Nepal Sahi v. Rekha Kaur — 1998 DIGILAW 274 (PAT)

Judgment S.K.Chattopadhyaya, J. 1. The appellants have impugned the judgment of the judicial Commissioner, Ranchi dated 31st of January, 1979 by reason of which prayer for grant of letters of Administration in favour of appellants has been rejected. 2. The facts are : Both these appellants are the brothers and sons of Prithi Sahi. One Anmol Sahi died on 6.7.1974 leaving behind two daughters, namely, Chandrawati Devi and Rekha Kaur. Prithi Sahi is the nephew of Anmol Sahi whereas Bamal Sahi is the brother of said Anmol. Thus, the appellants are grand sons of Anmol being the sons and nephews of Prithi Sahi. By reason of a will executed on 2.4.1972 (Ext. 2), the testator, Anmol bequeathed his some of the properties in favour of the appellants. The prayer of the appellants were resisted by two daughters of the testator on the ground that the said will was not executed voluntarily, rather, it was obtained by the appellants by influence. Their further case was that due to old age the testator lost his mental balance and taking advantages of its the appellants got the will executed on some false pretext. 3. On behalf of the appellants three witnesses were examined whereas the objectors examined six DWs. before the learned trial Court. A.W. 1 is Lakhan Bhagat who is the witness on the execution of the will and has identified is signature on the will. The scribe of the will is Niranjan Sahu, AW 2 and his signature is Ext. 1/1. He has proved the will so executed by the testator, Anmol, A.W 1, Ram Chandra Sahi is one of the appellants. According to him the testator without any influence, force or coercion, out of his own will executed the said document. 4. The learned trial Court while observing that the execution of the will has been admitted, has opined that the main point for consideration would be as to whether the will had been executed knowingly with healthy and clear mind by the testator. While dealing with this point it appears that the trial Court was of the opinion that as because some other documents were executed by Anmol, subsequently to the execution of the will, some suspicion arose regarding the circumstances under which the will in question was executed. While dealing with this point it appears that the trial Court was of the opinion that as because some other documents were executed by Anmol, subsequently to the execution of the will, some suspicion arose regarding the circumstances under which the will in question was executed. Having dealt with the only documents on record, the Court below has come to a conclusion that the will was not executed knowingly and, as such, reused the prayer of the appellants. 5. Mrs. Roy learned Counsel appearing on behalf of the appellants has contended that the learned Court below has erred in law in not considering the oral testimony on record and merely on consideration of some documents has come to a finding that the testator did not execute the will out of his own volition. 6. In spite of appearance, nobody has appeared on behalf of the respondents to contest this appeal. Before dealing with the documentary evidence on record it will be useful to consider the oral evidence adduced on behalf of the parties. 7. Ram Lakhan Bhagat deposing as AW 1 has stated that Anmol executed the will in his presence. Due to old age his hands were shaky and, as such, he put his L.T.I. in presence of the witnesses. He is specific on his statement that the testator was physically, healthy and mentally sound at the time of execution of the will. According to him, at the time of execution of the will, Anmol was about 85 years of age. His eye sight was not poor and he was not mentally disabled. AW 2 is Niranjan Sahi who is a scribe of the will. He has identified his writings and signatures over the will. According to him, on being asked by Anmol, he scribed the will. He has proved the L.T.I. of the testator on the will which has been marked as Ext. 3. He has also deposed that due to old age his handwritings became shaky and, as such, he put his L.T.I. In his cross examination this witness is also specific on his assertion that at the time of execution of the will the eye sight of the testator was all right. One of the beneficiaries of the will is AW 3, Ram Chandra Sahi who has deposed that the testator executed the will on his own without being influenced by anybody. One of the beneficiaries of the will is AW 3, Ram Chandra Sahi who has deposed that the testator executed the will on his own without being influenced by anybody. During the registration of the will this witness was not present and this witness has denied the suggestion that by making false representation he got the will executed. 8. From the aforesaid deposition of AWs. it appears that the testator executed the will on is own volition without being influenced by anybody and though he was aged about 85 years, he was hale and hearty in all respects. 9. DW 1, Mahabir Prasad is a clerk in the Registration office who has stated that the duplicate of the original has been mentioned in Book No. III, volume No. III of the year, 1973. He has proved the handwriting of Ramdeo Oraon who has copied down the will in the register. This has been exhibited as Ext. A. DW 2, Dharti Sahi is the uncle of the appellants. He has deposed that at the time of death the age of the testator was 90 to 95 years and and at that time he was having poor eye sight and had become weak in health. According to him, on being asked by Prithi Sahi, the will was executed by Anmol. However, he has admitted that the testator was brought to Ranchi for getting the will registered. He has also proved the handwriting of Niranjan Sahi, the scribe, Ext. 2. In cross examination he has deposed that though he had not seen the horoscope of Anmol, but he could know his age from his own mouth. He has denied the suggestion that Anmol had gone to Ranchi for doing pairvi in his civil case two years prior to his death. This witness did not go to Ranchi at the time of registration. According to him, Anmol was not suffering from any ailment. He has admitted that he deposed against the appellants in a proceeding under Sec. 145 Cr. P.C. D.W. 3, Munni Singh is a relative of Bandhan, husband of Rekha Kaur. According to him at the time of death Anmol became weak physically and mentally. According to him, Anmol was not suffering from any ailment. He has admitted that he deposed against the appellants in a proceeding under Sec. 145 Cr. P.C. D.W. 3, Munni Singh is a relative of Bandhan, husband of Rekha Kaur. According to him at the time of death Anmol became weak physically and mentally. Though in the evidence he has deposed that he used to visit the residence of Anmol, but during crosst examination he has stated that after death of Anmol he did not go to his house during the last rituals and rites. He also did not go to his house when Anmol died. DW 4 is Sheikh Karim who has merely stated that Anmol became mentally and physically weak and he developed poor