Juthika Banerjee and anr. Vs. Santosh Mukherjee and ors. - Court Judgment

Prabir Kumar Samanta, J.

1. This probate appeal is by the heirs and legal representatives of the deceased-defendant No. 1 and against the grant of probate in respect of a holograph Will written in English executed by the testator Narendranath Banerjee on 9th October 1982.

2. The facts relevant for the present purpose are that the testator executed the said Will while he was aged more or less 97 years. He died on 11th October 1984 i.e. after 2 years of his execution of the said holograph Will. The plaintiff respondent was appointed as the executor to the said Will who propounded the Will for the grant of probate.

3. Admittedly the testator died leaving behind him two sons and four married daughters who were all cited in the probate proceeding. One of the sons of the testator, the defendant No. 1, contested the grant while one of the married daughters namely Gita Mukherjee supported the case of the plaintiff, the propounder. All other defendants did not contest the proceeding.

4. The propounder is the husband of one Smt. Arati Mukherjee. The testator by the said Will has made a bequest of the flat of premises No. 38/1-B Gariahat Road, Calcutta situated at North West in the first floor of the said premises in favour of the plaintiff-propounder. The said premises in its entirety belonged to the testator in his absolute right, title and interest. It is also not in dispute that two flats in the ground floor of the said premises at South-West and North-West were transferred in favour of Smt. Arati Mukherjee by virtue of deeds of gift and sale respectively during his lifetime. One other flat at the second floor of the said premises was gifted to the wife and son of the contesting defendant No. 1 by the testator during his lifetime.

5. The testator during his lifetime, instituted a suit for eviction of the tenant of the North-West first floor flat of the said premises inter alia on the ground of reasonable requirement. The said suit, though decreed by the trial Court, the lower appellate Court reversed the said decree of eviction with the observation that the transfers of two flats as above by the testator in favour of Arati Mukherjee were never intended by him to operate as real transfers of his title and as such, the requirement of the testator was not genuine as he had alternative accommodation in the said two flats. It is not in dispute that against the said appellate decree, a second appeal was preferred in this Court which was pending at the time of execution of the Will by the testator.

6. The testator, accordingly made a declaration in the said Will that whatever right, title and interest subsisted in him in the said two flats which had been transferred to Arati Mukherjee as above by sale and gift respectively, shall vest in her after his death if this Court held the same view as aforesaid taken by the Court of appeal below in said ejectment suit. He also expressly made a declaration that Smt. Arati Mukherjee shall enjoy peaceful possession and usufructs free from all encumbrances and hold the said two flats as absolute owner thereof without let or hindrance from anybody claiming through or under him and the executor shall take all steps in the matter, as may be advised and necessary to put Smt. Arati Mukherjee in possession and ownership thereof. A further declaration was made in the said Will that the aforesaid registered Sale was effected in favour of Smt. Arati Mukherjee for which she paid full consideration and the gift deed was accepted by her and the same was acted upon. The said two flats shall stand bequeathed to her if in the eye of law same reverted back to him in future. By this Will direction was given to the executor to proceed with the above appeal in this Court with due diligence and further, after taking probate of this Will, to contest and/or to proceed with the said appeal in this Court till its disposal and to seek appropriate relief if necessary in Supreme Court or any other Court.

7. In the Probate Court the plaintiff deposed as P. W. 1 and produced all the three attesting witnesses to the Will who deposed as P. W. 2 Kali Kumar Mukherjee, P. W. 3 Ajit Kumar Chatterjee and P. W. 4 Dr. Somendra Chandra Gupta. The Will was marked as Exhibit 6 in the probate proceeding.

8. The only son of the defendant No. 1 namely, Bhaskar Banerjee deposed as D. W. 1 for self and on behalf of his mother who were substituted in the probate Court on the death of the defendant No. 1.

9. The P. W. 2 was the Administrative Manager of Sutton and Seeds (India) Pvt. Ltd. Co., which was dealing in various types of seeds including flower seeds. He stated in his deposition that the testator was interested in flowers and vegetables for which he used to visit his office and in this way, he became acquainted with him and subsequently visited his house too. He knew the handwriting of the testator as he used to send him chits in English. He accordingly proved the handwritten Will of the testator. He also denied the fact that the testator did not sign the Will in his presence and further deposed by saying that all other attesting witnesses had put their signatures in the Will in his presence.

