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2007 DIGILAW 1673 (PAT)

Vinod Kumar Chaudhary v. Garib Nath Chaudhary

2007-10-10

SYED MD.MAHFOOZ ALAM

body2007
Judgment Syed Md.Mahfooz Alam, J. 1. This appeal has been preferred against the judgment and order dated 3.9.1993 passed by Sri Prabhat Kumar Sinha, 4th Additional District Judge, Muzaffarpur in Probate Case No. 11 of 1986 whereby he has been pleased to dismiss the probate case filed by the appellants. 2. The brief facts of the case are as follows: All the three appellants (applicants before the court below) are sons of Ramgulam Choudhary. Mostt. Deomatia was the own sister of Ramgulam Chaudhary and so she was the Fua (fathers sister of the appellants). Said Mostt. Deomatia was the widow of Pradeep Baitha of Mohalla Saraiayaganj at Gola Road within Police Station and Town Muzaffarpur. She expired on 24.11.1984 at the residence of the appellants situated in Mohalla Motijheel, Ayodhaya Prasad Lane, Police Station and Town Muzaffarpur. Since Mostt. Deomatia was issueless, as such the applicants had been rendering all the services to her as well as to her husband who were treating the applicants as their sons and so, Mostt. Deomatia and her husband had intended that their properties should go to the applicants. Further case is that on 21.11.84 Mostt. Deomatia executed a will bequeathing her properties in favour of the applicants and on her death the applicants came in possession of the properties and has been continuing in possession of the said properties. The execution of the will was witnessed by Sri Surendra Narayan Sinha, Advocate and Triveni Singh. The will was drafted on the instruction of Mostt. Deomatia who put her L.T.I. on every page of the will and on her instruction Sri Surendra Narayan Sinha signed the will on her behalf. The will was presented by Mostt. Deomatia for registration before the Sub-Registrar and she admitted the execution of the will before the Sub-Registrar. Sri Surendra Kumar Sinha identified Mostt. Deomatia before the Sub-Registrar. It is said that at the time of death of Mostt. Deomatia she had fixed place of abode in Mohalla Motijheel, Ayodhaya Prasad Lane and she was in sound state of mind and body and as such except being of old age she was not suffering from any serious disease. She had executed will with her free will and volition. On the basis of the above pleadings, the applicants had prayed for grant of probate. 3. She had executed will with her free will and volition. On the basis of the above pleadings, the applicants had prayed for grant of probate. 3. The case of the objectors-respondents, in brief, is that the will in question is a forged and fabricated document and not executed by Mostt. Deomatia who was not in conscious state of mind much before the date of her death. The specific case of the objectors is that Mostt. Deomatia expired on 23.11.1984 at about 11 P.M. at the age of more than 85 years and not on 24.11.84 at about 7 P.M. and the fact is that since 18.11.84 she was unconscious. Further case is that Mostt. Deomatia was not the full sister of the father of the applicants rather she was cousin sister of the father of the applicants as well as father of the respondents-objectors. According to the case of the objectors, Ramgulam Chaudhary was the father of the applicants and the grand-father of Ramgulam Chaudhary, namely, Mahadeo Chaudhary had two sons, namely, (1) Ganesh Chaudhary and (2) Narayan Chaudhary. Mostt. Deomatia was the daughter of Narayan Chaudhary whereas applicants father Ramgulam Chaudhary and objectors father Harihar Chaudhary were sons of Ganesh Chaudhary and in this way, Mostt. Deomatia was cousin sister of Ramgulam Chaudhary as well as Harihar Chaudhary. According to the case of the objectors, after the death of Mostt. Deomatia the heirs of Ramgulam Chaudhary (applicants) and the heirs of Harihar Chaudhary (objectors) were entitled to inherit half and half share in the properties of Mostt. Deomatia but in order to deprive the heirs of Harihar Chaudhary, this forged will was brought into existence. The objectors have denied that by virtue of the will in question, the applicants had come in possession of the properties of Mostt. Deomatia. It is the specific case of the objectors that in the year 1961 Mostt. Deomatia became widow and thereafter she was residing with the father of the objectors. The father of the objectors and Deomatia had a joint account in the Central Bank of India, Muzaffarpur bearing S.B. Account No. 20593. Further case is that Mostt. Deomatia was ill since long and on 18.11.84 she fell unconscious. She was treated by local doctor but as the objectors were financially weak, as such they were not in a position of providing specialised treatment. Further case is that Mostt. Deomatia was ill since