TESTAMENTARY SUIT No.3 OF 2008
------
In the matter of an application under Sections 273 and 276 of the Indian
Succession Act for grant of probate of the registered will dated 22.11.2000
——
Smt.Shefali Mukherjee wife of Sri Subroto Ramnath Mukherjee resident of
54. DD/6 Anupama Housing Estate, V.I.P. Road, Kolkata-700052………..
Applicant
Versus
Sidheshwar Chatterjee……… ……… ……. Defendant
——
For the Applicant: Mr. L.N. Das, Advocate
For the Defendant: Mr. Ajeet Narayan Sinha, Advocate
PRESENT
THE HON’BLE MR. JUSTICE RAMESH KUMAR DATTA
—–
R.K.Datta, J. The present suit was filed originally as
Test Case No.5/2006 being an application for grant
of probate in favour of the applicant-plaintiff,
Smt.Shefali Mukherjee with respect to the will
dated 22.11.2000 of late Renuka Chatterji, her
mother.
It was claimed that the said registered
Will dated 22.11.2000 was the last will of late
Renuka Chatterji. The same was executed and
voluntarily signed in a sound state of health and
mind and after fully understanding the contents
without any undue influence of anybody in the
presence of two witnesses, namely, Ranjay Nandi
and Ibha Banerjee.
The further case of the applicant-
-2-
plaintiff is that the testatrix was a Hindu
governed by the Dayabhag School of Hindu Law and
was a permanent resident of Park Road, P.S.
Kadamkuan, Town and District-Patna. At the time of
execution of the will she had one son and four
married daughters and the subject matter of the
will was the three storied building along with
outhouse situated at Park Road, Kadamkuan, Patna.
It was further stated in the application that the
said Renuka Chatterjee died at Magadh Hospital,
Patna on 14.3.2002 at 6.15 A.M. The applicant-
propounder of the will, Smt. Shefali Mukherjee,
has been named as the sole executor of the Will.
As many as seven near relatives were named
in the application, including the only son and two
surviving daughters, the daughter-in-law, the
grand son (son of son) and two other grand sons
being sons of the deceased daughter. General
citation was published in two news papers and
special citation was also taken out and served
upon seven near relatives mentioned in the
application. Near Relative No.7, who is the
grandson(daughter’s son) of the Testatrix appeared
through vakalatnama and filed his No Objection
petition for grant of probate in favour of the
-3-
applicant. However, Near Relative No.1, the son of
the testatrix, also appeared and filed his caveat
and objection petition opposing the grant of
probate. The application was, accordingly,
converted into the present Testamentary Suit.
The plaintiff examined three witnesses on
her behalf, namely, P.W.1, Ranjay Nandi, P.W.2,
Ibha Banerjee, the two being the attesting
witnesses, and she also got herself examined as
P.W.3. The original will was produced and marked
as Ext.1,; Exts.2/1 to Ext.2/8 are the signatures
of the Testatrix on every page of the Will, Exts.3
to 3/5 are the signatures of the attesting witness
Ranjay Nandi, P.W.1 on every page of the Will,
and Exts.4 to 4/5 are the signatures of the
attesting witness Ibha Banerjee, P.W.2 on every
page of the Will.
The defendant, Sidheshwar Chatterji, also
examined three witnesses, in support of his case,
including himself as D.W.1, D.W.2 Raj Kumar and
D.W.3 Suresh Prasad.
On a consideration of the respective cases
of the plaintiff and defendant, the following
issues were framed:-
(a) Is the case as framed maintainable?
-4-
(b)Is the case barred by the principle of
estoppel, waiver and acquiescence?
(c) Is the case barred by law of
limitation?
(d) Had late Renuka Chatterjee executed
the alleged will without any coercion and undue
pressure?
(e) Had late Renuka Chatterjee lost her
power of understanding since October,1999 before
the execution of the alleged will?
(f) Was the alleged will drawn on the
instructions of late Renuka Chatterjee?