10. P. W. 3 proved the Will by deposing that he was acquainted with the testator as being the clerk of Income Tax practitioner who looked after the income tax matters of the testator. He was informed by the testator about the registration of the Will. He specifically stated in his deposition that though he did not see the testator writing the Will but the testator read over the Will in the presence of all who were there and put his signature in his presence and in the presence of other witnesses. He also proved his signature in the Will.

11. PW 4 the doctor witness, similarly proved the execution of the Will by the testator in his presence as well as in the presence of all other witnesses. He further proved the fact that all other witnesses had put their signatures on the Will in the presence of the testator. He stated that he was the physician of the testator for the last 22 years and his family consisted of himself and his nurse. He further deposed by saying that the testator died of Tuberculosis of lungs which was detected only three months before his death. Prior to that he was healthy and his physical and mental condition was normal and he did not suffer from any other ailment and/or senility.

12. None of the aforesaid attesting witnesses could be shaken in cross-examination by the contesting defendants. On behalf of the defendants, no independent material could be produced to show that the testator had no sound disposing capacity to execute the Will. DW-1, the son of the contesting defendant No. 1, admitted in his evidence that his grandfather was struck with Tuberculosis before his death but did not say since when he was so afflicted. Except his verbal statement that the testator was senile due to his old age and that did not execute the Will voluntarily, as he was not mentally and physically sound, he could not narrate any incident whatsoever to support his statement. No other witness was examined on behalf of the defendants.

13. The probate Court accordingly granted probate of the Will as the pro-pounder proved to the satisfaction of the probate Court the due execution of the Will by the testator voluntarily with sound disposing capacity. The contesting defendants did not dispute the signature of the testator as appearing on the Will. Though feebly pleaded, the contesting defendants did not lead any evidence coercion and undue influence in the execution of the Will. The probate Court held that the allegation of suspicious circumstances surrounding the execution of the Will only because of unnatural disposition made by the testator became immaterial when due execution of the Will by the testator and registration thereof were duly proved.

14. Mr. Ashok Banerjee, learned Senior Advocate, appearing on behalf of the defendant/appellants contested the grant on two fold grounds. First, the Will is contingent as it sought to bequeath the two flats to the transferee herself which were transferred by the testator in her favour prior to execution of the Will in the event such transfers are not held valid by this Court in another proceeding. According to Mr. Banerjee the Will was not falling within the definition of Section 2(h) of the Indian Succession Act, as by the said Will, no legal declaration could be made in respect of the said two flats of which title was under cloud and as such the Court was not required to grant probate in respect of the same. In other words, Mr. Banerjee argued that a declaration by a person in respect of a property to be a legal one, that person must have subsisting right, title and interest therein on the date of making such declaration. The second ground is as to the unnatural disposition made by the testator in favour of the legatee, Smt. Arati Mukherjee by depriving his sons and daughters and more so, in the face of the facts that in lieu of the services rendered by her, she was adequately compensated by the testator by transferring two flats in her favour, one by way of sale and the other way of gift.

15. So far as the first point is concerned we have no hesitation to hold the same as totally misconceived because of the simple reason that Section 2(h) of Indian Succession Act qualifies the declaration made by the testator in the Will-as legal, not the right, title and interest in the property bequeathed thereby. It is a well-known legal proposition that the probate Court cannot go into the question of title and it is the function of the probate Court to see in the probate proceeding whether the Will has been duly executed, whether the testator at the relevant time was in sound and disposing state of mind, and whether the testator had understood the nature and effect of such disposition and put his signature and/or mark to the document at his free Will and volition. See the decision reported in : AIR1991Cal166 (Sachidulal Saha v. Saraswati Mondal). In this context it may, at the risk of repetition, be stated that all the three attesting witnesses to the Will including a doctor were examined in the probate proceeding who proved due execution of the Will by the testator and his sound and disposing mental capacity at the time of execution of the Will. Although it was pleaded by the contesting defendants that said Arati Mukherjee got the Will executed by the testator through her influence, but no such evidence was led by the only witness examined by the defendant. Mr. Banerjee appearing for the appellant also has not contended before us that the Will was the product of undue influence of Arati Mukherjee.

