Sisir Kumar Roy vs Amiya Roy

Hazra, J.—Dr. Satyaban Roy, M.Sc, M.B., F.R.C.S. (Edin.), D.L.O. (Lond.), lately an M.P., a Hindu governed by Dayabhaga school, died on January 27, 1965, leaving him surviving his sole widow Sm. Amiya Bala Roy. He had no son or any other issue. In case of intestacy his estate would devolve on his widow.

Dr. Sisir Kumar Roy, a medical practitioner and Nirendra Nath Kerr, a Solicitor, filed a petition on June 20, 1967, for grant of probate of a will dated October 29, 1954, of the deceased claiming to be joint executors and trustees named in the will.

It appears from the will, which is annex, "A" to the petition, that there are two attesting witnesses, namely, the said Solicitor, N.N. Kerr and G. Mohiuddin, Curator, Indian Botanic Garden. G. Mohiuddin as one of the attesting witnesses to the will affirmed an affidavit on June 7, 1967, under the provision in Section 281 of the Indian Succession Act. The widow of the deceased, Sm. Amiya Bala Roy, filed a caveat on June 8, 1966. An affidavit in support of the caveat was filed by her on June 29, 1967. In the affidavit, she denied and disputed that her husband made or published any will dated October 29, 1954, or on any other date or that her husband appointed the Petitioners as executors or trustees of the said will. It is also denied that the said will was duly executed or that the same could be proved by the purported declaration of G. Mohiuddin as one of 1 the attesting witnesses. Her case is that her husband died intestate. She has also stated that the alleged will is an unnatural will. It was not voluntarily executed by her husband as a result of his own free will or volition. She denied that the said document dated October 29, 1954, is the will or testamentary disposition of the deceased. She also made allegations of undue influence or coercion.

On July 6, 1967, the probate proceeding was marked as contentious cause.

Nirendra Nath Kerr died on March 3, 1968, during the pendency of the testamentary suit. G. Mohiuddin, the other attesting witness, was examined on commission. The testamentary suit came up for hearing before me and the will which is sought to be propounded was placed. The will contains 13 clauses typed in English in three sheets. The position of the signature of the testator appears on the last page, namely, at p. 3 on the right hand side of the attestation clause. There is no signature on other pages of the will. In the first page there is some overwriting or correction in ink. No part of the will is written on the sheet where signature of the testator and those of the attesting witnesses appear. The operative parts of the will appear at pp. 1 and 2 only. At p. 3 of the will there is attestation clause which is as follows:

Signed by the testator Satyaban Roy in the presence of us, who in his presence and in the presence of each other have subscribed our respective names as attesting witnesses:

Just beneath the attestation clause the signature "N.N. Kerr, Solicitor, Calcutta" appears. Just beneath the signature of N.N. Kerr, it is written in hand "attested" and then beneath the word attested there is signature of ''G. Mohiuddin, Curator, Indian Botanic Garden, Calcutta, 29.10.54''. There is a cover page which is a typed sheet of paper. In this typed sheet of paper it appears ''dated this...day of October, 1954''. The blank date has not been filled up. Then in the middle of the cover page it appears "Will of Shri Satyaban Roy"; then at the bottom of the cover page it is typed, "N. N. Kerr, Solicitor, 10, Old Post Office Street, Calcutta".

The will is a short will. While the will was read it seemed to me that Clause 10 of the will relating to the wife of the testator was not natural. I am quoting hereunder the provisions contained in the will:

(1) THIS IS THE LAST WILL and TESTAMENT of me, DR. SATYABAN ROY, M.B., M.Sc, F.R.CS. (Eding.), D.L.O., (Lond.), M.P., of No. 3, Queens Mansion (formerly Galstaun Mansions), Calcutta.

(2). I have made no other WILLS and I hereby revoke all my previous WILLS, if any.

(3) I hereby appoint Dr. SISIR KUMAR ROY, M.B., of No. 44/1 Sankaritola Street, Calcutta-14 and MR. NIRENDRA NATH (KERR, M.A., B.L., ADVOCATE and SOLICITOR, of No. 10 Old Post Office Street, Calcutta, as the EXECUTORS and TRUSTEES of this my WILL.

(4) My wife SM. AMIYA BALA ROY, my two nephews of the name of Prandhan Roy and Jibandhan Roy and widowed second sister-in-law (widow of my second brother since deceased) are living with me as the members of my family.

(5) It is my desire that after my death my family consisting of the said members shall live jointly either at my own house at Jadavpur or at my village at Garh Bhowanipur in the district of Howrah.

(6) I have a house at Jadavpur and a piece of land at Southern Avenue, Calcutta and also zemindary properties in the district of Howrah. I have also four Life Insurance Policies and SHARES of several Companies, Medical Books and Instruments and other moveable properties.

(7) I hereby give and bequeath the Policy of New India Life Insurance Company Ltd., to MRS. ALICE BENTZ, Drougrie en Gros, Boulevard Gambetta, Mansle (Charante), France.

(8) I hereby also give and bequeth my medical books and instruments to the said DR. SISIR KUMAR ROY.

(9) I hereby direct that my said EXECUTORS and TRUSTEES shall manage the said properties and realise the income thereof and after paying all outgoings shall maintain my said family out of the balance of the said income.

(10) If my wife lives in the JOINT FAMILY with my nephews as desired by me, in that case she will get a monthly allowance of Rs. 20 per month besides food. But if she chooses to live with her parents, in that case she will get Rs. 25 only per month.

(11) My said EXECUTORS and TRUSTEES shall be at liberty to invest the moneys payable under the Policies except the Policy of New India Life Insurance Co. Ltd., in such securities as they shall think fit.

(12) I execute this WILL, after understanding the full meaning and purport thereof and in sound health and voluntarily and without being requested and influenced by any other person.

(13) IN, WITNESS WHEREOF, I, the said SATYABAN ROY, have hereunto set and subscribed my hand and seal to this my last Will and Testament, made this 29th day of October, 1954.

Admittedly, the deceased was a leading ENT surgeon of Calcutta during his life-time. He had a large income from his profession as a medical practitioner and maintained a high standard of living. From the affidavit of assets of the deceased filed in this proceeding it appears that he had an Austin motor car and a driver. The salary of the driver was Rs. 100 per month. The bearer of the deceased used to get a salary of Rs. 100 per month and the salary of the cook of the deceased was Rs. 45 per month. Thus, the provision contained in the will with regard to the wife of the deceased, namely, that the wife will get a monthly allowance of Rs. 20 per month if she lives with the joint family with the nephews, but if she chooses to live with her parents she will get Rs. 25 per month seemed to be unnatural, improbable and unfair.

Mr. B.K. Ghose appearing with Mr. Syamal Sen for the propounder tendered the evidence of G. Mohiuddin taken on commission and read the same before me. From the testimony of G. Mohiuddin it appears that the witness called by the propounder also admitted that such a clause in the will of the deceased is unnatural (G. Mohiuddin, Qs. 143, 145, 146).

Mr. Ahin Choudhuri, appearing with Mr. Ranjan Datta and Mr. Gopal Chandra Datta for the caveatrix, pointed out that the watermark on the paper of the last page of the will is different from the watermark on the second page of the will. It appears to me to be so. Questions were also put to G. Mohiuddin with regard to this point and the witness admitted that it was so, but he could not give any explanation.

