[ad_1]
Calcutta High Court (Appellete Side)
(Madhabi Kundu Since Deceased) & Ors vs Subhra Kundu & Ors on 7 July, 2025
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
2024:CHC-AS:2493-DB
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Rajasekhar Mantha
&
The Hon'ble Justice Ajay Kumar Gupta
F.A. No. 274 of 2013
With
I.A. No. CAN 10 of 2024
Sumit Kumar Kundu
(Madhabi Kundu since deceased) & Ors.
Versus
Subhra Kundu & Ors.
For the Appellants : Mr. Debajyoti Basu, Sr. Adv.
Mr. Diptomoy Talukdar, Adv.
Mr. Shirshania Roy, Adv.
Mr. Dibyendu Ghosh, Adv.
For the Respondents : Mr. Suman Dutt, Sr. Adv.
Mr. Siddhartha Banerjee, Adv.
Mr. Paritosh Sinha, Adv.
Mr. Amitava Mitra, Adv.
Ms. Urmi Sengupta, Adv.
Mr. Naman Agarwal, Adv.
Hearing concluded on : 2nd July, 2025
Judgment on : 7th July, 2025
Rajasekhar Mantha, J.
1. The appellants were the defendants in OS Suit No. 11 of 2001. They are
aggrieved by the grant of letters of administration in favour of the
2
2024:CHC-AS:2493-DB
Respondents by its judgment dated 13th March 2012, passed by the
Additional District Judge, 8th Court at Alipore, South 24 Parganas.
I. FACTS OF THE CASE AND PROCEEDINGS IN THE TRIAL COURT
2. One Hridoy Krishna Kundu died in the town of Durgapur, on 31st May
1977.He was a Hindu governed by the Dayabhaga School of Hindu Law. At
the time of his death, the deceased left behind two sons and a daughter,
namely Gorachand Kundu, Tapan Kumar Kundu, and Jayanti Roy.
3. Gorachand died on 29th March 1992, leaving behind his widow Madhabi
Kundu, two sons, Sumit Kumar Kundu and Amit Kumar Kundu, and a
daughter Madhuchhanda Kundu.
4. On the 23rd of August, 1999 Hridoy Krishna’s younger son Tapan filed an
application (Case No. 341 of 1999) for grant of letter of administration of a
holographic handwritten Will and testament of the deceased testator dated
20th October, 1968 under Section 232 of the Indian Succession Act, 1925
before the Learned District Delegate at Alipore (South 24 Parganas Dist). On
the application being cited, the Appellants, Madhabi, Sumit, Amit and
Madhuchanda objected to the grant of letters of administration. The
daughter of the Testator, Jayanti Roy did not object to the application.
5. Consequently, Case No. 341 of 1999 was converted into Original Suit (OS)
No. 11 of 2001.Defendant no.4, Madhuchanda Kundu, and defendant no. 5,
Jayanti Roy, did not contest the proceedings.
6. During the pendency of the suit, Tapan died on 25th September, 2008. His
widow, Subhra, son Samrat, and daughter Samapika were substituted in
his place.
3
2024:CHC-AS:2493-DB
7. The defendants/appellants contended as follows in the Written Statements:-
a. The Will propounded by the Plaintiff/Respondent was forged, fabricated,
manufactured and fictitious.
b. The deceased had never executed any Will.
c. The deceased was not in a proper frame of mind during the last days of
his life. He had severe old age ailments and was an imbecile. He did not
have the capacity to understand the contents of any documents, much
less the capacity to execute a Will.
d. The Will could not have been written by the Testator in his own
handwriting. The handwriting and signature are not that of the Testator.
8. It is further contended that there were suspicious circumstances
surrounding the execution of the Will in the following manner.
a. The publication of the Will after 31 years of the alleged execution is itself
a suspicious circumstance.
b. The property of the deceased at 13/3/3 Swinhoe Street, Kolkata, now
known as Anil Maitra Road, Kolkata 700019, and the landed properties at
Shantipur in the District of Nadia, acquired by the Testator, have been
voluntarily mutated in the names of the Gorachand Kundu, Jayanti Roy
and the original plaintiff Tapan Kundu, sometime during 1985-86.
c. The deceased, during his lifetime, did not disclose the execution of any
Will. The Will does not deal with a large number of movable properties,
jewellery, furniture, and articles worth Rs. 20 lakhs and Rs. 2 lakhs cash
of the deceased.
9. Based on the above pleadings, the Trial Court framed the following issues:-
“1. Is the suit maintainable in its present form and prayer?
4
2024:CHC-AS:2493-DB
2. Is this suit bad for defect of parties?
3. Has this court jurisdiction to try this suit?
4. Is the Will in question executed by Hridoy Krishna Kundu forged
fabricated or manufactured one?
5. Was Hridoy Krishna Kundu physically fit and mentally alert at the
time of execution of the Will under consideration?
6. Is the plaintiff entitled to obtain letters of Administration of the last Will
of Hridoy Krishna Kundu as prayed for?
7. To what other relief or relieves if any, to which is the plaintiff entitled.”
10. On behalf of the original plaintiff, the first witness was one Dipak Prakash
Kundu, an attesting witness. The plaintiff himself deposed as PW 2. On
behalf of the defendants, only the second defendant, Sumit Kumar Kundu,
deposed.
11. The only surviving attesting witness PW 1 Dipak Prakash Kundu, (then an
Advocate by profession) deposed that on 20th October 1968, the testator
came down to his joint family residence Lake View Road in south Calcutta, a
distance of about 5 kilometers, and climbed 3 flights of stairs to the third
floor and executed the Will. PW 1 was the nephew of the testator (brother-in-
law’s son). At the time of the execution of the Will, the testator’s brother-in-
law, Debaprosad Kundu was present and signed as an attesting witness.
