http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: INDU BALA BOSE & ORS.

       Vs.

RESPONDENT: MANINDRA CHANDRA BOSE & ANR.

DATE OF JUDGMENT18/11/1981

BENCH: ISLAM, BAHARUL (J) BENCH: ISLAM, BAHARUL (J) SEN, A.P. (J)

CITATION:  1982 AIR  133            1982 SCR  (1)1188  1982 SCC  (1)  20        1981 SCALE  (3)1766  CITATOR INFO :  RF         1987 SC 767  (2)  F          1990 SC 396  (21)

ACT:      Probate  suit-Mode   of  onus   of  proof  of  a  sale, explained-Hindu Succession Act, section 63.

HEADNOTE:      One  Ranendra  died  unmarried  on  November  16,  1952 leaving the  alleged will  (Exhibit-1) executed on November, 8, 1952.  Ranendra left  behind him  three brothers-Jitendra Chandra  Bose,   Gopendra  and  Manindra  plaintiff  No.  1. Manindra and  Jogendra (Plaintiff  No. 2) had been appointed executors of  the will. By the will Ranendra bequeathed one- half of  his properties  to his nephew, Bhabesh, who was the son of  his younger  brother, Phanindra, who had predeceased him, and  the remaining half to his younger brother Manindra for life,  and after Manindra’s death to Bhabesh absolutely. The executors  of the will as aforesaid filed an application before the Subordinate Judge. Alipore, for probate of a will executed by  Ranendra. Jitendra  entered caveat  and filed a written statement  and contested  application  for  probate. During the pendency of the suit, Jitendra died and his heirs who were substituted, contested the suit.      The  contentions  were  that  Ranendra  was  not  in  a physical or  mental condition to execute a will; he was in a semi-conscious state  of mind  and had  not the testamentary capacity to  execute the  alleged will  and that the alleged will was  brought into  existence at the instance, and under the  influence   of  the   propounder  Manindra;   that  the signatures of Ranendra on the will were not genuine.      The trial  court  found  that  the  signatures  of  the testator and  the attesting  witnesses were genuine and that the provisions of the will was neither unfair nor unnatural. But the  trial court dismissed the suit and refused to grant probate of  the will  on the  ground that there were certain "doubts and suspicions about the condition of the testator’s mind on  8-11-1952". In  appeal before  the High  Court, the decree of  the trial  court was set aside and the propounder was granted probate of the will.      Dismissing the  appeal by  certificate granted  by  the Calcutta  High   Court  under   Article  133(1)(b)   of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

Constitution, the Court, ^      HELD:  1.1.  The  mode  of  proving  a  will  does  not ordinarily differ  from that  of proving  any other document except to  the special requirement of attestation prescribed in the  case of a will by section 63 of the Successions Act. [1191 D]      1:2. The  onus of proving the will is on the propounder and in  the absence  of suspicious circumstances surrounding the execution of the will, proof of test-a 1189 mentary capacity  and  the  signature  of  the  testator  as required by  law is sufficient to discharge the onus. Where, however, there  are suspicious circumstances, the onus is on the propounder  to explain  them to  the satisfaction of the court before  the court  accepts the  will as  genuine. Even where circumstances  give rise  to doubts,  it  is  for  the propounder to  satisfy the  conscience  of  the  court.  The suspicious circumstances may be as to the genuineness of the signatures of  the testator, the condition of the testator’s mind, the  dispositions made  in the  will being  unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator’s  mind was  not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will  of the  testator. If the propounder himself takes the prominent  part in  the  execution  of  the  will  which confers a  substantial  benefit  on  him,  that  is  also  a circumstance to be taken into account, and the propounder is required to  remove the  doubts by  clear  and  satisfactory evidence.  If   the  propounder  succeeds  in  removing  the suspicious circumstances the court would grant probate, even if the  will might  be unnatural and might cut off wholly or in part near relations. [1191 D-H 1192 A]      Shashi Kumar  Banerjee & Ors.v. Subodh Kumar Banerjee & Ors, A.I.R.  1964 S.C.  529; H. Venkatachala Iyengar v. B.N. Thimmajamma &  Ors., [1959] Supp. 1 S.C.R. 426; Rani Purnima Devi and Another v. Kumar Khagendra Narayan Dev and Another, [1962] 3 SCR 195 followed.      1:3. A  circumstance would  be "suspicious"  when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. [1192 A-B]      1:4. A careful perusal of the eleven circumstance shows that they are by no means suspicious circumstances and stand self-explained. On  the contrary the following circumstances lend strong  support to  the plaintiffs’ case of genuineness and valid  execution of  the will:  (i) Gopendra  one of the brothers, who has not been given anything under the will had filed a written statement stating that the "has no objection to the grant of probate inasmuch as the will is executed and attested according  to law";  (ii) the disposition under the will is quite fair and there are no suspicious circumstances in it  at all;  (iii) as  there were litigations between the two groups of the brothers, the will was the natural outcome to avoid further future litigation. [1194 F, 1196 B-C]      Harmes and Anr v. Hinkson, 50 C.W.N. 895, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1872 of 1970.      From the  judgment and  decree dated the 24th December, 1969 of  the Calcutta  High Court  in appeal  from  Original

