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IN THE GOODS OF LATE KM.UMA BOSE

High Court of Judicature at Allahabad

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In The Goods Of Late Km.Uma Bose - TESTAMENTARY SUITS No. 8 of 2000 [2006] RD-AH 6737 (28 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgment reserved on 10.3.2006

Judgment delivered on 28.3.2006    

Testamentary Suit No.8 of 2000

In the matter of the goods of Km. Uma Bose

On behalf of

Km. Shobha Bose

                                                             ...........Petitioner

Vs.

State Bank of India & another

                                                   ............Opposite parties

Hon. Sunil Ambwani, J.

1. Km. Shobha Bose, the only surviving sister amongst three born to late Smt. Radha Rani Bose and late Shri Narendra Nath Bose filed the Testamentary Case No.15 of 1998, which was later numbered as Testamentary Suit No.8 of 2000 after a contest was put in by ''Gaudia Mission', the defendant, for Letters of Administration, to administer the estate of Km. Uma Bose (in short the deceased), possessed by her at the time of her death.  All the three sisters decided not to marry.  Km. Asha Bose, the eldest sister died on 8/9.6.1990.

2. The deceased, a Hindu Bengali, retired serving as Lecturer, Government Girls College, Gonda, U.P. She was temporarily living at House No.98, Hit Radha Kunj, Chhipi Gali, Vrindaban, District Mathura.    The plaintiff, Km. Shobha Bose is the only surviving heir of the three sisters.  The deceased left behind sums in TDR's and in Saving Bank account in State Bank of India, Colonelganj, Allahabad, and in State Bank of India, Vrindaban, and a house described as above,  in which she died.

3. The plaintiff applied for and was granted a certificate No.F-181/97, A No.0837 dated 26.9.1997 in respect of the goods of the deceased under Section 29 of the Administrator Generals Act, 1963.  Gaudia Mission through its Additional Secretary and General Power of Attorney his Holiness Tridandi Swami Bhatti Bikas Barman Maharaj applied for cancellation of certificate on the ground that the deceased has left behind properties worth more than Rs.50,000/-, which is the pecuniary limit of grant of certificate under Section 29 of the Administrator Generals Act, 1963 and further on the ground that the deceased bequeathed all her assets and properties during her life time by executing a registered Will dated 18.12.1994 and a Codicil dated 9/10.9.1996, in favour of Gaudia Mission.   The Administrator General accepted the objections and by his order dated 29.4.1998 cancelled the certificate, and asked for its surrender.  In this suit the plaintiff has valued the estate of the deceased at Rs.3,55,995.00.

4. Notices were issued on 7.8.1998 and the citation was published in news papers,  in response to which objections were filed by Gaudia Mission with its registered office at 16-A Kali Prasad Chakrabarty Street, Bagh Bazar, Calcutta  through its Secretary Sri Bhakti Sundar Sanyasi, along with his affidavit stating that the deceased was living permanently at Vrindaban after her retirement from service and was a staunch devotee of the mission.  She was attached to the mission and led an ascetic and spiritual life.   She left behind a Will dated 28.12.1994 and Codicil dated 10.9.1996, duly executed and registered in accordance with law, by virtue of which the mission has acquired the right to succeed to the estate of the deceased.   The State Bank of India has paid substantial part of the amount to the mission by virtue of the Will and Codicil executed by the deceased.  The Will and Codicil are valid documents.   The mission applied for probate in Probate Case No.174 of 1997 before the District Judge, Allahabad, which was dismissed by the District Judge, Allahabad for want of prosecution on 28.2.1998,  as the counsel of the Mission could not reach the Court to press the application.   The order, however, has nothing to do with the merits of these proceedings.  The mission filed objection on which the certificate granted to the plaintiff by the Administrator General, U.P. was cancelled, and that the plaintiff had full knowledge of the execution  of Will and Codicil and should have filed separate suit to challenge the Will and Codicil in the competent Civil Court.

5. The following issues were struck between the parties on 30.3.1999:

(i)Whether the petitioner is the real younger sister and only heir of the deceased and is entitled to a letter of administration with regard to the estate of the deceased.

(ii)Whether the petitioner has truly set forth in Annexure ''A' to the affidavit accompanying the petition all the properties and credits, which the deceased possessed of or was entitled  to at the time of her death and the petitioner is entitled to deduct the amount given in Annexure ''B' to the affidavit from the property of the deceased coming in her hands?

(iii)Whether the entire Bank accounts of the deceased Km. Uma Bose was lying in the State Bank of India, Brindaban and the opposite party No.1 has legally paid to the O.P. No.2?

(iv)Whether the O.P. No.1 is answerable to the petitioner to the extent of the assets of the deceased in his hands u/s 304 of the Indian Succession Act, 1925?

