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1996 DIGILAW 255 (GAU)

Bishnu Maya v. Kishori Devi

1996-12-04

J.N.SARMA

body1996
First Appeal No.85 of 1992 has been filed against the judgment dated 9.9.92 passed by the Additional District Judge, Kamrup, Guwahati in Probate Title Suit No.4 of 1990. By the impugned judgment the suit was dismissed on contest with costs. 2. First Appeal No. 143 of 1992 has been filed against the judgment dated 9.9.92 passed by the same Court in Misc (J) Case No.276 of 1990 rejecting the prayer of the appellant to revoke the Succession Certificate granted earlier by the Court. 3. The brief facts are as follows : One Kharga Bahadur was an employee of Assam State Electricity Board. He was unmarried. He was suffering from TB and was ill for a long time. During his illness he was looked after by one Smti Bishnu, wife of a co-employee of Kharga Bahadur ultimately, Kharga Bahadur died at the place of Smti Bishnu and his funeral rites were performed by Smti Bishnu who was accepted as Dharma sister by Kharga Bahadur. Some monetary benefit was available for his service in ASEB and that amount was claimed by his relation sister, who was aged about 60 years and she obtained a Succession Certificate for this amount. Having come to know of this Succession Certificate case, the present appellant Smti Bishnu filed an application for revokation and filed another application for Probate with regard to a Will executed by Kharga Bahadur giving her all the property (movable) only for tile service rendered by her during his illness. That application for revokation of the Succession Certificate was registered as Misc (J) Case No.276 of 1988 before the learned Additional District Judge and the Probate Case was registered as PTS No. 11 of 1990. In that Probate Case the real sister of the deceased Kharga Bahadur filed an objection claiming that the Will is forged and fabricated. The total amount involved is only Rs.38,971.43. The Will in question was a registered document. 4. Before the trial Court following witnesses were examined. PW 1 Smti. Bishnu Narayan (the Probator of the Will). PW 2, Surjya Kalita, a petition writer who is an attesting witness. PW 3 Veer Bahadur, husband of Smti Bishnu Narayan. PW 4, Ganga Ram Goswami, the petition writer and scribe of the Will. DW1 Smti Kishori Devi, the objector. The Will was exhibited as Ext 1. PW 1 Smti. Bishnu Narayan (the Probator of the Will). PW 2, Surjya Kalita, a petition writer who is an attesting witness. PW 3 Veer Bahadur, husband of Smti Bishnu Narayan. PW 4, Ganga Ram Goswami, the petition writer and scribe of the Will. DW1 Smti Kishori Devi, the objector. The Will was exhibited as Ext 1. The only ground on which the trial Court rejected the prayer for probate was that by the Will the real sister was deprived and the property was given to a stranger. But the trial Court failed to consider the relationship between the real sister and the brother. The real sister in her deposition has stated, inter alia, as follows : 'I do not know whether he was suffering from TB. I do not know that he died. I do not know when he died." So this was the relation between the real sister and the deceased brother. The brother was suffering from TB and was living with another lady being nursed by her and this real sister turned her back to the ailing brother and after the death of the ailing brother tried to snatch the money. From the evidence it appears mat for a period of 8 years during his illness this lady nursed and gave shelter to Kharga Bahadur it was for his love and affection that a Will was executed in favour of Smti Bishnu. This cannot be suspicious. As because the real sister would be deprived on that ground alone, the learned Additional District Judge dismissed the suit rejecting the prayer of the appellant. That is not the law. In AIR 1995 SC 1684 (R. Mukharjee vs. P. Banarjee) the Supreme Court held that deprivation of the claim of the natural heirs alone cannot raise any suspicion, because whole idea behind execution of Will is to interfere with the normal line of succession. 5. The Supreme Court in that particular case further pointed out that if the Will is registered and if the Sub Registrar issues certificate and that the contents of the Will is read over, that itself is sufficient and to show the voluntary character of the document. 5. The Supreme Court in that particular case further pointed out that if the Will is registered and if the Sub Registrar issues certificate and that the contents of the Will is read over, that itself is sufficient and to show the voluntary character of the document. In AIR 1995 SC 2086 (VS Mane vs. RV Ganeshkar) in para 15 has pointed out that a Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Further when fraud is pleaded the burden is on the party who taken up that plea. 6. In this particular cases, it is seen that as required by section 65 of the Indian Succession Act, the Will was duly proved by the Scribe as well as by the attesting witness. This Will is still in force. The Supreme Court in another case reported in AIR 1995 SC 1852 (PPK Gopalan Nambiar vs. PPK Balakrishnan Nambiar) pointed out that if a Will is registered and endorsed duly by the Registrar, then it will be ordinarily a valid Will. This being the position, this appeal is allowed and the probate of the Will Exhibit 1 is granted subject to the realisation of the fees. In view of the decision in the probate matter the application for revocation of he Succession Certificate is also to be allowed. Accordingly Misc Appeal (First) No. 143 of 1992 shall be allowed and the Succession Certificate granted in favour of Kishori Devi stand cancelled. 7. I have heard Shri PS Deka, learned Advocate for the appellant. None A appears for the respondent.