{"id":90517,"date":"2011-03-01T00:00:00","date_gmt":"2011-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dharanidhar-dutta-vs-girija-shankar-dutta-on-1-march-2011"},"modified":"2014-09-30T13:04:44","modified_gmt":"2014-09-30T07:34:44","slug":"dharanidhar-dutta-vs-girija-shankar-dutta-on-1-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dharanidhar-dutta-vs-girija-shankar-dutta-on-1-march-2011","title":{"rendered":"Dharanidhar Dutta vs Girija Shankar Dutta on 1 March, 2011"},"content":{"rendered":"
Patna High Court<\/div>\n
Dharanidhar Dutta vs Girija Shankar Dutta on 1 March, 2011<\/div>\n
Author: Ramesh Kumar Datta<\/div>\n
                            TESTAMENTARY SUIT No.3 OF 2008\n                                      ------\n<\/pre>\n
             In the matter of an application under Sections 273 and 276 of the Indian
\n             Succession Act for grant of probate of the registered will dated 22.11.2000\n<\/p>\n
                                      ——\n<\/p>\n
            Smt.Shefali Mukherjee wife of Sri Subroto Ramnath Mukherjee resident of\n<\/p>\n
            54. DD\/6 Anupama Housing Estate, V.I.P. Road, Kolkata-700052………..
\n            Applicant
\n                                     Versus
\n            Sidheshwar Chatterjee……… ……… …….                        Defendant<\/p>\n
                                     ——\n<\/p>\n
           For the Applicant: Mr. L.N. Das, Advocate
\n           For the Defendant: Mr. Ajeet Narayan Sinha, Advocate<\/p>\n
                               PRESENT<\/p>\n
                THE HON’BLE MR. JUSTICE RAMESH KUMAR DATTA<\/p>\n
                                     —–\n<\/p>\n
R.K.Datta, J.               The present suit was filed originally as<\/p>\n
                 Test Case No.5\/2006 being an application for grant<\/p>\n
                 of probate in favour of the applicant-plaintiff,<\/p>\n
                 Smt.Shefali      Mukherjee        with    respect        to    the    will<\/p>\n
                 dated    22.11.2000         of   late    Renuka      Chatterji,        her<\/p>\n
                 mother.\n<\/p>\n
                            It was claimed that the said registered<\/p>\n
                 Will dated 22.11.2000 was the last will of late<\/p>\n
                 Renuka     Chatterji.         The    same      was     executed        and<\/p>\n
                 voluntarily signed in a sound state of health and<\/p>\n
                 mind and after fully understanding the contents<\/p>\n
                 without    any     undue     influence       of    anybody       in    the<\/p>\n
                 presence     of two witnesses, namely, Ranjay Nandi<\/p>\n
                 and Ibha Banerjee.\n<\/p>\n
                            The     further        case      of     the        applicant-
\n                          -2-<\/span><\/p>\n
plaintiff          is    that        the     testatrix         was     a        Hindu<\/p>\n
governed by the Dayabhag School of Hindu Law and<\/p>\n
was     a    permanent          resident           of    Park     Road,         P.S.<\/p>\n
Kadamkuan, Town and District-Patna. At the time of<\/p>\n
execution of the will she had one son and four<\/p>\n
married daughters and the subject matter of the<\/p>\n
will    was       the    three        storied       building         along       with<\/p>\n
outhouse situated at Park Road, Kadamkuan, Patna.<\/p>\n
It was further stated in the application that the<\/p>\n
said Renuka Chatterjee died at Magadh Hospital,<\/p>\n
Patna       on    14.3.2002          at     6.15    A.M.    The      applicant-<\/p>\n
propounder of the will, Smt. Shefali Mukherjee,<\/p>\n
has been named as the sole executor of the Will.<\/p>\n
             As many as seven near relatives were named<\/p>\n
in the application, including the only son and two<\/p>\n
surviving          daughters,             the      daughter-in-law,               the<\/p>\n
grand son (son of son) and two other grand sons<\/p>\n
being       sons        of     the     deceased          daughter.         General<\/p>\n
citation          was    published          in     two    news    papers          and<\/p>\n
special       citation          was    also      taken     out       and    served<\/p>\n
upon        seven       near         relatives          mentioned          in     the<\/p>\n
application.             Near        Relative       No.7,        who       is     the<\/p>\n
grandson(daughter’s son) of the Testatrix appeared<\/p>\n
through          vakalatnama          and    filed       his    No     Objection<\/p>\n
petition for grant of probate in favour of the
\n                       -3-<\/span><\/p>\n
applicant. However, Near Relative No.1, the son of<\/p>\n
the testatrix, also appeared and filed his caveat<\/p>\n
and    objection       petition         opposing       the   grant    of<\/p>\n
probate.        The         application         was,     accordingly,<\/p>\n
converted into the present Testamentary Suit.<\/p>\n
            The plaintiff examined three witnesses on<\/p>\n
her behalf, namely, P.W.1, Ranjay Nandi, P.W.2,<\/p>\n
Ibha    Banerjee,           the     two     being      the   attesting<\/p>\n
witnesses, and she also got herself examined as<\/p>\n
P.W.3. The original will was produced and marked<\/p>\n
as Ext.1,; Exts.2\/1 to Ext.2\/8 are the signatures<\/p>\n
of the Testatrix on every page of the Will, Exts.3<\/p>\n
to 3\/5 are the signatures of the attesting witness<\/p>\n
Ranjay Nandi, P.W.1 on every page of the Will,<\/p>\n
and    Exts.4    to     4\/5       are     the   signatures     of    the<\/p>\n
attesting witness Ibha Banerjee, P.W.2 on every<\/p>\n
page of the Will.\n<\/p>\n
            The defendant, Sidheshwar Chatterji, also<\/p>\n
examined three witnesses, in support of his case,<\/p>\n
including himself as D.W.1, D.W.2 Raj Kumar and<\/p>\n
D.W.3 Suresh Prasad.\n<\/p>\n
            On a consideration of the respective cases<\/p>\n
of    the   plaintiff         and    defendant,        the   following<\/p>\n
issues were framed:-\n<\/p>\n
            (a) Is the case as framed maintainable?