(v)Whether the deceased had duly signed and executed a valid Will on 28.12.1994 and a Codicil on 10.9.96 in favour of the O.P. No.2 in respect of the assets of the deceased or the same is forged and fabricated and manufactured by the O.P. No.1 fraudulently and the same is liable to be rejected and ignored due to suspicious circumstances given in para 7 of the rejoinder  affidavit/ replication of the petitioner?

(vi)Whether the opp. Party No.1 has legally paid almost the entire amount to the O.P. No.2 deposited in the Bank by the deceased, if not, then whether O.P. No.1 is liable to pay back the same to the petitioner?

(vii)Whether after the probate petition of O.P. No.2 having been rejected on 28.2.1998 by the District Judge, Allahabad, O.P. No.2 withdrew the amount in collusion with the O.P. No.1, if so, then for what consequences they are liable?

(viii)Whether O.P. No.1 was entitled to pay almost the entire amount to O.P. No.2 on the basis of the so called will and codicil without having a probate certificate of the same?

(ix)To what relief if any is the petitioner entitled?

6. On 12.5.1999 following additional issues were framed:-

(x)Whether challenge of a will and codicil of deceased by petitioner in the subject matter within exclusive jurisdiction of Civil Court only? If So, it's effect on present petition.

(xi)Whether the petitioner as applicant has any legal right to challenge the will/ codicil of the deceased dated 28.12.94/10.9.96 in the present testamentary proceeding?

(xii)Whether the present proceeding for letters of administration as framed is maintainable?

7. The plaintiff filed following documents:-

(i) A-12. Letter dated 16.10.89 signed by Uma Bose addressed to Deputy Post Master, Katra Allahabad.

(ii) A-13. Letter dated Nil singed by Uma Bose addressed to Post Master Katra, Allahabad.

(iii) A-14. Letter dated 8.8.96 written by Virvadra Das Gauria Mishan Mathura Vrindaban addressed to Km. Shobha Bose 183 Colonelganj Allahabad.

(iv) A-15. Postal envelop containing original letter dt.8.8.96 written by Virvadra Das to Km. Shobha Bose by Professional couriers.

(v) A-16. Original receipts of the above letter sent through Post Office by Professional Couriers dated 8.8.96.

(vi) A-17. Letter dt.23.1.98 written by Arun Kumar Goel, Advocate to Km. Shobha Bose.

(vii) A-23. Photo certified copy of sale deed dt.16.12.87 executed by Km. Uma Bose in favour of Smt. Maya Devi and others.

(viii) A-24. Certified copy of the lease deed in favour of Km. Shobha Bose dt.26.5.1986 in respect of House No.183 Colonel Ganj Allahabad.

(ix) A-25. Certified copy of Khasra Nagar Nigam in the name of Km. Shobha Bose in respect of House No.183 Colonel Ganj Allahabad for the period 1989-99.

(x) A-33. Certified copy of Probate petition dt.20.8.97 filed by Respondent No.2 before the District Judge, Allahabad.

(xi) A-34. Certified copy of the application/ objection u/s 33 of the Administrator General Act dt.3.1.1998 filed by respondent No.2.

8. The defendant Gaudia Mission filed the original will (Ex.A-19) and Codicil, which were sealed and placed in the custody of the Registrar General.

9. The plaintiff examined himself as PW-1 and Shri Raj Kumar Kushwaha as PW-2.  The defendant examined Shri Biswanath Das chela of Shri B.S. Bhagwat Maharaj, resident of Sri Krishna Chaitanya Math, Kishanpura, Brindavan, Mathura, as the attesting witness of the Codicil as DW-1, and Shri Ram Babu Agarwal, Advocate resident of 61, Sewa Kunj, Vrindavan, Mathura as DW-2, as attesting witness of the Will dated 28.12.1994.

10. Issue No.12. Issue No.12 framed at the instance of the defendant No.2 as to whether the proceedings for letters of administration as framed is maintainable was decided by the Court on 22.4.2000 holding that the proceedings for grant of letters of administration are perfectly maintainable.  It was held as follows:

"This issue has been framed at the instance of the contesting defendant No.2.  The relevant facts may be stated briefly.  The plaintiff is the real younger sister of the deceased Km. Uma Bose who died on 18.11.1996.  As per the plaintiff, she died intestate.  The plaintiff applied; for letters of administration before the Administrator General in respect of two amounts of Rs.15,000/- and Rs.35,000/- belonging to the deceased which were transferred from the State Bank of India, Colonelganj, Allahabad to State Bank of India, Vrindaban.  She had no knowledge about any other assets of the deceased.  Letters of administration were granted to her by the Administrator General and she applied to the State Bank of India, Vrindaban to withdraw the said amounts.   The defendant No.2 got prepared and obtained a forged and fabricated so called will dated 28.12.1994 and a codicil dated 10.9.1996 purported to have been executed by the deceased and applied for grant of probate before the District Judge, Allahabad, which was opposed by the plaintiff but it was ultimately dismissed  in default on 28.2.1998.  Having come to know about the letters of administration issued in favour of the plaintiff by the Administrator General, the defendant No.2 hurriedly withdrew the entire amount of Rs.3,55,595/- illegally in collusion with the defendant No.1 when the probate petition was still pending before the District Judge, Allahabad.  It also made an application to the Administrator General to revoke the letter of administration granted in favour of the plaintiff.  The Administrator General cancelled the same on the basis that the amount left by the deceased was more than Rs.50,000/-.

