Smt. Baby Dey vs Shri Birendra Kr. Dutta and Another

Jayanta Kumar Biswas, J.—Claiming to be sole executrix, named in the last will of one Ananta Kumar Dutta of 21, R.K. Chatterjee Road, P.S. Kasba, Kolkata-700 042 dated August 16, 2000, Baby, one of Ananta''s children, filed an application dated May 17, 2002 seeking probate with effect throughout the Union of India.

The application was registered under P.L.A. No. 206 of 2002. Case stated in it, briefly, is this. Ananta, who died on March 26, 2001, was governed by the Dayabhaga school of Hindu law. On August 16, 2000 he executed his last will at 21, R.K. Chatterjee Road, P.S. Kasba, Kolkata - 700 042 in presence of four attesting witnesses one of whom was Timir Dutta, his youngest son. A declaration dated May 17, 2002 duly signed by Timir is an annexure to the application that is also accompanied by an affidavit affirmed by Timir on May 17, 2002. Ananta was survived by his three sons and three daughters, namely, Birendra, Ashoke, Timir (the sons), and Rekha, Subhra, Baby (the daughters). It is necessary to issue special citation to Birendra, Ashoke, Rekha and Subhra.

By an order dated April 22, 2003 directions were given for issuing special and general citations. On service of special citation Birendra, Ashoke and Subhra jointly lodged a caveat on July 29, 2003. Ultimately, while Ashoke abandoned the caveat, Birendra and Subhra jointly filed their affidavit in support of the caveat on September 24, 2003.

Case stated by Birendra and Subhra, in the affidavit, is as follows. At the time of death Ananta was eighty-six. He was a permanent resident of village-Madhubati, post office - Balarambati, police station - Singur, in the district-Hooghly, but used to visit 21, R.K. Chatterjee Road, the residence of his eldest son Birendra, and stay there. Because of bad behaviour of Baby and her husband, he suffered a mental setback and was not in a normal state of mind. The Will, if actually executed by him, then Baby and her husband Madan must have dictated its execution; this is apparent from the fact that Baby has been named as its sole beneficiary. The attesting witnesses, except Timir, were unknown to Ananta. Their signatures were obtained by Baby''s husband with the help of some political person and through his own| physician. Ananta had his own family doctor who used to treat him during his lifetime. It has been falsely claimed that the Will was executed at 21, R.K. Chatterjee Road. On August 16, 2000 Ananta was not staying at 21, R.K. Chatterjee Road. The Will was never executed at 21, R.K. Chatterjee Road Hence the question of visiting the premises by the attesting witnesses does not and cannot arise. Mr. N.C. Chowdhury never visited the premises. He signed as an attesting witness at the request of his junior, Mr Anil Bera, who is the draftsman of the Will. Mr. Jayanta Kr. Deb another attesting witness was not present either when the Will was executed. The residential plot, the bequest, allotted by the State of West Bengal to Ananta, who did not comply with the terms and conditions of the lease, could not be disposed of by him by executing a Will.

In view of the caveat and the affidavit in support thereof filed by Birendra and Subhra, by a Master''s Summons dated March 3, 2004 Baby filed G.A. No.862 of 2004 dated February 26, 2004 praying for an order converting the 1 probate application to a contentious cause. By an order dated March 22, 2004 G.A. No. 862 of 2004 was allowed. Consequently, the probate application was converted into a contentious cause and this suit was registered.

Then by an order dated September 12, 2007 the following issues were framed and recorded: - "1. Has the Court jurisdiction in its Original Side to entertain the instant testamentary suit? 2. Did the testator execute the Will dated 16th, August, 2000 as per law ? 3. Had the testator mental alertness -and physical capacity to execute the Will and whether the same was executed voluntarily ? 4. Was the Will in question executed by Ananta Kumar Dutta purported to be his last Will and testament ? 5. Is the plaintiff entitled to the reliefs as prayed for ?" Liberty was given to the defendants to ask for framing and recording of an additional issue that Ananta had no right to bequeath the property.

While in support of the probate application Timir and Baby have deposed as PWs. 1 and 2 respectively; opposing the prayer for probate, and in proof of the case stated in the affidavit filed in support of their caveat, Birendra and Subhra have deposed as DWs. 1 and 2 respectively, and they have also subpoenaed the Kolkata Metropolitan Development Authority whose law officer, DW.3, has produced the agreement dated August 24, 1995 between the development authority and Ananta, the connected guarantee band for payment of the unpaid premium, and has given evidence of the purport of the terms and conditions on which the development authority agreed to grant Ananta licence to use the residential plot measuring 126 square metres for ninety-nine years.

