w w w . L a w y e r S e r v i c e s . i n



Kishan Lal Chadha @ Krishan Lal Chadha (Deceased) v/s Anup Chadha


Company & Directors' Information:- ANUP (INDIA) LIMITED [Active] CIN = U01132WB1980PLC033038

Company & Directors' Information:- A R CHADHA AND CO INDIA PVT LTD [Active] CIN = U74899DL1959PTC003018

Company & Directors' Information:- C. LAL LIMITED [Active] CIN = U51909HR2012PLC046499

Company & Directors' Information:- KRISHAN LAL AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049009

Company & Directors' Information:- CHADHA & COMPANY PVT LTD [Strike Off] CIN = U74995WB1989PTC046563

Company & Directors' Information:- CHADHA CORPORATION PRIVATE LIMITED [Active] CIN = U24110DL2014PTC267003

    Appeal from Order No. 197 of 2019, General Application No. 2883 of 2019 & Testamentery Suit No. 21 of 2012

    Decided On, 21 January 2020

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SANJIB BANERJEE & THE HONOURABLE MR. JUSTICE KAUSIK CHANDA

    For the Appearing Parties: Kashi Nath De, Sandip Kumar De, Abhijit Sarkar, Debarati Das, Dhruba Ghosh, Aniruddha Mitra, Sib Sankar Das, Advocates.



Judgment Text


Sanjib Banerjee, J.

1. A daughter of the testator challenges the grant of probate on the ground that the several suspicious circumstances surrounding the execution of the Will as cited by her were not dealt with by the court before granting the probate. In short, the appellant's contention is that the suspicion surrounding the execution of the Will was not dispelled, though it is the general rule that probate cannot be granted until the pall of suspicion is completely removed.

2. Kishan Lal Chadha appears to have been born with a silver spoon and he did well in his business ventures. He lived most of his life at his family house in Hastings and the principal immovable asset that he acquired in his lifetime was a house in Panchsheel Park in New Delhi that he and his wife purchased together. At the time of the testator's death in 2010, he was survived by his widow, a son and two daughters. Younger daughter Kamini Sarin is the appellant herein.

3. The testator's son, Anup, applied for probate on being named as the executor in the registered Will which appears to have been both executed and registered on July 17, 2007. The Will is short and sweet and the effective part thereof is spread over two pages. The bequest is contained in the third paragraph of the second page. The sole legatee appears to be the son. There is a short paragraph that follows where it has been emphasised that the wife or daughters or brother or sisters or other heirs or legal representatives of the testator would not be entitled to have any claim on the testator's estate.

4. In the affidavit in support of the caveat filed on behalf of the appellant herein, it was claimed that the "testator was lastly residing with the beneficiary and the present petitioner, his son and the testator was fully under the control and dictates of the beneficiary ...". Elsewhere in such affidavit, the appellant claimed that the signature attributed to her father in the Will "is not the signature of the testator out of his own volition." The appellant also asserted that "the said Will is the result of undue influence and coercion." To boot, she added that "the attesting witnesses are also the men and agents of the petitioner ...".

5. According to the appellant, the first two pages of the Will are not genuine as they do not bear any signature of the testator. The appellant claims that her father had executed a Will, but such Will was executed on July 17, 2006 and, shortly after the death of her father in April, 2010, her brother had shown her a copy of such other Will and the appellant had appended her signature on a photocopy thereof. It is further asserted on behalf of the appellant in course of the present appeal that though by the other Will her father had bequeathed his share in the Panchsheel Park, New Delhi property exclusively in favour of his son, the testator had also made provisions for his grand-children, particularly the children of the appellant.

6. The appellant claims that nothing in the third page of the purported Will sought to be propounded amounts to a bequest or reveals the character of the document for the testator to have been aware of the nature of the document that he was appending his signature to. The appellant says that since her father was under the control of his son, it was possible for the son to have obtained the signature of the father without the father having any inkling that the signature would be used to set up a forged and fabricated Will.

