P L D 1957 Dacca 513 (PLP)

BADIUZZAMAN, J.‑--This appeal arises out of Probate Suit No. 30 of 1948 of the Court of the Additional District Judge, 2nd Court, Dacca. The suit was by one Srimati Priyabala Mazumdar for grant of probate or letters of administration in respect of a Will alleged to have been executed by her husband's brother Monmatha Mohan Mazumdar at Dacca in 1355 B. S. Facts relevant for the purpose of this appeal may briefly be put thus: The testator Monmatha Mohan Mazumdar died on the 25th Kartick 1355 B. S., leaving behind a widow named Anima alias Bani Mazumdar, and two minor daughters. Tulu Mazumdar and Khuku Mazumdar, and three brothers Malin Mohan Mazumdar (husband of the plaintiff), Nalini Mohan Mazumdar (defendant No.1) and Rabindra Mohan Mazumdar (defendant No. 2). On the 3rd Jaistha 1355 B. S., corresponding to the 17th May 1948, i.e., about six months before his death, Monmatha executed a Will in respect of his properties worth about Rs. 12,000 and appointed plaintiff, Priyabala as executrix. About 7 months after Monmatha's death Priyabala filed an application for probate. The proceeding became contentious and the application eventually had to be registered as a suit. The suit was seriously contested by Nalini and Rabindra. Their defence was that on the date of the alleged Will Monmatha was bedridden due to an attack of virulent type of Tuberculosis, and it was not physically possible for him to come to Dacca, more than 30 miles away from his native village, to execute a Will, and that the Will had been fabricated by Malin in collusion with some people of his camp without Monmatha's knowledge. The learned Additional District Judge after a careful review of the materials furnished by the parties came to the finding that the Will was not genuine and that it was not legally executed or attested, and that Monmatha had no full testamentary capacity on the date of the Will and on these findings he dismissed the suit. Against this judgment and decree the present appeal has been preferred‑the appellant being the plaintiff. Mr. D. K. Bose appears for the appellant, while Mr. S. C. Bose appears for the respondents. In this case a preliminary objection has been raised by Mr. S. C. Bose to this effect that Monmatha's widow and 2 minor daughters not having been made parties to this appeal, the appeal must fail on that account. Osten sively, the objection has a look of soundness, but if scrutinized with reference to section 295 of the Indian Succession Act and relevant materials on the record, it will completely fizzle out. Section 295 of the Indian Succession Act reads: "In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant." It is apparent on the face of this section that mere citing a person in a probate proceeding does not make him a defendant. What the section requires is that the case must be contentious, and the person cited must appear to oppose the grant before he becomes a defendant. Here in the present case as appears from the record the widow and daughters were given notice in the probate proceeding in the manner prescribed by law, but they did not turn up, That being the position, they could not be regarded as defendants, and in fact they were not treated as such after the application had attained the status of a suit by operation of law. This view finds support from the decree prepared in the suit wherein the names of the widow and daughters do not find place in the category of the defendants. In paragraph 2 of his judgment the learned Additional District Judge styled Anima and her two minor daughters as defendants, and thus invited a volley of adverse comments from the learned Advocate for the respondents, who like a skilled fencer at once snapped at this portion of the judgment and sought to impress upon us that the trial Judge having himself styled the widow and daughters as defendants, the appellant cannot now be heard to say that they are not necessary parties to the appeal, but the argument, however, alluring it may look, cannot be accepted without doing violence to the statutory provision of section

295. As the provision of that section stands the trial Judge was not competent to treat the persons who did not appear to oppose the grant as defendants. Undoubtedly he committed error in staying the widow and her daughters as defendants, but the error to our mind appears to be accidental. In this connection Mr. S. C. Bose also drew our attention to the case of Shyama Charan Baisya v. Prafulla Sundari Gupta (21 C L J 557). That appeal arose out of an application for revoca tion of probate. One of the propositions of law on which the learned Advocate has laid special stress runs as follows: "When a Will is propounded which alters the devolu tion of property ; the District Judge should, in the exercise of the discretion vested in him by section 69 of the Probate and Administration Act as to the mode of issuing citations direct special citation to persons whose rights are immedi ately affected by the Will." It is true that though in the present case the Will altered devolution of property, special citations were not issued, but this omission will not render the proceeding E invalid when issue of special citation was discretionary with the Judge. The preliminary objection having failed let us now proceed