Part of the evidence has been recorded in the case, but Issue No.12 being of legal nature has been taken up for disposal at this stage.  I have heard the learned counsel for the parties on this issue.  The contention of the defendant No.2 is that the suit of the plaintiff should be dismissed as these proceedings for the grant of letters of administration are not maintainable for the reason that presently there is no estate of the deceased which stands in need of administration.   It has been submitted that the deceased having bequeathed her entire estate in favour of the defendant No.2, it (defendant No.2) has withdrawn the entire amount from Bank.    Reliance has been placed by the defendant No.2 on the case of Hajira Khatoon Vs. Mustafa Husain- (28) AIR 1941 Oudh 474.  As regards the dismissal of its probate petition by the District Judge, Allahabad, the submission is that it had been filed in ignorance of the correct position of law as contained in Section 223 of the Indian Succession Act.  The defendant No.2 being not a Company, the probate could not be granted in its favour.  It was only an association of persons, a registered society and hence was not entitled to probate or letters of administration.

The argument of the learned counsel for the plaintiff, on the other hand, is that these proceedings are in the nature of proceedings in rem and this Court has the exclusive jurisdiction to decide as to the genuineness or otherwise of the will set up by the defendant No.2.  Reliance is placed on the case of Chiranjilal Srilal Goenka through L.Rs. Vs. Jasjit Singh & others JT 1993 (2) SC 341.

On a careful consideration I am of the definite view that the contention raised by the defendant No.2 regarding the non-maintainability of these proceedings is built on straw and has no legs to stand.  Probate Court has the exclusive jurisdiction to adjudicate upon the genuineness or otherwise of a will which is either relief upon by the petitioner/plaintiff in support of his petition/plaint or is set up by the opposite party/ defendant in defence as having been executed by the deceased, to defeat the claim of the petitioner/plaintiff.  This view is fortified by Goenka's case decided by the Apex Court, referred to above.  It has no relevance at all that at present no estate o the deceased stands in need of administration for the reason that the entire amount of the deceased deposited by her has been withdrawn by the defendant No.2.   What is of paramount importance is that at the time of her death, the deceased did leave assets (deposits in Bank) and the core question before this Court is to whether she died intestate or executed the will in favour of the defendant No.2.  Section 220 of the Indian Succession Act provides that letters of administration entitle the administrator to all  rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.  When letters of administration have been granted,  the administrator is entitled to all the rights which the deceased had at the time of his death vested in him although no right of action accrues to the administrator until he has obtained the letters.  The title of the administrator, though it cannot exist until the grant of administration, however, relates back to the time of the death of the person in respect of whose estate the administrator has been granted.    Hence the administrator may recover against the wrongdoer who has seized or converted the goods of the estate in an action of trespass or trover.  It should be pointed out that when letters of administration have been granted, no limitations which are not express can be read as implicit in them.  The grant of letters of administration is a recognition of representation or conferment upon the grantee of a representative character.

To come to the point, this Court holds that the present proceedings for the grant of letters of administration are perfectly maintainable.  Issue No.12 is accordingly decided against the defendant No.2 and in favour of the plaintiff."

11. On 29.11.2001 issue No.13 was framed as preliminary issue as follows:

Issue No.13:   "Whether the dismissal of the probate case No.174 of 1997 between Gaudia Mission Vs. Km. Shobha Bose by the District Judge, Allahabad on 28.2.1998 operates as estoppel and bars the defence taken by the defendant No.2, on the basis of the same will?"

12. After hearing the parties issue No.13 was decided on 14.2.2002, the operative portion of which reads  as follows:-

"In the light of the above discussion, I find that in case of a will left by a Hindu in respect of properties in Uttar Pradesh, Section 213 (2) of Indian Succession Act, 1925, is applicable and thus a probate is not required to be obtained by the executor to set it up as a defence, and thus the dismissal of suit No.174 of 1997 for probate, even if dismissed for want of prosecution, with no liberty granted to file a fresh suit, does not bar the defence set up on the basis of said will even as a plea of estoppel.  The issue is decided in favour of defendant No.2."

