JUDGMENT
Kalyan Jyoti Sengupta, J.
1. I have read the draft judgment of my learned Brother and I agree with His Lordship’s findings and ordering portion. However, I wish to add few words to supplement with the risk of slight repetition. In this appeal the question is whether the learned Trial Judge has rightly accepted the document dated 15th August, 1971 said to be the last Will and testament of one Sadhan Pakrashi as a genuine and lawful testamentary instrument or not. The learned Counsel for the appellants, Mr. S.P. Roy Chowdhury urges that had the learned Judge read evidence carefully he could have found the document is a manufactured and forged one and further it was executed under suspicious circumstances. Though such plea is not taken but after reading of the document with the evidence adduced by both the parties it will appear that this document cannot be of Sadhan Pakrashi’s. Mr. Roy Chowdhury contends further that the grantee is ‘an interested person’ and there was no reason to exclude the appellants who are the nephews of the testator. His further contention is that it will appear from the evidences of the witnesses cited by the defendants/appellants viz. D.W. 1, D.W.2 and D.W.3 that on the relevant date the testator was in Calcutta. Admittedly he had been an acute patient of blood dysentery and so he had no ability to move about. The document is of dated 15th August, 1971 when the testator died on 31st August, 1971. While the learned Trial Judge has believed the oral testimony of one Radha Rani Pal, D.W.2, who is an interested witness as she is a teacher of one of the beneficiary schools on the one hand and on the other learned Trial Judge has discarded the evidence of D.W.1, D.W.2, D.W.3 for no apparent reason. Therefore, the testator’s coming from Calcutta and staying at Rishra on the eventful date is a seriously doubtful question of fact. This factual issue cannot be answered only upon the oral evidence of witnesses of both the sides. There has been no corroboration apart from the evidence of D.W.2, that on 15th August, 1971 the testator came down from Calcutta to Rishra on 15th August, 2006. His next contention is if the document is read it will appear that it is any document other than testamentary one.
2. The learned Counsel for the respondent, on the other hand, says that it is proved by P.W.2 (Radharani Pal) that the Will has been duly and lawfully executed on 15th August, 1971 and on that date he was present there. P.W.2 has also proved the signatures of other attesting witnesses. The disposition has been made by the testator not in favour of any individual, but for religious and charitable purposes. There is no unnaturalness of the disposition.
3. The only factual issue posing us is that on 15th August, 1971 whether it was possible for Sadhanbabu to come from Calcutta to Rishra to execute the document or not. The learned Judge has read the evidence of P.W.2 who was one of the attesting witnesses. We have also done so and we have no hesitation to tell that Radharani is absolutely disinterested witness and the way she has deposed anyone will come to conclusion that she is an absolute truthful witness. She has admitted that Sadhan Pakrashi was suffering from blood dysentery and he was not physically well but he was mentally sound and had full mental capacity to execute this Will. She has said that for the purpose of execution of the Will he came down from Calcutta to Rishra alone and returned on the same day. She has further said that he asked her to be present there at the time of execution of the Will. It is also her evidence that he prepared a draft of the Will. Since there was scribbling and overwriting the Will was prepared afresh basing on the draft. She has said that in her presence all attesting witnesses signed. She was merely a teacher of a school set-up by testator. She did not and does not have any benefit from the school out of the disposition made by the testator. She gets salary from the aid of the Government not from the fund of the testator. Her testimony is believable and can be believed. Number of witnesses in proving a fact in issue does not matter. What matters is the truthfulness of the witness. If a single witness gives true and correct version of any fact-in-issue it is only desired assistance to the Court. While weighing evidence adduced for and on behalf of the appellants I find Gopi Nath Pakrashi was not staying with his uncle at the relevant time. He has admitted that he had been with his uncle for the period from 1946 to 1958 and thereafter he had not. If the evidence of Gopi Nath, Saila Bala and Netai are read it will appear that there is a contradiction amongst themselves. Even Saila Bala has admitted that two months before death Sadhanbabu came to Eishra. So it was physically possible for him to come to Rishra from Calcutta. Ordinarily a man suffering from blood dysentery does not become so weak that he cannot move about or his mental faculty can be disturbed. Learned Trial Judge has rightly found that there has been no document, viz. medical prescription of the doctors or any other document which suggest that he was incapable of moving on 15th August, 1971.