to investigate whether the appeal has substance or not on merit. The first point urged by Mr. D. K. Bose is that the learned Additional District Judge having arbitrarily branded the Will as spurious and fabricated without applying his mind to some material documents on the side of the plaintiff, his judgment and decree should be set aside on that ground. Mr. Bost appears to have advanced this argument full of joyous anticipations, but from an unbiased survey of sequence of events, one will feel convinced that there is hardly anyl merit in it. It is well settled rule of law that those who take a benefit under a Will, and have been instrumental in lt preparing or obtaining it, have the onus thrown upon them of showing the righteousness of the transaction. This rule of law is not confined to the single case in which a Will is prepared by or on the instructions of the person taking a benefit under it, but extends to all cases in which circum stances exist which excite the suspicion of the Court. Where such circumstances exist, and whatever their nature may be, it is for those who propound the Will to prove affirmatively that the testator knew and approved of the contents of documents, and it is only when this is done that the burden of proof is thrown on those who are opposing the Will, to prove fraud and undue influence or whatever else they rely on to displace the case made of proving the Will. When executors propounding a Will take a large and appreciable benefit thereunder, the Court treats the Will with suspicion of more or less weight according to the facts of each case, and the onus lies on such an executor to prove to the satisfaction of the Court that the testator understood what he did, and that it was his Will. With) this background let us proceed to examine the Will. The Will has not made any provision for the illegal owners, namely, the two minor daughters. Their mother has been given a paid‑up policy, and that again with some limita tions. All other properties both movables and immovable are to go to the plaintiff under the Will. What, therefore, follows is that almost the entire benefit under the Will has been taken up by the executrix to the exclusion of the legal heirs. This being the position, the Will must be viewed with suspicion. To remove this suspicion 4 witnesses, however, has been examined on the plaintiff's side, and they are Malin Mohan Mazumdar P. W. 1, Radhika Mohan Mazumdar P. W. 2, Rashik Chandra Sikdar P. W. 3, and Mithilesh Mazumdar P. W. 4 of who Malin is husband and Mithliesh is son, of the plaintiff, and Radhika Mohan Mazumdar and Rashik Chandra Sikdar are two Mukhtear neighbours of Mithilesh, a typist at Dacca. Mithilesh in whose house the Will is said to have been written does not claim to have seen execution or attestation. All that he has said is that on the day following the day of execution and registration of the Will, the testator filed a suit in the S. C. Court at Dacca. The remaining three witnesses, namely, Malin, Radhika and Rashik have of course spoken about execution and attestation, but none of them appears to be purely independent, and their evidence also fails to inspire our confidence. Malin being husband of the plaintiff is vitally interested in the success of the case. In fact he is the brain behind the repulsive bargain and hero of many battles. He got bimself involved in series of litigations both Civil and Criminal, and Radhika acted as his lawyer. Not only this, it further transpires in evidence that Radhika gets his papers typed by Malin's son Mithilesh. Mr. Bose of course has laid much stress on the evidence of Rashik, but this gentleman too is not purely independent, He too gets his papers occasionally typed by Mithilesh. Another factor which takes away the importance of Rashik's evidence is that Monmatha was stranger to him. What he says in this connection is that it was Malin who introduted a thin‑built man to him as Monmatha at the time of execu tion and attestation, and that he did not know the man before. Assuming for argument's sake that Rashik is inde pendent, even that would not improve the plaintiff's case in the least when the executant was stranger to Rashik, and there was scope for false personation. Mr. Bose, there fore, bad no reason to be optimistic of his success on the strength of ‑Rasbik's evidence. Another deplorable feature which demeans the evidence of the Mukhtear witnesses is ugly discrepancies. P.11 W. 3 Radbika says that he came to 4asbik's house with Malin and found Rashik and Monmatha there, but Rashik says that Malin, Monmatha and Mithilesh came together to his house at about 9 or 9‑30 a. m. Then again Radhika says that at the time of execution of the Will Monmatha was sitting on a bench while Rashik says that he (Monmatha) was then sitting on a Chouki. Then again, the defence positive case is that on the date of the execution of the Will Monmatha was suffering from Tuberculosis. This is admitted by the plaintiff's witness Radhika. Yet Malin had the effrontery to say that Monmatha maintained sound` health till his death, and that at the time of the Will he had testamentary capacity. The Will in question according to plaintiff was executed and attested in Rashik's chamber. Rashik Babu at the date of the deed had responsible Pleader neighbours, but