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2024 DAILYLAW 2405 (CAL)

Mohan @ Kaju Shaw v. Om Prakash Shaw

2024-11-12

Sabyasachi Bhattacharyya, Uday Kumar

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Judgment : Sabyasachi Bhattacharyya, J. 1. The present first appeal has been preferred against the grant of probate of the Will of one Late Shanti Shaw. The appellant is the son of the testatrix whereas, by virtue of the Will, the testatrix bequeathed her properties to her daughter Smt. Sabitri Shaw (the respondent’s wife). 2. Learned counsel for the appellant contends that the inordinate delay in filing the probate application is itself to be construed as a suspicious circumstance vitiating the application. It is contended that the Will was purportedly executed on January 6, 1997, and the testatrix died on July 16, 1997. A previous probate application was filed on January 6, 1999 but the same was dismissed on April 17, 2002 due to non- production of the original Will. The present proceeding arises from the second probate application, filed on May 8, 2002. Since the present application was filed about five years after the death of the testatrix, the same is hit by Article 137 of the Schedule to the Limitation Act, 1963, which stipulates the time-limit for such applications to be three years from the date of cause of action. 3. Learned counsel cites a Division Bench judgment of this Court in F.A 368 of 2013 [Krishna @ Krishna Lal Ghosh v. Ashoke Ranjan Dutta] in support of such proposition. 4. It is secondly argued by the appellant that both the attesting witnesses in the disputed Will were of the Mohammedan community, whereas the testatrix was a Hindu widow. As such, it was improbable that the testatrix had any truck with the said witnesses. It transpires that the Executor of the Will, being the son-in-law of the testatrix who benefits from the bequest in favour of his wife, procured such witnesses. It is argued that the very fact that the son-in-law was the Executor and propounder whereas the beneficiary is his wife, the daughter of the testatrix, casts doubt on the genuineness of the Will. 5. It is further argued that there is no statement in the Will as to the contents of the same having been read over and explained to the testatrix. The Will is in English whereas the testatrix signed in Bengali. 5. It is further argued that there is no statement in the Will as to the contents of the same having been read over and explained to the testatrix. The Will is in English whereas the testatrix signed in Bengali. The scribe, who is an advocate, who was alleged to have read over and explained the contents to the testatrix, was the best witness but was withheld, despite the P.W.1 (Executor) having stated in his evidence that the said scribe would be brought as witness. 6. Learned counsel next contends that the appellant, who according to him is the only son of the testatrix (although the respondent has claimed that the testatrix has another son) has been totally excluded from the bequest which is itself a suspicious circumstance as well. The son-in-law, being the husband of the sole beneficiary, was the Executor and the propounder of the Will, which also shrouds the execution of the Will with doubt. 7. The second attesting witness (P.W.2), signed in Urdu but stated in his cross-examination that he can read and write English, which is also inexplicable. 8. The consistent case of the attesting witnesses in evidence is that the Will was drafted, executed and signed in the Sherista of the advocate Ranjit Kumar Dutta, who was the scribe. However, beneath the signatures of the attesting witnesses in the purported Will, the address of one Zainab Urdu Primary School Building has been given, indicating that the Will was executed in the said school building, which is also a contradictory circumstance. 9. Thus, it is contended that the execution of the Will was fictitious and the probate case ought to have been dismissed. 10. Learned counsel for the respondent controverts such submissions and argues that there was no delay at all in filing the probate application. Since the learned erstwhile advocate of the propounder failed to submit the original Will despite the same having been handed over to him, the first probate application was dismissed. However, the second probate application was filed within a month thereafter. As such, there was no conceivable delay on the part of the propounder. 11. It is submitted that both the attesting witnesses were known to the testatrix, as borne out by the evidence said attesting witnesses and as such, no doubt is cast at all in that regard. However, the second probate application was filed within a month thereafter. As such, there was no conceivable delay on the part of the propounder. 11. It is submitted that both the attesting witnesses were known to the testatrix, as borne out by the evidence said attesting witnesses and as such, no doubt is cast at all in that regard. There is no bar in law, it is argued, in the attesting witnesses being from a different community than the testatrix. 12. It is argued that absence of any specific statement in the Will as to the contents thereof being read over and explained to the testatrix are immaterial, since sufficient evidence was led by the attesting witnesses in their testimony to that effect. 13. The exclusion of the appellant from the bequest is sufficiently explained in the Will itself and the language of the Will suffices to remove any doubt in that regard. 14. It is argued that the addresses below the signatures of the attesting witnesses signify their workplace/residence and having nothing to do with the place of signing of the Will. 15. Lastly, it is contended that all conditions of Section 63 of the Indian Succession Act having been complied with duly, the learned Trial Judge was fully justified in granting probate and the present appeal should be dismissed. 