4. As far as the question of genuineness of the signature of Sadhanbabu is concerned we think that when a witness has proved signature of a particular person it is the burden of the persons, who are challenging the signature is not of that person as suggested by producing undisputed and admitted signature. The learned Trial Judge observed that they could have produced the signature from the bank but we think that production of bank’s document containing signature might not have served any purpose for it is not known whether the signature was put by the testator in the bank’s papers in English or in Bengali. Ordinarily for operation of the bank signature is made in English. When the defendants D.W.1, D.W.2 and D.W.3 claimed that they have been residing with the testator, therefore, they could very well bring any document containing his signature for comparison with those contained in the Will, by the Court. Even opinion of handwriting expert could have been obtained, such attempt was not made.
5. We have examined the document and we did not find any unusualness in its nature. There is no hard and fast rule where the signature is to be put by the testator under the law. We find that the signature has been put at every page of the document at the bottom. The spacing at the bottom of the page appears to be slightly narrow, but it does not evoke any suspicion in anyone’s mind. The scribe of the Will has made this spacing. It appears that the spacing at the top of each page of the document is uniform. The signatures of the other attesting witnesses are also normal and natural.
6. Before Court accepts a document to be a testamentary one it has to be seen whether the document has been signed by the testator accompanied by other attesting witnesses and whether the intention of the person is to give away the property after his death or not. If the document is read as a whole it may appear to be a Will of trust or Will simpliciter but we are not arriving at any definite conclusion in this regard and for this purpose appropriate forum is available.
7. The way, the property has been disposed of by the testator is quite normal and natural. He was a bachelor and it appears from the evidence of the appellants that there has been no good terms of the testator with his nephews including Gopi Nath. Gopi Nath was not staying with him after 1958 and the testator was staying in Calcutta for his profession. Admittedly his mind was of charitable disposition and his idea was to spread education amongst the down-trodden people and that is why he set up with his own fund and income schools and other institutions. Just because the heirs and legal representatives falling within Class (II) of the Schedule of the Hindu Succession Act, 1956 have been deprived totally. It cannot be said that it is unnatural document so much so to hold it that the document was executed in a suspicious circumstances.
8. Lastly Mr. Rakshit pleaded that the applicant has no locus standi to apply for grant and this has been dealt with by my learned Brother. I need not repeat it.
Sanjib Banerjee, J.
9. Even as priest Sadhan Pakrashi was helping his jajmans’ prayers and offerings reach above, he did well for himself in this world. So well that his nephews and niece have found it worthwhile to queue up for his worldly leftovers.
10. While he went about his business of propitiating his gods, with his material accruals, the priest did his bit for the children of a lesser God. In the neighbourhood that he was born into and grew up in Rishra, Sadhan Pakrashi set up a primary school in the name of his father, a rudimentary women’s institute in the name of his mother and a Sanskrit Tole to which he lent his name.
11. The immediate heirs-in-intestacy have challenged, in this appeal, the grant of Letters of Administration in favour of a society, which claimed to be a beneficiary under Sadhan Pakrashi’s Will of August 15, 1971. The challenge to the Will is as to its conception, execution and implementation.
12. The appellants claim that the alleged Will could not have been a testamentary disposition; that its execution was shrouded in suspicion; and, the only legs that is stood on were those of a beneficiary. Late in the day, at the very end of the rejoinder, it was also suggested that the grantee of the Letters of Administration was not entitled to administer the estate as it was an association of individuals prohibited to receive such grant under Section 236 of the Indian Succession Act.