Q. 157. Dr. Mohiuddin, you see that this paper, the first sheet of this will bears a watermark and under that watermark the year 1951 is there? Yes.

Q. 158. If you look at the second page, you will find that the watermark is completely different. There is no 1951, nothing, you see that?

Yes.

* * *

Q. 163. Are you in a position to explain the difference between the first page and the second page in respect of the watermark?

I have seen that just now that the watermark of 1951 is in the last page but in the second page, it is not there.

Q. 164. Are you in a position to offer any explanation regarding this discrepancy?

No.

From the provisions of the will it also appears that one of the propounders Dr. Sisir Kumar Roy is himself a legatee. The medical books and instruments of the testator are bequeathed to him. The other propounder, namely Nirendra Nath Kerr, appears to be the person who is responsible for making or preparing the will. He is also appointed as one of the trustees with the other executor Dr. Sisir Kumar Roy.

They shall manage the properties of the testator and realise the income thereof and after paying all outgoings shall maintain the family out of the said income. There is no disposition of the corpus of the properties excepting two specific legacies mentioned in Clauses 7 and 8 of the will.

Although there is certain correction or over-writing in the name "Jibandhan Roy" in the first page of the will, there is no initial of the testator in the place where the correction or overwriting appears. Dr. Satyaban Roy was a Fellow of the Royal College of Surgeons (Edinburgh) which is shortly described as ''F.R.C.S. (Edin)''. This will appear from the cause title of the petition. But, in the will it is written F.R.C.S. (Eding). His correct description should be F.R.C.S. (Eding), as it appears in Clause 1 of the will.

As I looked at the will it appeared to me that the letter "S" in the full signature "Satyaban Roy" in the will was written in a manner or style which is different from the manner or style in which the letter "S" was written by Dr. Satyaban Roy in his signatures in two picture post cards dated May 25, 1959 and June 10, 1959, which were written by him to his nephew from France and Germany. I noted this difference as the original post cards disclosed by the propounder were placed before me. Subsequently, the two post cards were tendered and marked as Exs. 1 and J.

The above circumstances raised some suspicion in the mind of the Court which demanded vigilant care in investigating the case before granting the probate. Therefore, the following issues were settled by me:

(1) Did the deceased make or execute any will on October 29, 1954, at all?

(2) Was the will mentioned in the petition duly executed by the deceased according to law?

(3) Was the will mentioned in the petition executed by the deceased voluntarily with his knowledge and approval of the contents?

(4) Is the document annexed to the petition for probate and marked "A" the genuine will of Dr. Satyaban Roy?

(5) Is the said will a legal and valid testamentary document?

(6) Was the execution of the will obtained by undue influence or coercion of Dr. Sisir Kumar Roy, Nirendra Nath Kerr and Golam Mohiuddin as alleged in support of the caveat of the widow Sm. Amiya Roy filed on June 29, 1967?

(7) Is the propounder Dr. Sisir Kumar Roy entitled to a grant of probate of the said will?

Learned Counsel appearing for the Plaintiff called Jnanendra Nath Dutt, an employee of M/s Roy Chaudhury and Co., Solicitors, to prove the signature of N.N. Kerr. The Plaintiff Dr. Sisir Kumar Roy also gave evidence. The next witness called on behalf of the Plaintiff was Prandhan Roy, the nephew of the deceased and the last witness called on behalf of the Plaintiff was Bisweswar Bhaskar who served under N.N. Kerr from 1947 till 1967.

The Defendant Sm. Amiya Bala Roy gave oral evidence. On behalf of the Defendant Dhirendra Nath Mondal, the driver of the deceased and Madan Gopal Hazra, the cousin (mother's sister's son) of the Defendant, were also called.

Before discussing the evidence tendered in this case, I will deal with the question of law on the point.

Normally, when a will is proved to have been duly executed, the Court will presume that the testator knew and approved its contents. But, if the circumstances attending execution arouse suspicion, the burden of removing the suspicion and proving positively the testator's knowledge and approval lies on the party propounding the will.

In Barry v. Butlin (1838) 2 Moores P.C.R. 480 (482, 425) the party preparing a will with a legacy to himself was considered to be one of suspicion Mr. Baron Parke said:

The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute.... These rules are two; the first that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does express the true will of the deceased. (P. 482)

Then Parke B. said:

...but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased. (P. 485)

In Tyrrell v. Painton and Ors. (1894) P. 151 (157, 159) Lindley L.J. observed:

The rule in Barry v. Butlin Fulton v. Andrew and Brown v. Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person '' taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.

Davey L.J. held:

...but the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed.

As to the circumstances which excites suspicion, Lord Hanwarth N.R. observed In the Estate of Layinia Musgrove Davis v. Mayhew (1927) P. 264 (280) as follows:

The wide definition of suspicion stated by Lindley L.J. in the latter case Tyrrell v. Pain ton (1894) P. 151 at page 157 that it "extends to all cases in which circumstances exist which excite the suspicion of the Court", appears to have been used in reference to the preparation of the will, its intrinsic terms and the circumstances surrounding its preparation and execution and Davey L.J. seems to have had the same matters in mind.

The Supreme Court of India in several decisions has laid down the law on the point as hereunder. In H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, the Supreme Court laid down the law on this point thus:

What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or...otherwise making a claim under a will is no doubt seeking to prove a document and in deciding how it is to be proved we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose.... Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant.... It would, prima facie, be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator and so, when it is propounded or produced before a Court, the testator who has already departed, the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily, when the evidence adduced in support of the 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. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature, the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator.

Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience.

It is obvious that the deciding material questions of fact which arise in application for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may however be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will, the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in 50 CWN 895 (Privy Council) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant cautious and circumspect.

With regard to the judgment of the Privy Council in Harmes and Anr. v. Hinkson AIR 1959 S.C. 435 (457) P.B. Gajendragadkar J. observed:

It would thus be noticed that the decision of the Privy Council proceeded more on the basis that there was no justification for interfering with a finding of fact recorded by the trial Judge particularly when the said finding rested on his appreciation of the evidence given by several witnesses before him.

Thus, this decision merely serves to illustrate the importance which the Privy Council attached to the finding of fact recorded by the trial Court in this case.

The decision of the Supreme Court in Harmes and Anr. v. Hinkson AIR 1959 S.C. 435 (457) has been followed in Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, . The headnote of the report is as follows:

The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63, Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.

Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.

In Ramchandra Rambux Vs. Champabai and Others, the Supreme Court has reiterated the same principle as hereunder:

In all cases in which a will is prepared under circumstances'' which arouse the suspicion of the Court that it does not express the mind of the testator, or that it was prepared under highly suspicious circumstances, it is far the propounder of the will to remove that suspicion.

In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. The issue, namely, whether the testator did execute a will and if he did, then whether it was duly attested by the witnesses cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself.