\n                   -4-<\/span><\/p>\n
           (b)Is the case barred by the principle of<\/p>\n
estoppel, waiver and acquiescence?<\/p>\n
           (c)   Is     the     case     barred      by     law    of\n\nlimitation?\n\n           (d)   Had    late    Renuka    Chatterjee        executed\n\n<\/pre>\n
the alleged will without any coercion and undue<\/p>\n
pressure?\n<\/p>\n
           (e) Had late Renuka Chatterjee lost her<\/p>\n
power of understanding since October,1999 before<\/p>\n
the execution of the alleged will?<\/p>\n
           (f)   Was    the    alleged    will      drawn    on   the<\/p>\n
instructions of late Renuka Chatterjee?<\/p>\n
           (g)   To     what     relief        or    reliefs      the<\/p>\n
plaintiff is entitled?\n<\/p>\n<\/p>\n
           Issues (d), (e) and (f)<\/p>\n
           These issues, which are inter related, are<\/p>\n
taken up first for consideration.<\/p>\n
           The   stand     of    the     plaintiff,         who   has<\/p>\n
examined herself as P.W.3 is that the Will was<\/p>\n
executed    by   her    mother    in     the   presence      of   two<\/p>\n
attesting witnesses, P.W.1 and P.W.2, and she was<\/p>\n
in sound state of health and mind on that day and<\/p>\n
had voluntarily executed the Will. The Will was
\n                     -5-<\/span><\/p>\n
registered on the same day in the Registry Office,<\/p>\n
Patna. The corrections in the Will were also made<\/p>\n
in the pen of her mother, where she had put her<\/p>\n
full signature. During her cross-examination she<\/p>\n
has    stated    that     her    mother     was    well    versed      in<\/p>\n
English and the contents of the Will were read by<\/p>\n
her mother and after understanding the same she<\/p>\n
had    put    her   signature        and   to    that    effect       even<\/p>\n
endorsement has been made in the Will by typing<\/p>\n
out “executed the Will after knowing its contents”<\/p>\n
and beneath such endorsement her mother testatrix<\/p>\n
had signed in English. She has also stated that<\/p>\n
the Will was executed in her presence and at the<\/p>\n
time of preparation of draft Will her other sister<\/p>\n
and husband, who is an I.P.S. Officer were also<\/p>\n
present. She has admitted that she had filed the<\/p>\n
will from her custody as she was made the executor<\/p>\n
of the Will. She has also admitted that she has<\/p>\n
taken    her    mother      to       the   Registry       Office      for<\/p>\n
registration         of    the        Will.       In     her     cross-<\/p>\n
examination,        she   has    further        accepted       that   she<\/p>\n
took    the    initiative       to    approach     the    lawyer       for<\/p>\n
drafting the Will on the request of her mother<\/p>\n
that she wanted to execute the Will with regard to<\/p>\n
her properties and the said request was made in
\n                      -6-<\/span><\/p>\n
presence of her sister Swapna Mukherjee and her<\/p>\n
husband, the I.P.S. Officer and with them she went<\/p>\n
to    the   lawyer.     She    has       stated    that       her   mother<\/p>\n
never   herself       visited       the    lawyer       and    no   lawyer<\/p>\n
ever    came    to    meet    her    mother       and    whatever         she<\/p>\n
desired     was      conveyed       to    the     lawyer      for     being<\/p>\n
included in the Will. She has also accepted that<\/p>\n
she got the Will typed and accompanied her mother<\/p>\n
to the Registry Office. She has further stated in<\/p>\n
the cross-examination that her name was included<\/p>\n
as one of the beneficiaries in the Will as her<\/p>\n
mother trusted her and no stranger\/outsider should<\/p>\n
enter    into     the   house;       besides      that     she      has    no<\/p>\n
interest in the property. She has denied that the<\/p>\n
Will is forged one and misusing the confidence of<\/p>\n
the    mother     she   got    the       will   executed.        She      has<\/p>\n
further asserted that both the attesting witnesses<\/p>\n
were not only known to her and to her mother but<\/p>\n
to all the members of the family from before and<\/p>\n
they had become attesting witnesses to the Will<\/p>\n
after having seen her mother executing the Will at<\/p>\n
her    request.      She     has    admitted        that      being       the<\/p>\n
executor in the Will it was her duty to request<\/p>\n
the witnesses to           become attesting witnesses and<\/p>\n
she had called them. She has further stated that
\n                     -7-<\/span><\/p>\n
P.W.2,    Ibha      Banerjee,      was     the        tenant       in     her<\/p>\n
uncle’s house which is just by the side of the<\/p>\n
subject matter of the Will and also teaches in the<\/p>\n
same school in which her sister-in-law                         teaches,<\/p>\n
who is the wife of the defendant. She has denied<\/p>\n
that attesting witnesses are in collusion with all<\/p>\n
of them stating that they were also known to the<\/p>\n
defendant, P.W.1 being an agent in the Post-Office<\/p>\n
near their house who helps them in purchasing the<\/p>\n
Kisan Vikas Patra, etc.<\/p>\n
          P.W.1,      Ranjay       Nandy       is      one       of       the<\/p>\n
attesting     witnesses      to    the    Will.       He   has      stated<\/p>\n
that   the    testatrix     had    executed         the    will         dated<\/p>\n
22.11.2000 in her sound state of health and mind<\/p>\n
voluntarily and after understanding its contents<\/p>\n
in his presence as well as in presence of P.W.2,<\/p>\n
Ibha Banerjee. He has proved the Will and he has<\/p>\n
also     proved      the    signatures           of     late        Renuka<\/p>\n
Chatterji on each and every page of the Will to<\/p>\n
which he had become an attesting witness at the<\/p>\n
request of the testatrix and signed on each and<\/p>\n
every page on her wishes. He has further stated<\/p>\n
that     he   had    signed       in     the   presence          of       the<\/p>\n
testatrix as also Smt. Ibha Banerjee, P.W.2. He<\/p>\n
has    also   proved       the    signatures          of     the        other