(g) To what relief or reliefs the
plaintiff is entitled?
Issues (d), (e) and (f)
These issues, which are inter related, are
taken up first for consideration.
The stand of the plaintiff, who has
examined herself as P.W.3 is that the Will was
executed by her mother in the presence of two
attesting witnesses, P.W.1 and P.W.2, and she was
in sound state of health and mind on that day and
had voluntarily executed the Will. The Will was
-5-
registered on the same day in the Registry Office,
Patna. The corrections in the Will were also made
in the pen of her mother, where she had put her
full signature. During her cross-examination she
has stated that her mother was well versed in
English and the contents of the Will were read by
her mother and after understanding the same she
had put her signature and to that effect even
endorsement has been made in the Will by typing
out “executed the Will after knowing its contents”
and beneath such endorsement her mother testatrix
had signed in English. She has also stated that
the Will was executed in her presence and at the
time of preparation of draft Will her other sister
and husband, who is an I.P.S. Officer were also
present. She has admitted that she had filed the
will from her custody as she was made the executor
of the Will. She has also admitted that she has
taken her mother to the Registry Office for
registration of the Will. In her cross-
examination, she has further accepted that she
took the initiative to approach the lawyer for
drafting the Will on the request of her mother
that she wanted to execute the Will with regard to
her properties and the said request was made in
-6-
presence of her sister Swapna Mukherjee and her
husband, the I.P.S. Officer and with them she went
to the lawyer. She has stated that her mother
never herself visited the lawyer and no lawyer
ever came to meet her mother and whatever she
desired was conveyed to the lawyer for being
included in the Will. She has also accepted that
she got the Will typed and accompanied her mother
to the Registry Office. She has further stated in
the cross-examination that her name was included
as one of the beneficiaries in the Will as her
mother trusted her and no stranger/outsider should
enter into the house; besides that she has no
interest in the property. She has denied that the
Will is forged one and misusing the confidence of
the mother she got the will executed. She has
further asserted that both the attesting witnesses
were not only known to her and to her mother but
to all the members of the family from before and
they had become attesting witnesses to the Will
after having seen her mother executing the Will at
her request. She has admitted that being the
executor in the Will it was her duty to request
the witnesses to become attesting witnesses and
she had called them. She has further stated that
-7-
P.W.2, Ibha Banerjee, was the tenant in her
uncle’s house which is just by the side of the
subject matter of the Will and also teaches in the
same school in which her sister-in-law teaches,
who is the wife of the defendant. She has denied
that attesting witnesses are in collusion with all
of them stating that they were also known to the
defendant, P.W.1 being an agent in the Post-Office
near their house who helps them in purchasing the
Kisan Vikas Patra, etc.
P.W.1, Ranjay Nandy is one of the
attesting witnesses to the Will. He has stated
that the testatrix had executed the will dated
22.11.2000 in her sound state of health and mind
voluntarily and after understanding its contents
in his presence as well as in presence of P.W.2,
Ibha Banerjee. He has proved the Will and he has
also proved the signatures of late Renuka
Chatterji on each and every page of the Will to
which he had become an attesting witness at the
request of the testatrix and signed on each and
every page on her wishes. He has further stated
that he had signed in the presence of the
testatrix as also Smt. Ibha Banerjee, P.W.2. He
has also proved the signatures of the other
-8-
witness, P.W.2, Ibha Banerjee, on each and every
page of the Will stating that the testatrix and
the two attesting witnesses had signed on the Will
in presence of each other. In his cross-
examination he has stated that he was working as
Financial Advisor in Mutual Funds and was
Financial Advisor to Mithun Chatterji and also the
testatrix. He has stated that he was called on
telephone by the plaintiff and when he reached the
place, he found the typed copy of the Will in the
hand of Renuka Chatterji, who asked him to put his
signature as a witness of the Will. He has,
however, submitted that the Will was not
registered in his presence. He has also stated
that when he reached the place, he found the
plaintiff and Mithun Chatterjee among other family
members, who were present. He has denied that
Renuka Chatterji was illiterate woman stating that
she used to put her signature. He, however, admits
that no one had read and explained the contents of
the Will to her in his presence nor she had read
the Will in his presence. He has, however, stated
that although he did not know the age of
testatrix, but from her appearance, she looked an
old lady and she was sitting on the chair when he
-9-
reached her house. He has denied that she was
suffering from any ailment. He has further denied
that she had lost her senses or was a mentally
disturbed person since October, 1999. He has also
denied that he was in league with Mithun Chatterji
and Shephali Chatterji.