The first issue is "Has the Court jurisdiction in its Original Side to entertain the instant testamentary suit ?" Mr. Deb, counsel for the defendants, as not pressed this issue, and I find no reason to say that this Court, on its original side, does not have jurisdiction to entertain the suit. The issue is, accordingly, answered in the affirmative.

The second issue is "Did the testator execute the Will dated 16th August, 2000 as per law?" Mr. Deb has submitted that the suit should be dismissed for the reason that the propounder has failed to prove the execution of the Will as the law demands. He has argued that it will appear from Timir''s evidence that the Will was not executed according to the provisions of section 63(c) of the Indian Succession Act, 1925. In support of his contention, apart from relying on section 63(c), he has strongly relied on Girja Datt Singh Vs. Gangotri Datt Singh, , Moonga Devi and Others Vs. Radha Ballabh, , and Janki Narayan Bhoir Vs. Narayan Namdeo Kadam,

Mr Chowdhury, counsel for the plaintiff, has submitted that for ascertaining whether Timir''s evidence is sufficient to prove due execution of the Will, the whole of his evidence, and not only chosen parts thereof, should be considered. For showing what is meant by the expression "attesting witness", he has relied on Seth Beni Chand (Since Dead) Now by L.Rs. Vs. Smt. Kamla Kunwar and Others, . His argument is that since the Will was admitted without any objection, in view of what was said in P.C. Purushothama Reddiar Vs. S. Perumal, regarding the effect of tendering a document, it should be held that the contents of the Will have been automatically admitted, and consequently, the defendants, who have chosen not to give any evidence to disprove the contents of the Will, could give evidence only in rebuttal. To show what is the effect of Timir''s affidavit, he has relied on K.M. Varghese and Others Vs. K.M. Oommen and Others,

There cannot be any dispute that the will can be considered a duly executed Will only if Ananta executed it according to the provisions of section 63 of the Indian Succession Act, 1925.

The position of law was explained in Girja Datt Singh Vs. Gangotri Datt Singh, . The principles which emerge from the decision are: (1) for concluding that a Will was duly attested either the evidence of the untruthful attesting witnesses must be such as to carry conviction in the mind of the Court that they saw the testator sign the Will and each of them appended his signature to the Will in the presence of the testator, or in the face of the unreliable oral testimonies of the attesting witnesses, there is satisfactory evidence of their due attestation of the Will; and (2) witnesses who identified the testator before the registering authority and appended their signatures at the foot of the endorsement of registration, not ''animo attestandi, can also be called by the propounder to prove that they appended their signatures to the Will actually as attesting witnesses.

In Moonga Devi and Others Vs. Radha Ballabh, it was held (para. 10) that it is not merely the genuineness of the signatures on which the proof of the execution of a Will u/s 63 depends, it has to be proved that the Will was attested in accordance with clause (c) of section 63, and that that cannot be done unless the statement of the attesting witness is taken into consideration.

In Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, it was held (para. 10) that if only one attesting witness is examined, then his evidence must satisfy the attestation of the Will by him and the other attesting witnesses and that if the evidence of the witness does not prove attestation of the Will at least by two witnesses, then it cannot be said that the Will was duly executed.

Here the propounder has examined only Timir, who is one of the four witnesses who signed the Will animo attestandi. Therefore, it is to be seen whether his evidence satisfies the requirements of section 63(c). According to Mr. Deb, Timir''s evidence does not satisfy the requirements, because he who has not said that the other attesting witnesses saw Ananta sign the Will and they all signed the Will in Ananta''s presence, has only mentioned the names of the other attesting witnesses. According to Mr. Deb, even if it is found that Timir has given satisfactory oral evidence in proof of due execution of the Will, no reliance should be placed on his evidence, because it is evident from his testimony that he is not a truthful witness.

In my opinion, ''unless there are sufficient reasons it will be unfair and unjust to appreciate Timir''s evidence with a skeptic mind.'' I have been asked not to believe him on the ground that during cross-examination on facts concerning allotment of the plot to Ananta by the development authority he was not straight forward. According to Mr. Deb, he tried his best to distance himself from the transaction until he was made to admit that he had full knowledge of the manner how Ananta acquired the plot.