\n                     -8-<\/span><\/p>\n
witness, P.W.2, Ibha Banerjee, on each and every<\/p>\n
page of the Will stating that the testatrix and<\/p>\n
the two attesting witnesses had signed on the Will<\/p>\n
in     presence     of       each    other.       In        his        cross-<\/p>\n
examination he has stated that he was working as<\/p>\n
Financial      Advisor        in     Mutual       Funds        and        was<\/p>\n
Financial Advisor to Mithun Chatterji and also the<\/p>\n
testatrix. He has stated that he was called on<\/p>\n
telephone by the plaintiff and when he reached the<\/p>\n
place, he found the typed copy of the Will in the<\/p>\n
hand of Renuka Chatterji, who asked him to put his<\/p>\n
signature      as   a     witness     of    the     Will.         He     has,<\/p>\n
however,       submitted       that        the     Will       was         not<\/p>\n
registered     in   his      presence.      He    has       also    stated<\/p>\n
that    when   he    reached        the    place,      he    found       the<\/p>\n
plaintiff and Mithun Chatterjee among other family<\/p>\n
members,    who     were     present.       He    has   denied           that<\/p>\n
Renuka Chatterji was illiterate woman stating that<\/p>\n
she used to put her signature. He, however, admits<\/p>\n
that no one had read and explained the contents of<\/p>\n
the Will to her in his presence nor she had read<\/p>\n
the Will in his presence. He has, however, stated<\/p>\n
that    although        he    did    not     know       the        age     of<\/p>\n
testatrix, but from her appearance, she looked an<\/p>\n
old lady and she was sitting on the chair when he
\n                       -9-<\/span><\/p>\n
reached      her    house.     He   has    denied       that    she    was<\/p>\n
suffering from any ailment. He has further denied<\/p>\n
that she had lost her senses or was a mentally<\/p>\n
disturbed person since October, 1999. He has also<\/p>\n
denied that he was in league with Mithun Chatterji<\/p>\n
and Shephali Chatterji.\n<\/p>\n
             P.W.2,     Ibha        Banerjee       is     the        other<\/p>\n
attesting witness. She has also stated that the<\/p>\n
mental and physical health of the testatrix on the<\/p>\n
date    of    execution       of    the    Will     was    absolutely<\/p>\n
prefect.      She     has    further      stated     that      she    had<\/p>\n
executed the Will voluntarily after understanding<\/p>\n
its contents in her presence as well as in the<\/p>\n
presence of P.W.1 and thereafter signed on each<\/p>\n
and every page. On her request the two attesting<\/p>\n
witnesses, P.W.1 and P.W.2 herself also signed as<\/p>\n
witness on every page of the Will. In her cross<\/p>\n
examination, she has said that Mithun                          Chatterji<\/p>\n
was    working      with     her    in    St.   Columbus        Schoool,<\/p>\n
Kadamkuan and she was called by the plaintiff to<\/p>\n
be a witness to the Will. She has also stated that<\/p>\n
she had found 7-8 persons present when she went to<\/p>\n
become witness to the deed of Will. She has denied<\/p>\n
that the testatrix did not put her signature in<\/p>\n
her presence or she became witness to the Will on\n<\/p>\n
                     – 10 –\n<\/p>\n
any     pressure         of     Mithun       Chatterji         and     the<\/p>\n
plaintiff. She, however, admits that the Will was<\/p>\n
not registered in her presence.\n<\/p>\n
             The    defendant      has       examined       himself     as<\/p>\n
D.W.1. He has stated that the testatrix was a semi<\/p>\n
literate lady and she could sign on the dictates<\/p>\n
of others. He has denied that she executed any<\/p>\n
will on her own. He has also alleged that the Will<\/p>\n
in question had been executed by the plaintiff and<\/p>\n
Mrs.    Mithun      Chatterji,         his     wife.    He    has     also<\/p>\n
alleged that the Will was not drafted or typed on<\/p>\n
the instructions of his mother nor she called any<\/p>\n
one     to   attest      the     alleged       Will     nor    any     one<\/p>\n
attested it in her presence. He has stated that<\/p>\n
she lost her power of understanding since October,<\/p>\n
1999 and was not in a position to understand the<\/p>\n
contents and effect of any document or deed. He<\/p>\n
has, however, stated that the testatrix was ailing<\/p>\n
since    1998      and   being     regularly         treated     by    the<\/p>\n
Doctor. Nobody other than him served his mother.<\/p>\n
He     has   further          stated     that     his       mother    had<\/p>\n
expressed her wish not to dispossess him from the<\/p>\n
ground floor of the main building where he has<\/p>\n
been living, whereas in the alleged Will he has<\/p>\n
been    allotted      outhouse         which    is     in    dilapidated\n<\/p>\n
                         – 11 –\n<\/p>\n
condition         and     in      rainy      season    its       ground    floor<\/p>\n
becomes inundated. He has stated that his mother<\/p>\n
had no exclusive title to the property under the<\/p>\n
Will        and     it           is    surrounded           by     suspicious<\/p>\n
circumstances. In cross examination, he has denied<\/p>\n
that his mother was a student of Bethal School of<\/p>\n
Kolkata,          which        is     English        medium       school        and<\/p>\n
asserted          that      his        mother      knew       only      Bengali<\/p>\n
Language. He has, however, admitted that she had<\/p>\n
Bank Account which she used to operate by putting<\/p>\n
signature on cheque. On being shown page 4 of the<\/p>\n
will he has admitted that his mother had opened a<\/p>\n
joint account in her name along with his wife for<\/p>\n
meeting the education expenditure of his son in<\/p>\n
the Post Office in the year 2000. He has admitted<\/p>\n
that his mother was operating the pension account<\/p>\n
till last day of her life. He has accepted that he<\/p>\n
was    in    the     Indian           Revenue      Service        and   in      the<\/p>\n
normal course would have retired in the year 2010,<\/p>\n