P.W.2, Ibha Banerjee is the other
attesting witness. She has also stated that the
mental and physical health of the testatrix on the
date of execution of the Will was absolutely
prefect. She has further stated that she had
executed the Will voluntarily after understanding
its contents in her presence as well as in the
presence of P.W.1 and thereafter signed on each
and every page. On her request the two attesting
witnesses, P.W.1 and P.W.2 herself also signed as
witness on every page of the Will. In her cross
examination, she has said that Mithun Chatterji
was working with her in St. Columbus Schoool,
Kadamkuan and she was called by the plaintiff to
be a witness to the Will. She has also stated that
she had found 7-8 persons present when she went to
become witness to the deed of Will. She has denied
that the testatrix did not put her signature in
her presence or she became witness to the Will on
– 10 –
any pressure of Mithun Chatterji and the
plaintiff. She, however, admits that the Will was
not registered in her presence.
The defendant has examined himself as
D.W.1. He has stated that the testatrix was a semi
literate lady and she could sign on the dictates
of others. He has denied that she executed any
will on her own. He has also alleged that the Will
in question had been executed by the plaintiff and
Mrs. Mithun Chatterji, his wife. He has also
alleged that the Will was not drafted or typed on
the instructions of his mother nor she called any
one to attest the alleged Will nor any one
attested it in her presence. He has stated that
she lost her power of understanding since October,
1999 and was not in a position to understand the
contents and effect of any document or deed. He
has, however, stated that the testatrix was ailing
since 1998 and being regularly treated by the
Doctor. Nobody other than him served his mother.
He has further stated that his mother had
expressed her wish not to dispossess him from the
ground floor of the main building where he has
been living, whereas in the alleged Will he has
been allotted outhouse which is in dilapidated
– 11 –
condition and in rainy season its ground floor
becomes inundated. He has stated that his mother
had no exclusive title to the property under the
Will and it is surrounded by suspicious
circumstances. In cross examination, he has denied
that his mother was a student of Bethal School of
Kolkata, which is English medium school and
asserted that his mother knew only Bengali
Language. He has, however, admitted that she had
Bank Account which she used to operate by putting
signature on cheque. On being shown page 4 of the
will he has admitted that his mother had opened a
joint account in her name along with his wife for
meeting the education expenditure of his son in
the Post Office in the year 2000. He has admitted
that his mother was operating the pension account
till last day of her life. He has accepted that he
was in the Indian Revenue Service and in the
normal course would have retired in the year 2010,
but he has denied that he was dismissed from
service, stating that he took voluntary
retirement. On a question by the Court whether he
can produce his order of voluntary retirement, he
has however said that it was not possible as he
had taken voluntary retirement way back in the
– 12 –
year 1994. He has further stated that he was not
getting any pension after voluntary retirement on
serving the Department for 19 years. He has also
denied that there was any departmental proceeding
against him before his taking voluntary
retirement. He has denied that he had accompanied
his mother and sister at the time of registration
of the Will to the Registry Office nor that he had
taken them in the Car. He, however, admitted that
on the day the Will was executed, he was present
in his house. On question by the Court, he stated
that he was present when the Will was being
executed but did not object to his mother while
executing the Will. He has further denied that his
sister was not interested in the property or that
she has no lure for this property because she owns
a huge property in America as well as in Kolkata.