13. The Will, it was claimed, was in the nature of a Trust of which the priest was the settlor. The grant, it was urged, was flawed in that an application for probate was allowed to be revived as one for grant of Letters of Administration by an alleged beneficiary after the propounder executor had abandoned it. The initiation of the proceedings, it was argued, was questionable as the other alleged executor was neither joined as applicant nor sought to be cited.
14. The veracity of the execution of the Will was challenged as it rested solely on Radharani Pal’s testimony as one of the attesting witnesses and which, according to the appellants, ought to have been disbelieved purely on the strength of Saila Bala’s evidence that the priest was not fit to travel to Rishra at least up to two months before his death on August 31, 1971. Saila Bala was the lady who tended to the priest in his last days before he succumbed to a persistent bout of blood dysentery.
15. The proceedings commenced on January 20, 1972 when Lalit Mohan Hor, another of Sadhan Pakrashi’s ilk, applied for grant of probate of what was said to be a Will of Sadhan Pakrashi and of which Hor claimed to be the executor. A copy of the document claimed as Will was appended to this application. It was evident from the document that Hor and one Jiten Mukherjee were apparently appointed as executors. The initial propounder’s understanding of the document was that it was a Will “in respect (of) his property…mainly for the purpose of running and maintaining the educational institutions ‘Chandranath Sishu Bharati Vidyalaya’, ‘Sukhodamoyee Nari Silpa Mandir’ and ‘Sadhan Pith’ already run by (the deceased)…”. For reasons unknown, the said executor sought dismissal of the application for grant of probate and an order of dismissal followed on July 31, 1979. On August 30,1979, Sukhodamoyee Nari Silpa Mandir through its Secretary sought restoration of the proceedings. It was claimed in the application by such institution that it was a registered society under the West “Bengal Societies Registration Act, 1961.
16. The application by the society was allowed on December 11, 1979, the matter was revived and was converted into an application for grant of Letters of Administration in favour of the society:
17. The Court below proceeded to try the matter after framing the following issues:
(1) Is the conversion of the probate suit to one for Letters of Administration maintainable?
(2) Is the petitioner entitled to continue the L.A. suit without following the procedure laid down in Section 278 of the Indian Succession Act?
(3) Is the unregistered Will genuine?
(4) Is the alleged Will duly executed and attested?
(5) To what relief, if any, is the petitioner entitled?
18. Radharani, then a teacher at the society and whose name figured as one of the attesting witnesses, deposed in support of the Will. Her unflinching testimony, in the face of protracted cross-examination, brought out that Sadhan Pakrashi was frail and unwell but mentally alert at the time of execution of the Will. According to her, the testator who spent several years before his death enjoying the hospitality of ajajman in North Calcutta, travelled to Rishra on August 15, 1971 with a draft of a Will. Radharani asserted that she was perchance called upon to be an attesting witness, but Sadhan Pakrashi had made all arrangements for preparing and executing his Will on that day. Radharani recollected that Manjul Kanti Bandopadhyay was the scribe and that the testator affixed his signature to the document in her presence and in the presence of the other attesting witnesses.
19. Against Radharani’s word, the appellants put up Saila Bala and one Netai Chakraborty. Saila Bala asserted that Sadhan Pakrashi died of blood dysentery and pneumonia and “suffered for two months before his death and he was unable to move at that time and was bedridden”. Saila Bala recalled, some 25 years later, that on August 15, 1971, Sadhan Pakrashi was in no state to leave his bed, though “two months prior to his death sometime” Sadhan Pakrashi had travelled to Rishra.
20. Netai Chakraborty was more assertive in insisting that in addition to his physical debility, Sadhan Pakrashi was not mentally fit for sometime prior to his death. Just as the appellants’ first witness Gopinath Pakrashi had claimed before him, Netai Chakraborty denied that the signatures appearing in the Will were those of Sadhan Pakrashi. But just as Gopinath Pakrashi before him, Netai also failed to produce any document containing what, according to them, was Sadhan Pakrashi’s genuine signature. Netai Chakraborty, however, did not specify the period during which, according to him, Sadhan Pakrashi had become unable to travel prior to his death.