but    he    has     denied           that    he     was    dismissed          from<\/p>\n
service,           stating            that      he         took      voluntary<\/p>\n
retirement. On a question by the Court whether he<\/p>\n
can produce his order of voluntary retirement, he<\/p>\n
has however said that it was not possible as he<\/p>\n
had    taken       voluntary          retirement       way       back     in    the\n<\/p>\n
                   – 12 –\n<\/p>\n
year 1994. He has further stated that he was not<\/p>\n
getting any pension after voluntary retirement on<\/p>\n
serving the Department for 19 years. He has also<\/p>\n
denied that there was any departmental proceeding<\/p>\n
against     him       before     his     taking      voluntary<\/p>\n
retirement. He has denied that he had accompanied<\/p>\n
his mother and sister at the time of registration<\/p>\n
of the Will to the Registry Office nor that he had<\/p>\n
taken them in the Car. He, however, admitted that<\/p>\n
on the day the Will was executed, he was present<\/p>\n
in his house. On question by the Court, he stated<\/p>\n
that   he   was    present     when    the   Will   was   being<\/p>\n
executed but did not object to his mother while<\/p>\n
executing the Will. He has further denied that his<\/p>\n
sister was not interested in the property or that<\/p>\n
she has no lure for this property because she owns<\/p>\n
a huge property in America as well as in Kolkata.<\/p>\n
He has, however, stated that she has already got<\/p>\n
citizenship of U.S.A. He has further stated that<\/p>\n
he did not know as to why his mother created such<\/p>\n
a Will nor did he know the state of her mind and<\/p>\n
also he did not know as to whether the Will was<\/p>\n
created on account of his mental problem. He has<\/p>\n
denied that he is still under treatment for some<\/p>\n
mental disease. He has further accepted that the\n<\/p>\n
                      – 13 –\n<\/p>\n
property is in two parts; the main building and<\/p>\n
the    out-house          and    he     has       been     given    entire<\/p>\n
outhouse under the Will and further that even in<\/p>\n
the main building he has been given his right, of<\/p>\n
course along with his wife, sister and son. He has<\/p>\n
also     admitted       that     he     was       gifted        exclusively<\/p>\n
property at Varanasi by his parents. He further<\/p>\n
stated       that    he       does     not    know        the    attesting<\/p>\n
witnesses.\n<\/p>\n
             D.W.2, Raj Kumar, is an electrical worker<\/p>\n
who claims to visit the house of the defendant in<\/p>\n
connection with repair of electrical installation<\/p>\n
and D.W.3, Suresh Prasad Jaiswal, claims to have a<\/p>\n
Readymade Garments shop in Thakurbari Road. Both<\/p>\n
of    them    have    stated         that    they    had    visited      the<\/p>\n
defendant’s house 3 to 5 times in connection with<\/p>\n
repair    of    electrical           work    or    sale    of     Readymade<\/p>\n
Garments       for   his      mother    and       they    had     seen   him<\/p>\n
serving his mother and his mother used to                                love<\/p>\n
him very much. Due to her old age she was unable<\/p>\n
to do her usual work without him. Both of them<\/p>\n
have admitted that they do not know any of the<\/p>\n
members of the family of the defendant nor can<\/p>\n
recognize them.\n<\/p>\n
             From a consideration of the materials on\n<\/p>\n
                   – 14 –\n<\/p>\n
the record, it is evident that the plaintiff has<\/p>\n
produced both the attesting witnesses, who have<\/p>\n
deposed    that    the      Will      was   executed    in    their<\/p>\n
presence by the Testatrix and that they had signed<\/p>\n
as attesting witnesses to the Will in the presence<\/p>\n
of the Testatrix and others. These two essential<\/p>\n
ingredients of the due execution of the Will as<\/p>\n
laid down in Section 63 of the Indian Succession<\/p>\n
Act have been proved by the plaintiff.<\/p>\n
          The stand of the learned counsel for the<\/p>\n
defendant, however, is that the Will was obtained<\/p>\n
by   coercion     and      is    an   unnatural    Will.      It   is<\/p>\n
submitted by him that the beneficiaries, who were<\/p>\n
present   at    the     time     of   execution    of   the    Will,<\/p>\n
hatched up a plan for the execution of the same<\/p>\n
for their benefit. It is submitted by him that the<\/p>\n
defendant, who is the only son, has been given<\/p>\n
very   little     share     in    the   main    building.     It   is<\/p>\n
further submitted by learned counsel that from a<\/p>\n
perusal of the last part of the first page of the<\/p>\n
Will, which contains the names of legatees, it is<\/p>\n
evident to the naked eye that the same has been<\/p>\n
typed later, after the execution of the Will and<\/p>\n
thus    creates       a     suspicious         circumstance        and<\/p>\n
therefore the entire will ought to be thrown out.\n<\/p>\n
                   – 15 –\n<\/p>\n
           It     is       further       contended          by     learned<\/p>\n
counsel    that     the     testatrix         being    an     illiterate<\/p>\n
lady nothing has come in evidence to show that any<\/p>\n
one had read and explained the will to her as<\/p>\n
P.W.1 admits that the same was not done in his<\/p>\n
presence. It is also submitted by learned counsel<\/p>\n
that the mere fact of registration of the Will by<\/p>\n
itself cannot be proof of its genuineness. Learned<\/p>\n
counsel     harps      upon       the    facts        that       both    the<\/p>\n
attesting witnesses have accepted that the Will<\/p>\n
was not registered in their presence.<\/p>\n
           Unnaturalness          of    the    Will,    according         to<\/p>\n
learned    counsel,        is    clearly      proved     by      the     fact<\/p>\n
that the testatrix had as many as four daughters<\/p>\n
but   nothing       was         given    to     the      other          three<\/p>\n
daughters, except the plaintiff, who has walked<\/p>\n
away with major share of the property and it is<\/p>\n
