Full Judgment
Ajoy Nath Ray, J.
1. This is an appeal from a decree granting probate.
2. The Will was executed by one Gayaram in March 1968 and he expired in April, 1969.
3. The two executrices are his two daughters-in-law Kalati Devi and Mandadari Devi, wives of Fagulal and Asorfilal.
4. The executrices are also the beneficiaries. The Will has disinherited theeldest son Matilal, who is the caveator/appellant. The Will states that Gayaramdid not have good relationship with any of his sons and that is the reason of the above bequest.
5. The above caveator alleged that the Will was a product of fraud or undue influence. Also, in arguments, heavy reliance was placed upon circumstances which were said to be suspicious. The first and foremost of those is a long gap of nearly 18 years before the Will was presented for probate. The other fact was that Fagulal was an attesting witness. It was also said that by reason of the extreme physical infirmity of Gayaram before his death he did not have proper . mental capacity for executing his Will.
6. On the part of the propounder it was shown that the Will had been properly attested; one Nani Bhusan Guha, the lawyer, gave evidence stating that the Will was drafted by him on instructions of Gayaram. There is unimpeachable evidence that execution and registration took place on the same date, when Gayaram went from his house at Bentinck Street to the lawyer's chamber at Bagbazar, taking with him a friendly neighbour who was also an attesting witness. After execution the whole party went to the registration office where Gayarain admitted execution and was identified to the Registrar.
7. There is evidence in correspondence that Matilal was living away from Gayaram in the native village and also that there had been some quarrels involving him.
8. The very fact of Gayaram's travel to several places at the time of execution, which was thirteen months before his death shows that he was not physically absolutely infirm. The evidence of Mandadari that Gayaram was mentally quite capable has been accepted by the lower Court and we have no reason to upset that finding.
9. The neighbour's evidence also corroborates the good capacity of Gayaram. The long delay in presentation of the Will was sought to be explained away by saying that the application had not been made because of paucity of funds.
10. Mr. Tandon, learned Advocate for the appellant relied upon the case of Mt. Biro, reported at AIR 1937 Privy Council 101, where there was a long delay of 22 years in presentation of the Will. It was no doubt regarded as a circumstance requiring explanation.
11. Mr. Banerjee, learned Advocate for the respondents relied on the case of Kalinath Chatterjee, reported at 62 CWN 790, for the now well settled proposition that there is no period of limitation for applying for probate,
12. He also relied on the case of Satya Pal Gopal Das, reported at : AIR 1985 SC500 , to show that delay in presentation of the Will and other suspicious circumstances were sufficiently dispelled in that case by the fact that the Will was a registered one.
13. Mr. Tandon also gave us the case of Shashi Kumar Banerjee and Ors., reported at : AIR 1964 SC529 , to demonstrate that suspicious circumstances must always be explained away before probate can be had from a Court.
14. In our opinion, the only point which calls for a decision is the point of long delay. Proof of fraud or undue influence there was none. Execution of the Will stands admitted since an allegation of fraud or undue influence assumes the signature of the testator to be genuine. Also, the registration and other factors shows positively that the testator had actually put his signature.
15. No doubt, delay of the length of 18 years or so, has required, and will hereafter always require, explanation of some sort, depending on the facts and circumstances of each case, before a Will case can succeed by obtaining of a probate. We are of the respectful opinion that neither the Privy Council case lays down that a probate application delayed by 22 years must always fail, nor does the Supreme Court lay down that if a Will is registered, then however long the delay in its presentation, the Court can never look upon such delay as a suspicious circumstance.
16. These Will cases are always decided on the views formed by the Judge by taking into account the totality of the circumstances. Ordinarily speaking, delay can raise the suspicion of a Court in two ways. It might be, that after a long delay anything and everything can be said to be the genuine handiwork and signature of the testator and the Court, at a very great distance of time, will not be able to judge the genuineness of the Will properly. This seems to be the Privy Council case situation but it is not so in our case.
17. On the other hand, the Court might feel suspicious, in this way, that the purported propounders have come before the Court after a very long delay with a Will genuinely signed by the testator, so as to remove by lapse of time, any adverse evidence that might have been given as to the testator's incapacity, or of dominance of the testator's Will, or such other matters, had the application been made freshly after the testator's death and had the evidence in the above regard been also fresh and available at that time.
18. We are unable to find that the second type of suspicion attaches to this case either. May be by coincidence, may be otherwise, almost all the witnesses who could have come to the box have come. There was no evidence to this effect, that because of the lapse of time, some person has not got a hazy memory, or some thing, or some evidence, could have been produced earlier although it cannot be produced now, after a long lapse of time.
19. In these circumstances, we cannot treat the delay of 18 years as a matter of suspicion only because 18 years is a long period of time. There is no rule that a long period of time creates a suspicion in the air. Suspicion, even suspicion, must be given some specific shape. In an equity Court, matters never go by such rules of thumb, that a long gap of time creates a suspicion; it calls for an explanation, but it will be suspicious, in some sort of specific way, only when the explanations fail.
20. In these circumstances, we do not find any infirmity with the grant of probate. We are unable to upset any finding of fact made by the learned Judge who had the opportunity to see the demeanour of the witnesses and assess them; as such, the appeal is dismissed with costs.
Tapan Kr. Dutt, J.
21. I agree.