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2008 DIGILAW 700 (GAU)

Sumati Talukdar v. Dulumani Talukdar

2008-09-16

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. This appeal under Section 299 of the Indian Succession Act, 1925 ('the Act') registers a challenge to the judgment and order dated 18.7. 2006 passed by the learned Additional District Judge, Kamrup in P.T.S. Case No. 6/1993 rejecting an application under Section 276 of the Act filed by the present Appellant praying for probate of the Will dated 2.3.1959 claimed to be executed by Late Pradip Kr. Talukdar. 2. I have heard Mr. M. Khataniar, learned Counsel for the Appellant and Mr. S.J. Sharma, learned Counsel for the Respondents. 3. The Appellant by her application before the learned court below had averred that the testator, her son, had on 2.3.1989 executed his last Will and testament in respect of the property mentioned therein in which Sri Paresh Ch. Raimadhi, advocate, Guwahati and Sri Dilip Kalita, Vill Khudra Dadhi P.O. Garua, District Kamrup, Assam were the attesting witnesses. She stated that her son committed suicide on 27.5.1991 at 4.45 P.M. at his residence. It was alleged therein that the deceased though married to the Respondent No. 1, was not happy in his marital life in view of the continuous cruelty meted out by her and thus apprehending that his wife might deprive their two daughters by a Will bequeathed the property mentioned therein in favour of the Appellant, who was living jointly in the family and used to generally look after and maintain the members thereof. It was also stated that the Respondent No. 1 it the matrimonial home along with her two daughters and had been since then been residing with one Uttam Bhuyan of Hatigaon with whom she has questionable relationship. The Appellant, however, asserted that at the time of execution of the Will, the testator was in a healthy mental and physical condition capable of fully understanding the nature and implication of the disposition, The heirs and legal representatives of the deceased were mentioned in the application to be as hereunder: (1) Mrs. DuluTalukdar (wife). (2) Miss Puja Talukdar (3 months) daughter. (3) Pallavi Talukdar (4 years) daughter Sl. Nos. 2 and 3 being minor, represented by their mother. (4) The Appellant/Petitioner (Mother). The application disclosed the property bequeathed to be a plot or land measuring 1 Bigha, 17 Lechas covered by Dag No. 91 (old 93) in K.P. Patta No. 18 (old 90) of village Hatigaon Mouza Beltola. (3) Pallavi Talukdar (4 years) daughter Sl. Nos. 2 and 3 being minor, represented by their mother. (4) The Appellant/Petitioner (Mother). The application disclosed the property bequeathed to be a plot or land measuring 1 Bigha, 17 Lechas covered by Dag No. 91 (old 93) in K.P. Patta No. 18 (old 90) of village Hatigaon Mouza Beltola. The declaration under Section 281 of the Act was made by Sri Paresh Ch. Rai Medhi, Advocate, Guwahati as the attesting witness of the Will. 4. The Respondent No. 1 in her written statement contended that the application was not maintainable as no Will in fact had been executed by her deceased husband and alleged that the document claimed to be the Will had been fabricated by the Appellant in collusion with other members of the family to wrest the properties left by the deceased by denying her and her two minor daughters therefrom. She denied the accusation of subjecting her husband to cruelty or that their matrimonial association was not happy. She also denied the charge of leaving the nuptial home along with her daughters after quarrelling with the family members of the testator. She asserted that after the death of her husband she continued to reside in her in laws house, but after seven months was forcibly driven out therefrom and since then she has been residing at her paternal house at Hatigaon. While denying the charge of living with one Uttam Bhuyan and the alleged doubtful relationship with him, the answering Respondent maintained that her husband was a habitual alcoholic and that his mental and physical condition was not sound. 5. The parties thereafter adduced evidence and the learned court below after considering the pleadings and the materials on record, by judgment and order dated 8.7.1998 decreed the suit and issued probate in favour of the Appellant. 6. Being aggrieved, the Respondent No. 1 approached this Court with First Appeal No. 167/1998 which was disposed of on 16.6.2003 interfering with the decision impugned. The suit was remitted to the learned court below for a fresh decision after affording due opportunity to the parties concerned to appear and adduce further evidence, if so advised. The judgment reveals that this Court held the view that while disposing of the suit, the learned court below had not taken care of the interest of the minors by appointing a guardian ad litem. The judgment reveals that this Court held the view that while disposing of the suit, the learned court below had not taken care of the interest of the minors by appointing a guardian ad litem. While remanding the matter, therefore this Court required the learned court below to pass appropriate orders to secure the interest of the minors in accordance with the provisions of the Code of Civil Procedure ('the Code'). Noticeably, this Court did pot expunge the evidence already recorded. 