Dilip Dutta Bhowmik and ors. Vs. Mira Dutta Bhowmik and anr. - Court Judgment

Excerpt:

.....kidney failure. in his affidavit, he further stated that he would be able to identify the signature of the testator as well as his own signature. he also stated that at the time of execution of the will the testator was mentally active and alert and that after execution of the will, he handed over the same to him for keeping in safe custody. like that of pw 2, he also stated about the execution of the will on 6.8.1997 with corrections and alterations by the testator in his own handwriting. at the time of execution of the will he found the testator fully conscious and careful and was satisfied about his act of execution of will. the testator went through the contents of the will and thereafter told him that he would like to make certain additions and alterations. he identified the signature of the typist sri sanat kumar biswas (exhibit 1/4) as well as the will (exhibit 1/5). he also stated as to how the will was handed over to sri sanjoy paul (pw 2). 30. in the cross examination, he stated about his visit to the testator on 4.8.1997 and as to how he saw him on the bed in a half lying position. on 6.8.1997, he asked him to do some important works like taking some information from..........by affidavit (hereinafter referred to as 'the affidavit'), he stated about his association with the newspaper since 1973 in various capacity. he also stated about the illness of the testator and as to how he came to know about the same. he met him along with dr. ml saha, one of the trust members on 17.8.1997 in the hospital. he stayed in calcutta till the next day i.e. 18.8.1997. when he met the testator on 17.8.1997, he enquired from him about the newspaper. as per his statement he had again gone to calcutta on 28.8.1997 having come to know that the testator would be shifted to apollo hospital, chennai. he had gone to chennai on 28.8.1997 and was regularly attending the testator till lst september, 1997. thereafter he left for calcutta by train on 2.9.1997 and after staying for few days in calcutta returned to agartala on 7th september, 1997. he found his uncle mentally active and alert till 28.8.1997. he also stated about the aforesaid meeting held on 24.9.1997 in the office premises of dainik sambad and the publication of the news item on the following day. he also proved exhibit-2, 3, 4 and 4/1, of which exhibit 4/1 is the signature of the testator. 19. in the cross.....

Judgment:

B.K. Sharma, J.

1. This appeal is directed against the judgment dated 24.5.2006 passed by the learned Additional District Judge (Court No. 2), West Tripura, Agartala in the Title Suit being T.S. (Probate) No. 01/1999 refusing to grant the Probate/Letters of Administration to the appellants in respect of the WILL in question.

2. The appellant No. 1 filed the petition under Section 276 of the Indian Succession Act, 1925 for grant of Probate of the WILL dated 6.8.1997 executed by Late Bhupen Chandra Dutta Bhowmik. The petition was filed on 17.12.1997 and was registered and numbered as Case No. Misc. (Probate) 06/1997, later on renumbered as TS (Probate) 01/1999. On refusal of the executor named in the WILL to act as such and making it known by appearing before the Trial Court on 9.3.1999, the Trial Court by order dated 9.3.1999 allowed amendment of the petition so as to substitute the word 'Probate' to that of 'Letters of Administration' and accordingly the petition was treated to be a petition for grant of Letters of Administration in respect of the said WILL.

3. The appellants No. 2 and 3 got themselves impleaded in the proceeding as petitioner and intervener respectively, they having had interest in the matter as the legatees of the WILL. The prayer for grant of Letters of Administration in respect of the aforesaid WILL has been rejected by the impugned judgment dated 24.5.2006 and being aggrieved, the petitioners have filed this appeal for reversal of the said judgment. The appeal was admitted by order dated 27.5.2006 and the records were called for. Alongwith the appeal the appellants filed the miscellaneous application being CM Application No. 186(RFA)/2006 for stay of the operation of the impugned judgment dated 24.5.2006. While issuing notice on the prayer for stay by order dated 27.5.2006 the judgment was stayed. However, upon appearance of the respondents in the proceeding, the interim prayer was rejected by order dated 30.6.2006 observing that such rejection shall not effect the merits of the appeal.

4. With the rejection of the interim prayer, the appellant No. 3 namely 'Bhupendra Chandra Dutta Bhwomik Trust' named in the WILL to manage the affairs of the newspaper 'Dainik Sambad' and which in fact had been managing the affairs of the newspaper after the death of the testator, was dispossessed by the respondents on 1.7.2006 i.e. immediately after the aforesaid order dated 30.6.2006 refusing the prayer to stay the impugned judgment of the Trial Court.

APEX COURT'S DIRECTIVES

5. The appellants herein, being aggrieved by the order so passed on 30.6.2006 in the aforesaid CM Application No. 186/2006 in the present appeal had approached the Apex Court by filing the petition for Special Leave to Appeal (Civil) No. 10999/2006. The Apex Court by its order dated 17.7.2006 while refusing to interfere with the interim order dated 30.6.2006, provided that the respondents while managing the affairs of the newspaper shall not incur any capital expenditure of a sum exceeding Rs. 50,000/- without the permission of the High Court. The respondents have also been restrained from selling, encumbering or transferring any fixed assets, moveable or immovable of the newspaper. The Apex Court also expressed the desire for early disposal of this appeal preferably within three months. This is how the appeal has been heard expeditiously as possible and is being disposed of by this judgment and order.

BASIC FACTS

6. The testator of the WILL, Late Bhupendra Chandra Dutta Bhowmik @ Bhupen Dutta Bhowmik was the editor and sole proprietor of the newspaper Dainik Sambad and Imprint. On 22.7.1997, he left for Bombay from Agartala via Calcutta by Air to attend a meeting there. He fell ill on way before reaching Calcutta and accordingly did not undertake any further journey and got down at Calcutta. He got himself admitted in the Hospital namely Peerless Hospital and remained there as an indoor patient from 22.7.1997 to 26.7.1997. It will be pertinent to mention here that before being hospitalized, he had gone to his residence at Saltlack Calcutta, where his family consisting of his wife and four children were residing.

7. On 26.7.1997 Late Bhowmik was shifted to another hospital namely SSKM Hospital where he remained upto 16.8.1997 on which date he was shifted to Belleview Nursing Home where he remained upto 27.8.1997 from where he was shifted to Apollo Hospital, Chennai by Air on 28.8.1997. In between, he stayed for the night in Daffodil Nursing Home, Calcutta. He died on 9.9.1997 at Chennai in the Apollo Hospital. While was at SSKM Hospital, Calcutta, he executed the WILL in question on 6.8.1997 centering around which the whole controversy has arisen. While it is the case of the appellants that the WILL was validly executed, the respondents' case is that since Late Bhowmik was not in his earthly senses during the period from the last week of July, 1997 till he expired on 9.9.1997, he being at the stage of COMA, and thus, there was no question of executing any WILL by him on 6.8.1997.

THE WILL

8. Since the whole controversy centers around the issue relating to suspicious circumstances and the purported failure of the pro founder/beneficiaries to remove the same by not establishing the sound and disposing mind of Late Dutta Bhowmik in execution of the WILL and the learned Counsel for the parties, more particularly the respondents have extensively argued on the very clauses in the WILL, it will be appropriate to refer to the WILL itself at this stage before going in to the evidence on record. The WILL is a typed written one also containing the corrections and additions made by the testator himself with his signatures. The corrections and alterations made are in the own handwriting of the testator. The WILL (page wise), reads is as follows:

FIRST PAGE

This is the Last will and testament of me, Shri Bhupendra Chandra Dutta Bhaumik, son of late Gobinda Chandra Dutta Bhowmik, Editor and Proprietor of Dainik Sambad, resident of 11 Jagannath Bari Road, Agartala, Tripura West, aged about 56 years. This cancels all my previous will and codicils, if any.

My erratic state of health compels me to make this Last will and testament in respect of my Moveable and Immovable properties. This is made this day, the 6th day of August 1997 at Calcutta, voluntarily without being influenced or coerced by anybody whatsoever.

I have my wife, Smt. Meera Datta Bhaumik and one daughter and three sons, namely as under:

(1) Miss Durba Datta Bhaukik, Aged about 13 years.

(2) Master Birat Dutta Bhumik, Aged 11 years.

(3) Master Kuber Datta Bhaumik, Aged about 7 years.

(4) Master Kaniska Datta Bhaumik, Aged about 4 years.

All my sons and daughter are Minors

I am the sole owner of a RCC Storied Building, consist of 5 (five) floors at 11 Jagannath Bari Road, Agartala, Tripura West housing the following:

(1) My residence (within 3rd and 4th Floors)

(2) Office of Dainik Sambad, daily Bengali newspaper and Imprint Press under my Editorship and Ownership (within ground/lst/2nd Floors)

Sd/-Bhupendra Chandra Dutta BhowmikPage-2

CLAUSE NO. 1:

It is my wish and desire that after my demise my residence, 4th & 5th Floors as mentioned above, shall vest to my wife and abovementioned Four Minor Children with a condition that my wife and all my children shall enjoy and live there peacefully and for ever but none of them is entitled to sell/dispose or rent out the said residential portion.

CLAUSE NO. 2:

It is my wish and desire that I am creating and forming one Trust body which will be effective from the day of my demise or death. The Trust Body (Bhupendra Chandra Datta Bhaumik Trust) comprises of the following persons:

(1) Dr. H.K. Saha Roy, Bar-at-Law Manicktola Housing estate, V.I.P. Road, Calcutta-700 054.

(2) Sri Subhasish Talapatra, Advocate, Harish Thakur Road, Agartala, Tripura (West).

(3) Dr. M. L. Saha, Medical Practitioner, Jagannath Bari Road, Agartala, Tripura (West).

(4) Sri Sanjoy Paul, Advocate, 7, Mantri Bari Road, Agartala, Tripura (West).

(5) Sri Bibhas Saha, Advocate, P-131, C.I.T. Road, Scheme-VIM, Calcutta-700 045.

(6) Editor of the Dainik Sambad, Agartala, by virtue of post.

(7) Printer and Publisher of Dainik Sambad, Agartala, by virtue of post.

My directions to the Trust Body are.

(a) Under no circumstances shall the name & goodwill of Dainik Sambad be sold/transferred and/or assigned.

(b) During my life time I particularly fought for the cause of common people, I hereby direct this path to follow without any cast, creed or colour by the Trust Body.

(c) I also direct the management to serve the Newspaper with honesty, sincerely and dignitorily in respect of the glorious infrastructure so far developed by me.

(d) It is also my direction that since the day of signing this deed Mrs. Paramita Livingston, wife of Mr. Thomas Livingston, resident of Krishnanagar, Agartala, Tripura, West, will be the Managing Editor of Dainik Sambad.

Sd/- Bhupen Chandra Datta Bhaumik. Further she will the right in appointment, dismissal, termination, suspension and other similar penal right to take against erring persons for the larger interest of the organization cautioned by approval of the Managing Trust body but shall have no right to express personal vendetta at any point of time.

Page No. 3

(e) Sri Pradip Datta Bhaumik will continue as publisher and printer of Dainik Sambad.

(f) The Trust shall provide the financial requirements necessary for my wife and children to live a modest life and for proper education of my children and all my children will become the Members of the above Trust and attainment of their majority.

(g) The Trust shall construct a four storied residential house in Calcutta and each floor will be transferred to my each child and my wife shall have right to reside there according to her choice for her whole life thereon. The execution of this clause shall depend on the arrangement of finance and the Trust will see that the fitting financial arrangement are made with specific programme made out based on the financial ability of the Dainik Sambad.

(h) Members of my family, friends, relatives, office staff/staffs distant relatives whatsoever have no right to interfere/in decision making of the whole affairs of above Trust, Dainik Sambad and Imprint as aforesaid.

(i) Sri Subhasish Talapatra, Advocate and Member of my Trust and Sri Sanjoy Kumar Paul, Advocate another Member of the Trust shall act jointly and/or severely will act as Advisors for the affairs of the Dainik Sambad a Daily Bengali Newspaper.

(j) Total area of the Five Storied Building at 11, Jagannathbari Road, Agartala, Tripura, West, shall be utilized in the following manner:

(1) Ground, First, Second floors -Press and Office

(2) 3rd & 4th Floors-

Exclusively for residential accommodation of my wife and children

(3) Stair-cash, Underground Water Tank, Over head Water tank, Sewerage and Roof shall remained common

(4) All offices/rental & lease-hold houses in Tripura and in other parts of the country shall be maintained by the Trust.

(5) Sri S.K. Bhattacharyya, Charter Accountant, residing at BA-94, Salt Lack City, Calcutta-700 064, will act an Adviser in respect of Maintenance of Accounts of Dainik Sambad and Imprint.

Sd/-Bhupendra Chandra Datta Bhaumik

6. Shri Dilip Sarkar, Advocate, Ramnagar Road No. 5, Agartala.

Sd/-Bhupendra Chandra Datta Bhaumik

Page No. 4

After my death, my body be cremated at Nagichara Garden and maintained by flower and fruit garden, all the kids irrespective of their birth shall have equal right in enjoyment of this garden. My youngest son and the second son shall perform rituals and first son shall perform serials if he desires, but this shall not bar him in participating the rituals if he likes.

Sd/-Bhupendra Chandra Datta Bhaumik

CLAUSE NO. 3

It is my wish and desire that all my movable and immovable properties excluding the Trust property as aforesaid shall vest to my wife and children solely. My wife may enjoy with her children only.

Sd/-Bhupendra Chandra Datta Bhaumik

CLAUSE NO. 4

I hereby appoint Sri Subhasish Talapatra, Advocate as the sole Executor of the WILL.

CLAUSE NO. 5

Smt. Malina Das, wife of Late Paritosh Das, residents of Krishnanagar, Agartala, Tripura attached with Dainik Sambad, since inception as printer and publisher retired on 31st July, 1997. Her honorarium will be continued to be remitted by the Organization at the same rate till the Organization runs.

CLAUSE No. 6

All the properties (Movable & Immovable) earmarked for my wife and children in Clause No. 3 above will be maintained by the Trust out of the Income of the Trust till my children attain their majority.

Sri Dilip Dutta Bhaumik, son of Sri Phanibhushan Dutta Bhaumik of Indranagar, Agartala shall get the total letter press system solely and Rs. 200,000/-for his re-settlement of provided he follows constructive and descent life and get married within six months.

Sd/-Bhupendra Chandra Datta Bhaumik

The Schedule of the Movable & Immobable Assets

(1) Property at 11 Jagannath Bari Road, Agartala, Tripura, West (ground, lst & 2nd Floors - Offices, and 3rd & 4th Floors -Resident)

(2) Agricultural land at Nagichara - wife & children

(3) Land at Indranagar - wife & children

Sd/-Bhupendra Chandra Datta Bhaumik

(4) Co-owner land at 79 Tilla, Kinjaban, Mrs. Malina Das, wife of Late Paritosh Das and my

Agartala, Tripura - wife & children @ 50% 50%

Sd/-Bhupendra Chandra Datta Bhaumik

(5) Tata Estate (Car) - wife & children

Sd/-Bhupendra Chandra Datta Bhaumik

(6) Tata Sumo (Jeep) - Trust

(7) Mahindra (Jeep) - Trust

(8) LIC (policies) - Wife & children

(9) NSC certificates - Wife and children

(10) UTI certificates - Wife & children

(11) Investment in Holiday Resorts - wife & children

Sd/-Bhupendra Chandra Datta Bhaumik

(12) F.D. certificates - Trust

(13) Personal A/C-Trust

Sd/-Bhupendra Chandra Datta Bhaumik

(14). Golden properties, gems, jewelries, other valuable - shall be - divided from bottom wise to those who are small in age shall get proportionately higher rate i.e. smallest one shall get 40%, 3rd one as 20%, girl will get 30% and eldest one get balance.

