Shyamal Kumar Chatterjee vs Rabindra Narayan Banerjee and Others

Kalyan Jtoti Sengupta, J.—The appellant before us failed to obtain Letters of Administration with the copy of the Will annexed before the learned Trial Judge who dismissed the application, hence the judgment and decree of dismissal is sought to be impugned. One Sudhir Kumar Chatterjee being the father of the appellant, died allegedly leaving a holograph will dated 10th September 1964, on 22nd September 1969. This was registered on 26th November 1966. By this testamentary document the said deceased appointed one Nikhil Chandra Banerjee sole Executor who died on 19th September 1982, as such no step could be taken for obtaining grant of probate by the said named-executor. The appellant being the beneficiary of the will discovered the will in or about third week of January 1992 and applied for grant of probate in or about February 1992. All persons interested were cited. Rabindra Narayan Banerjee, Sm. Jhunu Mukherjee and the defendant Nos. 3 and 4 lodged caveats. However, the defendant Nos. 1 and 2, Rabindra and Jhunu, did not contest the grant, rather endorsed consent. The respondents Debrani and Sudkashina contested the application for grant by filing written statement. Debrani is the widow of Amal, the pre-deceased elder son of the testator, and Sudakashina is her daughter. The principal justification for delay in applying for grant was ignorance of the whereabouts of the will. Furthermore, the executor during his life time did not take any step. In the written statement it is alleged that the said will is not a genuine document rather it was procured by the applicant exercising undue influence, holding out threat and coercion. The will is also bad in law as the disposition of the same is unnatural by reason of the fact that there was no reason, at least assigned by the testator in the will, as to why the daughter in law and grand daughter had been excluded totally. Incidentally, it is appropriate to note that the wife of the testator was given life-estate and after her death, Shyamal the applicant was to get absolutely all the estate left behind by the testator subject to Rabindra and Jhunu having right of residence. According to the contesting defendant/respondents after death of Amal under mysterious circumstances they were driven out from the house by Shyamal and immediately thereafter the said will was procured aiming to deprive them. The learned Trial Judge considering the contention and rival contentions of the parties framed the following issues: (1) Is the Suit maintainable in its present form and law?

(2) Did Sudhir Kumar Chatterjee leave behind any will as alleged by plaintiff? If so, was it the last will of Sudhir Kumar Chatterjee ?

(3) Was the disputed Will manufactured by plaintiff in collusion with scribe witnessed and identifier of the same and others as alleged by the defendant No. 4 ?

(4) Was the testator of the will in testamentary capacity to execute the same?

(5) Was the will obtained Under coercion, undue influence, intimidation and fraud as alleged by defendants?

(6) Is the plaintiff entitled to have any letters of administration in regard to the will in question as claimed by him?

The learned Judge did not address nor answer the issues separately except issue No. 6. He found it convenient to discuss and decide all the first five issues together. The learned Trial Judge did not accept execution and attestation of the will. He found, upon reading and appreciation of evidence, that due execution and attestation of the will was not proved. He further found suspicious circumstances in attestation- and execution of the will because of the date of execution of the will and the Unnatural death of the elder brother of the appellant and the same was not removed by the applicant. He was of the opinion that the total deprivation of respondents/ contesting defendants suggested undue influence. The learned Trial Judge entertained doubts as to the genuineness of the will by reason of delay in making the application. The evidence of the attesting witness taken on commission", was not accepted by him as it was done ex parte.

