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APD No. 186 of 2009; APDT No. 7 of 2009; T.S No. 8 of 2003; and PLA No. 14 of 2002

Sanat Kumar Das v. Arati Das

2009 SCC OnLine Cal 2145 : (2009) 4 CHN 593 (DB) : (2010) 1 ICC 648 (Cal)
(DB)

(BEFORE PINAKI CHANDRA GHOSE AND I.P. MUKERJI, JJ.)

Sanat Kumar Das & Ors.

Versus
Smt. Arati Das
For the Appellants : Mr. Swarnendu Ghosh, Adv.
For the Respondent : Mr. Rudradeb Chowdhury, Adv., Ms. D. Ghosh, Adv., Ms. D.
Banerjee, Adv.
APD No. 186 of 2009
APDT No. 7 of 2009
T.S No. 8 of 2003
PLA No. 14 of 2002
Decided on September 16, 2009
The Judgment of the Court was delivered by
I.P. MUKERJI, J.:— In an application for grant of letters of administration, which
was heard as a contentious cause, a judgment and decree was passed on 30th April
2009 granting letters of administration to the respondents. Hence this appeal.
The dispute is about an alleged Will of one Jiban Krishna Das, dated 10th July 1980.
It is holographic, written and signed in Bengali. Jiban Krishna Das lived for some
eighteen years after the alleged Will and died in 1998. His wife predeceased him on
19th November 1993. So did one of his sons on 15th April 1996.
The subject matter of this alleged Will is a three-storied residential house in
Dumdum. Jiban Krishna had all his three living sons at the time of execution of this
alleged Will. He bequeathed one floor to each of his sons for life and upon their deaths,
to his grandsons, by his sons, absolutely. Jiban Krishna also had two daughters who
got nothing under this alleged Will.
As we have noted, one of his sons died on 15th April 1996. This son had one
daughter and one son. His other two sons being Sanat and Nemai had only daughters.
They have challenged this alleged Will on many grounds. They support the grounds
of challenge by the reasoning that the alleged testator, Jiban Krishna, who lived with
one of these two sons could not have made such a Will, knowing that these two sons
had only daughters and that upon their demise their daughters would be deprived and
the son of the predeceased son would enjoy the whole property. That, could not be the
intention of their father, the testator.
One interesting fact is that, the predeceased son also had a daughter, who has not
come up to challenge the Will.
In this alleged Will the alleged testator's wife, Chabi was named the executrix. His
eldest son, Ashim, who subsequently predeceased him, was the named executor.
One attesting witness of the alleged Will was one Dr. Debaprosad Sarkhel,
described as a family physician.
Two substantial grounds of challenge have been made to the Will.
(1) It is a fabricated document that is the Will was not executed by the deceased
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and
(2) The alleged attesting witness had not seen the alleged testator execute the Will
and so an essential requirement of Section 63 of the Indian Succession Act, relating to
the attestation of a valid Will had not been fulfilled.
It is contended by the appellants that the deceased Jiban Krishna was an engineer
and he always signed in English and that the execution and signature of the Will in
Bengali gives rise to considerable suspicion. The signature is not his. Therefore, the
Will is a fabricated document. Secondly, the evidence led by Dr. Sarkhel did not show
that he had seen the alleged testator execute the Will. Hence there was a fundamental
technical flaw in the Will. As a consequence, the Will should fail.
He has also cited B. Venkatamuni v. C.J. Ayodhya Ram Singh, AIR 2007 SC 311
and Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC
780.
We have not seriously invited the respondent to counter the submissions because in
our opinion the appellants have completely failed even to make out an arguable cause.
We have considered the rival contentions of the parties.
It is nobody's case that the alleged testator did not know Bengali. The only case is
that he, to the knowledge of the appellants did not sign in Bengali. If the genuineness
of a Will made and signed in Bengali is to be assailed, more substantive evidence was
required to be adduced to show that the signature was not that of the alleged testator.
No specimen handwriting of the testator had been produced to show that the
signature in the Will was at variance with it. Neither any expert has been called to
disprove the signature in the Will. No other evidence is also led to show that the Will is
a fabricated document, apart from the evidence that the alleged testator, normally,
signed in Bengali. We do think there is any substantive challenged to the genuineness
of the Will and this ground is rejected.
As far as the flaw in attestation of the Will by a witness we find that in answer to
question No. 16 to 21 in Examination-in-chief, Dr. Sarkhel has deposed :
“16.Q. As soon as entered the house did you go to the Registry Office?
A. I went to his residence and after putting my signature, Mr. Jiban Krishna Das
requested me to accompany him to the Registry Office where by signature was
obtained. (Witness volunteered) there was a British Firm by the name and style of
Aluminium Manufacturing Company and Mr. Jiban Krishna Das was an Engineer there.
I passed my Medical Examinations in 1955 and joined the said company in 1958. It
was a part time job. There I became acquainted with Mr. Jiban Krishna Das who was
an Engineer there. Then he requested me that he would execute a Will and I had to
sign as a witness. I put my signature on the Will at his residence and at his request. I
accompanied him to the Registry Office.
17.Q. Before you put your signature on the Will did have any occasion to go through