21. Neither Gopinath Pakrashi nor Netai Chakraborty inspires much confidence, particularly when weighed against Radharani’s consistent and credible account of the execution of the Will. For good measure, Netai Chakraborty had also claimed that the nephews enjoyed the confidence of and good relations with the priest. Saila Bala, however, testified that the relationship that the appellants-nephews had with the priest was not good.
22. It does not appear from her testimony, that Saila Bala had any axe to grind against any person. Saila Bala was fairly trying to recount what had transpired a quarter of a century back. It does not appear that Saila Bala is a lady of letters and it would be inappropriate to tilt the balance on the imperfect recollection of Saila Bala as to the exact duration of Sadhan Pakrashi’s incapacitation.
23. The Court below has read and analysed the evidence well in this regard and given the materials, it would be difficult to conclude otherwise.
24. The Court below has recorded that the first two issues had not been seriously pressed by the appellant-objectors. The issue raised before us as to the document not being one of testamentary disposition, does not appear to have been squarely raised in the First Court. Even if it had been, in the light of the First Court’s recording that the issues as to maintainability had not been seriously pressed, it need not have detained us. But it is an important matter and we propose to deal with it as it touches the very authority of the Court to receive the matter.
25. In its simplest connotation, a Will is a declaration in a prescribed manner of the intentions of the person making it with regard to matters which he wishes to take effect upon his death. A Will, as defined by the Indian Succession Act, is a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death. There are certain essential characteristics of a Will, the primary being that it remains, during the lifetime of a testator, a mere declaration of his intention and revocable at his will. The ambulatory nature of such instrument crystallizes on the testator’s death and takes effect according to its tenor.
26. On any reading of the Will in question, it is apparent that Sadhan Pakrashi wished it to take effect only after his death. He wished further that the three institution set up by him would be maintained and supported by his executors from the assets that he left behind. More than this, we need not delve into the document. It may be a trust made by way of a Will (and we do not suggest this with any finality), but that is perfectly permissible. For us the document was intended to be and reads as a Will.
27. The appellants had not made too much of the Will having come to be in suspicious circumstances. It has been urged before us, that however impoverished an objection as to suspicious circumstances, the conscience of the Court had to be satisfied and every shred of suspicion had to be removed by the propounder.
28. In support of such legal contention, the oft-noticed decisions reported at ; ; and have been referred to without being cited. On behalf of the appellants, three judgments were cited: and . Such authorities not only lay down that it is for the propounder to dispel all doubts, but also that as to what would amount to suspicious circumstances needs to be judged on facts.
29. The objection by the appellants in the Court below was bereft of any material. There was an insinuation of the document having been born in suspicious circumstances without the point being specifically taken. The document was challenged as having been manufactured, the execution was denied with a charge of forgery, but the alternative case of suspicious circumstances was not been made out. Nonetheless, it is the Court’s conscience that requires to be satisfied.
30. Suspicious circumstances, ordinarily, would be a charge in the nature of confession and avoidance. Even upon valid execution being assumed or admitted, an objection to a Will may be founded on the ground of suspicious circumstances. The mere execution of a Will need not be conclusive as to the expression of the true will of the deceased. The clarity in the mind of the testator as to the nature of the document he was executing and intent of the testator to dispose of his assets after his death in the manner provided in the Will, need to be established.
31. As has been enunciated in the decision reported at , if the propounder takes a prominent part in the execution of the Will which confers substantial benefits unto him, the Court should exercise a greater degree of vigilance and caution. It is such ground on which the charge of suspicious circumstances has been based before us.
32. The propounder society is, indeed, a beneficiary here. The attesting witness is a teacher in that society. It is only on such attesting witness’ testimony that the execution of the Will stands. Radharani is, however, slightly removed from the position of a beneficiary in this case. At the highest, she is indirectly benefited through her association as a teacher in the society.