PW 1 left the room after witnessing the Will. It appears that the Will also
witnessed by Ishani Kundu (sister-in-law of the Testator) and one Suniti
Kundu.
12. He further deposed that the testator made corrections in the Holographic
Will in his own handwriting and requested Debaprosad, Dipak, Suniti, and
5
2024:CHC-AS:2493-DB
Ishani to sign as attesting witnesses. All the other witnesses, except PW-1,
died before the filing of the application in the court below. The testator was
mentally and physically sound at the time of execution of a Will.
13. The propounder and younger son of the deceased, Tapan Kumar Kundu,
deposed that he received the Will from his aunt, Ishani Kundu. Ishani died
on 30th July, 1979.
14. Tapan proved the handwriting and signature of his father. The death
certificate of the testator was also proved.PW 1, Dipak Prakash, also stated
that he was brought up in a joint family along with the testator for a
considerable period of time, which is why he was acquainted with his
signature.
15. It transpires from the evidence and pleadings on record that the testator
lived in Swinhoe Street (also in south Calcutta), with his older son
Gorachand and his wife and children until the year 1973. He thereafter
moved to and lived in Durgapur with the younger son, Tapan, until his
death in the year 1977. Tapan had a room reserved for himself in the
Swinhoe Street House. He stayed there whenever he visited Kolkata.
16. It has further come to light in evidence that the testator’s immovable
property at Swinhoe Street and two landed properties at Shantipur in Nadia
District were mutated sometime in the year 1985 or thereabouts in the joint
names of Gorachand, Tapan, and Jayanti, his three children and legal heirs.
17. In view of certain disputes and differences with Sumit, Gorachand’s son, the
original plaintiff Tapan, filed the application in question. The Court below
analysed all pleadings, the evidence on record and found that the
6
2024:CHC-AS:2493-DB
respondents, legal heirs of the original Plaintiff, i.e. younger son of the
Testator, were entitled to letters of administration and decreed the suit.
II. ARGUMENTS ON BEHALF OF THE APPELLANTS
18. Learned Counsel for the appellant would contend that the propounder,
Tapan Kundu has not been able to dispel the suspicious circumstances
surrounding the Will in question for the following reasons:
a. The Will executed on 20th October 1968 by the testator was never
disclosed either by the testator or anyone else until 30years thereafter, in
the year 1999.On the proposition that delay in disclosure of the will is a
ground for its rejection, reliance is placed on a decision of the Privy
Council in the case of M.T. Biro v. Atma Ram reported in 1937 Privy
Council 101. Reference is also placed on a decision in the case of Kalyan
Singh v. Smt. Chhoti reported in (1990) 1 SCC 266 at paragraphs 19,
20, 21 and 22 thereof:-
b. The Testator, who lived for 9 years after the execution of the Will, himself
did not disclose the same to any of his three children.
c. The testator suffered a cerebral attack in the year 1964 and had to be
hand-fed by Madhabi, his older daughter-in-law, since he was paralysed
on the right side. He, therefore, could not have hand-written an 8-page
holographic Will on his own.
d. The Testator also was incapable of travelling the distance of 5 kilometres,
from Swinhoe Street to Lake View Road or climbing stairs to the third
floor to approach the witnesses and obtain their attestation.
7
2024:CHC-AS:2493-DB
e. The plaintiff did not disclose the said Will even when the joint mutation ofthe three properties of the deceased was voluntarily obtained by him and
his siblings.
f. There was absolutely no plausible reason whatsoever for Tapan being
given an extra share in one of the properties.
20. In respect of the execution of the Will, it was vehemently argued by Learned
Counsel that the handwriting and the signature on the purported Will were
not that of the testator. There were many unexplained corrections and
interpolations in the Will made with a different ink. These are suspicious
circumstances surrounding the execution of the will, which have not been
dispelled by the plaintiff/propounder. Reliance is placed on a decision of the
well-known decision of H. Venkatachala Iyengar v. B.N. Thimmajamma
and Others reported in AIR 1959 SC 443 at paragraphs 18 to 21, 25, and
26.
21. The appellants also argued that the Trial Court erred in ignoring the 30-year
delay in the disclosure of the Will. The Will ought to have been filed within 3
years of its discovery by the propounder. Tapan had stated in his evidence
that he got the Will from his paternal aunt, Ishani.
22. Admittedly, Ishani died in July 1979. It, therefore, must be inferred that
Tapan received the Will before July 1979. Tapan, therefore, should have filed
the application for probate within 3 years of the knowledge of the will, i.e. by
1982. Reference is made to a decision of the Supreme Court in the case of
Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Ors. reported in
(2008) 8 SCC 463 at paragraphs 13 to 16 thereof.
8
2024:CHC-AS:2493-DB
23. Learned Senior Counsel for the appellant submitted that the Khandpur
decision (supra) approved the decisions of the Supreme Court in Kerala
State Electricity Board v. T.P. Kunhaliumma reported in (1976) 4 SCC
634, and partially approved the decision of the Bombay High Court in
Basudev Daulatram Sadarangani v. Sajni Prem Lalwani reported in
1983 SCC OnLine Bom 54 at Para 14 and 15 thereof. He relied on the
same principle in the decision of Krishan Kumar Sharma v. Rajesh
Kumar Sharma reported in (2009) 11 SCC 537 and a decision of a
Coordinate Bench in the case of Paritosh Patra and Ors. v. Angur Bala
Ranaand Ors.reported in AIR 2014 Cal 133.
24. On the argument that Article 137 of the Limitation Act, 1963 would be
applicable in cases where no period of limitation is prescribed, reliance is
placed in the decision of Mahavir v. Union of India reported in (2018) 3
SCC 588. He submitted that the said Decision was also authority for the
proposition that when a statute confers a right, it also provides for a repose.
It is submitted that a litigant is deprived of a statutory right if he does not
approach the Court within the prescribed time.