7. After the remand, the learned court below appointed the Respondent to be guardian of her minors (Respondent Nos. 2 and 3 herein) whereafter they also filed their written statement, their pleaded stand being in the same lines as that of their mother. 8. On the pleadings of the parties, the following issues were framed- (1) Whether the testator executed the Will and if so, whether he was fit both physically and mentally at the time of execution of the Will? (2) Whether, the Will is a forged one? (3) Whether, the Plaintiff is entitled to get probate? (4) To what relief, if any, the parties are entitled? 9. The Appellant before the remand had examined the following witnesses. Sri Dilip Talukdar (PW 1) Sri Dilip Chandra Kalita (PW 2) Sri Paresh Ch. Roy Medhi (PW 3) Sri Ghana Kanta Goswami (PW 4) After the remand, affidavit evidence under Order 18, Rule 4 of the Code was offered of Sri Dilip Chandra Kalita (PW 2) and Sri Ghana Kanta Goswami (PW 4). 10. The Respondent on the other hand, had before the remand, examined Dharani Talukdar (DW1) and herself as DW 2. After the remand she also examined Sri Khagen Ch. Bora (DW No.3) and Sasadhar Kalita (DW No. 4) who also adduced affidavit evidence. The evidence after the remand was in the form of affidavits under Order 18, Rule 4 of the Code of Civil Procedure. The impugned judgment and order was passed thereafter. 11. Mr. Khataniar has argued that the execution of the Will, Ext.2 having been conducively proved by the evidence of PWs. 2, 3 and 4, the learned court below erred in law and on facts in deciding to the contrary. There being no evidence that at the relevant time the testator was not in a fit state of mind, reliance on the medical documents Exts. 2, 3 and 4, the learned court below erred in law and on facts in deciding to the contrary. There being no evidence that at the relevant time the testator was not in a fit state of mind, reliance on the medical documents Exts. 'Ka' and 'Kha' which relate to a period much after the date of execution of the Will to decide against the grant of probate is per se erroneous, he urged. Mr. Khatoniar contended that the deceased having taken to drinking being tormented by his unhappy married life, the bequest was not invalid thereby disentitling the Appellant to the probate. There being a time lag of more than two years between the execution of the Will and the commission of suicide by the testator, any inference of absence of able state of mind on the date of bequest is wholly presumptive. Mr. Khatoniar pleaded that as the Will is a registered document, there is a presumption of its validity and the learned court below misconstrued the law and the evidence on record in rejecting the prayer for probate. To endorse his arguments, Mr. Khataniar placed reliance on the decisions of the Apex Court in Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors., (2005) 8 SCC 67 and of this Court in Lamodhar Bordoloi v. Narendra Nath Bordoloio and Ors. 1991 (1) GLT 247 Respondents and of the High Court of Madras in Amaborpava Mary A. Arputha Tosephine v. Kulandai Ammal M. Arutnathan Saddhna Mary Durai, AIR 2004 Mad. 291 . 12. Mr. Sarma in reply has argued with reference to Section 63 of the Act that as the mandatory prescriptions have not been observed in the instant case, the impugned judgment and order is valid and does not call for any interference in the appeal. According to him, the evidence of the Appellant, attesting witnesses and the scribe is contradictory on material particulars mutilating each other on the aspect of execution and the attestation of the Will and therefore, the learned court below was right in rejecting the prayer for probate. The learned Counsel argued that there being overwhelming evidence on record that the testator on the date of alleged execution of the Will was mentally ill, the document is non est in law. In this regard, he amongst others relied on the medical documents Exts. 'Ka' and 'Kha, Mr. The learned Counsel argued that there being overwhelming evidence on record that the testator on the date of alleged execution of the Will was mentally ill, the document is non est in law. In this regard, he amongst others relied on the medical documents Exts. 'Ka' and 'Kha, Mr. Sarma urged that from the nature of the bequest which is visibly unusual and unexpectedly harsh towards the wife and the minor daughters, the Will is hedged by inexplicably suspicious circumstances. According to Mr. Sarma as the Appellant has failed to repel and/or explain the same, the learned court below on a proper consideration of the pleadings and the evidence on record rightly denied her prayer for probate. The following decisions of the Apex Court were relied upon- (1) Ramchandra Rambux v. Champabai and Ors., AIR 1965 SC 354. (2) Kalyan Singh v. Smt. Chhoti and Ors., AIR 1990 SC 396 . (3) B. Vnkatamuni v. C.J. Ayodhya Ram Singh and Ors. AIR 2000 SC 311. (4) Niranjan Umeshchandra Joshi v. Mudula Jyoti Roa and Ors., AIR 2000 SC 614 . 