long and on 18.11.84 she fell unconscious. She was treated by local doctor but as the objectors were financially weak, as such they were not in a position of providing specialised treatment. Taking advantage of the poverty and simplicity of the objectors, the applicants, who are rich and influential people, came to the house of the objectors on 19.11.84 and on the pretext of providing better treatment they took Mostt. Deomatia with them but instead of taking her to Patna for treatment they took her to their house and got a forged will executed. It is said that the alleged will is a forged and fabricated document and does not express the mind of the testator and the same was never executed by Mostt. Deomatia with her free will and consent. On the above pleadings, the objectors have prayed to reject the application for probate of the will. 4. On the basis of the pleadings of both the parties, the trial court framed as many as four issues for determination in the case which are as follows: (1) Is the application for grant of probate maintainable? (2) Whether the Will dated 21.11.1984, allegedly-executed by Mostt. Deomatia is valid and genuine? (3) Whether the Applicants are entitled to the grant of probate as prayed for? (4) To what other relief or reliefs, if any, are the Applicants entitled? 5. From the impugned judgment it appears that issue Nos. 2 and 3 were taken to be the main issues and on both the issues the trial court made exhaustive discussions and then came to the finding that the will dated 21.11.84 alleged to have been executed by Mostt. Deomatia is not a valid and genuine document and so the applicants-appellants are not entitled for grant of probate of the will. Thus, the question which arises for consideration before this Court is whether the finding of the trial court that the will dated 21.11.84 alleged to have been executed by Mostt. Deomatia is not a valid and genuine document is correct or not? 6. Admittedly, the applicants-appellants had filed this application for grant of probate of the will dated 21.11.84 alleged to have been executed by Mostt. Deomatia in their favour. The said will is Ext.1. Deomatia is not a valid and genuine document is correct or not? 6. Admittedly, the applicants-appellants had filed this application for grant of probate of the will dated 21.11.84 alleged to have been executed by Mostt. Deomatia in their favour. The said will is Ext.1. Hence, the first and foremost question will be - whether the requirements of law as laid down under Sec. 63 of the Indian Successive Act (hereinafter referred to as "the Act") for execution of Will have been fulfilled or not. Sec. 63 of the Act is reproduced below: 63. Execution of unprivileged Wills. -- Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence, and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 7. Thus, from reading of Sec. 63 of the Act, it is clear that besides the signature or the thumb impression of the testator, the will should be attested by at least two witnesses and the testators or testatrix must be identified by an identifying witness, so in the following paragraph I would like to see as to whether the abovementioned requirements of law necessary for execution of will have been complied with or not so far Ext.1, the alleged will executed by Mostt. Deomatia is concerned. 8. Deomatia is concerned. 8. From perusal of Ext.1 it appears that the will was scribed by one Arun Kumar and witnessed by Surendra Narayan Sinha, Advocate and Triveni Singh. It appears that Surendra Narayan Sinha also appeared as identifier of Mostt. Deomatia, who put his signature on the document on behalf of Mostt. Deomatia at her instance. From perusal of the lower court records it appears that scribe of the deed, namely, Arun Kumar was examined as A.P.W.3, the attesting witnesses, namely, Surendra Narayan Sinha and Triveni Singh were examined as A.PW.2 and A.P.W.10, respectively. According to the evidence of Arun Kumar, the scribe of the will, he had prepared the will on the instruction and on the dictation of Mostt. Deomatia who had also provided the details of the lands mentioned in the will. He has further-deposed that after taking dictation he read over the contents of the will to Mostt. Deomatia who put her L.T.I on each and every page of the will and then she asked Surendra Narayan Sinha to sign the will on her behalf. She also asked Surendra Narayan Sinha (A.P.W.2) and Triveni Singh (A.P.W.10) to witness the will and then Surendra Narayan Sinha and Triveni Singh put their signatures on the will. Surendra Narayan Sinha also signed the will on behalf of Mostt. Deomatia. 