Laxman Mandal v. Most. Saro Devi — 1984 DIGILAW 201 (PAT)

Judgment 1. Petitioner-plaintiff in Title Suit No. 4 of 1964 of the court of the 1st Additional District Judge, Bhagalpur, has moved this Court in appeal against the judgment and decree dismissing the suit on contest holding that he is not entitled to a probate of the will alleged to have been executed by one Bhajan Mandal in his favour. 2. Briefly stated the facts are as follows Bhajan Mandal died in the year 1958 at Meharpur P. S. Banka in the district of Bhagalpur. Before his death, however, on 24 Chaitra 1363 Fasli, equivalent to 8th of February, 1954 according to the plaintiff-appellant he had adopted the appellant as his son as he had no child and on the 13th Chaitra, 1963, equivalent to 19-4-1956, he had executed a will in respect of all his properties in favour of the appellant. According to the appellant, Bhajan Mandal was in sound state of health and mind when he executed the will and exercised his free will to demise 3 acres 67 decimals of land, as described in the Schedule of the probate application. The will in question was scribed by Suresh Chandra Singh and its execution by Bhajan Mandal was attested by Anup Lal Mandal and Acho Singh stating that the said will was duly executed by Bhajan Mandal and the appellant was his adopted son who was named as the propounder of the last will and testament of Bhajan Mandal. The appellant, accordingly moved the court of District Judge, Bhagalpur, praying for grant of probate. Respondents, Saro Devi and Bataso Devi claiming that they were widow and daughter of late Bhajan mandal respectively, however, entered caveat objecting to the appellants prayer before the learned District Judge. They pleaded that after the death of Bhajan Mandal they inherited the entire property left by him and were in possession thereof as he had no male issue. They alleged that Most. Saro Devi executed a registered deed of gift dated 28-8-1961 in favour of Bataso Devi in respect of all the properties of her husband Bhajan Mandal and Bataso accordingly was the absolute owner of the properties of her father. He gave Bataso in marriage, yet out of love and affection, he kept her and her husband with him. Bataso and her husband always looked after Bhajan Mandal and his wife Saro Devi including looking after the properties of Bhajan Mandal. He gave Bataso in marriage, yet out of love and affection, he kept her and her husband with him. Bataso and her husband always looked after Bhajan Mandal and his wife Saro Devi including looking after the properties of Bhajan Mandal. Bhajan Mandal never executed any will in favour of the appellant or any other person. The will in question was spurious and forged document concocted for laying a false claim over the properties of Bhajan Mandal which were in possession of Bataso by inheritance as well as by virtue of the gift executed in her favour on 28-8-1961, by her mother and widow of Bhajan Mandal. They also alleged that they got the records inspected and learnt from the contents of the will in question that it contained false and unfounded recitals that Bhajan Mandal had no issue of his own and that he had adopted the appellant as a son who lived as his adopted son. They asserted that the alleged will did not contain Bhajan Mandals thumb impression and even if it be so, the appellant and his friends and his associates including the scribe and attesting witnesses had managed to obtain his thumb mark on a blank piece of paper as they had access to Bhajan Mandal during his illness. Bhajan Mandal did not execute any will conscious of the disposition and the contents of the document. Attesting witnesses attested no will but a false document. Appellant is the son of Sitabi Mandal and he is so described in all the papers, both public and private. The concoction of the false will was a result of conspiracy of Sitabi Mandal and his children. Bhajan Mandal had a brother Bhado Mandal. Sitabi was Bhados son. They further alleged that they had filed title Partition Suit No. 25 of 1962 in the Court of the Munsif at Banka, for partition of the lands left by Bhajan Mandal from the joint estate of Bhajan Mandal and Bhado Mandal in which the appellant as well as other members of his family were party defendants. Yet the appellant had not named them in the application for probate as persons interested in the property. Most. Saro had also brought a criminal case under sections 380 and 325 of the Indian Penal Code against Shanker, uncle of Sitabi, Rameshwar and Ramsagar, brother of Laxaman (appellant) and Most. Yet the appellant had not named them in the application for probate as persons interested in the property. Most. Saro had also brought a criminal case under sections 380 and 325 of the Indian Penal Code against Shanker, uncle of Sitabi, Rameshwar and Ramsagar, brother of Laxaman (appellant) and Most. Badamo his mother for assaulting her and removing documents from her house. They were all convicted by the Trial Court in the year 1960 but later acquitted by the appellate court. On these facts they asserted that the will in question was brought in existence with the ulterior motive to deprive the poor women of the interests and rights in the properties of their husband and father. After the lodgment of the probate case by the appellant, he filed a petition of stay of further proceedings in Title Suit No. 25 of 1962, which made their design known to them. 3. During the course of evidence the appellant came out with the case that Bataso was not the daughter of Bhajan Mandal; Most. Saro was first married to one Misri Sao of village Muskipur; Bataso is Saros daughter from that wedlock; Bhajan Mandal lost his first wife and thereafter he took Saro as his second wife; and Bataso came to Bhajans house with her mother. This was returned by Saro and Bataso by the evidence that Saro was never married with Misri Sao of Muskipur; she had no issue from the said alleged husband; she was married only once and that with Bhajan Mandal and Bataso is her daughter from Bhajan Mandal. 