Apurba Sinha Ray, J. :-
1. The testatrix Dr. (Miss) Aparna Chattopadhyay was a highly educated and erudite lady and she was a professor of Banaras Hindu University. Being a resident of Varanasi she breathed her last thereat. One Ram Ekbal Dubey, the plaintiff herein, was her student and the testatrix looked upon him like her son. By passage of time there developed a mother - son relationship between the two. As the testatrix had no relative of her own, the relationship between the two had developed into a strong bond and as a result the testatrix bequeathed all her properties to her student, the plaintiff, by executing a Will dated 10.11.2005 which was registered on the same day at Varanasi. After her death the plaintiff files the instant application for probate which, inter alia, states that Dr. (Miss) Aparna Chattopadhyay being an unmarried Hindu lady died on 01.02.2006 having no relatives of her blood relations.
2. The deceased left behind the properties in West Bengal, Jharkhand and Uttar Pradesh. The two attesting witnesses namely, Mr. Bhupendra Vikram Singh, a Civil Engineer and Dr. Anand Kumar Tiwari, a doctor attached to the Ramkrishna Mission Hospital and others have deposed on commission.
3. It is also found from the record that Maya Chatterjee along with her son and daughter filed one caveat and also one affidavit-in-support of such caveat. Smt. Maya Chatterjee being defendant no. 1 claimed to be the widow of Late Asharam Chatterjee, who was the pre-deceased brother of the testatrix. The defendant no. 1 is a resident of Kolkata and also of Bankura. According to Maya Chatterjee, Chaitanya Chatterjee, the father of the deceased died on 11.01.1970 leaving behind Smt. Durga Rani Devi, his widow, son namely Asharam Chatterjee and daughter Dr. Aparna Chattopadhyay. It is also the contention of the defendants that Sachchidananda Chatterjee who was a bachelor brother of Chaitanya Chatterjee died intestate leaving behind surviving brother Onkar Nath Chatterjee and the said Onkar Nath Chatterjee who was also a bachelor brother of Chaitanya Chatterjee appointed Asharam Chatterjee his sole executor and sole beneficiary. The defendant no. 1 further claimed that Asharam Chatterjee died on 30th April, 1987 leaving behind Maya Chatterjee, Siddhartha Chatterjee, Indranil Chatterjee and Jayashree Banerjee. Indranil Chatterjee passed away during his childhood. Maya Chatterjee obtained a grant of Letters of Administration in her favour of the Will of Onkar Nath Chatterjee. It is also the case of the defendants that the alleged Will of Dr. (Miss) Aparna Chattopadhyay was procured by the plaintiff by fraudulent means and the Will is not a genuine one. The age of the Dr. (Miss) Aparna Chattopadhyay was 76 years at the time of her death and at that time the deceased did not have any sense of understanding because of depression and loneliness. As the testatrix on her death bed was not in a position to understand the consequences of her action the tentative propounder cannot claim right over the property which the deceased had never inherited. The plaintiff had never taken care of the deceased and as such there was no reason to make him beneficiary. Moreover, the plaintiff worked as a servant of the deceased and the affidavits affirmed by the attesting witnesses are not trustworthy. Moreover, the caveatrix often visited the deceased and therefore no question of the plaintiff taking care of the deceased arises. On the basis of such pleadings the following issues have been framed:-
“1. Whether the instant will in question was the last will and testament of the testatrix
2. Had the testatrix testamentary capacity to execute the instant will
3. Whether the will executed in terms of Section 63 of the Indian Succession Act, 1925 by the testatrix
4. Whether the testatrix was physically fit and mentally alert at the time of execution of the instant will
5. Whether the testatrix was competent to execute the will in question
6. Whether the testatrix could validly dispose of the assets both movable and immovable mentioned in the will by the instant will
7. Whether the affidavit of asset is correct or not
8. Whether there is any suspicious circumstance surrounding the execution of the instant will
9. Whether the execution of will is vitiated by fraud, unduly influence, and coercion or otherwise
10. Whether the petitioner is entitled to grant of probate applied for”
4. It appears from the record that though the plaintiff adduced three witnesses and they were cross-examined by the learned counsel of the defendants the defendants did not adduce any evidence when they were called upon to do so.