Learned Counsel for the appellant submits that the dismissal of the application by the learned Trial Judge was absolutely on a wrong footing. He contends that there was sufficient reason for not making the application within reasonable time as the applicant is not the executor nor was he aware of the existence of the will. The will was traced sometime in the month of January 1992. The executor in gross breach of his duty under the statute failed to propound the will. The learned Trial Judge, despite evidence, had absurdly found that the will was not executed or attested. The attesting witness was examined on commission and he has categorically proved the attestation and execution of the will; that apart, PW 1 namely one Surath was present at the time of execution and attestation of the will. He submits that Surath''s categorical evidence in corroboration of the evidence of the attesting witness could not be dented in the cross examination. Surath had proved that his father duly attested the signature and at the time of taking evidence of his father, he was present. The story of forgery, undue influence are absolutely false and the same are contradictory in nature. According to him the nature of the disposition made by the testator cannot be a ground for inferring that the will was not genuine. The testator consciously had excluded the defendant No. 3 and defendant No. 4 as these two persons never, even before death of Amal or thereafter, resided with the testator. They left the house for good and the testator tried to bring them back. The will is natural as the testator had given life-estate to his widow and thereafter the property had been given to the appellant subject to the limited rights of the two children of the testator''s predeceased daughter. There is a large number of decisions wherein it has been held that if the testator consciously makes any unnatural bequest the will cannot be said to be bad in law. He further submits that time is not always a factor with reference to grant of Letters of Administration. The defendant Nos. 3 and 4 despite notice did not appear before the learned commissioner who took evidence on commission of the attesting witness. The learned commissioner was examined and he has categorically stated so. Under such circumstances the evidence of attesting witness cannot be hit under the provision of Section 33 of the Evidence Act. In support of his submission he has relied on the following decisions :

2002(1) CHN 30

AIR 1995 SC 185

Satya Pal Gopal Das Vs. Smt. Panchu Bala Dasi and Others,

2002 (2) CHN 13 (paragraphs 8-9)

2003 (2) CHN 149 (paragraph 18)+.

Learned Counsel appearing for the contesting respondents submits that the learned Judge upon appreciation of evidence found that the execution and attestation of the will had not been proved. This Court, therefore, should not interfere with the same. The evidence of the attesting witness was ex parte and no chance of cross examination was given by the learned commissioner, therefore the testimony cannot be accepted under the provision of Section 33\\of the Indian Evidence Act. The testator died on 22nd September 1969 while this application was made in 1992, delay of 21 years was good enough to hold that this document is forged and manufactured and this delay itself is a suspicious circumstance and the same has not been removed by cogent evidence. In support of his submission on the question of delay he has relied on the following decisions :

In the matter of S. Krishnaswami and etc. etc.,

Kalyan Singh Vs. Smt. Chhoti and Others, :

AIR 1976 Cal. 377.

He contends that it is settled law that the onus is on the propounder to prove execution and attestation of the will and the plaintiff has failed to discharge this onus with cogent evidence. In support of his contention he has sought reliance on a Division Bench Judgment of this Court reported in AIR 1976 Cal 377 and a decision of the Orissa High Court reported in AIR 1989 NOC 189. The appellant has failed to remove suspicious circumstances. It is settled position of law that duty of removal lies upon the propounder and, he has drawn our attention in this connection to the following decisions of the Courts :

AIR 1989 NOC 1189 :

Vijayben Vashram Vs. State of Gujarat and Others,

He further submits that ex parte evidence of the attesting witness is not relevant. He has referred to two decisions of the High Courts reported in Phool Chand Vs. Amrit Lal, and Aziz Ahmed Khan Vs. I.A. Patel, .

His next contention is that registration of will does not give rise any presumption of its genuineness and registration itself is not sufficient to dispel suspicion. In support of his submission he has referred to a decision of the Delhi High Court reported in AIR 1982 Del. 582. According to him the will has to be proved like any other document under the provisions of Evidence Act besides proving the attestation. This proposition of law has been stated by the Division Bench Judgment of this Court reported in AIR 1976 CAL 377.

In this appeal appreciation of evidence and findings of the learned Trial Judge passed therein is seriously questioned. We have carefully gone through the respective pleadings and the evidence adduced by both the parties. We have heard the argument of the learned Counsels. The moot question in this appeal is as to whether the learned Trial Judge has refused to grant letters of administration rightly or not; and further whether, based on the evidence, a reasonable or prudent man could come to conclusion as the learned Trial Judge has arrived at.

