Prithwis Kumar Mitra vs Bibhuti Bhusan Mitra

P.N. Mookerjee, J.—These are two appeals arising out of two probate proceedings in respect of two wills left by the testator Rajani Kanta Mitra. The wills in question are dated August 13, 1951 and December 28. 1953. Probate has been granted by the learned trial Judge of this last mentioned will and an application for probate in respect of the other one has been refused.

The Appellant was the propounder of the said earlier will, of which probate has been refused by the learned trial Judge, and he was the caveator in the other proceeding in which probate has been granted by the learned trial Judge in respect of the will, dated December 28, 1953, as stated hereinbefore. The two proceedings were heard analogously in the Court below. The earlier will, dated August 13, 1951, was marked as Ext. A and the later will, dated December 28, 1953, was marked Ext. 4. The Appellant, as the pro-pounder of the earlier will, filed his application for probate on March 28, 1955, with a certified copy of the Said will annexed which, of course, was registered as was the other one too. This proceeding was numbered as O.S. 21 of 1955, later re-numbered as O.S. 73 of 1955, and out of the same and directed against the refusal of probate in that case, has been filed F.A. No. 273 of 1958 by the Appellant. In respect of the other will, the propounder (Original Respondent No. 1) filed his application for probate on May 13, 1955, which was registered initially as O.S. No. 35 of 1955, later re-numbered as O.S. 72 of 1955, and which eventually succeeding and the probate of the said will having been granted by the learned trial Judge, that will also being a registered one as already stated, the caveator Appellant filed the other appeal in this Court (F.A. No. 272 of 1958). These two appeals have been heard together and analogously and, evidently, if one succeeds in the facts of this case, the other also will necessarily succeed.

The testator appears to have made altogether three wills. Besides the two wills referred to hereinbefore, there was an earlier will, which was dated March 27, 1950, and which is referred to in the will, dated August 13, 1951, and expressly revoked by it. The two wills before the Court (Exts. A and 4) are both holograph wills. Both appear to have three attesting witnesses. There was also, eventually, no dispute as to the validity of the earlier of the said two wills, namely, the second will, dated August 13, 1951 except that, according to the propounder of the other or the later will dated December 28, 1953, it was revoked by the said last mentioned will. There were, of course, various objections taken as to the validity of this last will by the caveator, who is the Appellant before us, but those objections eventually boiled down only to two points, namely, that it was not validly attested according to law and, secondly, that it was vitiated by undue influence. If these two objections or any of them be decided in favour of the said caveator, probate of this will cannot be granted, and, almost as a matter of course, the will, propounded by him, namely, the earlier will, dated August 13, 1951 will have to be probated. If, on the other hand, none of these objections be accepted then, in that case, the will dated December 28, 1953, being the last will of the testator and expressly also containing a clause revoking the earlier will, it will have to be probated and the trial Court''s refusal of probate in respect of the other will also have to be affirmed as a necessary consequence. The points, therefore, which arise for consideration in these two appeals are:

(i) whether the said will dated December 28, 1953 was validly attested as required by law and

(ii) whether any case of undue influence has been established in respect of the same to vitiate its legality and validity.

On the first question, as we have already said, there appears to be three attesting witnesses. They are, however, not described in the said will as attesting witnesses or even as witnesses, but their signatures appear in the said will in addition to the signature or signatures of the testator, who himself was the scribe of his will, which was a holograph will as aforesaid, and no other signature appears in the said will. Of these attesting witnesses, two were examined by the propounded, of whom one had to be declared hostile and the third attesting witness was examined on behalf of the caveator. The attesting witness, who was declared hostile, in the earlier part of his deposition, appears to have supported the validity of the will to some extent but, even before the examination in chief was finished, he appeared to have spoken against its validity, which led the propounder to declare him hostile and, thereafter, he was cross-examined on behalf of the propounder and also on behalf of the caveator. This witness, whose name is Probhas Chandra Dutta is P.W. 1 and the learned trial Judge, on a consideration of the circumstances and his evidence in the light of the other evidence in the case, has held that the part of his evidence which goes against the validity of the will was unacceptable and that upon his evidence also, to the extent that it could be accepted, there was sufficient proof, at least, of one of the essential elements of attestation. The learned trial Judge also holds the same view as to the evidence of the other attesting witness who was examined by the propounder as P.W. 3. and although this witness also tried to prevaricate at some stages his evidence on the whole was accepted by the learned trial Judge as proving sufficiently the major requirements of attestation. The learned trial Judge further holds that this conclusion as to the effect of the evidence of the above two attesting witnesses is strengthened by the evidence of the learned Advocate for the propounder, Sri Indu Bhusan Ghose, a senior Advocate of the Court, whose evidence also will show that there was sufficient admission of valid attestation and execution of the disputed will before him by the above attesting witnesses.