16. Upon a careful consideration of the arguments of the parties, it transpires that there is little or no scope of interference with the impugned judgment and decree. 17. The plinth of the submission of the appellant is that the probate application was time-barred, being hit by Article 137 of Schedule I of the Limitation Act, 1963. However, the Division Bench judgment of this Court cited by the appellant speaks otherwise. The said judgment relies on a decision of the Supreme Court reported at (2008) 8 SCC 463 [Kunvarjeet Singh Khandpur v. Kirandeep Kaur and others], where it was held that Article 137 is not an absolute bar but merely casts a suspicious circumstance if the application is filed after three years as stipulated therein. The suspicion increases proportionally with the period of delay thereafter. 18. In Kunvarjeet Singh Khandpur (supra), which was the premise of the Division Bench judgment of this Court, the Supreme Court noted with approval a still previous Supreme Court judgment reported at (1976) 4 SCC 634 [Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma]. The suspicion increases proportionally with the period of delay thereafter. 18. In Kunvarjeet Singh Khandpur (supra), which was the premise of the Division Bench judgment of this Court, the Supreme Court noted with approval a still previous Supreme Court judgment reported at (1976) 4 SCC 634 [Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma]. The Supreme Court, in the earlier judgment, had observed that Article 137 will apply to any petition or application filed under any Act to a Civil Court but is not confined to applications contemplated by or under the Code of Civil Procedure. 19. However, proceeding further, the Supreme Court also noted with approval the case of S. Krishnaswami, In re, reported at AIR 1991 Mad 214 , where the Madras High Court had held that in a probate proceeding, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. The duty is only moral and not legal and there is no law which compels the applicant to file the proceeding for probate or Letters of Administration. With a view to discharge the moral duty, the applicant seeks recognition from the court to perform the duty and it would be legitimate to conclude that the proceeding filed for grant of probate or Letters of Administration is not an action in law. 20. Going with the description of the nature of a probate application by the Madras High Court, the Supreme Court held that it was not correct to observe that such an application was not covered by Article 137 of the Limitation Act. It was, however, reiterated that such an application for the court’s permission is to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. The right to apply, it was held, would accrue when it becomes necessary to apply which may not necessarily be within three years from the death of the deceased. Delay beyond three years would arouse suspicion and such delay must be explained, but cannot be equated with an absolute bar of limitation. 21. The right to apply, it was held, would accrue when it becomes necessary to apply which may not necessarily be within three years from the death of the deceased. Delay beyond three years would arouse suspicion and such delay must be explained, but cannot be equated with an absolute bar of limitation. 21. In the said judgment, the facts of the case were that a previous proceeding for grant of Letters of Administration was withdrawn and limitation was counted by the Supreme Court to be three years from such withdrawal. 22. In the present case, the first probate application was filed within two years of the demise of the testatrix. The propounder/respondent, in the second probate application, had clearly stated that although the Will was handed over, the same was not placed before the court by the erstwhile learned advocate, for which the first probate application was dismissed on April 17, 2002. Notably, the second probate application was filed within a month thereafter, on May 8, 2002 and, as such, the application cannot be said to be hit by Article 137 of the Constitution of India. In any event, the explanation for the delay being a plausible one and having been accepted by the learned Trial Judge, it is not for this Court, sitting in appeal, to substitute its own views for that of the learned Trial Judge. 23. In the Division Bench judgment cited by the appellant, the delay was of twenty years whereas in the present case, the total delay from the date of demise of the testatrix was five years and, if counted from the dismissal of the previous application for probate, about a month. Thus, the ratio of the said judgment does not help the appellant in any manner. 24. Insofar as the attesting witnesses being of a different community than the testatrix is concerned, elaborate evidence has been led by the attesting witnesses. P.W.2, the second attesting witness, stated that he knew the testatrix for long and the testatrix and her daughter collected coal which was purchased by him. In fact, both the attesting witnesses, in their respective depositions, categorically stated that they knew the family of the testatrix for long. Thus, mere difference in religion does not cast an iota of doubt on the selection of the attesting witnesses to act in such capacity. 25. In fact, both the attesting witnesses, in their respective depositions, categorically stated that they knew the family of the testatrix for long. Thus, mere difference in religion does not cast an iota of doubt on the selection of the attesting witnesses to act in such capacity. 