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2012 DIGILAW 989 (PAT)

Kamta Devi v. Rekha Singh

2012-07-19

AJAY KUMAR TRIPATHI

body2012
ORDER This Misc. appeal arises out of judgment dated 21.01.2010 passed by Sri Ram Binod Singh, Additional District Judge IInd, Gaya in Title Suit No. 1 of 2009/2 of 2001. By virtue of this judgment Probate suit filed by respondent no. 1 Dr. Rekha Singh has been allowed declaring exhibit no. 1 i.e. the Will to be a legal and valid piece of document capable of being granted probate in favour of respondent no. 1, namely, Dr. Rekha Singh. Appeal has been filed by the Appellants-defendants assailing the order terming it to be erroneous both on the given facts as well as law. 2. An application under section 276 of the Indian Succession Act for grant of Probate to the estate of the deceased, late Dr. B. N. Singh was filed by the plaintiff-respondent no. 1 Dr. Rekha Singh, before the Additional District Judge IInd, Gaya. As per plaintiff’s case, she was widow of late Dr. B. N. Singh, who died on 7.1.2001. Late Dr. B. N. Singh had executed a Will in favour of the plaintiff on 16.04.1990 with regard to the properties detailed in Schedule I of the plaint. Plaintiff was one of the executor named in the Will. It was the stand in the suit that Will was executed by Late Dr. Singh in a sound state of health and mind, in presence of the witnesses who have testified and certified the genuineness of the document as well as signatures appended thereto. 3. It was also stated that Late Dr. B. N. Singh had yet another wife, namely, Kamta Devi, who was made defendant no. 1 and a son Lalan Kumar Singh, who was defendant no. 2. Since they also happened to be the legal heirs, they were necessary parties to the proceeding initiated on behalf of the plaintiff for grant of Probate. 4. The so called document or the Will was marked as Ext. 1 and there was no dispute with regard to its authenticity on any of the aspect or its existence. What is of significance is that the defendants, who happen to be the appellants in the present appeal, lodge their attack against grant of probate, primarily, on two grounds; (i) that Ext. 1 and there was no dispute with regard to its authenticity on any of the aspect or its existence. What is of significance is that the defendants, who happen to be the appellants in the present appeal, lodge their attack against grant of probate, primarily, on two grounds; (i) that Ext. 1 was not a Will as a reading of the said document in its entirety would show and (ii) even if it was accepted to be a Will, it was obtained under coercion and persistent demand made by the plaintiff upon Dr. B. N. Singh as the plaintiff was in constant companionship and had occasion to prevail upon him thereby preventing him from executing the said document independent of his opinion, mind and Will. 5. Both these aspects have been seriously contested by respondent no 1, who happened to be the plaintiff in the court below. Her contention is that no fault lies with the decision of the court below in award of the probate in her favour because the document read as a whole is an indicator to only one conclusion that the said Ext. 1 is nothing else but a Will which creates right in favour of Dr. Rekha Singh after the demise of Dr. B. N. Singh. The interest of the property so described in the Will passes on to her and her daughters whose names are indicated therein. Widest of interpretation has to be given to such document; especially because the wish of the person executing document must be fulfilled and the object in grant of probate is part of the said exercise. 6. Learned counsel representing the appellants relies on a decision in the case of Namburi Basava Subrahmanyam Vs. Alapati Hymavathi and others reported in (1996) 9 SCC, 388 in support of his contention that the document is not a Will and, therefore, the court below has committed serious error of judgment in granting probate in favor of the plaintiff-respondent. Emphasis is on paragraph 5 of the said decision as to how such documents are to be viewed and interpreted by a court of law. 7. Learned counsel representing the respondents has brought to the notice of this Court a Division Bench decision of the Hon’ble Patna High Court which was the case of Rajeshwar Misser and othrs Vs. Sukhdeo Missir reported in AIR 1947 Patna, 449. 7. Learned counsel representing the respondents has brought to the notice of this Court a Division Bench decision of the Hon’ble Patna High Court which was the case of Rajeshwar Misser and othrs Vs. Sukhdeo Missir reported in AIR 1947 Patna, 449. Attention has been drawn specially to paragraph 5 and certain portions of paragraph 6 of the aforesaid decision which is reproduced here-in-below : “5. “Will” has been defined in S.2, Succession Act to mean the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. The manner in which, in ordinary cases, that will may be expressed has been prescribed in S. 63 to which I have already referred, and, under S. 59, a will may be made by every person of sound mind not being a minor. Here, there is no suggestion that, at the time of the making of the will, Sarwan and Balgobind were minors. On the contrary, it is the case of both parties that they were old men. Further under S. 62, a will is liable to be revoked or altered by the maker of it at any time while he retains his capacity to dispose of his property by will. These are the two characteristics of a will, namely, it must be intended to come into effect after the death of the testator, and, secondly, it must be revocable. That, at the time of the execution of the document, the executants were unaware that it was a will and that they thought that it was a document of some kind is irrelevant; it is the intention of the executants, as expressed in the document, which decides the question. Thus, in 10 Cal.792, a tamliknama executed for the purpose of effecting a transfer of property was held by their Lordships of the Judicial Committee to be a will. The case is of special interest because the argument that the document was not a will relied very strongly upon the use of the word “assign” and upon the reservation of a life interest to the donor. In dealing with this contention, their Lordships said : “No doubt both those circumstances tend towards the conclusion to which Mr. Woodroffe wished to lead their Lorships, but they are by no means conclusive. In dealing with this contention, their Lordships said : “No doubt both those circumstances tend towards the conclusion to which Mr. Woodroffe wished to lead their Lorships, but they are by no means conclusive. If they had been the words of an English conveyancer preparing an English instrument, they would have afforded a very strong argument; but the instrument was prepared by Lal Sundar, and we must not construe with too great nicety, or assign too much weight to the exact words that he uses for a transfer of property, as if he were accurately weighing the difference between a testamentary instrument and one operating inter vivos. We must remember that wills