25. On the importance of period of limitation and long delay, reference is made
to Paragraphs 14 and 15 of the decision of State of Kerala v. V. R.
Kalliyanikutti and Anr. reported in (1999) 3 SCC 657, and the case of
Ramesh Nivrati Bhagwat v. Dr. Surender Monohar reported in (2020) 17
SCC 284 para 12 and 13 thereof.
26. On the proposition that a propounder of a Will must prove the Will, inter
alia, by examination of one or more attesting witnesses and must remove all
substantial circumstances with regard to the execution of the Will, reliance
9
2024:CHC-AS:2493-DB
is placed by Mr. Basu on the decision of Murthy & Ors. v. C. Saradambal
reported in (2022) 3 SCC 209. Further reliance is placed on para 12 and 21
on the scope of Sections 63 to 68 of the Indian Succession Act, 1925. On the
validity of a Will and proof of satisfaction of the Court, reliance is placed in
the case of Shivakumar v. Sharanabasappa reported in (2021) 11 SCC
277.
III. ARGUMENTS ON BEHALF OF THE RESPONDENTS
27. Mr. Suman Dutta, learned Senior Advocate representing the respondent,
has argued as follows:
28. The Will, comprising in 10 pages in the handwriting of the testator, is a
holographic Will. Greater emphasis and force must therefore be placed on
such Will. Reliance is placed on the decision of Joyce Primrose Prestor v.
Vera Marie Vas reported in (1996) 9 SCC 324.
29. It is further submitted that once an execution on the mental and physical
capacity of the testator is proved, the onus to prove suspicious
circumstances shifts to the objector/defendants/appellants herein. Reliance
is placed on the decision of Madhukar D. Shende v. Tarabai Aba
Shedage reported in (2002) 2 SCC 85, particularly para 8 and 9 thereof. He
also placed reliance on the decision of Venkatachala Iyenger (supra) to
argue that the appellants have not led any concrete evidence whatsoever to
demonstrate any substantial circumstances surrounding the execution of
the Will.
30. He further placed reliance on the Khandpur decision (supra) to indicate
that the cause of action for seeking probate or letters of administration of a
10
2024:CHC-AS:2493-DB
Will is a continuous one. It has accrued in the instant case, in terms of
Article 137 of the Limitation Act, 1963, from the date disputes arose with
the contesting defendant, Sumit. He submits that an application for probate
by the executor is merely a duty and cannot be waived by the propounder.
31. Reference is made to the decision of this Court in the case of A.E.G
Carapiet v. A.Y Derderian reported in AIR 1961 Cal 359 that irrespective
of any settlement or agreement between the parties, inter alia, by joint
mutation of the property, a probate Court is bound to either grant or reject
probate vested with an application for grant under the Indian Succession
Act, 1925.
32. It was argued that if one has to manufacture a Will, a holographic Will
would never be prepared. The appellants have failed to produce any evidence
to contradict the absence of mental and physical capacity of the testator.
The evidence of the attesting witnessesremains unchallenged.
33. It is also argued that despite a right having been reserved to file an
additional written statement after examination of the original Will, no such
additional written statement was produced. There is no cross-examination
as regards any collusion or connivance between the propounding and the
attesting witnesses.
IV. THIS COURT’S FINDINGS AND ANALYSIS
The Delay in making the Application for Letters of Administration.
34. Admittedly, the respondent/plaintiff was also not aware of the Will and its
execution until he received the same from his aunt Ishani Kundu, sometime
in 1979, before she died.
11
2024:CHC-AS:2493-DB
35. The two brothers, Tapan and Gorachand being respective beneficiaries
under the Will, resided in their respective demarcated portions in the house
at Swinhoe Street. Gorachand had constructed a house at Anil Maitra
Street. Jayanti Roy, their sister, was given in marriage to a very well off
family after the death of her first husband. The legal heirs of the testator
were all comfortably living in their respective portions of the property of the
testator. It is therefore not unusual for Tapan to have delayed the
publication of the Will in question. The evidence of Tapan in the Trial Court
indicates that he was advised to enter into a family settlement of the
properties with his brother by one Dr. Kundu.
36. Tapan appears bonafide, with the best of intentions, obtained mutation of
the properties of the testator in the joint names of himself, his brother and
his sister. It is Jayanti who ought to have been the most aggrieved for being
disinherited from the properties of her father by reason of the Will. She did
not even bother to contest the proceedings or challenge the Will.
37. The testator’s version, that Jayanti was too well settled and comfortable in
her marital house appears to have been proved by her refusal to challenge
the Will. It has further come to light in cross-examination of the original
plaintiff/respondent that disputes and differences cropped up between
Sumit and the plaintiff Tapan after the death of the former’s father,
Gorachand. On being confronted with the Will, Sumit is stated to have
called upon Tapan to seek probate of the Will. It is only then that Tapan
applied letters of administration.
38. While it is true that a delay of 20 years has occurred in publication in of the
Will in question even applying the Article 137 of the Limitation Act, the right
12
2024:CHC-AS:2493-DB
to apply for letters of administration must be deemed to have accrued
immediately upon Sumit, calling upon Tapan to obtain probate/letters of
administration of the Will. It would be appropriate at this juncture to set out
paragraphs 13 to 16 of the Khandpur decision (supra).
“13. Article 137 of the Limitation Act reads as follows:
“Description Period of limitation Time from which period begins to run
of suit
137. Any other Three years When the right to apply accrues.”
application for which no period of limitation is provided elsewhere in this Division.
The crucial expression in the petition (sic Article) is “right to apply”. In
view of what has been stated by this Court, Article 137 is clearly
applicable to the petition for grant of letters of administration. As rightly
observed by the High Court in such proceedings the application merely
seeks recognition from the court to perform a duty and because of the
nature of the proceedings it is a continuing right. The Division Bench of the
Delhi High Court referred to several decisions. One of them was S.