none of them was invited to witness execution and attestation, but the transac tion was kept confined to a small coterie of people under the obligation of Malin and his son Mithilesh. Selection of witnesses from among persons in close touch with Malin and his son gives rise to serious suspicion as to the bona fides of the bequest, and this suspicion again will become deep rooted if one turns to 4 other factors, namely, (1) physical fitness of Monmatha, (2) his relation with Malin, (3) the venue of execution, attestation and registration of the Will, and (4) the manner of disposition of the property. Of the four brothers Malin is the eldest and Monmatha was the youngest, the other two brothers being the contesting defendants Nalini and Rabindra. Their father died in 1329 B. S. Exact date of their mother's death is not known to us, but it is admitted here that she died about a year before her husband. At the time of father's death Monmatha was aged 15, Nalini about 25 and Rabindra about

19. The four brothers after their father's death remained joint till 1335 B.S., i.e., for about 7 years, and in Falgun of that year Malin became separate from his three younger brothers, who, however, remained joint till Monmatha's death. In Kartick 1335 B. S., Monmatha was an Assistant Sub‑Inspector of Police, and he was last posted at Chinsurah, and while at Chinsurah he was attacked with Tuberculosis. To get rid of this pernicious disease he took leave for one year, and began to reside in his native village at Kushumhaty, where he was treated by the local Doctors. Vide prescriptions. Exhs. A series, B and C. These prescriptions and letter will show that he was suffering from a wasting disease. It is true that they relate to a period between 1941‑45, but the defence did not purely count on these prescriptions, but led oral evidence regarding the full testamentary capacity of the testator on or about the date of the Will. These witnesses are Rajendra Kumar Roy D. W. 1, Abdul Majid Fakir D. W. 2, Nalini Mohan: Mazumdar D. W. 3, Naresh Deb Sarnia Mazumdar D. W. 4 and Gayesuddin Ahmad D. W. 5 of whom Nalini Mohan Mazumdar is one of the defendants, and Rajendra is a Medical practitioner at Kushumhaty, Abdul Majid Fakir is a Hakim, Naresh Chandra is the family priest and Gayesuddin is the President of the local Union Board. Rajendra says that he treated Monmatha Mazumdar for about a year, and further adds that from Balsakh 1355 B.S., "he could speak with difficulty, but could not move about", that in the month of Baisakh and Jaistha 1355 B.S., he was physically unfit to come to Dacca. D. Ws. 2, 3, 4 and 5 also have deposed almost to the same effect. It is true that Nalini is interested; being one of the defendants, but Mr. D. K. Bose, Advocate for the appellant could not say a word against the other witnesses, specially the family priest and the President Panchayet. In this connection the learned Advocate for the appellant drew our attention to two documents, Exhs. 2 and 3 from which it appears that in 1948, Monmatha instituted a suit against Sahadeb Rajbangshi for recovery of price of 5 bundles of yarn alleged to have been delivered by the former to the latter for the purpose of knitting a fishing net. The claim was laid at Rs. 15 only. The suit appears to have been filed through one Babu Tarak Chandra Chakraborty. Exhibit 2 is a certified copy of the plaint of that Suit, and Exh. 3 is a certified copy of the Vakalatnama purported to have been executed by Monmatha in favour of Tarak on the 18th May 1945, that is, on the day following the day on which the will was executed. Endorse ment on the Vakalatnama runs as follows: "Received from the executant Monmatha Mohan Mazumdar himself who is personally known to me. Satisfied, accepted. Tarak Chandra Chakraborty 18‑5‑48." The learned Advocate for the appellant seeks to impress upon us that the endorsement on the Vakalatnama being clear proof of the fact that Monmatha was physically fit to come to Dacca on or about the date of execution of the Will, the oral evidence led by the defendant about Monmatha being bedridden due to illness cannot be believed. Ostensively, the argument has a look of soundness, but if one dives deep into the material on record, he will find little force in it. Monmatha was the best person to speak about the authenticity of the plaint and Vakalatnama, but he is not on the land of the living. One other person who could give us light is Tarak Babu, who accepted Vakalatnama, but he too could not be examined. It appears that on the 17th May 1952 there was a petition by the plaintiff f r examination of Tarak Babu as Court Witness, but the prayer was rejected, Mr. D. K. Bose contends that as Tarak Babu was the defendant's Pleader, the Court ought not to have rejected the prayer. It is true that Tarak Babu acted as Pleader for the defendants for sometime, but there is nothing on the record to show that he was at Dacca on the date on which the petition was filed. On the other hand a scrutiny of the record discloses that whatever papers were filed on behalf of the defendants prior to the 25th February 1951, by way of taking steps bear the signatures of Tarak Babu, but the papers filed thereafter bear the signatures of different Pleaders. This is very significant and signifies nothing else