Calcutta High Court (Appellete Side)
Prabir Roy In Place Of Sukti Sanyal … vs Amit Kumar Roy & Ors on 16 July, 2025
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Smita Das De
FAT 241 of 2012
Prabir Roy in place of Sukti Sanyal (since deceased)
Versus
Amit Kumar Roy & Ors.
For the Appellant : Mr. Ajoy Krishna Chatterjee , Sr. Adv.
Mrs. Shohini Chakraborty, Adv.
Mr. Arijit Sarkar, Adv.
For the respondents : Mr. Gopal Chandra Ghosh, Sr. Adv.
Mr. Rajkrishna Mondal, Adv.
Mr. Sunandana Saha, Adv.
Heard on : 17th June, 2025
Judgment on : 16th July, 2025
Soumen Sen, J :
1. The true nature and purport of a document described as a Will of one
Smt. Meghamala Roy (hereinafter referred to as a “testatrix”) is the
issue to be decided in this appeal. The appellant, Sukti Sanyal is the
executrix of the last Will and testament of the testatrix. The appellant
was appointed as one of the members of the Advisory Committee by
the testatrix in the said Will. Prabir Roy was another member of the
Advisory Committee.
2. In view of the death of Smt. Sukti Sanyal during the pendency of the
appeal, Prabir Roy was substituted in her place by the order dated 2nd
2
September 2024 rejecting the objection of the respondents inter alia
on the following reasoning:
“5. This Court has carefully considered the rival submissions
advanced by the parties. This Court is of the clear and unequivocal
view that the applicant Probir Roy before this Court is but a member
of a proposed committee who was to act as an advisor to the Trust
created by the settler/husband of the testatrix. The applicant before
this Court is only coming on record to pursue the appeal to ensure
that the interest of the beneficiary of the trust created by the husband
of the testatrix is duly protected. There is no conflict of interest
between the applicant before this Court and the actual beneficiary.”
6………………..
7. ………………
8. ………………
9. ………………
10. Since the sole executrix under the Will in question has died
during the pendency of this appeal, the appeal shall be treated as
one, challenging refusal to grant letters of administration instead of
the probate as was refused by the Court below. The amendments
proposed in the schedule to the application for amendments being
CAN 10 of 2023 is allowed.”
3. The learned Single Judge dismissed the probate proceeding on the
ground that there is no bequeath of any of the properties by the
testatrix and accordingly, there is no bequest in favour of the
beneficiaries. The Will only refers to the constitution of an Advisory
Committee and provides the line of Succession to the office of the
trustees.
4. This order is under challenge.
3
5. Before we advert to the argument made on behalf of the respective
parties we may briefly indicate the background facts for proper
appreciation. The testatrix is the wife of the Shri Biren Roy, a famous
industrialist. Mr. Roy was known for his charitable and philanthropic
activities and during his lifetime he has created the trust by a name of
Biren Roy Charitable Trust in which he was the settler. The trust
contains various movable and immovable properties and also a line of
Succession. However, the said trust deed provides that after the death
of Shri Biren Roy, his wife namely the testatrix would be the sole
trustee of the said trust. Consequently, upon the death of Shri Biren
Roy, the testatrix became the sole trustee of the said trust. Thereafter,
due to her old age she decided to create a Will for certain philanthropic
purposes namely creation of a medical unit and a memorial library in
the name of her late son Ronjon Roy.
6. In the Will she has referred to the purpose of the creation of the said
medical unit which will cater to the needs of the residents of Behala
and the public at large would be the beneficiary. She appears to have
been influenced by her husband and dedicated her life for public and
charitable cause. She has appointed one Smt. Sukti Sanyal as the
executrix of the said Will.
7. The testatrix during her lifetime, after the execution of the Will
registered the Will on commission and the registered Will was
exhibited in the proceeding.
8. The present substituted appellant is a member of the proposed
committee to administer to estate left behind by the husband of the
4
testatrix as would appear from the order dated 2nd September, 2024
mentioned aforesaid. The probate proceeding is contested by Shri
Samaren Roy, Smt. Susama Mukherjee and Smt. Anima Banerjee.
However, during the pendency of the probate proceeding, Shri
Samaran Roy died leaving behind legal heirs and representative
namely Amit Kumar Roy, Ashim Kumar Roy and Aditi Mukhopadhaya.
The written statement was filed by Amit Kumar Roy on behalf of
himself and defendant numbers 2 and 3. Amit Kumar Roy is the son of
the brother-in-law of the testatrix. In the written statement it is alleged
that the execution of the Will is surrounded by suspicious
circumstances. A registered deed of declaration executed by the
testatrix would show that the said deed of declaration was prepared by
Shri Anup Sharma, Advocate and Mallika Bhattacharya Advocate, and
Natabor Chaudhuri was named as one of the witnesses. Shri Arun
Sanyal during his life time was the Advocate of Smt. Sukti Sanyal, the
executrix. In the alleged Will it will appear that Mallika Bhattacharya
was named as a witness and it was purportedly drafted by Sribir Nag,
advocate ‘of the same group of Arun Sanyal’. In the deed of declaration
of 13th November, 1999 allegations have been made against Shri Tapas
Kumar Ghosh but curiously the testatrix allowed Shri Tapas Kumar
Ghosh to continue to act as secretary of Biren Roy Trust for about
three years and allowed Shri Tapas Kumar Ghosh to look after the
personal work of the testatrix till her death. In 1996, the testatrix by a
registered deed cancelled the deed of 1994 regarding the appointment
of the official trustee, Government of West Bengal. The persons upon
5
whom the testatrix had no faith became the trustee in the impugned
Will. The alleged Will shows that the executrix had a personal interest
and she was named as a member of the Advisory Committee of Biren
Roy Trust. The executrix and Shri Probir Roy have been made
members of the Advisory Committee for generations to come. In view of
the fact that the executrix has taken a prominent role in the matter of
preparation, execution and registration of the impugned Will and she
has denied much interest for herself. The alleged Will apart from the
fact is a product of undue influence and the probate proceeding
should be dismissed. However, it does not appear from the said
objection that there has been no Will in the true sense of the term was
at all alleged.