9. A.P.W.2 is Surendra Narayan Sinha, Advocate. In his evidence he has corroborated the evidence of the Scribe (A.P.W.2) that after the will was drafted and read over to Mostt. Deomatia she put her L.T.I. on each page of the will and asked him to sign the will on her behalf and then he signed the will on her behalf. He has further deposed that on the instruction of Mostt. Deomatia he and Triveni Singh attested. 10. A.P.W. 10, Triveni Singh has deposed that after preparation of the will by scribe Arun Kumar, Mostt. Deomatia asked him to become witness and then he put his signature on the will as witness. He has also corroborated the evidence of A.P.W.2 and A.P.W.3 in his evidence. Thus, the evidence of the above said witness establishes that the requirements of law as laid down under the provisions of Sec. 63 of the Act have been complied with. 11. He has also corroborated the evidence of A.P.W.2 and A.P.W.3 in his evidence. Thus, the evidence of the above said witness establishes that the requirements of law as laid down under the provisions of Sec. 63 of the Act have been complied with. 11. It has been argued by the learned Advocate of the respondents that merely because of the fact that the will was found to have been executed as per the provision laid down under Sec. 63 of the Act, the will in question cannot be held to be genuine and legal document unless it is established that the execution of the will is not surrounded by suspicious circumstances. He submitted that initial onus to remove the doubt, that the execution of the will was not surrounded, by any suspicious circumstance is upon the propounder of the will and in this regard he has placed reliance upon the two decisions of the Apex Court reported in H. Venkatachala Iyengar, Appellant V/s. B.N. Thimmajamma and Ors. Respondents and Ramchandra Rambux, Appellant V/s. Champabai and Ors. Respondents. For better appreciation of the argument advanced by the learned Advocate for the respondents, I would like to quote paragraph 20 of the decision reported in and paragraph-6 of the decision reported . Para-20 There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testators mind may appear to be very fee able and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testators free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. AIR 1965 Supreme Court Page-354 Para-6 The High Court, on a consideration of the entire evidence adduced by the parties, came to the conclusion that the will was prepared under highly suspicious circumstances and that the evidence adduced by the appellant was not such as to satisfy it that the alleged will was a genuine one. According to the High, the circumstances appearing in the case indicate that the alleged will was "in all probability" a false document brought into existence without the knowledge of Ramdhan. The High Court rightly pointed out that the nature of proof which was required in a case of this kind was that laid down by the Privy Council in Sarat Kumari Bibi V/s. Sakhi Chand 56 Ind App 62: AIR 1929 PC 45 where it has been stated that in all cases in which a will is prepared under circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, it is for the propounder of the will to remove that suspicion. According to the High Court, the evidence led by the appellant was so unsatisfactory that it was impossible to give any effect to the alleged will. 12. In addition to the abovementioned rulings relied upon by the learned Advocate of the respondents, the decision cited by the learned Counsel for the appellants i.e. Beni Chand (Since Dead) now by L.Rs. Appellants V/s. Smt. Kamla Kunwar and Ors. 12. In addition to the abovementioned rulings relied upon by the learned Advocate of the respondents, the decision cited by the learned Counsel for the appellants i.e. Beni Chand (Since Dead) now by L.Rs. Appellants V/s. Smt. Kamla Kunwar and Ors. Respondents also lays down that the burden to prove that the circumstances surrounding execution of the will is not surrounded with suspicion is upon the propounder of the will and he has to prove this fact satisfactorily. Relying upon the abovementioned decisions, I have got no difficulty in holding that initial onus to remove the doubt that the execution of the will (Ext.1) is not surrounded by suspicious circumstance is upon the applicants-appellants. However, it has been argued by the learned Advocate of the appellants that by examining Arun Kumar, the scribe of the will and the two attesting witnesses, namely, Surendra Narayan Sinha (A.P.W.2) and Triveni Singh (A.P.W.10), the propounder of the will has discharged his liability to prove that the execution of the will was not surrounded by any suspicious circumstances. I am of the view that the argument of the learned Advocate of the appellants is misconceived. I am of the opinion that by examining the scribe of the will and the attesting witnesses the propounder of the will has simply fulfilled the legal requirements in order to bring on record the