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2010 DIGILAW 28 (ORI)

Subasini Choudhury v. Bisakha Kar

2010-01-13

M.M.DAS

body2010
JUDGMENT M.M. DAS, J. — This appeal has been filed challenging the order dated 15.5.2004 passed in Probate Misc. Case No.5 of 2003 by the learned Civil Judge (Senior Division), Bhubaneswar. 2. The petitioner in the said Probate Misc. Case is the appellant before this Court. She filed the said case for probate of a Will under Section 276 of the Indian Succession Act. The case of the petitioner was that the residential house site over plot No.3 in Unit-III, Bhubaneswar City having an area of Ac.0.500 decimals belongs to late Rama Chandra Kar, S/O. Late Banchhanidhi Kar of Dargha Bazar, Cuttack. The said Rama Chandra Kar died on 5.3.1996 at S.C.B. Medical College and Hospital, Cuttack. Before his death, he executed his last Will and testa¬ment in favour of the petitioner on 14.11.1995 in presence of the witnesses. Initially, no opp.parties were impleaded in the said Probate Misc. Case. But subsequently, by an order passed by the learned District Judge, Khurda at Bhubaneswar on 5.7.1999, one Smt. Bisakha Kar, the State of Orissa through the Secretary, G.A. Department and the Director of Estates, Government of Orissa, G.A. Department were added as opp.parties in the said Probate Misc. Case. When the matter was pending before the Court below, a finding has been recorded in the impugned order that in spite of sufficiency of service of notice, the opp.parties, who were arrayed as parties, did not appear in the said case, except the State of Orissa. The learned Court below, while ultimately dismissing the Probate Misc. Case, in the impugned order has made certain observations and arrived at certain findings, as stated herein below :- (i) The Will is an unregistered Will even though the testator beneficiary and the witnesses went to the Sub-Registrar Office for the execution of the Will on 11.11.1995, no explanation is given as to why the Will was not registered. (ii) In the initial stage of the case, the application for pro¬bate was filed without impleading Bisakha Kar and the State Gov¬ernment as parties. (iii) That the beneficiary and the attesting witnesses who are examined as P.W.1, P.W.2 and P.W.3 respectively, could not say the name of the typist who typed the Will and they also could not say who filled up the blank space in page 3 of the Will. (iv) All the P.Ws. (iii) That the beneficiary and the attesting witnesses who are examined as P.W.1, P.W.2 and P.W.3 respectively, could not say the name of the typist who typed the Will and they also could not say who filled up the blank space in page 3 of the Will. (iv) All the P.Ws. admitted that the testator has one daughter, namely, Bisakha Kar as the only legal heir to succeed to the property of the testator, and the consent of Bisakha Kar has not been obtained in the Will. (v) The intention of the testator is not explained for executing the Will in favour of a complete outsider while there is a legal heir to succeed to the whole property of the testator. Such a situation is highly suspicious. (vi) No relations or any independent advisor of the testator were present at the time of execution of the Will. (vii) The witnesses to the Will are not related to the testa¬tor and they have no previous acquaintance with the testator. The witnesses are picked up. (viii) While the P.W. No.2 in the cross-examination by the State stated that he came to the residence of P.W.1 where he found the testator, the P.W.3 and the Doctor were there and they all came to Okil Khana, the P.W.3 stated in the cross-examination by the State that he came directly to Okil Khana. (ix) P.W.2 has stated in the cross-examination by the State that the Doctor- D.C. Panda examined the testator and found him in good health and in sound mind and gave a certificate. The said certificate was not produced in the Court nor was the doctor examined. (x) In the Court of the Civil Judge (Sr. Division), Cuttack, a Civil Suit bearing T.S. No.32 of 1978 involving the suit property is pending. (xi) Though the witnesses for the plaintiff have stated that the testator was in sound health and sound mind, he died after four months of the execution of the Will. Each of the above observations and findings have been chal¬lenged in the appeal. 3. During the course of hearing of the appeal, learned counsel for the State submits that the property under the Will belongs to the State of Orissa. However, the State has not raised any objection with regard to the genuinity of the Will which it also could not have objected to. 4. Mr. 3. During the course of hearing of the appeal, learned counsel for the State submits that the property under the Will belongs to the State of Orissa. However, the State has not raised any objection with regard to the genuinity of the Will which it also could not have objected to. 4. Mr. S.P. Mishra, learned counsel for the appellant submits that the learned Court below has acted contrary to law in arriving at the aforesaid findings and dismissing the Probate Misc. Case. Relying upon the decision in the case of Ishwardeo Narain Singh v. Sm. Kamta Devi and others, AIR 1954 SC 280 , he submits that just because the