*REJECTION OF PROBATE APPLICATION

DISTRICT: HOOGHLY

IN THE COURT OF THE JUDGE, SPECIAL COURT (E.C.)-cum-ADDITIONAL DISTRICT

AND SESSIONS JUDGE, HOOGHLY, CHINSURA

Present:- Shri H. Singh, Judge, Special Court (E.C.)-cum- Additional District Judge.

Dated: Tuesday , the 24th day of March, 2009.

Probate Suit No.7 of 1996.

Smt. Mira Dey and Smt. Momita Dey v (a)Dula Chand Dey (b) Shiba Pd. Dey &

Six others.

JUDGEMENT

Petitioners – Smt. Mira Dey, wife of Satyabrata Dey, and Namita Dey, d/o Satyabrata Dey, on 31-8-1995 filed an application for probate of the Will executed by Late Satyabrata Dey, s/o Late Tara Kumar Dey, of 23 Jamindar Bagan Lane, Serampore before the Court of District Delegate at Serampore praying for grant of probate of the Will in their favour in respect of the property mentioned in the schedule to the petition but when the case became contentious, the ld. District Delegate, Serampore vide his Order No.5 dated 13-12-1995 returned the application to the petitioners for presentation thereof before the ld. District Judge, Hooghly. Thereafter the said applicataion was filed in the Court of ld. District Judge, Hooghly on 20-12-1995.

The petitioners in their application alleged that Satyabrata Dey, son of Late Tara Kumar Dey, died on 15-5-1995 at 23, Jamindar Bagan Lane, Serampore and that the deceased had on 12-8-1994 executed his last Will in presence of attestsing witnesses in in respect of his movable and immovable properties at the chamber of advocate – Ram Chandra Si, Serampore and at that time he was mentally and physically fit to execute the Will. The deceased by the said Will bequeathed all his immovable and movable property as described in Schedul A & B in favour of his wife, daughter and minor son equally. The petitioners had alleged that the deceased had handed over the Will to petitioner No.1 on 12-8-94 and that the petitioners Nos 1 & 2 were appointed by him as executors of the Will. In Para-5 of the application the petitioners gave the names and addresses of the near relations of the testator, viz. 1) Mira Dey, the wife, 2) Namita Dey, the daughter, 3) Subhabrata Dey, the minor son, and 4) Chapalaprova Dey, the mother of the deceased. According to the petitioners, the amount of assets that the deceased-testator left and likely to give to the hands of the executors is Rs.642744.88 only from which the petitioners alleged that they are lawfully entitled to deduct a sum of Rs.6000/-. They alleged that no application for probate of the Will and no application for letters of administration have been filed by them.

               The applicaation was contested by Smt. Chapalaprova Dey who in her Written Statement alleged that the application is not maintainable and that the petitioners have no cause of action to file the application. She alleged that the Will in question, is not made by Late Satyabrata Dey and that it is not within the knowledge of the mother and her daughters that any son was born to the deceased. She further alleged that the Will, in question, is not genuine and the deceased Satyabrata Dey before his death never executed any Will nor issue any instruction for preparation of any Will and the contents of of the Will are not the Statement of the deceased. She further alleged that the deceased did not have any physical and mental capacity to execute the Will at the relevant time. She alleged that the attesting witnesses to the Will are unknown persons to the deceased and that the deceased never gave any direction to the Advocate – Sri Ram Chandra Si to prepare any Will. She alleged that the aforesaid Will is very unusual and she denied that the signatures on the Will are that of the deceased. She alleged it appears that the petitioners by using a blank signed paper of the deceased has forged the aforesaid Will. She alleged that the deceased had a lot of love and affection for his mother and in case he intended to execute any Will, he would certainly have stated to her mother about the Will. Later on after her death, O.Ps. 1(a) and 1(h) became substituted as heirs of the deceased Chapalaprova Dey who died on 29-7-2001. Later on one of the O.Ps. Shiba Prasad Dey filed a Written Objection on 06-04-2004 which is similar in line as the Written Objection filed by deceased – Chapalaprova Dey.

On the basis of the pleadings of both the parties, this Court on 27-9-1996 framed the following six issues:-

ISSUES

• 1. Is the Suit maintainable in its present form and prayer?

  2. Is the Will, in question, genuine?

  3. Did the testator execute the Will exercising his free will and consent?

  4. Was the testator physically fit and mentally alert at the time of execution of the Will?

  5. Is the petitioner entitled to get the probate as prayed for?

  6. To what other relief or reliefs are the petitioners entitled?

     1. • • • • • 1. DECISION WITH REASONS

Issue No.1:- This issue was not pressed before me at the time of hearing of arguments by any of the sides. As such, this issue is decided in favor of the petitioners and against the O.Ps. without contest.

Issue Nos. 2 to 6 :- All these five issues are taken up together being interrelated with each other for adjudication for the sake of convenience, continuity and brevity in discussion.