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

Decree No. 843 of 1966 (Probate)      S.S. Ray and S. Ghosh for the Appellant.      V.S. Desai  D.N. Mukherjee  and N.R.  Choudhary for the Respondents. 1190      The Judgment of the Court was delivered by      BAHARUL ISLAM, J, This appeal by certificate granted by the Calcutta  High Court  under Article  133(1) (b)  of  the Constitution is  from a  decree dated  December 24, 1969 and arises out of a probate suit.      2. The material facts may be briefly stated as follows. One Manindra  Chandra Bose  (original respondent No. 1 since deceased) and  Jogendra Nath  Mitra (respondent No. 2 before us) filed  an  application  before  the  Subordinate  Judge, Alipore, for probate of a will alleged to have been executed by one  Ranendra Chandra  Bose on November 8, 1952, Jitendra Chandra bose,  a brother  of the testator entered caveat and filed a  written statement and contested the application for probate.  The   plaintiffs’  case  was  that  Renendra  died unmarried on  November 16,  1952, leaving  the alleged  will (Exhibit 1)  executed on  November 8,  1952.  Ranendra  left behind him  three brothers-Jitendra, aforesaid, Gopendra and plaintiff No.  1. Manindra. Manindra and Jogendra (plaintiff No. 2) had been appointed executors of the will. By the will Ranendra  bequeathed  one-half  of  his  properties  to  his nephew, Bhabesh,  who was  the son  of his  younger brother, Phanindra, who  had pre-deceased him, and the remaining half to his  younger brother  Manindra for  life, and  after  his (Manindra’s)  death   to  Bhabesh   absolutely.  During  the pendency of  the suit,  Jitendra died and his heirs who were substituted, contested the suit.      3. The contentions of the defendants were that Ranendra on November  8, 1952,  was  not  in  a  physical  or  mental condition to execute a will; he was in a semiconscious state of mind and had not the testamentary capacity to execute the alleged will.  They alleged  that the  will was brought into existence at  the instance,  and under the influence of, the propounder Manindra;  that the signatures of Ranendra on the will were  not genuine  and that  must have been obtained on blank  papers   by  Manindra   who  was  looking  after  the properties of  Ranendra as  well as all litigations in which Ranendra was involved.      4. The  trial court  found that  the signatures  of the testator and  the  attesting  witnesses  on  the  will  were genuine, and  that the  provisions of  the will  was neither unfair nor  unnatural. But he dismissed the suit and refused to grant  probate of  the will on the ground that there were certain "doubts  and suspicions  about the  condition of the testator’s mind on 8.11.1952". 1191      5. The  plaintiffs filed  an  appeal  before  the  high Court. The  High Court  held that  "there was  no suspicious circumstance  relating  to  the  will  and  whatever  little suspicion there was has been satisfactorily explained by the plaintiff", with  the result  that the  High Court set aside the decree  of the  trial court  and granted  probate of the will. The  judgment and  decree of  the High  Court has been challenged by the appellants before us.      6. Mr.  S.S. Ray,  learned counsel  appearing  for  the appellants has  not challenged  the trial  court’s  findings that the  signatures of  the testator  and the signatures of the attesting  witnesses on  the will were genuine. In other words, the  execution and  the attestation  of the will have not been  challenged  before  us.  The  only  submission  of learned  counsel  is  that  the  "suspicious  circumstances"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