13. To appropriately comprehend the rival submissions, a brief insight of the evidence on record is indispensable. 14. PW1, Dilip Talukdar (since deceased) had stated that the Appellant is his mother and the testator was his elder brother. He stated that his elder brother Prabin Kr. Talukdar during his life time executed a Will on 2.3.1989 in favour of their mother. He claimed to be present at the time of execution of the Will. He stated that the document was written by one Ghana Kanta and that Paresh Ch. Rai Medhi, Advocate and one Dilip Kalita were the attesting witnesses thereof. He proved the Will, a registered document as Ext.2, and also the signatures of the testator as Ext. 2(1), 2(2), 2(3) and 2(4). The witness admitted that her (testator) had left behind his wife and two daughters, the elder being then 8/9 years old. He testified that at the time of execution of the Will the mental and physical state of the testator was sound. In cross-examination, the witness stated that on the date of execution of the Will, the testator had taken him and witness Dilip Kalita to court. He clarified that his mother did not accompany him. According to this witness, Sri Paresh Rai Medhi was contacted in court. In cross-examination, the witness stated that on the date of execution of the Will, the testator had taken him and witness Dilip Kalita to court. He clarified that his mother did not accompany him. According to this witness, Sri Paresh Rai Medhi was contacted in court. He denied the suggestion that the testator was mentally unsound. 15. PW2, Sri Dilip Ch. Kanta, affirmed the execution of the Will by Pradip Talukdar by putting his signature thereon. He proved the Will, Ext. 2 with his signature thereon as Ext. 2(5) He deposed that after the testator and the advocate put their signatures he signed the Will. In cross-examination, the witness denied his knowledge about the testator's ailments. He conceded that he was not present when the testator had signed the Will. He also admitted of not seeing the advocate putting his signature. He clarified that he put his signature only after being told that Pradip had executed a Will in favour of his mother. Though the affidavit evidence of this witness after the remand offered on 4.9.2004, as he was not available for cross-examination, the same was expunged. 16. PW3, Paresh Ch. Roy Medhi testified that Pradip Kr. Talukdar had executed a Will, Ext. 2 by putting his signature thereon in his presence. The witness expressed his ignorance about the mental and physical state of the testator on the date of execution of the Will. He also proved his signature on the document as Ext.2(6). He further affirmed that one witness by name Dilip, too had put his signature on the Will. The witness stated the Will Ext. 2 had been executed and registered on 2.3.1989. 17. PW 4, Sri Ghana Kanta Goswami claimed himself to be the scribe of the Will. According to him, the testator executed it by putting his signature on 2.3.1989 which he identified as Exts. 2(2) and 2(4) claiming that the execution was in his presence. This witness though stated to have put his signature Exts. 2(7) and 2(8) at the place of execution did not claim to have done it in presence of the testator. In his affidavit evidence he more or less adhered to his testimony before the remand. In his cross-examination, however, he expressed his inability to comment on the mental condition of the testator at the relevant time. 18. 2(7) and 2(8) at the place of execution did not claim to have done it in presence of the testator. In his affidavit evidence he more or less adhered to his testimony before the remand. In his cross-examination, however, he expressed his inability to comment on the mental condition of the testator at the relevant time. 18. In her evidence, the Appellant disclosed that by then, her son Dilip Talukdar (PW1) was dead. According to her, the testator executed the Will two years prior to his death and one Sri Paresh Rai Medhi, Advocate was a witness. She stated that her son, the testator use to drink because of the mental torture perpetrated by his wife. She insisted that he was otherwise in normal mental and physical health. She also reiterated the allegation of desertion of the matrimonial home by the Respondent No. 1 after a quarrel with her deceased husband along with her two minor daughters. The witness also attributed the commission of suicide by her son to the mental agony heaped on him by his wife, the Respondent No. 1. She denied the allegation of torture on the Respondent No. 1 by her family members and claimed that her son on his own volition had bequeathed the property in the Will in her favour. This witness in her cross-examination however, claimed to be present at the time of execution of the Will. She stated that besides Paresh Rai Medhi and Pradip Talukdar, none other was then present. She, however, admitted that after the execution of the Will, the testator had been taken to Dibrugarh for treatment for his abdominal ailments. She however, expressed her inability to assure that she would part with a share of the bequeathed property in favour of the daughters of the testator. 