16. It was clearly declared by the testator in the said Will that whatever right, title and interest subsisted in him in the two flats in respect of which two deeds namely, Deed of Sale and the Deed of Gift were executed by him, shall vest in Smt. Arati Mukherjee by this Will after his death if by the judgment of this Court in another proceeding, such transfers are held to be not valid. Such recitals in the Will was not in the nature of a disposition of a property which did not belong to the testator. It was not in dispute that the premises No. 38/ IB Gariahat Road, belonged to the testator in absolute right, title and interest. The said premises comprised of several flats. The testator during his lifetime and much before the execution of the Will transferred, by two separate deeds, a Gift and a Sale, two ground floor flats at south-west and north-west respectively in favour of Smt. Arati Mukherjee. By the aforesaid recitals in the Will the transfers as above in favour of Arati were ratified in the event it is observed by a Court of law that such transfers were effected only for the purpose of said ejectment suit and there was no valid transfer of absolute right, title and interest in favour of Smt. Arati Mukherjee. This is furthermore evident from the recitals made in the Will. It has been recited therein that the executor appointed under the Will, will take all needful steps and assistance in connection with the said proceedings as and when necessary and further after taking probate of this Will he will be entitled to contest and proceed with the said appeal till its disposal and may also seek appropriate relief if necessary in Supreme Court or any other Court in India. By this Will there was no further disposition of the aforesaid two flats by the testator. Rather it was a ratification of the transfers already made by the testator in respect of the said two flats in favour of Smt. Arati Mukherjee without making any further disposition in her favour. It was made clear that in the event doubts are expressed as to the vesting of absolute right, title and interest on the basis of the said deeds in favour of Smt. Arati Mukherjee by a Court of law in any other proceeding, then only the said two flats shall stand bequeathed to her. In other words, in the event of holding by a Court of law that right, title and interest did not vest absolutely in favour of Smt. Arati Mukherjee, on the strength of the aforesaid two deeds, then the residuary interest whatsoever of the testator in the said two flats shall stand bequeathed to her. At the same breath it may be said that although for the purpose of eviction of a tenant from a premises though it may be contended that such transfers in favour of Smt. Arati Mukherjee were made by the testator with the sole purpose of evicting the tenant from his /her tenancy but the transfers effected thereby by the testator in favour of Arati Mukherjee would be very much binding between them, as none of the transferor and transferee questioned the same. Such only was the nature of the declaration made in the Will. In that view of the matter the Will is not a contingent one. An estate or interest is contingent if the right of enjoyment is made to depend upon some event or condition which may or may not happen to be performed. See the decision reported in : AIR1932Cal600 Sashi Kanta Acharjee and Ors. v. Promode Chandra Roy and Ors. Again if at the extreme it is held that the testator had divested himself of his right, title and interest in the aforesaid two flats by such transfers then also the Will did not become null and void as by the said Will some other properties were bequeathed in favour of the executor. At its worst the said Will was effective and valid, so far as the disposition is concerned in favour of the executor. On such ground alone the grant cannot also be questioned if the genuineness of the Will was otherwise established in law. It is also not known to us that there cannot be a contingent or conditional Will. Mr. Banerjee has also not shown us any authority in this regard. On the other hand a contingent or a conditional Will take effect only if the contingency happens. Here in this case, practically there was no such contingency for the purpose of giving effect to the provisions made in the Will. The said two flats vested with its absolute right, title and interest in favour of Smt. Arati Mukherjee as in the said ejectment suit the legality and validity of the two deeds were not questioned nor any declaration was prayed therefor. Vesting of absolute right, title and interest in the said two flats in favour of Arati Mukherjee or enjoyment of possession thereof by Arati Mukherjee did not depend upon any finding and/or observation made by a Court of law in an ejectment suit in respect of a different flat instituted by the testator. The question there was whether testator had alternative accommodation in the said two flats even upon transfers in favour of Arati Mukherjee, so that he may not claim for eviction of his tenant from another flat on the ground of his reasonable requirement. In all such reasonings we reject the contentions of Mr. Banerjee.