Krishnaswami v. E. Ramiah [AIR 1991 Mad 214]. In para 17 of the said
judgment it was noted as follows : (AIR p. 222)
“17. In a proceeding, or in other words, in an application filed for grant
of probate or letters of administration, no right is asserted or claimed by
the applicant. The applicant only seeks recognition of the court to perform
a duty. Probate or letters of administration issued by a competent court is
conclusive proof of the legal character throughout the world. An
assessment of the relevant provisions of the Indian Succession Act, 1925
does not convey a meaning that by the proceedings filed for grant of
probate or letters of administration, no rights of the applicant are settled or
secured in the legal sense. The author of the testament has cast the duty
with regard to the administration of his estate, and the applicant for
probate or letters of administration only seeks the permission of the court
to perform that duty. There is only a seeking of recognition from the court
to perform the duty. That duty is only moral and it is not legal. There is no
law which compels the applicant to file the proceedings for probate or
letters of administration. With a view to discharge the moral duty, the
applicant seeks recognition from the court to perform the duty. It will be
legitimate to conclude that the proceedings filed for grant of probate or
letters of administration is not an action in law. Hence, it is very difficult to
and it will not be in order to construe the proceedings for grant of probate
or letters of administration as applications coming within the meaning of
an ‘application’ under Article 137 of the Limitation Act, 1963.”
13
2024:CHC-AS:2493-DB
14. Though the nature of the petition has been rightly described by the
High Court, it was not correct in observing that the application for grant of
probate or letters of administration is not covered by Article 137 of the
Limitation Act. Same is not correct in view of what has been stated
in Kerala SEB case [(1976) 4 SCC 634] .
15. Similarly reference was made to a decision of the Bombay High
Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [AIR
1983 Bom 268] . Para 16 reads as follows : (AIR p. 270)
“16. Rejecting Mr Dalpatrai’s contention, I summarise my conclusions
thus–
a. under the Limitation Act no period is advisedly prescribed within
which an application for probate, letters of administration or succession
certificate must be made;
b. the assumption that under Article 137 the right to apply
necessarily accrues on the date of the death of the deceased, is
unwarranted;
c. such an application is for the court’s permission to perform a
legal duty created by a will or for recognition as a testamentary trustee
and is a continuous right which can be exercised any time after the death
of the deceased, as long as the right to do so survives and the object of the
trust exists or any part of the trust, if created, remains to be executed;
d. the right to apply would accrue when it becomes necessary to
apply which may not necessarily be within 3 years from the date of the
deceased’s death;
e. delay beyond 3 years after the deceased’s death would arouse
suspicion and greater the delay, greater would be the suspicion;
f. such delay must be explained, but cannot be equated with the
absolute bar of limitation; and
g. once execution and attestation are proved, suspicion of delay no
longer operates.”
Conclusion (b) is not correct while Conclusion (c) is the correct position of
law.
16. In view of the factual scenario, the right to apply actually arose on
9-8-1999 when the proceedings were withdrawn by Smt Nirmal Jeet Kaur.
Since the petition was filed within three years, the same was within time
and therefore the appeal is without merit, deserves dismissal, which we
direct but in the circumstances without any order as to costs.”
39. The said Khandpur decision (supra) has been approved by the Supreme
Court in the Ramesh Nivruti Bhagwat decision (supra) and also in the
Krishna Kumar Sharma decision (supra) and the Paritosh Patra
decision (supra) cited by learned Counsel for the appellant. There is
sufficient explanation for the delay in Tapan’s filing of the application for
letters of administration. The execution and attestation of the Will itself,
14
2024:CHC-AS:2493-DB
having been proved, suspicion on the ground of delay cannot operate any
further. Tapan was only performing a legal duty in giving effect to the
intention of the testator. The conditions in the ratio laid down in the
Khandpur decision (supra) has been fulfilled in all respects, by Tapan.
40. Tapan applied for letters of administration only when it became necessary,
i.e. after Sumit challenged the Will in question. Insofar as the M.T. Biro
decision (supra) is concerned, the Privy Council found that in addition to
the delay in publishing the Will in question, the disposition was found to be
unnatural. The said decision, therefore, cannot come to the aid of the
appellant. The principle of repose, expounded in the Mahavir Decision
(supra), particularly paragraphs 20 and 21, would have no manner of
application in the facts of the case and even otherwise the said decision
rendered in the context of the Land Acquisition Act. The object and purpose
of the Land Acquisition Act are substantially different from the object and
purpose of the Succession Act, 1925. The right to apply for probate has also
been held to be a continuing cause of action.
41. In Sameer Kapoor v. State reported in (2020) 12 SCC 480, it was held:-
“15. Now the next question which may arise for consideration would be,
whether for an application for probate or letters of administration with
will, the period of limitation would begin to run from which date?
16. While considering the issue involved, the decision of this Court in
Kunvarjeet Singh Khandpur [Kunvarjeet Singh Khandpur v. Kirandeep
Kaur, (2008) 8 SCC 463 is required to be referred to and considered. In the
said decision, this Court considered the decision of the Bombay High Court
in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [Vasudev
Daulatram Sadarangani v. Sajni Prem Lalwani, 1983 SCC OnLine Bom 54
: AIR 1983 Bom 268] , as well as, the decision of the Madras High Court in
S. Krishnaswami, In re [S. Krishnaswami, Inre, 1990 SCC OnLine Mad
200 : AIR 1991 Mad 214] . In the said decision, thisCourt (at SCC pp. 467-
68, para 13) referred to and considered para 24 of thedecision of the
Madras High Court in S. Krishnaswami [S. Krishnaswami, In re,1990 SCC
OnLine Mad 200 : AIR 1991 Mad 214] , which reads as under:
15
2024:CHC-AS:2493-DB
(S.Krishnaswami case [S. Krishnaswami, In re, 1990 SCC OnLine Mad
200 : AIR1991 Mad 214] , SCC OnLine Mad)“24. In a proceeding, or in other words, in an application filed for grant
ofprobate or letters of administration, no right is asserted or claimed by
theapplicant. The applicant only seeks recognition of the court to
perform aduty. Probate or letter of administration issued by a competent
court isconclusive proof of the legal character throughout the world.