He has, however, stated that she has already got
citizenship of U.S.A. He has further stated that
he did not know as to why his mother created such
a Will nor did he know the state of her mind and
also he did not know as to whether the Will was
created on account of his mental problem. He has
denied that he is still under treatment for some
mental disease. He has further accepted that the
– 13 –
property is in two parts; the main building and
the out-house and he has been given entire
outhouse under the Will and further that even in
the main building he has been given his right, of
course along with his wife, sister and son. He has
also admitted that he was gifted exclusively
property at Varanasi by his parents. He further
stated that he does not know the attesting
witnesses.
D.W.2, Raj Kumar, is an electrical worker
who claims to visit the house of the defendant in
connection with repair of electrical installation
and D.W.3, Suresh Prasad Jaiswal, claims to have a
Readymade Garments shop in Thakurbari Road. Both
of them have stated that they had visited the
defendant’s house 3 to 5 times in connection with
repair of electrical work or sale of Readymade
Garments for his mother and they had seen him
serving his mother and his mother used to love
him very much. Due to her old age she was unable
to do her usual work without him. Both of them
have admitted that they do not know any of the
members of the family of the defendant nor can
recognize them.
From a consideration of the materials on
– 14 –
the record, it is evident that the plaintiff has
produced both the attesting witnesses, who have
deposed that the Will was executed in their
presence by the Testatrix and that they had signed
as attesting witnesses to the Will in the presence
of the Testatrix and others. These two essential
ingredients of the due execution of the Will as
laid down in Section 63 of the Indian Succession
Act have been proved by the plaintiff.
The stand of the learned counsel for the
defendant, however, is that the Will was obtained
by coercion and is an unnatural Will. It is
submitted by him that the beneficiaries, who were
present at the time of execution of the Will,
hatched up a plan for the execution of the same
for their benefit. It is submitted by him that the
defendant, who is the only son, has been given
very little share in the main building. It is
further submitted by learned counsel that from a
perusal of the last part of the first page of the
Will, which contains the names of legatees, it is
evident to the naked eye that the same has been
typed later, after the execution of the Will and
thus creates a suspicious circumstance and
therefore the entire will ought to be thrown out.
– 15 –
It is further contended by learned
counsel that the testatrix being an illiterate
lady nothing has come in evidence to show that any
one had read and explained the will to her as
P.W.1 admits that the same was not done in his
presence. It is also submitted by learned counsel
that the mere fact of registration of the Will by
itself cannot be proof of its genuineness. Learned
counsel harps upon the facts that both the
attesting witnesses have accepted that the Will
was not registered in their presence.
Unnaturalness of the Will, according to
learned counsel, is clearly proved by the fact
that the testatrix had as many as four daughters
but nothing was given to the other three
daughters, except the plaintiff, who has walked
away with major share of the property and it is
evident from the materials on the record that she
had taken active part at all stages in the
preparation and execution of the Will. For the
said reasons, it is urged by learned counsel that
the Will is not genuine and no probate ought to be
granted.
In support of the same, learned counsel
for the defendant relies upon a decision of the
– 16 –
Supreme Court in the case of Ram Piari v. Bhagwant
and others: AIR 1990 S.C. 1742, in paragraph No.4
of which it has been held as follows:
“4.Ratio in Malkani v. Jamadar, AIR
1987 SC 767 was relied on to dissuade
this Court from interfering, both,
because the finding that Will was
genuine, was a finding of fact and
omission to mention reason for
disinheriting the daughter or taking
prominent part by beneficiary by
itself was not sufficient to create
any doubt about the testamentary
capacity was because of
misunderstanding of the correct
import of the decision and the
circumstances in which it was
rendered. Property in Malkani’s case
was land. Beneficiary was nephew as
against married daughter. Anxiety in
village to protect landed property or
agricultural holdings from going out
of family is well known. Even though
it cannot be said to be hard and fast
– 17 –
rule yet when disinheritance is
amongst heirs of equal degree and no
reason for exclusion is disclosed,
then the standard of scrutiny is not
the same and if the Courts below
failed to be alive to it as is clear
from their orders then their orders
cannot be said to be beyond review.