4. Learned Additional District Judge framed 5 issues :- (i) Is the petition for probate maintainable? (ii) Whether the petitioner Lachhuman Mandal was adopted by Bhajan Mandal? (iii) Whether objector No. 2, Bataso Devi is the daughter of Bhajan Mandal? (iv) Whether the alleged will is genuine and if it was validly executed by Bhajan Mandal in the free exercise of his will and in fit state of mind? (v) Is the petitioner entitled to probate of the alleged will? (iii) Whether objector No. 2, Bataso Devi is the daughter of Bhajan Mandal? (iv) Whether the alleged will is genuine and if it was validly executed by Bhajan Mandal in the free exercise of his will and in fit state of mind? (v) Is the petitioner entitled to probate of the alleged will? After considering the evidence and the contentions of the parties, learned Additional District Judge recorded his findings on the first issue in favour of the appellant but on all the other issues he found in favour of the respondents and dismissed the suit holding that the appellant has not been able to prove satisfactorily that the will was genuine and it was validly executed by Bhajan Mandal. 5 Although as the first appellate court findings recorded by the learned 1st Additional District Judge, Bhagalpur could be gone into and the evidence adduced by the parties reassessed before deciding whether the findings could be affirmed or not, Mr. R. S. Chatterjee, learned counsel for the appellant has attacked the judgment of the Additional District Judge, mainly on the question of law. He has submitted that the appellant has proved the execution of the will by examining the scribe and the attesting witnesses and several other witnesses who were present when the will was executed and thus proved the will of the testator even though the will in question is not a registered document. The appellant thus discharged his obligation that the will was validly propounded. Existence of the widow or the daughter of Bhajan Mandal should not have been treated as a circumstance to reject the will duly proved in accordance with law. Mr. Chatterjee has submitted that the mode of proving a will does not differ from that of proving of any other document except as to the special requirement of attestation prescribed, in the case of a will, by section 68 of the Succession Act. The onus of proving the will is on the propounder and by proving the testamentary capacity and the signature of the testator as required by law, he discharges the onus. 6. Mr. Chatterjees submissions, however, do not give out the complete requirement of evidence by the propounder of the will. The onus of proving the will is on the propounder and by proving the testamentary capacity and the signature of the testator as required by law, he discharges the onus. 6. Mr. Chatterjees submissions, however, do not give out the complete requirement of evidence by the propounder of the will. The principles which should be applied have been stated in the case of H. Venkatachala lyengar V/s. B. N. Thimmajamma AIR 1959 SC 443 , Rani Purnima Debi V/s. Kumar Khagendra Narayan Deb AIR 1962 SC 567 and in the case of Shashi Kumar Banerjee V/s. Subodh Kumar Banerjee, AIR 1964 SC 529 . After stating the law as to the special requirement of attestation prescribed in case of a will by section 63 of the Indian Succession Act and the onus of proving the will, it has been pointed out in Shashi Kumar Banerjees case : "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. Where caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the 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 signature of the testator, the condition of the testators 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 testators mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes 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 himself takes 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. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested." Law laid down in the case of Shashi Kumar has been reiterated in the case of Pushpavati V/s. Chandraja Kadamba, AIR 1972 SC 2492 and it has been further indicated that: "Where the signature of the testator is challenged as a forged signature and the will does not come from the custody of a public authority or a family solicitor the fact that the dispositions made in the will were unnatural, improbable or unfair would undoubtedly create some doubt about the will, especially, when the document is unregistered and comes from the custody of a person who is the major beneficiary under the will." In the instant case the will has come from the custody of the propounder and it is unregistered. The entire estate of the deceased testator is devised to the propounder denying even to the widow of the testator any interest in the testators properties. The creation of the will is preceded by a so-called adoption of the propounder by the testator. The scribe who is said to have drawn the will