Sd/-Bhupendra Chandra Datta Bhaumik

Page No. 5.

In witness whereof I have signed this will in the presence of the attesting witnesses hereunder who have also attested the same in my presence on the date, month and year first above written.

WITNESSES:

Sd/-Bhupendra Chandra Datta Bhaumik

1. Sanjoy Paul, Advocate,12/1 Lindsa Street Calcutta-87

2. Makhanlal SahaB.F. - 37 - Salt lake Cal-64

3. Swapan Kumar BhattacharyyaB.A.-94, Salt lake, Cal-64Chartered AccountantDrafted by meSigned

Debabrata Banerjee, Advocate,12/1 Lindsa Street, Anex-Bldg, 4th Floor,Calcutta-87, Tel: 244-6810/7522

Typed by meSanat Kumar Biswas12/1 Lindsa Street,Calcutta, 700087

9. The will has been reproduced verbatim indicating the insertion and correction made by the testator. It will be seen that in every such insertion and correction, the testator has put his signature. The corrections and insertions have been indicated in the above quoted portion in italics. On a plain reading of the clauses in the WILL will go to show that the testator has made provisions for all the beneficiaries and it cannot be said to be an one sided affair. However, the objection raised on behalf of the respondents is in respect of the very authenticity of the WILL.

PLEADINGS

10. The Trial Court proceeding got initiated with the filing of aforesaid Case No. Misc. (Probate) 06/1997, later on renumbered as T.S. (Probate) No. 01/1999. In the application so filed by the appellant No. 1, one of the beneficiaries, he mentioned about the family members of the testator as well as the Trust Body as mentioned in the WILL. Making a reference to the provisions made for him in the WILL for Rs. 2,00,000/- and the refusal of the sole executor of the WILL namely Sri Subhasish Talapatra to execute the WILL, the appellant prayed for grant of 'Probate' later on amended to 'Letters of Administration' of the property and credits of the testator. The petition was supported by his own affidavits certifying the statements made in the petition and the benefits likely to come to his hands. The petition was supported by an affidavit of one of the attesting witnesses of the WILL namely Sri Sanjoy Paul certifying that he was one of the witnesses and that he was present and saw the testator affixing his signatures thereto.

11. As noted above the appellants No. 2 and 3 got themselves impleaded in the proceeding as the beneficiaries of the WILL. Thus, virtually the petition was filed by the three beneficiaries namely the appellant No. 1, who as per the WILL is to get Rs. 2,00,000/- and the letter press system. The appellant No. 2, as per the WILL is the Managing Editor of the newspaper and by virtue of her office is to become the member of the Trust Body. The appellant No. No. 3 is the Trust Body itself.

12. The respondent No. 1 namely Smt. Meera Datta Bhaumik the wife of the testator as the caveator/opposite party filed objection against the petition alleging that the WILL is not a genuine one and that the petitioners do not have any locus standi to pray for Probate/Letters of Administration. Her further contention was that the petitioner/appellant No. 1 having not attained the status of beneficiary, even if the WILL is admitted to be validly executed, he would not be entitled to any relief. In paragraphs 4, 7 and 14 of the objection, she made the following statements:

4. That the averment made in para 1 of the Probate petition, is substantially correct, but not exhaustive. Bhupendra Chandra Datta Bhaumik had been at the stage of COMMA having no earthly sense from the last week of July, 1997 till he expired on 9.9.1997 at Apollo Hospital.

7. That in reply to para 5 of the Probate petition, it is humbly submitted that Bhupendra Chandra Datta Bhaumik never executed 'last WILL and Testament' on 'the 6th of August, 1997' at Calcutta.

Since before 6th August, 1997 and on 6th August 1997 also and thereafter till death said Bhupendra Chandra Datta Bhaumik had been at the state of COMMA having no physical and mental capability of making any WILL, and thus the signatures appears in the WILL are forged.

14. That it is pertinent to mention that the caveator opposite parties filed Title Suit bearing No. 126/1997 pending before the Court of Ld. Civil Judge (Sr. Division) Court No. 2, Agartala praying for declaring the so called WILL void and subsequent Deed of Trust void and to be cancelled besides other reliefs and the case is pending. The caveator opposite Party No. 1 also lodged a criminal case with West Agartala PS in West Agartala PS Case No. 134/1998 and is under investigation by CID, wherein the caveator opposite Party No. 1 sought for prosecution and punishment of the so called Trust Members for commission of forgery of WILL, stealing of movable properties etc.

13. The appellants No. 1 and 2 filed two separate rejoinders against the objection filed by the caveator/opposite party denying the contentions raised in the objection, more particularly the plea that the testator was at the stage of COMMA during the period from last week of July, 1997 till the testator died on 9.9.1997. They contended that the testator was in his full sense and was capable of making the WILL and that he had made the WILL of his own free will and desire without being influenced or coerced by any body. It was contended that he at the time of making the WILL and the period during which the caveator/opposite party described the testator to be at the stage of COMMA, he was in sound health and mind with perception and reasoning.

14. It will be pertinent to mention here that the named executor of the WILL Sri Subhasish Talapatra refused to act as the executor and he made it known by appearing in the Court and to that effect an order was passed by the Trial Court on 9.3.1999. In fact, the petition for Probate/Letters of Administration was filed after refusal of said Sri Talapatra to act as the executor renouncing his executorship. In the rejoinder, referring to the Title Suit filed by the caveator, it was indicated as to how the prayers for injunction and appointment of receiver were rejected. As regards the criminal case, it was contended that the same was filed by the caveator only to harass the members of the trust. Be it stated here that after the demise of the testator, the Trust Board as named in the WILL was formed and came into existence. It is the Trust which was managing the affairs of the newspaper till the same was taken over by the caveator after rejection of prayer for stay of the impugned judgment of the Trial Court by order dated 30.6.2006. In fact, the possession was taken over on the very following day i.e. on 1.7.2006., as against the plea of the appellants that the rejection of prayer for stay of the impugned judgment was not an executable order. This aspect of the matter has been mentioned by the appellants in CM Application No. 291/2006 now pending along with this appeal. In the rejoinder, some of the events such as writing of letters by the testator, talking over mobile phone etc. during the period of his illness were also mentioned.

15. It was the specific plea of the appellants that on 24.9.1997 a special meeting was held in the office premises of 'Dainik Sambad' in the contents of the WILL were read out in presence of all including the caveator. The minutes of the meeting were published on the following day i.e. 25.9.1997 in the issue of the newspaper. In fact, the caveator participated in the meeting in which she spoke about the Trust formed pursuant to the WILL and the measures it had taken for onward progress of the newspaper. This aspect of the matter was also published in the said news item. As regards the financial benefits to be extended to the caveator and her children in terms of the WILL, the appellants stated in the rejoinder as to how the same was being extended. According to the appellants the testator had a very strong personality and was a man of such stature that nobody around him could influence him in any matter.

ISSUES BEFORE THE TRIAL COURT

16. On the basis of the pleadings the Trial Court proceed with the matter upon formulation of the following issues:

(1) Is the suit maintainable in law;

(2) Whether the WILL was duly executed by the deceased Bhupendra Chandra Datta Bhaumik;

(3) Are the petitioners entitled to get Letters of Administration in respect of the WILL;

WITNESSES AND DOCUMENTS IN THE PROCEEDING

17. The appellants examined 7 witnesses and exhibited 20 documents. On the other hand the respondents examined 4 witnesses and exhibited 3 documents of which exhibit-A and B are bunch of documents. The witnesses and documents of the rival parties are indicated below:

PETITIONERS'/APPELLANTS' WITNESSES

a) Sri Pradip Datta Bhaumik - PW 1

b) Sri Sanjoy Paul - PW 2

c) Sri Swapan Kumar Chakraborty - PW 3

d) Sri Debabrata Banerjee - PW 4

e) Sri Somnath Banerjee - PW 5

f) Sri Dilip Datta Bhaumik - PW 6

g) Smt. Paramita Livingston - PW 7.

PETITIONERS'/APPELLANTS' EXHEBITS

(i) Signature of witnesses No. 1 Sri Pradip Datta Bhaumik in the WILL as Exhibit - 1

(ii) Dainik Sambad dated 15.8.1997 as -EXehibit - 2

(iii) Dainik Sambad dated 25.9.1997 as Exhibit-3

(iv) Letter dated 2.8.1997 (S.O) as Exhibit-4

(v) Signature of Bhupendra Datta Bhaumik in the letter dated 2.8.1997 as Exhibit 4/1.

(vi) Air tickets Nos. 4994489 and 4994490 as Exhibit-5.

(vii) Cheque No. 388446 dated 12.7.02 as Exhibit-6.

(viii) Affidavit dated 17.7.2003 as Exhibits.

(ix) Photographs SL No. 1 & 2 (S.O) as Exhibit-8.

(x) Documents of movable telephones (S.O) as Exhibit-9.

(xi) Signature of witness Swapan Kr. Bhattacharjee in the WILL as Exhibit-1/1.

(xii) 11 Signatures of Datta Bhaumik in the WILL (S.O) as Exhibit 1/2 (series).

(xiii) Signature of PW 4 Debabrata Banerjee in the WILL as Exhibit 1/3.

(xiv) Signature of Sanat Kumar Biswas (Typist) in the WILL as Exhibit 1/4.

(xv) WILL (S.O) as Exhibit 1/5.

(xvi) Signature of Giridhari Shil in the affidavit already marked as Exhibit-7 as Exhibit 7/1.

(xvii) Statement showing repayment of loan dated 1.4.02, 9.6.2000, 27.9.1999 as Exhibit-8(1) series.

(xviii) Statement of turnover and profitability since 1995 as Exhibit-9/1.

(xix) Letters of Bhupendra Datta Bhaumik dated 4.6.1997, 4.6.1997 and 9.6.1997 as Exhibit-10 series.

(xx) Money receipt to Bhupendra Datta Bhaumik dated 16.8.1997 as Exhibit-11.

CAVEAT0RS/RESP0NDENTS WITNESSES

(i) Smt. Meera Datta Bhaumik - OPW1

(ii) Sri Benoy Bhusan Sarkar - OPW2

(iii) Smt. Durba Datta Bhaumik-OPW3

(iv) Dr. Bimal Bhaumik - OPW4

Ceaveators'/REspondents' Exhibits

(a) Seized papers - seized by police in C/W Police Cases as Exhibit-A (series)

(b) Syandan Pratrika dated 9.1.999, Vivek dated 9.1.1999, Tripura Times dated 9.1.1999, Daily Deshar Katha dated 7.1.1999, Jagaran dated 7.1.1999, Tripura Observer dated 7.1.1999, Manash Patrika dated 7.1.1999 and Tripura Darpan dated 7.1.1999 as Exhibit- B series.

(c) Visiting card of witness Meera Datta Bhaumik in LSKM Hospital as Exhibit-C.

Evidence on Record Evidence of the Petitioners/Appellants

18. PW 1 is the nephew of the testator and has been named in the WILL. As per the WILL he is to continue as the publisher and printer of the newspaper. In the examination in chief by affidavit (hereinafter referred to as 'the affidavit'), he stated about his association with the newspaper since 1973 in various capacity. He also stated about the illness of the testator and as to how he came to know about the same. He met him along with Dr. ML Saha, one of the Trust members on 17.8.1997 in the hospital. He stayed in Calcutta till the next day i.e. 18.8.1997. When he met the testator on 17.8.1997, he enquired from him about the newspaper. As per his statement he had again gone to Calcutta on 28.8.1997 having come to know that the testator would be shifted to Apollo Hospital, Chennai. He had gone to Chennai on 28.8.1997 and was regularly attending the testator till lst September, 1997. Thereafter he left for Calcutta by train on 2.9.1997 and after staying for few days in Calcutta returned to Agartala on 7th September, 1997. He found his uncle mentally active and alert till 28.8.1997. He also stated about the aforesaid meeting held on 24.9.1997 in the office premises of Dainik Sambad and the publication of the news item on the following day. He also proved Exhibit-2, 3, 4 and 4/1, of which Exhibit 4/1 is the signature of the testator.

19. In the cross examination he stated about his presence in the meeting held on 24.9.1997 alongwith other staff. He also stated about the presence of the caveator. To the specific question that the caveator was absent in the meeting, he denied the same. He also stated the publication of the news item on 25.9.1997. He also reiterated the statements in the affidavit. He further stated that he knew that his uncle i.e. the testator was a diabetic patient with heart and kidney problem. According to him the cause of death of his uncle was kidney failure. To the specific suggestion that the testator was in a senseless condition, he denied the same. He categorically stated about receipt of fax message dated 2.8.1997 from the testator detailing instruction to the functionaries of the newspaper.

20. PW 2 Stri Sanjoy Paul is one of the members of the Trust named in the WILL and he is an advocate by profession. In fact he was the Income Tax consultant of the testator and he used to call him as 'Bhupen Da'. As per his statement in the affidavit, Sri Somnath Banerjee (PW 5) informed him over phone on 2.8.1997 that the testator was desirous of seeing him. On getting the information he left for Calcutta by Air on 3.8.1997 and he met him in SSKM Hospital on the same day evening. The testator disclosed to him about his intention to make a WILL. He further informed the PW 2 that he had already talked to Dr. HK Saha Roy, Bar at law, another member of the Trust asking him to meet him. After sometime the PW 2, left the hospital and again returned at about 6-30 PM. In the meantime, Dr. HK Saha Roy had visited the hospital and told the testator that Sri Debabrata Banerjee, Advocate would be sent for the purpose of making the WILL. The PW 2 kept on visiting the hospital till his return to Agartala on 8.8.1997. On 5.8.1997, the testator told him that Sri Debabrata Banerjee, Advocate had visited him and that he had already furnished instructions for preparation of WILL and the said Advocate noted down the same.

21. On 6.8.1997 aforementioned Advocate Sri Debabrata Banerjee alongwith his typist Sri Sanat Kumar Biswas came to the hospital alongwith the typed written WILL. The testator went through the same and wanted to make some changes and correction. The Advocate advised him to do the same in his own handwriting putting his signatures wherever the corrections and are changes were to be made. Accordingly the testator made certain changes and corrections in the WILL and put his signatures in each page of the WILL. This was done in presence of PW 2 and Dr. ML Saha. Both of them alongwith PW 3 signed the WILL as the attesting witnesses. In his affidavit, he further stated that he would be able to identify the signature of the testator as well as his own signature. He also stated that at the time of execution of the WILL the testator was mentally active and alert and that after execution of the WILL, he handed over the same to him for keeping in safe custody.

22. The aforesaid witness also stated about the meeting held on 24.8.1997 in which the caveator was also present and delivered speech appreciating and praising the Trust created by the testator. He also stated about the creation of the Trust by a Deed of Trust on 22.11.1997 and the decision to pray for Letters of Administration by Sri Dilip Datta Bhaumik, one of the legatees. He further stated about the production of the WILL in original in the Court on 11.1.1998 as per direction of the Court. This witness proved his signature in the WILL as one of the attesting witnesses.