Submission from the Bar
5. According to learned counsel of the plaintiff Mr. Swarnendu Ghosh, no evidence whatsoever has been produced on behalf of the caveatrix that she was married to the pre-deceased brother of the testatrix. There has not been any wedding photograph, marriage registration certificate or any photograph wherefrom it would appear that she had been a part of the family of the Chatterjees at any point of time whatsoever.
6. It is further contended that the defendants did not produce any evidence showing that Siddhartha Chatterjee, Indranil Chatterjee or Jayashree were the children of Asharam Chatterjee. No birth certificate, no school certificate or photograph showing that Asharam had ever been part of the said family has been produced. The death certificate of Indranil Chatterjee showing Asharam as his father has not been proved in accordance with law.
7. The learned Counsel has further argued that there is no evidence to show that the caveatrix or her children had any connection with the deceased at any point of time. There is no evidence that the caveatrix herself had visited the place of the deceased or there had been any written communication between them by exchange of letters or otherwise.
8. Further, the case made out by the caveatrix that the death of the deceased having been out of depression and loneliness would defy the fact of the caveatrix and her children being in regular touch with the deceased as claimed. The learned counsel has further pointed out that the caveatrix has been set up by some interested person like Gopal Ghosh, whose caveat has also been discharged by this Hon’ble Court as per records. The two attesting witnesses being reputable citizens have led credence to the Will executed by the testatrix. The learned counsel of the plaintiff has referred to several questions which were put to his witnesses at the time of their cross-examination and by referring to such questions/answers, the learned counsel has argued that in fact such questions and answers at the time of cross- examination have strengthened the case of the plaintiff. The learned counsel has described Maya Chatterjee as an imposter since in her application of Letters of Administration in connection with the estate of Onkar Nath Chatterjee, the said Maya Chatterjee averred that the sister of her alleged husband Asharam Chatterjee namely Dr. Aparna Chattopadhyay (the testatrix) had died long ago. This, according to the learned counsel of the plaintiff, shows that Maya Chatterjee is an imposter and she wants to grab the properties of Dr. Aparna Chattopadhyay by posing herself to be the widow of her late brother.
Decision with reasons
Issue nos. 1 to 10:-
9. For the sake of convenience and brevity all the issues are taken up together for consideration.
9.1. Needless to mention, when genuineness of a Will is challenged before a Testamentary Court, the Judge dealing with the matter shall put himself in the arm chair of the testator and to consider whether in the facts and circumstances of the matter the testator/testatrix could have taken such a decision. The intention of the testator/testatrix is to be checked and verified by the concerned Judge to understand whether, in the facts and circumstances of the case, the testator/ testatrix had made such Will consciously or not.
10. In this case, the testatrix of Dr. Aparna Chattopadhyay was an unmarried lady having her residence at Varanasi and after her retirement she was staying in her property at Varanasi. When she had been suffering from her old age ailments she made the instant Will to the plaintiff. According to the propounder, he was her student and subsequently a mother-son relationship developed between testatrix and himself. There are no relatives of her blood relation. In such a situation the testatrix having properties in Bankura, Hooghly and Varanasi had decided to bequeath all those properties to the plaintiff who had been looking after her for a long time. If a person has no relative of her own, he or she, naturally, will be desirous of giving his/her properties to a person who is a reliable and trusted one, even if the latter does not have any blood relation with the testator/testatrix. It is very much possible, and it, therefore, cannot be said that such bequeath by the testatrix in favour of plaintiff is an unbelievable act from the side of an aged lady who was unmarried and having no relative of her own. The defence was unable to produce any cogent evidence to show that the defendants had close relation with the testatrix and they were in active and constant touch with her. There are sufficient materials from which it is transpired that the plaintiff was her student and there was a good and close relation between the two. The same has also been supported by the attesting witnesses who are reputed persons of the society and who had the knowledge of such relationship between the two.