7. As to the father's signature on the third page of the Will which is sought to be propounded, the appellant suggests that the document looks unnatural since the first line in the witnesses' declaration exceeds the right side alignment of the rest of the declaration by more than a letter. The appellant insinuates that since the left margin of the testator's purported signature was extended a considerable distance to the left, the declaration had to be fitted in by shortening the right side alignment of the lines after the first. In short, the appellant suggests that the signature of her father may have been obtained by her brother on a blank paper and the rest of the contents, including the witnesses' declaration, filled in thereafter. It is also the appellant's case that the two witnesses are known cronies of her brother and it is surprising that a lawyer is said to have been involved in the process of drafting the Will but such lawyer's signature does not appear anywhere in the document.

8. Before assessing the extent of the appellant's submission that can be considered in the light of the case made out by the appellant in her affidavit in support of the caveat, it is necessary to record the other grounds urged by the appellant. According to the appellant, two documents came to be disclosed prior to the trial that put the Will in serious doubt, particularly, since both such documents of the year 2010 and executed after the death of the testator, referred to the date of the Will to be July 17, 2006 and not July 17, 2007 as subsequently claimed. The first of the documents is a declaration signed on April 12, 2010 by the appellant herein where she acknowledged as follows at paragraph 3 of the document:

"I do hereby declare that all or any property including the above mentioned house belonging to my parents must go to my only brother ANUP CHADHA. I shall not claim any property of my parents and I shall consent to the grant of probate in favour of Mr. Anup Chadha of the Will dated 17.07.2006, registered with the Additional Registrar of Assurances, Kolkata. I have signed the photocopy of the Will to acknowledge that I have read and understood the contents of the same."

9. The second document is dated July 27, 2010 and is an indemnity bond executed before a notary where the brother agreed to indemnify the appellant herein and keep her harmless against all expenses pertaining to the Panchsheel Park property. Again, in the third recital in the indemnity bond, the testator in these proceedings was said to have died on April 5, 2010 "leaving a Registered will dated 17.07.2006 bequeathing his half undivided share in Property No.N-14 Panchsheel Park, New Delhi to the Executant ...".

10. The appellant also suggests that the Will in this case being a computergenerated document, it was required to be proved in terms of Section 65B of the Evidence Act, 1872 in addition to such document meeting the requirements of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act. Much is also made out by the appellant of the first attesting witness called by the propounder not coming to face the cross-examination. The appellant says that the first attesting witness is an Advocate but he did not indicate his vocation while purportedly attesting the document.

11. The appellant says that upon the divers grounds of suspicion being cited by the appellant, it was incumbent on the propounder to bring appropriate evidence as to how the Will was prepared, typed and drafted; whether any lawyer was involved in the process; and, the role of Advocate whose name is mentioned in the back-sheet accompanying the Will submitted in court, though such name does not appear in the document as registered before the registering authority. The appellant points out that there is only a handwritten date saying "Dated on 17.07.07" just below the testator's alleged declaration on the third page of the Will. The appellant claims the insertion of the date in hand to be suspicious, particularly since the purported declaration of the testator refers to "the day month and year first above written" but nothing preceding such purported declaration in the Will indicates any date.

12. The appellant asserts that though the second attesting witness alleged that the Will was prepared by Mr Debasis Sinha, Advocate, but the name of such Advocate does not appear anywhere else in course of the execution or registration of the Will. The appellant submits that in the light of the challenge to the Will, the person who may have prepared the Will ought to have been examined to dispel the suspicious circumstances surrounding the execution of the Will.

13. Finally, the appellant says that the nature of the bequest is such as would arouse suspicion. According to the appellant, her father was a caring person and ought to have provided for his wife in the Will. The general refrain of the appellant is that her father had, indeed, executed a Will, and such Will was executed on July 17, 2006; but the propounder in the present case had purported to substitute the first two pages of the original Will by two unsigned pages where the nature of the bequest has been altered to show the propounder as the sole beneficiary under the Will.