except that during communal tension Tarak Babu left Dacca, and our belief is that the prayer for his examination was made with full knowledge that he would not be available then. To a superficial observer it may look a genuine effort to enable the Court to arrive at a correct solution, but the sequence of events, if properly scanned, will show otherwise. It appears that the plaintiff closed her case on the 24th February 1951. The first witness on the defence side was examined on the 17th March 1951, and the defence closed its case on the 22nd September 1951. Thereafter the case was fixed for the 17th May 1952, for hearing arguments, and it was on this day that the plaintiff put Mithilesh into a witness box, and got the plaint of the S. C. C. Suit and the Vaklatnama proved by him. Before that none of the defence witnesses was asked a single question about that suit through Mithilesh had knowledge of the suit earlier. The belated petition was a bewildering comouflage resorted to with a view to prejudice the mind of the Court against the defence and the learned Judge rightly rejected it. The defence suggestion is that on the date following the day of creation of the Will Malin in collusion with some persons under his obligation got a fictitious case instituted against a third party with a view to repel a future attack against the Will. The suggestion being consistent with circum stances cannot be lightly thrown away. The claim involved in the S. C. C. Suit was very small, and its institution costs including Pleader's fee could not possibly exceed more than Rs.

6. It was, therefore, not at all difficult for Malin to stake a small sum for greater gain. Documents of doubtful authenticity, namely the plaint and Vakalatnama relied on by the plaintiff cannot have any preference over the evidence of the local witnesses on the side of the defence, and as the evidence stands, the Will cannot but be held to be a fabricated document. Four other factors already enumerated above, if looked into in this connection, will strengthen the above inference. Admittedly, Kashumhaty lies within the jurisdiction of Debar Sub‑Registry, and the distance between the two places is only five miles. While on leave Monmatha was living in his native village, and if he had any intention to make a Will, he could have done it very easily at his own house, and, got it registered at Dohar instead of coming to Dacca, far away from his house. There is no explanation why an ailing man chose Dacca for the purpose. Then again the plaintiff's case is that Monmatha got a draft of the will prepared by a Pleader, named Profulla Roy, but no explanation hay been offered by the house of a stranger was selected as venue for execution and y, attestation in preference to the house of a lawyer known to M Monmatha. Not only that, there was no dearth of Monmatha's agnates or co‑villagers at Dacca on the date of the deposition, but none of them were called to witness the alleged an execution and attestation. If there were sanction of the real man, namely, Monmatha, Malin had no reason to be afraid of his co‑villagers and near relations. On the other hand, to exclude all possible adverse comments he would be rather anxious to give it a wide publicity, and invite his co‑villagers and relations, then living here to witness the disposition. Along with this let us for a moment try to ascertain the relation between Malin and Monmatha shortly before and after the deed. As already pointed out, the 4 brothers were joint for about 7 years after their father's death, and then came disruption, and Malin became separate from his 4 younger brothers. This was followed by series of litigations both civil and criminal‑ between Malin on one side, and his three younger brothers on the other. Plaintiff too appeared in her true perspective, and brought a civil suit against the defendants and Monmatha. These litiga tions started in 1931 and lasted till 1939, vide Ex. D. H. The learned Advocate for the appellant contends that Monmatha shortly before his death deserted his two brothers Nalini and Rabindra on account of dispute over properties, and joined hand with his eldest brother Malin again. There is absolutely no proof on the record in support of this contention. A suggestion to this effect was of course thrown to Nalini, but he denied it stoutly. The learned Advocate for the appellant has counted very much on this suggestion, but suggestion, however, is no proof, and we are not prepared to act upon it when it is denied by the other aide. We have, however, got reference of three suits by Monmatha against Nalini and Rabindra, but Nalini says that these suits were instituted by Malin in Monmatha's name without latter's knowledge, and further adds that Monmatha during his illness was informed about the institution of these cases, but he pleaded helplessness owing to illness. The plaints of these suits are not before us, and it cannot be ascertained whether these suits were really filed by Monmatha or somebody else without his knowledge. Malin had knowledge of these suits, but did not venture to file copies of the plaints. It is hardly believable that Monmatha who was tortured by Malin in all possible ways for over a decade should with dramatic suddenness joint hands with him, and gave away all his valuable to