23. In the cross examination he stated that the testator had to be admitted in hospital.as he was ill and that he did not know as to whether he was seriously ill. He denied the suggestion that he was not in Calcutta at the time of execution of the WILL and that he did not put his signature in the WILL. He further stated about the visits to the hospital on 3rd, 4th, 5th, 6th and 7th to meet the testator, however, he stated that the visiting cards for such visits were not available and were not produced before the Court.

24. PW 3 is a Chartered Accountant and another attesting witness of the WILL. In the affidavit he stated about his association with the testator upon introduction in 1988 and as to how he was engaged to conduct statutory audit of the newspaper, which he had been doing since then. According to him he used to visit the testator, whenever he had gone to Calcutta. During the period of illness also he visited him. On the date of execution of the WILL i.e. on 6.8.1997 he was present inside the cabin of the hospital in which the testator was staying. Like that of PW 2, he also stated about the execution of the WILL on 6.8.1997 with corrections and alterations by the testator in his own handwriting. According to him the testator did so placing the WILL on a small table. Dr. ML Saha and Sri Sanjoy Paul, the attesting witnesses to the WILL put their signatures as was asked by the testator. He also stated about the presence of PW 5 and 6, who according to him were almost constantly attending the testator. He further stated about the execution of the WILL by the testator by putting his signatures. He also put his signature as one of the attesting witnesses on being asked to do so by the testator.

25. In the affidavit, he further stated that the testator put his signature in presence of all the attesting witnesses and that he would be able to identify all the signatures including that of the testator. Further statement made by him is that he visited the hospital on two/three occasions and he found the testator mentally active and alert. According to him he was fully conscious about his responsibilities and used to COMMAnd in his usual fashion. He used to take all necessary information and furnish instructions. At the time of execution of the WILL he found the testator fully conscious and careful and was satisfied about his act of execution of WILL. This witness identified his own signature Exhibit 1/1 and so also all the signatures of the testator in the WILL (Exhibit 1/2 series).

26. In the cross examination, he categorically stated that he found the testator sitting on his bed when he had visited him on 6.8.1997 and that he had conversation with him. He denied of giving false evidence. He also denied that the Exhibit 1/2 series signatures are not of the testator. He also denied the suggestion that the attesting witnesses put their signatures afterwards to create a false WILL. He categorically denied the suggestion that due to physical condition, it was not possible on the part of the testator to make correction in the WILL putting the same on a small table on his bed. He generally answered the questions put to him regarding his task as an auditor of the newspaper.

27. PW 4 Sri Debabrata Banerjee is an Advocate by profession. In his affidavit he stated about his introduction with the testator in 1987 when he had visited the chamber of his senior to meet his nephew-in-law Sri Bibhas Saha. On 3.8.1997 Dr. HK Saha Roy, Bar at law, who was his professor in law telephoned him intimating about the desire of the testator to execute a WILL. Dr. Saha Roy requested him to accompany Sri Somnath Banerjee (PW 5) to meet the testator in the hospital and to take instruction for preparing the WILL. According to him Somnath came to his chamber on 4.8.1997 and took him to the testator in the cabin of the hospital. The testator gave him instruction regarding preparation of the WILL and he noted down the same in plaint paper. Next day he prepared the WILL as per the instruction so furnished and got the same typed out by Sri Sanat Kumar Biswas, the typist of his chamber.

28. On 6.8.1997, he alongwith Somnath (PW 5), Sanjoy (PW 2) and Swapan (PW 3) went to the testator in the hospital cabin and he produced the typed written WILL to him. The testator went through the contents of the WILL and thereafter told him that he would like to make certain additions and alterations. He also wanted to know as to whether he could do the same to which the witness stated that he could do so by his own handwriting. Thereafter, the testator took sometime to make the corrections and additions in his own handwriting putting initials or signatures wherever corrections/alterations were made. Thereafter, he executed the WILL by putting his signatures in each page. He also stated as to how he alongwith Sanjoy, Swapan and Dr. ML Saha witnessed the execution of the WILL and they put their signatures as the attesting witnesses. After execution of the WILL the testator handed over the same to Sri Sanjoy Paul (PW 2).

29. This witness stated that the WILL bears his signature. He proved his signatures with date (Exhibit 1/3). He also proved the signatures of the testator (Exhibit 1/2 series) and stated about the signatures in places of corrections/alterations. He identified the signature of the typist Sri Sanat Kumar Biswas (Exhibit 1/4) as well as the WILL (Exhibit 1/5). He also stated as to how the WILL was handed over to Sri Sanjoy Paul (PW 2).

30. In the cross examination, he stated about his visit to the testator on 4.8.1997 and as to how he saw him on the bed in a half lying position. He also stated about taking down the notes as per instruction of the testator. As regards the illness of the testator, he stated in his cross examination that he was not aware as to whether he was seriously ill or not. He reiterated his statement that he had handed over the WILL to the testator who in turn executed the same by making the corrections and additions by putting his signatures. He denied the suggestion that his draft was not approved by the testator by putting his signatures in each page of the WILL. He categorically denied that the suggestion that the testator was senseless and was at the stage of COMMA with effect from 3.8.1997 to 6.8.1997 and also after that. He denied that the testator was not in a position to talk and he also did not give any instruction for preparation of the WILL. He categorically denied that he drafted the WILL at the instance of Sri Sanjoy (PW 2), Bibhash, Somnath (PW 5), Dr. ML Saha and Dr. HK Saha Roy. He categorically stated that the testator himself wrote the word '6th', in the WILL. He also stated that the testator himself recorded the age of his children.

31. PW 5 Sri Somnath Banerjee is the manager of the newspaper office at Calcutta. He has stated in his affidavit about his employment since 1988. According to him the testator used to put much reliance on him. Whenever he used to go to Calcutta, he was advised to be present in the Air port. During his stay at Calcutta he used to visit him regularly. On 22.7.1997 he alongwith another attended the Air port at Calcutta on receipt of a telephone call that he would be reaching Calcutta by morning flight. Unexpectedly, he found that the testator was carried by stretcher. One Dr. HS Roy Choudhury, who was traveling by the same flight told him that the testator suddenly felt ill in the Aircraft and he advised him to hospitalize him immediately. The testator first had gone to his house at Saltlake, to see his wife and children and thereafter was taken to the Peerless Hospital. His wife declined to accompany him. The doctors there after examining him advised for admission and thus he was admitted.

32. After admission in the Peerless hospital, as per the advise of the testator he sent message to Dainik Sambad office at Agartala and also to his friend Dr. ML Saha stating about the illness and hospitalization. He stated as to how the testator was a man of firm decision and wanted his decision to be executed soon. He was shifted to SSKM Hospital at Calcutta on 26.7.1997 as per his own desire. In the meantime on or about 23.7.1997 Sri Dilip Datta Bhaumik (PW 6) and Dr. ML Saha came to Calcutta. He stated about the visit of many people to the hospital including his relatives and wife i.e. the caveator. As per his statement on 2.8.1997 the testator called him and told about his desire to make a WILL and asked him to request Dr. HK Saha Roy to meet him. On 3.8.1997 Dr. Saha Roy met him in the hospital on his way from the High Court. Again on 4.8.1997 he asked him to call Sri Debabrata Banerjee, Advocate from his chamber. He also called Sanjoy Paul and Subhasish Talapatra, both Advocates of Agartala as per desire of the testator. Although, Sri Sanjoy Paul had come but Subhasish Talapatra did not turn up.

33. In his affidavit, he further stated as to how on 2.8.1997, he had faxed the written instruction furnished by the testator to the functionaries of the newspaper. He produced the original letter written by the testator with the statement that the testator was mentally active and alert. His further statement is that on 6.8.1997 Sri Debabrata Banerjee (PW 4) and others (PW 2 and PW 3) were brought to the testator as per his advice and also as to how the others were present. In the evening Swapan Kumar (PW 3) informed him that the testator has executed the WILL. He also made some statement as to how the testator during his stay in the hospital maintained his COMMAnding habits. On 6.8.1997, he asked him to do some important works like taking some information from Agartala regarding the working of the newspaper etc. According to him evenafter 6.8.1997, though the testator was physically suffering, but he was mentally alert and active as before. He remained with the testator all throughout. According to him, the testator instructed him to call Smt. Paramita Livingston (PW 7) to come to Calcutta from Agartala with the Independence Day Special Issue of 15th August, 1997. Accordingly, she came to Calcutta on 15.8.1997 and sat with the testator and discussed various issues regarding running of the newspaper.

34. Further statement made by this witness is that on 18.8.1997 he purchased one mobile telephone set for the testator and he used to keep contact with Agartala establishment over phone. During one of those days he asked Smt. Paramita (PW 7) to come to Calcutta with fish of his pond at Agartala and picture of his Nagichara garden. Accordingly, Paramita had gone to Calcutta. This witness proved the original bill of purchasing the mobile phone. One important peace of evidence given by this witness is that on 27.8.1997 the testator drew and signed a cheque bearing No. 388446 on United Bank of India, Old Court House Street Branch, Calcutta for a sum of Rs. 80,000/-, for payment of Belleview Clinic and other essential expenses. The Cheque was duly passed and after verification of his specimen signature and was encashed. He proved the Xerox copy of the cheque. Another peace of evidence given by this witness is about the purchase of two Air tickets by Sri Giridhari Seal, a close friend of the testator, for the caveator and master Kaniska, son of the testator for their journey from Calcutta to Chennai. However, the tickets had to be returned to Indian Airlines from where they were purchased, as they did not undertake the journey. He proved the affidavit sworn in by said Sri Giridhari Seal. According to him, the caveator harboured ill will, disaffection and disrespect towards her husband.

35. PW 5 identified Exhibit 4 the letter dated 2.8.1997, which was written by the testator in his presence and was handed over to him for sending to Agartala through fax. Accordingly he had faxed the same. He also stated about submission of bills of purchase and use of the mobile phones in the proceeding. He also identified Exhibit 9, the documents pertaining to the mobile phone. He also stated that he knows Giridharilal Seal and he identified his handwriting and signature in Exhibit 7 and 7/1 i.e. the affidavit sworn by Giridhari. He also identified the Exhibit 10 series letters of the testator and the money receipts (Exhibit 11) pertaining to the treatment of the testator in SSKM Hospital from 5.8.1997 to 16.8.1997.

36. In the cross examination he stuck to his statements made in chief regarding the mobile phone. He denied the suggestion that at the relevant time, the testator had no capacity to talk. He also stated about the two Air tickets to Chennai and denied that the caveator and her son were not allowed to go to Chennai. He further stated that Rs. 80,000/- was issued in favour of Smt. Parijat Saha, the niece of the testator who resides in Calcutta. To a suggestion that the testator used to keep blank cheque duly signed by him, he replied that he did not know the same. He stated that the cheque for Rs. 80,000/- was issued to meet the hospital expenses and to purchase the two tickets for Chennai. He also stated about attending the Airport on 22.7.1997 alongwith Giridhari Seal. The testator desired to see his children and accordingly went to his house at Saltlake and from there went to hospital where he was admitted. He stated that he was not aware as to whether the testator had developed any kidney problem, but stated that the testator had high blood pressure, sugar and pancreas problem.

37. As regards the visits of the wife to hospital, he stated that he saw her one day and probably that was on 23rd/24th July, 1997. As regards the shifting of the patient to another hospital, he stated that the same was as per his own desire. He denied the suggestion that the testator was shifted to another hospital without informing the family members and other relatives. He specifically stated that whatever he did, he did so talking to his wife, who in turn told him to do whatever her husband desired. He denied that the testator was in a senseless condition and was unable to talk. He stuck to his statement in chief regarding execution of the WILL by the testator. He was told about the desire of the testator to make a WILL. He stated that he was not aware as to whether the testator was given morphine injection on and from 2.8.1997 which continued upto 6.8.1997. He also stated about the visit of Paramita Livingston as per advise of the testator. He denied the suggestion that on 6.8.1997 the caveator and other relatives including one Sri Binay Sarkar was present in the hospital.

38. PW 6 Sri Dilip Datta Bhaumik is the appellant No. 1, who had first filed the petition for Probate. The deceased was his uncle (father's brother). In the affidavit, he stated as to how the testator fell ill on 22.7.1997 and his visit to Calcutta on 23.7.1997 to see his uncle. He stated that on all previous occasions, whenever the testator had fallen ill at Calcutta, he wanted his presence. He stated that he was accompanying the testator all throughout since 23.7.1997 till he died at Chennai. He also stated about the execution of the WILL on 6th August, 1997 as was told by Somnath (PW 5). He also stated that since the day of his meeting with the testator at Calcutta till his journey to Chennai on 28.8.1997, the testator was fully conscious, alert and mentally active and he used to discuss various matters with doctors and friends attending him. He also stated about the meeting held on 24.9.1997 referred to above. Lastly he stated that the origin WILL was produced by Sri Sanjoy (PW 2) and the same was kept in the safe custody of the Court. He identified the WILL marked as Exhibit 1/5.

39. In his cross examination he stated about his marriage after four years of the execution of the WILL. He denied the suggestion that he was not entitled to get any benefit, as he did not marry within 6 months from the date of execution of the WILL. He denied the suggestion that he alongwith others was responsible for the death of the testator. He also stated about creation of the Trust as per desire in the WILL. He denied the suggestion that he did not attend the testator in any one of the hospitals and that the testator was in senseless condition and in COMMA stage.

40. PW 7 Smt Paramita Livingston is also one of the petitioners for Probate/Letters of Administration and she has been named as the Managing Editor of the newspaper as well as one of the trust members by virtue of her office. She in her affidavit stated that the testator was her relative. He was cousin of her mother. She has been in close association with the newspaper since long. She stated that at the time of death of the testator she was working as Assistant Executive Editor. At the time of making the statement, she was working as Executive Editor and was a member of the trust.

41. She generally narrated the incident relating to hospitalization of the testator and his treatment at Calcutta. She received the fax message on 2.8.1997 in the handwriting of the testator wherein certain in structions were furnished. By the said fax message, it was interalia provided that she should go to Calcutta with the Intendance day Special issue of the newspaper. Accordingly, she had gone to Calcutta on 15.8.1997 and met the testator. He generally looked all the pages of the newspaper and read some of the articles. He enquired as to why the print out was not brought out in three colour combination. She explained the difficulties in doing so listening to which he was satisfied. She also stated about her second visit to Calcutta with fish and fruits from the pond and garden of the testator. She also carried few photographs of Nagichara garden at Agartala belonging to the testator. Seeing the photographs he expressed his happiness. Some of the photographs were affixed to the affidavit. She stayed at Calcutta upto 29.8.1997 and returned on 30.8.1997 after the deceased left for Chennai. She specifically stated that on 28.8.1997, she arranged meal for lunch and the deceased took lunch in her presence. She found him mentally active and alert. After his death, his dead body was brought to Agartala on 10.9.1997 and was cremated on 11.9.1997 at Nagichara according to his last wish. She also stated about the meeting held on 24.9.1997 in which the caveator was also present. In the meeting the last WILL of the testator executed on 6.8.1997 was read out by Sri Dilip Sarkar, Advocate. In the meeting, the caveator delivered a speech highlighting the WILL. A news item regarding the meeting was published on 25.9.1997 in which the speech delivered by the caveator was also mentioned. The newspaper dated 25.9.1997 was exhibited. She identified the WILL marked as Exhibit 1/5.

