Ramesh Chandra Ganguly vs Sudhamoy Ganguly and Others

Mitra, J.—The short question involved in this Rule is whether an unprobated Will is admissible in evidence in a proceeding other than a probate proceding. The opposite parties filed Title Suit No. 105 of 1982 in the 5th Court of the learned Munsif at Howrah for eviction of the petitioner treating him to be a licensee in respect of the suit premises. The case as made out by the opposite parties in the plaint inter alia, was that both the parties were known to each other for quite long time. In or about the year 1978 the petitioner approached the opposite parties for giving him an accommodation in the suit premises as a licensee to which the opposite parties agreed and the petitioner was accomodated as a licensee in respect of the room in the suit premises. The said licensee, however, was revoked by a notice dated January 25, 1982, asking the petitioner to vacate the suit premises on the expiry of the month of March, 1982 but the petitioner did not vacate. The petitioner contested the said suit by filing his written statement denying and disputing the case of the opposite parties as made in the plaint and claimed inter alia that he was a co-sharer in respect of the suit premises to the extent of 8/- annas share; that the suit premises originally belonged to Gopal Gangully and Boto Krishna Banerjee who contributed equally towards the construction of the house on the suit premises. Boto Kisto Banerjee was the brother-in-law of Gopal Ganguly and the opposite parties are the grandsons and grand-daughter of Smt. Annapurna Debi, one of the sisters of Boto Kristo Banerjee, while the petitioner is a son Copal Ganguly. Subsequently, the petitioner filed an application for amendment of his written statement introducing a new story regarding the costs of the construction of the said house of which the suit room is a part and stated that the costs were paid by the youngest sister of Boto Kristo Banerjee and her husband and they become owners of moity share in the suit premises. The said youngest sister Smt. Krishna Rani Ganguly was the petitioner''s step-mother. The said application for amendment of the written statement was filed after the plaintiffs were examined-in-chief. The plaintiffs filed objection to '' the said application for amendment but the said amendment application was ultimately allowed. In the said suit the opposite parties wanted to file some documents subsequent to the said amendment of the written statement and also wanted to re-call the P.W. 1 in order to prove some documents which included an unprobated Will stated to have been executed by the said Boto Krishto Banerjee on August 9, 1948 to which the petitioner objected by filing his written objection. The learned Munsif, however, by the impugned order allowed the said prayer of the opposite parties. Mr. Mukherjee, the learned advocate appearing on behalf of the petitioner submits that an unprobated Will cannot be admitted into evidence as no right as the executor or the legatee can be established in any Court of law under the said unprobated Will till a. Court of competent jurisdiction had granted probate of the said Will and referred to Section 21.3 of the Indan Succession Act in support of his said contention. Mr. Mukherjee further contends that a Will can only be proved in a Probate proceeding and that is also to be proved strictly in accordance with Section 68 of the Evidence Act by one of attesting witnesses to the said Will and referred to the dicision in the case of Rammol (Das) Coch v. Hakal Kali Kochini (22 CWN 315) in support of his said contention. Mr. Mukherjee also referred to the in the case of Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, where the Supreme Court has stated that the mode of proving a Will does not originally differ from proving any of document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. Mr. Mukherjee further referred to a decision of the Kerala High Court in the case of Geevarghese Geevarghese and Another Vs. Issahak George and Others, , in support of his contention with reference to Section 213 of the Indian Succession Act that one cannot establish right under a Will unless Probate is granted to it and lastly referred to an unreported judgment of this Court in the case of Bhudeb Kumar Dhang & Anr. v. Bijan Behari Dhang, having died his legal representatives Smt. Santi Rani Dhang & Ors., (FA 125 of 1980) where M.N. Roy and A. C. Sen Gupta 33., reiterated the view taken by the Supreme Court in Sashi Kumar Banerjee & Ors. case (Supra) that the mode of proving a Will should not ordinarily differ from the mode of proving any other document, with the exception that a Will requires the special requirment of proving attestation in terms of the presumption u/s 63 of the Indian Succession Act. Mr. Mukherjee lastly submitted that in view of the Section 57 of the Indian Succession Act all Wills executed by a Hindu after 1st January, 1927 have to be proved as per the provisions of Section 63 of the said Act.