the contents of the Will?
A. He narrated to me that contents of the Will and told me that since he was
growing old he wanted to execute this Will and asked me to sign as a witness.
18.Q. Look at page 5 of this Will and the signature thereon kindly tell my lord in
chronological order in which the people affixed their signatures?
A. First Is Mr. J.K. Das, then My Signature I.E. of Debi Prasad Sarkhel. Therefore,
Prabhat Kumar Ghosh and Then Satyendra Nath Das. There was also the signature of
another person but whether he was present or not I do not recollect. I remember that
there were these other two persons.
19.Q. Where you in the same room?
A. Yes.
20.Q. Were you in the same room?
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A. yes.
21.Q. So, I take it that he signed in your presence (subject to objection)?
A. Yes.”
He specifically says “I put my signature on the Will at his residence and at his
request (Q 16)” and in his presence (Q. 21)
Further in answer to question No. 160 in cross-examination he said “he executed
the Will at that time in our presence.”
Counsel for the appellants has also shown us various parts of the evidence where
the witness does not remember the person who were present at the time of execution
and attestation of the Will or certain portions of the house he had visited for such
purpose.
The next question is whether the requirement of Section 63 of the Indian
Succession Act has been met. Section 63 is reproduced hereunder:
“63. Execution of unprivileged Wills. - Every testator, not being a soldier
employed in an expedition or engaged in actual warfare, or a mariner at sea,
shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be
signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person
signing for him, shall be so placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the direction of the testator, or
has received from the testator a personal acknowledgement of his signature or
mark, or the signature of such other person; and each of the witnesses shall
sign the Will in the presence of the testator, but it shall not be necessary that
more than one witness be present at the same time, and no particular form of
attestation shall be necessary.”
One phrase is very crucial regarding attestation of the Will by a witness. The phrase
is “each of whom has seen the testator sign or affix his mark to the Will.”
Learned counsel for the appellants argues that the requirement of this phrase is
met only if the witness deposes that he has “seen the testator sign or affix his mark”.
According to him ‘seen’ should only mean seeing with one's eyes open.
He shows us the evidence where the witness has said that the testator signed in his
‘presence’.
He makes a very technical argument. He says a person may be present when the
alleged testator is executing his Will without seeing the testator sign. In other words,
the witness may be with his back to the testator or the witness may be looking out of
the window when the testator is signing or affixing his mark. Evidence of presence by
an attesting witness does not fulfil the requirements of Section 63.
In answer to question No. 21 in examination-in-chief, Dr. Sarkhel says that the Will
was signed in his presence. And in answer of question No. 160 he said “he executed
the Will at that time in our presence.” Again in answer to question No. 146 in cross-
examination Dr. Sarkhel said “had it not been his signature I would not have signed
immediately below that.”
The purpose of proof in a civil proceeding is satisfaction of the Court that on a
balance of probabilities a certain fact exists or does not exist. Here, the court is
concerned with formation of an opinion whether the attesting witness saw the testator
sign the Will. On consideration of the above portions of the evidence we are satisfied
that Dr. Sarkhel had seen the testator signing the Will, after which he put his
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signature in attestation thereof. Particularly so, when the evidence was in Bengali and
transcribed in English as is the practice of the court. Today nobody remembers what
Dr. Sarkhel actually said in the box in Bengali. What is part of the records is the
interpretation of that in English. On appreciation of the evidence before us it is highly
probable that he had seen the testator signing the Will. Moreover, the witness is a
doctor and a layman as far as legal technicalities are concerned. On all probability he
may have meant to say “I saw the testator signing the Will”, but ended up saying that
the Will was signed in his presence, living it open to astute lawyers to explore the flaw
in his evidence.
It would be failure of justice if such little slips were allowed to defeat a Will and
thereby divert succession. It has enormous effects.
In fact, in paragraph 12 and 13 of Yumnam Ongbi Tampha Ibema Devi v. Yumnam
Joykumar Singh, (2009) 4 SCC 780 the Supreme Court has held that the evidence of
an attesting witness that the Will had been signed in his “presence” fulfils the
requirement of this section, although the above technical argument was not before the
court.
Before we part we also add that the Hon'ble Judge of the First Court had rightly
appreciated the facts, the evidence and law and come to the decision that he did.
For all above reasons, we dismiss the appeal and affirm the decree of the Hon'ble
First Court dated 30th April 2009.
Costs will be paid from the Estate.
Urgent certified photocopy of this order, if applied for, be supplied to the parties
subject to compliance with all requisite formalities.
P.C. Ghose, J.
I agree.
———
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