is the scribe of the so-called deed of adoption. Attesting witnesses in the deed of adoption as also the will are the same. Although signature of the testator has been challenged as a forged signature, no other document has been produced except the disputed signatures of the testator from which the court could compare the testators signature with the disputed signatures. Propounder, in my view, in such circumstances is required to prove not only the testamentary capacity and the signature of the testator as required by law but is also required to remove the suspicious circumstances before the will is given effect to. 7. P. W. 7 is the scribe of the will. Propounder, in my view, in such circumstances is required to prove not only the testamentary capacity and the signature of the testator as required by law but is also required to remove the suspicious circumstances before the will is given effect to. 7. P. W. 7 is the scribe of the will. He has deposed that he knew Bhajan Mandal, Lakshman Mandal, Saro and Bataso; Bhajan Mandal had no issue; he adopted Lakshman as his son; after two years of adoption he executed a will in favour of Lakshman which he scribed and Bhajan Mandal put his thumb impression on the will so created. He also stated that the attesting witnesses put their thumb impression in his presence and Bhajan was quite hale and hearty when he executed the will and died two years later. In the cross-examination he has stated that he scribed the deed of adoption in Magh 1361. This witness was a Pleaders clerk from 1955 to 1960 in Banka Court. He has stated that Bataso is the daughter of Saro but not of Bhajan Mandal and has said that Saro was the second wife of Bhajan Mandal. P. Ws. 2 and 4 are the attesting witnesses of the will. P. W. 2 has identified his signature on the will but P. W. 4 has stated that he cannot identify his own signature as he has been suffering from cataract. Both of them, however, have claimed to know Bhajan Mandal and Lakshman Mandal and have said that they were present at the time of adoption. P. Ws. 1, 3, 5, 6, 8, 9, 10 and 14 are other witnesses who have spoken both about the adoption and execution of the will. It is somewhat unusual that those who were present at the time of the alleged adoption were also, according to these witnesses, present at the time of the execution of the will. Ext. 1 is the will which states as follows : The deed of adoption which is Ext. 5 reads as follows : I have extracted the contents of the alleged will (Ext. 1) and the so-called deed of adoption to notice in particular certain statements made therein. It is stated in Ext. 5 (allegedly) by Bhajan Mandal that he has got no child and wife of Sitabi Mandal gave Lakshman Mandal son of Sitabi Mandal in adoption to him. 1) and the so-called deed of adoption to notice in particular certain statements made therein. It is stated in Ext. 5 (allegedly) by Bhajan Mandal that he has got no child and wife of Sitabi Mandal gave Lakshman Mandal son of Sitabi Mandal in adoption to him. It is reiterated in the alleged will that Bhajan Mandal had no child and that he had taken Lakshman in adoption. Suresh Chandra Singh (P. W. 7) is the scribe of both the documents. 8. Although Mr. Chatterjee has not questioned before me the finding of the learned 1st Additional District Judge that Bataso is the daughter of Bhajan Mandal and Most. Saro. Yet for convenience, I may indicate that there cannot be any doubt that Bataso is the daughter of Bhajan Mandal and Saro. Lakshman Mandal has, in his deposition, said that Bataso is not the daughter of Bhajan Mandal; Saro was first married to one Misri Sao of village Muskipur and Bataso is the daughter of Misri and Saro; Bhajan lost his first wife and thereafter he married Saro; and Bataso came with her mother to live with Bhajan Mandal. Caveators have, however maintained that neither Bhajan Mandal nor Saro was ever married twice; Saro was never married with Misri Sao of Muskipur; she was married only once with Bhajan Mandal and Bataso is her daughter from Bhajan Mandal. Caveators have examined several witnesses, in all 21 in number, and each of them has deposed on the question of relationship of Bataso and Bhajan Mandal and said that she is the daughter of Bhajan Mandal. I am not going to their respective individual depositions and the question of competency to speak as to the relationship because Mr. Chatterjee has not questioned the finding of the learned District Judge on the relationship. Some of the witnesses deposing on behalf of the caveators are relations and each one of them has spoken about the special means of knowledge. They have also filed documents to show that Bataso was described in the official documents of the Danara Gram Panchayat, revenue records and several proceedings in the court as the daughter of Bhajan Mandal. On the other hand the propounder has examined 15 witnesses. Of them, P. Ws. 6 and 11 are formal witnesses, P. Ws. They have also filed documents to show that Bataso was described in the official documents of the Danara Gram Panchayat, revenue records and several proceedings in the court as the daughter of Bhajan Mandal. On the other hand the propounder has examined 15 witnesses. Of them, P. Ws. 6 and 11 are formal witnesses, P. Ws. 1, 2, 3, 5, 8, 10 and 14 are residents of Maharpur and P. W. 7 is the scribe of the alleged will and P. W. 13 is a resident of village Muskipur who have, of course, stated in favour of the propounder that Bhajan Mandal had no child. Saro