42. In her cross examination she stated that from the life time of her mother, she has been residing in a house at Krishnanagar, owner of which was the testator. Her mother was the printer and publisher of the newspaper. She stated about her employment as Assistant Executive Editor and as to how she became the Managing Editor by virtue of the WILL. She admitted that by virtue of her office, she became a member of the trust. She denied the suggestion that she was not authorized to seek Letters of Administration. She stated that the value of the property would be around one crore. After the death of the testator she could learn that the testator executed the WILL on 6.8.1997. To the suggestion that she did not visit Calcutta during the period of stay of the testator in the hospital, she denied the same. She categorically stated that diet for the testator used to be supplied from her sister's house at Calcutta. She also denied the suggestion that the testator was unconscious till death. She admitted of having seeing the caveator once in the Daffodil Hospital. She also stuck to her statement regarding the meeting held on 24.9.1997. Denying the suggestion made, she stated that the testator was in active mental condition and was able to speak. She stated that the allegations made are all false.

EVIDENCE OF THE CAVEATORS/RESPONDENTS

43. DW 1 Smt. Meera Datta Bhaumik is the wife of the testator and natural guardian of her minor children. She in her affidavit stated about her good and cordial relationship with her husband. According to her she used to look after the affairs of the newspaper in absence of her husband when he had visited places outside Tripura. According to her she gained experience by doing so. She used to visit places like Calcutta, Delhi etc. alongwith her husband in connection with the affairs of the newspaper. Her husband never informed her about execution of any WILL by creating a Trust Body. He never expressed any such desire. He never did anything regarding family maters and the newspaper without discussing with her. According to her the testator was suffering from hypertension, heart and kidney problem since long and on many occasions under went treatment in Saha Nursing Home at Agartala of Dr. ML Saha, one of the members of the trust. According to her the Trust Body members conspired to grab the property of the testator and created the purported WILL. She stated about her regular visits to the hospitals at Calcutta to see her husband. Some time, she also talked with the doctors and nurses about the condition of her husband, who in turn told her that they were trying and nothing could be said. She stated that since last week of July, 1997 till his expiry on 9.9.1997 her husband had no earthly sense and was at the stage of COMMA. Her husband last talked to her on 23rd July, when she visited him in Peerless Hospital, Calcutta.

44. According to her the testator was shifted to other hospitals although the doctors of the earlier hospital were not willing to release him. She further stated that such shifting was made without her knowledge. According to her the WILL is a forged one and not legally valid. She stated about her regular visits to the hospital. She also stated that Smt. Paramita (PW 7) and the Managing Editor of the newspaper forcefully took away the keys from the security guard of the newspaper office one Sri Kamal Bhaumik. Smt. Paramita furnishing written acknowledgement took the keys. She stated that Paramita took away the valuables from the residential house of the testator. She stated about the seizure of the hospital documents by the police and production of the same before the Trial Court. She volunteered for treating the same as the documents for the caveator. She also furnished the documents obtained by her from the hospitals at Calcutta. According to her the WILL is not a valid one and was created by fraud and foul play with a view to grab the property of her husband. She also stated that Dilip Datta Bhaumik having not married within 6 months of making of the WILL was not entitled to get any benefit from the WILL.

45. She proved the Exhibits as mentioned above. The hospital documents were exhibited as Exhibit A. She denied her presence in the meeting held on 24.9.1997. She denied the suggestion that she did not raise any objection regarding the news item published on the following day highlighting the minutes of the said meeting and her participation. She denied the suggestion that in the Title Suit filed by her she did not make any mention about the news item. She could not say anything about the classification of the advertisement, but denied that she did not know about the advertisement in the newspaper. She stated that by 'COMMA' she meant senseless condition and almost at the last stage. However, at the same breath, she also stated that the doctors of the hospital told her that her husband was proceeding towards the stage of COMMA. She also admitted that the condition of the patient was indicated in the bed tickets of the hospitals. She also admitted that in the hospital document, there was no mention about the COMMA stage of her husband. She stated that she was unable to say whether in senseless condition a patient could be administered morphine injection as she was not a doctor. She denied that in the hospital documents dated 6.8.1997, there was no mention of any serious condition of her husband. She admitted that her husband was a patient of kidney and heart, since before (2 years) and used to be treated in the Nursing Home of Dr. ML Saha. She denied the suggestion that she never visited Agartala to see her husband.

46. In the cross examination she admitted that the newspaper took loan of Rs. 64 lakhs from TIDC and till death of her husband even the principal amount was not refunded. She admitted of going to Nagichara garden at Agartala where the testator was cremated as per his wish. She denied the suggestion that she did not go to Chennai alongwith her husband intentionally. She stated that although later on she tried to go to Chennai but was prevented. However, she did not state as to who had prevented her. She denied the suggestion that she had last talked with her husband on 23.7.1997. She also denied that she was not involved in the administration and management of the newspaper. She denied that she was present in the condolence meeting held on 24.9.1997 and that did not raise any objection regarding the news item published on the following day i.e. on 25.9.1997. She also denied the suggestion that under the management of the trust the circulation of the newspaper has gone up.

47. DW 2 is one Shri Binay Sarkar. He in his affidavit stated that he knew the subject matter of the case and that he knows both the parties. According to him, he had friendly relationship with the testator and he used to visit him. He stated that he visited his brother one Sri Khokan Sarkar at Calcutta. On 3rd August, 1997 he went to see the testator in SSKM hospital on receipt of the information from the caveator. According to him, when he visited the hospital he found the caveator and her elder daughter Smt. Durba Datta Bhaumik (OPW 3) in the hospital. He found the testator in serious condition and was informed by the caveator that her husband was not well and was not able to speak. On call he could only open his eyes. Doctors told the caveator not to disturb him and not to call him. He stated that the caveator requested him to bring a morphine injection and other medicines as prescribed by the doctors. According to him he took the prescription from the caveator and brought the medicines and handed over to her. On 6.8.1997 also he visited the hospital and found the testator in serious condition developing breathing trouble. He could not recognize any person and practically had no sense. He lastly heard on 10.9.1997 that the testator died at Chennai. The testator never told him anything about making of any WILL.

48. In his cross examination he denied the suggestion that he had no acquaintance with the testator at any point of time. He also denied that he never visited the hospital to see the testator. He admitted that he did not produce any proof about his visit to the hospital on 3.8.1997 and 6.8.1997. Later on he said that he visited the hospital during visiting hours. He denied that he deposed falsely at the instance of the caveator.

49. DW 3 is Smt. Durba Datta Bhaumik, the daughter of the testator. She more or less stated in tune with the statement made by her mother i.e. the DW 1. In the cross examination she denied that the trust members are not the beneficiaries of the WILL. She admitted that they alongwith their mother would get movable and immovable properties as per the WILL and that after they attain majority they would be members of the trust. She denied that she alongwith her mother did not visit the hospital in Calcutta. She also denied that her father was in a fit condition particularly on 6.8.1997 to execute a WILL. She denied execution of the WILL on 6.8.1997.

50. DW 4 is Dr. Bimal Bhaumik, the retired Director of Health Services, Government of Tripura. He deposed that he being his house physician from 1986 knew the testator. It was known to him that in July, 1997 he was in hospitals for treatment. He was present in Calcutta, while the testator was shifted from Peerless hospital to SSKM Hospital. He did not talk with him on that day. The deceased also did not talk to him. He again met him on 27.8.1997 in Daffodil Nursing Home. He stated that seeing the history sheet dated 6.8.1997, he could know that the testator had acute Chronic Renal Failure (CRF), which according to him starts atleast 6 months earlier. He stated that in case of CRF, the patient could be weak, restless, drowsy and may suffer from loss of concentration and judgment etc. The patient may reach the stage of COMMA and eventual death. According to him, he noticed the patient developing gangrene. Referring to some published articles of medical bulletins, he generally described the medical terms. Particularly referring to a injection prescribed on 2.8.1997, he stated that the injection was meant for chest pain.

51. In the cross examination, he admitted that there are super specialists in the SSKM Hospital. He stated that even at the time of leaving for Calcutta, the testator was ill and was medically advised not to attend a conference. He voluntarily stated that the testator was suffering from illness since 1996 and used to be admitted in the Nursing Home. He stated that when he last examined the testator it was not a case of CRF. He admitted that in the hospital documents the testator was not described as ill, restless and to be at COMMA stage. However, according to him, he was in a serious condition. He admitted that the hospital documents did not mention about development of gangrene. He also admitted that restlessness, COMMA stage etc. were not mentioned in the hospital documents. He stated that to arrest further spread of gangrene, medicine disprine was prescribed. He denied that no treatment was done for gangrene and stated that the SSKM hospital papers did not suggest for shifting of the patient to Intensive Care Unit (ICU). He also admitted that there was no advise for dialysis. He denied the suggestion that in the SSKM Hospital papers, there was no indication of any crisis concerning the health of the testator. He admitted that it is the common knowledge of everybody that SSKM Hospital is a reputed and sophisticated one in the country. He denied of giving evidence sympathizing with the caveator.

OF THE TRIAL COURT

52. The learned Additional District Judge (No. 2), West Tripura, Agartala, while answering the issue No. 1 in favour of the appellants holding that the petition was maintainable in law, answered the other two issues, which in fact are the main issues against the appellants holding that the execution of the WILL by Late Datta Bhaumik has not been proved in accordance with law and that the propounder/ beneficiaries have utterly failed to remove the suspicious circumstances surrounding the WILL by not establishing the sound and disposing mind of Late Datta Bhaumik in execution of the WILL. It has also been held that since there is no WILL, creation of any trust in the pretext of such WILL is without any basis and thus has no legal status. A consequential declaration has been made that the legal heirs of Late Datta Bhaumik shall be the owners of all the properties left by him. In the circumstances, the learned Additional District Judge rejected the prayer for appointment of administrator by granting Letters of Administration as was prayed for by the petitioners/appellants.

53. I now examine as to how the learned Additional District Judge has arrived at the findings recorded in the impugned judgment. Since the issue No. 1 is not in dispute and the respondents did not insist on the issue regarding maintainability of the suit, this issue need not be discussed. Learned Additional District Judge has answered the issue in favour of the petitioners/appellants holding the petition/ suit to be maintainable. As noted above, although initially the petition was for granting Probate but on refusal of the named executor of the WILL to act as the executor, the petition was treated to be one for Letters of Administration, grant of which has been declined by the impugned judgment.

54. The Trial Court dealing with the main two issues started with the mindset that in absence of the WILL, the caveators would have been the owners of all the properties of the deceased and that the WILL stood on their way to the right of inheritance guaranteed under the Indian law. The learned Additional District Judge has traced back the origin of the law of WILL and the principles involved it making of WILL. The Trial Court also noticed Section 63 of the Indian Succession Act laying down the requirement of attestation of WILL. The special requirement of removing all suspicions about the execution or disposing state of mind of the testator has also been noticed. The learned Additional District Judge has held that the testator has given lot of things to the petitioners/appellants in the name of a trust and consequently took complete control of the assets left by the deceased sparing only a little portion thereof for the legal heirs. According to the Trial Court this is a suspicious circumstance and in such a situation the onus to prove the WILL was heavy on the part of the profounders.

55. While admitting that the caveator has alleged certain facts in respect of the very execution of the WILL and that such facts have to be proved by the caveator, the learned Additional District Judge has held that even without such facts or plea the circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the WILL and thus, the initial onus to remove any legitimate doubts was with the propounders. According to him, the assertion of the propounders and their witnesses that the testator was in full possession of his senses is of little value, unless supported by good reasons founded on facts, which warrant them. The Trial Court has held that it was incumbent on the part of the propounders to examine the doctors, who attended the deceased apart from examining the attested witnesses.

56. The learned Additional District Judge has described the disease suffered by the testator as 'deadly disease'. Referring to the evidence of PW 1 to 7: the learned Additional District Judge has opined that the testator was suffering from 'deadly illness' and ultimately succumbed to the said disease. Therefore, according to him, the law requires that the sound and disposing mind of the deceased was the prime condition to remove the question as to the state of capacity of mind of the deceased. Referring to the clauses in the WILL which according to the Trial Court, 'lot of clauses' in the WILL running to '5 pages', the learned Additional District Judge has observed that as to whether the deceased had the sound and disposing mind even on such 'deadly disease' to execute such a WILL is a question of fact and that mere assertion by the petitioners/appellants that the deceased was capable of making the WILL was not sufficient.

57. The learned Additional District Judge referring to the treatment of the deceased, has described the same as 'life threatening', which according to him, has led to a strong suspicious circumstance about the capacity of the testator to execute the WILL. He has emphasized on the wealthy properties and running of a leading daily newspaper of Tripura. Although, it has been admitted by the learned Additional District Judge that the requirement of Section 63 has been complied with, but observed that it was the duty of the propounders to show by satisfactory evidence that the WILL was signed by the testator in sound and disposing state of mind and that he understood the nature and effect of the dispositions and put his signatures of his own will. The learned Additional District Judge has found fault with the attesting witnesses in not calling the wife of the deceased to apprise her about the execution of the WILL, which according to him was a tacit endeavor of ignoring her. He has put a question mark on this. According to him, when the terms of the WILL are unusual and the testamentary capacity is doubtful, the vigilance of the Court would be roused before pronouncing the WILL. In this connection, the learned Additional District Judge has observed that as per the WILL the legal heirs of the testator would earned only small benefits of the vast properties and that in the name of the Trust Body, the propounders are taking the cream of the running concern i.e. the newspaper. The learned Additional District Judge has gone to the extent of understanding the intention of the testator and the surrounding circumstances, but at the same time has observed that the duty of the Court is to carry out the intention as expressed and none others. According to the learned Additional District Judge, disinheriting the wife with the cream of the imprint concerned is a suspicious circumstance which the Court cannot ignore. It has been observed that the propounders have failed to remove the suspicion.

58. The learned Additional District Judge while distinguishing the decision of the Apex Court, on which the appellants placed reliance, : AIR2005SC4362 (Pentakota Satyanarayanan v. Pentakota Seetharatnam), has found fault as to why the WILL was not registered although there was enough time. According to him, the genuinity of the WILL has thus lost force to some extent, although it was admitted that even an unregistered WILL can be acted upon under the law. The learned Additional District Judge has also observed that a presumption could be drawn that the caveator was kept in dark about the execution of the WILL or its intention of executing the WILL. It has been observed that in the normal circumstances such execution of WILL is never concealed from the wife. On that basis, the learned Additional District Judge has observed that, it is difficult to belief, as a matter of prudence, that such important decision of the dying person was kept concealed from his wife and accordingly the execution of the WILL has been held to be doubtful. It has been observed that the medical evidence adduced by the caveator i.e. the OPW 4 supports the case of the caveator.