9. Mr. Ajoy Krishna Chatterjee, the learned Senior Counsel appearing on
behalf of the petitioner has submitted that the learned Single Judge
has only decided the issue with regard to the proper bequest and did
not address the other issues however, both the issues may be heard in
this appeal as the appellate court has the power to decide all the
issues in the probate proceeding.
10. Mr. Chatterjee has submitted that the Will was true in accordance
with Section 63(c) of the Indian Succession Act, 1925. The Will has
been attested by two witnesses each of whom has seen the testatrix
signing and they have signed in presence and by the direction of the
testatrix. Each of them has signed the Will in presence of the testatrix.
11. In this regard he has relied upon the deposition of the attesting
witnesses who were present at the time of execution of the Will.
6
12. It is submitted that Dr. Saibal Dasgupta was the family’s physician
and he has clearly stated in his evidence that he had signed the Will in
presence of the testatrix. He was informed by testatrix that the Will
would be registered. He has duly identified the last Will and testament
of the testatrix. The signature of the testatrix and his own signature
was duly identified and marked as Exbt.1/1 and 1/2, the registered
Will was marked as Exbt.1 subject to objection. Dr. Dasgupta has
stated on oath that at the time of making the Will, the testatrix was
physically fit and mentally alert. He has also deposed that Meghamala
Roy executed another Will on 16th January, 2000 in which he was also
one of the attesting witnesses along with Mallika Bhattacharya and
Promod Kumar Mukerjee who were also the attesting witnesses in the
present case. The Will was executed between 11 and 11.30 a.m. on
16th January, 2000.
13. Mr. Chatterjee has contended, with reference to the testimony of PW1,
that minor inconsistencies in evidence do not, by themselves, render a
witness unreliable or impeach their overall credibility. He has placed
reliance on the decision of the Hon’ble Calcutta High Court in
Birendranath Paul @ Barendra Krishna Paul & Anr. v. Sri.
Sankar Paul @ Kali Krishna Paul1, which in turn relied on the
decision of the Hon’ble Supreme Court in Mahesh Dattatray
Tirthankara v. State of Maharashtra 2, to argue that so long as the
core of a witness’s testimony remains consistent and trustworthy,
1
2015 SCC OnLine Cal 1436
2
(2009) 11 SCC 141
7
minor discrepancies should not weigh against the witness’s reliability.
Dr. Dasgupta has specifically stated that Meghamala Roy was
physically fit and mentally alert at the time of making the Will. As per
the provision of law, the evidence of PW1, Dr. Dasgupta is enough for
proving the will, if not the genuineness of the Will.
14. It is submitted that the typist has in his deposition stated that he is a
typist of Alipore Judges’ Court and he knows Sribir Nag, Advocate who
practiced in the Alipore Court. He duly identified the signature of
Sribir Nag. He has also typed many documents and petitions for Sribir
Nag. The English words ‘incorporeal right’ was typed by him. He is
working as a typist since 1994 and has typed many Wills.
15. Mr. Chatterjee has submitted that the PW3, Pradip Mondol is the
person who has put the dates in the 3rd Page of the Will in Bengali
script. He has duly identified his writing. He has deposed that he has
put the date in the Will as 27th January, marked as Exbt.1/7 and 12
Magh the corresponding Bengali date marked as Exbt.1/8. He has put
in his own handwriting the dates in the last page of the Will
immediately before the signature of the testatrix in English. At the
time of putting the signature, the signature of the testatrix was already
there in page 1 and 2.
16. He was present during the time of registration. On one Wednesday,
presumably when he visited the residence of the testatrix he was
informed by the executrix to come on the next day that is 27th January
by 5.30 p.m. and after he arrived, he was directed to escort the visitors
in her upstairs’ sitting room. The PW 3, Pradip Mondol has duly
8
identified the thumb impression of Meghamala Roy and his signature
on the reverse of the first page of the registered Will.