Ananta acquired the plot in 1995, and Timir was deposing in September, 2007. It is not that he has feigned total ignorance of the transaction between his father and the development authority. He only could not give every detail thereof that Mr. Deb wanted him to give. Besides, I do not think evidence concerning acquisition of the plot by Ananta in 1995 is relevant to the question of proof of due execution of the will by him on August 16, 2000. I, therefore do not find any reason to say that Timir''s evidence should be appreciated with extra care and caution. In my opinion, his evidence should be appreciated with an open mind.

The Will runs into five pages, at the bottom of the first four pages Ananta signed his full name both in English and Bengali. On the last page he singed, again both in English and Bengali, immediately below the last clause of the Will. Genuineness of these signatures is not in question. What is in question is whether the Will was duly attested. To be more precise, the real question is whether Timir has proved that the Will was attested at least by two witnesses.

In his evidence Timir has said (qq.6, 13-15) that he and the other three attesting witnesses-Chhatu Chowdhury, Jayanta Kr Deb and N.C. Chowdhury - all were present when the will was executed; and (q.20) that after execution of the will Gour Hari Bera who was also present (q. 19) took him and Ananta to the registration office in New Secretariat Building. On all these he has not been cross-examined. There is no evidence to say that all the attesting witness did not sign the Will or that they signed the Will at different places at different times.

The other attesting witnesses are - (1) Chhatu Chowdhury, Councilor, C.M.C. Ward No.67; (2) Jayanta Kr Deb, Medical Officer, E.S.I. (M.B.) Scheme, Labour of Department, Govt, of West Bengal; and (3) N.C. Chowdhury, Solicitor and Advocate, High Court, Calcutta, 6 Kiran Sankar Roy Road, Calcutta - 1. Timir is a son of the testator and a brother of the propounder. It is, therefore, not unnatural that he was the propounder''s first choice as an attesting witness.

True it is that Timir has not given a detailed account of execution of the Will by Ananta. But the fact remains that on the due execution of the will he has not been cross-examined at all. He has said that he and the other three witnesses all were presents at once in the capacity of attesting witness at the time of execution of the Will that he saw Ananta sign the will; and that after the will was executed he and Ananta were taken to the registration office by Gour Hari, who was also present at the time of execution of the will.

It is to be noted that Gour Hari also signed the Will. He signed in the capacity of the person who typed the original Will. Timir has also said that Gour Hari is the clerk of Mr. N.C. Chowdhury, Solicitor and Advocate. Mr. Chowdhury is one of the four attesting witnesses. In my opinion, in the face of the unchallenged evidence of PW.1 that he and the other three witnesses all were present in the capacity of attesting witness at the time Ananta executed the will and the attendant circumstances, there is no reason to say that Ananta did not sign the will in presence of the attesting witnesses, or that the attesting witnesses did not sign the will in his presence of the attesting witnesses, or that the attesting witnesses did not sign the Will in his presence.

I, therefore, hold that Ananta executed the Will dated August 16, 2000 according to the provisions of section 63 of the Indian Succession Act, 1925; and that it was at attested by the four attesting witnesses according to the provisions of clause (c) of section 63; and accordingly, I answer the second issue in the affirmative.

The third issue is: "Had the testator mental alertness and physical capacity to execute the Will and whether the same was executed voluntarily?" Mr. Deb has argued that Jayanta Kr Deb, an old acquaintance of the family, though was available and inactive practice, and is undoubtedly an independent person, has not been called to give evidence of execution of the will, and the health and mind of the testator at the time of execution; and hence it should be presumed u/s 114(g) of the Indian Evidence Act, 1872 that his evidence, if given, would have been adverse against the plaintiff.

I am unable to agree with him. The propounder can prove due execution of the will by examining any one of the attesting witnesses, and here she has examined Timir. As to due execution of the will, evidence of one attesting witness, if reliable and satisfactory, is sufficient. In so far as the state of Ananta''s health and mind at the time of execution of the Will is concerned, I am unable to see how the defendants themselves giving evidences that he was in a sound and disposing state of mind can contend that since Jayanta Kr. Deb, an old acquaintance of the family and also an attesting witness to the will, has not been examined an adverse inference should be drawn by the Court.

It is nobody''s case that Ananta did not know English in which the Will was written. Curiously, nobody has said what Ananta was and how did he amass considerable wealth. He was definitely a man of means and worth By the will in question he disposed of only one property. There is no evidence to show that his other properties he disposed of by executing any other Will or Wills. But there is evidence to show that he disposed of his other properties as well for the benefit of his other children. He stated in the Will that at the date he was executing it he was eighty-six and leading a retired life.