17. On the next ground it must be borne in mind that the Will is a holographic one. The handwriting of the testator has not been questioned by the defendant /appellants. The due execution of the Will by the testator with his sound disposing capacity while he was physically fit, has been proved by all the attesting witnesses. Mr. Banerjee, challenging the grant, has not questioned such findings by the Probate Court. Upon scrutiny of evidence it becomes clear that at least for the last twenty years before execution of the Will, the testator was looked after initially by Smt. Arati Mukherjee while she was unmarried and by her and the plaintiff/respondents after they were married in or about year 1974 and they continued to look after him till his death. There is not an iota of evidence that any of the sons and daughters of the testator had ever looked after the testator during those years. On behalf of the defendant/appellants none of the near relations nor any of the friends, either of the testator or of the defendants, were examined to show that the testator was looked after even for a small period during those twenty years by any of the family members or near relation of the testator. Besides, the son of the defendant No. 1, none was examined in the probate proceeding by the contesting defendants. It is to be noted that one of the daughters of the testator namely, Smt. Gita Mukherjee filed written statement stating that the testator had executed the said Will with his sound mental capacity and physical fitness. There is no evidence forthcoming that the testator had no sound mental capacity to execute the Will or that he was not in a position to exercise his judgment and volition independently with his full conscience. The son of the defendant No. 1, who alone deposed in the probate proceedings as D.W. 1, had merely stated in his examination-in- chief that the testator was not physically and mentally fit to execute the Will and because of his old age, he was suffering from senility, his speech was blurred and his talks were incoherent. Apart from such deposition of D. W. 1 alone, no other corroborative evidence was led by the side of the defendants to show that the testator was physically and mentally unfit and was suffering from senility due to his old age. The other sons and the daughters of the testator did not come forward to depose in the probate proceeding. On the contrary, the doctor (P. W. 4), who is the attesting witness to the Will proved the execution of the Will in his deposition. He stated that on seeing the Will he enquired from the testator if he had written the entire Will by himself to which the testator had admitted and the same was signed and registered in his presence in the house of the testator. He knew the handwriting of the testator as he used to send chits in English to attend to him whenever his phone was out of order. He was informed about the registration for the Will two days before the date of registration over phone by the testator. He was present at the time of the registration of the Will. It further transpired from his deposition that the testator died of tuberculosis of his lungs, which was detected only three months before his death on 11th October, 1994. Prior to that he was healthy. This P. W. 4 treated the testator till one month before his death. It was categorically denied by him that the testator was seriously ill when he executed the Will or that his physical and mental conditions were not normal. In the face of such evidence of the doctor and in the absence of any cogent evidence of any other witness as to any other physical and mental condition of the testator, there cannot be any doubt that the testator exercised his judgment and volition freely with sound and disposing state of mind.