19. Sri Dharani Talukdar for the Appellant stated that the testator was his distantly related brother and was physically and mentally sound at the time of his death. He disclosed that though he had no mental disorder, after marriage he started taking liquor and gradually became addicted. He admitted to have taken him to a doctor at Dibrugarh and that after his treatment the testator was able to attend his normal works. He however, indicated that his (testator) conjugal life was not happy. He disclosed that though he had no mental disorder, after marriage he started taking liquor and gradually became addicted. He admitted to have taken him to a doctor at Dibrugarh and that after his treatment the testator was able to attend his normal works. He however, indicated that his (testator) conjugal life was not happy. In cross-examination, he admitted that he was not present at the time of execution of the Will and had no knowledge about the same. 20. The Appellant's witness Saifuddin Ali claimed himself to a businessman associated to testator. He reiterated that the matrimonial life of the testator was not happy and that he used to drink. The witness however testified that the testator was mentally sound. 21. Before the remand, Sri Dharani Talukdar who had been examined as DW 1 had stated that he accompanied the testator to Dibrugarh for treatment whereafter he recovered from his ailments about 6/7 months prior to his death. 22. DW 2, Dulumani Talukdar, Respondent in her evidence claimed her conjugal life to be a happy one. She however, stated that her husband used to drink liquor and was not mentally sound. According to the witness, he developed mental trouble since after a year of the marriage and his brother Dharani Talukdar took him to Dibrugarh for the treatment of his said ailment. She proved Ext. 'Ka', certificate issued by the attending doctor. She explained that though the doctor was summoned by the court he could not attend for official constraints. She denied the execution of the Will by her husband and alleged torture on her by his family members after his death. She claimed that Uttam Bhuyan to be her elder brother and denied any illicit relationship with him. In cross-examination, the witness disclosed about the institution of Title Suit No. 11/1992 by her in the Court of Civil Judge, Senior Division. She maintained that doctors at Guwahati had also extended psychiatric treatment to her husband. In her affidavit evidence after the remand, the Respondent stated that she noticed mental illness of her husband in the 1st part of 1988 and that 5-6 months thereafter he became completely mad and was unable to understand and decipher things. She maintained that doctors at Guwahati had also extended psychiatric treatment to her husband. In her affidavit evidence after the remand, the Respondent stated that she noticed mental illness of her husband in the 1st part of 1988 and that 5-6 months thereafter he became completely mad and was unable to understand and decipher things. He denied the signatures on the Will to be that of her husband and insisted that he at that time was completely mad so as to be able to understand the contents thereof or to put his signature because of his extremely frail condition of health. She alleged that after the death of her husband, her in laws had driven her out from the matrimonial home and that the Will is a forged and fabricated document to deny her and her daughters his properties. 23. DW 3, Khagen Ch Bora reiterated that after the marriage between the parties in the year 1987, the mental condition of the testator which from before was not sound, further deteriorated. The witness stated that late Pradeep Talukdar used to remain drunk from the morning and was very often found lying by the road in an inebriated condition. He further stated that Pradeep Talukdar in order to meet the expenses for purchasing wine even used to sell household articles. The witness stated that at that stage he was mentally vague, besides incapable of doing any work. He also confirmed his treatment for mental illness at Dibrugarh by Dr. U.C. Sarma, Psychatrist in the year 1989. 24. The evidence of Sasadhar Kalita, DW 4 and that of Sridhar Das, DW 5 is substantially in the same lines as of DW 3. 