Although this Court does not normally
interfere with findings of fact
recorded by Courts below, but if the
finding is recorded by erroneous
application of principle of law, and
is apt to result in miscarriage of
justice then this Court will be
justified in interfering under
Article 136.”
Learned counsel for the plaintiff,
however, counters the aforesaid submission by
stating that the Will was registered on the same
day of its execution on 22.11.2000 and thereafter
the testatrix remained alive for more than 15
months and did not choose to revoke the same for
such long time, which proves the genuineness of
– 18 –
the will and that the Will was an expression of
the desire of the testatrix.
It is also his contention that neither of
the two other daughters, who have allegedly been
disinherited, have come forward to contest the
grant of probate, whereas the notices were duly
served upon them. Similarly none of the three
grand sons has also come forward to contest the
grant of probate, rather near relative No.7 who is
the son of pre-deceased daughter has supported the
stand of the plaintiff when he had filed his No
Objection.
It is also submitted by him that the
plaintiff has produced both the attesting
witnesses and they have testified that the
testatrix was in a sound state of health and mind
and had executed the will without any undue
pressure or influence by any-body at the time of
execution and the same could not be demolished
even in cross-examination.
Learned counsel further submits that the
defendant has admitted the fact of his presence at
the time of execution and that he did not raise
any objection. In fact, according to learned
counsel, the defendant had no cause to raise any
– 19 –
objection as he has been given the maximum portion
of the property. He has been directly given 1/3rd
portion of the first and second floor of the main
house besides the entire out-house. In addition,
he had already received earlier the entire
property of the family at Varanasi as gift and
even under the Will his wife has received half
portion on the ground floor and his son has
received 1/3rd share on the first and second
floors. Thus, according to learned counsel, the
defendant alone has received much more than what
he would have been entitled under the general law
of succession under the Dayabhag School of Hindu
Law and in addition substantial portion of the
main building has been given to his wife and son.
There can thus be no cause for making any
complaint on his behalf.
It is urged by learned counsel that those
who were left out and not given anything are not
contesting whereas the defendant who has been
given much more than his due share has come
forward challenging the genuineness of the Will.
Despite admitting his presence at the time when
the Will was executed, he raised no such issue
with his mother at that or any subsequent point of
– 20 –
time, with whom he admits he was very close and
was having good relation and who remained alive
for more than 15 months after the execution of the
Will.
It is evident from the evidence on record
that the plaintiff has been able to satisfy the
requirement of Section 63 of the Indian Succession
Act, so far as the due execution of the Will is
concerned. However, in the present matter the
issue has been raised that the will having been
obtained by coercion and undue pressure upon the
testatrix, under Section 61 of the Indian
Succession Act the Will is void. It has been held
by the Courts that a mere persuasion or inducement
to make a Will in favour of a particular person is
not sufficient to bring it within the mischief of
Section 61 of the Act. It must be actual coercion
in the sense that the testatrix had been coerced
into something which she did not desire to do.
Such coercion may be actual violence or a person
may have become so weak and feeble that from a
little pressure or mere talking to her at that
stage or pressing something upon her may cause
such fatigue to the brain of the sick person that
she may be induced for the sake of quietness to do
– 21 –
anything.
It is also to be considered that normally
the propounder of the Will discharges her burden
if she can prove the due execution of the will but
where a charge of unnatural disposition has been
made, namely, exclusion of an heir of equal degree
and active part played by the propounder being a
beneficiary under the Will, then the conscience
of the Court must be satisfied that the instrument
so propounded is the last will of a free and
capable testatrix. In such circumstances, the
Court is required to be vigilant and jealous in
examining the evidence. In support of the said
instrument no probate ought to be granted unless
the suspicion is removed and the Court is
judicially satisfied that the Will expresses the
true will of the deceased.