13. Shri Anand Mohan Lal, learned counsel for the plaintiff, raised objections to the examination of Shri Biswanath Das, a sanyasi of Gaudia Mission and attesting witness to the codicil.  He submitted that under Order XVIII Rule 3 CPC a party must appear before any other witness is called, unless sufficient cause is shown.   Shri P.K. Ganguly made a statement that he does not want to examine Shri Bhakti Sundar Sanyasi, the Secretary of Gaudia Mission as witness in these proceedings.   The Court thus by its order dated 19.9.2005 permitted Shri Biswanath Das to be examined.   The defence evidence was closed on 7.11.2005 and the arguments were heard on 2.3.2006, 9.3.2006 and 10.3.2006. 14. By an order dated 27.7.1999, on an application (A-21) filed by the plaintiff, the record of Original Suit No.1048/88, attached with the file of Misc. Civil Appeal No.93/1998, Maya Devi Vs. Km. Shobha Bose, pending in the Court of Civil Judge, Allahabad was summoned by the Court.  The objections of the defendant, in this regard were rejected.  Further the objection with regard to Court fees were rejected on 31.8.99, as under the Rules of this Court, the matter of Court fees has to be considered by the Registrar General after the grant of letters of administration.  The objections to filing of the documents in the second list submitted  by the plaintiff were rejected on 3.11.1999.

15. Issue No.5.

It is admitted that Late Km. Asha Bose, Km. Uma Bose (deceased) and the plaintiff Km. Shobha Bose were real sisters and that the two elder sisters died intestate leaving behind the plaintiff as the only surviving heir and legal representative.   It is also admitted that the eldest sister Km. Asha Bose had purchased house No.9/98, Hit Radha Kunj, Chhipi Gali, Vrindaban, Mathura in her own name.  After her death late Km. Uma Bose (deceased), the plaintiff had become owners of the house to the extent of half share each.  Km. Uma Bose died at the age of 65 years on 18.11.1996 at Vrindaban, District Mathura, leaving behind Term Deposit Receipts and Saving Bank account in SBI, Vrindaban, and SBI, Colonel Ganj, Allahabad and half share in house No.98 (old No.90) Hit Radha Kunj, Chhipi Gali, Vrindaban, District Mathura.

16. The defendant has set up a Will dated 28.12.1994 and a Codicil  dated 10.9.1996 by which the deceased bequeathed the amounts in bank deposits and Term Deposit Receipts in favour of Gaudia Mission.    The will did not make any mention of the house.  The Codicil after making mention of the will, states that certain term deposit accounts have matured and were re-deposited in State Bank of India, Vrindaban branch in new term deposit account and therefore, it became necessary to execute the Codicil.  It also bequeathed the house left to the deceased by her elder sister Asha Bose (died on 9.6.1990) to Gaudia Mission.    

17. The Will drafted by Shri Ram Babu Agrawal typed by Shri Krishna Kumar Sharma is attested by Shri Punya Tirth Das, chela of Shripal Urulami Maharaj, Sri Krishna Chaitanya Math, Kishanpura, Vrindaban, Mathura and Shri Ram Babu Agrawal, Adv., Civil Court Mathura and is a registered document.

18. The Codicil is drafted by Shri Ram Babu Agrawal, Adv., typed by Shri Anil Kumar Rajoria and is witnessed by Shri Din Bandhu Das chela of Shri B.S. Bhagwat Maharaj, Sri Krishna Chaitnya Math, Kishanpura, Vrindaban, Mathura and Shri Biswanath Das chela of Shri B.S. Bhagwat Maharaj.

19. Shri Ram Babu Agrawal, DW-2, examined himself to prove the will.  He stated in his affidavit filed in examination-in-chief  that he knew the deceased personally and was well acquainted with her. The writing annexed to the affidavit is the photo stat copy of the last will and testament of late Uma Bose.   The will was executed by the deceased  on 28.12.1994.   The deceased late Uma Bose affixed her signature at the foot of the will in the presence of the deponent and Shri Punya Tirth Das (since dead) and declared and published the same as her last will and testament and thereupon the deponent and Shri Punya Tirth Das (dead) at the request of the deceased and in her presence and in the presence of each other being present at the said time set and subscribed their respective signature at the foot of the testament as attesting witnesses.   The signature affixed at the foot of the testamentary paper is of the party executing the same and is of the deceased late Uma Bose, and the signatures subscribed at the foot of the testamentary paper as of the persons  attesting execution thereof are in proper handwriting of the deponent and Shri Punya Tirth Das. The names and address of the witness are in the handwriting of the deponent.   At the time the deceased signed the Will she was in sound and disposing state of mind.  She executed it of her free will and pleasure and without any pressure.  The will was duly registered in the office of the Sub-Registrar.    The death certificate of Shri Punya Tirth Das supplied by the Secretary, Gaudia Mission is annexed as Annexure-1.                                                                                                                                                                                                                                                                                                                                