25. The legal perspective may now be addressed to. Under Section 59 of the Act, every person of sound mind not being a minor may dispose of his property by Will. Explanation 3 provides that a person who is ordinarily insane may make a will during an interval in which he is of sound mind. Explanation 4-however mandates that no person can make a will while he is such a state of mind, whether arising from intoxication or from illness or from any other cause for which he does not know what he is doing. Explanation 4-however mandates that no person can make a will while he is such a state of mind, whether arising from intoxication or from illness or from any other cause for which he does not know what he is doing. Sound and disposing state of mind and majority of the testator are, therefore, the two imperative pre-conditions for a valid bequest of his/her property by making a Will under the Act. 26. Section 63 prescribes the essentialities for valid execution of an unprivileged Will. Thereunder, the testator has to sign or affix his mark to the Will or require it to be done by some other person in his presence and by his direction. Such signature or mark should indicate the intention of the maker to give effect to the writing as a Will. The section makes it obligatory for the Will to 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 acknowledgement of his signature or mark or of the signature of such other person. Each of the' witnesses is required to sign the Will in presence of the testator, but it would not be necessary for more than one witness to be present, at the same time and no particular form of attestation is needed. The three pronounced and obligatory prerequisites of a valid execution of a Will therefore are (1) the signature of the testator or affixation of his mark or that of by some other person in his presence or by his direction to the Will (2) clear indication of giving effect to the writing as a Will by such signature or mark (3) attestation of the Will by two or more witness each of whom has seen the testator or any such person put his signature or affix his mark. (4) Signature on the Will by each of the witnesses in presence of the testator. These statutory enjoinments are rigid and have to be scrupulously complied with for the execution of the Will to be valid in law. An omission in the observance of any of the above edicts would render the execution invalid. 27. (4) Signature on the Will by each of the witnesses in presence of the testator. These statutory enjoinments are rigid and have to be scrupulously complied with for the execution of the Will to be valid in law. An omission in the observance of any of the above edicts would render the execution invalid. 27. PW 2, Dilip Kanta in his evidence categorically admitted, of not having seen the testator signing the Will. Though he claimed to have signed the document later, it is not clear whether he did so in presence of the testator. PW 3, though has asserted that the testator had signed the Will in his presence, he too has not stated that his signature was made in presence of Pradeep Talukdar. PW 4, the scribe has stated that the testator had put his signature in his presence. He though had admitted to have signed the document he neither claimed himself to be an attesting witness nor has deposed to have done it in presence of the testator. The Appellant has not cited PW4 as an attesting witness. 28. This Court in Lamodhar Bordoloi (supra) had ruled that only because the witness omits to state in court to have signed the Will in presence of the testator, want to due attestation cannot be assumed if his testimony narrates the situation which leads to no other inference, but that he had put his signature in presence of the testator. His failure to precisely State this fact before the court would not invalidate the Will and would permit the court to infer this fact from other evidence on record. While I respectfully subscribe to the legal proposition, the same in the context of the evidence on record, in the case in hand, does not advance the case of the Appellant. 29. The testimony of PW 2, PW 3 and PW 4 read together does not lead to the irresistible conclusion that the attesting witnesses had subscribed to the Will in presence of the testator as required under Section 63 of the Act. This Court reiterated that the initial burden to prove due execution, attestation and a sound disposing state of mind of the testator is on the propounder and essentially trustworthy and effective evidence is to be given to demonstrate compliance of the necessary formalities of law. This Court reiterated that the initial burden to prove due execution, attestation and a sound disposing state of mind of the testator is on the propounder and essentially trustworthy and effective evidence is to be given to demonstrate compliance of the necessary formalities of law. In the opinion of this Court having regard to the state of evidence, the statutory edicts of attestation have not been complied with. On this count alone, the appeal ought to fail. 30. The Will is conspicuously silent of the reasons favouring the bequest to the mother of the testator to the exclusion of his surviving wife and two minor daughters. The bestowal by the Will is conspicuously unexpected in the normal measure of things. The evidence adduced by the parties on the marital life of the testator is, equally competing. Even assuming that the testator led an unhappy and anguished alliance with the Respondent, the same by far is too trifle to deprive his minor daughters of the benefits of his property on his demise. The Appellants expression of reservation in the matter of parting with the property bequeathed, in favour of her grand daughters also does not project her in good light. She in her evidence while asserting her presence at the time of execution of the Will also denied the existence of the PW 2 on the spot. 30A. Evidence is galore that the testator had taken to liquor even before his marriage whereafter he became an inveterate alcoholic. He displayed tell tale signs of mental disorder for which he had to undergo treatment therefore at Dibrugarh and Guwahati, Ext. 