Thus the rule laid down by great Judges is that where there are suspicious circumstances, the Court must be vigilant and zealous. The rule calls upon the Court not to grant probate without full and entire satisfaction that the instrument expresses the real intention of the deceased. The degree of suspicion, however, vary with the circumstances of each case. It may be slight and be easily dispelled, or it may, on the other hand, be so grave that it can hardly be removed. The weight of burden will vary with the weight of suspicion to be dispelled. It seems to me that on this subject, the English law and the Indian Law stand on the same footing. The English rule which is commonly described by the phrase "knowledge and approval" relates to the burden of proof where duty is imposed upon the Court to be vigilant and zealous in scrutinising all the circumstances. It is concerned with the approach required of the Court to the evidence submitted for consideration. The Court must be satisfied from the evidence calculated to exclude all doubts that the testator not only signed and the will was duly executed according to law, but that he knew and approved of the contents of the will. In ordinary cases, proof of testamentary capacity and due execution suffices to establish knowledge and approval, but where there are suspicious circumstances, the Court may require further affirmative evidence to remove the suspicion and to exclude all doubts.

Having regard to the above principles of law on the subject, I will now consider the issues in the case on the evidence adduced by the parties.

I will now discuss the issues Nos. 1 and 2.

Shortly put, the first important question is whether the will was duly executed according to law.

With regard to the execution of the will, the material witness is Golam Mohiuddin.

The propounder Dr. Sisir iKumar Roy said that he never knew anything about the preparation of the will or the execution of the will. He had nothing to do with regard to the will of Dr. Satyaban Roy. (Sisir Roy, Qs. 30 and 32). The will was not executed in his presence. (Sisir Roy Qs. 566 to 568).

Prandhan Roy also, had no knowledge regarding making or drafting or preparing or execution of the will. (Prandhan Qs. 554 and 555).

Jnanendra also did not know anything about the will. Jnanendra proved the signature of Nirendra Nath Kerr (Ex. Al). The signature in the will was not put in his presence. He did not see the signature before. (Jnanendra, Qs. 82, 83 and 84). He also did not know anything about the preparation or execution of the will.

Bisweswar Bhaskar was called to prove the signature and handwriting of Nirendra Nath (Kerr. He also had no knowledge regarding the will or the draft (Bhaskar, Qs. 69, 71-72).

Thus, with regard to execution of the will the only evidence to be considered is that of Golam Mohiuddin.

Golam Mohiuddin as one of the attesting witnesses affirmed an affidavit on June 7, 1967 and the same was filed in this Court on June 20, 1967. The purport of the affidavit is that in his presence and in Nirendra Nath Kerr's presence Dr. Satyaban Roy put his signature at the third page of the will. In the affidavit he states positively that Nirendra Nath Kerr was present and Dr. Satyaban Roy put his signature at the third page of the will, in the presence of Nirendra Nath Kerr and himself. He also states that at the request of the deceased he and Nirendra Nath Kerr put their signatures at the foot of the last page. Paragraphs 3 and 4 of the affidavit may be quoted here:

That the said deceased executed the said will on the 29th day of October 1954 at Flat No. 3, Queens Mansions, 12 Park Street, Calcutta 16, by putting his signature in English at the foot of the last page, i.e. the third page of the said will in my presence as also in the presence of Sri Nirendra Nath Kerr, Solicitor, the other attesting witness. Thereafter at the request of the said deceased I and the said Nirendra Nath Kerr put our respective signatures at the foot of the last page, i.e. the third page of the said will as witnesses to the said will all of us being present at the same time and signed in the presence of each other.

That the signature "Satyaban Roy" in English appearing at the foot of the said will is in the proper hand-writing of the said Satyaban Roy the deceased above named and the name signature and additions "N.N. Kerr, Solicitor, Calcutta" and "Attested" ''G. Mohiuddin, Curator, Indian Botanic Garden, Calcutta, 29.10.54'' also subscribed and written at the foot of the said will as of the parties attesting execution of the same are in the proper respective hand-writings of the said Nirendra Nath Kerr and myself this deponent respectively.

The learned Counsel for the propounder, in his examination-in-chief showed to the witness Golam Mohiuddin this affidavit and asked him whether the affidavit contained his signature. Then the learned Counsel wanted to tender his affidavit. This was objected to by the learned Counsel for the caveatrix on the ground that only the signature had been proved and nothing else. Then the learned Counsel for the propounder asked him that in para. 3 of the affidavit he stated that Dr. Roy executed the will, but in answer to this question the witness said that he did not remember the date. Then he was shown the date given in the affidavit and he said that the date was correct (Qs. 18 to 21). Then the learned Counsel in his examination-in-chief read portions of para. 3 of the affidavit and asked the witness whether the statement made by him in para. 3 were correct or not. To that he answered that the same was correct. The said question, i.e. Q. 22 is set out below:

Q. 22 : At Flat No. 3, Queens Mansion, 12 Park Street, Calcutta-16, by putting his signature in English at the foot of the last page (that is the third page) of the said will in my presence as also in the presence of Shri Nirendra Nath Kerr, Solicitor, the other attesting witness: You have seen in the will there is the signature of Nirendra Nath Kerr as attesting witness. Tell me whether the statements made by you in paragraph 3 of this affidavit are correct or not?

Correct.

It seems to me that this question was put to the witness in a leading-form.

Then, in examination-in-chief, when further questions were put to the witness regarding the signature of Mr. N.N. Kerr as attesting witness in the will, Golam Mohiuddin said that he did not remember his signature. He did not see Nirendra Nath Kerr was present. But he said : "a gentleman was there". When he was asked whether he knew his name (that gentleman's), he answered No. I am quoting Qs. 23 to 26.

Q. 23 : Kindly see the signature of Mr. Kerr as an attesting witness in the will?

I do not remember his signature.

Q. 24 : Will you tell me whether Nirendra Nath Kerr was present (Mr. Ghoudhury objects).

Q. 25. Will you tell the Court whether on October 29, 1954, the date when the will was executed....?

A gentleman was there.

Q. 26 : Do you know his name?

No.

Thus, Golam Mohiuddin could not identify the person who happened to be there. He could not identify the signature. Although in the affidavit he stated that Nirendra Nath Kerr was present there and put his signature in his presence, but in his oral evidence he says that he does not know Nirendra Nath Kerr. Then in Q. 27, the learned Counsel examining him asked whether he had anything to do with the will and the answer was : "he must have had, otherwise he would not have been called. Dr. Roy told him : I have made a will, you have got to attest it. A gazetted officer is required to attest. That is all". The learned Counsel further put the question that in the affidavit he has mentioned the name of Nirendra Nath (Kerr, but he said that he did not remember now (Q. 29). The witness was shown para. 4 of the affidavit and he was asked whether the statements contained in it were correct. The answer was, "About Nirendra Nath Kerr, I do not remember but mine and Dr. Satyaban Roy is correct."

In cross-examination, Mr. Ahin Choudhuri asked him whether he knew one Nirendra Nath Kerr and the answer was that he did not know (Q. 55). Dr. Roy did not discuss with him regarding any proposed will (Q. 56). He said that he did not know anything about the preparation or making of the will. According to him, he visited Dr. Roy's chamber sometime in the afternoon of October 29, 1954. When he arrived there he did not remember the person who was present in that chamber. One gentleman was there, but he did not know him (Qs. 91 to 95). In this connection, I will set out two questions put in cross-examination:

Q. 173 : From what appears from your testimony, Dr. Mohiuddin, this statement of yours that Dr. Satyaban Roy, yourself and one Niren Kerr all put your signatures in one document in the presence of one another, I suggest that this is not correct. You might have signed at another time. What do you say to that?