The first question is as to whether the delay in making an application is a factor for refusal to grant Letters of Administration.

The appellant has said that in the 3rd week of January 1992 the will was traced out hence there was delay for filing the application. This has also been proved by him in his evidence. In the cross examination we have not able to find any serious challenge to the aforesaid claim and proof thereof. In this case the applicant is the beneficiary of the will along with his mother who has been given the life estate. The named executor did not take any step for obtaining probate as under the law only the executor can take such step. Had the applicant been the executor, the delay could have been fatal and it would have been one of the factors for suspicious circumstances. According to us in this case delay in making this application is not so inordinate for which the grant should be refused on that ground.

Learned Counsel for respondent has cited decisions of Madras High Court and Supreme Court and also of this Court (AIR 1991 SC 214, Kalyan Singh Vs. Smt. Chhoti and Others, ). In all these cases the executor himself applied for grant after a long time and those were the cases for obtaining probate of the will not for application for granting of letters of administration. The beneficiary under the law cannot take any step unless the executor renounces and/or refuses to do so. Here we do not find that any such case has been made out. The will was not traceable as such the applicant could not take any step. Therefore the decisions cited by the respondents are not applicable in this case. According to us delay in making application without any explanation is certainly one of the factors for entertaining suspicion and longer the delay, the stronger is the suspicion. We find an explanation was offered and when there was no contrary proof we do see no reason not to accept the same. The learned trial judge could not come to such findings of unexplained delay on the given facts. In our opinion the appellant has been able to discharge the burden of removing suspicion as far as delay is concerned.

Now coming to the question of execution and/or attestation of the will, one of the attesting witnesses was examined in Court on commission. The learned commissioner was also examined as a witness being PW-3 and he was also cross examined. He has proved in his evidence that he duly served notice upon the advocates of the appellant. Therefore, the appellant did have knowledge of holding commission. Thereafter, the commissioner proceeded to record evidence of the attesting witnesses at his reside ice. The learned commissioner has filed a report of. commission. In his report he has stated he sent notices to the parties as well as respective lawyers by registered post with acknowledgment due and fixed date of recording evidence on 18th March 1993. On 18th March 1993 an adjournment petition was filed on behalf of Debrani Chakraborty. Thereafter the date was fixed on 23rd March 1993. He went to the locale, he could not find any of the defendants nor their advocates after waiting for 45 minutes he decided to proceed with commission ex parte as because on that date in spite of notices no request for further adjournment was made so he completed his commission of examining witness. This report was proved by him and the same was marked Ex.6. Thus it is clear that the contesting defendants in spite of notices being served did not come forward to cross-examine the witness. The learned commissioner was cross-examined and in the cross examination nothing could be suggested to disbelieve his testimony or to discredit him in any manner. The learned Trial Judge in our view has ignored the aforesaid factual aspect. The attesting witness in his evidence had stated that in his presence the testator signed and executed the will, thereafter one Gourangababu signed and then he signed as witness. The testator saw him signing. He has also stated that Gourafigababu also signed as an attesting witness. He deposed that the physical and mental condition of the testator was normal and good. He deposed that he had heard that the will was registered thereafter. This portion of his testimony is not admissible in evidence. But his testimony that the will was executed in the presence of attesting witness namely Bimal Chandra Banerjee because both the testator and this witness were on visiting terms. It has been urged hat the acceptance of this evidence is to be scrutinized in the context- of Section 33 of the Evidence Act. The learned Trial Judge also refused to accept the evidence of this attesting witness relying on the provision of Section 33 of the Indian Evidence Act 1872. We fail to understand how provision of Section 33 of the Evidence Act is applicable in this case. The said Section is set out hereunder.

Section 33 : ''Relevancy of certain evidence for proving, in subsequent proceeding the truth of facts therein stated - Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable:

Provided-

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding."