his wife, ignoring the 2 other brothers, namely, the defendants who in his acute distress and helplessness seriously endeavoured to shade him with their elderly wings. The learned Advocate for the appellant strove hard to give Malin the mantle of a saint, but Malin by his own statement has exposed his inner-self to the world. A scrutiny of his evidence shows that he did not attend the marriage cere mony of Monmatha; even he does not know where Monmatha married. He does not keep any information about his widow and the minor children. Does this shameless in difference furnish an inference in favour of truce or does it indicate that the hostility continued till Monmatha's death. Another unusual feature of the disputed bequest is that the widow and her two minor children are neglected beyond conception. The will does not make any provision for the maintenance of the minor children or for their marriage expenses. Only a paid‑up policy of Rs. 500 was given to the wife, and that again with a condition, the condition being that if within one year of the death of the testator, the wife does not withdraw the amount, she will forfeit her right to the above policy, and money will go to the plaintiff. The Will was brought into existence in a clandestine manner, and the wife lives in Assam. If the plaintiff managed to keep it secret for a year, in that case whatever little was given to the wife could be taken away. The learned Advocate for the appellant contends that the wife having deserted Monmatha with the minor children during his illness, he did not make any provision for them. It is true that the wife with the minor children left the husband during the latter's illness, but it is hardly believable that on account of lapses of the mother the minor children could possibly forfeit the affection of their father. Then again the Will says that as the plaintiff brought up Monmatha from infancy to manhood, and nursed him curing his illness, he was making this bequest to her. But this recital in the Will is not supported by any oral evidence. The plaintiff was the best witness on the point, but she did not venture to come to the witness box to stake her oath. It is true that one of the witnesses on the defence side has said that he saw the plaintiff's daughters administering medicine to Monmatha once or twice, but the Will does not say anywhere that the plaintiff's daughter used to nurse Monmatha during his illness. On the other hand it says that it was the plaintiff who alone nursed him during his illness. In the Will there are particulars of the Life Insurance Policy and postal Saving Bank Account, and Mr. Bose contends that if Monmatha's sanction were not behind the Will, it would not have been possible for the plaintiff and her husband to obtain particulars of the Life Insurance Policies and Saving Bank Account. This argument too does not appeal to us at all. Monmatha was bedridden for a long time, and in that state of health he could not be expected to be always vigilant over his papers. Malin's daughters had easy access to the house of Monmatha, and it is not at all unlikely that through them he managed to have the particulars of the Policies and Bank Account. On consideration of the above facts and circumstances, are clearly of opinion that the learned Additional District Judge vas perfectly justified in holding that the Will was fabricated, and that Monmatha had no full testamentary capacity at the date of the Will. He also found that the Will had been obtained by undue influence, but we are not prepared to go up to that length, such finding being in consistent with the theory of fabrication. Next point urged by Mr. D. K. Bose is that the learned Additional District Judge having arbitrarily refused to take into evidence certain letters and a booklet named Smriti, his judgment and decree should be set aside on that ground too. There is hardly any substance in this contention too. It is true that on the 17th November 1955, the plaintiff filed a petition for taking into evidence some letters alleged to have been addressed by Monmatha to Malin, and a booklet named Smriti alleged to have been written by Monmatha himself. The learned Additional District Judge rejected the prayer with the following observation: "As the evidence of both parties are closed and the case is fixed for hearing arguments; I am not inclined to allow the party to bring into evidence any fresh document at this stage. The petition is rejected." Reason given for the delay was that the plaintiff or her husband had no knowledge of these documents at the time of commencement of the hearing, and that they accidentally found them among other papers a day or two before the last date of hearing of the suit. About 10 months before the filing of the petition Malin in cross‑examination admitted that Monmatha used to write letters to him, and that those letters were left at home. That being the position, reason given for the delay in filing these documents cannot be accepted. The learned Additional District Judge, therefore, rightly refused to admit these documents to evidence. None of the points raised having any substance, the appeal fails, and is accordingly dismissed with costs, and the judgment and decree of the trial Court affirmed. ISPAHANI, J.‑

I agree. Z. A. S. Appeal dismissed.