25. The next point taken by the appellant is that the Will itself does not mention its contents having been read over and explained to the testatrix, who signed in Bengali. However, there is no hard and fast requirement of law that such statement should necessarily find place in the concerned Will itself. In fact, even if such a statement was contained in the Will itself, which was in English, the purpose of the same would be self-defeating, since in any event, if there was no actual reading over and explanation of the contents to the testatrix, the statement to that effect which is itself in a foreign language would not mean anything. Rather, it is required to be independently proved that the contents were read over and explained, by corroborative evidence beyond the Will itself. Hence, the absence of such statement in the Will itself is not at all fatal to the case of the propounder. 26. It is evident from the records of the present case that the necessary ingredients as stipulated in Section 63 of the Indian Succession Act, 1925 as well as Section 68 of the Evidence Act, 1872 have been duly complied with. 27. On the other hand, both the attesting witnesses have vividly corroborated the fact that the entire contents of the Will were read over and explained to the testatrix in the Sheristha of the scribe, one Ranjit Kumar Dutta, a lawyer. There is nothing in their cross-examination to shake such evidence. 28. The consistent case of the propounder and all the plaintiff’s witnesses is that the drafting, execution and attestation of the Will were done in the Sherista of the scribe. The Executor (P.W.1) and the attesting witnesses (P.W.2 and P.W.3) all corroborated such statement and there is nothing to disbelieve the same. 28. The consistent case of the propounder and all the plaintiff’s witnesses is that the drafting, execution and attestation of the Will were done in the Sherista of the scribe. The Executor (P.W.1) and the attesting witnesses (P.W.2 and P.W.3) all corroborated such statement and there is nothing to disbelieve the same. The mention of Zainab Urdu Primary School building beneath the signatures of the attesting witnesses is explained by their respective statements in their evidence, which goes on to attribute the said School as the previous workplace of the first attesting witness (P.W.3) as well as the current workplace of the second attesting witness (P.W.1). Thus, the prepositions “at” and “of” preceding the address of the said School building qualifies the place where the attesting witnesses hail from and not the situs of the execution of the Will. Hence, the cloud sought to be created by the appellant regarding the place of execution of the Will cannot be accepted from any perspective. 29. A bare perusal of the Will itself dispels any manner of doubt as to the reason why the appellant/son was excluded by the testatrix and her entire property was bequeathed to her only daughter, the beneficiary. In the Will, the testatrix clearly states that she has executed the Will and declared her daughter as the sole beneficiary and universal legatee considering her “sincere services, punctilious duty and utmost attention and tenderest care” rendered to the testatrix in her predicament. The testatrix stated in the Will that she had no source of income and that both her sons (including the appellant) neglected to maintain and look after her in her old age and that they resided separately with their respective family members at other places, leaving the testatrix stranded. Both the sons, according to the testatrix, maintained quite an apathetic attitude towards her and they had forsaken the testatrix at her old age and, as such, she had no sympathy for them but was only concerned for her daughter, who had been looking after her with affection and maintaining her with utmost care, love, etc., in spite of her meagre resources, only for the filial piety towards her mother. 30. The Will itself, thus, is self-evident and clears any doubt as to the reason or explanation for the testatrix having excluded the appellant, her son, totally and bequeathed the entire property to her daughter. 31. 30. The Will itself, thus, is self-evident and clears any doubt as to the reason or explanation for the testatrix having excluded the appellant, her son, totally and bequeathed the entire property to her daughter. 31. The appointment of the son-in-law as the Executor per se does not vitiate the Will; rather, he was the obvious choice as Executor since his wife, the daughter of the testatrix, was the beneficiary, and it would only be convenient to appoint the son-in-law, instead of a rank outsider, as Executor to facilitate smooth grant of probate. Clearly, the son-in-law would not act to the detriment of the beneficiary’s interest and was the obvious choice as Executor. 32. Regarding the signature of the second attesting witness (P.W.2) being in Urdu, merely because he stated he had some knowledge of English, nothing is proved to cast any doubt on the signature being in Urdu vernacular. 33. As such, on a comprehensive assessment of the evidence, we are of the opinion that the learned Trial Judge acted perfectly within the ambit of law and assessed the factual materials available before the court rightly. Hence, there is no scope for this Court to unnecessarily interfere with the impugned decision or to substitute its own views for that of the learned Trial Judge as expressed in the impugned judgment and decree. 34. Accordingly, the appeal fails. Thus, F.A. No.62 of 2018 is dismissed on contest without, however, any order as to costs. 35. All pending applications, if any, stand accordingly disposed of. 36. Interim orders, if any, also stand hereby vacated. 37. A formal decree be drawn up accordingly. I agree. Uday Kumar, J.