eye sight. This witness has admitted that he has deposed in several other cases and in a proceeding under Sec. 145 Cr. P. he appeared as a witness on behalf of Rekha Kaur. DW 5 is Maghi Singh who is none else but the brother of Bandhan i.e, the brother-in-law (Dewar) of Rekha. Besides deposing about the old age and physical and mental weakness of the testator, he has deposed that on being asked by Prithi Sahi, the said will was executed. This witness also did not visit the place of Anmol even on his death but says that Anmol was having poor eye sight. He has denied the suggestion that the age of Anmol was 90 years. The most important witness on behalf of the defendants is DW 6, Bandhan Sahi who is none ese but the husband of one of the objectors, Rekha Kaur. He has come to depose on power of attorney given by Rekha and Chandrawati to take all legal steps on their behalf. The said document is exhibited as Ext. D. Except stating that Anmol died at the age of 90 years, this witness in his evidence has no where stated that the testator Anmol was having any ailment and he was weak either mentally or physically. Moreover, in his cross examination he has categorically stated that at the time of Anmols death the along with his wife was living with Anmol in his residence. Both of them were living with Anmol for 32 years and are still living there. They came to know about the existence of the will after the death of Anmol. 10. Moreover, in his cross examination he has categorically stated that at the time of Anmols death the along with his wife was living with Anmol in his residence. Both of them were living with Anmol for 32 years and are still living there. They came to know about the existence of the will after the death of Anmol. 10. From the scrutiny of the evidence on record it is clear that the testator, Anmol was too weak either mentally or physically to be influenced by any one for giving the L.T.I. on a document. This fact gets support from the circumstances that even after execution of the will Anmol executed two other sale deeds which are on record. The learned Court below, in my opinion, has failed to appreciate that through the will the entire property of Anmol was not alienated to the appellants. He kept some properties even after execution of the will and when he found that for his old age some cash amount was required, he executed two separate sale-deeds in favour of the appellants. Mere execution of these two separate sale-deeds in favour of the appellants, in my opinion, cannot be a ground for raising eye brow on the existence of the will. Similarly, learned Court below has failed to consider that Ext. A dated 1.9.1973, was a Co-called will said to have been executed by Anmol in favour of Prithi Sahi, Dharti and these two appellants which does not bear even the L.T.I. of Anmol. The certified copy of Ext. A is on record from a perusal of which it appears that even this scribe of the said alleged will did not put his signature on the same. The learned Court below has given much importance to this Ext. in coming to a conclusion that if Ext. 2 was already executed, there was no necessity for Anmol to execute another will i.e., Ext. A. In my considered opinion, the learned Court below has completely misdirected itself in not concluding that this document was produced by the respondents just to raise a suspicion in the mind of the Court. As indicated above, Ext. 2 is dated 3.4.1972 but Ext. A is said to have been executed on 1.9.1973 and this subsequent document does not mention about the existence of earlier registered document, namely, Ext. 2. Moreover, this Ext. As indicated above, Ext. 2 is dated 3.4.1972 but Ext. A is said to have been executed on 1.9.1973 and this subsequent document does not mention about the existence of earlier registered document, namely, Ext. 2. Moreover, this Ext. A admittedly having not been probated, should not have been relied on by the Court below in coming to the conclusion that the very existence of these documents (Ext. A) raises suspicion about the genuineness of Ext. 2. 11. From the reasonings given by the Court below I am constrained to hold that he has surmised something which were not in existence. The Court has noticed that in the alleged will (Ext. A) even the plot Nos. were not given and only the Khata numbers have been mentioned but even then he has not commented on this Ext. A, rather, relied on this in giving his findings. 12. In the case of Rabindra Nath Mukherjee and Anr. V/s. Panchanan Banerjee and Ors. Their Lordships have discussed about suspicious circumstances and have observed that if there be other circumstances on record to show even voluntary character of the documents, the eye-brows should get dropped down. In para 6 their lordships have observed as follows- In so far 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 documents are interested lose significance. The documents at band 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. 13. In the instant case also there is no denial of the fact that Ext. 2 was a registered one and evidences on record go to show that Anmol himself had come down to Ranchi to register the same. Therefore, in my view, only because after execution of the will in question the testator executed some other sale-deeds, cannot be a ground to throw away the last desire of the testator. 14. 2 was a registered one and evidences on record go to show that Anmol himself had come down to Ranchi to register the same. Therefore, in my view, only because after execution of the will in question the testator executed some other sale-deeds, cannot be a ground to throw away the last desire of the testator. 14. Similarly, the Division Bench of the Calcutta High Court, in the case of Smt. Chinmoyee Saha V/s. Debendra Lal Saha and Ors. -- , has held that where due execution and attestation of will as well as sound disposing mind of testatrix is proved, the Court cannot refuse to grant probate even when the testatrix has made only some of his grand children as legatees to the exclusion of other near relations. 15. In the instant case from the recitals of the will it is apparent that Anmol had no son and after marriage of his two daughters, namely, Chandrawati and Rekha, he became helpless due to his old age and on this juncture he was being looked after by the appellants. Anmol was very optimistic that even after his death last rites may be performed by these two appellants. Having that hope in his mind when Anmol expressed his last desire through execution of the will, in my opinion, on flimsy ground of suspicion the said will cannot be thrown out. It appears that the learned Court below has erred in not scrutinising the evidence on record according to law and thus has faulted in coming to his finding and, as such, the judgment of the Court below cannot be sustained. 16. In the result, this appeal is allowed. The judgment dated 31.1.1979 is set aside and the application for grant of letters of administration in favour of the appellants is hereby allowed.