59. In a nutshell, what learned Additional District Judge has held is that in view of the suspicious circumstances and failure of the propounders to remove the same, there is doubt about the execution of the WILL. It will be pertinent to mention here that the learned Additional District Judge has noticed that two of the children of the testator has already attained majority and thus would inherit the properties left by the deceased. According to him the conscience of the Court dictates refusal towards grant of Letters of Administration.

60. It is with the aforesaid reasoning and finding, the learned Additional District Judge has rejected the petition for Letters of Administration and has refused to appoint any administrator. In addition, he has also provided that the legal heirs of the deceased shall be the owners of all his properties and that the legal heirs would enjoy the same jointly or by way of partition individually and separately according to (heir own share over the properties. Referring to the annual turnover of the newspaper business, the learned Additional District Judge has gone to the extent of making observation about the higher rate of transaction of the business per year. After referring to such transactions, he has observed that where there are legal heirs/original owners to exercise right over the properties, which has accrued to them by way of inheritance and to act for further betterment of the business, the said legal heirs would inherit the properties and that the appointment of administrator would deprive the legal heirs.

DISCUSSIONS ON ORAL EVIDENCE

61. The WILL in question has been quoted above. Since the learned Additional District Judge has given much emphasis on the clauses of the WILL even to the extent of holding that in the natural course it is the legal heirs who are to inherit the properties of the deceased and that as per the clauses it is the propounders who are to get the cream, leaving a little for the legal heirs, little reference to the clauses may be necessary.

62. The clauses made in the WILL do not deprive the caveator and her children from the properties of the testator. On a bare perusal of the clauses of the WILL reveals that adequate provisions have been made for the wife and the children of the testator. It is true that certain provisions originally made in the WILL in favour of the caveator, i.e. the wife of the deceased have been struck off by the testator himself in his own handwriting, but the same by itself cannot be said to be unnatural. On a reading of the WILL, it gives an impression that the testator wanted the benefits to go to his children more than his wife. However, the WILL has made adequate provision for comfort and peaceful living of his wife and the children by providing adequate measures for them. The testator has even made provision for his cremation at his own garden at Agartala which desire has also been executed without any reservation from the respondents. The testator has also desired that the garden should be converted to a garden of flower and fruits making the same accessible to all the children. He also made provision for the respondent No. 1, his own nephew. He has also indicated as regards his ritual to be observed by his children and has distributed movable and immovable assets among them. He has not deprived his wife from the benefits. Thus on a total reading of the WILL, same appears to be a most natural desire of a person who was not physically well and was under treatment.

63. The whole controversy which has been raised appears to be in respect of running of the Newspaper by the Trust Body. On reading the clauses relating to the Newspaper, there is no manner of doubt that the testator has tremendous love and affection for the Newspaper and he wanted all round development of the same. This is precisely the reason as to why he has expressed the desire in the WILL that the Trust Body, which has been entrusted with running of the Newspaper, is not to make any compromise and to follow the path being followed by him, i.e. fight for the cause of common people without any caste, creed and colour.

64. The testator wanted the Trust Body named in the WILL, to run the Newspaper with honesty, dignity and sincerity maintaining the glorious infrastructure developed by him. In the WILL he has also named the Managing Editor (PW 7) and the Publisher (PW 1).

65. The office of the Newspaper and the imprint are located in the same building in which the testator's residential accommodation also stands. He has maintained the same vesting it to his wife and children with the condition that they will not sell, dispose or rent out the said residential portion. The building consists of five stories of which the 4th and 5th floors consist of the residential part. The other floors will remain with the Newspaper office and Imprint. Had the WILL been prepared by manipulation and/or conspiracy as has sought to be projected by the respondents, such provision for the family in the same building would not have been made. The direction for construction of the four storied residential house distributed each floor among his four children with the stipulation that his wife shall have right to reside there according to her wish, would not have been made, had the WILL been created at the behest of somebody who allegedly tried to grab the Newspaper by creating the Trust Body.

66. Bhupendra Ch. Dutta Bhowmik Trust named in the will comprises of seven members. Neither the appellant No. 1 nor the appellant No. 2 are the members of the trust. However, the WILL provides certain benefits to appellant No. 1, and the appellant No. 2 is named to be the Managing Editor of the Newspaper. The appellant No. 3 is the trust created as per the WILL. It is on evidence that in the meeting held on 24.09.97 to mark the occasion of death of the testator, his wife participated and appreciated the WILL. The minutes of the meeting including the speech were mentioned in the issue of the Newspaper published on the following day. This aspect of the matter is clearly on evidence and the respondents have not rebutted the same by any admissible evidence except stating that the wife had raised objection to the same. Likewise the cremation of the testator in his garden called Nagichera as per his desire in the WILL was also not objected to by her. However, these factors do not necessarily lead to the inference that the WILL was executed validly, although the same is certainly indicative of the factum of acceptance of the same by the respondent No. 1 at one stage.

67. The propounders by filing the petition for Probate/ Letters of Administration discharged their initial burden of proving the WILL, its execution and the signatures of the testator appearing therein. They have examined two out of three attesting witnesses and they have proved the execution of the WILL in their presence, the signatures and the handwriting of the executor as well as the signatures of the attesting witnesses. In the cross examination nothing contradictory could be extracted, rather they stuck off their statements made in the affidavit in support of execution of the WILL by the testator.

68. Apart from the attesting witnesses, PW 3 has also proved the WILL in his statement in affidavit. He categorically stated about making correction and changes by the testator in his own hand writing making use of a small table before him. He was present at the time of execution of the WILL with hand written corrections. In the cross examination, he stuck to the statements in chief and could not be dislodged. Likewise, PW 4 also stated about execution of the WIL in his presence and that the learned Advocate, as per the advice of the testator prepared the WILL and got it typed through his own typist Shri Sanoth Kr. Biswas. He categorically stated about his visit to the hospital on 06.08.97 and the execution of the WILL of the testator by putting his signature in each page and also on the corrections/ changes made by him in his own handwriting. In his cross examination nothing contradictory could be brought out except putting the suggestions that the statements made by him were false and that the testator was not in mental capacity to execute the WILL.

69. PW 5 has also stated about the execution of the WILL on 06.08.97 and in the cross examination he reiterated the same. PW 6 also stated about the WILL executed on 06.08.97 and stuck to the same in his cross examination.

70. From the evidence adduced by the petitioners/appellants, there is no manner of doubt that the WILL was executed by the testator in his sound disposition and mental health on 06.08.97 and the signatures and the handwritings appearing in the WILL are all his, to which the respondents have not raised any credential dispute except stating that the signatures are forged in view of the fact that the testator was at the stage of COMMA. When the petitioners/appellants discharged their initial burden of proving the WILL like any other documents including the signatures and handwritings of the testator, in case of any dispute being raised in respect of execution of the WILL as well as the signatures appearing therein, the onus being shifted to the dispute raiser, it was the bounden duty of the respondents to establish the contention/plea by adducing cogent evidence. They did not raise any dispute regarding the signatures and handwritings appearing in the WILL and did not pray for referring the WILL to any hand writing expert for identification of the signatures of the testator which was the most natural course in case of raising any dispute relating to execution of the WILL and the genuinity of the signatures and handwritings of the testator appearing therein.

71. It may not be out of place to mention here that while the learned Counsel for the appellants during the course of hearing readily agreed for taking expert opinion regarding to genuinity of the signatures of the testator appearing in the WILL, the learned Counsel for the respondents refusing to agree to the same, submitted that when there is no question of execution of the WILL by the testator, he being at the stage of COMMA during the relevant period, signatures appearing in the WILL are forged signatures including the alleged hand writing of the testator. Be that as it may, this aspect of the matter need not detain us. Legal formulations cannot be divorced of the existing fact situation. When the signatures and the handwriting of the testator appearing in the WILL have been proved to the hilt, in case of raising any dispute regarding veracity of the same, it was incumbent on the part of the respondents, onus being shifted to them, to prove the contrary that the signatures and the hand writings appearing in the WILL are not that of the testator.

72. What is the case of the respondents to deny the very existence of the WILL. In this connection, the plea advanced by the respondents opposing the grant of Letters of Administration is that the members of the trust with an ulterior motive created the WILL with forged signatures of the testator. However, it is only in the cross examination, the questions to that effect were put to some of the PWs, but the same was not the pleaded case while raising the objection towards grant of Letters of Administration. The relevant parts of the objection raised by the respondent No. 1 have been quoted above. The only plea advanced is that the testator being at the stage of COMMA, was devoid of any earthly senses from the last week of July, 1997 till his death on 09.09.97, he could not have executed the WILL on 06.08.97. There is no evidence to support the plea except the assertion made by the caveator. It is her own evidence, which has belied her stand that her husband was at the stage of COMMA. She has placed reliance on the medical documents (Exbt. A series) in support of her plea that her husband was at the stage of COMMA. A little discussion about such documents will reveal the hollowness of the claim of the caveator.

73. The evidence led by the respondents has been noted above, The DW-1 and DW-3 i.e. the wife and the daughter of the testator made more or less the same statement. While the wife of the testator made the elaboration, her daughter simply adopted the same. Although, the statement made by the DW 1 is to the effect that the testator was shifted from own hospital to another without her knowledge, but the same is contrary to her own stand in the plaint in Title Suit No. 126/1997 filed by her, about which she made a reference in her objection referred to above. It will be pertinent to mention here that the suit was to be heard alongwith the Probate/Letters of Administration proceeding but was dismissed on 22.2.2003 for not taking steps. Her stand in the plaint will be discussed at a later stage in this judgment. Contrary to her plea of shifting the testator from one hospital to another hospital without her knowledge, in the plaint it was her stand that her husband was shifted with her knowledge and the same was done for better treatment. Although, it is her stand that she was closely associated with the newspaper, there is no explanation as to why she was staying at Calcutta. She has stated about the purported conspiracy by the Trust Body members, without, however establishing anything on that score. Apart from simple denial of the happenings supporting due execution of the WILL by her husband, she could not establish anything. Once her evidence is held to be of no credence to support the case of the respondents, the evidence given by her daughter i.e. DW 3 is also of no value.

74. DW 1 in her statement stated about bringing the Morphine injection, but could not say anything as to why her husband if at all was in a senseless condition would require Morphine injection. Except the simple denial that although her husband was a kidney and heart patient for the last about 2 years, she never visited Agartala, she has not stated anything about her stay at Agartala with her husband. Although she has claimed that she is closely associated with the newspaper, but she could not say the details of its affairs. Contrary to the statement in the Title Suit that she had gone to the Airport to see her husband off to Chennai, in the instant proceeding she stated that she was prevented from going to Chennai. It is in the evidence that two Air tickets were purchased for her journey to Chennai, but on her refusal to go, the tickets had to be cancelled. She herself appreciated the WILL in the meeting held on 24.9.1997 about which a mention was made in the newspaper published on the following day. However, she did not raise any objection to the same. Her denial of not raising any objection is not supported by any evidence on record. She could have easily confronted the same by way of issuing clarification. Her claim that the Trust Body Members made a conspiracy is belied by her own statement that the newspaper was in debt of Rs. 64,00,000/- (principal amount).

75. From the aforesaid evidence adduced by DW 1 and DW 3, there is no manner of doubt that they, except raising feeble plea that the testator being at the stage of COMMA failed to establish anything in that direction.

76. DW 2 is also no help to the case of the respondents. Except stating that he found the testator was in a serious condition in the hospital, he did not say anything about the mental condition of the testator. Likewise, the evidence of DW 4 is also of no help to the case of the respondents. He admitted that the hospital documents did not mention about development of gangrene. He also admitted that restlessness, COMMA stage etc. were not mentioned in the hospital documents. He stated that to arrest further spread of gangrene, medicine disprine was prescribed. He denied that no treatment was done for gangrene and stated that the SSKM hospital papers did not suggest for shifting of the patient to Intensive Care Unit (ICU). He also admitted that there was no advise for dialysis. He denied the suggestion that in the SSKM Hospital papers, there was no indication of any crisis concerning the health of the testator. He admitted that it is the common knowledge of everybody that SSKM Hospital is a reputed and sophisticated one in the country. He denied of giving evidence sympathizing with the respondents. To avoid repetition here again, suffice is to say that there is nothing in his evidence to suggest even remotely that the testator was at the stage of COMMA and that he was not in his sound disposing mind.

77. The evidences on record have been discussed in detail above. A bare perusal and scrutiny of the same leave no manner of doubt that although the testator was under treatment and thus naturally was physically ill, but he was mentally alert with a sound disposing mind and to describe the same to be a stage of COMMA is a travesty of truth, which the respondent wife of the testator sought to project for the obvious reason.

DISCUSSION ON MEDICAL EVIDENCES

78. Ext.A (Series) are the documents on which the respondents have placed reliance in support of their plea that the testator was at the stage of COMMA, during the period from the last week of July, 1997 till his death on 9.9.97. On the face of it, none of these documents indicate that the testator was at the stage of COMMA during the said period. The Patient Discharge Certificate dated 23.3.98 issued by the Belle Vue Clinic indicates that the testator was discharged from the hospital on 27.8.97. The case type mentioned in the certificate is 'renal failure'. It does not indicate that the testator was at the stage of COMMA. Another document contained in Ext.A Series is the report of certain examinations of the testator, issued by the department of Cardiology, S.S.K.M. Hospital, during the stay in which, the testator executed the WILL. As per the report furnished, no abnormality was detected except systolic and diastolic dis-function. Ext. A Series medical documents also contained the documents dated 16.8.97 of Belle Vue Clinic indicating that the testator was feeling unwell and had chest pain and developed weakness. The cause of shifting to the hospital has been mentioned as, for correction of fluid and electrolyte imbalance with possible acute renal failure and for better monitoring of renal, biochemical and cardiological status.

79. As per the said documents, the patient was administered oral medicines even during 10th August to 20th August, 1997. On 20.8.1997, it was suggested for further elevation of head of the patient at least by 6th and for administering medicines orally. His blood sugar level was tested both fasting and P.P on 20.8.97. On 21.8.97, the advice was for omitting calmpose as the patient was drowsy and also for stool examination.

80. Again on 24.8.97, the oral medicines were prescribed, with the remark - 'Intake orally'. On the same day, he was referred to one Dr. Sadhana Roy for his opinion and management. Accordingly, he was examined and the report was furnished on 25.8.97, concurring with the earlier findings with the remark that he was getting adequate therapy for his condition. It was indicated that if his general condition permitted, a particular medicine prescribed might alienate his pain. Advice was to continue with the therapy he was receiving at that time. Further advice was to do the X-Ray of abdomen including heap joint.

81. S.S.K.M. Hospital documents also indicate taking of oral medicines by the testator. He was admitted indicating his addiction only as smoking. It was indicated that he was suffering from pain in the abdomen for the last two weeks. On 28.7.1997, there was remark that the patient had hiccup and constipation. His blood pressure level was tested and the advice was for complete rest. He was also prescribed various medicines.