20. Shri Biswanath Das, DW-1 the attesting witness of the codicil dated 10.9.1996 stated in his affidavit filed as examination-in-chief that he personally knew and was well acquainted with the deceased late Uma Bose. The writing annexed to the affidavit is photo state copy of the Codicil of late Uma Bose, the Codicil was duly executed by the deceased on 9.9.1996.   She affixed her signature at the foot of the original Codicil in the presence of the deponent and Shri Din Bandhu Das  and declared and published the same Codicil as her last will and testament.   Thereupon the deponent and Shri Din Bandhu Das at the request of the deceased and in her presence and in the presence of each other, both being present at the same time, set and subscribed their respective signatures at the foot of the said Codicil as attesting witnesses thereof.   The signature affixed at the foot of the Codicil as the party executing the same is of the deceased late Uma Bose  and the signature subscribed at the foot of the testamentary paper as of the persons attesting execution thereof are in the proper handwriting of the deponent and Shri Din Bandhu Das.    The names and addresses of the witnesses subscribed at the foot of the document are in the handwriting of Shri Anil Kumar Rajoria, Adv., who typed the Codicil.  The deceased signed the said codicil in sound and disposing state of mind,  with her free will and pleasure and without any pressure.  The codicil was duly registered in the office of the Sub-Registrar.

21. The law relating to proof of will, under Section 59 and 63 of the Indian Succession Act and Section 67, 68, 45 and 47 of the Evidence Act, 1872, as laid down by Lord Du Parcq in Harmes Vs. Hinkson  in AIR 1946 PC 1059 is:- "where a will is charged with suspicion, the rules enjoin a reasonable skepticism,  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.

22. In H. Venkatachala Iyengar Vs. B.N. Thimmajamma, AIR 1959 SC 443 Justice P.B. Gajendragadkar speaking for the three Judge Bench, stated in paragraph 18 to 21, which has reverberated in all subsequent decisions namely Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and others, AIR 1977 SC 74,  Kalyan Singh Vs. Smt. Chhoti and others, AIR 1990 SC 396, Bhagwan Kaur Vs. Kartar Kaur and others (1994) 5 SCC 135; and Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee and others, AIR 1995 SC 1684, thus:-

" (18) 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.  Section 67 and 68,  Evidence Act are relevant for this purpose.  Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant.  Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.  These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law.  Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant.  Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context.  Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will.  This section also requires that the will shall be attested by two or more witnesses as prescribed.  Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions.  Has the testator signed the will?  Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained?  Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills.  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 S. 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.

19. 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.

20. 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.  It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without  such pleas

circumstances may raise a doubt as to whether the testator was acting of his own tree will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

21. 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 may be that the reference to judicial conscience in this connection is a heritage from similar observations  made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word ''conscience' in this context  would, in our opinion, be purely technical and academic, if not pedantic.  The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly execute by the testator who is no longer alive.

23. I have heard Shri A.M. Lal, learned counsel for the plaintiff and Shri P.K. Ganguly for Gaudia Mission, the defendant in the suit.  

24. Shri A.M. Lal, learned counsel for the plaintiff alleges, relying also upon the rejoinder affidavit that the deceased after her retirement settled down along with her sister and resided permanently at 183, Colonel Ganj, Allahabad.  She temporarily used to go and stay at Vrindaban at intervals of a few months.  She was suffering from serious illness and other physical ailments.  The plaintiff as her sister was serving her to the best of her capacity.  The Gaudia Mission or her members and disciples never cared for the deceased and had actually neglected her during her illness.  It is wrong to say that the deceased was attached to Gaudia Mission.    The members of the mission left her dying without caring for her or even giving her a drop of water at the time of her death.   The letter written in Bengali by Vaishnav Shri Veer Bhadra Das, a member of the organization dated 8.8.1996,  which has been proved by her  and admitted by Shri Biswanath Das, DW-1 in his examination-in-chief to be written by Shri Veer Bhadra Das, informed the plaintiff that her sister Smt. Uma Bose was critically ill and was nearing her death.  She had not taken food for one week and was not able to leave the bed.  There is no one to give her water.  If she wants to meet her sister for the last time she should come immediately on receipt of the letter.  He pleaded that since she is the only younger sister, it is her duty to serve her.   In these conditions even if she is in some trouble, she must come.  The letter further stated that it was necessary for the writer to inform her.   He had gone to Kurukshetra and that the Maharand of Math has also gone to Calcutta.   The writer expressed that he is very sad and that she  is the only hope of her sister and must come.  The writer expected her not to find any excuse in coming and apologised for writing so much.   The Hindi translation of the letter is annexed to the rejoinder affidavit.