Will is not registered, the Court cannot raise a suspicion for not accepting the Will as genuine inasmuch as a Will is not compulsorily registerable. He further submits that non-impletion of Smt. Bisakha Kar and the State of Orissa cannot be taken to be an adverse situation against the petitioner-appellant as the petitioner-appellant was ignorant about Smt. Bisakha Kar and the State of Orissa was not a neces¬sary party to the Probate Misc. Case as in a probate proceeding, the Court is only to consider a valid execution of the Will and the Probate Court lacks jurisdiction to decide valid title of the testator/testatrix over the properties bequeathed under the Will by granting a letter of administration. In support of the above contention, he relies upon the decision in the case of Ishwardeo Narain Singh (supra) and the decision in the case of Rabindra Nath Mukherjee and another v. Panchanan Banerjee (dead) by L.Rs. and others, AIR 1995 SC 1684 . With regard to the suspicious ground as mentioned by the Court below in the impugned judgment, which is noted in (iii) above, Mr. Mishra submits that the same cannot be accepted as a suspicious ground for not declaring the Will to be genuine. The Will was executed in the year 1995 and the witnesses were examined in the year 2004. Hence, even if, P.W.3 could not say as to who filled up the blank space at page 3 of the Will, P.W.2 has stated that he filled up the blank space in the Will. Even though in the cross-examination, he could not say as to who filled up the blank space, the blank space in the Will, according to Mr. Hence, even if, P.W.3 could not say as to who filled up the blank space at page 3 of the Will, P.W.2 has stated that he filled up the blank space in the Will. Even though in the cross-examination, he could not say as to who filled up the blank space, the blank space in the Will, according to Mr. Mishra, was with regard to the name and address of the witnesses and, as such, the same cannot be a suspicious ground. With regard to the suspicion raised in point no. (iv), Mr. Mishra submits that law is well settled that the property, if self-acquired, can be bequeathed under a Will when the testator has been neglected by his kith and kin which also includes his daughter and son-in-law. Such intention could have been gathered in view of the fact of execution of the Will. With regard to point no. (v), he submits that for gathering the inten¬tion of the testator for executing the Will, the Court should have looked at the Will, which clearly shows the intention for its execution. When all the P.Ws. have categorically stated in their evidence that the testator was in sound health and sound mind, the learned Court below should not have drawn an adverse inference for non-filing of the doctors’s certificate. The find¬ing of the Court below that the witnesses are strangers cannot be accepted as a ground to disbelieve as it is not legally required that a witness to a Will should be related to the testator, more so, in the instant case, when it is evident from the Will itself that the testator was neglected by all his kith and kin. Fur¬ther, Mr. Mishra submits that none of the witnesses stated that they had no acquaintance with the testator and nothing was put to them in the cross-examination in this regard. The discrepancies as noted by the learned Court below, according to Mr. Mishra, are bound to appear in view of the long gap between the date of execution of the Will and the date of examination of the witness inasmuch as the said discrepancies are minor in nature. The discrepancies as noted by the learned Court below, according to Mr. Mishra, are bound to appear in view of the long gap between the date of execution of the Will and the date of examination of the witness inasmuch as the said discrepancies are minor in nature. The finding of the Court below with regard to non-examination of the doctor and non filing of his certificate is also not sustainable as no question was put to any of the witnesses, whether the doctor was alive or dead and even, no question was put as to whether a certificate was granted by the doctor and his certifi¬cate exists on the Will. Further, a death certificate has been produced before this Court along with an application under Order 41, Rule 27 C.P.C. for accepting the same as additional evidence showing that the said doctor has died on 16.5.2003, i.e., much prior to the hearing of the Probate Misc. Case. The said document is accepted as additional evidence by this Court for just adjudi¬cation of the matter and this Court finds that the said doctor being dead by the time, the case was taken up for hearing and no question having been put to the witnesses with regard to this aspect of the case, the finding of the learned Court below in that regard is totally based on surmises and conjectures. The civil suit referred to by the learned Court below was also dis¬missed and, therefore, just because a suit was filed in respect of the properties under the Will cannot be a ground to disbelieve the Will. Smt. Bisakha Kar having failed to appear before the Court below and the suit which was filed having already been dismissed, the learned Court below could not have made a sugges¬tion in the