There is no reason to say that at the relevant time he was not in a sound and disposing state of mind. Timir has said (qq.24, 97) that he was, fully capable, both mentally and physically, of executing the Will, and that he died of heart failure. The will was executed on August 16, 2000, and he died on March 26, 2001. Birendra has said (q. 106) that at the relevant time he was neither ill nor hale and hearty. Subhra has said (q.54) that on August 13, 2000 when he signed the jewellery-list, Ex C, he was in a perfect state of mind. The jewellery under the list that was signed by him, his wife and Subhra were given away to Subhra. Hence there is no reason to say that he signed the Will without understanding the nature arid effect of the disposition therein or that he put his signature to the will without knowing what it contained.

I, therefore, hold that at the date Ananta executed the will he was in a sound and disposing state of mind; and that he executed the will voluntarily. The third issue is, accordingly, answered in the affirmative.

The fourth issue is: "Was the Will in question executed by Ananta Kumar Dutta purported to be his last Will and testament ?" It is nobody''s case that the will dated August 16, 2000 is not Ananta''s last will. What the'' defendants have questioned is its due execution and attestation, not genuineness. They have not given any evidence in proof of a case that it is not Ananta''s last Will. According to them it was not executed according to law, Ananta did not have right to dispose of the property forming its subject, and in any case, because of the suspicious circumstances surrounding its execution, Baby is not entitled to a probate. Hence I find no reason to say that the Will is not Ananta''s last Will.

I, therefore, hold that the Will dated August 16, 2000 is Ananta''s last will; and accordingly, I answer the fourth issue also in the affirmative.

The fifth and the last issue is: "Is the plaintiff entitled to the reliefs as prayed for ?" For entitling her to relief the plaintiff has to dispel all suspicions, if there are suspicious circumstances surrounding the execution of the Will. Hence it is to be seen whether there is any suspicious circumstance, and if so, then whether she has been successful in dispelling the suspicion.

According to Mr Deb, when Ananta was equally affectionate to all his children, no evidence has been given to show what was the special reason to dispose of the property in question in 2000 benefiting only Baby, especially when Ananta sold his Madhubati property to her in 1998 for an inconsequential sum of Rs.80,000. Mr. Deb has argued that Baby has not given any evidence to show why Ananta showered a legacy on her within three days of taking away the ornaments by her. His further submission is that there is no evidence to show that Ananta''s other children were showered with any benefit.

There is no dispute that Ananta was equally affectionate to all his children. He was survived by six children - three sons and three daughters, all married. Birendra, 55 on July 30, 2008 when he deposed and was leading a retired life, is the eldest of all and the first defendant in the suit. He is the owner of the Kasba house where the will was stated to have been executed. Ashoke, Ananta''s second child, though initially joined Birendra and Subhra in lodging the caveat, subsequently decided not to pursue his challenge to the will. Reklia, Ananta''s third child, never questioned the Will in any manner. Subhra, a housewife married in 1978 and 51 on August 5, 2008 when she deposed, is Ananta''s fourth child and the second defendant in the suit. Timir, a businessman and 48 on September 28, 2007 when he deposed as attesting witness, is Ananta''s fifth child. Baby, the propounder, a housewife and 44 on December 14, 2007 when she deposed, is Ananta''s youngest child. Only Birendra and Subhra have questioned the Will.

I do not find any reason to say that the Will is an unnatural one. By it Ananta disposed of only one property, a plot belonging to the development authority that granted him licence to use it for residential purpose. By the Will the plot has been bequeathed to Baby. There is no evidence to show that he otherwise deprived any of his children. According to Timir (qq. 56-68) with the sale proceeds of a property that Ananta sold to Baby, the Kasba house was built by Birendra. Birendra, though made an attempt (qq.38-39) to disprove what Timir said in his testimony, abruptly abandoned his endeavour.

Subhra has stated (qq.35-38) her ignorance of the source of the fund used for building the Kasba house. She dodged a straight answer to the suggestion that Ananta provided some property or other for all his children. She got substantial jewellery on August 13, 2000. Her case (q.45) that subsequently Ananta took back the jewellery is not believable. She does not seem to be a truthful witness. Faced with Ex C, the jewellery list dated August 13, 2000, during her cross-examination she made a long voluntary statement alleging that immediately before August 13, 2000, Baby had taken away the jewellery from the Kasba house. Her case is that she and her mother asked Baby to return the jewellery that Baby did; and that because of the incident, on August 13, 2000 her parents gave her the jewellery only for safe custody.