17. Mr. Chatterjee has submitted that the filling up of the dates at the
time of registration has been duly proved by PW 3. Moreover, he has
also identified the thumb impression of testatrix. Smt. Sukti Sanyal
the executrix in her evidence has stated that in her presence and the
presence of the registering authorities the testatrix put her signature
at the right hand side top corner of pages 1 and 2 of the Will and she
duly identified the signature of the testatrix whom she use to address
as Boro ma. On the instruction of the Registrar, Boro Ma called
someone to identify the thumb impression. The registrar instructed
Boro Ma to put the registration date at the blank portion of the last
page of the Will mentioning the English date of the month as well as
the corresponding Bengali date and month. Then Boro Ma called up
Pradip Mondal, PW 3 who was waiting at the hall to fill up the blank
portion at the last page of the Will mentioning the English date and
month as well as the Bengali date and month and as per her
instruction Shri Mondol filled up the English date and month of the
registration corresponding to the Bengali date and month in Bengali
alphabet in presence of the testatrix and the registering authority. The
testatrix further instructed Shri Mondal to identify her thumb
impression put on the reverse side of the first page of the Will in
presence of the Registrar and thereafter, the testatrix put her thumb
impression in presence of the Registrar on the reverse of the first page
of the Will and it was identified by Shri Mondal. It was upon
9
completion of all such formalities the registering authority put his
endorsement of the said Will. Smt. Sanyal, the executrix then refers to
the Will executed on 16th January, 2000 and registered on 27th
January, 2000. It is submitted that during her lifetime the testatrix
expressed her wish to handover the said Will to the then Chief
Minister of West Bengal, Shri Jyoti Basu who was a close friend of
Shri Biren Roy and on her request Shri Jyoti Basu came to her
residence to accept the Will from her. The entire thing happened in
presence of close relatives of late Biren Roy and other respectable
people. Sometimes in February, 2000 Shri Jyoti Basu along with the
Law Minister Shri Nishit Adhikari visited the residence of the testatrix
when the testatrix handed over the abovementioned Will to Shri Jyoti
Basu for safe keeping with the Government in the presence of most of
the paternal relative of the executrix such as Shri Romen Roy, Shri
Samaren Roy and Shri Prabir Roy amongst many other distinguished
people of Behala. The pictures of handing over of the Will were
disclosed along with the negatives which have been marked as
Exbt.4/1 to 4/12 and Exbt.5/1 to 5/13 respectively. It is submitted
that the Will has not come from the custody of the executrix as in her
cross examination she has clearly stated that she is unable to say who
ultimately took delivery of the Will from the registering authority after
registration.
18. Mr. Chatterjee has submitted that Amit Roy was unable to
substantiate the allegations of undue influence of the executrix or any
other person in connection with the execution of the alleged Will. Mr.
10
Chatterjee has referred to the chief and cross examination of the Shri
Amit Roy to show he has admitted that he has no document to show
that Arun Kumar Sanyal or Sukti Sanyal or Mallika Bhattacharya or
any other persons had exercised any undue influence on the testatrix.
19. Mr. Chatterjee submitted that in his cross-examination Mr. Roy has
clearly stated that except Shri Roy no other defendants have filed a
written statement and the case only contested by Shri Roy and not
any of the other defendants although he named two witnesses as
possible witnesses to depose in his favour but none produced.
20. Mr. Chatterjee has referred to paragraph 6 and 9 of the affidavit in
chief and the deposition of Shri Roy in his cross examination to show
that Shri Roy has admitted that he is unable to substantiate his
specific allegation made in paragraphs 6 and 9 with regard to the
involvement of any other persons who he named in those two
paragraphs claimed to have exercised undue influence upon the
testatrix.
21. Mr. Chatterjee submits that the probate court is required to read the
Will in order to understand the intention of the testatrix and to find
out the true intention of the testatrix in case of any doubt. It is
submitted that in the second page of the Will she has clearly stated
that in the three storied building situated in the south of her
residential house a medical unit should be established and in the
northern portion in the hall a memorial library in the name of her late
son Ranjan Roy should be established. These are clear indication of
11
intention to make a bequeath in respect of the said property which is
to be given affect after her death.
22. Mr. Chatterjee has also relied upon Section 77 of the Indian
Succession Act, 1925 for the purpose of construction of the Will of the
testatrix. It is submitted that the words mentioned in the said few
sentences in the second page of the Will is a clear reflection of the
desired intention of the testatrix to bequeath the property for
charitable and other purposes. It is further submitted that Will will not
show that any bequeath was made in favour of executrix or any of the
member of the Advisory Committee mentioned in Will and it was
clearly charitable purpose and the public at large would be the
beneficiary.
23. Mr. Chatterjee has submitted that Wills are not required to be
compulsorily registered as held in Ishwardeo Narain Singh Vs.
Kamta Devi & Ors.3. Moreover, the question whether particular
request is good or bad is not within the purview of the probate court.
The court of probate is only concerned with the due execution of the
Will in accordance with Section 66(c) of the Indian Succession Act.
24. Mr. Chatterjee submits that in a matter of proving a Will the court has
to consider two aspects: firstly, that the Will was executed by the
testator and secondly, that it was the last Will executed by the
testator. It is not required to be proved with mathematical accuracy
but the test or satisfaction of the prudent mind has to be applied while
deciding the genuinity of the Will if raised or even otherwise as
3
(1953) 1SCC 295
12
observed by the Hon’ble Supreme Court in a recent decision in Gopal
Krishan & Ors. Vs. Daulat Ram & Ors.4, paragraph 15.
25. In referring to the decision on which the learned Trial Court has relied
upon to nullify that there is no bequest Mr. Chatterjee has referred to
the decision of Mathai Samuel & Ors. Vs. Eapen Eapen (Dead) by
Lrs. & Ors.5, to argue that the learned Single Judge has completely
misconstrued the Will as the impugned order has over looked the legal
declaration of the intention of the testator with respect to her property
as mentioned in the second page of the Will in relation to the medical
unit and the library. The said argument is made on an assumption
that if the line of succession to the trust of Biren Roy or composition of
the Advisory Committee is found to be contrary to law that would not
be a factor to declare the Will invalid. The primary rule of construction
of the document would be to find out the intention of the executor of
the document which must be found in the words used in the
document.