In the present matter, it is evident that
although the testatrix had a son and four
daughters but the entire property has been willed
in favour of the only son, his wife and son and
only one out of the four daughters. The
disinheritance of the three daughters would
definitely be a suspicious circumstance to put the
Court on alert. The further fact in this case is
– 22 –
the admitted position of the active role played by
the propounder of the will in its execution.
However, several facts are of great significance
in this case. The two excluded daughters, who are
alive, and the two sons of a predeceased daughter
have not come forward to oppose the grant of
probate. It is the case of the plaintiff that one
of the daughters, who has been disinherited, along
with her IPS Officer husband was present at the
time of execution of the Will, which fact has not
been controverted or demolished; rather the fact
that the said daughter has not come forward to
oppose the grant of probate makes it highly
probable that the stand of the plaintiff in this
regard is true.
On the other hand, a son of the deceased
daughter has come forward stating his No Objection
to the grant of probate of the Will. The Will
itself states that the other three daughters have
not been given any interest in the scheduled
property as they are well off. Considering the
fact that the daughters or their sons are not
opposing and one of their sons is supporting the
grant of probate, such statement appears to have
some force.
– 23 –
So far as the son of the testatrix, the
defendant, is concerned, he has been given not
only 1/3rd share in the second and third floors of
the house but the entire outhouse apart from the
fact that earlier the property at Varanasi has
been given to him. This fact coupled with the fact
that his wife has been given half of the share in
the ground floor and his son has been given 1/3rd
share in the first floor and the second floor
along with him and the plaintiff, shows that he
has not at all been discriminated by his mother
which he claims.
Apart from the above, the fact remains
that the defendant having been part of a
prestigious service, namely, the Indian Revenue
Service, admits that he has taken voluntary
retirement after 19 years of service and is not
receiving any pension. Thus, the same throws some
light on the nature of the disposition made by the
testatrix. The conduct of the defendant to any
parent in leaving such a prestigious service, as
he says that he has taken voluntary retirement and
not been dismissed from service, would weigh
heavily upon the parent and under such
circumstances it would not be unusual for the
– 24 –
parent to not only protect the interest of the
daughter-in-law and the grand son in the family
property but also to ensure that the property
itself could not be sold away in a reckless
manner.
In any case a Will to bequeath the
property may not be strictly in accordance with
the rules of succession but more likely in a
different manner. The mere fact that some of the
heirs have been disinherited may not be sufficient
to throw out the Will as being not a genuine
document, specially when those disinherited have
no objection to the said Will, rather the lack of
opposition to it may indicate a consensus within
the family in regard to the disposition of the
property. Although a mere registration of the Will
may not clothe it with genuineness, but the fact
of registration does lend great support to its
genuineness in the facts and circumstances of the
present case.
The defendant himself being present at
the time of execution of the Will and having
knowledge of the Will being executed is not
entitled to raise the plea that the Will was a
forged document obtained by coercion. The stand of
– 25 –
the defendant is that till the death of his mother
she remained with him and he alone was looking
after and serving her and thus her being alive for
15 months, thereafter, during which period he
could not persuade or convince his mother to
change the Will, that too goes to show that the
Will is genuine and expresses the true desire and
wishes of the testatrix.
It is strange that the defendant has not
only made allegation against the plaintiff but has
not spared even his wife alleging that she had
gone in collusion with the plaintiff in the
preparation of the Will.
Apart from the above, it is alleged by the
defendant that the testatrix was seriously ill
since early 1998 and was not in a position to
understand the contents and effect of any document
or deed, as she had lost her power of
understanding since October, 1999 but no material
has been brought on record by him to show that
such was the case, when it is his specific
averment that he alone was serving her and looking
after her and thus if that was the situation he
must be in possession of the medical papers of
the testatrix to justify such statement.