If things really happened like this, then there cannot be any doubt at all that this would have been the principal case in her affidavit filed in support of the caveat. Not a whisper of any such incident taking place only a few days before the Will was executed on August 16, 2000 was made anywhere until Subhra, during her cross-examination, was confronted with the jewellery list dated August 13, 2000 showing how Ananta had taken care other. She has also said (qq.32-34) that Ashoke built his own house on a land that was own by Ananta. Baby has said (qq. 12-14) that Timir owns Ananta''s another property.

On these facts, it cannot be said that it was unnatural for Ananta to bequeath the plot to his youngest child. It was rather natural that he would not want all his heirs to inherit jointly a residential plot measuring 126 square metres only.

Baby did not take any part in the preparation and execution of the Will. There is no evidence either to show that Timir played any role in its preparation. I seems that Ananta himself took necessary steps for preparation of the Will. It was not unnatural or impossible for him. As I have already said he was a man of means and worth. Mr. Deb has said that Timir has not given evidence to prove how and when Ananta made the arrangements for preparation and execution of the Will. According to him, absence of evidence of this phase is a grave suspicious circumstance. As to preparation of the Will Timir has not been cross-examined at all. The cross-examination has been chiefly about Birendra''s claimed absence at the time of execution of the Will. It has been suggested to Timir (q.96) that at the time of execution of the Will Birendra was nowhere near the house, and Timir has said that Birendra was very much present with his entire family in the Kasba house on August 16, 2000.

The specific case of the defendants in their affidavit is that on August 16, 2000 Ananta was not staying in Birendra''s Kasba house at 21, R.K. Chatterjee Road. This is a very serious allegation, if it is proved, nothing else is needed to drive the last nail in the coffin of the plaintiffs case. But curiously the defendants did not have the courage to give any evidence in proof of the -allegation, they quietly buried a crucial fact asserted by them on oath. It seems, that they did it for obvious reasons. They knew that the allegation was not correct. There can be no doubt that on August 16, 2000 Ananta was staying in Birendra''s Kasba house. On August 13, 2000 he and his wife gave away the jewellery kept in the Kasba house under a list to Subhra, it happened at the Kasba house and it is evident from Subhra''s evidence (qq.43-47). She has said (qq.42-55) that she visited her parents at the Kasba house both on August 15 and 16, 2000.

Birendra has said (q.92) that he is opposing the Will since Ananta never told him anything about it. Subhra has said (q.59) that she came to know of the Will only after service of notice by Court. I am unable to believe both of them. Birendra has not left an impression that he was really unaware of the Will. He gave strange answers to simple questions. For example, (q.51): "can you tell what had happened to your father leading to expire ?/As I am not a doctor I am not supposed to know what illness he was having..." Before this he said (q.50) that Ananta expired on March 26, 2001, and that four-five days before that he had left the Kasba house for Madhubati.

The Will was executed on August 16, 2000, Ananta died on March 26. 2001. Birendra and Subhra lodged the caveat on July 29, 2003. Till this date they never asserted any title of any right with respect to the plot disposed of by the Will, - an abnormal conduct for heirs of a person dying intestate leaving an immovable property of which the heirs are aware. Birendra was fully aware of acquisition of the plot by Ananta in 1995. The Councilor of the ward signed the Will, affixing his seal, as the first attesting witness. Ward No.67 is the ward in which Birendra''s house is located. When asked he stated Iqs.63-67) his total ignorance of the councilor and his office, - an ignorance quite unusual for a house owner and resident in the ward, especially when the councilor is stated to be an attesting witness to the Will challenged by the person.

In their affidavit Birendra and Subhra did not say that in view of Baby''s past conduct it was neither probable nor natural that an anguished Ananta would shower special benefit on her by executing a Will. When in cross-examination Subhra was confronted with the jewellery-list dated August 13, 2000. Ex C, she not only felt very uncomfortable, but also insisted vehemently on making a voluntary statement that is unusually long. From her evidence and Ex C it is proved that Ananta gave away the ornaments to her on August 13, 2000.