The petitioners in this case examined two witnesses and proved several documents which were marked Exts.1 to 5 in support of their case while the O.Ps. examined four witnesses and proved three documents marked Exts. A, B & C in support of their defence case. It is worth noting that all the three beneficiaries of the Will in question, being the wife, daughter and son of the deceased as per the applicaation are Class – I heirs of the deceased except the mother – Late Chapalaprobha Dey. In other words, even if no Will was in existence, these three petitioners in case their pleadings are correct would have inherited 3/4th of the property of the deceased and only 1/4th thereof would have gone to the mother of the deceased.

The ld. Scholar J.D.M. Derret in his book. “Introduction to Modern Hindu Law” observed, “In India, the law of inheritance has been so recently and so comprehensively been reformed that no one need fear dying intestate, that is to say, without leaving a Will which is capable of taking effect. In a sense, Parliament has made, in the Hindu Succession Act a Will for everyone, and whoever proposes to make a Will should consider whether ever eventuality has not been foreseen by the Parliament, and whether his own preferences would be an improvement.............”

Petitioner – Mira Dey who deposed as P.W.2 in her cross-examination stated, “The age of my mother-in-law is about 87/88 years.” She in her cross-examination also deposed, “Seven days back from the death of my husband, when he was traveling by a Mini Bus with money amounting to Rs.7o,000/- to Rs.75,000/- collected by him, the dacoits took away the said money and as a resulf of which my husband committed suicide. On 25-05-1995 a police case was started in connection with the suicide of my husband.” The cause why the deceased committed suicide is not clear, but it is clear that the deceased indeed committed suicide. Keeping in view the age of the mother of the deceased, as per the evidence of P.W.2, the mother would have died prior to the deceased testator in normal course, had the latter not terminated his life by committing suicide. In such an eventuality, the entire property would have been inherited by the two petitioners and the alleged minor son of the deceased as they in the eye of were Class-I heirs of the deceased and as such there was no need for the deceased to execute any Will. There was no reason for him to become panicky in the year 1994, to execute the Will when no dacoity took place and in the eye of law his wife and daughter would not have been deprived from inheriting his property and yet we find that inspite of the aforesaid circumstances and the legal position, a Will was indeed executed as per the statement of the two petitioners on 12-08-1994. This is something unusual and therefore, circumstances regarding the execution of the Will need to be probed minutely to ascertain whether the story of the petitioners can be believed or not.

A perusal of the Will (Ext.1) discloses the following characteristics:-

• 1. It is written on a letter head pad of the deceased in an ordinary paper instead of any demi-paper or some good quality paper which is normally used for preparing instruments that need to be preserved for a longer period of time.

  2. The signature of the testator is in big size letters while the characteristics of the letters used for prepartion of the body of the Will, signing of the Will by the scribe and the attesting witnesses are in small size letters as if there was an urgency to pack all the essential details of the Will in the small space available in the signed letter head pad of the deceased.

  3. As per Ext.1 (the Will) the same is written, drafted and attested by one advocate – Ram Chandra Si.

  4. The addresses of attesting witnesses Nos.1 & 2 are not given in the Will while that of the 3rd attesting witness – Jayanta Kumar Ghosh is mentioned in the Will to ensure that the signatures of the three attesting witnesses can be accommodated below the space available therein. The address of the 3rd attesting witness is probably given because after the three signatures there was enough space to accommodate his address as well.

  5. In any Will, the signature of the testator is very important and the person drafting the Will always reserves a special space for signing the Will by its maker at the right space by writing his name at the required space so that he may sign above his written name. But in this case we do not find that the person who drafted the Will indicated in any manner where the testator was supposed to sign on the Will. Such lapses are possible only when there is no requirement on the part of the scribe of the Will to indicate the space where the testator was supposed to sign and this may happen if the signatures are already there on the blank paper on which the contents are written later on.

  6. The Will is an unregistered Will though as per Ext.5a the deceased was rich enough to bear cost of Registration.

  7. Attesting witness No.2 – Pradip Kumar Dey - as per the evidence of P.W.1- Ram Chandra Si who himself is an attesting Witness and advocate, is the client of attesting No.1. P.W.1in his cross-examination stated, “Pradip Kumar Dey who signed in the Will as one of the attesting witness is my client.”

  8. P.W.3 – Jayanta Kumar Ghosh is the lawyer's clerk regarding whom P.W.1 stated, “Previously another attesting witness – Jayanta Kumar Ghosh used to work at the Sherista of my elder brother as lawyer's clerk at Chandannagore Court and subsequently, he came to Chinsura.” He in his cross-examination further stated, “The said Jayanta Kumar Ghosh used to go to my chamber regularly since 1988.” In other words, attesting witness No.1, Advocate Ram Chandra Si is the legal adviser, the the person who drafted the Will and also an attesting witness while attesting witness Nos.2 & 3 are his client and clerk respectively and as such attesting witness No.1 on account of his position and relationship with other two attesting witnesses had full control over these witnesses. A client can not be expected to dare to go against his advocate in any case in which his personal interest is not involved. Similarly, a clerk will not go against his employer when his personal interest is not affected.