14. The propounder counters by referring to the very limited case made out by the appellant herein in her affidavit in support of the caveat. The propounder submits that on a careful reading of the appellant's affidavit it would be evident that even the signature of the testator in the Will was not questioned; but it was only suggested that the testator was under the control of the propounder, that the signature of the testator was not out of his own volition and that the attesting witnesses were known to the propounder. The propounder submits that nothing apparent from the Will shows the propounder's direct or overwhelming involvement in the preparation of the Will or in its execution. The propounder is not a signatory to the Will, whether as an attesting witness or otherwise.

15. The propounder submits that even if the case run by the appellant is taken at face value, it is not a crime for a person to try and influence another for such other to bequeath such other's property to the first-named person; the Will would be suspect if the executant thereof was infirm of health or unsound of mind. The propounder says that no case has been made out, far less proved, that the testator was unable to manage his affairs or was otherwise incapable of executing a document or understanding the contents of the document that he may have executed. The propounder says that the testator attended his office and to his business till a few days before his death in 2010 and it could not be said, nor has it been established, that the testator was incapable in body or in mind to have executed a document in the year 2007.

16. The propounder admits that the two documents of April 12, 2010 and July 27, 2010 carry the same mistake as to the date of the execution and registration of the Will. In either case the date is erroneously mentioned as "17.07.2006" though the Will was executed and registered exactly a year later. The propounder refers to his re-examination and his assertion in course thereof that there was a mistake in the two documents and the date of execution and registration of the Will was, in fact, July 17, 2007. The propounder points out that there was no attempt to cross-examine the propounder on behalf of the appellant herein on the propounder's assertion as to the mistaken date.

17. The propounder claims that the appellant failed to raise any doubts as to the due execution of the Will and the limited case of suspicious circumstances that the appellant made out in her affidavit in support of the caveat was more than adequately dealt with by the evidence brought on behalf of the propounder and even in the judgment of grant impugned herein. The propounder maintains that in the light of the widow of the testator and another daughter of the testator filing their affidavits of consent and supporting the propounder, the case of unnatural bequest does not lie.

18. The appellant has referred to several judgments. The appellant has first brought a judgment reported at (Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria, (2008) 15 SCC 365) and placed paragraph 20 thereof for the proposition that in addition to the due execution of a Will being proved, all doubts regarding the execution of the Will should be dispelled before a grant is made by the court. However, as will be evident from paragraph 20 of the report, the court in that case found that "there were a large number of suspicious circumstances in the instant case." The court also found that the statutory requirement for proof of the Will had not been complied with.

19. In the judgment reported at (Geeta Roy v. The State,2014 SCCOnlineDel 2555) next cited by the appellant, it was observed that in the peculiar facts of that case, the failure to summon and examine Advocate who had played a crucial role in the drafting of the Will would prompt the court to hold against the propounder. However, paragraph 13 of the report acknowledges that the absence of evidence pertaining to the preparation of the Will "should not be held fatal to the genuineness of the Will", but in certain cases it may become necessary to summon the person who had drafted the Will. In the instant case, once the requirements under Section 63 of the Succession Act and Section 68 of the Evidence Act are found to have been complied with, there appears to be little doubt as to the due execution of the Will. Further, no serious ground of suspicion has been raised as to the execution of the Will. Indeed, even the signature of the testator is deemed to have been admitted in the affidavit in support of the caveat filed by the appellant.

20. A judgment reported at (Smt Krishna Bera v. Sri Prabir Pramanik, (2007) 2 CalLT 484) has been placed on behalf of the appellant for the proposition that what amounts to suspicious circumstances varies from one case to the other. The appellant emphasises on a sentence in paragraph 10 of the report to the effect that if the document is executed under suspicious circumstances, the execution, attestation and registration of such document are of no consequence. However, as noticed above, the case of suspicious circumstances is rather limited in this matter, particularly in the absence of the testator being shown to be physically infirm or mentally unsound whether at the time of the execution of the Will or at any other time prior to his death nearly three years after the execution of the Will.