If her voluntary statement is to be believed, then it has to be held that Baby wrongfully and unauthorisedly took away the ornaments on August 12, 2000; that taking her assistance her mother asked Baby over phone on August 12, 2000 to return the ornaments; that accordingly Baby returned the ornaments on August 12, 2000; that the incident left both Ananta and his wife greatly anguished; that feeling insecure on August 13, 2000 Ananta and his wife handed over the ornaments to her under the list signed by all three only for safe custody; and that without giving her any receipt subsequently Ananta took back all the ornaments from her, since he needed money.

If all these really happened on August 12 and 13, 2000, it is hard to believe that Birendra and Subhra would have missed them all while stating their case in their affidavit opposing the probate. After suffering the exposing cross-examination and left nonplussed by the jewellery-list, suddenly produced, Subhra even went to the extent of asking (q.64) the Court interpreter to explain to her in Bengali whatever the interpreter said to the recording officer translating her answer given in Bengali, a rare phenomenon, especially when the recording of evidence is in open Court and in presence of counsel who has no objection to the interpreter''s translation of the answer given by the witness.

According to Mr. Deb, it is normal to keep the original Will by a testator only in the custody of a lawyer. His argument is that the fact that the original Will has come from the custody of the legatee is a suspicious circumstance. He has also said that the lawyer, though was one of the attesting witnesses, has not been examined. Here again he has invited me to draw a presumption u/s 114(g).

In my opinion, the mere fact that the original will came from the custody of the legatee should be considered a suspicious circumstance. It is to be noted that the legatee is also the executrix. From the totality of the evidence it cannot be said that the fact of execution of the Will was not known to all the persons concerned. One of the attesting witnesses was the councilor of the ward concerned. Two lawyers and one law clerk also signed the Will they signed as attesting witness, draftsman and typist respectively. Out of Ananta''s five children, deprived of the property, only two have questioned the validity of the will, not its genuineness. The jewellery-list, Ex C, has also come from Baby''s custody. It was not supposed to be in her custody, unless it was given to her by her parents.

On these facts, I do not think custody aspect of the original will can be considered a suspicious circumstance. No evidence has been given to show that normally the original Will is kept by a testator in the custody of a lawyer, there is no reason to presume this.

According to Mr. Deb, the fact of registration is not the touchstone of validity of the Will. He has argued that Timir, who has not given any evidence I of the events that happened in the registration office, has only said that he if heard a talk between Ananta and the registrar. According to him, this evidence without anything more has no value. His argument is that when there is no evidence to show what was the talk and whether Ananta admitted execution of the Will before the registrar, Gour Hari, who could give evidence, has not 1 been examined. He has again invited me to draw a presumption u/s 114(g).

There can be no dispute that the fact of registration is not the touchstone of validity of a Will. Timir has said that the will was registered.'' He has proved signatures made by him and Ananta before the registrar. Simply because he has not said anything about the talk between Ananta and the registrar, it cannot be held that the fact of registration of the will is a suspicious circumstance surrounding the execution of the Will. Registration J has nothing to do with due execution of the Will. For irregular registration of | the Will it cannot be held that it was not duly executed, if it is proved that the execution was according to the provisions of section 63(c) of the Indian Succession Act, 1925.

Mr Deb has pointed out that in terms of section 58 of the Registration Act, 1908 the registrar did not endorse on the Will that Ananta admitted the execution of the Will. According to him, this makes the document a suspect one. He has said that in view of what was held in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, , Anath Nath Das and Others Vs. Sm. Bijali Bala Mondal, and Ajit Kumar Maulik Vs. Mukunda Lal Maulik and Others, , absence of the endorsement raises a grave suspicion about due execution of the will by the testator.

I am unable to agree. Whether an irregularity in registration of a will, registration of which is not compulsory, is a suspicious circumstance, depends on the facts of the case. Here immediately after execution and attestation of the will Ananta himself went to the registration office, met the registrar and look all steps for its registration. Timir and Gour Hari just accompanied him. It is not that somebody made him a mere participant in the matter. Hence even if it is accepted that the registrar did not comply with the provisions of section 58 of the Registration Act, 1908, the irregularity cannot be used to label the Will as a suspect document.

There is, however, no reason to say that the registration was irregular. Section 58 provides that on every document admitted to registration the signature and addition of every person admitting the execution of the document shall be endorsed. Section 2(1) has defined the word "addition" to mean the place of residence and the profession, trade, rank and title (if any) of a person described, and in the case of an Indian, his father''s name, or where he is usually described as the son of his mother, then his mother''s name. Here Ananta''s signature and addition were duly endorsed by the registrar on the will. Hence it can presumed that these were endorsed only when Ananta admitted execution of the Will by him.