25. Shri A.M. Lal states that the statement of the plaintiff and the letter of Shri Veer Bhadra Das proves on record that the deceased was seriously ill just a month prior execution of the Codicil,  and was not in a position to leave her bed.  She was not having food and there was no one to feed or to give her even a drop of water.   In the circumstances, the statement of the attesting witnesses of the codicil that the deceased had executed the Codicil on her own and got it registered by going to Registrar's office is not worthy of belief.   Shri Biswanath Das, the witness to the codicil had admitted in their cross-examination that he had not read the document and was not told by anyone as to what is the nature of the document, which he has signed.  He was aware of the execution of the will  on 9.9.1996 but did not know whether the will was registered. He denied that she was ill  at the time of executing the codicil and had died after about two months from the date of signing the codicil.  The witness further stated that he used to serve her before her death.   He belongs to Math and served her on behalf of the Math.  He had, however, not gone to the Sub-Registrar.

26. The counsel for the plaintiff states that Shri Ram Babu Agrawal, the scribe of both the documents and attesting witness to the Will came to depose without any summons.   He could not give the name of the Secretary of the Gaudia Mission or the person, who has sent him to depose. He is a lawyer  by profession and has taken an active part in execution of the Will and the Codicil.   The Will is alleged to be written and attested by him, and the codicil is alleged to be written by him.    He claimed to have represented the deceased Uma Bose in a case at Mathura but was not in a position to give the number of the case or the name of the parties.   He could not even say as to what was the nature of the case.  He does not know as to when Uma Bose died  and whether she was substituted in the pending case.   He had no knowledge of the parentage of Uma Bose  and could only say whether she had two sisters.   He was aware that the house belongs to elder sister but was not aware whether she had died in the same house.   He stated in the cross-examination that Uma Bose came by herself for execution of the Will.   She had not told him about her illness or her old age. She had written the Codicil after the Will but does not know when the codicil was written.   Infact he was not in a position to state anything regarding execution of the documents, the attestation, the manner and the sequence in which the executrix and the witnesses signed on the Will and the Codicil.   He pleaded ignorance of these facts unless he was shown these documents.  He is a practicing lawyer with 34 years of experience and only after looking at the document he could say that the Will was witnessed by him and Shri Punya Tirth Das and in the Registrar's office he and Shri Achyutanand had identified the executrix.   He admitted that the cuttings on page 2 had not been countersigned by Uma Bose and he did not find it necessary to put any note about the cutting or additions at the bottom of the Will.  He stated that the need of executing the Codicil arose as some fixed deposits had matured, which  were not referred to in the will.   He stated that he has been given the death certificate of Shri Punya Tirth Das by the Secretary of Gaudia Mission but he was not in a position to give the name of the Secretary.    He further stated that the Secretary lives in Vrindaban and also in Calcutta, and that he does not know whether Gaudia Mission had any branch at Mathura or that the Secretary lives at Mathura.   He further admitted that he has not been paid any expenses  by any person for deposition and did not claim any expense from the Court either.  

27. Shri A.M. Lal submits that the signatures of Uma Bose on both the will and the codicil  are forged.  He relied upon the signature of Km. Uma Bose on the original registered sale deed (paper No.14-C dated  16.12.1987 registered on  25.3.1987) by which Km. Uma Bose daughter of late S.N. Bose  holding power of attorney of Km. Asha Bose  dated 17.1.1987 had sold her 1/3 share  and the share of her sister Km. Asha Bose in house No.196 Colonel Ganj, which was earlier owned by her mother Smt. Radha Rani Bose (died on 14.6.1972) to Smt. Maya Devi and others for Rs.45,000/-.   The signature of Uma Bose on this original sale deed, which is part of record of suit No.1048 of 1988  between Smt. Maya Devi Vs. Km. Shobha Bose,  in Hindi are entirely different and do not tally with the signatures on the alleged Will and the Codicil.  The signature on the sale deed are in one stroke of pen, in which the word ''U' is followed by the same stroke, with the word ''Ba' and ''Sa' and are thereafter underlined by the second stroke of pain.    The signature on Will on the other hand, on all the pages are in English and when I compared these signatures with the signatures on Codicil, I found that not only there are different strokes in the words ''U' and  ''Bose', on the last page of the codicil in English, the signature in Hindi on codicil is entirely different.   The signature on the Codicil are in full words namely Uma Bose and have been made by different stroke of pen.   There is no similarity between the signatures on the sale deed dated 16.12.87 executed in Civil Court, Allahabad and  registered before Sub-Registrar, Allahabad,  and the signatures of the deceased on the codicil.   It is apparent that the person, who prepared the Will and the Codicil  had absolutely no idea, in the manner the deceased used to sign both in English and in Hindi.