21. The appellant has placed reliance on another judgment reported at (Anil Kak v. Kumari Sharada Raje, (2008) 7 SCC 695) for the discussion therein at paragraphs 49 to 59 that the mere proof of the signature of the executor and the attesting witnesses would not suffice when the document sought to be established was a Will. There is no quarrel with the proposition that the conscience of the probate court has to be satisfied before it grants probate of a Will, particularly a Will by which the nature of inheritance of some of the intestate heirs is substantially altered. But it must also be remembered that just as it is the duty of the propounder to dispel the suspicion regarding the execution of the Will, it is for the challenger to first make out cogent grounds of suspicion. By merely alleging suspicion, suspicious grounds are not made out.

22. On the basis of the case run by the appellant in her affidavit in support of the caveat lodged by her, there was little more that the trial court could have done to repel the frivolous challenge to the Will. The appellant's challenge to the Will and its execution is a bit of this and a bit of that and a lot of hope. It is true that the appellant alleged that the testator was in the clutches of her brother, the propounder, and it is also true that she has used the expressions "coercion" and "undue influence", but she brought no evidence of how her brother controlled the mind or the actions of the common father, whether at the time of the execution of the Will or at any other point of time. Equally, the appellant did not present any evidence in support of her allegation that the propounder may have exercised any undue influence or coercion on the testator to force the testator to execute the Will. In her examination-in-chief, she answered 29 questions but there is nothing to support a case of undue influence or coercion or any other ground of suspicion pertaining to the execution of the Will. The appellant did not refer to the testator's health or the testator's mental state or even the propounder's involvement in the execution of the Will. In her crossexamination, the appellant was specifically asked whether there was any document or material to suggest that the Will was executed under coercion or signed by the testator under duress. Her simple answer to question No.46 in such regard was that she had been shown a document after her father died and "in that Will there was a lot of things which are not mentioned in this Will." There is nothing more of any significance in the rest of the appellant's oral testimony.

23. What cannot be lost sight of in this case is that the Will was registered and an official from the registration office confirmed that the Will produced in the present proceedings was the same that was registered in the appropriate book and volume on July 17, 2007. While, as a matter of principle, the registration of a Will does not, by itself, prove due execution thereof, what such registration proves is that the person whose fingerprints are obtained by the Registrar's office had visited the Registrar's office on a particular day and had submitted a document and claimed it as his Will. Even if it is accepted that so much as is evident from the registration of a Will may not be enough to prove due execution thereof in terms of either Section 63 of the Succession Act or Section 68 of the Evidence Act, what the registration of a Will demonstrates is that such person had claimed the document to be his Will and, unless he was of unsound mind or impaired physical condition, it would not have been possible for the person to have even had the document registered.

24. It is possible that a person is held to ransom and is coerced to visit the registration office against his will and made to acknowledge a document as his Will. However, there must be cogent evidence of the coercion or the pressure applied on the person or of the person being held to ransom or a loved one being held at gun-point, before any element of suspicion can be said to have been aroused for the propounder to be called upon to dispel the same.

25. There is no doubt that the first attesting witness in this case presented himself to be examined but he shied away from his cross-examination. The legal effect of such conduct is that the oral testimony of such witness is not taken into account in furtherance of the case of the party who invited him into the box; but such oral testimony may be used by the adversary. However, the second attesting witness proved due execution of the Will in terms of Section 68 of the Evidence Act. After all, such provision requires only one attesting witness to be called for the purpose of proving due execution in terms thereof. The fact that the first attesting witness did not stay back to complete his evidence becomes irrelevant when the other attesting witness has proved due execution of the Will. Section 63 of the Succession Act requires the testator to sign the Will in the presence of at least two witnesses; and the signature of the testator should be so placed that it would be apparent that it was intended thereby to give effect to the writing as a Will. The second part of the test is substantially complied with when a Will is registered and the registration is proved. The first part of the test was duly discharged by the second attesting witness and no case to the contrary has been made out by the appellant.

26. The ground urged by the Appellant under Section 65B of the Evidence Act is utterly irrelevant. The first two pages of the Will cannot be regarded as electronic records. There is no requirement in law for every page of a Will to be signed by the executant or any witness. The testator's signature in the Will in this case is virtually admitted and the declaration above the testator's signature gives sufficient indication as to the nature of the document. Indeed, the attesting witnesses' declaration refers to the executant as the testator and the document as his last Will and testament. The deviation in the right side alignment of the witnesses' declaration is of no consequence, particularly since the executant had the document registered and the registration was proved without there being any manner of doubt in such regard.