are comparatively new in any part of India, and are of more recent introduction in Oudh in respect to this class of property. So with respect to the reservation of a life interest. The will being not a very familiar instrument to the people who prepare it or who sign it, the testator often does express a great anxiety that he shall not be considered to have parted with any thing in his lifetime, and their Lordships have seen here instruments which most unquestionably were wills, and intended to operate as such, in which nevertheless there have been expressions upon the face of them intimating that the testator intends to remain the owner of his property until he dies.” (emphasis mine) To state one more instance, in A.I.R. 1924 Mad, 605 a document described as a deed of gift was held to be a will. The relevant portions of the document were as follows : “You shall yourself after my lifetime use and enjoy the two rooms built on the ground of the house Municipal No. 11……..I shall myself enjoy the rent in respect of those two rooms as long as I may be alive. You shall yourself use and enjoy after my lifetime that rent and that ground and the two rooms from son to grandson and so on in succession with power to gift, mortgage, exchange and sale. No one has any right to or interest in those rooms. To this effect is the gift deed document executed and given in respect of the aforesaid two rooms and their grounds.” Here, again, we find specific provision made preserving the rights of the donor during his lifetime. 6. No one has any right to or interest in those rooms. To this effect is the gift deed document executed and given in respect of the aforesaid two rooms and their grounds.” Here, again, we find specific provision made preserving the rights of the donor during his lifetime. 6. xxx xxx xxxx “The document is very badly drafted and the meaning is obscure, but it is clear that what it expresses is the intention of the executants as to what should happen to their property after the death of themselves and their wives. The postponement of the operation of the document till after the death of the wives does not prevent the document from being a will; vide 36 Cal.149. “ (emphasis mine) 8. The second contention of the appellants that late Dr. B. N. Singh was not allowed to have an independent application of mind and freedom of decision due to constant presence of the plaintiff and persistent demand made from her, stand of respondent no.1-plaintiff is that there are enough materials to show that she was married to late Dr. B. N. Singh as she was a junior when they were pursuing their MBBS studies at Patna Medical College Hospital, Patna. They got married and set up their practice at Gaya. No doubt, late Dr. B. N. Singh was earlier married to Smt. Kamta Devi when he was still young and at school and they had also an off spring, namely, Lallan Kumar Singh but Smt. Kamta Devi never lived with Dr. B.N. Singh at any point of time. It is also not disputed that Dr. Singh took care of his first wife but for all practical purposes the world new Dr. Rekha Singh as the wife of Dr. B. N. Singh and they lived in the same property at Gaya and they had a clinic at Gaya and it is because of such a factual position that Dr. Singh decided to formulize things by creating a Will in her favour. A reading of the Will will show that the property described therein is confined to the property which was known as Clinic-cum-residence in the town of Gaya and certain other properties described therein which was supposed to pass over to their four daughters, whose names are indicated. The Will was in existence for almost 10 years before his death. A reading of the Will will show that the property described therein is confined to the property which was known as Clinic-cum-residence in the town of Gaya and certain other properties described therein which was supposed to pass over to their four daughters, whose names are indicated. The Will was in existence for almost 10 years before his death. If he had any change of mind nothing prevented him. Besides there is no evidence but only allegation that the testator did not exercise his free will. 9. On a submission made at the Bar by the learned counsel representing the appellants that the deed itself does not describe Dr. Rekha Singh as the wife of Dr. B. N. Singh. It is clarified by the plaintiff-respondent no. 1 that one of the reasons which could have weighed with Dr. B. N. Singh for not describing Dr. Rekha Singh as the wife was because Dr. B. N. Singh was a government servant and holding responsible post of Professor-cum-Head of the Department of Radiology and he did not want to create any problem of any kind for himself or otherwise by showing her to be second wife when the first wife was already alive. However, that aspect of the matter can never flout the contents of the documents or the object of the Will so declared because a second marriage was not an issue on which the Will or probate can be declared invalid in any manner. 10. There are enough materials which emerge from perusal of the original records as well as the exhibits which have been taken note of by the court below that Dr. Rekha Singh was accepted in the family as the second wife. The personal letters written by the wife of Lallan Kumar Singh, the son, the off spring from the first wife Smt. Kamta Devi establishes that there was nothing hidden about the said fact. Those aspects have been taken note of by the court below in coming to a conclusion that there could have been circumstance that Dr. B. N. Singh decided to execute the Will and pass on the property after his demise in favour of Dr. Rekha Singh and her four daughters. 11. Those aspects have been taken note of by the court below in coming to a conclusion that there could have been circumstance that Dr. B. N. Singh decided to execute the Will and pass on the property after his demise in favour of Dr. Rekha Singh and her four daughters. 11. The Court has no hesitation in coming to an opinion that the law laid down by the Hon’ble Patna High Court in the case of Rajeshwar Misser (Supra) states the correct position that the Court has to take a very broad view in such matters and in reading of such documents hyper technicality should not be used for defeating the claim or the benefit which is supposed to accrue in favour of the executor. The judgment of the Hon’ble Supreme Court cited at the Bar on behalf of the appellants does not have any co-relation with the actual state of affair and the reading of the document in question. 12. In totality, therefore, this Court has come to a considered opinion that the court below has not committed any factual or legal error in granting the benefit of probate in favour of the plaintiff or the respondents in the present appeal. 13. The decision or judgment of the court below dated 21.01.2010 passed in Title Suit No. 1 of 2009/2 of 2001, therefore, does not warrant any interference by this Court. This appeal is dismissed. 14. Let the original records be remitted back to the court below by the office at the earliest.