Mr. Haldar, the learned advocate appearing on behalf of the opposite parties, however, submits that an unprobated Will can be admitted into evidence for collateral purposes provided, of course, that it is not for proving the rights of the parties as Executors or legatees under the said Will and referred to the decisions in 18 CWN, 116, 20 CWN 122; 42 CLJ 280 and AIR 1985 (NOC), 177 (Calcutta).

In the case of Basunta Kumar Chuckarburty v. Gopal Chunder Das (18 CWN 1136) D. Chatterjee and N. R. Chatterjee, JJ., relying on the earliest decision on the point in ILR 4 Cal 508 (Smt. Sarbamangola Debi v. Mohendra Nath) observed inter alia, that the decision in ILR 4 Cal 508 is an authority for holding that a Will of which probate has not been taken, may be proved in a proceeding other than a proceeding, under the Probate Act, but a Will uncovered by a probate or letters of administration can not prove that anybody named therein has title to the estate of the testator. Sir Asutosh Mukherjee and Beachcroft, 3.3., in the case of Achyuta-nanda Das v. Jagannath Das, (20 CWN 122) referring to the case of Sm. Surbamangala Devi v. Mohendra Nath (supra) held in clear terms that notwithstanding Section 187 of the Indian Succession Act, 1865 (which corresponds to Section 213 of Indian Succession Act, 1925) which is incorporated in the Hindu Wills Act, a Will not proved in the Probate Court may be used in evidence for a purpose other than the establishment of a right as executor or legatee. Sri Nalini Ranjan Chaterjea and Pamton, 33., in the celebrated case of Rani Prayag Kumari Debi & Ors. v. Siva Prosad Singh, (42 CLJ 280) have also held inter alia that a Will not proved in the Probate Court may be cited in evidence for the purpose of showing the intention of the testator with regard to his estate. Section 187 of the Indian Succession Act, which is incorporated in the Hindu Wills Act, does not debar the use of an unprobated Will in evidence for a purpose other than the establishment of a right of a executor or legatee under the said Will. Same view also has been expressed by Amitabha Dutta J., in the case of Kumari Anjali Banerjee v. Subodh Lal Banerjee, MR 1985 (NOC) 177, Cal.

It is quite clear that in order to prove title under a Will either as executor or legatee Section 213 of the Indian Succesion Act, 1925 would automatically come into play and the mode of proving the Will in the Probate proceeding are governed by the provisions of Section 63 read with Section 57 of the said Act. The judgment cited by Mr. Mukherjee all relate to the proving of a Will in the Probate proceeding but those have got no bearing with the facts and circumstances of the present case and therefore are not at all relevant for the purpose of deciding the point at issue before me.

In the present case the petitioner by way of amending the written statement alleged that he was a co-sharer of the suit property by virtue of inheritence from his step-mother, the youngest sister of Buto Krishto Banerjee as his step-mother and her husband contributed to the construction of the house of which the disputed room forms part. Only to meet the said allegation the opposite parties sought to prove the unprobated Will of Boto Krishto Banerjee wherein the testator had stated that he with his own money had constructed the disputed house. The opposite parties did not want to prove the unprobated Will for any other purpose or for the purpose of proving their title under the said Will but merely for the purpose of proving the intention of the testator regarding his estate and/or for proving certain statements made by the testator therein regarding acquisition of his estate and for such collateral purpose or purposes they are quite entitled to bring the said unprobated Will into evidence. The judgments in ILR 4 Cal 509, 18 CWN 103, 20 CWN 122 and 42 CLJ 480 as discussed above are all authorities on the point that for collateral purposes but not for proving title under the Will of an executor or legatee an unprobated Will can be admitted into evidence in proceeding other than a probate proceeding. In the facts and circumstances of the case as stated above I therefore find no reason to interfere with the impugned order. The Rule is accordingly discharged without any order as to costs. Let the records be sent down to the Trial Court forthwith by a special messenger at the cost of the opposite party, such cost is to be deposited within one week after the summer vacation.