'Ka' and 'Kha' are documents issued by V.G. Hospital, Dibrugarh and by Dr. U.C. Sarma, Consultant Physician & Psychiatrist, Dibrugarh respectively confirming his treatment for mental illness from 29.8.1989 to 2.10.1989. The Respondent No. 1 in her evidence disclosed the reason for her inability to produce the attending doctor as the hospital in which the testator was treated did not permit his attendance in a court proceeding. The witnesses for the Appellant as well, have supported the drinking habit of the deceased as well as the factum of his treatment at Dibrugarh of course, to be for his abdominal ailments. The witnesses for the Appellant as well, have supported the drinking habit of the deceased as well as the factum of his treatment at Dibrugarh of course, to be for his abdominal ailments. The witnesses for the Respondent however unequivocally testified that not only the testator was addicted to liquor, but also asserted that due to alcohol induced stupor he had lost his mental capacity of discernment. They also consistently testified about his treatment for mental illness at Dibrugarh. 31. True it is, that the period of testator's treatment as disclosed by the certificate Exts 'Ka' and 'Kha' is about five months beyond the elate of execution of the Will, but in the face of the overwhelming evidence on record bearing on his drinking habit and befuddled and unsteady state of mind, it is not possible in absence of any medical evidence to the contrary to hold that on the date of execution of the Will the testator assuredly was in a mental condition to dispose of his property as required under Section 59 of the Act. The registration of the document per se considered against the weight of the overall evidence on record does not tilt the balance in favour of the Appellant. The presumption of the validity of the document on registration is rebuttable and the materials on record outweighs the same in the instant case. 32. The Apex Court in Ramchandra Rambux (supra) had reiterated the proposition that the burden of removing any suspicious circumstance attendant on the execution of a Will is on the propounder by adducing satisfactory evidence. 33. While reaffirming the principle that trustworthy and unimpeachable evidence should be produced before the court to establish the genuineness and authenticity of the Will, the Apex Court in Kalyan Singh (supra) observed that in order to judge the credibility of witnesses and disengage the truth from falsehood, the court is not to confine only to their testimony and demeanour and it would be open to it to consider circumstances brought out in the evidence or appearing from the nature and contents of the document itself to reach the proper conclusion. 34. The Apex Court in Pentakota Satyanarayana and Ors. 34. The Apex Court in Pentakota Satyanarayana and Ors. (supra) while noticing the mandatory requirements of a valid execution of an unprivileged Will prescribed by Section 63 of the Act elucidated that the initial burden of the propounder is to establish by satisfactory evidence that the Will was signed by the testator who at the relevant time was in a sound and disposing state of mind and that he had understood the nature and effect of the disposition and had put his signature on the document of his own free will. Their lordships held the view that once this onus is discharged, it would be open to the contestants opposing the Will to bring on record the materials to meet such prima facie case. The golden thread running through these decisions unmistakably locates the burden on the propounder to prove the execution of the Will in strict compliance of Sections 59 and 63 of the Act. In the estimate of this Court, having regard to the evidence on record, the Appellant has failed to do so. The decision of the Madras High Court in Abalorpava and Anr. (supra) does not come to her rescue as the proposition therein is not applicable to the facts of the instant case. 35. The learned trial court has correctly marshalled the evidence on record and the findings and conclusions arrived at are adequately based thereon. On a totality of the considerations as recorded hereinabove, the appeal is adjudged to be without any merit and is therefore dismissed. The office would send down the records after preparation of the decree as expeditiously as possible. No costs. Appeal dismissed