I attested the signature of Dr. Satyaban Roy. I do not remember whether other persons signed in the presence of each other.

Q. 179 : I put it to you, Dr. Mohiuddin, that what you have stated in the affidavit which was shown to you the other day is not correct inasmuch as the statements contradict what you have stated here?

I do not remember anything.

Golam Mohiuddin in his oral evidence definitely stated that he did not know Niren Kerr (Qs. 90 and 91). Then he said in cross-examination that on October 28, 1954, he went to Dr. Roy's chamber after office hours (Q. 129). The other gentleman who was present there did not say anything to him or discuss anything with him (Q. 133). No one else was present at that time apart from Dr. Satyaban Roy and the other gentleman whom he did not know (Q. 144). During the half an hour he was present, the other gentleman did not do anything and kept silent (Q. 135). He did not give any instruction to Dr. Satyaban Roy or to him (Q. 136).

This is the oral testimony of G. Mohiuddin regarding execution of the will.

The oral evidence given by Golam Mohiuddin is contrary to his own affidavit.

Mr. Ahin Choudhuri in this connection placed before me Section 63(c) of the Indian Succession Act, 1925 and submitted that there was no evidence that Nirendra Nath (Kerr signed in the presence of Dr. Satyaban Roy and each of the witnesses signed in the presence of the testator.

On the evidence before me I think that Mr. Choudhuri is right in his submission. I cannot accept the statements in the affidavit of Golam Mohiuddin in view of the oral testimony given by him. He contradicts himself in material particulars. There is no satisfactory evidence before me that Dr. Satyaban Roy signed in the presence of Nirendra Nath Kerr. There is also no satisfactory evidence that Nirendra Nath Kerr signed in the presence of Dr. Satyaban Roy. I shall read Section 63 of the Indian Succession Act, 1925.

Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.

In my view, Section 63(c) has not been complied with, because, each of the witnesses must see the testator sign and each of the witnesses shall sign in the presence of the testator. But Golam Mohiuddin in his oral testimony said that he did not know Nirendra Nath Kerr and Nirendra Nath Kerr did not sign in his presence. He has not also said that the testator has signed in his presence. It is also not the case in the petition of the propounder or in the affidavit of Golam Mohiuddin that each of the attesting witnesses received from the testator a personal acknowledgment of his signature. In this connection Q. 101 put to Golam Mohiuddin may be quoted:

Q. 101. So, as soon as he produced that paper, you immediately put your signature on that piece of paper?

He told me, "I have made a will, please attest my signature." I do not think that the answer to this question shows that the witness received from the testator a personal acknowledgment of his signature in the will. Golam Mohiuddin said that he did not care to see whether the will was signed by any other person at that time (Q. 102). Thus, from the oral testimony of Golam Mohiuddin it does not appear that Dr. Satyaban Roy signed in his presence. There is no evidence that anybody's signature was there when Golam Mohiuddin put his signature.

Appearing for the propounder, Mr. B.K. Ghose with Mr. Shyamal Sen realised the difficulty in the case of propounder by reason of the oral evidence given by Golam Mohiuddin, as he said that he did not know N.N. Kerr and he did not remember anything. In this connection, the learned Counsel argued that I should discard that part of the evidence of Golam. Mohiuddin as he had no independent recollection and referred to a Bench decision of this Court in Satipada Chatterjee Vs. Annakali Debya, , Mr. Ghose placed headnotes (b), (c) and (d) of the report which are as follows:

(b) In cases of wills the presumption is that the attesting witnesses signed after the testator had signed. The presumption is based on the maxim omnia praesumuntur rite ease acta.

(c) In cases where the evidence of the attesting witnesses is not specific but vague or doubtful or even where it is conflicting upon the same material facts, the Court may take into account the surrounding circumstances of the cases and judge from the same whether the requirements of the statute have been complied with.

(d) Having regard to the circumstances of a case it is open to the Court to discard that part of the testimony of a witness whereby he repudiates the fact of attestation of the will.

In the above case, the testator A.K. Chattopadhaya executed the last will and testament on August 26, 1939, which was registered on the same date. The application for probate was opposed by the Appellant Satipada Chatterjee, the nephew of the testator. One of the grounds of objection was that the will was not duly attested. The execution of the will was not disputed. The will purports to bear attestation of four, persons and one of such persons was Barkatulla Sarkar, the writer of the will. In the examination-in-chief this witness said that he wrote out the will at the instance of the testator. He himself read the will. He signed the will in the presence of the other attesting witnesses. The testator saw the attesting witnesses sign. In cross-examination the witness said, "I have no independent recollection about this will." As regards this cross-examination, in the judgment it is recorded that the witness was deposing to event which had taken place more than ten years ago. He was a deed-writer at the Sub-Registrar's office and in normal course of events it is likely that he might have drawn up documents or attested the same many times. On the facts stated above Das J. observed:

The mere fact that he had no independent recollection does not render his evidence inadmissible. In fact, he said that he refreshed his memory by looking at the will. In my opinion, therefore, there is no reason to discard the evidence given by the witness in his examination-in-chief.

In my view, the case relied upon by Mr. Ghose is distinguishable. The will in that case was ex facie regular. Further, in that case, execution of the will was not disputed. Das J. who delivered the judgment in that case relied on Brahmadat Tewari v. Chaudan Bibi AIR 1916 Cal. 374 : 20 C.W.N. 192 where is was held:

Every presumption will be made in favour of due execution and attestation in the case of a will regular on the face of it and apparently duly executed.

The principle laid down in Brahmadat Tewari v. Chaudan Bibi cannot be disputed, but that principle cannot apply under the facts and in the circumstances of the instant case where there are suspicious circumstances and the will does not seem to be, ex facie, regular.

Mr. Ghose further realised that Golam Mohiuddin in his evidence did not say that Satyaban Roy signed in his presence or that he had seen Dr. Satyaban Roy sign. Mr. Ghose argued that Golam Mohiuddin in his oral testimony stated that Dr. Satyaban Roy wanted him to attest his signature and that is what he did. Mr. B.K. Ghose in his argument stressed on the word "attested". He pointed out to me Qs. 7 and 27 of Golam Mohiuddin which are set out below:

Q. 7. Had you anything to do with the will?

No, nothing. He wanted me to attest his signature and that is what I did.

Q. 27. Had he anything to do with the will?

He must have had otherwise he would not have been called. Dr. Roy told me, "I have made will, you have got to attest it. A gazetted officer is required to attest". That is all.

In this connection, Mr. Ghose referred to a decision of the Himachal Pradesh Judicial Commissioner's Court in Durga Dutt Vs. Chandanu, and relied on headnote (c) of the report which reads as follows:

It is clear from Section 63(c) itself that attestation implies something more than the mere putting down of a signature on a will in the presence of the testator by a person who has seen the testator sign. The Legislature makes a distinction between mere signing and attesting. Attesting is more than merely signing on the will. It means signing a document for a particular purpose, the purpose being to testify the signature of the executant.