18. Where, in the grant of probate, the question arises as to the unnatural disposition by the Will, there the Court must try to get itself into the frame of mind of the testator by placing into the Arm-Chair of the testator along with his relationships with near and dear ones and the circumstances surrounding him before the execution of the Will. This is not an exceptional rule. The Supreme Court in the decision reported in : [1976]2SCR924 Navneet Lal v. Gokul and Ors. held that though for the purpose of construing the language of the Will, the Court is entitled to put itself into the testator's Arm-Chair and is bound to bear in mind also other matters than merely the words need. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense. But all this is solely as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document. If we approach this case from such angle it will be clear and evident that none came from the sons and daughters of the testator to look after him for a long period of 20 years before the execution of the Will. It was admitted by DW1 in his evidence that said Arati Mukherjee was appointed as an attendant of the testator in the year 1962-63 and she worked as such till his death. Initially defendant paid her remuneration. After 2/3 years, the testator started paying her. It did not come out of his deposition that any one of his sons and daughters had ever visited the testator during all these years. He was after all a man of sufficient means. Unfortunately none of his sons and daughters were around him to show sympathy, compassion, love, affection towards him in all those twenty years. No whisper on record as to why he was abandoned by all his sons, daughters and grandchildren. But one thing is clear and evident that this void was filled up by said Arati Mukherjee alone while she was unmarried and thereafter, by her and her husband, the plaintiff/respondent, not only till the date of execution of the Will but till his death. It also appeared from the evidence on record that the testator negotiated her marriage with the plaintiff/respondent. It is also on record that he had to live in a rented accommodation for few years during period of 20 years being driven out by the defendant No. 1 from his own house. It further transpires from the evidence that even in such rented accommodation, the testator was looked after by Arati Mukherjee and not by any of his sons and daughters or by any of his near relations. He could come back to a flat in the said premises after which it was gifted to said Arati Mukherjee. In this backdrop it also transpires from evidence that one flat was transferred in favour of the wife and one son of the defendant No. 1 by the testator. In circumspection of all such facts it was difficult for the testator to reckon any one of his near relations with fond remembrance for disposing his properties by Will.

19. Again, once a Will is proved to have been duly executed by the testator with his sound disposing mental capacity, the recitals made therein will have some evidentiary value unless proved in evidence that such Will was created by undue influence and / or coercion, which is not the case here. In the Will clear recitals are there by the testator that South-West ground floor flat was gifted to Arati Mukherjee to commemorate the service rendered by her towards the testator and North-West ground floor flat was sold to her due to exigencies and urgent necessities for meeting liabilities to corporation of Calcutta and the Income Tax Department, for which the testator admitted that he received and acknowledged consideration in cash in part and balance by instalments leaving nothing due from Arati Mukherjee on the date of execution of the Will. By this Will, only one other flat at North-West in the first floor of the said premises was bequeathed to the husband of Arati Mukherjee who was appointed executor to the Will by the testator as the said executor also offered him voluntary service to look after his properties and to discharge all his functions on the strength of the power of attorney given to him by the testator.

20. The Calcutta High Court in the decision reported in : AIR1939Cal87 Kristo Gopal Nath v. Baidya Nath Khan held that when a Court is dealing with a testamentary case where there is a large and consistent body of testimony evidencing the signing and attestation of the Will, but where it is suggested that there are circumstances which raise a suspicion and make it impossible that the Will could have been executed, the correct line of approach is to see that the improbability in order to prevail against such evidence must be clear and cogent and must approach very nearly to it, if it does not altogether constitute an impossibility. This decision was cited with approval by the Supreme Court in the decision reported in : AIR1995SC2086 . I have no hesitation to say that in the facts and circumstances of this case as above, there cannot be any improbability of the Will.

21. It will be worthwhile to refer to the decision of the Calcutta High Court reported in : AIR1991Cal166 Sushila Bala Saha v. Saraswati Mondal. It has been held therein that it is a settled proposition of law that the probate Court cannot dictate the testator as to how he should dispose of the property nor can the Court introduce its own ethics particularly when it was established on record that the Will was prepared on the testator's free will and the testator had the necessary sound and disposing state of mind while preparing and executing the Will.

22. Considering all such aspects of this case I am of the view that learned probate Court rightly came to the conclusion that there was no suspicious circumstances surrounding the execution and registration of the Will. All the contentions made by Mr. Banerjee accordingly fail.

23. In view of the discussions as above, I affirm the judgment and decree passed by the learned probate Court.

24. In this view of the matter the application filed by the appellants being CAN 10476 of 2005 for permission to lead additional evidence, such as the judgment passed by the lower appellate Court in the ejectment suit filed by the testator against his tenant for his eviction inter alia on the ground of reasonable requirement to show that an observation was made therein that transfers in favour of Arati Mukherjee by the testator were not really intended to, becomes inconsequential. The same is therefore rejected.

25. The appeal therefore fails and the same is hereby dismissed.

26. However, there will be order as to costs.

27. Urgent xerox certified copies, if applied for, be supplied to the parties as expeditiously as possible.

Tapen Sen, J.

28. I agree.