26. Mr. Chatterjee has argued that a registered document should be
accepted as genuine unless contrary is proved. The true intention of
the testator has to be gathered not by attaching importance to isolated
expressions but by reading the Will as a whole. In construing the Will,
the Court is entitled to put itself in the testator’s armchair and is
bound to bear in mind also other matters than merely the words used
like the surrounding circumstances, the position of the testator, his
4
(2025) 2 SCC 804
5
(2012) 13 SCC 80
13
family, relationship, etc. To buttress this argument, Mr. Chatterjee
placed reliance to Sri Birendranath Paul @ Birendra Krishna Paul
& Anr. v. Sri Sankar Paul @ Kali Krishna Paul6 paragraphs 18-
20,25,29,32,34 and 37.
27. Per contra, Mr. Gopal Chandra Ghosh, the learned senior counsel
appearing on behalf of the defendants, has submitted that the finding
of the learned Additional District Judge is well founded in reason and
need not be interfered with by way of the instant Appeal. The probate
proceeding is not maintainable as held by the Learned Additional
District Judge, who has rightly decided to it not necessary to discuss
the other issues framed in the suit.
28. It is further submitted that in paragraph 2 at page 2 of the Will,
Meghamala Roy has clarified her consciousness about her right to
appoint the next Trustee, where such right is incorporeal right and
has no market value. Mr. Ghosh has referred to paragraph 4 at page 6
of the paper book in the application for probate, where the executrix
has reiterated the recital of the Will, while stating that “the Will relates
only to appointment of Trustee which is not a property”. Further, in
paragraph 5 in the same page of the paper book, the executrix has
stated that the Will does not relate to any property but relates to an
office and duties regarding the Trust.
29. Therefore, Mr. Ghosh submits that the petitioner has misinterpreted
the recital in paragraph 2 of page 2 of the Will by stating that the
Testatrix has bequeathed the 3 storied building on the southern side
6
(2016) 3 WBLR (Cal) 640
14
of her residential house and a hall on the northern side in favour of
the official Trustee, successfully fulfilling all conditions under Section
2(h) of the Indian Succession Act, 1925.
30. Mr. Ghosh has placed reliance on paragraph 10 of the decision
rendered by the Hon’ble Supreme Court in Provash Chandra Dalui
& Anr. v. Bishwanath Banerjee & Anr.7, to contend that the
interpretation of any deed or written instrument must be derived not
merely from its textual phrasing but from the entire context in which it
was executed. He submits that the construction of the document in
question ought to be guided by its underlying object and purpose, as
reflected by the document in its entirety. Relying on the said decision,
it is argued that it would be inappropriate to interpret individual
clauses in a vacuum. Instead, the true meaning must be ascertained
by reading the instrument as a whole, taking into account what
precedes and what follows. This approach ensures that the intention
of the parties is not distorted by placing undue emphasis on a
particular phrase or clause divorced from the broader context.
31. Mr. Ghosh has submitted that the Trusteeship cannot be bequeathed.
In this regard reliance has been placed on the following decisions:
ii. Sri Mahalinga Thambiran Swamigal v. His Holiness Srila
Kasibasi Arulnandi Thambiran Swamigal 9;
7
1989 Supp (1) SCC 487
8
(2007) 6 SCC 724
9
AIR 1974 SC 199: (1974) 1 SCC 150
15
32. It is also submitted that the so-called Will is shrouded by suspicion
and cannot be probated. Three instances of suspicion have been
argued. First, the evidence regarding the date of execution and
attestation is contrary to the recital at the last paragraph of the Will
which is the statement of the testatrix herself and appears in the
document duly signed. Mr. Ghosh, referring to Section 92 of the
Evidence Act, submits that such oral testimony cannot be admitted
based on oral evidence. It is further argued that considering the
provisions of Section 47 of the Registration Act, if the Will was
executed on 16th January 2000 then the date of the Will is to be
regarded as 16th January 2000 and not 27th January 2000 which the
propounder has failed to clarify.
33. Second, the Will is surrounded by suspicious circumstances,
particularly regarding the constitution of the advisory committee. As
per the second page, paragraph 2 of the Will, Smt. Sukti Sanyal and
Prabir Roy, daughter and son of Sri Ramen Roy, were named as
members of the advisory committee for the Biren Roy Trust. This is
wholly inconsistent with the known conduct of the testatrix. The
language of the recital suggests that this appointment was operative in
the present and not for future.
10
AIR 1992 PC 162(2)
11
AIR. 1962 Pat 481
12
AIR 1927 Cal 756
16
34. However, subsequent conduct of the testatrix reveals a different
arrangement. Exhibit 10 records the formation of a committee for the
Biren Roy Cultural Centre and Ronjon Memorial Library, from which
both Sukti Sanyal and Probir Roy were conspicuously excluded.
Instead, another brother of Late Biren Roy was inducted as a member.
This directly contradicts the earlier arrangement mentioned in the
Will.
35. It is further argued that from the record it appears evident that there
existed strained relations between Biren Roy and his brother Ramen
Roy and his children, Sukti Sanyal and Probir Roy, making their
inclusion in the advisory committee suspicious.
36. Third, the petitioner has alleged in the plaint that after execution of
the Will, the said Will was handed over to Jyoti Basu, the then Chief
Minister of West Bengal for keeping it with the Government of West
Bengal and producing it when required although, from the judgement
of the learned Additional District Judge, it appears that the Will was
produced from the custody of the executrix and not the Judicial
Department of government of West Bengal.
37. Mr. Ghosh argues that the Will appears to have been created by Sukti
Sanyal for her own interest and out of envy against the other members
of Biren Roy Trust and Meghamala Roy’s family, with full
understanding that in the view of the provisions made in the original
deed of trust none of the family members would be personally
benefitted by the said Deed of Trust.