It appears that the learned Judge relied on a Calcutta decision and quoted the said passage from the judgment of Sen J. in In the goods of Goculchand Gandhi Chandratan Gandhi v. Sm. Jamuna Bai AIR 1946 Cal. 168 (169, 171). What happened in that case was as follows:

An application for probate of a will was made by one G. The case of the Petitioner was that the testator executed the will and that the same was duly attested by two witnesses and was explained to the deceased by one Madan Swarup. The evidence of the case was taken on commission. Two persons were examined, viz. one attesting witness B and the person who is alleged to have explained the will to the deceased, viz. Madan Swarup. The attesting witness B said that the testator acknowledged the execution of the will in his presence and upon such acknowledgment he signed as an attesting witness. Sen J. held:

In my opinion, there is no difficulty in holding that Raghubar Dayal Bhargava attested the will. The only question or determination is whether it can be said that Madan Swarup attested the will.

The learned Judge held:

After going through all the cases placed before me, I have formed the opinion that even if a person sees the testator sign and signs the will after seeing the testator sign and in the presence of the testator he would not be an attesting witness unless he puts his signature on the will animo attestandi.

Then the learned Judge quotes Section 63(c) of the Indian Succession Act and says:

When a person puts his signature on a document as an attesting witness he virtually says : "I put my signature on this document for the purpose of testifying that the executant has signed the document in my presence or has acknowledged that he has done so." Unless there is this intention in the mind of the person who puts his signature on the document, the placing of his signature would not amount to an attestation. The section does not say that it would be sufficient if two persons who saw the testator sign the will, put their signature on it in the presence of the testator. It says that the will shall be "attested" by two persons who shall sign the will in the presence of the testator either after seeing the testator sign it or after receiving from the testator an acknowledgment of such signature.

The learned Judge in this case dismissed the application.

The facts of the instant case are entirely different. In the instant case, merely by writing the word "attested" and then signing his name Golam Mohiuddin, it cannot be said that Golam Mohiuddin has seen the testator sign. Golam Mohiuddin in his deposition never stated that Dr. Satyaban Roy signed in his presence or that he had seen Dr. Satyaban Roy sign the said will.

Therefore, in my view, the propounder has failed to prove that the will has been duly executed according to the rules laid down in Section 63 of the Indian Succession Act. I must, therefore, answer both issues Nos. (1) and (2) in the negative and against the propounder.

I will now deal with issue No. (3).

The circumstances in this case have excited the suspicion of the Court and therefore, this issue has been framed.

I will now deal with certain features of the case. The evidence as to how the will came to light is important. The same is as follows:

Dr. Sisir Kumar Roy said in examination-in-chief that Dr. Satyaban Roy told him near about the end of October 1954, just before he was leaving for England that he made a will. Dr. Satyaban Roy also told him that he had been made an executor and Mr. Kerr was also an executor (Dr. Sisir Roy, Qs. 25-28 and 77). With regard to the knowledge about the contents of the will, Dr. Sisir Roy said that he came to know the contents of the will long after the death of Dr. Satyaban Roy (Qs. 31 and 130). Prior to Dr. Roy's death he had never any knowledge about the contents of the will (Q. 131). For the first time he came to know the contents of the will, three or four days after Dr. Satyaban Roy's death (Q. 132). How he came to know the contents? He says that he heard from somebody, actually from whom, he does not remember. May be from Hazra or Prandhan or Mrs. Roy (Q. 133). He did not know the details of the will before the application for probate was made. He came to know the contents of the will just before the application for probate was made (Qs. 134-135). He touched the document for the first time when he came to know the will in details, i.e. just before the application for probate was made (Qs. 136-138). How did he come to receive this document? He said, "I think Prandhan showed me." He read the contents of the will only once (Q. 423). In cross-examination, when he was asked as to when he came to know that he was one of the executors under the will, he said, "it may be four or five days of the death of Dr. Satyaban Roy" (Q. 248). Here he contradicts himself. Thus, the total effect of the evidence of Dr. Sisir Kumar Roy is that he read the will only once. Prandhan Roy showed him the will a few days before the application for probate was made.

I will now discuss the evidence of Prandhan. Prandhan's case is as follows : They were living at the same flat all along since before the death of Dr. Roy. On January 27, 1965, in the afternoon, Dr. Roy died. At that time Prandhan was not present at home. He was attending to his publishing business at College Street. One gentleman by the name of Paroti went there at College Street and informed Prandhan that Dr. Roy was very ill and he should go home. Prandhan went to 3 Queens Mansion and found that Dr. Roy had already expired. At that time several doctors were there. Nothing happened on that day. On the next day at about 10 or 10-30 in the morning the body was taken out and the body was taken on shoulders to Keoratala Burning Ghat and Prandhan went there. When everything was over he came back at 1 o'clock at 3 Queens Mansion and there he took some rest. Then Mrs. Roy told him on that very day : "let us open the drawer and find out what is there." Then Prandhan opened the drawer and found the will below a cash box along with certain other papers. Then on the first day Pradhan said that inside / the drawer there was a will and the Jadavpur agreement and certain share scrips and on the next day he said : "no, no, along with the will two other documents were pinned up, i.e. a draft will and the instruction." On the first day he said that he read out the will in the presence the drawer was opened, i.e. Amiya Roy, Jibandhan Roy and Mr. Hazra. Then he said, on that day he gave the other papers to Mrs. Roy but he kept the will with himself. On January 29, 1965, he showed the documents'' to Sisir Roy in his chamber and Sisir Roy said : "keep it, we shall talk about it later on" (Prandhan, Q. 647). He told the contents of the will to Dr. Sisir Kumar Roy, but did not read the will at that time (Prandhan, Qs. 645 to 648). He also said that on January 29 or January 30, 1965, he also showed the will to Nirendra Nath Kerr. According to Prandhan Roy he kept the will with him till the end of 1965 when the same was handed over to the Solicitor (Prandhan, Qs. 638, 669-678).

60, Application for probate was made in June 1967 and between 1965 and 1968 the will was all through in the custody of the Solicitor Mr. Mitra (Prandhan, Qs. 669-678). First, Dr. Sisir Roy said that the will was with Prandhan Roy till application for probate was filed (Dr. Sisir Roy, Qs. 165-169). With regard to this part of the evidence, if Prandhan handed over the will to the Attorney and the same was lying with him till the application for probate was filed, then he cannot hand over the will a few days before filing of the probate to Dr. Sisir Roy. Thus, with regard to the custody of the will the evidence of Dr. Sisir Roy and Prandhan Roy are contradictory. In this connection, it may be noted that Dr. Sisir Roy in examination-in-chief said that he did not know where the will was. He also did not know wherefrom the will had come out (Dr. Sisir Roy, Qs. 79-80). In cross-examination he said, just before the application for probate was made Prandhan showed the will to him. Then, if Prandhan's account is correct, then both Nirendra Nath Kerr and Dr. Sisir Roy knew that they were executors. According to him, Dr. Sisir Roy knew this on January 29, 1965 and Nirendra Nath Kerr knew this either on January 29 or 30, 1965. But the peculiar thing is that they did not ask Prandhan Roy to give the will to them or to allow them to keep the will with themselves. Secondly, they did not act as such executors (Sisir Roy, Qs. 262-263). Thus, both Sisir Roy and Nirendra Nath Kerr knew that they were executors, but they never got in touch with each other (Sisir Roy, Qs. 226-230). Dr. Sisir Roy did not meet Nirendra Nath Kerr after the death of Dr. Satyaban Roy (Q. 238). Dr. Sisir Roy said that Prandhan Roy was doing everything. He was running the family. Prandhan made the inventory of the estate. He made the application for estate duty.