Both the above attesting witnesses also subscribed to the declaration of legality and validity of the will including attestation required to be annexed to the application for probate and their explanation that they subscribed to the same without knowledge of the contents thereof, not being acceptable to the learned trial Judge, the said declaration was held to sufficiently prove what remained to be proved of valid attestation. Over and above this, the propounder examined himself in support of the validity of the will and also his wife, who was the sole legatee thereunder and who, according to their evidence, was present at the time of execution of the above will by the testator. Their evidence also which substantially, according to the learned trial Judge, supports the conclusion in favour of validity of the will (Ext. 4), both as regards execution and attestation and also dispels any suspicion in respect of the same or any case of undue influence and the above evidence was accepted by the learned trial Judge, who rejected as untrue the evidence of the other attesting witness against the validity of attestation and execution of the above will, this witness having been examined by the caveator as his witness No. 1.

On the above view of the evidence, the learned trial Judge granted probate of the will, dated December 28, 1953, and refused probate of the earlier will, dated August 13, 1951.

In our view, the learned trial Judge came to a correct conclusion on the materials before him and in spite of Mr. Mukherjee''s strenuous attempts to persuade us to the contrary, we have not been able to accept his submission and pronounce against the correctness of the judgment of the learned trial Judge.

Mr. Mukherjee, in arguing these appeals, mainly contended that, in the absence of anything in the will itself to show that the so-called attesting witnesses signed as attesting witnesses or in that capacity, whatever other things might be proved, proof or valid attestation, as required by law, would be wanting. According to Mr. Mukherjee, although no particular form of attestation was necessary under the law, some form-that is something to indicate attestation, must appear in the disputed will itself to show that these were attesting witnesses and their capacity cannot be proved by other evidence and the aid of no extraneous evidence can be invoked in the matter to fill up the gap and supplement the same, that is, the will document in that respect. This, however, is an extreme proposition which has never been accepted by the Court.

The authority, upon which Mr. Mukherjee very strongly relied in support of his above submission, is reported in Nirode Mohan Roy Vs. Charu Chandra Mazumdar, . It will, however, appear from the said decision itself that their lordships'' view was just the contrary. Indeed, the point there being whether the person, Sarat by name, who signed as scribe to the testamentary document in question there signed only as scribe, although there was evidence in the case to the effect that he also signed as attesting witness apart from the scribe''s own admission to the contrary that he signed the will in question only as scribe, their lordships pointed out that if the scribe''s said admission had not been there, probably on the other evidence to which reference has been made above the scribe Sarat might have been taken as a good attesting witness but upon his admission and in view of the same that he signed the document only as scribe their lordships rejected the contention that he also signed as an attesting witness. This will appear from the following passage in the judgment of their lordships at pp. 462-463:

In coming to a conclusion on this very important question of fact, namely, whether Sarat Chandra Chattopadhyay the scribe of the document, affixed his signature as a witness or not, we have to consider the position of his signature on the document itself and the evidence of Sarat Chandra Chattopadhyay himself and the evidence of the only other person who claims to have been present at the time of the execution and at the time when Sarat Chandra Chattopadhyay put his signature, namely, Surendra Nath Saha. Surendra Nath Saha has said this: The will was then handed over to Chandra Babu who again read the will. Then Chandra Babu signed the will in my presence and Sarat Babu. Then myself and Sarat Babu signed our names as witnesses in the will in the presence of the testator. If this was all I should have been prepared to hold that Sarat Babu had affixed his signature as a witness in the will. Sarat Chandra Chattopadhyay has, however, been himself examined in this case and in reply to an interrogatory: "In what capacities did you sign the will ?" made the statement ''I put my signature to the will as the scribe.'' I find it difficult to agree with the learned Advocate for the Respondent that Surendra Nath Saha''s statement as to the capacity in which Sarat Chandra Chattopadhyay signed it should be accepted in preference to Sarat''s own statement on the point. It is important to notice in this connection that Sarat Chandra Chattopadhyay has not himself made any statement as regards the time when he affixed his signature. There is nothing in his deposition to show that he affixed his signature after the testator had put his signature.

The authority, then, upon which Mr. Mukherjee relies in support of his above submission really goes against him and, indeed, that view of the law would also appear from Jnanada Govinda Chaudhury v. Birendra Nath Goswami 69 C.L.J. 347, and In the goods of Gukul Chand, deceased ILR (1944) Cal. 388.

Mr. Mukherjee also placed strong reliance upon the observations of the Judicial Committee in the four or five sentences, by which they affirmed the judgment by the Patna High Court in Shamu Patter v. Abdul Kader Ravuthan (1925) L.R. 39 IndAp 218. An examination, however, of the judgment of the Patna High Court will clearly demonstrate that in the said case, there was a clear finding that the person concerned signed not as attesting witness but as a confirming or consenting party. Upon that finding he could not, in any view, be taken to be an attesting witness and the affirmation of the Patna High Court''s judgment by the Lordships of the Judicial Committee in the circumstances cannot be taken to be establishing any other proposition of law than that when a person is proved to have signed the will in a different capacity and not in the capacity of an attesting witness, he could not be accepted as a good attesting witness.

In our view, it will be unnecessary to dilate further on the point and no case would lend support to the extreme proposition contended for by Mr. Mukherjee that, for valid attestation, there must be something in the will itself to indicate that the person concerned signed as attesting witness and the omission, lacuna, or insufficiency, if any, in the document in that behalf cannot be supplemented or supplied by other evidence. Even apart from that, and assuming that Mr. Mukherjee''s contention as to the above requirement in law is correct, that would not necessarily put the propounder of the will, dated December 28, 1953 before us, out of Court, because in the said will itself there is a statement by the testator that there are three attesting witnesses to this will, and in that context the three signatures other than the testator''s signature or signatures in the said will may well be taken by the Court as signatures of the attesting witnesses, thus supporting what is otherwise also well established by the other evidence in the case.

We would, accordingly, reject Mr. Mukherjee''s above contention and hold that the disputed will, dated December 28, 1953, was duly and validly attested as required by law.

On the question of undue influence, we have no reason to differ from the learned trial Judge, particularly remembering that the onus to prove undue influence is on the caveator and, in the instant case, there is practically no evidence to prove the same. It it well known that every influence is not undue influence. It is also well-established that the mere fact that the bequest is in favour of persons who were looking after the testator at or about the time of the will, does not by itself indicate that the will was executed under undue influence. Indeed, if the law were otherwise, it would be not only unjust but would, as the law of wills, contradict itself, as it would prevent the testator from benefiting those, whom it would be most natural on his part to benefit by his will and who deserve the same most and thus prevent him from expressing or giving effect to his natural desire. In the instant case, as we read the evidence, there is nothing more in support of the caveator''s allegation of undue influence and, accordingly, we reject his case on the point.

We would, in the premises, reject this submission too of Mr. Mukherjee and hold that the disputed will, dated December, 28, 1953, is not vitiated by undue influence, as alleged by the Appellant caveator.

In the result, all the contentions, urged by Mr. Mukherjee in support of the above appeals, fail and the appeals are dismissed.

There will, however, be no order for costs in any of these appeals, either in this Court or in the Court below.

Amaresh Roy, J.

I agree.