evident from the materials on the record that she<\/p>\n
had   taken     active       part       at    all     stages       in     the<\/p>\n
preparation     and    execution         of    the     Will.      For    the<\/p>\n
said reasons, it is urged by learned counsel that<\/p>\n
the Will is not genuine and no probate ought to be<\/p>\n
granted.\n<\/p>\n
           In support of the same, learned counsel<\/p>\n
for the defendant relies upon a decision of the\n<\/p>\n
               – 16 –\n<\/p>\n
Supreme Court in the case of Ram Piari v. Bhagwant<\/p>\n
and others<\/a>: AIR 1990 S.C. 1742, in paragraph No.4<\/p>\n
of which it has been held as follows:<\/p>\n
             “4.Ratio in Malkani v. Jamadar, AIR<\/a><\/p>\n
            1987 SC 767 was relied on to dissuade<\/p>\n
            this       Court    from           interfering,         both,<\/p>\n
            because       the       finding          that    Will    was<\/p>\n
            genuine, was a finding of fact and<\/p>\n
            omission           to     mention           reason       for<\/p>\n
            disinheriting the daughter or taking<\/p>\n
            prominent          part        by       beneficiary       by<\/p>\n
            itself was not sufficient to create<\/p>\n
            any        doubt    about           the     testamentary<\/p>\n
            capacity                was              because          of<\/p>\n
            misunderstanding                   of      the     correct<\/p>\n
            import        of        the        decision      and     the<\/p>\n
            circumstances                 in        which    it      was<\/p>\n
            rendered. Property in Malkani’s case<\/p>\n
            was land. Beneficiary was nephew as<\/p>\n
            against married daughter. Anxiety in<\/p>\n
            village to protect landed property or<\/p>\n
            agricultural holdings from going out<\/p>\n
            of family is well known. Even though<\/p>\n
            it cannot be said to be hard and fast\n<\/p><\/blockquote>\n
                   – 17 –\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                rule        yet        when        disinheritance          is<\/p>\n
                amongst heirs of equal degree and no<\/p>\n
                reason        for       exclusion          is   disclosed,<\/p>\n
                then the standard of scrutiny is not<\/p>\n
                the        same    and        if     the    Courts     below<\/p>\n
                failed to be alive to it as is clear<\/p>\n
                from their orders then their orders<\/p>\n
                cannot be said to be beyond review.<\/p>\n
                Although this Court does not normally<\/p>\n
                interfere              with        findings       of     fact<\/p>\n
                recorded by Courts below, but if the<\/p>\n
                finding           is     recorded          by     erroneous<\/p>\n
                application of principle of law, and<\/p>\n
                is apt to result in miscarriage of<\/p>\n
                justice           then        this     Court      will    be<\/p>\n
                justified              in          interfering         under<\/p>\n
                Article 136.”<\/p><\/blockquote>\n
           Learned         counsel          for       the       plaintiff,<\/p>\n
however,     counters        the       aforesaid           submission     by<\/p>\n
stating that the Will was registered on the same<\/p>\n
day of its execution on 22.11.2000 and thereafter<\/p>\n
the   testatrix      remained          alive        for    more    than    15<\/p>\n
months and did not choose to revoke the same for<\/p>\n
such long time, which proves the genuineness of\n<\/p>\n
                      – 18 –\n<\/p>\n
the will and that the Will was an expression of<\/p>\n
the desire of the testatrix.\n<\/p>\n
            It is also his contention that neither of<\/p>\n
the two other daughters, who have allegedly been<\/p>\n
disinherited,         have      come     forward       to    contest       the<\/p>\n
grant of probate, whereas the notices were duly<\/p>\n
served   upon    them.          Similarly       none    of    the        three<\/p>\n
grand sons has also come forward to contest the<\/p>\n
grant of probate, rather near relative No.7 who is<\/p>\n
the son of pre-deceased daughter has supported the<\/p>\n
stand of the plaintiff when he had filed his No<\/p>\n
Objection.\n<\/p>\n
         It     is     also      submitted        by    him       that    the<\/p>\n
plaintiff       has           produced       both      the        attesting<\/p>\n
witnesses      and       they         have     testified       that       the<\/p>\n
testatrix was in a sound state of health and mind<\/p>\n
and   had     executed          the     will    without       any        undue<\/p>\n
pressure or influence by any-body at the time of<\/p>\n
execution     and      the      same    could    not    be    demolished<\/p>\n
even in cross-examination.\n<\/p>\n
         Learned counsel further submits that the<\/p>\n
defendant has admitted the fact of his presence at<\/p>\n
the time of execution and that he did not raise<\/p>\n
any   objection.          In     fact,       according       to     learned<\/p>\n
counsel, the defendant had no cause to raise any\n<\/p>\n
                    – 19 –\n<\/p>\n
objection as he has been given the maximum portion<\/p>\n
of the property. He has been directly given 1\/3rd<\/p>\n
portion of the first and second floor of the main<\/p>\n
house besides the entire out-house. In addition,<\/p>\n
he    had   already          received          earlier      the        entire<\/p>\n
property of the family at Varanasi as gift and<\/p>\n
even under the Will his wife has received half<\/p>\n
portion     on    the       ground       floor     and     his    son    has<\/p>\n
received     1\/3rd      share       on     the     first    and    second<\/p>\n
floors. Thus, according to learned counsel, the<\/p>\n
defendant alone has received much more than what<\/p>\n