was his second wife who came husband, to Bhajan Mandals house but they have disclosed no where their special means of knowledge and their evidence even on such an important issue is most casual. While the caveators have been able to prove that Bataso is the daughter of Bhajan Mandal the propounder has miserably failed in proving that Bhajan Mandal had no issue. The statement that Bhajan Mandal had no issue in the alleged will as also the alleged deed of adoption is incorrect. There has been some controversy about the deposition of the propounder (P. W. 12). According to the original deposition he has stated that Bataso is daughter of Bhajan Mandal. According to the propounder his statement was wrongly recorded by the Presiding Officer of the court. But this controversy aside, in my opinion, the evidence on the question of relationship of Bataso with Bhajan Mandal is conclusive in favour of the caveators and against the propounder. 9. Story of adoption is rather curious. There cannot be a valid adoption unless the child is transferred from one family to another. There is no evidence to know which law of adoption has to be applied. There is no evidence that the ceremony was performed in accordance with the Sastric commands and religious rituals. Every school of Hindu law accept that the natural parent should handover the child to the adoptive parent who should receive him. The evidence to support the adoption should be such that it is free from all suspicions. P. Ws. 1 to 5, 7 to 10 and 14 are the witnesses who have deposed about the alleged adoption. The alleged deed of adoption is Ext. 5 allegedly scribed by P.W. 7. The evidence to support the adoption should be such that it is free from all suspicions. P. Ws. 1 to 5, 7 to 10 and 14 are the witnesses who have deposed about the alleged adoption. The alleged deed of adoption is Ext. 5 allegedly scribed by P.W. 7. P.W. 4, who is alleged to be one of the attesting witness in the deed of adoption, has said in cross examination that no document of adoption was prepared. Except P.W. 1 who has said that Lakshmans mother gave him in adoption to Bhajan Mandal in his presence, rest of the P. Ws. have only said that Bhajan adopted Lakshman. Even P.W. 1 has not said about the giving and taking of Lakshman in adoption. Even P.W. 12, Lakshman Mandal has only said that Bhajan Mandal adopted him and his mother gave him in adoption. In his cross-examination he has admitted that he had no Hosh at the time of adoption. P.W. 1 in his cross-examination has said that he could not say in which year the adoption had taken place. On the other hand besides the oral evidence of P.Ws. 1 to 7, 10, 11, 13, 14, 16, 17 and 18 and that of Most. Saro (P.W. 20) and Bataso (P.W. 21) there are several documents filed which show that Lakshman Mandal has been described as the son of his natural father Sitabi Mandal. In the Voters list of Legislative Assembly of Banka Constituency, in which the name of Lakshman Mandal is included as the voter in the list prepared in the year 1966, he has been described as the son of Sitabi Mandal (Exts. F/2 and F/3). Similarly in the Voters list of the Gram Panchayat he has been described as the son of his natural father Sitabi Mandal (Ext. F). In the Pariwarik Pustika of the Gram Panchayat (Ext. E) also he has been described as the son of Sitabi Mandal. These documents read with the evidence of the witnesses of the caveators clearly show that there has been no adoption as claimed by the propounder and Ext. 5 has been manufactured to support statement in this regard in the alleged will (Ext. 1). There are several other suspicious circumstances. Propounder has been made the sole beneficiary of the bounty. These documents read with the evidence of the witnesses of the caveators clearly show that there has been no adoption as claimed by the propounder and Ext. 5 has been manufactured to support statement in this regard in the alleged will (Ext. 1). There are several other suspicious circumstances. Propounder has been made the sole beneficiary of the bounty. There is no provision made in the will either for the widow of the testator, namely, Saro or his daughter, Bataso. The will was allegedly executed in the year 1956 but the application for probate was made on 10-10-1963. Before that Saro had already filed a suit for partition in which notices were already served upon the defendants who are members of the propounders family. In the written statement filed in the suit they have not said that there has been any will executed by Bhajan Mandal in favour of Lakshman. Although the propounder has technically proved the will but has produced no evidence to dispel the charge levelled against him by the caveators that the alleged will contains forged thumb impression of the testator. Since there has been no document produced on behalf of the propounder from which thumb impression of the testator could be compared, caveators were handicapped and, therefore, could not bring any positive proof of the fact that the will is forged. 10. In view of the law laid down by the Supreme Court such suspicious circumstances are required to be dispelled by the propounder before the will is accepted as genuine and its execution is accepted as valid. I am satisfied that the appellant has failed to discharge the onus by not removing the suspicious circumstances as to the genuineness of the execution of the will by the testator. 11. In the result that appeal is dismissed with costs. Hearing fee Rs. 250/-.