Questions were asked why the application for probate was filed more than two years after the will was discovered. According to Prandhan, the will was discovered in January 1966. Application for probate was made more than two years after the discovery of the will. The explanation for this delay in making the application for probate is that there were negotiations for settlement. What was the settlement about? It is difficult to understand what disputes were going to be settled. There is no clear evidence either by Dr. Sisir Roy or by Prandhan Roy what they were trying to settle. Dr. Sisir Roy said that he did not know the terms of settlement. He said that he did not know anything. Prandhan said that talks for settlement were conducted by Dr. Sisir Roy and Sisir Roy actively participated all through and it was with Sisir Roy. They have said that talks for settlement started three or four months after the death of Dr. Satyaban Roy (Prandhan, Qs. 887, 891; Dr. Sisir Roy, Qs. 97-109). Even during the pendency of the probate proceeding, talks were going on. Both Dr. Sisir Roy and Prandhan Roy said that if Mrs. Roy agreed to some settlement, they would not apply for probate (Dr. Sisir Roy, Qs. 95 and 96 and Prandhan, Qs. 862 and 863). Thus, it seems that they are not giving any importance to the will. If there is a settlement with Mrs. Roy, then, Dr. Sisir Roy said that he would not apply for probate.

On this point, Mr. Chaudhuri, the learned Counsel for the propounder, submitted that if Prandhan's evidence was accepted, then both Dr. Sisir Roy and Nirendra Nath Kerr knew by January 30, 1965, that they were executors, but (a) they did not ask for keeping the will, (b) they did not act as executors and (c) they did not get in touch with each other (Sisir Roy, Q. 263). Mr. Chaudhuri has argued that Prandhan takes upon himself the responsibility of management of the estate. He pays the debts. Prandhan is not getting anything under the will. Why should he pay all the liabilities? Why should he take upon himself the responsibility of paying the debts of the estate? Again, the executor Dr. Sisir Roy said that he paid '' rent to Prandhan Roy for using the chamber of Dr. Satyaban Roy for sometime (Dr. Sisir Roy, Qs. 620-621 and 646). Why should the executor Dr. Sisir Roy pay rent to Prandhan Roy? There is no satisfactory answer. I think Mr. Choudhuri is correct in his comments in this respect.

It appears that the executors did not do anything (Dr. Sisir Roy, Q. 240). Dr. Sisir Roy said that he did not know who was looking after the properties after the death of Dr. Satyaban Roy. He also did not enquire. Nobody asked him to manage the property. Prandhan did not ask him and Sisir Roy did not manage (Sisir Roy, Qs. 241, 242 and 262). But Prandhan said that on January 29, 1965, he showed the will to Dr. Sisir Roy. He also went to Nirendra Nath Kerr and showed him the will on, January 29 or 30 (Prandhan, Qs. 647 and 648). Then Prandhan said that he was consulting Nirendra Nath Kerr occasionally and Dr. Sisir Roy almost everyday. Thus, Dr. Sisir Roy contradicts Prandhan in this part of the evidence. However, there is no doubt that Prandhan was managing the estate alone (Prandhan, Qs. 833-835, 787 and 788; Dr. Sisir Roy, Qs. 443, 444 and 663). Why Dr. Sisir Roy or Nirendra Nath Kerr did not manage as executor? Dr. Sisir Roy said, ''I was not legally appointed as an executor. I do not know legal points as executor (Dr. Sisir Roy, Q. 768). Dr. Sisir Roy never met Nirendra Nath Kerr to discuss the rights and obligations in terms of the will (Dr. Sisir Roy, Q. 269); The evidence of Dr. Sisir Roy cannot be taken as satisfactory answer to the question.

It seems to me that if there is a will, the responsibility of the management of the property must be with the executors after the death of Dr. Satyaban Roy. This is admitted by Prandhan Roy (Prandhan, Qs. 824, 825). Prandhan said that he was meeting the liabilities of the estate. Why should he do that? The executors were responsible for meeting the liabilities (Prandhan, Qs. 826-830). Dr. Sisir Roy said that the estate duty application was made by Prandhan Roy. He had not given any instructions. This was done by Prandhan Roy. Dr. Sisir Roy had not done it (Dr. Sisir Roy Qs. 250-252). The evidence of Dr. Sisir Roy is that between January 1965 and 1967 he had only one or two telephone calls from Nirendra Nath Kerr. He says that he was not requested by anybody to function as executor (Q. 392). The evidence of Dr. Sisir Roy shows that he does not know what documents are disclosed in this proceeding. The evidence given by Dr. Sisir Roy and Prandhan Roy does not remove the suspicions which arise in this case from the mind of the Court.

There are certain elements of suspicion not only with regard to preparation and execution of the will but also on the face of it and in its intrinsic terms. I will discuss the same here.

There is one correction in the whole will, namely, in the first page where the name of Jibandhan is corrected. The word "J" is corrected in ink, but there is no initial. If the said correction was made by Dr. Satyaban Roy, question would naturally arise why he did not correct his own degree, because it was written as F.R.C.S. (Eding) and not F.R.C.S. (Edin). Several questions were asked by me to Dr. Sisir Roy with regard to this point and the explanation of Dr. Sisir Roy is that it escaped the attention of Dr. Satyaban Roy (Dr. Sisir Roy, Qs. 737-746). Dr. Sisir Roy in his evidence also admitted that there was difference in the letter "S" in the signature "Satyaban Roy" in Ex. ''A1'', namely, the will and in the two picture post cards disclosed on behalf of the propounder by letter dated February 3, 1973. Mr. Choudhuri in this connection pointed out that the ink with which the correction of the word "Jibandhan" was made at p. 1 is different from the ink with which the figure ''29th'' had been written at p. 2 of the will. It seems to me that Mr. Choudhuri is correct in his submission on this point. In the will it is stated that the testator desired that his family shall reside at Jadavpur. But Jadavpur property was entirely tenanted (Prandhan, Qs. 11, 70). Admittedly, the tenancy right of Dr. Satyaban Roy in the flat at Queens Mansion was a very valuable right or interest of the deceased in the said premises. He lived in the said flat for a long time since prior to his death. He used to pay Rs. 350 per month as rent to the superior landlord. It is suggested that after the death of Dr. Satyaban. Roy a portion of the premises has been sublet to doctors and there is an income of about Rs. 1,000 per month. Although the tenancy right belonging to the estate of the deceased is a very valuable right, but there is no mention of the Queens Mansion property in the will. There is no provision at all as to who will reside in the said flat or what will happen to the said tenancy right after the death of Dr. Satyaban Roy. Thus, the provision in the will that the desire of the testator is that the entire family will live at Jadavpur, which was a tenanted property of Dr. Satyaban Roy, seems to be improbable and suspicious in the circumstances of the case. Again, in the will it is not mentioned what will happen to some of the movables, namely, the motor car. In the will it is stated that Mrs. Alice Benz will get the policy of New India Life Insurance Co. Ltd., but the evidence before me is that the Insurance policy matured in the year 1953. The will is dated October 29, 1954. If the Insurance policy matured in 1953, then it is impossible that the testator would give the said policy to Mrs. Alice Benz. If it matured in 1955, then Dr. Satyaban Roy must have taken the policy money. But was the policy money paid to Mrs. Alice Benz? The evidence is that she did not get the money as Satyaban Roy during his life-time received the policy money (Prandhan, Q. 763). But this clause in the will remained even after receipt of the money by Dr. Satyaban Roy. Therefore, if evidence of Prandhan Roy is accepted, the policy matured, Dr. Roy appropriated the money and he forgot everything about this clause in the will. The evidence of the witness also throws suspicion about such a provision.