17
38. Mr. Ghosh has relied on Rama Dutta & Ors. v. Atanu Dutta13;
wherein the Calcutta High Court has held that in case of a suspicious
circumstance, the probate Court has to find reasonable answers to
three points – was there due execution and attestation, did the
testator have sufficient mental capacity and health and did the
testator make the Will on his own volition as his last Will and
Testament. The answers to these questions must be in affirmative and
as per Court’s conscience.
39. Mr. Ghosh argues that a Will that contains unusual features or is
executed under suspicious circumstances must undergo careful
judicial scrutiny. The court assesses the Will based on the cumulative
impact of all such irregularities rather than focusing on any single
factor. The final decision depends on a holistic evaluation of the
overall circumstances, as consistently emphasized in prior judgments
of the Court as observed by the Supreme Court in Leela Rajagopal v.
Kamala Menon Cocharan14, paragraph 13.
40. Mr. Ghosh strenuously submits that a Will must prove that the
testator signed it voluntarily, in a sound and disposing state of mind,
fully understanding its contents. If the supporting evidence is credible,
disinterested, and adequate, the Court may accept the Will. However,
if the Will is surrounded by suspicious circumstances such as a
doubtful or shaky signature, questionable mental capacity, or
unnatural dispositions, the propounder bears a heavier burden to
13
1998 SCC OnLine Cal 253(1999) 1 CHN 35: (1998) 2 CWN 515
14
(2014) 15 SCC 570: (2015) 4 SCC (Civ) 267 : 2014 SCC OnLine SC 685
18
dispel all legitimate doubts through cogent and convincing evidence.
Even without specific allegations of fraud or coercion, the presence of
such suspicious elements necessitates thorough scrutiny before the
Will can be accepted as genuine as held by the Supreme Court in H.
Venkatachala v. B.N. Thimmajamma15 relied in Bharpur Singh v.
Shamsher Singh16, paragraph 16.
41. To buttress his arguments on suspicious circumstances, Mr. Ghosh
also placed reliance on the case of Moyna Bhattacharjee v. Ashim
Kumar Bhattacharjee, 2022 SCC OnLine Cal 2555.
42. Mr. Chatterjee has sought to rebut the precedents cited by Mr. Ghosh.
It is his contention that the decisions in Sri Mahalinga Thambiran
Swamigal (supra), Jagganatha Bheema Deo (supra), Ram Nath Das
(supra), and Uma Charan Bose (supra) have no application to the
present case. According to Mr. Chatterjee, all of those cases pertain to
situations where there was no testamentary disposition. In the present
case, however, the testatrix not only nominated a successor trustee
but also made a specific bequest of a building. The building in which
the proposed medical centre and library were directed to be
established did not form part of the properties settled under the Trust.
The said building is identifiable, as the Will explicitly describes it as
being located to the south of the testatrix’s residential house. It is
undisputed that the testatrix resided at 3, Sourin Roy Road, P.S.
Behala, as recorded in the Will itself. From the schedule to the Trust
15
AIR 1959 SC 443
16
(2009) 3 SCC 687: (2009) 1 SCC (Civ) 934: 2008 SCC OnLine SC 1867
19
Deed at page 127, it is evident that the building in question is not
included among the Trust properties. Furthermore, the three-storied
building listed as property no. 4 is clearly a separate property,
distinguishable by its address and the jurisdiction of the police station
under which it falls. The Will also specifies the purpose of the bequest
and identifies the intended beneficiaries. The bequest, in Mr.
Chatterjee’s submission, falls squarely within the definition of a “Will”
under Section 2(h) of the Indian Succession Act. The Learned Trial
Judge, however, failed to consider this portion of the Will, wherein a
specific property was bequeathed for a definite public purpose
intended to benefit the residents of Behala.
43. As regards the precedents relied upon by Mr. Ghosh in support of his
argument concerning alleged suspicious circumstances surrounding
the execution of the Will, Mr. Chatterjee contends that, in the present
case, the testatrix had duly complied with all the statutory
requirements necessary for the grant of probate. The execution of the
Will stands duly proved, and the mental capacity and alertness of the
testatrix at the time of execution were affirmed by the attesting
witness. There were no suspicious circumstances attendant upon the
execution of the Will; rather, the surrounding circumstances were
satisfactorily established. The bequests made under the Will, as well
as its execution, do not bear any indicia of unnaturalness or
suspicion. Furthermore, the objectors have failed to establish any
instance of coercion, fraud, or misrepresentation, as alleged in their
written objection.
20
44. The main issue at hand in the appellate stage is whether the
instrument partakes the character of a Will.
45. The alleged Will being marked as Exhibit 1 relates to the
administration of the Biren Roy Trust after the death of the testatrix.
In the Will, the testatrix has given mere directions as to the
constitution of an Advisory Committee and the creation of a medical
unit and a memorial library in the name of her late son for the benefit
of the people of Behala.
46. The definition of ‘Trust’ has been discussed at paragraph 28 of
Damodhar Bordoloi v. Mrinalini Devi Trust Board 17, as:
“28. Section 3 of the Indian Trust Act enacts that a Trust is an
obligation and next to the ownership of property and arising out of a
confidence repose in and accepted by the owner or declare and
accepted by him for the benefit of another or of another and the
owner, the person who reposes or declares the confidence is called
author of the Trust. The person who accepts the confidence is called
Trustee. The person for whose benefits the confidence is accepted, is
called beneficiary. A trust relating to immovable property must be in
writing, signed and registered or by will vide Section 5 of the Indian
Trust Act.”