11. It is further transpired that last rites and rituals were performed by the plaintiff and the same has been further corroborated by the evidence of the witnesses. In this regard, there is no contrary evidence from the side of the defence.
12. The defendant Maya Chatterjee has taken the plea that the Will was procured by the plaintiff by fraudulent means. Unfortunately apart from raising such allegation in the caveat, the said Maya Chatterjee was unable to bring on record any material showing the genuineness of the said allegation. On the other hand, it appears from the record that the prayer for Letters of Administration in respect of the estate of one Onkar Nath Chatterjee was granted in favour of the said Maya Chatterjee which was subsequently revoked at the instance of Dr. (Miss) Aparna Chattapadhyay. In the said application for Letters of Administration, the present defendant no. 1 claimed that Dr. (Miss) Aparna Chattapadhyay had died long ago and such a false statement made by Maya Chatterjee in a judicial proceeding has not only cast a negative impact upon her contention but also raises question of the genuineness of the defence put forward by the defendants. There is no material on record to show that Maya Chatterjee was the wife of the deceased brother of Dr. Aparna Chattapadhyay nor there was any document showing that the children of Maya Chatterjee were fathered by the said late brother of Dr. Aparna Chattapadhyay. The death certificate of Indranil Chatterjee, the deceased son of Maya Chatterjee showing the name of his father as Asharam Chatterjee, has not been proved in accordance with law.
13. After considering the deposition of attesting witnesses, it appears that both the attesting witnesses stand the test of cross- examination at the instance of the learned counsel of the defendants. From their deposition, it has been established that at the time of making the will, the testatrix was in a sound disposing state of mind, and was mentally alert. Furthermore, she had sufficient capacity, physically and mentally, to execute the will. The presence of attesting witnesses at the time of execution of the will and their evidence that the testatrix had made such testament out of her own will negate the allegation raised by the defence. In fact, the defence was unable to lead any contrary evidence to displace the materials brought on record from the side of the plaintiff. No evidence was laid to disprove the affidavit of assets.
13.1. It is pertinent to be mentioned here that under Order XVII Rule 2 of the Code of Civil Procedure, 1908, it has been very clearly laid down that where a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit adjourned, the Court may, in its discretion, proceed with the case as if such party were present.
14. It is further laid down in Rule 3 of Order XVII of the Code of Civil Procedure, 1908 that where any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance on his witness or to perform any other act necessary to the further progress of the suit for which the time has been allowed, the Court may, notwithstanding such default, (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them, is absent, proceed under rule 2.
15. The combined effect of such provisions enjoins this Court to hold that when the defendants in this case were allowed to cross-examine and they cross-examined the witnesses of the plaintiff at length accordingly, their subsequent absence cannot deter the Court to pronounce its final judgment. As the defendants, inspite of cross- examination of the plaintiff’s witnesses at their instance, did not appear to participate in the proceeding, the Court can proceed against them as if they were present.
16. As the defendants are unable to produce any sufficient materials to challenge the Will and as the plaintiff’s deposition as well as the deposition of the attesting witnesses raise confidence, I think that the prayer of the plaintiff should be allowed. In other words, there is nothing on record to disbelieve the genuineness of the Will executed by the Dr. (Miss) Aparna Chattopadhyay. As such, the suit succeeds. All the issues are decided in favour of the plaintiff.
Hence,
It is ordered that
The Testamentary Suit being No. 12 of 2023 is, thus, disposed of on contest with costs. Let there be an order granting Letters of Administration in respect of the estate of Dr. (Miss) Aparna Chattopadhyay in favour of the plaintiff subject to compliance of all legal formalities.
17. Urgent Photostat certified copies of this Judgment, if applied for, be supplied to the parties on compliance of all necessary formalities.