surrounding  the   execution  of  the  will  have  not  been satisfactorily explained by the propounders.      7. This  Court has held that the mode of proving a will does not  ordinarily differ  from that  of proving any other document except  to the  special requirement  of attestation prescribed in  the case  of a  will by  Section  63  of  the Successions Act.  The onus  of proving  the will  is on  the propounder and  in the  absence of  suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and  the signature  of the  testator as required by law is sufficient to discharge the onus. Where however there are suspicious  circumstances, the onus is on the propounder to explain  them to the satisfaction of the court before the court accepts  the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of  the testator’s  mind, the  disposition made in the will  being unnatural, improbable or unfair in the light of  relevant   circumstances,  or   there  might   be  other indications in the will to show that the testator’s mind was not free.  In such  a case  the court would naturally expect that all  legitimate suspicions should be completely removed before the  document is  accepted as  the last  will of  the testator. If  the propounder  himself takes a prominent part in the  execution of  the will  which confers  a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by  clear  and  satisfactory  evidence.  If  the  propounder succeeds in  removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might 1192 cut off  wholly or  in part near relations. (See AIR 1964 SC 529, [1959] Suppl. 1 SCR 426 & [1962]3 SCR 195).      8. Needless  to say  that any and every circumstance is not a  ’suspicious’ circumstance.  A circumstance  would  be ’suspicious’ when  it is  not  normal  or  is  not  normally expected in  a normal  situation or  is not  expected  of  a normal person.      Learned counsel relied on the decision of this Court in the case of Rani Purnima Devi and Another v. Kumar Khagendra Narayan Dev  and Another.  In this case the will in question gave the  entire property  by  the  testator  to  a  distant relation of  his to  the exclusion  of the testator’s widow, sister and  his other  relations, and even his daughter, who would be  his natural  heirs, but subject, of course, to the condition that  the legatee would maintain the widow and the sister of  the testator.  The testator’s signatures were not his usual signatures, nor in the same ink as the rest of the will; the  testator used to sign blank papers for use in his cases in  court and  he used  to send  them  to  his  lawyer through his servants; the testator did not appear before the Sub-Registrar for  the purpose  of registration  of the will but the  Sub-Registrar sent  only his clerk to the residence of the  testator for the purpose of registration; there were 16 attesting  witnesses who  attested the will, but of them, only 4  interested witnesses  were examined to the execution of  disinterested   witnesses.  The  above  are  undoubtedly suspicious circumstances,  circumstances creating  doubt  in the mind  of the  Court. In spite of these circumstances, it was held  by the Trial Court that the will was duly executed and attested.  On appeal,  the High Court affirmed the order of the  Trial Court. On further appeal, this Court held that the   circumstances    were   suspicious    and   were   not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

satisfactorily  explained  and  hence  held  that  "the  due execution and attestation of the will were not proved."      9. As  in the  instant appeal, the judgment of the High Court is one of reversal of the judgment of the Trial Court, we should  also examine the law under which the order of the appellate  court  can  be  or  should  be  interfered  with, inasmuch as  learned counsel  has cited  the  two  following decisions before us, and urged that the High Court ought not to have interfered with the judgment of the Trial Court. The first case  cited is  The Bank  of India  Ltd. and others v. Jamsetji 1193 A.H. Chinoy  and Messrs.  Chinory and  Co. In  that case the Privy Council has held:           "The appellate  Court would be reluctant to differ      from  the   conclusion  of   the  trial  Judge  if  his      conclusion is  based on the impression made by a person      in the  witness box.  If however, the trial Judge based      his finding  and his  opinion of the person on a theory      derived from  documents and  a series of inferences and      assumptions  founded   on  a   variety  of   facts  and      circumstances which,  in themselves, offer no direct or      positive support  for the conclusion reached, the right      of the  appellate  Court  to  review  this  inferential      process cannot be denied."      The other  case cited  is Madholal  Sindhu of Bombay v. Official Assignee of Bombay and others, in which the Federal Court held:           "It is  true that  a Judge  of first  instance can      never be  treated as infallible in determining on which      side the  truth lies and like other tribunals he may go      wrong on  question of  fact, but on such matters if the      evidence as  a whole  can  reasonably  be  regarded  as      justifying the  conclusion arrived at, the appeal Court      should not lightly interfere with the judgment."      10. Keeping  the above principles of law in view let us now turn to the facts of the present case.      Learned counsel  for the  appellant has  enumerated the following 11 ’suspicious’ circumstances:      (i)  Attempt on  the part  of the propounder to conceal           the real nature of testator’s illness.      (ii) The propounder  failed to  tell the  date when the           testator went  to his  lawyer (P.W.  3s’) house or           when the  draft was  given by  the lawyer  to  the           testator.      (iii)The draft has not been produced and no explanation           has come forth as to what happened to the draft. 1194      (iv) No date  has been mentioned when the testator sent           for his  lawyer trough Banqshidhar for corrections           in the draft.      (v)  The diary of P.W. 3 has not been produced.      (vi) The senior  lawyer (Sudhangshu  Babu) has not been           examined. The  lawyer examined, namely P.W.3, is a           partisan witness.      (vii)Banqshidhar has  not been  examined as  a  witness           although he  was attending  court during the trial           of the suit.      (viii)The statement  of the  propounder, Manindra, that           he knew  about the  will only  three or  four days           after its  execution cannot  be accepted  as  true           when one  of the  attesting witnesses, namely P.W.           5, had been told of it a month earlier.      (ix) No body  knows what  alterations were  made in the           draft.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