82. On 3.8.1997, upon examination of the testator at 5.15 P.M. he was indicated as the case of weakness, nausea and no definite cause of chest pain. He was advised rest and oral medicines were prescribed. On 3.8.1997, injection morphine was prescribed along with some other medicines. The date on which the WILL was executed i.e. 6.8.1997, the testator was described to be a case of renal disfunction. On 13.8.1997, oral medicines including Dispirin were prescribed. His stay at hospital as indicated by Ext.A Series medical documents was in the cabin of the hospital and not in Intensive Care Unit (I.C.U.). On 12.8.1997, certain fresh directions were issued prescribing medicines to be taken orally. Nitroderm Patch was prescribed to apply locally after bath daily. The hospital documents have revealed that on 1.8.1997, the testator had - 'no pain' and 'no chest pain'. The patient was advised normal diet with the prescription of certain oral medicines. On 6.8.1997, his blood pressure was measured as 210/90 at 8 P.M.

83. The same is the case when the testator was admitted in Daffodil Nursing Home. The hospital documents indicate that even on 28.8.1997, oral medicines were prescribed some of which were Tablet Dispirin, Tablet Polybion etc. While examining the patient on 14.8.1997, the remark was 'no need for dialysis now'. The patient was shifted to Daffodil Nursing Home on 27.8.1997 and the admission document contains the remarks 'Pt. Conscious', Tmp - normal'. In the same very document, advice on admission was 'rest'.

84. The Hospital documents are with the remarks - 'Pt has had similar episodes several times in the last 5 years' ; 'Pt cooperative'; 'Pt. is a journalist and owner of a leading newspaper. Pl. send the BHT to Prof. A.K. Maity for allotment of VIP Cabin' etc. Medicines were prescribed to be taken before meal.

85. With the above revelations made from the medical documents (Annexure-A Series Ext.) exhibited by the Respondent No. 1 herself, there is no manner of doubt that the testator was not at the stage of COMMA. Needless to mention that a patient at the stage of COMMA with no earthly senses and/or no physical and mental capability as has been claimed by the respondent, his own wife, during the period in question, he could not have taken oral medicines, could not have been advised for rest, normal diet etc. Had it been a case of remaining at the stage of COMMA, the medical documents would have surely indicated the same and he could not have been shifted from one hospital to another. The respondents have not led any evidence to substantiate their claim that the testator was at the stage of COMMA which could have been easily proved by them, had it been so.

86. A patient at the stage of COMMA would have required extra care and caution such as lifting by stretcher while taking him from one hospital to another. The patient at the stage of COMMA could not have been flown to Chennai for better treatment at Apollo Hospital like a general patient, but would have required extra care and caution and accommodation in a special or specially adjusted seat in the aircraft. There is no such indication in the hospital documents, nor the respondents/Caveator have proved so or even pleaded. The respondents also have not led any evidence in that direction so as to convince the Court that the testator in fact, was at the stage of COMMA all throughout i.e. right from the last week of July till his death on 9.9.1997.

87. Apart from the above, even D.W.4 examined by the wife of the testator, who is retired Director of Health Services also did not testify in his deposition that the patient was at the stage of COMMA. He did not even remotely suggest the same. This witness in his cross examination admitted that on his visit to the hospital and seeing the patient developing gangrene, he did not suggest that the patient should be shifted to Intensive Care Unit. He also admitted that there was no advice for dialysis. His only testimony was that to his knowledge, it was a case of chronic renal failure and in such a development, the patient may be weak, restless, drowsy etc. He did not even remotely suggest that the chronic renal failure results in unconsciousness and the testator was unconscious when he met him on 27.8.1997, much after making the WILL on 6.8.1997. It is in his evidence that he testator was suffering from some kind of illness from 1996 and used to be hospitalized frequently. Thus, the illness, which the testator developed during his journey to Calcutta which was also against the medical advice, cannot be said to be sudden and abnormal. Although he developed illness in the aircraft itself, instead of going straight to the hospital, he visited his children at his house at Calcutta and from there went to the hospital. D.W. 4 himself has admitted that the S.S.K.M. Hospital is the renowned and sophisticated hospital in the country.

88. Thus, from the medical evidence as well as the evidence of D.W.4 itself it is clearly established that the plea of the wife of the testator Smti. Meera Dutta Bhowmik that the husband was at the stage of COMMA having no earthly senses and also physical and mental capability is wholesome unsustainable. This finding apart from being established from her own evidence is also established from the evidence led by the petitioners/appellants. When the petitioners/appellants discharged their initial burden of proving the execution of the WILL of the testator with further proof of his signatures and handwritings, the onus to disprove the same had shifted to the wife of the testator who all along claimed that her husband during the period in question was at the stage of COMMA having no earthly senses and also any physical and mental capability. She has miserably failed to do so. Thus, naturally the question arises as to why she has taken the plea of her husband being at the stage of COMMA although he was not. The only necessity was to disprove the WILL and its execution by her husband. The result and effect will be that the management of the newspaper would vest on her and not on the Trust Body as nominated by her husband in the WILL. However, as indicated above, she has miserably failed to establish that her husband was at the stage of COMMA during the period in question.

89. Once it is established that the WILL was duly executed by the testator at the time when he was alert with sound disposing mind and when the WILL and the execution of the same along with the signatures and handwriting appearing therein have been proved to hilt, it cannot be said to be a case of suspicious circumstance. The suspicious circumstance as indicated in the impugned judgment is the creation of the wife of the testator, unmindful of the last wish and desire of her husband with the sole purpose of grabbing the affairs of the newspaper contrary to the wish and desire of her husband that the same be managed by the Trust Body.

90. The learned Additional District Judge even after holding that the execution of the WILL has been duly established and the petitioners/ appellants have discharged their initial burden to prove the same, came to the strange conclusion that the testator was suffering from 'deadly illness'. What does it mean in saying so Is it because the testator after some period of treatment for about 1 1/2 months died Merely because the testator after his treatment for the period died on 9.9.1997, it cannot be said that he was suffering from deadly decease. Learned Additional District Judge did not have expertise to say that. At best, it can be said to be a case of illness or serious illness which the medical documents also suggest. He has given much emphasis to the fact that the testator was brought down from the aircraft on a stretcher and was admitted in the Intensive Care Unit of Peerless Hospital, unmindful of subsequent events. There is no indication in the evidence on record that the testator was further admitted in the Intensive Care Unit thereafter. He was all along in the allotted cabin taking his normal meal. The medical evidence referred to above has disclosed that the testator, not to speak of being at the stage of COMMA, was not even with the sufferings so as to render him with any mental incapability. This is amply demonstrated from his own handwritings and the signatures in the WILL, which have been duly proved by the petitioners/appellants.

91. Learned Additional District Judge proceeded with the matter holding that the terms of the WILL are unusual and the evidence of testamentary capacity is doubtful: He has gone to the extent of observing that as per the WILL, the legal heirs of the testator would get only small benefits and the vast properties would vest on the Trust Body. This observation of the learned Additional District Judge apart from being extraneous and opposed to the principles underlying in making of a WILL, is also factually incorrect. As indicated above, it is not a case of entrusting the majority of the properties to the Trust Body. In fact, the testator has left behind many properties for his children with the provisions for his wife. Had it been a case of any conspiracy as projected by the wife of the testator, the members of the Trust Body nominated by the testator, surely would not have made any provision in the WILL nominating the minor children of the testator as trust members upon attaining the majority. Presently, two out of four children of the testator have attained majority and thus, as per the clause in the WILL, they have become the members of the Trust Body. This aspect of the matter has been completely ignored by the learned Additional District Judge.

92. The learned Additional District Judge while admitting that there was evidence led by the propounder to show that the testator had the testamentary capacity with a sound mind took shelter under purported suspicious circumstance on the ground that the testator was under treatment and was shifted from one hospital to another. He has distinguished the decision of the Apex Court in Penta Kota Satya Narayanan (supra) without however addressing to the basic principles emphasized. He has found fault in rejecting the WILL as according to him, the testator had sufficient time to do so. According to him, on this, a presumption can be drawn that the testator was not in a position to both physically and mentally to tender the WILL before the registering authority for registration. It is with this kind of presumption and unmindful of the fact that the WILL need not necessarily be registered, the learned Additional District Judge proceeded with the matter.

93. Learned Additional District Judge has also put emphasis on the fact that the testator did not discuss about his intention to make a WILL or making of a WILL with his wife. According to him, it is difficult to believe, as a matter of prudence, that such important decision of the dying person was kept concealed by the deceased from his wife and accordingly, the execution of the WILL has been held to be doubtful. This reasoning of the learned Additional District Judge in the context of suspicious circumstance and even otherwise also is wholly unsustainable. A testator making a WILL need not necessarily disclose the same to his wife. Such nondisclosure cannot lead to the inference of any suspicious circumstance, more so, when the testator has made adequate provisions for his legal heirs including the provision of becoming the Trust members by all his children upon attaining majority.

94. Throughout the judgment of the learned Additional District Judge, there is no indication of any forgery of signatures and handwritings of the testator. The duly proved signatures and handwritings of the testator on the WILL have not even obliquely been referred to, but at the same time, much emphasis has been put to the so called suspicious circumstance. In the objection filed by the Caveator i.e. the wife of the testator, there is no statement that the signatures and handwritings of her husband appearing in the WILL are forged. In Paragraph 7 of the objection, after the statement that the testator was at the state of COMMA having no physical and mental capability of making any WILL, the following insertion has been made by hand without, however, any authentication of the same by putting any initial and/or endorsement - 'and thus the signatures appears in the WILL are forged'.

95. Apart from the above, the learned Additional District Judge while not granting Letters of Administration has also exceeded in his jurisdiction in making the provisions as indicated in Paragraph 35 of the judgment. It was not for the Court to observe that the legal heirs of the deceased shall be the owners of the properties both moveable and immoveable and that they shall have the legality to run the general administration of all those properties for their betterment and benefit and that it will be up to the legal heirs to enjoy the usufruct jointly or by way of partition individually and separately according to their own share over the properties. It was also not for the learned Additional District Judge to refer to the profits of the newspaper establishment and then, to observe that when there are legal heirs of the owner, the appointment of any administrator will deprive the legal heirs/original owners to exercise of right over the properties which is accrued by way of inheritance and to act for further betterment of the business. The petition was filed by the appellants for grant of Letter of Administration. If the same was not to be granted after rejection of the prayer so made, it was not for the learned Additional District Judge to make all those observations and directions.

DISCUSSION ON DOCUMENTARY EVIDENCE

96. Since much emphasis has been put on mental capacity of the testator to execute the WILL, although the same is fully established from the evidences so far discussed, I deem it fit and proper to discuss further the evidence led by the petitioners/appellants. Apart from the fact that all the P.Ws have stated about the good mental condition and sound disposition of the testator and have also proved his signatures and handwritings on the WILL and the execution of the WILL itself suggesting his sound mental capacity to execute the WILL, certain other evidence which have come on record may be referred to.

97. The condolence meeting held on 24.9.1997 in the office premises of the newspaper in which the wife of the testator also participated and the news item published on the following day have been noted above. In the meeting, the contents of the WILL were read out and the wife of the testator herself appreciated the same and did not raise any objection. Her participation in the meeting was also indicated in the news item along with the minutes of the meeting to which also there was no objection from her. The cremation of her husband in his garden called Nagichera as per his last wish was also not objected to by her. All these have been proved by the appellants.

98. As against the claim of the Caveator that her husband was at the stage of COMMA from the last week of July till his death on 9.9.1997, her husband was mentally alert with sound disposition and could write Ext. 4 letter dated 2.8.1997 to Shri Kamal Bhowmik who is stated to be the security guard. The well written letter clearly indicate that the author i.e. the testator was mentally alert with sound disposition. In the letter, he enquired about many things including the enquiry as to the progress made in respect of 15th August Supplement of the newspaper. He also enquired about the Bank accounts of himself and his wife. Can this man be stated to be at the stage of COMMA Certainly not.

99. The documents relating to the mobile phone which the testator had purchased have been exhibited as Ext.9. The documents indicate that it was in the name of the testator as subscriber. It was during his illness the phone was used and the petitioners/appellants have led the evidence that the testator used to make contact particularly, at Agartala office during the stay at hospital.

100. Ext. 6 is another document to show the sound and disposing mind of the testator even on 27.8.1997. This document is the cheque dated 27.8.1997 for Rs. 80,000/- drawn in United Bank of India, Calcutta in favour of one Shri Parijat Saha. Can it be believed that a man in COMMA can sign a cheque The plea of the respondents that the testator used to keep signed cheques and perhaps, the cheque is one of such signed cheque, cannot be believed in absence of any reliable evidence led by the respondents.

101. Ext. 11 is the receipt for Rs. 1805/given to the testator by the S.S.K.M. Hospital. The receipt was issued on 16.8.1997. Can a man at the stage of COMMA be given a receipt It is also on evidence that two air tickets for the wife and her youngest son were purchased at Rs. 16,610/- for their journey to Chennai so that she can attend her husband. However, the tickets had to be refunded with cancellation charge of Rs. 200/- when she refused to go to Chennai. Ext. 5 is the refund receipt pertaining to the cancellation of the ticket. One Shri Giridhari Seal has proved the factum of cancellation of ticket and her refusal to go to Chennai to attend her husband. In the affidavit, Shri Seal has stated that the testator was mentally alert and self-confident during the period of treatment in Calcutta. As per his instructions, he had purchased the air tickets for his wife and youngest son, but ultimately, she refused to go to Chennai. The affidavit and the signature of Shri Seal has been exhibited as Ext. 7 and Ext. 7/1.

102. With all the above evidences on record, there is hardly any room to say that the testator was at the stage of COMMA. All the evidences are overwhelming leading to the irresistible conclusion that there was no suspicious circumstance so as to frustrate the very execution of the WILL. Rather, it is the Respondent No.l who for her personal gain has discarded the WILL under suspicious circumstance and the learned Additional District Judge without appreciating the evidence on record and on the basis of the matters extraneous to the real issue has wrongly come to the conclusion that there was suspicious circumstance in execution of the WILL.

ARGUMENT IN THE APPEAL

103. I have heard Mr. Hirak Mitra along with Mr. A.K. Bhowmik, learned Sr. counsel assisted by their juniors. I have also heard Mr. D.R. Choudhury, learned Counsel representing the respondents No. 1, 2, 4 and 5. Mr. J. Mitra, learned Sr. counsel as well as his junior Mr. S. Deb who argued on behalf of the respondent No. 3.

104. On conclusion of hearing, learned Counsel for the parties prayed for time enabling them to file written arguments. During the course of hearing learned Counsel for the parties extensively referred to the evidence on record and made their elaborate submissions in reference to the judicial pronouncements. While Mr. Hirak Mitra, learned Counsel for the appellants submitted that all the ingredients of a valid WILL, being available in respect of the WILL in question, there is no question of projecting a case of suspicious circumstances. According to him, the learned Additional District Judge committed error of facts as well as law in appreciating the clauses in the WILL. He submitted that the dispositions in the WILL are most natural. He also submitted that appreciation made by the Trial Court in respect of the matter is beyond the scope and jurisdiction of a Court of Probate/Letters of Administration. He further submitted that the learned Additional District Judge ought not have gone to the extent of appreciating the clauses in the WILL. Once it is held that the WILL and for that matter its execution is valid, the consequences thereof as per the clauses in the WILL cannot be the concern of the Court, he submitted. It is the wish and desire of the testator which is to be honoured. He finally submitted that since the Trust which was created as per the WILL, which used to manage the affairs of the Newspaper since the death of the testator has been dispossessed forcefully on 01.07.06 after rejection of the prayer for stay of the impugned judgment, with the setting aside of the impugned judgment the status-quo ante, i.e. the state of affairs prior to 01.07.06 is to be restored.