Then, regarding Clause 4 of the will, it is stated:

My wife Sm. Amiya Bala Roy, my two nephews of the name of Prandhan Roy and Jibandhan Roy and widowed second sister-in-law (widow of my second brother since deceased) are living with me, as the members of my family.

If what is written in the will is correct then in October 1954 the two nephews, namely Prandhan and Jibandhan were living with the testator. Prandhan, however, in his evidence stated that he was not living there constantly, but after 1956 he used to live there constantly. Between 1948 and 1956, he used to go there each and every week. Then he said that since January 1955 he had been living there permanently (Q. 111). In any event, he was not living there permanently in the family of Dr. Satyaban Roy before January 29, 1954, which is the date of execution of the will. Prandhan stated that between 1947 and 1954 he was living in a village in Howrah district (Prandhan, Qs. 542 and 543). Prandhan stated first that in 1956 he came to live there. Then he said that in 1955 he came to live there permanently. Therefore, Clause 4 in the will also throws suspicion.

With regard to the joint family mentioned by Dr. Satyaban Roy, it is admitted in evidence that he had huge income and he maintained the family out of his own personal income. There is no evidence that there was any income from any joint family property out of which he maintained the family.

Dr. Sisir Roy in his evidence admitted that the provisions in the will regarding the wife was unnatural (Dr. Sisir Roy, Qs. 430-434). Prandhan Roy also accepted that the provisions in the will relating to Mrs. Roy was unnatural. (Prandhan, Qs. 137 and 138). This throws great suspicion in the mind of the Court. A suggestion was sought to be made that Mrs. Roy was not faithful. The name of Madan Gopal Hazra was brought in and the suggestion was made that there were affairs between Mrs. Roy and Madan Gopal Hazra. Though such a suggestion was made by the learned Counsel for the Plaintiff, I am satisfied from the evidence given by Madan Gopal Hazra that there is no basis of such a suggestion. From the evidence of Mrs. Roy it appears that she was married with Dr. Roy when she was 10 years old. After her marriage she lived with the mother of Dr. Roy and then she came to live with Dr. Roy when she was 15 years old. Since then, she was living all along with Dr. Roy. Madan Gopal Hazra is the son of the sister of her mother. Madan Gopal Hazra is a married man. He has his issues. Madan Gopal Hazra is younger in age to Mrs. Roy. Madan Gopal Hazra and his family used to visit Dr. Satyaban Roy on occasions. Dr. Roy was affectionate towards him. From the evidence of Mrs. Roy the suggestion of the learned Counsel for the propounder that Mrs. Roy was unfaithful to Dr. Roy cannot be accepted by me. The fact remains that Dr. Roy continued to live with her until his death. Mr. Choudhuri, the learned Counsel for the Defendant, submitted in this connection that if Dr. Satyaban Roy was really annoyed with Mr. Hazra and Mrs. Roy about any affair, then he would not have made any provision for her maintenance at all in the will. If Mrs. Roy was unfaithful to Dr. Roy, then he would not have given anything to her and also would not have lived with her. Mr. Choudhuri argued that Dr. Roy lived with Mrs. Roy at least 10 years after the date of the will alleged in the petition. Mr. Choudhuri, in this connection, invited my attention to the observation of the Supreme Court in the case of Ramchandra Rambux Vs. Champabai and Others, which runs thus:

Finally, there is the circumstance that the will is unnatural in the sense that though Ramdhan left property worth several lakhs, he made no provision for a residence for his wife but gave her only Rs. 40 per month as her maintenance and made only paltry bequests to his daughters. It is true that the daughters are married in affluent families, but in the absence of a male issue a father is normally expected to give at least substantial bequests to his daughters. Instead, the will gives almost the entire property to a distant relative who, it may be noticed, was neither brought up by the testator, nor was a person who looked after the testator during his declining years. All this is said to have been due to the fact that Ramdhan's relations with his wife had become strained. Indeed, the relationship between Ramdhan and his wife had become so bad that Ramdhan, according to the Appellant, suspected that she was trying to poison him. Curiously enough, in spite of this, Ramdhan continued to live with Sitabai right till his death and had made no arrangement for a person other than her to take charge of the cash and the gold and silver ornaments of the value of a couple of lakhs of rupees or so in the event of his dying suddenly. There is nothing to suggest that Ramdhan's food was cooked by any one other than Sitabai.

I accept the submission made by Mr. Choudhuri on this point. The evidence before me is that Dr. Roy lived with his wife all along till his death. According to Prandhan, the key of the drawer where the will and other valuable documents were found were with Mrs. Roy (Prandhan, Qs. 171-172). This shows that Dr. Roy had complete faith in her. The suggestion made on behalf of the propounder about the character and affairs of Mrs. Roy with Mr. Hazra does not appeal to me and does not remove the suspicion from my mind as to why Dr. Roy should make such an unnatural provision in the will which is contained in Clause 10 of the will.

Mr. Choudhuri in course of his argument pointed out to me that in Ex. A (the will) the signature of Nirendra Nath Kerr appears above the signature of Golam Mohiuddin. He submitted that in the order of things Nirendra Nath Kerr should have put his signature first and then Golam Mohiuddin. The case made on behalf of the propounder is that Nirendra Nath Kerr was a Solicitor and he was responsible for making and preparation of the will. Now, the question is : was Nirendra Nath Kerr present when Golam Mohiuddin put his signature in Ex. A? If Nirendra Nath Kerr was present, would he remain a silent spectator? Would he not even talk when the testator said that a gazetted officer is required to attest the will? If the other gentleman was not Nirendra Nath Kerr, then the case of the propounder must be untrue and para. 3 of the affidavit of Golam Mohiuddin becomes untrue. If the other gentleman was Nirendra Nath Kerr, then it follows that although Nirendra Nath Kerr was a Solicitor and he did everything relating to making and preparation of the will, but on the occasion when Golam Mohiuddin put his signature on the will he did not utter a word. He did not instruct anybody to do anything. There was no discussion between Nirendra Nath Kerr and anybody else.

Mr. Choudhuri further argued that if Nirendra Nath Kerr was present on the occasion, then the word "attested" at p. 3 of the will before the signature of Golam Mohiuddin becomes difficult to explain. It is very unlikely that after the attestation clause, where N.N. Kerr signed, again the word "attested" should be written before Golam Mohiuddin signs, if the gentleman who was present there was the Solicitor Nirendra Nath Kerr. I think there is great substance in the contentions of Mr. Choudhuri. The presence of Nirendra Nath Kerr as silent spectator to the events as described by Golam Mohiuddin seems to me to be improbable. If Nirendra Nath Kerr was present, it seems to me that the word "attested" should have been written either before Golam Mohiuddin signed or the word "attested" should not have been written over again as there is already an attestation clause.