47. A trust can be validly created by the Will of any testator.
However, it has to comply with all the provisions of the Indian
Succession Act, 1925 in order to be a valid trust and such a Will
has to be signed by atleast two attesting witnesses. Where a
trust is declared by a Will, or the author of the trust is himself to
17
1999 SCC OnLine Gau 6
21
be the trustee no transfer of property is necessary as observed in
Bai Mahakore vs. Bai Mangla18.
48. In Jilubhai Nanbhai Khachar and Others v. State of Gujarat and
Another19, the Hon’ble Supreme Court has elaborately interpreted the
concept of “property” in its legal sense to include a bundle of rights
that are guaranteed and protected by law. The Court held that
property encompasses every species of valuable right or interest,
including ownership and the exclusive right to possess, use, dispose
of, or exclude others from it. The word ‘property’ connotes everything
which is subject of ownership, corporeal or incorporeal, tangible
or intangible, visible or invisible, real or personal; everything that has
an exchangeable value or which goes to make up wealth or estate or
status.
49. The testatrix has clearly stated in the second last paragraph of the Will
that the alleged Will relates to her ‘incorporeal right’ to nominate the
next trustee, which does not have any market value. Black’s Law
Dictionary has defined the word ‘incorporeal’ as having a conceptual
existence, but no physical existence. The term ‘incorporeal right’
means a right to intangible rather than tangible property.
50. In view of the interpretation rendered in Jilubhai Nanbhai Khachar
(supra) an incorporeal property comes under the definition of
“property”. Despite that a right that lacks exchangeable or market
value cannot qualify as “property” within the legal meaning of the
18
(1911) ILR Bom 403: 13 Bom LR 564
19
AIR 1995 SC 142,
22
term. Accordingly, the right to nominate a successor Trustee, as
articulated by the testatrix herself, falls outside the ambit of “property”
protected by law.
51. Will is defined under Section 2(h) of the Indian Succession Act, 1925.
The provision has been reproduced below:
“(h) “Will” means the legal declaration of the intention of a testator
with respect to his property which he desires to be carried into effect
after his death.”
52. Under the General Clauses Act, “Will” includes a codicil and every
writing making a voluntary posthumous disposition of property. A will
or testament is the declaration in a prescribed manner of the intention
of the person making it, with regard to the matters which he wishes to
take effect upon or after his death.
53. The term ‘disposition’ has been defined in Black’s Law Dictionary as
the act of transferring something to another’s care or possession,
especially by deed or Will; the relinquishing of property. Bequeath
means to give property (usually personal property) by Will.
54. A Will must have the following characteristics: (a) there must be a legal
declaration of an intention of the testator; (b) the declaration shall
relate to the property of the testator; (c) the intention shall relate to the
desire of the testator to be carried into effect after his death, as held in
Tarapada Das v. Bimal Kumar Das20.
55. The most essential characteristic of a Will is that it should relate to the
property of the testator, which he wants to dispose of. If the
declaration contains no reference to the disposal of the property but
20
(2003) 2 CHN 144
23
merely provides for a successor, it will not constitute a Will as held in
Ram Nath (supra). The relevant portion has been reproduced below:
“……The language of the Will is quite explicit and unambiguous. The
operative portion of the Will reproduced above manifestly shows that
there is no disposition of the properties of the Math by this document.
……..The condition which must be satisfied before a document can be
called a Will is that there must be some disposition of property. The
document must contain a declaration of the intention of the testator
not with respect to anything, but with respect to his property. If there
is a declaration of intention with respect to his successor, it can-not
constitute a Will, as defined by the Indian Succession Act. When,
therefore, a document though called a Will, does not deal with any
property, it will not be given effect to as a Will, al-though it may
operate to effectuate any other purpose provided therein. In the
instant case, the document did not contain any legal declaration of
the intention of Mahanth Banwari Das with respect to any property,
and there was no disposition of any of the assets of the deceased
testator or the deities. Therefore, having regard to the authorities
quoted above, and more particularly to the definition of the Will, it
cannot constitute a Will, strictly speaking. The learned Additional
District Judge, therefore, was right in his conclusion that the
document was not a Will, and, therefore, it could not be admitted to
probate. On this ground, his decision must be upheld……………”
(emphasis supplied)
56. There must be a disposition of property under the document described
as ‘Will’. Where a document is described as ‘Will’ by a Hindu testator
only gives his wife the authority to adopt, without giving her anything
else in his properties the character of a Will is not established. There
must be disposition of property as observed in Jagannatha Bheema
Deo (supra).
24
57. In the case of Jagadindra v. Madhusudan21, it has been laid down
that where a Mahanth by a document purported to appoint his
successor on the gaddi, and to make over to him as Mahanth all the
properties of the Asthal and the right of performing the Debsheba and
did not purport to deal with any property of his own, the document
was not a Will and could not be admitted to probate.
58. In the case of Parasnath Giri v. Durga Giri22, reference was given to
the case of Chaitanya Gobinda v. Dayal Gobinda23, wherein their
Lordships observed as follows:-
“The word ‘will’ has been defined in the Probate and
Administration Act. It means ‘the legal declaration of the intention of
the testator with respect to his property which he desires to be
carried into effect after his death’. Now, upon the statement of the
declarant himself, the alleged testator in the document in question, it
is not his property, but the property of the thakurs. But, however
that may be, it is quite clear that all that he does or purports to do
by the document in question is to appoint the petitioner as a shebait
or manager for the purpose of carrying out the sheba, puja and other
rites and ceremonies appertaining to the akhra, of which he was the
head. There was no testamentary disposition of the properties
belonging to the akhra, and indeed he could not make any such
disposition. If it was simply an appointment of a manager made by
the late Mohunt, it is obvious that there was no disposition of any
property. We think that the Court below is right in the view that it
has expressed, and that probate of a document like this cannot be
applied for under the Probate and Administration Act.”