order that the petitioner-appellant be impleaded as a party in the said suit or to file a suit for declaration of title and possession in respect of the property in question. Mr. Mishra further submits that the death of the testator after four months of the execution of the Will cannot be a ground for raising a suspicion when it has been clearly established that at the time of execution of the Will, the testator was in sound health and sound mind. 5. Mr. Mishra further submits that the death of the testator after four months of the execution of the Will cannot be a ground for raising a suspicion when it has been clearly established that at the time of execution of the Will, the testator was in sound health and sound mind. 5. In the case of Ishwardeo Narain Singh (supra), while analysing the facts of the said case, it was observed that there is nothing in law which requires the registration of a Will and Wills are in a majority of cases not registered at all. The Supreme Court held that to draw any inference against the genu¬ineness of the Will on the ground of its non-registration is wholly unwarranted. In the case of Rabindra Nath Mukherjee and another (supra), considering as to whether depriving natural heirs from succeeding to a property by execution of a Will, it was observed by the Supreme Court that this should not raise any suspicion, because the whole idea behind execution of Will is to interfere with the normal line of succession and, so, natural heirs would be de¬barred in every case of Will; of course, it may be that in some cases they are fully debarred and in other only partially. In the instant case, there are materials appearing on the face of the Will that the testator was neglected by all his kith and kin which by implication includes his daughter also. It is, there¬fore, more fortified that no suspicious circumstances can be presumed as because, the testator had only one daughter who was debarred by execution of the Will. It is well settled in law that the mode of proving the Will does not ordinarily differ from that of proving any other document except as to the special require¬ment of attestation prescribed in the case of a Will in Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances, surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. (See AIR 1959 SC 443 and AIR 1962 SC 567 ). The onus of proving the Will is on the propounder and in the absence of suspicious circumstances, surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. (See AIR 1959 SC 443 and AIR 1962 SC 567 ). In a Five Judges Bench decision in the case of Sashi Kumar Banerjee and others v. Subodh Kumar Banerjee since deceased and after him his legal representatives and others, AIR 1964 SC 529 with regard to appreciation of evidence of attesting witnesses to a Will, the Supreme Court held that where the evi¬dence of both the witnesses to the Will is that the Will was executed in the after-noon on the date on which it purported to have been executed, a slight discrepancy in the evidence of these witnesses as to the time, when the Will was executed is not so serious as to destroy the value of their evidence especially when the witnesses were giving evidence after 8 or 9 years after the execution of the Will. The said circumstance of that case clearly applies to the facts of the present case, where the evidence has been led similarly after about 8 to 9 years from the date of execution of the Will. The Supreme Court in the said decision has further held that the attesting witnesses to a Will happened to be chance witnesses is no ground for disbelieving their evidence and it may be that it is more usual for witnesses to be called when a person is intending to execute a Will; even so, there is nothing impossible in advantage being taken of the accidental presence of witnesses in this connection. In the present case, the learned trial Court has also acted without jurisdiction in entering into the question of title over the properties, which have been bequeathed under the Will, as a Court in which a “Will” is sought to be probated has no jurisdiction to examine the question of title to the property under the Will. 6. Analysing the facts of the present case in the touch¬stone of the ratio of the aforesaid case laws, it would be amply clear that the learned Court below has committed an error of law in arriving at the findings as quoted above. 6. Analysing the facts of the present case in the touch¬stone of the ratio of the aforesaid case laws, it would be amply clear that the learned Court below has committed an error of law in arriving at the findings as quoted above. The impugned judg¬ment, therefore, is not sustainable and this Court on analysing the materials available on record finds that the Will is a genu¬ine one; there is no suspicious circumstance concerning the execution of the Will; the testator executed the Will while in sound health and mind and the Will is the last Will of the testa¬tor. 7. In the circumstances, therefore, while setting aside the impugned judgment on the findings as above, this Court directs that the Will be probated and required letter of adminis¬tration be issued in favour of the appellant. The appeal is accordingly allowed. Appeal allowed.