105. Although the respondents are sailing on the same boat, they have projected their case with two sets of lawyers. While Mr. D.R. Choudhury made submissions on behalf of the respondents No. 1, 2, 4 and 5, the respondent No. 3 has been represented by Mr. J. Mitra, learned Sr. counsel assisted by Mr. S. Deb, learned Advocate. Be it stated here that all the respondents are the legal heirs of the testator. While the respondent No. 1 is his wife, the respondents No. 2,3,4 and 5 are his daughters and son respectively. However, as observed above, the respondent No. 3 has been represented by another set of lawyers, although their interest in the matter is common and same. Although they have projected their case by two different sets of lawyers, but their basic thrust of arguments is the same, i.e. the WILL was not validly executed and the circumstances in which the WILL was executed give rise to suspicion which the appellants failed to remove. According to them the testator had no testamentary capacity and it having been specifically pleaded even by stating that the testator was at the stage of COMMA from the last week of July, 1997 till his death on 09.09.97, it was the duty of the propounder to satisfy the Court towards removal of the suspicious circumstances. Referring to the various clauses of the WILL, they submitted that the clauses are extra ordinary and not executable.

106. Amidst the arguments made by the learned Counsel for the parties, it is noteworthy that the learned Counsel for the respondents never argued that the signatures appearing in the WILL are forged signatures and that the signatures and handwritings appearing in the WILL are not that of the testator. However, it can be argued that, since their whole case is that the testator had no testamentary capacity and he was at the stage of COMMA during the period including the date on which the WILL was purportedly executed, there was no question of putting any signature by him. This being the case of the respondents, they could have easily proved that the signatures appearing in the WILL are not the signatures of the testator, if the plea of the respondents that he was not in his earthly senses being at the stage of COMMA during the relevant period is to be accepted. Be that as it may, on the basis of the arguments advanced by the learned Counsel for the parties with the supporting decisions, I now proceed to deal with the matter as it appears from the available materials on record.

CASE LAWS CITED BY BOTH SIDE

107. Learned Counsel for the appellants in support of their case has placed reliance on the following decisions:

1. AIR 1930 PC 57 (1) (Atta Mohammad v. Emperor)

2. : [1987]3SCR552 ( Vinod Kr. Arora v. Surjit Kaur)

3. : 1979CriLJ17 ( The State (Delhi Administration) v. Pali Ram

4. : 1997CriLJ3964 (Ajit Savant Majagavi v. State of Karnataka)

5. : [1999]3SCR1213 (K.S. Satyanarayana v. V.R. Narayana Rao)

6. : AIR1996SC112 (Abubakar Abdul Inamdar (dead) by LRS and Ors. v. Harun Abdul Inamdar and Ors.)

7. AIR 1962 ASSAM 106 (Tajo Ram Nath and Anr. v. Baneswar Nath)

8. : AIR1954SC280 (Ishwardeo Narain v. Sm. Kamta Devi and Ors.)

9. 2006 AIR SCW 2404 (Gurdev Kaur and Ors. v. Kaki and Ors.)

10. : [2002]1SCR132 (Madhukar D. Shende v. Tarabai Aba Shedage)

11. : (2001)9SCC726 (E. Madhavi Pallikkaramma and Anr. v. K.V. Prabhakaran Nair).

12. (2005) 11 SCC 189 (Durga v. Anil Kumar)

13. : AIR1971SC2236 (Smti. Sushila Devi v. Pandit Krishana Kumar Missir and Ors.)

14. : AIR1995SC1684 (Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) LRS and Ors.)

15. : [1995]2SCR585 (PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors.)

16. : AIR2005SC4362 (Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors.)

17. : AIR1959SC443 (H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors.)

18. : (2005)1SCC40 (Daulat Ram and Ors. v. Sodha and Ors.)

19. : AIR2005SC780 (Sridevi and Ors. v. Jayaraja Shetty and Ors.)

20. : AIR2005SC52 (Meenakshiammal (dead) through LRS and Ors. v. Chandrasekaran and Anr.)

21. : [1951]2SCR548 (Bishnudeo Narain and Anr. v. Seogeni Rai)

22. : (1977)ILLJ85SC (Varanaseya Sanskrit Vishwa Vidyalaya and Anr. v. Dr. Rajkishore Tripathi and Anr.)

23. : AIR2005SC2342 (Gayatri Devi and Ors. v. Shashi Pal Singh)

24. : AIR1994SC2562 (Bijendra Nath Srivastava (dead) through LRS v. Mayank Srivastava and Ors.)

25. AIR 1932 CAL 574 (Surendra Nath Lahiri v. Jnanendra Nath Lahiri)

26. AIR 1929 PC 45 (Srimati) Sarat Kumari Bibi v. Rai Sakhi Chand Bahadur and Ors.)

27. AIR 1966 SC 1861 (Bhagat Singh and Ors. v. Jaswant Singh)

28. : [1968]3SCR111 (Om Prabha Jain v. Abnash Chand and Anr.)

On the other hand, the learned Counsel for the respondents have placed reliance on the following decisions :-

1. : AIR1959SC443 (H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors.)

2. : [1975]1SCR687 (Surendra Pal v. Sarasaati Anora)

3. AIR 1992 MP 44 (Ramprasad v. Bhereelal and Anr.)

4. : [1960]2SCR810 (chainpalal v. Mst. Samrathbai)

5. (1963) 1 AER 519 (Ratcliff v. Mc. George)

6. : AIR1963SC890 (Ramkishorelal v. Kamalnarayan)

7. : [2002]1SCR423 (Mauleshwar Mini v. Jagdish Prasad)

8. AIR 1921 PAT 206 (Deputy Commissioner of Singhubham v. Jagadish Chandra Deo Dhabal Deb)

9. : AIR1964Cal34 (In the goods of Mahammad Bashin (deceased)

10. AIR 1956 MAD 200 (In re Leslie Devision Miller)

11. AIR 1987 DEL 307 (Dr. Pari Hingorani v. Shakuntala and Ors.)

12. : AIR2004SC4980 (Crystal Developers v. Asha Lata Ghosh)

13. : AIR2003SC3397 (Iiiachi Devi v. Jain Society Protection Orphans India)

14. (1969) 3 SCC 43 Page 42 (Raman Nadar Viswanathan Nadar v. Snehappoo Rasalamma)

15. : AIR2004SC3957 (Jayamma v. Maria Bai (Dead by Proposed)

16. AIR 1920 PC 119 (Rajammal v. Srinagathammal and Ors.)

17. : [1958]1SCR214 (Al Pr. Ranganathan Chettain v. Al Pr Periakareeppan Chettian)

18. AIR 1937 BOM 374 Shivramdas and Ors. v. B.V. Nerurkar and Ors.)

19. : [1968]3SCR473 (Gorantla Thataiah v. Thotakeena Venkata seebhaiah)

20. : AIR1961Cal359 (AEG Carapiet v. AY Derderian)

21. : AIR2001Mad370 (P. Sivasubramaniam v. S. Karlthi Kumar and Ors.)

22. AIR 1932 CAL 574 (Surendra Nath Lahiri v. Jnanendra Nath Lahiri)

23. : AIR2001MP250 (Kishan Shmg Ahluwalia v. Smt. Sheela Saxena and Ors.)

24. 2006 AIR SCW 2184 (Joseph Antony Lazarus (D) by LRS v. A.J. Francis)

25. : AIR2001SC2802 (N. Kamalan (Dead) v. Ayyasamy)

26. AIR 1922 PC 162 (Muruga Goundan v. King Emperor)

27. AIR 1933 MAD 492 (Ignatia Brito and Ors. v. T.P. Rego and Ors.)

28. AIR 1950 MYS 57 (Rukn-Ul-Mulk S. Abdul Wajid and Ors. v. Gajambal Ramalingam and Ors.)

29. : AIR2002Delhi20 (Yashoda Gupta v. Suniti Goyal and Ors.)

30. AIR 1932 CAL 574 (Surendra Nath Lahiri v. Jnanendra Nath Lahiri)

31. (Pradip Saikia v. Smt. Suwala Saikia and Ors.)

32. AIR 1975 GAU 50 (Kanthi Ram Bora v. Dom Bora)

33. (2005) 3 GLR 297 (Pradip Saikia v. Smt Suwala Saikia and Ors.)

DISCUSSIONS ON CASE LAWS

108. The decisions on which the learned Counsel for the parties have placed reliance are all relating to principles surrounding valid execution of WILL, nature of its proof and the burden thereof, pleas to be raised to establish the existence of suspicious circumstance, unsustainability of the clauses in the WILL etc.

109. Both the parties have placed reliance on the decision of the Apex Court in H. Vengkatachala Iyengar (supra), in which the Apex Court has elaborately dealt with the principles involving proof of WILL. While the learned Counsel for the appellants referring to the evidences on record submitted that the propounders have satisfactorily proved due execution of the WILL, the learned Counsel for the respondents submitted that there being suspicious circumstances the appellants ought to have adduced more evidence to dispel any doubt. It has already seen that there are overwhelming evidence of execution of the WILL by the testator with sound disposing of mind and this fact clearly established on evidence cannot gave rise to any suspicious circumstance as has been contended by the respondents, rather it is the wife of the testator, who by her only plea of her husband being at the stage of COMMA during the relevant period, which plea has been completely destroyed as discussed above has created the suspicious circumstances for herself.

110. The decision in Surendra Pal (supra), on which the learned Counsel for the respondents has placed reliance, is no help to their case. As discussed above the propounders have clearly established the due execution of the WILL by the testator with sound disposing of mind. The evidence of the attesting witnesses as well as the other witnesses has established the execution. Further the testator also made the changes and alterations in the WILL in his own handwriting and the respondents except the feeble plea of forgery of the WILL with the allegation of the same being the product of conspiracy hatched by the members nominated in the WILL to be the Trust Members have not adduced any evidence in support of such a plea. The onus to establish the same was heavy on the respondents, once the primary responsibility to proof the WILL was discharged by the propounders. In the said decision, the Apex Court observed thus:.and where the caveator alleges undue influence, fraud and coercion the onus is on him to proof the same. It has been further pointed out that the suspicious circumstances may be as to the genuinness of the signature of the testator, the condition of the testator's mind, the dispositions made in the WILL, which may be unnatural or unfair or improbable when consider in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the WILL had been obtained by fraud or undue influence, a Probate of the WILL must necessarily be granted, if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind.

111. In the aforesaid decision, the Apex Court quoted the following observation of the Privy Council in Motibai Hormusjee v. Jamsetjee Hormusjee reported in AIR 1924 PC 28.

It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the WILL on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case. 'A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition.'

112. In this appeal proceeding, the respondents have raised numerous pleas never raised before the Trial Court. It is in this context, learned Counsel for the appellants have placed reliance on the decisions in Siddik Mahomed Shah; Vinod Kumar Arora (supra) etc. The case of Tajo Ram (supra) of the Division Bench of this Court has been pressed into service to bring home the point of argument that there can be no objection in law if one part of an instrument is operative as WILL and another part as a document giving possession and management. The decision in Ishwardeo Narayan Singh (supra) has been relied upon to counter the submission of the learned Counsel for the respondents regarding the validity of the clauses in the WILL. In this decision the Apex Court has pointed out that the question whether a particular bequest is good or bad is not within the purview of the Probate Court. It is well settled that in the Probate proceeding the only thing that the Court does is to make declaration upon the validity of the execution of WILL in respect of the properties mentioned therein. It does not declare or decide upon the validity and legality of the dispositions contained therein, In the said decision, it has further been pointed out that there is nothing in law, which requires registration of a WILL and that WILLs in majority of cases are not registered at all. This view has been reiterated in Meenakshiammal (supra). On the same principle the decision in Gurdev Kaur (supra) has also been referred to in which the Apex Court observed that the Court does not sit in appeal over the right or wrong of the testator's decision and that the Court's role is limited to examining whether the instrument propounded as the last WILL of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind.

113. In Madhukar D Shende (supra) on which the learned Counsel for the appellants have placed reliance, the observation made by the Apex Court is that if evidence adduced is legal and convincing, satisfies the conscience of the Court and there is nothing unnatural about the transaction, mere conjecture or unfounded suspicion should not be permitted to sway the verdict that the WILL has been proved. In the instant case, there is no manner of doubt that the WILL was executed by the testator with sound disposing mind and conscience of this Court is clear that the WILL was executed by the testator and there is no suspicious circumstance as has been sought to be projected by the respondents.

114. In Anil Kumar (supra) examining the genuineness of the WILL in question, the Apex Court having found that two witnesses of the WILL deposed that the testator was in sound disposing mind at the time of execution of the WILL and he had executed the WILL after understanding the contents thereof and that the witnesses had put their signatures on the WILL in presence of the testator and in presence of each other, held that, minor contradictions in their testimony cannot put to any doubt the execution of the WIL. Similar view has been taken in Rabindra Nath Mukherjee (supra) and in PPK Gopalan Nambiar (supra). The view expressed in Surendra Pal (supra) has been reiterated in Daulat Ram and Sridevi (supra). In Gayatri Devi (supra), the Apex Court referring to Order 6 Rule 4 and Order 18 Rule 2 CPC has held that fraud must necessarily be pleaded and proved. In the instant case, except a vague statement, no other materials could be brought by the respondents to sustain the plea. In this connection, another decision placed reliance on by the learned Counsel for the appellant is that of Bijendra Nath Srivastaba (supra).

115. The decision in Crystal Developers (supra) on which the learned Counsel for the respondents have placed reliance, is of no help to their case. As in the instant case, in the said case also, the findings of the Trial Court being based and conjectures and suspicion and not on evidence and the inferences drawn being from the circumstances, which neither alleged nor proved, the Apex Court held the findings of the Trial Court as perfunctory. The decision in Jayamma (supra) has been pressed into service by the learned Counsel for the respondents to contend that the Court empowered to grant Letters of Administration although ordinarily may not go into the question of title in respect of property sought to be bequeathed by the testator; the situation will be different where the authority of the testator to execute a WILL in relation to the subject matter thereof is in question. When a statutory embargo exists on execution of a WILL, the Court shall not refuse to determine the question as regards validity thereof. I have failed to understand as to how this observation of the Apex Court can be of any help to the case of the respondents. The authority of the testator is not in dispute. There is no control by any statutory provision to his right to make the WILL. Such right in respect of his property, was not controlled and/or curtailed by any embargo.

116. The decision in Illachi Devi (supra) has been pressed into service by the learned Counsel for the respondents to question the very validity of the prayer of the appellants for grants of Letters of Administration. Having regard to the fact situation involved in the instant case and when the execution of the WILL by the testator with sound disposition of mind making his intention clear, interalia, to run the newspaper by the nominated persons as a Trust Body, such intention instead of being brought into execution as per the wish and desire of the testator cannot be put to question so as to frustrate the very desire of the testator and that too by creating a suspicious circumstance by the wife of the testator, all by herself about which discussions have been made above.