Anassessment of the relevant provisions of the Succession Act, 1925
doesnot convey a meaning that by the proceedings filed for grant
ofprobate or letters of administration, no rights of the applicant
aresettled or secured in the legal sense. The author of the testament
hascast the duty with regard to the administration of his estate, and
theapplicant for probate or letters of administration only seeks the
permissionof the court to perform that duty. There is only a seeking of
recognitionfrom the court to perform the duty. That duty is only moral
and it isnot legal. There is no law which compels the applicant to file
theproceedings for probate or letters of administration. With a view
todischarge the moral duty, the applicant seeks recognition from
thecourt to perform the duty. It will be legitimate to conclude that
theproceedings filed for grant of probate or letters of administrationis
not an action in law. Hence, it is very difficult to and it will not beorder
to construe the proceedings for grant of probate or letters
ofadministration as applications coming within the meaning of
an”application” under Article 137 of the Limitation Act, 1963.”
16.1. This Court approved the observations made in para 24 by the
Madras HighCourt in S. Krishnaswami [S. Krishnaswami, In re, 1990 SCC
OnLine Mad 200 :AIR 1991 Mad 214] insofar as the nature of the petition
for grant of probate orletter of administration is concerned. However, this
Court did not agree withthe finding that the application for grant of
probate or letters ofadministration is not covered by Article 137 of the
Limitation Act.
17. Therefore, considering the law laid down by this Court in Kunvarjeet
SinghKhandpur [Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8
SCC 463] , itcan be said that in a proceeding, or in other words, in an
application filedfor grant of probate or letters of administration, no right is
asserted orclaimed by the applicant. The applicant only seeks recognition
of the court toperform a duty. Probate or letters of administration issued by
a competent courtis conclusive proof of the legal character throughout the
world. That theproceedings filed for grant of probate or letters of
administration is not an actionin law but it is an action in rem. As held by
this Court in Kunvarjeet SinghKhandpur [Kunvarjeet Singh Khandpur v.
Kirandeep Kaur, (2008) 8 SCC 463] :(SCC p. 468, para 15)”15. … ’16. … (c)
… an application [for grant of probate or letters ofadministration] is for the
court’s permission to perform a legal duty created by will or for recognition
as a testamentary trustee and is a continuous rightwhich can be exercised
any time after the death of the deceased, as longas the right to do so
survives and the object of the trust exists or anypart of the trust, if
created, remains to be executed.’ [Ed.: As observed inVasudev Daulatram
Sadarangani v. Sajni Prem Lalwani, 1983 SCC OnLine Bom54, para 16.]
18. Applying the law laid down, in the aforesaid decision and
theobservations made hereinabove, the submission on behalf of the
16
2024:CHC-AS:2493-DB
appellants thatProbate Case No. 15 of 2001 filed by Respondent 2 for
letters of administrationunder Section 228 of the Act, read with Section
276 of the Act is barred by law oflimitation, cannot be accepted.
19. In the plaint, it was specifically pleaded that after passing away of
thefather of the parties in the year 2000, the appellants
startedintermeddling with properties bequeathed to Respondent 2, which
weresituated in Delhi and, therefore, left with no option, he was compelled
toapply for letters of administration. Therefore, even as per the pleadingsin
the application, the cause of action started from the date on which
theappellants started making claimsin respect of the properties
bequeathed toRespondent 2, after passing away of the father of the
parties in the year2000. Therefore, in the facts and circumstances of the
case, both the learnedSingle Judge and the Division Bench have rightly
refused to reject the applicationin exercise of powers under Order 7 Rule
11 CPC.
20. In the facts and circumstancesof the case and as observed
hereinabove, it cannot be said that the applicationfor letters of
administration was clearly barred by the law of limitation which
wasrequired to be rejected in exercise of powers under Order 7 Rule 11(d)
CPC. Weare in complete agreement with the view taken by the High Court.
42. The ratio of Sameer (Supra) is Section 137 of the Limitation Act would
apply to probate proceedings. The rigour of the limitation law would however
not apply thereto, given the right to apply for probate is a continuous right.
Further, no law compels a person to apply for probate. It is out of moral
obligation to give effect to the wishes of the deceased that an application for
probate is filed.
43. Under paragraph 17 of Sameer (Supra), the court observed that the
applicant for probate filed a belated application since the dispute between
the contesting parties and the applicant arose late. The court held that the
date when the dispute arose should be taken to be the date when the right
to apply for probate accrued, and limitation period is to be computed from
that date. Section 137 says that the limitation period starts when the right
to apply accrues and the right to apply would accrue when the applicant felt
it necessary to apply for the probate.
17
2024:CHC-AS:2493-DB
44. In the backdrop of the above discussion, this Court is of the clear view that
the delay of 20 years in applying for letters of administration by Tapan is not
fatal and even otherwise does not constitute a suspicious circumstance.
The Proof of Will
45. Let us now deal with the argument of the appellant insofar as the suspicious
circumstances surrounding the execution of the Will in question. As already
discussed hereinabove, the principles to be applied for ascertaining the
genuineness and suspicious circumstances and proof of a Will have been
laid down in the Venkatachala Iyengar case (supra) summarised
hereunder.