he would have been entitled under the general law<\/p>\n
of succession under the Dayabhag School of Hindu<\/p>\n
Law   and   in    addition        substantial         portion      of    the<\/p>\n
main building has been given to his wife and son.<\/p>\n
There     can    thus       be      no     cause     for    making        any<\/p>\n
complaint on his behalf.\n<\/p>\n
            It is urged by learned counsel that those<\/p>\n
who were left out and not given anything are not<\/p>\n
contesting       whereas         the     defendant       who     has    been<\/p>\n
given     much    more       than        his   due   share       has    come<\/p>\n
forward challenging the genuineness of the Will.<\/p>\n
Despite admitting his presence at the time when<\/p>\n
the Will was executed, he raised no such issue<\/p>\n
with his mother at that or any subsequent point of\n<\/p>\n
                 – 20 –\n<\/p>\n
time, with whom he admits he was very close and<\/p>\n
was having good relation and who remained alive<\/p>\n
for more than 15 months after the execution of the<\/p>\n
Will.\n<\/p>\n
         It is evident from the evidence on record<\/p>\n
that the plaintiff has been able to satisfy the<\/p>\n
requirement of Section 63 of the Indian Succession<\/p>\n
Act, so far as the due execution of the Will is<\/p>\n
concerned.    However,    in   the   present      matter    the<\/p>\n
issue has been raised that the will having been<\/p>\n
obtained by coercion and undue pressure upon the<\/p>\n
testatrix,     under     Section     61   of   the       Indian<\/p>\n
Succession Act the Will is void. It has been held<\/p>\n
by the Courts that a mere persuasion or inducement<\/p>\n
to make a Will in favour of a particular person is<\/p>\n
not sufficient to bring it within the mischief of<\/p>\n
Section 61 of the Act. It must be actual coercion<\/p>\n
in the sense that the testatrix had been coerced<\/p>\n
into something which she did not desire to do.<\/p>\n
Such coercion may be actual violence or a person<\/p>\n
may have become so weak and feeble that from a<\/p>\n
little pressure or mere talking to her at that<\/p>\n
stage   or   pressing    something   upon   her    may     cause<\/p>\n
such fatigue to the brain of the sick person that<\/p>\n
she may be induced for the sake of quietness to do\n<\/p>\n
                     – 21 –\n<\/p>\n
anything.\n<\/p>\n
            It is also to be considered that normally<\/p>\n
the propounder of the Will discharges her burden<\/p>\n
if she can prove the due execution of the will but<\/p>\n
where a charge of unnatural disposition has been<\/p>\n
made, namely, exclusion of an heir of equal degree<\/p>\n
and active part played by the propounder being a<\/p>\n
beneficiary under the Will,                      then the conscience<\/p>\n
of the Court must be satisfied that the instrument<\/p>\n
so    propounded      is      the      last     will       of    a   free    and<\/p>\n
capable     testatrix.            In    such      circumstances,              the<\/p>\n
Court is required to be vigilant and jealous in<\/p>\n
examining     the     evidence.           In    support         of   the     said<\/p>\n
instrument no probate ought to be granted unless<\/p>\n
the    suspicion        is        removed        and       the       Court    is<\/p>\n
judicially satisfied that the Will expresses the<\/p>\n
true will of the deceased.\n<\/p>\n
           In the present matter, it is evident that<\/p>\n
although      the     testatrix            had        a    son       and     four<\/p>\n
daughters but the entire property has been willed<\/p>\n
in favour of the only son, his wife and son and<\/p>\n
only    one     out          of     the        four       daughters.          The<\/p>\n
disinheritance         of         the     three           daughters        would<\/p>\n
definitely be a suspicious circumstance to put the<\/p>\n
Court on alert. The further fact in this case is\n<\/p>\n
                    – 22 –\n<\/p>\n
the admitted position of the active role played by<\/p>\n
the    propounder      of         the    will     in    its    execution.<\/p>\n
However, several facts are of great significance<\/p>\n
in this case. The two excluded daughters, who are<\/p>\n
alive, and the two sons of a predeceased daughter<\/p>\n
have   not     come    forward          to     oppose    the    grant     of<\/p>\n
probate. It is the case of the plaintiff that one<\/p>\n
of the daughters, who has been disinherited, along<\/p>\n
with her IPS Officer husband was present at the<\/p>\n
time of execution of the Will, which fact has not<\/p>\n
been controverted or demolished; rather the fact<\/p>\n
that the said daughter has not come forward to<\/p>\n
oppose     the     grant      of        probate       makes    it    highly<\/p>\n
probable that the stand of the plaintiff in this<\/p>\n
regard is true.\n<\/p>\n
           On the other hand, a son of the deceased<\/p>\n
daughter has come forward stating his No Objection<\/p>\n
to the grant of probate of the Will. The Will<\/p>\n
itself states that the other three daughters have<\/p>\n
not    been    given        any    interest       in     the    scheduled<\/p>\n
property      as   they      are    well       off.    Considering        the<\/p>\n
fact   that      the   daughters          or    their    sons       are   not<\/p>\n
opposing and one of their sons is supporting the<\/p>\n
grant of probate, such statement appears to have<\/p>\n
some force.\n<\/p>\n
                       – 23 –\n<\/p>\n
           So far as the son of the testatrix, the<\/p>\n
defendant,      is      concerned,            he   has     been   given       not<\/p>\n
only 1\/3rd share in the second and third floors of<\/p>\n
the house but the entire outhouse apart from the<\/p>\n
fact    that    earlier          the     property         at   Varanasi       has<\/p>\n
been given to him. This fact coupled with the fact<\/p>\n
that his wife has been given half of the share in<\/p>\n
the ground floor and his son has been given 1\/3rd<\/p>\n
share    in    the     first       floor       and       the   second    floor<\/p>\n