PRINCIPLES AND THE PRESENT CASE

117. 'WILL' as defined under Section 2(A) of the Indian Succession Act means 'the legal declaration of the testator with respect to his property which he desirers to be carried into effect after his death'. The essential characteristic of a WILL, as is well known, is that it is a mere declaration of an intention so long as the testator is alive, a declaration that may be revoked or varied according to the variations in his intention, a disposition that requires the testator's death for its consummation and is but ambulatory or without fixed effect until the happening of this event. The document is a WILL if it contains specific words of which bequest to give into effect after the death of the testator if there are specific words of device. It is not permissible to ignore them. The validity of a WILL in all its clauses is not a relevant consideration in ascertaining as to whether a document contains a testamentary disposition or is only a conferment of an authority to adopt.

118. The golden rule in interpreting a WILL is to give effect to the testator's intention as ascertained from the language, which he has used. The overriding duty of a Court of construction is to construe the language which the testator has in fact employed giving due weight to all the words and rejecting none to which a meaning can reasonably be assigned. The Court is entitled to put itself into the testator's arm chair to construe a WILL and to form an opinion apart from the decided cases and then, to see whether those decisions require any modification of that opinion and not to beckon by considering as to how far the WILL in question resemble other WILL upon which the decisions have been given. The proposition that the WILL has to be read as a whole cannot be disputed. Whether there is a WILL on the basis of the document, the probate Court certainly will not proceed to consider as to whether or not the disposition of the property was good or bad. The primary duty of the probate Court is to see first whether prima facie, the document constituted a WILL.

119. In the instant case, the WILL in question is a typed written one also containing handwriting of the testator. Under Section 59 of the Indian Succession Act, every person of sound mind not being a minor may dispose of his property by WILL. As regards the onus in case of WILL, the rules are quite clear. The normal rule is that the onus lies in every case upon the party propounding a WILL. The law is well settled that the conscience of the Court must be satisfied that the WILL in question was not only executed and attested in the manner required under the Indian Succession Act and that it was the product of the free volition to execute.

120. There may, however, be cases in which the execution of the WILL may be surrounded by suspicious circumstances. In the instant case, the WILL is a typed written one also containing own handwriting of the testator. Its execution has been duly proved. The evidences on record have been discussed above. As a matter of fact, the appellants have produced enough evidence to prove the WILL. A sound disposing mind is essential when executing a WILL. From the evidence on record, it is amply evident that the testator was in his sound disposing state of mind and he had put his signatures in all the pages and also under the corrections and insertions made by him in his own handwriting.

121. The first duty of the Court is to take note of setting in which the WILL was made by the testator. Needless to say that in construing a WILL, all important considerations is the ascertainment and effectuation of the testamentary intention. The passions and prudence and even obsession of the testator have to be taken account to. His prudence against a near relative by itself is no ground for invalidating his WILL even if such prudence is ill founded or unreasonable. The testator is at liberty to omit his relations or reasons that may be bad and this will not deprive him of his testamentary power.

122. As the WILLs are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from person in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in the highest degree, position or to the same extent as before the illness in order to enable him to validly make his WILL. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour but he should have the capacity to understand the nature of his property, memory to remember the relations and persons normally having claims on his bounty and has also a judgment. As observed by their Lordships of Privy Council in Judah v. Isolyne reported in AIR 1945 PC 174, the fact that the testator was unwell when he executed the WILL is a long way from saying that he had no testamentary capacity. The testator does not have to be found to be a perfect state of health to have his WILL declared valid. It is sufficient to prove that he was able to outline the manner in which his estate was to be disposed of.

123. Where once it has been proved that a WILL has been executed by a person of competent understanding, the burden of proving that it was executed under undue influence is on the party who alleges it. The Privy Council laid it down in Mst. Gomtibai v. Kanchhedilal, reported in AIR 1949 PC 272 that undue influence in order to invalidate a WILL must amount to coercion or fraud. Its extents must be established and it must also appear that it was actually exercised on the testator.

124. The burden of proof of undue influence is not discharged by mere establishing that a person has the power unduly to overpower the WILL of the testator. It must be shown that in the particular case the power was exercised and then it was by means of exercise of that power with the WILL was obtained. In the present case, no evidence has been adduced and the burden of making of the WILL by providing undue influence was definitely on the respondents who have miserably failed to discharge it.

125. Section 68 of the Evidence Act deals with proof of the execution of document required by law to be attested. In the instant case, the execution of the WILL has been witnessed and attested by 3 witnesses, 2 of whom have been examined and they have duly proved the execution of the WILL of the testator. In the cross examination, nothing contradictory which can be stated to be of material effect could be extracted. As observed above, the illness, not even serious illness would invalidate a WILL. All that is required to lead evidence to the effect that the testator had a sound disposing mind notwithstanding illness at the time of execution of the WILL. It is true that the propounder was ill and was under treatment but it is clearly on evidence that he was with sound disposing mind and even furnished instructions to the learned advocate for preparation of the WILL. He could even make alteration and changes in the WILL by his own handwriting. All these have been proved to the hilt.

126. A WILL is one of the most solemn documents. By it, a dead man entrusts to the living to carry out of his wishes and it is impossible that he can be called either to deny his signatures or to explain the circumstances in which it was executed. The contents of the WILL have been quoted above. On a plain reading of the same, it is apparently in perfect form and the evidence of attesting witnesses has to be trusted. In the instant case, the testator was ill. However, the onus has been sufficiently discharged by proving of disposing mind notwithstanding illness. Needless to say that a finding regarding testamentary capacity is one of fact and the evidence on record is overwhelming to establish the factum of testamentary capacity of the testator.

127. Section 61 of the Indian Succession Act says that a WILL or any part of a WILL, making of which has been caused by fraud or coercion or by such importunity as takes away the free agency of the testator is void. The law makes a great presumption in favour of the genuineness of a holograph WILL for the very good reason that the mind of the testator in physically writing out his own WILL is more apparent in holographic WILL than where his signature alone appears to either a typed script or to a script written by somebody else. In the instant case, the WILL is a typed written one with insertion and changes by the testator in his own handwriting. This is precisely the reason as to why the learned Counsel for the appellants during the course of hearing submitted that the WILL is partly typewritten and partly holographic.

128. Nothing was brought out in cross examination to discredit the witnesses. There was absolutely no cross examination on the very attestation of the WILL and also in other aspects as discussed above. The trial Court instead of adverting these crucial aspects arising in this case, has gone beyond the jurisdiction in making the observations and in considering the matter about which discussions have been made above. The general principles governing the presumption of due execution and attestation are, if a WILL appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim 'omnia presumuntur rite esse acta' applies, unless it is clearly proved that the WILL in fact, was not duly executed. The Court of probate has long being accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced where no suspicion of fraud has occurred. While the presumption in the case of ordinary WILLS is as indicated,, in the case of holograph WILLS, the presumption is all the more, a greater presumption.

129. The testator who had full testamentary powers and a disposing mind cannot be dictated by the Court as to what would have been fair and just disposition, as has been observed by the learned Additional District Judge. The testator has, under the law, freedom to give his property to whomsoever he likes. Once it is established that the testator was free and had a sound disposing mind, it was not the duty of the Court to go further to inject its own ethics of what is or is not the moral or a fair disposition. According to the Court's own standards, the proposition as has been propounded by the learned Additional District Judge to reach the finding towards rejection of prayer for grant of Letter of Administration, if accepted, many a WILL by a husband depriving of his wife would be unjust. Indeed, many a WILL may exhibit man's inequity against his nearest and dearest relations and yet, not on that ground alone for those WILLS being declared invalid. Such wrongs, however, grievous, is not for the Courts to correct. The Apex Court in the case of Smti. Sushila Devi v. Pandit Krishna Kumar reported in : AIR1971SC2236 has held that, prima facie, the circumstances that no bequest was made to the natural heirs by the testator would make the WILL appear unnatural, but if the execution of the WILL, satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the WILL invalidated.

130. The ultimate test is whether the WILL is genuine and valid or not, and the suspicious circumstances have been dispelled or not, would be the usual test of the satisfaction of prudent mind in such matters. If there is no justifiable reason to hold otherwise, the wish and desire of the testator should be upheld once the execution of the WILL has been proved in accordance with law and there were no suspicious circumstances. In the instant case, there was no any suspicious circumstances, rather the conduct of the wife of the testator in describing him to be at the stage of COMMA devoid of any earthly affairs contrary to the overwhelming evidence that he was never at the stage of COMMA and was in possession of sound and disposing mind rather leads to suspicion as to the motive of such claim. One must not forget that if the wife succeeds, as she has, before the trial Court that the WILL is nonexistent one, the newspaper which was so dearer to the testator as could be gathered from the attending circumstances, would go to her along with all other properties. Was it so unnatural on the part of the testator to wish and desire, that his lifetime achievement in the form of the newspaper, be run by the Trust Body, members of whom were so well known to him. At the same time, he also kept in his mind about the involvement of his children in running of the newspaper by making the provision that upon attainment of majority, all of them would be members of the trust. This vital aspect of the matter did not strike at all the learned Additional District Judge and there is no mention about the same anywhere in the impugned judgment.

131. Needless to say that it is always improper to presume a WILL to be a forgery primarily from a consideration of its contents. It is not permissible for the Court to do what the Courts are often invited to do on behalf of the objects, namely, to make up the Court's minds about iniquitous character of the contents of the WILL and then to look at the positive or direct evidence in favour of the execution of the WILL from that standpoint. Such a course has been condemned by their Lordships of the Privy Council in Jotindra Nath v. Raj Lakshmi Devi reported in AIR 1933 CAL 449. It is also improper for a Court to start making all kinds of speculations as to the circumstances and suspicion which make it impossible that the WILL would have been executed. As has been observed in Harmess v. Harkishon reported in AIR 1946 PC 156, there is no presumption either in fact or in law as seems to be commonly supposed that a WILL if propounded must be forgery. Where it is pleaded that the WILL is the result of fraud and collusion perpetrated by the legatee and propounder, as has been held by this Court in Chandra Kanta Medhi v. Lakheswar Nath reported in AIR 1976 GAU 94 the burden of proof is shifted upon person who alleged it. In absence of evidence that the WILL has been obtained by coercion, undue influence, fraud etc., the challenge to its validity must fail.

132. In the instant case, it is not the pleaded case of the respondents, not even a suggestion of existence of any suspicious circumstance. the half hearted allegation of signatures being forged are also not supported by any evidence. There is also no evidence of undue influence. On the other hand, the evidences are overwhelming that the testator had sound disposing mind. During the course of examination of the appellants' witnesses no question were put by the objector regarding such circumstances. It is on evidence that the testator was a strong willed person. In the case of Indu Bala Bose and Ors. v. Manindra Chandra Bose and Anr. reported in : [1982]1SCR1188 , it has been held that a circumstance would be 'suspicious' when it is abnormal or is not normally expected in a normal situation or is not expected of a normal person. Even in slightest imagination, this is not the case in hand.

TITLE SUIT NO. 126/1997

133. The proceeding will be incomplete without mentioning about the aforesaid title suit filed by the respondents. The records of the suit was called for by order passed on 21.8.2006 in CM Application No. 289/2006. As a matter of fact, the trial court also had called for the records of the title suit by its order dated 4.4.2006 upon hearing the parties and recording no objection of the respondents.

134. The aforesaid title suit was filed by the respondents against the appellants and others for a declaration, interalia, a decree by way of declaration that the WILL dated 6.8.1997 is illegal, void, inoperative, fabricated having no force of law. On a reading of the plaint, the allegations, contentions and the pleas raised in the Probate/Letters of Administration proceeding are not to be found. As against the present plea that the testator was shifted from one hospital to another without the knowledge and consent of the wife, it was categorically stated in the plaint that the testator was so shifted for his better treatment. As against the affidavit filed by her in the Probate/Letters of Administration proceeding stating that her husband was so shifted from one hospital to another against medical advise and ultimately to Apollo Hospital, Chennai without her, in the plaint she stated just the opposite. It was her categorical statement that all the shiftings were for better treatment and that she had gone to the Calcutta Airport on 28.8.1997 to see her husband off on his journey to Chennai. Her this own stand completely destroys her pleas of suspicious circumstance.

135. Interestingly, in the plaint, she has admitted the signatures of her husband in the WILL, but stated that the beneficiaries of the WILL might have obtained the signatures of her husband in blank papers. In the plaint she has expressed here apprehension that those blank papers with her late husband's signatures might have been used to make the WILL. It will/be pertinent to mention here that the suit has been dismissed, for not taking steps by the plaintiffs, the respondents herein. Such dismissal was by order dated 22.2.2003.

Above conduct of the wife of the testator finds support to the conclusion reached that it is the wife of the testator who all along has acted in the matter with mystery and suspicious circumstance, rather than there being any suspicious circumstance in execution of the WILL.

DECISION

136. In view of the aforesaid factual position of the case, I have no hesitation to hold that the testator Late Bhupendra Chandra Datta Bhaumik had duly executed the WILL dated 6.8.1997 with a sound disposing mind and there is no suspicious circumstance as was sought to be projected by the respondents which the learned Additional District Judge swallowed not on the basis of any evidence on record, but guided by matters extraneous to the real issue. As discussed above, I have thoroughly scrutinized the evidence on record and upon satisfaction of my conscience have come to this conclusion. Accordingly, all the issues involved in the suit are answered in favour of the appellants.

137. For all the aforesaid reasons, conclusions and findings, the impugned judgment dated 24.5.2006 passed by the learned Additional District Judge, West Tripura, Agartala (Court No. 2) is set aside and quashed. The appeal is allowed. The Letters of Administration as was prayed for, by the appellants stands granted. The matter shall now go back to the Court below for observing the necessary formalities including payment of requisite fees etc. towards issuance of the Letters of Administration.

138. The appellants have filed the Miscellaneous Application being CM Application No. 291/2006 in the appeal praying for restoration of possession and management of the newspaper, Dainik Sambad and Imprint. The prayer has been made in view of the fact that although the Trust Body nominated in the WILL, which had been running the affairs of the newspaper after the death of the testator as per his wish and desire, has been dispossessed forcefully by the respondents on 1.7.2006 after this Court dismissed the CM Application No. 186/2006 refusing to grant stay of the impugned judgment. It has been contended that rejection of prayer for stay being not an executable order and even if it is so, the respondents could not have forcefully entered the office premises of the newspaper and taken over control of the same by using illegal force.

139. As noticed above, after rejection of the prayer for stay of the impugned judgment, the appellant had approached the Apex Court by filing the petition for Special Leave being SLP (Civil) No. 10999/2006 making a grievance against the same. The Apex Court while not interfering with the same provided for early disposal of the appeal with the provision of maximum expenditure, which could be incurred by the respondents in managing the press and publication of the newspaper. Since the appeal has been allowed and the appellants were dispossessed solely on the ground of rejection of prayer for stay of the impugned judgment, it will logically follow that the appellants and for that matter the Trust Body should be restored back with the possession and management of the newspaper and its publication forthwith. Accordingly, it is hereby provided that the respondents shall handover possession of the same to the appellants and/or the Trust Body forthwith and the District and Police Administration shall render all necessary help towards materialization of the same.

140. The appeal is allowed with the aforesaid directions. Registry shall send down the case records to the Court below immediately alongwith the original WILL contained in separate file, in safe custody.

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