28. The ''Gaudia Mission' is a registered society.  It is the propounder of the will in execution of which Shri Ram Babu Agrawal, Adv. has played a very important role.   The mission is represented by the Secretary, who has not chosen to appear as a witness in the proceedings.  There is absolutely nothing in the statements of both the defence witnesses, about the spiritual attachment of the deceased with the mission.   It is nowhere stated that she used to participate in the activities of the mission.   On the other hand the plaintiff, who is the real sister of the deceased and Shri Raj Kumar Kushwaha, who is an old acquaintance of the family stated that Uma Bose used to visit Brindaban occasionally.    The letter written by Shri Veer Bhadra Das, which has been proved by the plaintiff, and Shri Bishwanath Das, DW1, who claims to be a disciples of the mission and his Guru Bhai in the Math, establishes that the deceased was seriously ill from before 8.8.1996.  She was so ill that she was not able to take food  and to leave the bed.  There was no one to look after her.    Shri Veer Bhadra Das pleaded to the plaintiff to come to Vrindaban and take care of her sister.    There is no evidence to establish that Smt. Uma Bose had recovered from her illness and was in a position to give instructions for preparation and for signing the Codicil.   The Mission, which is the propounder of the will has not tried to remove the suspicious circumstances in which the Will and Codicil were executed, namely that the  deceased was devoted to the mission, and had recovered from the illness to execute the codicil.

29. Shri P.K. Ganguly made efforts to establish that the deceased was devoted to the mission and  used to permanently stay at Vrindaban.  He submits that the deceased had left all the properties to the mission.   He, however, could not establish either from the pleadings or the evidence that the deceased had recovered from the illness and was in a position to remember that some of her fixed deposits had matured and bequeathed the house in which she had only one half share in favour of Gaudia Mission.    Shri Ganguly could not give any reason as to why the Secretary of Gaudia Mission the propounder of the Will & Codicil, did not come to depose before the Court, and, could not connect the signatures  of the deceased on the original sale deed filed in suit No.1048 of 1988 decide by the Civil Judge, Allahabad and her signatures on the Will and Codicil.  Further he could not satisfy the Court as to why  the mission did not carry out the wishes of the deceased, which is alleged to be expressed in the will, by investing the fixed deposit amount, which the mission withdrew in haste in suitable scheme in three branches of the mission namely 2/3rd for Srimat Bhakti Siddhanta Saraswati, Gaudiya Math in West Bengal; 1/6 for Shri Krishna Chaitanya Math, Kishorepura, Vrindaban; and 1/6 for Sree Purushottam Math, Chatak Parvat, Gourbat Sahi, District Puri, Orissa.    The statement given by the counsel for the plaintiff that the mission had withdrawn the entire amount from the State Bank of India and has sold the house were only faintly denied by Shri P.K. Ganguly.

30. Learned counsel for the defendant Gaudia Mission could not give any reason as to why having possession of the Will and Codicil, the Mission withdrew the amount from the bank, claiming to be the nominee of the deceased, by producing nomination letters, when no such plea has been taken in the objections filed by the Mission.

31. Shri Ganguly has relied upon the judgments in Ladli Parshad Jaiswal Vs. Karnal Distillery Co., AIR 1963 SC 1279; Chiranji Lal Sri Lal Goenka Vs. Jasjit Singh, (1993) 2 SCC 507 (para 15 and 17) and Pentakota Satyanarayana Vs. P. Seetharathnam, (2005) 8 SCC 67 in submitting that the testamentary Court can only decide about the validity of the Will.  Every circumstance surrounding the Will is not a suspicious circumstance and that where a plea of undue influence has been taken, the party relying upon it should give particulars of such facts.    He has further relied upon Ramji Dayawala & sons Vs. Invest Import, AIR 1981 SC 2085; O. Bharathan Vs. K. Sudhakaran, (1996) 2 SCC 704; Murari Lal Vs. State of M.P., AIR 1980 SC 531 and Smt. Ram Jawari Vs. Smt. Shakuntala Devi, AIR 1993 Del. 330  in submitting that the Court should not assume the role of an expert, for comparison of signatures on the disputed documents.   The proof of hand-writing is not a proof of facts in a document and that the Court should not compare disputed signatures without assistance of an expert.

32. The judgments reiterate settled principles of law.  A testamentary Court does not decide about the title of the properties subject matter of Will.  It is only concerned with the validity and due execution of the Will.   There must be a plea of undue influence to give notice to the defendant.    A vague or general plea cannot serve the purpose.   In the present case the plaintiff has specifically alleged in paragraph 9 that opposite party No.2 had got prepared and obtained a forged and fabricated, so called Will dated 28.12.1994 and Codicil dated 9/10.9.1996.     She did not set up a case of undue influence and infact denied the execution of the Will itself.    The Will and Codicil have been pleaded to be forged and fabricated documents.

