KRUSHNA @ KRUSHNA CHANDRA SAHOO v. BHAGABAN SAHOO — 1999 DIGILAW 396 (ORI)

P. K. MISRA, J. ( 1 ) -THESE two appeals are directed against the same judgment having been filed by defendants 6 and 2 respectively in a probate proceeding against the decision of the Trial Court granting probate. ( 2 ) IT is not necessary to extract the entire genealogy. Bhagaban Sahoo, the legatee, is the natural brother of Harekrushna, the testator, but he has been adopted by Jayakrushna, the first cousin of his natural father balakrushna. Similarly, Indrarnani, the natural brother of deceased Harekrushna has been adopted by Banchhanidhi, another first cousin of Balakrushna: Defendant No. 1 is the son, defendants 3 and 4 are the daughters and defendant No. 5 is the widow of late Indrarnani. Defendant No. 1 having expired during pendency of the proceeding, his legal representatives were impleaded as defendants I/a to 1/d. Defendant No. 2 was the natural born son of Indrarnani, but he has been adopted to another branch. Defendant No. 6, Krushna (the appellant in F. A. No. 64/96) being the grand son of Lokanath represents another branch. Golapi and Haramani (defendants 7 and 8 respectively) are the two daughters of balakrushna. ( 3 ) PROBATE was sought for in respect of the one-fourth interest of Harekrushna in schedule-B property. It is alleged in the application that deceased Harekrushna was suffering from leprosy and Bhagaban was looking after him. Subsequently, Harekrushna was kept in Leprosy Ashram and he died there as a bachelor on 6. 3. 1962. It is further claimed that the deceased had executed an unregistered Will in favour of Bhagaban on 10-4-1960. It is claimed that in the year 1966 a panel of Arbitrator had been appointed to partition the property of all the co-sharers, but the matter could not be finalised and ultimately Bhagaban was forced to file T. S. No. 148 of 1982 claiming partition. Since the Will had not been probated, bhagaban had to file the present probate proceeding which has been numbered as O. S. No. 40/87 in the Court of the Subordinate Judge, first Court, Cuttack. ( 4 ) DEFENDANTS 1/a to 1/d and 3 to 5 filed a joint written statement. Defendant No. 2 filed a separate written statement. Defendants 6 and 7 filed a joint written statement. In these written statements, the genuineness of the Will was challenged and it was claimed that the Will had been subsequently manufactured. ( 4 ) DEFENDANTS 1/a to 1/d and 3 to 5 filed a joint written statement. Defendant No. 2 filed a separate written statement. Defendants 6 and 7 filed a joint written statement. In these written statements, the genuineness of the Will was challenged and it was claimed that the Will had been subsequently manufactured. In the written statement of defendant No. 8 however, the stand taken by the plaintiff was supported. The other defendants did not contest in any manner. Witnesses were examined on behalf of the plaintiff and defendant No. 2. However, defendant No. 6 was also examined as a wit: ness presumably on his own behalf. ( 5 ) ON the pleadings of the parties, the following issues were framed:1. Whether the deceased-testator harekrushna Sahu died on 6-3-1962 or prior to 10-4-1960 ? 2. Whether the alleged Will dated 10-4-1960 is genuine or is a forged and fabricated document ? 3. Whether Harekrushna Sahu was in sound and disposing state of mind on the date of the Will dated 10-4-1960 and executed the Will out of his free Will and volition ? 4. Whether there was due execution and attestation of the Will ? 5. To what relief if any, the plaintiff is entitled ? ( 6 ) WHETHER Harekrushna was minor on the date of the Will ? under Issue No. 1, the Trial Court held that harekrushna had died on 6-3-1962 as claimed by the plaintiff and not on 8-2-1960, prior to the date of the alleged Will, as claimed by the contesting defendants. Under Issue No. 6, it was held that deceased Harekrushna was not a minor on the date of the alleged Will. While taking up Issues Nos. 2, 3 and 4 together, it was held that the Will dated 10-4-1960 was not a fabricated document and it had been duly executed by Harekrushna in a sound and disposing state of mind. In view of such finding, probate was granted in respect of the Will (Ext. 1 ). 6. Learned Counsels appearing on behalf of the two appellants in the two separate appeals have advanced similar arguments and the Counsel appearing for the appellant in F. A no. 64/96 has practically adopted the argument advanced on behalf of the appellant in fa. No. 183/96. 1 ). 