21
20 Cal LJ 307 : (AIR 1915 Cal 289)
22
2015 SCC OnLine Pat 9750,
23
ILR 32 Cal 1082 : 9 CWN 1021
25
59. In Uma Charan Bose (supra) this Court has clarified that a document
appointing successors for administration of the State is not disposition
of property which can characterize the said document as a Will:
“It is next contended on behalf of the appellant that the fact that in
the document a provision is made for the appointment of a future
trustee after the death of Upendra Nath Ray makes this document a
testamentary one and therefore, the document is testamentary in its
disposition. But that would not make the document a will as defined
in S.3, Probate and Administration Act, now replaced by S. 2,
Succession Act, 1925. This question is not free from authority and it
was held in two cases in our Court that the mere provision in a
document for the appointment of succeeding shebaits would not make
the document a will according to the Probate and Administration Act.
The cases referred to above are those of Chaitanya Gobinda Pujari
Adhikari v. Dayal Gobinda Adhikari (1) and Jagadindra Nath Roy v.
Madhusudan Das Mohunt (2). On this ground I am of opinion that the
document not being a will the petitioner is not entitled to apply for
letters of administration to the probate Court. What-ever right he has
he may enforce it by a regular suit.”
60. In Krishna Das Baishnadab v. Kalisunkar Bajpai & Ors. 24, at
paragraph 10 of the judgment, the Hon’ble Privy Council observed that
the property did not vest with the testatrix, but belonged to the deity
Jugganathji. As such, under the legal definition of a Will, property not
owned by the testatrix cannot be the subject of testamentary
disposition. The Court accordingly concluded that the document in
question pertained solely to the appointment of trustees and pujaris,
and did not effectuate any transfer of property. Consequently, it could
24
1 IC 216
26
not be construed as a Will within the meaning of the term under law.
The said paragraph has been reproduced below:
“10. In the scheme above-mentioned, the Lower Court has not
appointed any Mohunt and such an appointment has been left
absolutely in the hands of the executors. These executors have
claimed the property as the personal property of the last Mohunt and
deny its dedication to the idol. It is not likely therefore, that they will
over appoint a Mohunt. We are of opinion that for the preservation,
and good management of the properties in question, and for the
continuance of the worship of the idol Jugganathji, the persons least
fitted to perform the above duties are the executors, as after the
allegation made by them it is not reasonable to expect them to allow
the rights of the idol to prevail over their alleged personal rights.”
61. In the case of Darius Jehangir v. Lyla Minoo Ghasvalla25, reference
has been given to the case of re. Rowland26 in paragraph 9 wherein it
was observed on page 10 of the report by Lord Denning that the whole
object of construing a Will is to find out the testator’s intention so as
to see that his properties are disposed of in the way he wished. It was
observed as follows:
“True it is that you must discover his intention from the words
he used; but you must put upon his words the meaning which they
bore to him. If his words are capable of more than one meaning, or of
a wide meaning and a narrow meaning, as they often are, then you
must put upon them the meaning which he intended them to convey,
and not the meaning which a philologist would put upon them. And in
order to discover the meaning which he intended, you will not get
such help by going to a dictionary. It is very unlikely that he used a
dictionary, and even less likely that he used the same one as you.
25
1999 SCC OnLine Bom 812: AIR 2000 Bom 372: (2000) 3 Bom CR 447: (2000) 102 (2) Bom LR 108:
(2000) 3 AP LJ (DNC) 29 at page 379
26
1963 (1) Ch D 1
27What you should do is to place yourself as far as possible in his
position, taking note of the facts and circumstances known to him at
the time: and then say what he meant by his words.”
62. Reference can also be made to the case of Boyes v. Cook27 where in
the same paragraph James, L.J. observed:
“In re Ruding’s Settlement (1872 LR 14 Eq 266) the Vice-Chancellor
held that the surrounding circumstances could be looked at in
construing the will. But when it is said that surrounding
circumstances may be looked at, that only means that the
circumstances existing at the time when the testator made his will
may be looked at. You may place yourself, so to speak, in his arm-
chair, and consider the circumstances by which he was surrounded
when he made his will to assist you in arriving at his intention.”
63. In the case of Taran Singh Hazari v. Ramratan Tewari 28, it was
observed by this Court that in interpreting a Will, regard must be given
not merely to the words used, but to the evident intention of the
testator.
64. In Mandala Madhava Rao v. Mandala Yadagiri & Ors.29, the High
Court at Andra Pradesh has held that in determining the real intention
of the testator the entire document has to be construed as a whole. No
word, phrase or clause should be ignored.
65. The controversy is in relation to the interpretation of the following
recital in the alleged Will:
“I am further giving direction that is the three storied house
which is there to the South of my residential house, where there is a
“Medical Unit” and a hall in the north, which is there, “Ranjan Roy
Memorial Library” will be set up in the name of my late son and from
27
1880 (14) Ch D 53
28
1904 ILR 31 Cal 89
29
AIR 2001 AP 407
28the income of the said trust according to the wish of my husband late
Sri Biren Roy, arrangements shall be made to give free treatment and
medicines through Biren Roy Medical Center as much as possible. It
is also to be considered to help the small schools, hospitals and
sports clubs in the Bchala area as much as possible. All the moneys
of the Biren Roy Trust shall be utilized for the improvement and
development of the Behala area”.