It is clear from ab6ve Section that Section 33 of the said Act is applicable in a case where evidence of a particular witness given in previous judicial proceedings in Court or-before any person authorized by the law to take it and the same evidence, is sought to be relied on in a subsequent Judicial proceeding or at a later stage of the same judicial proceedings and on the facts and circumstances namely in case of death, non-availability of the same person or he being ''incapable of giving evidence or is kept out by the adversaries or for other reasons mentioned in section itself. Here, factually, during trial of the testamentary proceedings the attesting witness was examined on commission and later he did. His evidence was not taken in any previous proceedings or at earlier stage of the same proceedings. The other factor for acceptance of the relevancy of this evidence is that proceedings must be between the same parties or their representative in interest and further the adversary s in the first proceedings must have the right and opportunity to cross examine.

Factually in this case the contesting defendants had had opportunity to cross examine as the notice was served by the learned commissioner and in fact on an application made by the appellant adjournment was granted but on the adjourned date subsequently they did not turn up. Therefore it cannot be said the attesting defendants, namely adversary parties, had no opportunity to cross examine.

It is true ordinarily evidence of a particular witness is complete when, cross examination is done. But when cross examination is not done in spite of chance being given, evidence recorded in examination in chief cannot be thrown away, and has to be considered by the court. Upon consideration of the same if it is found that the facts in issue are not proved then such evidence should not be accepted. But if the facts in issue are proved by mere examination in chief, the evidence has to be accepted. In such situation it hardly makes any difference if there was any cross examination. Under the Evidence Act all that is required is the opportunity being given to cross examine. It is not the law that cross examination must be done and in absence of cross examination the evidence recorded in chief cannot be accepted. Had it been so then the evidence can never be received or accepted by the Court as the adversary will always skip cross examination in order to render the evidence recorded in examination in chief nugatory and infructuous and render the case unproved. Therefore, the views of the learned Trial Judge in connection with the attesting witness, in our view, were based on total misreading of Section 33 of the Evidence Act. The learned Judge did not find that opportunity of cross examination was not given.

The testimony of the attesting witness has also been corroborated by his son who is a disinterested person and he has not derived any benefit from the will (PW 1). He has stated categorically that he was present at the time of attestation and execution of the will which took place at his house; he had witnessed the same. He proved the signatures of his father. He stated that the testator had voluntarily executed the said document. We fail to understand how the learned Trial Judge could incorrectly record that the PW 1 was not present. Even if the testimony of the attesting witness is kept aside still the evidence of PW 1 is very sound and believable.1 It is settled position of the law that when an attesting witness is not available the will can be proved by other witness and this has been done here also.

We therefore hold that the will had been duly executed and attested as required under the law. Moreover it is a holograph one and the same has been registered subsequently. The will was executed on 10th September 1964 and it was registered on 26th November 1966.

The time taken between execution and registration, is more than two years. A holograph will is itself, in ordinary circumstances, a strong inference as to genuineness of the Same and in this case it is genuine as it was registered after two years by the testator himself. Had it been a manufactured document and a product of undue influence, as alleged by the appellant, then the same would not have been registered by the testator himself after two years as there was ample chance and opportunity to revoke or not to accept the same. There was no serious challenge against the registration itself alleging undue influence or coercion or intimidation. In absence of such allegation no one can entertain such case. Obviously, without hesitation the Court should have accepted that the testator was in sound mind to make the will and to retain the same as well. As such he decided to get it registered. He could have changed his mind by revoking the same had it been such as has been alleged by the contesting defendants/respondents. Therefore the allegation of undue influence, coercion or forgery (though these are contradictory by themselves) are absolutely misplaced here. Thus the appeal is allowed. We set aside the judgment. Now the learned Court below will grant Letters of Administration as applied for. Let the lower Court records be sent down by the department forthwith.

Sanjib Banerjee, J.

I agree.