46. The law regarding the grant of probate and/or letters of administration of a
Will has been explained succinctly by the Hon’ble Supreme Court in the
case of Venkatachala Iyengar (supra) at paragraphs 18, 19, 20, and 21 of
the said decision are set out hereinbelow:-The following principles emerge
from the aforesaid decision:-
a. The first hurdle to be crossed while proving a Will is proof of its
execution, i.e. proof of the signature of the testator inter alia through
the attesting witnesses.
b. The signature of the attesting witness and the testator can also be
independently proved. It must be shown that the will was executed in
the presence of the testator in sound mind.
c. The testator must know the contents of the will, and it must be
demonstrated that the Testator wanted the bequest to be followed in
the manner indicated in the will.
18
2024:CHC-AS:2493-DB
d. A disinterested person, attesting a ‘Will’, would add weight to a will.
An interested person acting as executor or propounder by itself will
not negate a will.
e. If the bequest is unusual and out of the ordinary, the same may be a
suspicious circumstance.
f. The onus to dispel suspicious circumstances surrounding the
execution of the Will lies on the propounder.
g. The opponents of the Will could demonstrate other suspicious
circumstances on their own thereafter if necessary.
h. The burden of proof to dispel suspicious circumstances would initially
rest on the propounder. The opponents would get an opportunity to
demonstrate other suspicious circumstances after discharge of the
initial burden by the propounder.
i. Clear evidence is, therefore, required to be led orally as well as
documentarily about the physical and mental capacity of the testator.
j. The influence of any of the beneficiaries or thirdparty influence, but
for which the testator would not have made the bequest in the manner
that has been so done in the will, is a suspicious circumstance.
k. Credibility and authenticity are two distinct facets of a will.
Authenticity is proved by the attesting witnesses. Credibility is
demonstrated by the various circumstances surrounding the will and
also from the contents of the will itself, namely, whether the bequest
made in the will is at all possible to be made by the testator. The court
should sit in the armchair of the testator and examine the said
192024:CHC-AS:2493-DB
possibilities. Credibility can be impeached by credible circumstances,which cannot be conjectures or preconceived notions of the objectors.
l. A will is a solemn document because it is made by a person who has
departed, and it is given effect by bringing it to the knowledge of the
Court in furtherance of a moral duty of the executor. As a corollary,
when a will is handwritten by the testator himself and it is proven to
be so, the will stands elevated in credibility.
47. Applying the aforesaid principles, this Court notices from the evidence on
record and the pleadings that the execution and attestation in question has
been proved by the evidence of PW 1, who was an attesting witness. He has
also stated that the testator was of sound mind and physically competent at
the time of execution of the Will in question. One cannot ignore the fact that
the Will in the instant case is holographic (handwritten by the testator).
Tapan has proved the handwriting of his father. It would be appropriate to
refer to the observations in para 18 of the Joyce Primrose decision (supra).
“18. In applying the above general principles to particular cases, the
nature of the Will, the pleadings of the parties in the case, facts admitted
or proved and the presumptions available in law, will have to be carefully
given effect to. The case of a “holograph Will” which is admittedly in the
handwriting of the testator, is a special case which will require a different
approach in considering the evidence in the case, to find whether the Will
has been duly executed and attested. The approach to be made in such
cases has been stated by the Constitution Bench in Shashi Kumar
Banerjee case [AIR 1964 SC 529] , at p. 532 paragraph (5). In that case,
the Court referred to certain undisputed preliminary facts as follows: The
testator, a well-known wealthy lawyer, who died at the age of 97, had
executed a Will when he was 93 years’ old. He had made provision for his
heirs by executing a number of documents, and the Will referred to the
remaining property. The Will was witnessed by two persons. The entire
Will was in the handwriting of the testator, corrected in various places and
the corrections were initialled by him. It was admitted that the signature
at the bottom of the Will was of the testator. The dispositions were very
clear and detailed and it could not be said to be an unnatural document.
There was no evidence to show that the propounders took any part in the
202024:CHC-AS:2493-DB
execution of the Will. After stating these preliminary facts, the Court stated
the approach to be made in the case of a “holograph Will”, thus:
“Further the fact that the Will is a holograph Will and admittedly in the
hand of the testator and in the last paragraph of the Will the testator had
stated that he had signed the Will in the presence of the witnesses and
the witnesses had signed it in his presence and in the presence of each
other raise strong presumption of its regularity and of its being
duly executed and attested. On these facts there is hardly any suspicious
circumstance attached to this Will and it will in our opinion require very
little evidence to prove due execution and attestation of the Will. There is
no doubt about the genuineness of the signature of the testator, for it is
admitted that the signature at the foot of the Will is his. The condition of
the testator’s mind is also not in doubt and he apparently had full
testamentary capacity right up to March 1947, even though he was an old
man of about 97 when he died on 1-4-1947. … There is nothing to show
that the dispositions were not the result of the free will and mind of the
testator. Further, the propounders (namely, the appellants) had nothing to
do with the execution of the Will and thus there are really no suspicious
circumstances at all in this case. All that was required was to formally
prove it, though the signature of the testator was admitted and it was also
admitted that the whole Will was in his handwriting. It is in the
background of these circumstances that we have to consider the evidence
of the two attesting witnesses. …”
(emphasis supplied)
19. In the judgment under appeal, the High Court noticed the aforesaid
decision of this Court in Shashi Kumar Banerjee case [AIR 1964 SC 529]
and has quoted the following passages in the said case:
“In the case of Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR
1964 SC 529] . His Lordship Justice Wanchoo, has laid down: …
‘Where however there are suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of the court before the court
accepts the Will as genuine ….’ “
“…. in the case of Shashi Kumar Banerjee v. Subodh Kumar
Banerjee [AIR 1964 SC 529] . Therein, His Lordship, Justice Wanchoo, J.,
has observed in para 5 of the judgment thus:
‘The entire Will is in the handwriting of the testator and has been
corrected in various places and the corrections have been initialled by the
testator. … On these facts there is hardly any suspicious circumstance
attached to this Will and it will in our opinion require very little evidence to
prove due execution and attestation of the Will.’ ”
After quoting the above truncated passages and without adverting at all
to the crucial passages, indicating as how the evidence of the attesting
witnesses should be evaluated, in the case of “holograph Wills” (extracted
hereinabove), the learned Judges of the High Court stated, in our opinion,
wrongly, that the facts of this case are entirely different and so, the
appreciation of the evidence of the case is to be done on the “unique
features” of each case.