along with him and the plaintiff, shows that he<\/p>\n
has not at all been discriminated                              by his mother<\/p>\n
which he claims.\n<\/p>\n
           Apart       from       the    above,          the   fact     remains<\/p>\n
that     the     defendant              having       been       part     of     a<\/p>\n
prestigious service, namely,                         the Indian Revenue<\/p>\n
Service,       admits          that       he       has    taken    voluntary<\/p>\n
retirement       after 19 years of service and is not<\/p>\n
receiving any pension. Thus, the same throws some<\/p>\n
light on the nature of the disposition made by the<\/p>\n
testatrix.      The      conduct         of    the       defendant      to    any<\/p>\n
parent in leaving such a prestigious service, as<\/p>\n
he says that he has taken voluntary retirement and<\/p>\n
not     been    dismissed             from     service,         would    weigh<\/p>\n
heavily        upon         the        parent           and     under        such<\/p>\n
circumstances          it      would     not       be    unusual       for    the\n<\/p>\n
                       – 24 –\n<\/p>\n
parent to not only protect the interest of the<\/p>\n
daughter-in-law and the grand son in the family<\/p>\n
property      but     also      to     ensure     that         the       property<\/p>\n
itself    could        not      be   sold      away       in     a       reckless<\/p>\n
manner.\n<\/p>\n
           In       any     case     a    Will       to     bequeath           the<\/p>\n
property may not be strictly in accordance with<\/p>\n
the    rules     of       succession        but     more       likely         in   a<\/p>\n
different manner. The mere fact that some of the<\/p>\n
heirs have been disinherited may not be sufficient<\/p>\n
to    throw     out       the   Will     as   being        not       a   genuine<\/p>\n
document, specially when those disinherited have<\/p>\n
no objection to the said Will, rather the lack of<\/p>\n
opposition to it may indicate a consensus within<\/p>\n
the family in regard to the disposition of the<\/p>\n
property. Although a mere registration of the Will<\/p>\n
may not clothe it with genuineness, but the fact<\/p>\n
of    registration          does     lend     great       support         to   its<\/p>\n
genuineness in the facts and circumstances of the<\/p>\n
present case.\n<\/p>\n
              The     defendant        himself       being       present           at<\/p>\n
the    time     of    execution          of   the     Will       and       having<\/p>\n
knowledge       of     the      Will      being      executed            is    not<\/p>\n
entitled to raise the plea that the Will was a<\/p>\n
forged document obtained by coercion. The stand of\n<\/p>\n
                   – 25 –\n<\/p>\n
the defendant is that till the death of his mother<\/p>\n
she remained with him and he alone was looking<\/p>\n
after and serving her and thus her being alive for<\/p>\n
15   months,     thereafter,          during    which        period    he<\/p>\n
could    not    persuade       or     convince       his     mother    to<\/p>\n
change the Will, that too goes to show that the<\/p>\n
Will is genuine and expresses the true desire and<\/p>\n
wishes of the testatrix.\n<\/p>\n
          It is strange that the defendant has not<\/p>\n
only made allegation against the plaintiff but has<\/p>\n
not spared even his wife alleging that she had<\/p>\n
gone    in     collusion       with     the    plaintiff       in     the<\/p>\n
preparation of the Will.\n<\/p>\n
          Apart from the above, it is alleged by the<\/p>\n
defendant      that    the     testatrix       was    seriously       ill<\/p>\n
since early 1998 and was not in a position to<\/p>\n
understand the contents and effect of any document<\/p>\n
or     deed,     as    she      had      lost        her     power     of<\/p>\n
understanding         since October, 1999 but no material<\/p>\n
has been brought on record by him to show that<\/p>\n
such    was    the     case,     when     it    is     his     specific<\/p>\n
averment that he alone was serving her and looking<\/p>\n
after her and thus if that was the situation he<\/p>\n
must be in        possession of the medical papers of<\/p>\n
the testatrix to justify such statement.\n<\/p>\n
                        – 26 –\n<\/p>\n
            In the said circumstances, this Court is<\/p>\n
inclined to accept from the evidence led on behalf<\/p>\n
of the plaintiff that the testatrix was in sound<\/p>\n
state of health, mind and body and even the eight<\/p>\n
signatures of the testatrix on different pages of<\/p>\n
the Will and corrections made therein go to show<\/p>\n
that there was no frailty while signing, rather<\/p>\n
the same goes to show that she had clearly signed<\/p>\n
in English. The hand-writing of the testatrix in<\/p>\n
her full signature also does not appear to be one<\/p>\n
of a semi literate old lady but of someone who<\/p>\n
could write decently in English.\n<\/p>\n
            So        far    as   the     submission     of     learned<\/p>\n
counsel for the defendant that the last part of<\/p>\n
the first page of the Will has been typed later<\/p>\n
after execution of the Will is concerned, there<\/p>\n
can    be        no     doubt     that      it   has     been    typed<\/p>\n
subsequently after the original Will was typed,<\/p>\n
but the said typed part merely mentions the names<\/p>\n
of     legatees         which         includes   apart    from     the<\/p>\n
plaintiff the defendant, his wife and his son. The<\/p>\n
stand of the plaintiff is that though the same was<\/p>\n
typed subsequently but before the execution of the<\/p>\n
Will     and          like      all     other    corrections      made<\/p>\n
accompanied by a separate signature by its side,\n<\/p>\n
                        – 27 –\n<\/p>\n
which clearly shows that though typed subsequently<\/p>\n
but it had been typed before the execution of the<\/p>\n
Will; moreover, even if the same is left out it<\/p>\n
makes no difference to the disposition made in the<\/p>\n