alleged fill (Ext.1) without which the will in question cannot be said to be legally proved. So far the question of suspicious circumstance is concerned, it is a question of fact which must be proved by cogent evidence and, therefore, in the following paras I would like to see -whether any suspicious circumstance / circumstances in execution of the will exist or not. 13. The learned trial court in its judgment has pointed out several suspicious circumstances which render the alleged will (Ext.1) as forged, fabricated and not a genuine document. I would like to make discussion on some of the suspicious circumstances in my judgment as many other circumstances discussed by the trial court are not of much importance and the same will unnecessarily make the judgment lengthy. 14. First of all, I would like to see - whether at the time of execution of the will (Ext.1) Mostt. Deomatia was in a sound state of mind. 14. First of all, I would like to see - whether at the time of execution of the will (Ext.1) Mostt. Deomatia was in a sound state of mind. Sec. 59 of the Indian Succession Act 1925 lays down that every person of sound mind not being a minor may dispose of his property by will. Explanation (IV) of Sec. 59 of the Act says that no person can make a will while he is in such state of mind - whether arising from intoxication or from illness or from any other cause that he does not know what he is doing. Thus, Sec. 59 of the Act lays down that only a person of sound mind is capable of executing the will. In such circumstances, it is necessary to come to the finding that at the time of execution of the will Mostt. Deomatia was in a sound state of mind. Undoubtedly, Ext.1 is a registered document and from back of the first page of the document it is apparent that the document, i.e. will dated 21.11.84 was executed at the residence of the applicants-appellants at Mohalla Motijheel, Ayodhya Prasad Lane within Town Muzaffarpur. The witnesses examined on behalf of the applicants-appellants have also supported this fact that the will was executed at the house of the appellants. The perusal of the document further shows that Mostt. Deomatia was not produced before the Sub-Registrar in person rather the endorsement shows that Mostt. Deomatia admitted the execution of the document from behind Parda and she was also identified by Surendra Narayan Sinha, A.P.W.2 in Parda. The relevant endorsement which is in Hindi is as follows: (LOCAL LANGUAGE) 15. The abovementioned endorsement on the back of the will in the handwriting of A.P.W.2 Surendra Narayan Sinha, Advocate establishes beyond doubt that at the time of execution of the alleged will (Ext.1) Mostt. Deomatia was never produced before the Sub-Registrar and she never admitted the execution of the document by presenting herself before the Sub-Registrar at the time of registry. No cogent and satisfactory explanation has come on behalf of the applicants-appellants as to why Mostt. Deomatia was kept behind the Parda and she was not produced in person before the Sub-Registrar when admittedly she was not a Pardanashin lady. The appellants have not explained as to why A.P.W.2 Surendra Narayan Sinha, Advocate took her L.T.I. in Parda. No cogent and satisfactory explanation has come on behalf of the applicants-appellants as to why Mostt. Deomatia was kept behind the Parda and she was not produced in person before the Sub-Registrar when admittedly she was not a Pardanashin lady. The appellants have not explained as to why A.P.W.2 Surendra Narayan Sinha, Advocate took her L.T.I. in Parda. This unexplained circumstance fully supports the case of the objectors-respondents that at the time of alleged execution of the will Mostt. Deomatia was not in a sound state of mind. This assertion further finds corroboration from the admitted fact that within two to three days of the execution of the will Mostt. Deomatia died. In my opinion, this circumstance alone is sufficient to hold that at the time of execution of the will Mostt. Deomatia was not physically and mentally sound and that is why she was not produced before the Sub-Registrar. 