66. Is it a declaration of an intention of the testatrix in relation to a
property of the testatrix. It is apposite to mention the preceding recital
and the subsequent recital. The preceding recital reads as follows:
“By executing this instant will I am hereby giving direction, that
after my death “Official Trustee government of West Bengal” shall
become the trustee in my place and stead, and shall have the right to
conduct all functions of the trust and to that none other’s claim or
contention shall be entertained.”
The subsequent recital is stated below:
“To conduct the functions of trust smoothly I hereby appoint the
persons mentioned below as advisors. They will remain members of
the said committee down to their heirs and successors and shall
remain bound to perform according to the directions of the advisory
committee of the above mentioned trust.
The members of the said committee are :-
1. Smt. Sukti Sanyal
Wife of Sri Dipendra Kumar Sanyal
Resident of P-36, Block – H, New Alipore Kolkata – 700053.
2. Sri Prabir Roy
Son of Sri Ramen Roy
Resident of 10, Sourin Roy Road,
Kolkata – 700034.”
29
67. The three recitals read as a whole would unmistakably show that the
direction was with regard to the trust property of her husband and
appointment of advisors of the Biren Roy Trust. It is a direction with
regard to the management of the trust property and not a bequest of
any property of the testatrix. These directions, upon a careful reading,
are indicative of an intention to discharge certain duties connected
with the objectives of the Trust, rather than an intention to divest
ownership or create proprietary interest in favour of another. This
interpretation finds support from the averments made in paragraph 5
of the probate application wherein the executrix, in her application for
probate, has categorically and consciously reiterated that the Will does
not purport to dispose of any property but is confined to prescribing
duties and responsibilities associated with the administration of the
Trust. For better appreciation the said paragraph is stated below:
“5. That the Will relates only to the appointment of trustee
which is not a property, and as such no special citation need a be
issued. But notice of the application should be published in two
Calcutta dailies one English and the other vernacular for public
notice.”
68. In her cross-examination, the appellant unequivocally confirmed that
the Will does not pertain to the personal property of Meghamala Roy.
She clarified that the Will is solely concerned with matters relating to
the Biren Roy Trust. The relevant portion of her cross-examination is
reproduced below:
“This will is not related personal property of Maghamala Roy.
This will relates to Biren Roy Trust. Thr eis a trust deed in respect of
Biren Roy Trust…………………………………………………………………I
30can not say whether the trust property of Biren Roy was owned by
five settlers. It is not a fact that Meghamala Roy was not entitled to
one as trustee. It is not fact that Meghamala Roy had no authority to
appoint me as member of Advisory Committee of Biren Roy Trust.”
69. The pleading and evidence of executrix lend assistance to the views we
have taken in interpreting the document.
70. The testatrix is merely a trustee and the testatrix admittedly had no
ownership. She had no power to make a disposition of the trust
property; she actually made no such disposition; that by the alleged
Will she simply gave certain directions and appointed the persons
named therein as advisors to be included in the “Biren Roy Trust”. The
document at best is a letter of appointment or nomination of two
persons as advisors.
71. In such a context, it would be incongruent with the tenor of the Will to
hold that the testatrix intended to effect a testamentary disposition of
property. On the contrary, the language employed and the manner of
expression leaves a little doubt that the directions were issued solely
in furtherance of charitable duties envisaged by the testatrix, and not
as a transfer of title or beneficial interest in the subject property.
72. Therefore, in the instant case, it is very much evident from the
interpretation of the alleged Will that the Will does not talk about the
disposition of the property of the testatrix, being one of the most
essential characteristics of a Will.
73. Despite the appellant arguing that there are no suspicious
circumstances which is convincing, a perusal of the contents of the
Will shows that the said document cannot be described as a Will. The
31
validity of the execution of the said document however stands
established by the evidence on behalf of the appellant. Minor variation
in the evidence of the witnesses as sought to be highlighted are not
enough to outweigh the execution of the document. Since it is not a
Will, the presence of two attesting witnesses to validate it is not
required. The evidence of all the witnesses in support of execution of
the document stands firmly established. The present appellant is not a
beneficiary under the document. The sole respondent is not supported
by any other respondent and he has failed to establish any fraud or
undue influence in the execution of the document. The allegations are
vague and unsubstantiated.
74. The evidence in favour of execution of the document is not shaken in
the cross examination of any of the witnesses. One who alleges fraud
or undue influence has to lead a cogent and convincing evidence to
shift the burden on the propounder assuming it to be a Will.
Suspicious circumstances must be real and not fanciful.
75. However, it is a pyrrhic victory for the appellant as it has failed to
establish it as a Will.
76. In view of the aforesaid, we do not find any reason to interfere with the
impugned judgment.
77. Hence, the appeal is dismissed.
78. There shall be no order as to costs.
I agree (Soumen Sen, J.)
(Smita Das De, J.)
32
Later:-
After the judgment is pronounced today Mr. Ajoy Krishna
Chatterjee, learned senior counsel appearing on behalf of the appellant
has drawn our attention to an order dated 11.02.2023 by which the
learned advocates appearing for the respective parties were appointed as
Joint Special Officers to hold records, documents and assets, if any, lying
with the official trustee.
In view of the aforesaid order, the Joint Special Officers are hereby
discharged upon filing accounts and all the documents shall be handed
over to the official trustee within three weeks from date.
The Joint Special Officers shall supply the accounts to be filed in
the department to the learned advocate-on-record for the appellant and
the respondent.
(Soumen Sen, J.)
(Smita Das De, J.)
[ad_1]
Source link