Will, as the said disposition is clearly given at<\/p>\n
pages      3     and      4      of     the     Will       and      the    said<\/p>\n
subsequently          typed       part       merely      recapitulates       by<\/p>\n
giving at one place the names of the legatees. It<\/p>\n
is settled proposition of law that even if a part<\/p>\n
of   the       Will    is       found    to    have       been    introduced<\/p>\n
without the knowledge of the testatrix it does not<\/p>\n
nullify the entire Will and only that part of the<\/p>\n
Will    which     is      proved        to    have       been   subsequently<\/p>\n
added without knowledge of the testatrix may be<\/p>\n
declared as null and void by the Court but the<\/p>\n
other part of the Will shall be given effect to.<\/p>\n
Applying        the      said         proposition,           even     if    the<\/p>\n
subsequently typed part of the Will is excluded,<\/p>\n
the disposition made in the Will in clear terms at<\/p>\n
pages 3 and 4 would stand and thus the part 4 of<\/p>\n
the Will subsequently typed,                          even if excluded,<\/p>\n
will have no effect. However, in the facts and<\/p>\n
circumstances           of       the     case,       I     hold     that    the<\/p>\n
subsequently typed part of the Will had been typed<\/p>\n
before     the        execution         of    the     Will      and   to    the\n<\/p>\n
                    – 28 –\n<\/p>\n
knowledge of the testatrix.\n<\/p>\n
            So   far    as     the       reliance       made    by    learned<\/p>\n
counsel     for    the       defendant          on     Ram    Piari’s       case<\/p>\n
(supra) is concerned, the same has no application<\/p>\n
to    the    facts       of     the        present       case,        as        the<\/p>\n
disinherited daughter was herself contesting the<\/p>\n
matter right upto the Supreme Court. In that case<\/p>\n
out of two daughters, one of the daughters had<\/p>\n
been disinherited and the entire property had been<\/p>\n
bequeathed        to     the        grandsons          from     the        other<\/p>\n
daughter. Moreover, the said decision of the Apex<\/p>\n
Court was not rendered merely on the fact that one<\/p>\n
of the daughters had been disinherited in favour<\/p>\n
of the sons of the only other daughter but also on<\/p>\n
the    recitals         made        in     the       Will      which        made<\/p>\n
speculative       narration          of     property          depending          on<\/p>\n
imagination        of    what        the        testator       might        have<\/p>\n
possessed        and    clearly           showed       the     hand        of     a<\/p>\n
professional       expert.       It       was     in    the    entirety          of<\/p>\n
those circumstances that the Apex Court held that<\/p>\n
disinheritance          of    one    of     the      daughters       was        not<\/p>\n
acceptable. The same is not the position here. In<\/p>\n
fact it is the major beneficiary under the Will,<\/p>\n
who has obtained more than his share under the law<\/p>\n
of succession who has come forward to challenge\n<\/p>\n
                      – 29 –\n<\/p>\n
the    same,     whereas        the    so       called   disinherited<\/p>\n
daughters have either not come forward or one of<\/p>\n
their surviving sons is, in fact, supporting the<\/p>\n
grant of probate.\n<\/p>\n
             Thus,    I    hold     that    the    testatrix     Renuka<\/p>\n
Chatterji       had       executed        the    will    in    question<\/p>\n
without any coercion and undue pressure. I further<\/p>\n
hold     that    she          had   not     lost     her      power    of<\/p>\n
understanding before or at the time of execution<\/p>\n
of     the    Will        which     had     been     drawn     on     her<\/p>\n
instruction.\n<\/p>\n
             Issues (d), (e) and (f) are, accordingly,<\/p>\n
decided in favour of the plaintiff and against the<\/p>\n
defendant.\n<\/p>\n<\/p>\n
             Issues (a), (b) & (C)<\/p>\n
             No argument has been advanced by learned<\/p>\n
counsel for the defendant on these issues. On a<\/p>\n
consideration of the facts and circumstances of<\/p>\n
the case, I am of the view that these issues also<\/p>\n
go in favour of the plaintiff.\n<\/p>\n<\/p>\n
             Issue (g)\n<\/p>\n
                                            – 30 –\n<\/p>\n
                                    In view of the fact that all the issues<\/p>\n
                          have been decided in favour of the plaintiff, I<\/p>\n
                          hold that the plaintiff is entitled to grant of<\/p>\n
                          probate    of   the       Will      dated    22.11.2000        in    her<\/p>\n
                          favour.\n<\/p>\n
                                    It    is,   accordingly,            ordered        that    the<\/p>\n
                          probate   of    the       Will     dated    22.11.2000        of    late<\/p>\n
                          Renuka    Chatterji        be     granted     in   favour      of    the<\/p>\n
                          plaintiff, Shefali Mukherjee as the executrix. The<\/p>\n
                          suit is, accordingly, decreed with costs in favour<\/p>\n
                          of the plaintiff and against the sole defendant.<\/p>\n
                                                          ( Ramesh Kumar Datta, J. )
\nPatna High Court, Patna
\nIst March, 2011.\n<\/p>\n
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Patna High Court Dharanidhar Dutta vs Girija Shankar Dutta on 1 March, 2011 Author: Ramesh Kumar Datta 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-90517","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nDharanidhar Dutta vs Girija Shankar Dutta on 1 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dharanidhar-dutta-vs-girija-shankar-dutta-on-1-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dharanidhar Dutta vs Girija Shankar Dutta on 1 March, 2011 - 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