27. It is elementary that all suspicious circumstances surrounding the execution of a Will must be dispelled by the propounder for the court's conscience to be free from doubt before making the grant. But the extent of suspicion and the nature thereof vary from case to case and it is when sufficient doubt as to the due execution of the Will is raised that the propounder is called upon to remove such doubt. More importantly, both the documents of April 12, 2010 and July 27, 2010 that the appellant relies upon as the sheet-anchors of her challenge, as they referred to the Will being dated July 17, 2006, also referred to such Will being registered. If any credence had to be given to the appellant's challenge, it was for the appe

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llant to bring the registered Will of July 17, 2006 to the fore. In the absence of there being any evidence of registration of any Will executed by the testator on July 17, 2006, it is apparent that there was a mistake in the reference to the year. Significantly, the propounder had himself reexamined to assert that the dates mentioned in the two documents were incorrect; but he was not cross-examined on such aspect on behalf of the appellant herein. 28. At the highest, the case made out by the appellant is that there may have been a previous Will that was executed by the testator and she may have been shown a copy of such previous Will by the propounder brother. Even if it is assumed that there may have been a previous Will though there is no ground for such assumption the due execution of a subsequent Will, when proved, obliterates the previous Will, if any. In any event, it is unlikely that there may have been a previous Will and it is apparent that the appellant herein has sought to fashion her challenge on the mistaken dates indicated in the two documents of April 12, 2010 and July 27, 2010 to create a false air of suspicion regarding the Will. The appellant has failed miserably to create any doubt as to the execution of the Will. The appellant has not even attempted to show that her father may not have been physically or mentally capable of executing of the Will. Words and expressions like "undue influence", "coercion" and "under the control and dictates of the beneficiary", are only conclusions that ought to be drawn from a set of facts that may be presented in support of such allegations. By merely parroting such expressions, there is no aura of suspicion that is created for the propounder to be called upon to satisfy the court's conscience despite due execution of a Will being proved in accordance with law. 29. For the reasons aforesaid, the appeal fails. The judgment and grant impugned herein stand affirmed, apart from the reasons indicated therein, by the additional reasons furnished herein. 30. Apo 197 of 2019 and GA 2883 of 2019 stand dismissed. 31. There will be no order as to costs. 32. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. I agree. Kausik Chanda, J.
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24-09-2019 Sri Ananta Prasad Sahu @ Sri Ananta Lal Sahu Versus Sri Gopal Sahu @ Sri Golao Lal Sahu High Court of Gauhati
20-09-2019 In the Matter of: Anup Kumar Sinha Versus State & Another High Court of Delhi
18-09-2019 National Insurance Co. Ltd. Versus Rameshwar Lal & Another National Consumer Disputes Redressal Commission NCDRC
17-09-2019 Anshuman Dubey & Another Versus Jawahar Lal Nehru University & Others High Court of Delhi
16-09-2019 Vinod Madan Lal Nawandhar Versus Vidisha Garg & Others High Court of Delhi
12-09-2019 Amit Singh Chadha Versus Unitech Reliable Projects Pvt. Ltd. National Consumer Disputes Redressal Commission NCDRC
11-09-2019 Ami Lal Versus Commandant, 52nd Battalion, Central Reserve Police Force, Manipur & Another High Court of Orissa
09-09-2019 Malkit Kaur Versus Joginder Lal Khurana High Court of Punjab and Haryana
06-09-2019 Chaman Lal Mittal Versus Kamini Sharma High Court of Delhi
05-09-2019 Laxman Lal Latta Versus Kamlesh Parmar & Others High Court of Rajasthan
03-09-2019 Pritam Lal Makhija Versus Akhil Bhartiya Aggarwal Sammelan Thr its Joint Organised Secretary Virender Gupta High Court of Delhi
02-09-2019 Shiv Lal Versus Om Parkash Kashyap High Court of Delhi