Mr. Choudhuri then pointed out that the will contained loose sheets and the place of signature appears only at p. 3 on the right-hand side of the attestation clause and contended that compliance of Section 63(b) of Indian Succession Act is doubtful. It is true that this is not a Bengali will; and in English will the signature of the testator may not appear at every page of the will. But the position of signature in the instant case in Ex. A (the will) by clause or p. 7 of the will, which contains loose sheets, throws doubt in my mind. Mr. Ghose in this connection referred to me to Sabitri Thakurain v. F.A. Savi 19 C.W.N. 1297. It was held--

English system of executing the document at the foot does not usually obtain amongst Indians. Their custom is to execute the document at the top. Ordinarily, the signature of the executant, appears at the top right-hand corner and when he executes the document himself and not by an Attorney....

Again, the draft and instruction were found by Prandhan Roy in the drawer of the testator after his death. The draft will or the instructions given by the testator to a Solicitor are the papers and documents of the Solicitor and generally remain with the Solicitor. It is not-clear how and why the draft will and the instructions should be in the drawer of Dr. Satyaban Roy with the will. In any event, the draft will or the instructions have not been proved, but only the signature of N.N. Kerr has been proved.

In the above premises, the suspicion in my mind has not been removed. In my view, Dr. Satyaban Roy did not or could not know or approve of the will which is sought to be propounded.

Mr. B.K. Ghose, in this connection, referred to me a Bench decision of this Court in Gurudas Chatterjee Vs. Bijoy Krishna Banerjee and others, and referred to me a passage in the judgment of Salil Kumar Datta J. which runs thus:

But it will not be permissible to a Court of probate to consider aliunde the terms of the will, to consider whether the terms are generous or not, consider whether relations who had natural and legitimate claims on the testator's bounty have been cut off altogether or not and then to consider due execution of the will with such preconceived ideas and to hold that the dnus probandi had not been fully discharged by the propounder and to refuse to grant the probate of the will.

In that case, by the will the testator provided that the income from Rs. 7,000 which he inherited from his second wife as also the income from all his immovable properties should be spent for the performance of Sri Sri Iswar Durga Puja and Sri Sri Iswar Shyama Puja every year. Other movable properties were given to the propounder and he was directed to perform therewith the daily and periodical pujas of the ancestral deity Iswar Gopal Jew. The testator, who had no son, made his elder brother's son Kirti, the father of the propounder, the executor to his will. The learned Judge in his judgment relied on a decision of the Supreme Court in Purnima Debi's case AIR 1962 S.C. 566 (569) and observed:

In Purnima Debi's case also it was held that even where there were suspicious circumstances and the propounder succeeded in removing them, the Court will grant probate though the will might be unnatural and might cut off whole or in part near relations. It is obvious that the unnaturalness of a bequest is suspicious circumstance indicating that it may not be the result of a testator's free will. We have, however, seen that the testator executed the will with full testamentary capacity and being a religious minded person there is nothing unnatural in his bequeathing the entire properties for the puja of these delities out of their income and usufructs while no property was given to Kirti or to the propounder. We have no suspicion as already indicated that the testator was executing the will as free person with full testamentary capacity and it was duly attested.

Thus, it is clear that in that case the learned Judges took the view that there was no suspicion and the testator executed the will as free person with full testamentary capacity and the will was duly attested. But in the instant case, as I have already indicated, the facts are quite different and there are suspicious circumstances.

In Purnima Debi's case AIR 1962 S.C. 566 (569) relied on in Gurudas Chatterjee v. Bijoy Krishna Banerjee Supra Wanchoo J. delivering the judgment of the Supreme Court reiterated the same principle as laid down in Hermes and Anr. v. Hinkson Supra and observed:

the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator.

Thus, I have to consider all relevant circumstances. Does the will indicate that the dispositions mentioned in the will might not be the result of the testator's free will and mind? Have all the legitimate suspicions been completely removed?

On analysis of the evidence it appears to me that there is only one disposition made in the will, namely, the disposition in favour of the propounder Dr. Sisir Kumar Roy. The other disposition mentioned in the will regarding insurance policy to Mrs. Alice Benz matured during the life-time of Dr. Satyaban Roy and Dr. Roy received or realised the policy amount. With regard to other properties all that is stated in the will is that two executors realised the income of the estate and maintained the family. There is no other disposition at all. There is no disposition of the corpus of the estate of the testator. The provisions in the will, in my view, otherwise indicate that the said dispositions are not made by the free will and mind of Dr. Satyaban Roy.

In my view, the suspicions arising in this case have not been removed. The Plaintiff in the instant case has failed to satisfy the conscience of the Court that the instrument sought to be propounded is the last will of a free and capable testator.

The issue No. (3) must, therefore, be answered in the negative and against the Plaintiff.

In view of my answers to issues Nos. (1), (2) and (3) it is not necessary to answer issue No. (4), but if it is required to answer the same, I shall answer this issue also in the negative and against the Plaintiff.

With regard to issue No (5), Mr. Choudhuri relied on Ram Nath Das Vs. Ram Nagina Choubey and Others, , where the following passage occurs:

When, therefore, a document though called a will, does not deal with any property, it will not be given effect to as a will, although it may operate to effectuate any other purpose provided therein.

Mr. Ghose, however, stated that by the will Dr. Satyaban Roy wanted to create a trust.

In my view, it is not necessary to answer this issue in view of my answer to other issues. However, if answer is required to be given, I will answer issue No. (5) in the negative and against the Plaintiff agreeing with the principles of law stated in Ram Nath Das Vs. Ram Nagina Choubey and Others, . There is no disposition of the properties of the testator except the two legacies mentioned in the document. It is mentioned in the document that the executors and trustees shall manage the properties and realise the income and after payment of outgoings maintain the family out of the balance of the income. But, it is not stated how long this will be done and what will happen to the properties thereafter.

In my view, it is not necessary to decide in this testamentary suit the question as to the effect and validity of any trust created by this document.

With regard to issue No. (6) there is no evidence before me of undue influence or coercion. The onus to prove this issue is on the Defendant. But as the Plaintiff has not discharged the onus of proving the will and removing the suspicion from the mind of the Court the question of proving this issue does not arise. In any event, this issue is answered in favour of the Plaintiff and against the Defendant.

In view of the above matter, issue No. (7) should be answered in the negative and against the Plaintiff. The propounder Dr. Sisir Kumar Roy is not entitled to a grant of probate under the facts and circumstances of the case.

In the premises, the suit is dismissed.

With regard to the costs of the suit, although generally costs should follow the event, but in the instant case, it appears to me that the real person behind the litigation is Prandhan Roy. Dr. Sisir Kumar Roy, the Plaintiff, is a retired Doctor and it seems to me that he is playing a minor role in this litigation. Everything is done by Prandhan Roy. Entire financing of the litigation has also been borne by Prandhan Roy. I do not think I shall saddle the old retired Doctor with the costs of this suit.

Each party will pay and bear his and her own costs.

Certified for two counsel.