33. Apart from Radharani’s involvement at the time of the execution of the Will, the propounder society was otherwise not involved therein. It is not the appellants’ suggestion that either the scribe or the other attesting witnesses were associated with the society. It has not been shown that either of the named executors had any truck with the society. One of the executors, and not the propounder society, had custody of the Will. It came to be proclaimed barely months after the testator’s death.
34. Ordinarily, the Court’s suspicion would be aroused in the event of any unnatural, improbable or unfair disposition. The priest did not marry and had no children. He had set up the three institutions and they were close to his heart. He chose to leave his assets to such fledgling organisations in preference to his, somewhat estranged, nephews and niece. There is no real or apparent unnaturalness that would make the Court sit up or be on extra guard.
35. Suspicion has to be aroused, whether by the objections to the grant or in the Court’s mind, for it to be dispelled.
36. The tests as to proof of valid execution and dispelling of suspicious circumstances relating to a Will, have remained consistent since Venkatachala’s case reported at . As a proposition, it was set down in that case that when the evidence adduced in support of a Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. But, as noted in such case, there may be occasions where the execution of the Will may be surrounded by suspicious circumstances, say the shaky signature of the testator or the inability of the propounder in removing doubts as to the signature or doubts as to the condition of the testator’s mind. Again, as that Supreme Court case held, there may be an unusual disposition that might excite suspicion, particularly if the propounder has played a prominent part in the execution of a Will of which he is a substantial beneficiary of an improbable bequest.
37. Even by the touchstone of such tests, Sadhan Pakrashi’s Will as propounded by the society passes muster.
38. The only other objection is as to whether the society was entitled to the grant. The society in question is a registered body and by virtue of its organization, it has a name and is entitled to hold property which, if not vested in its trustees, is deemed to be vested in its governing body. A society may sue or be sued in the name of, inter alia, its President or Secretary. A decree obtained against a society can be executed against its properties. A registered society, thus, is distinct from its members and cannot be said to be merely an association of individuals prohibited by Section 236 of the Indian Succession Act to receive a grant.
39. Despite the issues as to maintainability not being seriously pressed in the Court below, it was contended that inasmuch as the other executor, Jiten Mukherjee, who was alive in 1972, had not been joined or cited, the application for grant of probate should have been rejected outright. It is not impermissible for one of the executors to apply for probate. Further, the authority to act severally was provided to the executors in the Will. That apart, a beneficiary is entitled to seek Letters of Administration and rather than resorting to the step for reviving the dismissed proceedings, the society could have initiated proceedings for grant of Letters of Administration despite the dismissal for want of prosecution of the application for probate. It has been a third of a century that the beneficiary institutions have waited to receive the bequest and, as was fairly conceded on behalf of the appellants, it would be inappropriate to set the clock back, what with all the matters relating to the Will having already been decided.
40. The appeal fails. The judgment and decree of the Court below are affirmed. The Administrator pendente lite shall forthwith and upon proper rendition of accounts, make over the estate to the applicant respondent if he is still Secretary, if not to the present Secretary, if he is found to be fit and competent.
41. There will, however, be no order as to costs.
42. Smt. Malabika Pakrashi has been described as “Daughter of late Pranab Kr. Pakrashi” in the cause title, but in the preamble to the memorandum of appeal (at page 3 in the 10″‘ line) Malabika Pakrashi has been described as wife of Pranab Kumar Pakrashi.
43. The name of the objector/appellant No. 4 is appearing as “Rajit Pakrashi” in the cause title, but in the preamble to the memorandum of appeal (at page 3 in the 11th and 19th lines) the name is appearing as “Rajib Pakrashi”.
44. Let an administrative notice be issued upon the learned Advocate for the appellant by the concerned department for taking necessary steps for removing the aforesaid defects by incorporating necessary corrections. Accordingly, the matter is sent down to the department concerned. After the corrections are incorporated, the matter be sent back for taking follow up action.
45. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on the usual undertakings.