6. Learned Counsels appearing on behalf of the two appellants in the two separate appeals have advanced similar arguments and the Counsel appearing for the appellant in F. A no. 64/96 has practically adopted the argument advanced on behalf of the appellant in fa. No. 183/96. The learned Counsels appearing for the appellants have vehemently challenged the legality of all the findings, particularly the findings under Issues Nos. 2,3 and 4. In paragraph-3 of the petition for probate, it had been stated :"that, the Will annexed to the petition was duly executed by the said harekrushna Sahu on 10-4-1960 out of his free Will in the presence of the witnesses Sri Krushna Sahu and Sri krushna Chandra Sahu and the said witnesses attested the said Will in presence of the executant. As a matter of fact the executant being a Leprosy patient at the time of execution he was unable to put his signature and the scribe attested the thumb impression (Santak)of the said Harekrushna Sahu in presence of the witnesses as per his direction. "from the aforesaid averments, it is apparent that 'krushna Sahu' and 'krushna Chandra sahu' were the witnesses and it further appears as if the scribe attested the thumb impression of Harekrushna Sahu. The scribe of the Will has been examined as P. W. 3. He has stated that Harekrushna Sahu being a leper was unable to put his signature and the scribe himself "put the identification and signed on his behalf". Similar evidence is adduced through other witnesses, such as P. W. s. 1 and 2 and p. W. 4, the plaintiff himself. Thus, there appears to be a discrepancy between the evidence adduced on the one hand and the averments in rhe petition on the other. Learned Counsel for the plaintiff had contended that by mistake, the expression "thumb impression" had been incorporated in the petition for probate, but the real intention was that the executant being unable to put his signature the mark (Santak) had been put on his behalf by the scribe. Though an application for amendment of the petition had been filed at the stage of hearing of argument, such application had been rejected by the Trial Court and subsequently the said order of rejection was confirmed by the High Court in Civil Revision No. 138 of 1995, disposed of on 4-12-1995. Though an application for amendment of the petition had been filed at the stage of hearing of argument, such application had been rejected by the Trial Court and subsequently the said order of rejection was confirmed by the High Court in Civil Revision No. 138 of 1995, disposed of on 4-12-1995. The learned counsel appearing for the plaintiff-respondent in this Court submitted that the plaintiff had also utilised the expression "santak" which would mean that mark of identification had been made on behalf of the deceased. Such explanation could have been considered probable if the other evidence in respect of the execution of the Will would have been unimpeachable. However, discussion of the evidence on record in the forthcoming paragraphs creates sufficient doubt regarding the genuineness of the Will even on other grounds. ( 7 ) AS per the averments contained in paragraph-3 of the petition. . "krushna" and"krushna Chandra" were the witnesses. In the petition, there is no averment that apart from these witnesses and the scribe, any other witness was present. However, the plaintiff has examined one Bhagaban Sahu (P. W. 1) as one of the attesting witnesses. This witness has stated : ". . . . . . Myself, Krushna Chandra Sahu and Dukhishyarn Sahu signed the Will as witnesses. Krushna Chandra Sahu and Dukhishyarn Sahu are dead. . . . . . "it is to be noted that this witness had not stated anything about "krushna Sahu" being one of the attesting witnesses. On the other hand, the plaintiff has examined one 'kusa Sahu' as p. W. 2 who claims to be an attesting witness. (It can be assumed that "krushna Sahu" and 'kusa Sahu' are the same person ). He has stated :". . . DUKHISHYARNSAHU, myself, Bhagaban sahu and Krushna Chandra Sahu were attesting witnesses to the Will. . . . . "similar statement is made by the scribe (P. W. 3 ). Thus, the averment in the petition is definitely contradicted by the evidence of the witnesses and similarly, the evidence of P. W. 1 contradicts the evidence of P. Ws. 2 and 3 regarding the persons who witnesses the Will. In the petition, there is no mention of Bhagaban Sahu and Dukhishyarn Sahu being the witnesses to the Will. In the evidence of P. W. 1, there is no reference to 'kusa Sahu' as a witness to the will. 2 and 3 regarding the persons who witnesses the Will. In the petition, there is no mention of Bhagaban Sahu and Dukhishyarn Sahu being the witnesses to the Will. In the evidence of P. W. 1, there is no reference to 'kusa Sahu' as a witness to the will. All the witnesses claim that other members of the family were present at the time of execution of the Will. In that case, normally one would have expected that some of the family members would have attested the Will. In this context it is seen that while P. W. 2 claims that the family members refused to be the attesting witnesses, the other witnesses state that the family members were not asked to be attesting witness. ( 8 ) THE aforesaid inherent contradictions assume more significance in view of the fact that there is no other material on record to indicate that the plaintiff was claiming on the basis of an unregistered Will immediately after the death of the testator. From the materials on record, it appears that though the Will was allegedly executed in 1960 and the death took place in the year 1962, for more than twenty years, the Will did not see the light of the day. It is, of course claimed that Arbitrators had been appointed to resolve the dispute among the family members. The materials on record are not sufficient to establish that at any time the plaintiff had claimed before, the Arbitrators on the basis of the Will. The plaintiff has not examined any of the Arbitrators to show that, in fact, the so-called Will had been produced before the Arbitrators. The uncorroborated testimony of the plaintiff himself that the Will was produced before the Arbitrators does not get any support from any other intrinsic circumstance, nor any other evidence.