These circumstances becomes all the more suspicious when we find that the conduct of the attesting witness No.1 who is a practicing advocate is unethical and is on the verge of violation of professional ethics set down by the Bar Council of India under Sec.49 (1) (c) of Advocates Act and the Rule No.13 framed by the Bar Council in Section II – Duty to the client, which reads as follows:-

“An advocate should not accept the brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness of a material question of fact, he should not continue to appear as an advocate if he can retire without jeopardizing his client's interests.”

On the face of the aforesaid requirements regarding the professional ethics, we find that the ld. Advocate – Ram Chandra Si accepted the brief on behalf of the alleged deceased testator and also agreed to sign the Will as an attesting witness knowing fully well that at the time of probate of the Will he will be an important witness to the proceedings. Such abandonment of the professional ethics are shocking as well as surprising. Now, assuming that the petitioners approached P.W.1 – Ram Chandra Si with a request to forge a Will out of a signed pad containing the signature of the deceased – Satyabrata Dey and strikes a deal with the latter, the latter would look for such other attesting witnesses over whom he had complete control, which appears to be the case in the execution of the present Will.

Now, coming to the question as to why the petitioners would do so when even otherwise the beneficiaries were gettiing, even if the Will was not in existence, 3/4th of the property of the deceased, as stated by me earlier in this Judgement. This question needs to be answered because therein lies the reason for possible manufacturing of the Will by the petitioners and others. We have already seen that the deceased – Chapalaprova Dey in Para – 6 of her Written Statement stated that it was not withing her knowledge that deceased – Saytabrata Dey had any son. In other words, in case the minor son, Subhabrata Dey was not the son of the deceased, he would not acquire or inherit any right in the property of the deceased as his son. P.W. 2 – Mira Dey in her evidence stated that the date of birth of Subhabrata is 05-12-1988. He was born at Sadar Hospital Krishnanagar. O.P.W.2 – Mahadev Biswas produced the Birth Register from the District Hospital, Nadia and the copy of the entries from the concerned portion of the said register was marked Ext.B. From Ext.B we find that at Serial No.2680, a son was born to one Kanchan Sarkar, wife of Gautam Sarkar, of Paninala, Nadia on 05-12-1988 at about 11.40 p.m. The name of Kanchan Sarkar was struck off and in its place the name of Mira Dey was substituted later on. This is a very suspicious circumstance as because no mother would be wrong in stating her name as Kanchan Sarkar instead of Mira Dey. It was suggested to P.W.2, though denied by her that one Kanchan Sarkar used to live with her in the house of her husband for the purpose of breast feeding the child. It was also suggested to her, though denied by her, that the said Kanchan Sarkar once demanded back her son and these suggestions are not make in the thin air but Ext. B lends sufficient support towards the possibility that Subhabrata Dey may not be the real son of Mira Dey. Mira Dey can not be the wife of Gautam Sarkar, as it appears from Ext. B, and this was probably done later on to placate the real mother – Kanchan Sarkar that she has not only adopted her son, but also made records to show that he is her real son. This may, exactly be the reason why to make available to the child a legal right in the property of the deceased a false Will was forged by the petitioners in collusion with the attesting witnesses. Ext.C is the copy of the register produced by O.P.W.3 from his office from which we find that the business of the deceased was a joint business of Satyabrata Dey and Siba Prasad Dey since 1965 onwards. From the evidence of 0.P.W.4 – Dulal Ghosh – we find that the deceased used to go to his mother regularly to pay respect to her after bathing in the Ganges and I see no reason as to why the deceased would deprive her 87 years old mother from her right to property and maintenance as the same would not serve any purpose because, even otherwise, she could have easily claimed maintenance from her son by filing a case. Ext.A is a blank document signed by the deceased Satyabrata Dey and proved by O.Ps. which supports the defence case that the deceased was in the habit of handing over signed blank papers to his close relatives so that the same may be used by them when he was away on tour to meet any emergency. The petitioners, it seems, have taken undue advantage of such habit. I have already discussed threadbare the facts and circumstances surrounding the execution of the Will and I am of opinion that these facts and circumstances are crying themselves hoarse, “This Will is forged.” Accordingly, all the five points are decided against the petitioners and in favour of the O.Ps. C.F. Paid is correct. Hence, it is,

O R D E R E D

that the petition dated 31-08-1995 filed before the District Delegate, Serampore, and refiled before the ld. District Judge, Hooghly on 20-12-1995 for grant of probate of the Will by the petitioners is dismissed without costs. Let the Will be resealed and kept in the safe custody.

                                                                                                                                                 ( Harjindfer Singh )

                                                                                                                             Judge, Special Court (E.C.)-cum- Additional,

                                                                                                                                                District Judge, Hooghly.