20. We are afraid that the High Court failed to give effect to the strong
presumption of regularity and due execution and attestation of the
holograph Will, in the instant case. Admittedly, the Will, Ex. P-1, is in the
handwriting of the testator, as spoken to by the 3rd defendant herself. The
facts in this case in a great measure conform to the broad facts and
21
2024:CHC-AS:2493-DB
circumstances detailed in the case of “holograph Will” in Shashi Kumar
Banerjee case [AIR 1964 SC 529] . In this case the 3rd defendant admitted
in cross-examination that her mother, Mrs Vas “was active till the last”
and that “she used to go to Mass every morning”. She further stated that
the Will “is in the handwriting of the testator”. She stated, “I see Ext. P-1.
This is the Will. It is entirely in my mother’s handwriting. I am fully
acquainted with her handwriting. Ext. P-1(a) is the signature of my
mother.” The evidence of PW 1, one of the attestors, is categoric that the
Will was attested by her and a co-attestor in the presence of the testatrix
and that the testatrix was in a sound state of mind at the time of execution
of the Will. DW 3, advocate by profession, stated — “I am acquainted with
the signature and writing of Mrs Vas (testator). I see the Will Ext. P-1. The
writing in Ext. P-1 as well as the signature are of Mrs Vas.” PW 1 stated
that the propounder (the plaintiff) was not present when Ex. P-1, the Will,
was signed and executed. By Ex. P-1, all daughters have been given equal
shares and the document cannot be said to be unnatural. In these
circumstances, a strong or high degree of presumption of the regularity
and of due execution and attestation of the Will arose. As stated by this
Court in Shashi Kumar Banerjee case [AIR 1964 SC 529] , it is in this
background, the evidence in the case including that of the attesting
witnesses should have been examined and what was required was only
to formally prove the Will, and very little evidence to prove due execution
and attestation of the Will, was alone called for. The High Court totally
ignored the above vital aspects. On the other hand, the High Court opined
that the facts of this case are entirely different from those of Shashi Kumar
Banerjee case [AIR 1964 SC 529] and the unique features should be
scanned, in great detail. In the process, the High Court reappreciated the
entire evidence, through a microscope, as it were, and indulged in
surmises and conjectures.”
48. The Will, by reason of the evidence of PW 1 and 2, stood conclusively
proved. The burden of proof of suspicious circumstances, therefore, shifted
to the appellant. Reference in this regard is made to Para 8 and 9 of the
Madhukar Shedage decision (supra) cited by the respondents.
“8. The requirement of proof of a will is the same as any other
document excepting that the evidence tendered in proof of a will should
additionally satisfy the requirement of Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after
considering the matters before it, that is, the facts and circumstances as
emanating from the material available on record of a given case, the court
either believes that the will was duly executed by the testator or considers
the existence of such fact so probable that any prudent person ought,
under the circumstances of that particular case, to act upon the
supposition that the will was duly executed by the testator, then the
factum of execution of will shall be said to have been proved. The delicate
structure of proof framed by a judicially trained mind cannot stand on
weak foundation nor survive any inherent defects therein but at the same
time ought not to be permitted to be demolished by wayward pelting of
stones of suspicion and supposition by wayfarers and waylayers. What
222024:CHC-AS:2493-DB
was told by Baron Alderson to the jury in R. v. Hodge [(1838) 2 Lewis CC
227] may be apposite to some extent:
“The mind was apt to take a pleasure in adapting circumstances to one
another and even in straining them a little, if need be, to force them to form
parts of one connected whole, and the more ingenuous the mind of the
individual, the more likely was it, considering such matters, to overreach
and mislead itself, to supply some little link that is wanting, to take for
granted some fact consistent with its previous theories and necessary to
render them complete.”
The conscience of the court has to be satisfied by the propounder of will
adducing evidence so as to dispel any suspicions or unnatural
circumstances attaching to a will provided that there is something
unnatural or suspicious about the will. The law of evidence does not
permit conjecture or suspicion having the place of legal proof nor permit
them to demolish a fact otherwise proved by legal and convincing
evidence. Well-founded suspicion may be a ground for closer scrutiny of
evidence but suspicion alone cannot form the foundation of a judicial
verdict — positive or negative.
9. It is well settled that one who propounds a will must establish the
competence of the testator to make the will at the time when it was
executed. The onus is discharged by the propounder adducing prima facie
evidence proving the competence of the testator and execution of the will in
the manner contemplated by law. The contestant opposing the will may
bring material on record meeting such prima facie case in which event the
onus would shift back on the propounder to satisfy the court affirmatively
that the testator did know well the contents of the will and in sound
disposing capacity executed the same. The factors, such as the will being
a natural one or being registered or executed in such circumstances and
ambience, as would leave no room for suspicion, assume significance. If
there is nothing unnatural about the transaction and the evidence
adduced satisfies the requirement of proving a will, the court would not
return a finding of “not proved” merely on account of certain assumed
suspicion or supposition. Who are the persons propounding and
supporting a will as against the person disputing the will and the
pleadings of the parties would be relevant and of significance.”
49. The appellants in the Trial Court had miserably failed to discharge their
burden of proving suspicious circumstances. The person who could have
been most aggrieved and should have objected to the Will is Jayanti Roy, the
daughter of the testator, who was completely disinherited. The reasons for
such disinheritance have been mentioned by the testator, i.e. she was given
in marriage to a very rich and comfortable family in Kolkata after the death
of her first husband. She did not come forward to challenge the Will. The
appellant did not bring any evidence to show that the holographic Will was
23
2024:CHC-AS:2493-DB
not that of the testator. There is no evidence produced to show that the
signature of the testator was forged or fictitious. There is no independent
evidence brought by the appellants, medically or otherwise, to demonstrate
that the testator was not in a physical or mental capacity to write 10 pages
in his handwriting.