-On the other hand, it appears that a long-standing dispute among the parties had come to the High Court in Civil Revision No. 265/64 and the final order in the Civil Revision has been proved as Ext. B. In the judgment of the said Civil Revision (disposed of on 22nd June, 1965) it has been recited :"2. . . . . . . IN T. S. No. 5 of 1956, a decree was passed that defendants-Nos. 1 to 5 and 11 are jointly entitled to the rent of the suit house. Defendants Nos. B. In the judgment of the said Civil Revision (disposed of on 22nd June, 1965) it has been recited :"2. . . . . . . IN T. S. No. 5 of 1956, a decree was passed that defendants-Nos. 1 to 5 and 11 are jointly entitled to the rent of the suit house. Defendants Nos. 1 to 5 and 11 of that suit were Bhagaban Sahu, radhamani Bewa, Krishna Chandra sahu. Harekrushna Sahu, Indramani sahu and Shyamsundar Sahu. Of these persons, Harekrushna Sahu is dead and it is conceded that the joint right of recovery of rent vests in the other five persons. . . . . . "from the above, it is apparent that at that time no claim had been putforth on behalf of the present plaintiff that he was the sole inheritor of the property of the deceased Harekrushna sahu. ( 9 ) SIMILARLY, from the certified copy of the order-sheet in T. S. No. 2/4 of 1951/50 (1) (Ext. 9), it appears that the name of Harekrushna sahu had been deleted. However, no attempt has been made by the plaintiff to prove any application to indicate that the present plaintiff was claiming on the basis of the Will executed by Harekrushna Sahu. The apparent silence of the present plaintiff for a period of more than two decades coupled with other unsatisfactory features already noticed, creates enough suspicion regarding the genuineness of the Will. It is, of course, true that for making an application for probate of a Will, there is no poeriod of limitation. However, in the present case, there are certain occasions when in normal course it was expected that there should have been a reference to the unregistered Will of the deceased. ( 10 ) APART from the aforesaid unsatisfactory evidence, it also appears that the pro-pounder himself was taking leading role at the. time of alleged execution of the Will. It is, of course, true that mere presence of the pro-pounder at the time of execution of the Will may not create suspicion regarding the genuineness of the Will. However, where the pro-pounder takes leading part in the Will, suspicious features are required to be explained. ( 11 ) EVEN regarding the date of death of the deceased Harekrushna, there appears to be some doubt. The Trial Court has relied upon ext. However, where the pro-pounder takes leading part in the Will, suspicious features are required to be explained. ( 11 ) EVEN regarding the date of death of the deceased Harekrushna, there appears to be some doubt. The Trial Court has relied upon ext. 5, the Death Certificate granted by the leprosy Hospital, but it is apparent that such death Certificate was prepared and obtained after the filing of the suit. The date given in ext. 5, the Death Certificate is contradicted by the date in Ext. A, Death Certificate, in respect of the very same person granted by the municipality. The Trial Court did not place any reliance upon Ext. A on the ground that the said certificate has been prepared long after the death after the litigation had started. How-ever, similar criticism is also available against ext: 11, yet another Death Certificate granted by the Municipality. . It is apparent that in the civil Revision as well as in the earlier suit, application had been filed for expunging the name of the deceased Harekrushna Sahu. If this application would have been produced, the date of death could have been ascertained. ( 12 ) IN the face of such contradictory documents, it is difficult to come to a conclusion regarding the actual date of death of harekrushna Sahu. Since the defendants were claiming that Harekrushna Sahu died prior to the alleged date of execution of the Will, it was for them to prove such assertion and in the absence of unimpeachable evidence from their side, it is difficult to come to conclusion that, in fact, the deceased Harekrushna Sahu had died prior to the alleged date of the execution of the Will. For the aforesaid reasons, both the appeals are allowed and the judgment of the Trial court is set aside. There will be no order as to costs. Appeals allowed.