16. The next circumstance which makes the will a doubtful piece of document is that admittedly, Mostt. Deomatia was an illiterate lady which is also established from the presence of her L.T.I. on the will. There is no satisfactory evidence on record that Mostt. Deomatia was conversant with the legal procedure with regard to the execution of the will and of obtaining probate of the will but the recital of the will shows that Mostt. Deomatia was aware of the legal requirements of execution of the will in question and also she was conversant with the law that the will requires probated. The relevant paragraphs of the will appearing at Pages 6 and 7 of the will which are in Hindi are quoted below: (LOCAL LANGUAGE) 17. The above recital of the deed establishes beyond doubt that the same cannot be a statement of a rustic and illiterate lady and, therefore, I have no difficulty in holding that the will in question (Ext.1) was never drafted or executed at the instance of Most. Deomatia. Another circumstance which makes the will in question a doubtful piece of evidence is that it has come in the evidence of the propounder of the will, namely, Bipin Kumar Chaudhary (A.P.W.4) and other witnesses that for the last eight, to nine years prior to her death Mostt. Deomatia. Another circumstance which makes the will in question a doubtful piece of evidence is that it has come in the evidence of the propounder of the will, namely, Bipin Kumar Chaudhary (A.P.W.4) and other witnesses that for the last eight, to nine years prior to her death Mostt. Deomatia was residing at the house of the applicants-appellants situated at Mohalla, Motijheel, Ayodhya Prasad Lane but on the will the address of Deomatia was given as "Resident of Mohalla Saraiyaganj, Gola Road, Muzaffarpur". It goes to show that in haste and in order to conceal foul play, the appellants got incorrect address mentioned in the deed. 18. The next suspicious circumstance which is also established from the will itself is that there is recital in the will that since the life-time of her husband, all the three appellants were rendering services to Mostt. Deomatia and her husband so it was also the wishes of her husband that after his death his property would go to the appellants to whom he liked as sons. The averment in the will appears to be totally false as it has come in the evidence of both the parties that in the year 1960-61 the husband of Mostt. Deomatia died and at that time applicant No. 2 Binay Kumar Chaudhary and applicant No. 2 Bijay Kumar Chaudhary were not born (vide para 41 of A.P.W.4). At that time the oldest brother, namely, Binod Kumar Chaudhary was hardly aged about 4/5 years old and so no question of rendering any service to the husband of Mostt. Deomatia by the appellants arises. The above recitals establish that the recitals are false and concocted and the same cannot be the statements of Mostt. Deomatia who might be aware of the fact that at the time of death of her husband at least two appellants were not born. Thus, the above circumstances which have been elicited from the document (Ext.1) itself establish beyond doubt that the will in question is surrounded by suspicious circumstances and cannot be said to be a genuine document. Other important facts which were considered by the trial court in details to be relevant for constituting suspicious circumstances are as follows: (1) Appellant No. 1 Binod Kumar Chaudhary was in police service posted as Dy. S.P. and was in a position to influence the witnesses and even to the Sub-Registrar. Other important facts which were considered by the trial court in details to be relevant for constituting suspicious circumstances are as follows: (1) Appellant No. 1 Binod Kumar Chaudhary was in police service posted as Dy. S.P. and was in a position to influence the witnesses and even to the Sub-Registrar. (2) All the witnesses of the applicants are either close friends or they had very intimate relationship with the appellants and so they are not reliable. (3) The role played by A.P.W.2 Surendra Narayan Sinha, Advocate who took active part in getting the will prepared and also went to the Registry Office personally to call the Registrar, was against the conduct of a lawyer. His role was suspicious. (4) When Mostt. Deomatia was not suffering from any serious ailment why she did not go to Registry Office to execute the will which is a normal procedure for getting a document registered. This circumstance establishes the case of the objectors that since 18.11.84 Mostt. Deomatia was unconscious. 19. It appears that the learned trial court has elaborately discussed all the abovementioned points in its judgment and I have no reason to differ with the discussions and the findings of the trial court on all the abovementioned points as such I do not find any necessity to take up the points for detailed discussion only to repeat the argument advanced by the trial court in support of the finding. 20. On the basis of the discussions made above I find and hold that the will dated 21.11.84 alleged to have been executed by Mostt. Deomatia is not a valid and genuine document and so upheld the finding of the trial court in this regard. I further find and hold that the trial court has rightly held that the applicants are not entitled to the grant of probate on the strength of Ext.1 and accordingly, I uphold the said finding of the trial court also. 21. In the result, I find no merit in this appeal and as such, the same is hereby dismissed on contest with cost.