50. There is conflicting evidence as regards which cited by the cited is affected
by cerebral paralysis. Tapan stated that it was on the left side, and Sumit,
deposing for the appellant, stated that it is on the right side. What has been
waived in this Court in favour of the respondent/plaintiff and the Will and
its execution by the testator himself is that the testator himself admitted
that he had written in the Will that he had shifted in the year 1964,and the
Will was written 4 years later in the year 1968.
51. The testator thereafter, from 1973 until his death, travelled from Kolkata to
Durgapur and died at the age of 92 in the year 1978.This would indicate
that the testator was sufficiently mobile and had enough locomotive function
in his right hand to be able to write the 10-page holographic Will.
52. The appellants could have produced in evidence, Sumit’s mother, namely
Madhavi Kundu, the principal defendant, but they have withheld her. While
it could have been true that the testator was hand-fed by Madhavi or others
in 1964, he must have recovered by 1968 and gained locomotion in his right
hand to prepare the holographic Will in question. The appellants have,
therefore, not been able to bring any evidence to challenge the testamentary
capacity, and physical and mental capacity of the executed Will in question.
53. There is one unique feature about the subject holographic Will that this
Court has noticed. The testator has stated that he had earlier written a Will
24
2024:CHC-AS:2493-DB
which he has given to his first son-in-law, Jayanti’s late first husband, for
examination. This is a matter that could only have been known to none
other than the testator and the deceased. The testator, therefore,
undoubtedly intended to dispose of his property by a testamentary
document.
54. There is yet another fact that lends credence to the dispossession in the
holographic Will in question. The properties of the testator were more or less
divided equally between his two sons, Gorachand and Tapan. A slightly
extra portion of the Swinhoe Street property has been bequeathed to Tapan.
By no stretch of imagination, therefore, can it be stated that the
dispossession by the testator under the holographic Will is out of the
ordinary or unusual or of unnatural character.
55. Even the appellants have not led any evidence to the contrary. The marginal
extra property given to Tapan is supported by the fact that the testator
chose to live with Tapan from 1973 until his death.
56. The next argument of the learned Counsel for the appellant is that the
testator himself had admitted that he was unwell in the Will and therefore
must be deemed incapacitated and is equally difficult to accept. Old age is
often coupled with several ailments. In a majority of the Wills executed in
this country and across the world old age and ailments are mentioned as a
reason for executing a testamentary document. As already stated
hereinabove the appellants have not been able to demonstrate by the any in
capacity of the testator, by producing his doctor, the maids and domestic
helps in the house of the testator or neighbours that the testator was
incapable of travelling a distance of 5 kilometers either by himself or with
25
2024:CHC-AS:2493-DB
transportation or could not climb three stories at the house in Lake View
Road where he executed the Will.
57. The last argument advanced by the appellants that a right under the Will to
be obtained letters of administration was waived by Tapan by reason of the
joint mutation of some properties of the testator in the name of his brother,
himself and his sister.
58. It is now well settled that a mutation in Municipal records is not evidence of
title; it can at best be the evidence of possession. In any event, a legal duty
to publish a Will and seek probate thereof cannot be waived in law, it is only
a right that can be waived. As already held in the Khandpur decision
(supra) and Krishan Kumar Sharma decision (supra). An application for
probate/letters of administration is a moral and legal duty of the applicant.
59. Even assuming for the sake of argument that the joint mutation of some of
the properties of the testator constituted a family settlement, the Trial
Court, upon being satisfied with the execution of the Will and its proof, is
bound to issue probate or letters of administration of the Will and cannot
give credence to any settlement that the beneficiaries under the Will may
have entered into. Reference in this regard is made to paragraph 22 of the
Carapiet decision (supra) set out herein below.
A point of probate practice of great importance, however, remains to be
disposed of. The learned counsel for the parties appear to have agreed to
certain arrangements for disposal of the estate of the testator. These
terms, which are described as terms of settlement, are supposed to be
signed by all the interested persons. We are asked to keep these terms on
the records of this court. A court of Probate always shies at terms of
settlement. A Court of Probate is said to be a Court of Conscience which is
not to be influenced by private arrangements of the parties. Either it grants
probate to a Will or it rejects such grant. For such, a court, it is said, there
is no middle path for a happy compromise. The rule of law is stated to be
that there can be no probate by consent. Either it is grant or refusal. The
Court has to be satisfied in each case whether the Will proposed is truly
26
2024:CHC-AS:2493-DB
the Will of a capable testator or not. It is not concerned with any other
arrangement. It has been said over and over again that there is no such
thing as conditional probate or an amended probate. It is either all or
nothing. That seems to be sensible enough law.
V. Conclusion
60. For the reasons stated hereinabove, the appeal fails and is hereby
dismissed. The grant of letters of administration by the Trial Court is
upheld. There shall be no order as to costs.
61. Let the LCR be returned expeditiously to the Court below.
62. Urgent certified photocopy of this judgment, if applied for, be supplied to
the parties upon compliance of all requisite formalities.
(RAJASEKHAR MANTHA, J.)
I agree.
(AJAY KUMAR GUPTA, J.)
Later:
After the judgment is pronounced in open Court, the learned counsel for the
appellants seeks stay, inter alia, on the ground that there was an initial stay when
the appeal was admitted.
After careful consideration to the prayer, the same is considered and is
rejected.
(AJAY KUMAR GUPTA, J.) (RAJASEKHAR MANTHA, J.)
[ad_2]
Source link