I am, therefore, of the view that Baby is entitled to probate of the Will; and accordingly, I answer the fifth issue also in the affirmative.

In view of the order dated September 12. 2007 framing and recording the five issues in the suit and giving the defendants liberty to ask for framing and recording of an additional issue, Mr. Deb has wanted decision on an additional issue, which is: "Did Ananta have the testamentary competence to dispose of the plot by his Will ?".

Relying on the deed. Ex 1, whereby the development authority granted Ananta licence to use and occupy the residential plot for ninety-nine years and the provisions of Schedule III to the Indian Succession Act, 1925, he has argued that, since, in view of the provisions of clause 2(vii) of Ex 1, without prior permission of the development authority Ananta could not alienate the property inter vivos, nothing contained in section 63 of the Indian Succession Act, 1925 authorised him to bequeath the property.

Mr. Chowdhury has contested the contention by saying that the question is irrelevant, since by grant of probate no title is decided; that, in view of the provisions of sub-cls. (vii) and (xi) of clause 2 of Ex 1, there is no reason to say that without prior permission of the development authority Ananta could not bequeath the property by his will. He has relied on Sushila Bala Saha Vs. Saraswati Mondal, ; State of West Bengal and another Vs. Kailash Chandra Kapur and others, : N. Ramaiah v. Nagaraj S., AIR 2001 Kar 395; Delhi Development Authority Vs. Mrs. Vijaya C. Gurshaney and Another, ; and Juthika Banerjee and Another Vs. Santosh Mukherjee and Others, .

I find no reason to accept the argument that, in view of the provisions of clause 2(vii) of Ex 1, without prior permission of the development authority Ananta could not dispose of the plot by his will dated August 16, 2000.

It is clear from the provisions of clause 2(xi) of Ex 1 that a bequeathal of the plot by him was permissible. Sub-clause (xi) of clause 2 of Ex 1 provides that if the licensee dies after having made a bequest with the permission the development authority of the plot and the building thereon, if any favour of more than one person or dies intestate having more that one he then in such case the persons to whom the plot with the building bequeathed or the heirs of the deceased licensee, as the case may be, should hold the property jointly without having any right to have a partition or they shall nominate one person amongst their number in whom the property shall vest

Clause 2(vii) provides that the licensee shall not assign or transfer the plot or any part thereof or the structure erected thereon without the previous permission of the development authority in writing; and that in case of transfer or assignment of the licence, the development authority shall have the right of pre-emption. By referring to section 3(64) of the General Clauses Act, 1897 defining the word "will", Mr Deb has argued that unless Ananta was empowered to alienate the plot inter vivos, he could not dispose of it by the will. From the terms and conditions of Ex 1, I do not find anything to hold that for bequeathing the plot to one person Ananta was required to obtain a prior permission from the development authority.

In this context q.36 put to DW.3 in examination-in-chief and qq. 50 and 51 put to him in cross-examination are relevant. Question 36 and answer thereto are: "36. Please turn to clause 2(VII)ii and 2(X1) of the deed of license (shown) - was any prior permission of the CMDA required for the licensee to make any assignment or transfer or to make a bequest of the land allotted to him by this Will ?/Yes." Questions 50 and 51 and answers thereto are:-"50.Please come to sub clause VII under clause 2 (shown)�is it your evidence that prior permission of CMDA is required to execute any Will under this clause?/No, nowhere to this clause. 51.(Shown sub clause XI of Clause 2 of the deed of license)�would I be right in saying that this clause is applicable only if bequest is made in favour of more than one person?/ yes, it is there in the clause that prior permission will be necessary for bequest in favour of more that one person."

I am, therefore, of the view that Ananta possessed the requisite testamentary competence to dispose of the plot by executing the will dated August 16, 2000; and accordingly, I answer the additional issue in the affirmative.

For these reasons, I allow the suit. It is ordered that probate of the will shall be issued to the plaintiff, who shall also be entitled to costs to be paid out of the effects of the deceased. The department concerned is directed to draw up, prepare and complete the decree within a fortnight from the date the records are sent down from the Court.

Urgent certified xerox of this judgment, if applied for shall be supplied to the parties within three days from the date the records are received by the department concerned.