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PETITIONER: RABINDRA NATH MUKHERJEE& ANR.

       Vs.

RESPONDENT: PANCHANAN BANERJEE (DEAD)BY LRS. & ORS.

DATE OF JUDGMENT09/05/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 AIR 1684            1995 SCC  (4) 459  JT 1995 (7)   177        1995 SCALE  (3)455

ACT:

HEADNOTE:

JUDGMENT:           THE 9TH DAY OF MAY, 1995 Present:           Hon’ble Mr. Justice K.Ramaswamy           Hon’ble Mr. Justice B.L. Hansaria Mr. G.L.Sanghi, Sr. Adv. Ms. Lily Thomas, Adv. with him for the appellants. Mr. Shankar Ghosh, Sr. Adv. Mr. Praveen Kumar, and Mr. Virender Kaushal, Advs. with him for the Respondents.           JUDGMENT The following Judgment of the Court was delivered:           IN THE SUPREME COURT OF INDIA           CIVIL APPELLATE JURISDICTION           CIVIL APPEAL NO. 5384 OF 1995      (Arising out of SLP(C) No.5456 of 1992) Rabindra Nath Mukherjee & Anr.                                        ...Appellants           Vs. Panchanan Banerjee (dead) by LRs. & Ors.                               ...Respondents                     JUDGMENT HANSARIA.J.      A will  contains the last desire of testator/testatrix. The courts,  therefore, normally  act in accordance with the wishes of the person concerned. But then, if the courts were to doubt either genuineness or voluntariness of the maker of the will,  they would  be loathe  to work in accordance with what has  been stated in the will. To put it differently, if the will  is surrounded  by  suspicious  circumstances,  the removal of  which is  the burden of the propounder, the will would not be probated. 2. In  the appeal at hand, we are concerned with a will said to have  been made  by one  Saroj Bala on 30.11.66. This was followed by  two codicils  dated 2.2.68  and 21.11.69. Saroj Bala passed  away on  13.1.71 at  the  age  of  90.  On  the petitoners,  who  were  named  as  executors  in  the  will,

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approaching the  Court of Addl. District Judge, Alipore, for obtaining probate  of the  will, read with the codicils, the same was  refused, as the lerned trial Judge felt that these were surrounded  by suspicious circustances. On appeal being preferred, the  High Court  at Calcutta  also took  the same view. Hence this appeal by special leave. 3. A  perusal of  the two  impugned judgments shows that the following were regarded as suspicious circumstances: (1) Deprivation of the natural heirs by the testatrix. (2) Identification of the testatrix before the Sub-registrar by an  Advocate of Calcutta who had acted as a lawyer of one of the executors in some cases. (3) The  witnesses to  the documents  were interest  in  the appellants. (4) Active  part played  by one  Subodh, a close relation of Rabindra, one  of the executors, in getting execution of the will. He has been described as ubiquitous. 4. As  to the first circumstance, we would observe that this should not  raise any  suspicion,  because  the  whole  idea behind execution  of will  is to  interfere with  the normal line of  succession. So  natural heirs  would be debarred in every case  of will; of course, it may be that in some cases they are  fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of  Saroj Bala, whereas the objectors descendants of a full  blood sister, the disinheritence of latter could not have been  taken as  a suspicious circumstance, when some of her descendants are even beneficiaries under the will. 5. As  to the identification by a lawyer of Calcutta, it may be stated that this could have been regarded as a suspicious circumstance if a wrong person would have been identified as Saroj Bala. That, however, is not the case of the objection. So, there is no bane in this circumstance. 6. Insofar  as the  third circumstance  is concerned, we may first observe  that   witnesses  in  such  documents  verify whether the  same  had  been  executed  voluntarily  by  the concerned person  knowing its contents. In case where a will is registered  and the Sub-registrar certifies that the same had been  read over  to  the  executor  who,  on  doing  so, admitted the  contents, the  fact that  the witnesses to the document are interested loses significance. The documents at hand were  registered and  it is  on record  that  the  Sub- registrar had explained the contents to the old lady. So, we do not  find the  third circumstance  as suspicious  on  the facts of the present case. 7. As  to "ubiquitous"  Subodh, it may be said that somebody has to  take necessary  steps in  such matters;  but  if  he happens to  be one  close to  the executor, some eye-brow is bound to  arise. Even so, if there be other circumstances on record to  show the voluntary character of the document, the eye-brows should  get dropped  down. And  such circumstances were present  in the  case, which  somehow  missed  the  two courts below. These are: (1) Making  of two codicils by Saroj Bala, last of which was about three  years after the execution of will. The need for these arose  because the  testatrix had made use some of the properties listed  in the  will. So, the testatrix knew what was the will for and why it needed change. (2) The  testatrix executed an FDR of Rs.15,000/- on 2.8.67, which shows that she was not so immobile or senile as sought to be  made out  by  the  respondents.  The  fact  that  her signature in  the FDR was shaky has no cutting edge, because nearing 90  at the  relevant time,  the signature could have well been shaky because of old age. (3) Testatrix sold some property in February 67 and received

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the sale  price, which  shows her consciousness as to how to deal with her properties. 8. If  a total view is taken of the aforesaid circumstances, which has to be the approach, we are of the opinion that the courts below  over  played  some  circumstances  which  they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders. 9. The  appeal  is,  therefore,  allowed  and  the  impugned judgments are  set aside.  The result  is that  the will, as modified by  the two codicils, stands probated. In the facts and circumstances  of the case, we leave the parties to bear their own costs throughout.