on his request they had put their signatures on the Will.

PW 3 is one of the beneficiaries, who admitted in his evidence that his father had executed a registered Will earlier in the year 1978, which was later on rescinded by him and thereafter another Will was executed on 7.7.1984 (Ext. 2) which was his last Will. According to him, one Ravi Patro, typist, had typed the Will in his presence and on each page the testator had filled in the blank spaces and made correction in his own pen and he also put his initials on each and every page thereof and on the last page, he put his full signature. This witness has further stated that in 1982 his father got prepared seven maps by an Architect, Mr. B.M. Mitra, of Chaibasa. He had also put his full signature on each of the seven maps, which were annexured and made part of the Will.

DW 1 was a business man of Calcutta. He claimed to have known Debi Pado Chatterjee and Roma Chatterjee. He has proved signatures of said Debi Pado Chatterjee and Roma Chatterjee on a Will dated 27.3.1985, which was executed in favour of Kamakhya Pado Chatterjee and was marked as Ext. A. This witness was one of the attesting witness to the said Will. Another attesting witness thereof was examined as DW 2.

Wife of late Kamakhya Pado Chatterjee got examined herself as DW 3. She proved one registered envelope, whereby Ext. A was sent to her, which was marked as Ext. A/1 and four letters, executed by Debi Pado Chatterjee were marked as Exts. B to B/3 at her instance. She deposed that Ext. 2 was not executed by Gouree Pado Chatterjee according to his wish, while he was at Ranchi it was got executed by him on the pressure of Khok-han. Chandan and Shibani Chatterjee. She further claimed that Debi Pado Chatterjee had already executed a Will in the year 1985 in favour of her husband in respect of his share in Rakhal Bhavan, Chaibasa and. therefore, (sic)pate of the Will in question should not be granted as Gouree Pado Chatterjee alone had no authority to transfer said Rakhal Bhavan, which belonged to all the four brothers, namely, Uma Pado Chattopad-hyaya, Gouree Pado Chattopadhyaya, Debi Pado Chattopadhyaya and Abhay Pado Chattopadhyaya, Gouri Babu became too old and was very ill. His eye sight had become very weak and he was not in a position to understand the matters due to oldage. He left his practice as lawyer at Chaibasa and had came to Ranchi to meet with his youngest son.

A perusal of Will (Ext. 2) reveals that on each page thereof the testator himself filled up date of execution as well as his age in the blank space and at page 4 thereof also made certain corrections in respect of Survey Plot number. He nut his initial on each page and done some minor corrections on its last page and put his full signature thereon. All the seven maps, which were got prepared by the testator were attach to the Will and on each of them the testator put his full signature.

It is true that in probate proceedings court has no jurisdiction to enquire info the rights of testator in respect of the properly conveyed under the Will.

In my opinion, it was proved that Will was executed by the testator and he had put his initials on each page and his full signature on its last page as well as on each page of the annexures thereto and execution was made in presence of the attesting witnesses, two of whom were examined as PWs 1 and 2 and proved that the testator had executed the Will, Ext. 2 in their presence.

So far as objector''s contention of execution of Ext. 2 under the influence of second wife and two sons of testator was concerned, on the basis of materials on record 1 find that testator had executed the Will according to his desire and not under influence of anybody, including his second wife and two sons.

Mr. A.K. Lall, counsel for appellants, in support of his contention that the Will being unregistered, no probate could have been granted, placed reliance on a decision in Smt. Dil Kuer and Others Vs. Hari Chandar Prasad and Others, .

One of the objects of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 is to make provision for fixation of ceiling on the extent of agricultural lands. In other words, to limit the area of agricultural lands to be held lawfully by any person and to acquire surplus land by State Government and dispose of the same in the larger interest of the community. Chapter V provides restrictions on further acquisition of agricultural lands by transfer etc. Section 16(2) (iii) provides that no land shall be transferred, exchanged, leased, mortgaged, bequeathed or gifted without a document registered in accordance with the provisions of the Indian Registration Act. 1908.

In Smt. Dil Kuer @ Akali Devi and others, (supra) the unregistered will related to agricultural lands and it was apparent that on the death of testator, the provisions of said will would have amounted to disposition of his estate in favour of the beneficiaries or legatees etc, which situation was apparently intended to be restricted by the scheme of the said Ceiling Act. So it was held that Section 16(2)(iii) barred grant of Letters of Administration in respect of such an unregistered Will.

Ratio of the aforesaid decision, in my opinion, is not applicable in the present case as subject matter of Will (Ext. 2) is a residential house in urban (town area), where the ceiling Act was not applicable. Legal requirement of registration of a Wilt was considered by the Apex Court in Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, , wherein it was observed that there was nothing in law which requires registration of a Will and Will are in a majority of cases not registered at all. To draw any influence against genuineness of the Will on the ground of its non-registration was wholly unwarranted in my view provisions of Section 16(2)(iii) of the Ceiling Act was an exception to the general rule enacted for special purpose of the scheme of the said Act for agricultural lands.

The court of probate is only concern with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of execution the testator had sound disposing mind and capacity. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.

Mr. Lall further submitted that at the time of execution of the Will not only testator was under the influence of hi1 s youngest son, with whom he was living at the relevant time at Ranchi on the ground of protracted illness, he was also not in a position to take independent decision and understand legal impediments on account of his old age. In this regard, I find that testator had although executed a registered Will in the year 1978, but later on he changed his mind and in the year 1982 itself got prepared several maps and executed another Will on 7.7.1984 and annexed those maps and made them part of the Will (Ext. 2). A perusal of aforesaid maps shows that house in question was divided into two parts for two persons separately and recitals in the Will were made on the basis of said allotments. As such it is apparent that testator has already planned to give the house property in question to two persons in the year 1982 itself and accordingly executed the Will (Ext. 2) in 1984 and it can''t be said that he was under influence of his youngest son or second wife.

Mr. Lall placed reliance on a decision of Orissa High Court in Nilambar Bewa Vs. Fagu Prusty, , and submitted that on account of non-examination of typist, who was an important witness and for the reason that will was not registered during the life time of testator and did not see light of the day for about three years after death of testator, gave doubts are created even as regards the truth of the case relating to execution and attestation. In my opinion, the said decision was also not applicable in the present case, because here there was no question of non-examination of the scribe but of the typist only and registration was not compulsorily required and further no period of limitation is prescribed for initiating a proceeding for grant of probate of a Will.

In the present case, evidence of attesting witnesses (PWs 1 and 2) can''t be brushed aside lightly and could be safely relied on as correct. I See nothing unnatural or unefficious about the Will (Ext. 2) in the evidence brought on record.

It is well settled that when attestation of execution of the Will is to be proved, burden of proof that it was executed under undue influence is on the objector and on the basis of evidence adduced by objector, discussed above, I am of the opinion that the objector completedly failed to prove it.

In such circumstance, I find no reason to interfere with the impugned judgment/order.

There is no merit in this appeal, it is, accordingly, dismissed, but without costs. Let lower Court records be sent down to the court below.

Appeal accordingly dismissed.