– 26 –
In the said circumstances, this Court is
inclined to accept from the evidence led on behalf
of the plaintiff that the testatrix was in sound
state of health, mind and body and even the eight
signatures of the testatrix on different pages of
the Will and corrections made therein go to show
that there was no frailty while signing, rather
the same goes to show that she had clearly signed
in English. The hand-writing of the testatrix in
her full signature also does not appear to be one
of a semi literate old lady but of someone who
could write decently in English.
So far as the submission of learned
counsel for the defendant that the last part of
the first page of the Will has been typed later
after execution of the Will is concerned, there
can be no doubt that it has been typed
subsequently after the original Will was typed,
but the said typed part merely mentions the names
of legatees which includes apart from the
plaintiff the defendant, his wife and his son. The
stand of the plaintiff is that though the same was
typed subsequently but before the execution of the
Will and like all other corrections made
accompanied by a separate signature by its side,
– 27 –
which clearly shows that though typed subsequently
but it had been typed before the execution of the
Will; moreover, even if the same is left out it
makes no difference to the disposition made in the
Will, as the said disposition is clearly given at
pages 3 and 4 of the Will and the said
subsequently typed part merely recapitulates by
giving at one place the names of the legatees. It
is settled proposition of law that even if a part
of the Will is found to have been introduced
without the knowledge of the testatrix it does not
nullify the entire Will and only that part of the
Will which is proved to have been subsequently
added without knowledge of the testatrix may be
declared as null and void by the Court but the
other part of the Will shall be given effect to.
Applying the said proposition, even if the
subsequently typed part of the Will is excluded,
the disposition made in the Will in clear terms at
pages 3 and 4 would stand and thus the part 4 of
the Will subsequently typed, even if excluded,
will have no effect. However, in the facts and
circumstances of the case, I hold that the
subsequently typed part of the Will had been typed
before the execution of the Will and to the
– 28 –
knowledge of the testatrix.
So far as the reliance made by learned
counsel for the defendant on Ram Piari’s case
(supra) is concerned, the same has no application
to the facts of the present case, as the
disinherited daughter was herself contesting the
matter right upto the Supreme Court. In that case
out of two daughters, one of the daughters had
been disinherited and the entire property had been
bequeathed to the grandsons from the other
daughter. Moreover, the said decision of the Apex
Court was not rendered merely on the fact that one
of the daughters had been disinherited in favour
of the sons of the only other daughter but also on
the recitals made in the Will which made
speculative narration of property depending on
imagination of what the testator might have
possessed and clearly showed the hand of a
professional expert. It was in the entirety of
those circumstances that the Apex Court held that
disinheritance of one of the daughters was not
acceptable. The same is not the position here. In
fact it is the major beneficiary under the Will,
who has obtained more than his share under the law
of succession who has come forward to challenge
– 29 –
the same, whereas the so called disinherited
daughters have either not come forward or one of
their surviving sons is, in fact, supporting the
grant of probate.
Thus, I hold that the testatrix Renuka
Chatterji had executed the will in question
without any coercion and undue pressure. I further
hold that she had not lost her power of
understanding before or at the time of execution
of the Will which had been drawn on her
instruction.
Issues (d), (e) and (f) are, accordingly,
decided in favour of the plaintiff and against the
defendant.
Issues (a), (b) & (C)
No argument has been advanced by learned
counsel for the defendant on these issues. On a
consideration of the facts and circumstances of
the case, I am of the view that these issues also
go in favour of the plaintiff.
Issue (g)
– 30 –
In view of the fact that all the issues
have been decided in favour of the plaintiff, I
hold that the plaintiff is entitled to grant of
probate of the Will dated 22.11.2000 in her
favour.
It is, accordingly, ordered that the
probate of the Will dated 22.11.2000 of late
Renuka Chatterji be granted in favour of the
plaintiff, Shefali Mukherjee as the executrix. The
suit is, accordingly, decreed with costs in favour
of the plaintiff and against the sole defendant.
( Ramesh Kumar Datta, J. )
Patna High Court, Patna
Ist March, 2011.
NAFR/VPS.