33. In paragraph 16 of Ramji Dayawala and Sons (P.) Ltd., AIR 1981 SC 2085,  the Supreme Court cautioned that mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document.  If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document.  The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.   However, it was further held in the same paragraph that once the receipt of the letter and the cable  are admitted or proved  coupled with the fact that even after the dispute arose and before the suit in this case was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or covert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and cable controverting the averments made therein would unmistakably establish the truth of the averments made in the letter.

34. In the present case the letter written by Shri Veer Bhadra Das, the hand-writing and signatures of which were proved by the plaintiff and the handwriting and signatures were admitted by Shri Biswanath Das, DW-1, who claimed to be disciple of the mission and Guru Bhai in the Math, establish that the deceased was seriously ill from before 8.8.1996.    The letter further proved that she was so ill that she was not able to take food and to leave the bed.  Shri Biswanath Das, was shown the letter (Ex.P-1).  He had admitted that the letter was written by Veer Bhadra Das, who is his Guru Bhai and that he knows his handwriting and signatures and had admitted that it was written and signed by Shri Veer Bhadra Das.

35. In Murarilal Vs. State of M.P., AIR 1980 SC 531  (para 12) the Supreme Court held that the argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force.  Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether  a writing is that of the person by whom it purports to have been written.   If it is hazardous to do so, as some times said, it is one of the hazards to which the Judge  and litigant must expose themselves, whenever it becomes necessary.   There are cases when experts are called and voices of science are heard.    There may, however, be cases where neither side calls an expert, and in such cases it becomes the duty of the Court to compare the writing and come to its own conclusion.  This duty cannot be voided by recourse to the statement that the Court is not an expert.  In this case the parties have not chosen to call an expert.

36. For the aforesaid reasons, I am constrained to record the findings that the Will dated 28.12.1994 and the Codicil dated 10.9.1996 are forged, fabricated and manufactured document, prepared in active connivance with Shri Ram Babu Agrawal, Advocate, for benefit of Gaudia Mission and that these documents do not operate to bequeath the estate of the deceased in favour of the mission.

37. Issue No.1.

The defendants have not denied that the petitioner is real younger sister  and the only surviving heir of the deceased.     With the finding on issue No.1 against defendant No.2, I hold that as the only surviving heir of the deceased, the petitioner is entitled  to the Letters of Administration of the estate of the deceased.

38. Issue No.2.

The defendants have not denied, nor given any further details of the properties and credits of the deceased, and as such I find that Annexure A and B, to the affidavit give complete details of the properties and credits of  the deceased.

39. Issue Nos.3, 4,  5, 6 and 7.

On the findings recorded on Issue No.1, I find that Gaudia Mission was not entitled and has illegally withdrawn the amount in the saving account, TDRs and fresh TDRs, which has been opened with the maturity  of the account in both State Bank of India, Colonel Ganj Branch, Allahabad and State Bank of India, Vrindaban of the deceased and that Gaudia Missions must return these amounts and the estate of the deceased to the plaintiff.

40. Issue No.10 and 11.

In Chiranji Lal Shri Lal Goenka, JT 1993 (2) SC 341 it was held that the High Court has exclusive jurisdiction to decide the genuineness or other otherwise of the Will set up by the defendant. This legal issue was also decided along with issue No.12 by this Court by its order dated 22.4.2000.

41. Issue No. 8 and 9.

On the basis of the findings given on issue No.1,  that the Will dated 28.12.1994 and Codicil dated 10.9.1996 alleged to have been executed by the deceased in favour of Gaudia Mission, are forged, fabricated and manufactured document, I find that the plaintiff is entitled to the relief of grant of Letters of Administration of the estate and credits of the deceased and that she is also entitled for return of the entire amount withdrawn by the Gaudia Mission from the bank accounts and TDRs of the deceased and that the plaintiff is the exclusive owner of house No.9/98, Hit Radha Kunj, Chhipi Gali, Vrindaban, Mathura, and is entitled to its possession.

42. The testamentary suit is allowed, and is accordingly decreed with directions that the plaintiff shall be granted Letters of Administration of the estate and credits of late Km. Uma Bose (the deceased), after she pays the Court fees, determined by the office to the satisfaction of the Registrar General and after due execution of the Administration Bonds.   The suit is also decreed against State Bank of India, Vrindaban, District Mathura through its Manager, the defendant No.1 and the defendant No. 2 Gaudia Mission, a registered society for repayment the entire amount of Rs.3,55,595/-, along with interest at the rate of 9% per annum with effect from the date of filing of the testamentary case i.e. 27.7.1998, and for declaration  that the plaintiff is exclusive owner and for delivery of possession of house No. 9/98, Hit Radha Kunj, Chhipi Gali, Vrindaban, Mathura.   The decree is in terms of Section 304 of the Indian Succession Act, 1963.

43. The plaintiff is also held entitled to exemplary costs of Rs.25,000/- as against defendant No.2, as also the cost of the proceedings of this suit.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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