    (x)  The scribe  and one of the attesting witnesses are           employees, another witness (P.W.4) is a friend and           the other attesting witness (P.W.5) is a relation.      (xi) The  evidence  of  the  propounder,  Manindra,  is           partly false;  he disavows  all knowledge  of  the           will.      A careful perusal of the above circumstances shows that they are  by no  means suspicious  circumstances  and  stand self-explained. Circumstances  Nos. (ii) and (iv) are really test of memory. It may be remembered that the witnesses were deposing thirteen  years after the execution of the will. It will be difficult for any witness after such a long lapse of time to  give the  dates when the testator went to the house of his  lawyer or  when the draft was given by the lawyer to the testator  or when  the  testator  sent  for  the  lawyer through Banqshidhar for correction of the draft. With regard to circumstance  No. (iii) there is no evidence to show that there was  any invariable  practice that the draft of a will had  to   be  preserved.  No  question  was  put  in  cross- examination to  the scribe  (P.W. 1)  who perhaps might have been able  to say  what he  had done with it. Similar is the position with regard to the diary of P.W. 3. P.W. 3 1195 who deposed  that his  diary would  show that he had drafted the will was not asked in cross-examination as to whether he at all  preserved in  1965 the  diary of  1952 or whether he could produce  it. With  regard to  grievances Nos. (vi) and (vii) we  do not see any necessity of calling the testator’s employee Banqshidhar,  as witnesses  in the  case. So far as Sudhangshu Babu  was concerned, Manindra was not asked as to why he  had not  been called  as a  witness; possibly he had died as P.W. 3 spoke of him as "my late senior". With regard to circumstance  No. (ix),  it may be said that there was no necessity of  knowing what  alterations had been made in the draft. With  regard to  the circumstance that the scribe and the attesting  witnesses were either employees, or friend or relation of the propounders’ group, the answer is simple. No body would  normally invite  a stranger  or a  foe to  be  a scribe or  a witness  of a  document executed  by or  in his favour; normally  a known and reliable person, a friend or a relation is  called  for  the  purpose.  The  same  argument applies to  P.W.3 who  is said  to be a partisan witness for the reason that he was the testator’s advocate. But there is nothing to  show that  he was  not telling  the truth in his deposition. With regard to the circumstances Nos. (viii) and (x) that  Narendra was  not telling the whole truth, when he said that he had come to know of the will three or four days after its  execution the  complaint may be correct, although it was  not impossible  that he  had  not  been  taken  into confidence in the matter of the will in his favour, although P.W. 5  had  been.  Another  possibility  is  that  Manindra deposed so  in order to avoid cross-examination. In any case this  does  not  appear  to  be  a  suspicious  circumstance surrounding the execution of the will.      With regard  to circumstance No. (i), the submission is that the testator, according to the medical evidence, was at the time  of the  execution of  the will suffering from high blood pressure,  diabetes, acidosis, kidney trouble and that he had  no food  for two days before 8.11.1952. The evidence of P.W.2  Naresh C.  Das Gupta who is a medical practitioner is that  "Ranen Babu  was not  taking his  meals  and  usual food", which  means, he  was taking  sick diet  with ’hydro- protien’ prescribed  by him.  But P.W.  2 deposes  in cross- examination that  "the patient  was not  in  coma  ....  The patient had  talks with  me on the last day" which was eight

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

days after  the execution  of the  will  when  the  testator "suddenly" died  of coronary  thrombosis in  the lap  of his employee, Banqshidhar.  There is  no evidence  that Ranendra did not  have the  mental capacity to execute the will. Even D.W. 2  Sailendra  Bose  who  visited  Ranendra  during  his illness, and 1196 D.W. 1,  Dr. Amal  Chakravorty who  deposed by  perusing the prescriptions, did  not depose  that Ranendra was in coma or had lost his mental faculty.      12. On  the contrary  the following  circumstances lend strong support  to the  plaintiff’s case  of genuineness and valid execution  of the  will.  (1)  Gopendra,  one  of  the brothers, who has not been given anything under the will had filed a  written statement stating that he "has no objection to the grant of probate inasmuch as the will is executed and attested according  to law."  (2) The  disposition under the will is quite fair and there are no suspicious circumstances in it  at all. (3) As there were litigations between the two groups of  the brothers, the will was the natural outcome to avoid further future litigation.      13.  We   do  not   find  any  suspicious  circumstance surrounding the  execution of  the will.  The  circumstances pointed out  by learned  counsel are not only not suspicious but normal  as pointed  out above.  The rule, as observed by the Privy  Council, is  that "where  a will  is charged with suspicion, the  rules enjoin  a reasonable septicism, not as 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." (See 500 C.W.N. 895)      14. The  trial court  was wrong  in  holding  that  the circumstances in question were suspicious and the High Court was fully  justified in  setting aside  the judgment  of the trial court. We are in entire agreement with the judgment of the High Court.      In the  result this  appeal fails and is dismissed with costs. S.R.                                       Appeal dismissed. 1197