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2015 DIGILAW 336 (GAU)

Kalikanta Kalita v. Mahat Kalita

2015-03-19

NISHITENDU CHAUDHURY

body2015
JUDGMENT : This is an appeal under Section 299 of the Indian Succession Act, 1925 challenging the judgment dated 1.11.2003 passed by learned Ad hoc Additional District Judge No.3, Kamrup, Guwahati in Probate Testamentary Suit No. 11 of 2000. The learned trial court by that judgment granted probate in favour of the petitioner therein. 2. One Mahesh Kalita as executor filed application under Section 276 of the Indian Succession Act in the court of learned District Judge, Kamrup stating that the Will dated 15.6.1994 annexed to the application was the last Will and Testament of his mother Asman Bala Kalita who subsequently died on 9.1.1997. It is stated that the value of the property bequeathed by her was Rs.25,000/- and that the testatrix executed the Will in presence of a scribe and two attesting witnesses being in sound and disposing state of mind. The application was verified by one attesting witness, namely, Biswajit Sharma. On being summoned three other sons of testatrix appeared and submitted written statement contesting the claim. Those three sons, namely, Kalikanta Kalita, Harish Kalita and Mahesh Kalita submitted a joint written statement. According to them, the Will was fraudulent and it was never executed by their mother. Rather during her lifetime the testatrix expressed her mind in presence of all parties that after her death, her share in the property inherited from the predecessor would be distributed equally among her surviving sons. According to the objector, the statements made in the application praying for probate are false, concocted and misrepresentation of real fact. It is also claimed that land described in Schedule ' “A to the application is a joint family property inherited from their father. The testatrix was only one of the many legal heirs of the original owner and so she could not have bequeathed whole of the property left behind by their father. With these averments on fact, objector prayed that the application for probate be dismissed. 3. Once an objection was filed contesting the application under Section 276 of the Indian Succession Act, 1925 and the proceeding automatically got converted in the form of a suit by operation of Section 295 of the Indian Succession Act and so the learned trial court framed four issues and relegated the parties to lead their respective evidence. 4. Plaintiff examined three witnesses including himself and adduced documentary evidences. 4. Plaintiff examined three witnesses including himself and adduced documentary evidences. The defendant also examined two witnesses and proved their documents. Upon perusal of these materials, the learned trial court arrived at the finding that Will Exhibit-1 was duly executed by testatrix, Asman Bala Kalita on 15.6.1994 being in sound and disposing state of mind. The question, however, as to whether Asman Bala Kalita was the absolute and exclusive owner of the property described in the Will was left open as a probate court is not required to enter into the question of title of the testatrix/testator. A probate court is duty bound only to see as to whether execution of a Will is surrounded by suspicious circumstance and if so whether the propounder succeeded to repeal all iota of suspicion. The limited responsibility of probate court is to see as to whether a Will was really executed being in sound and disposing state of mind and whether it was witnessed by at least two attesting witnesses. This judgment passed by the learned Ad hoc Additional District Judge on 1.11.2003 granting probate in favour of Mahat Kalita has been called in question in the present appeal. 5. I have heard Ms. A Lakhar, learned counsel for the appellant and Mr. PP Das, learned counsel for the respondent. I have perused the deposition of the witnesses and the exhibits adduced by them. 6. Ms. A Lahkar, learned counsel for the appellant would argue that the testatrix was illiterate. Propounder Mahat Kalita himself being the beneficiary, influenced the old aged mother and might have obtained her thumb impression on the Will. The testatrix on the other hand was only one of the many legal heirs of the original owner i.e. her husband. So the objectors also inherited their due share in the property after death of their father, the original owner and so they became joint owners of the property. That being the position, the testatrix could not have bequeathed the entire property by any Will. 7. Per contra, Mr. PP Das, learned counsel for the respondent would argue that the propounder examined a scribe and an attesting witness to prove due execution of the Will. The attesting witness, namely, Biswajit Sharma spoke in no uncertain terms that he was invited to the house of the testatrix by propounder on the date the Will was executed. 7. Per contra, Mr. PP Das, learned counsel for the respondent would argue that the propounder examined a scribe and an attesting witness to prove due execution of the Will. The attesting witness, namely, Biswajit Sharma spoke in no uncertain terms that he was invited to the house of the testatrix by propounder on the date the Will was executed. The Will was written in his presence by PW-3 Satin Thakuria as per dictation of the testatrix. Thereafter, PW-3, Satin Thakuria read over the Will to the testatrix, who having found the same as per her dictation, gave her thumb impression in his presence. He proved the Will as Exhibit-1 and signatures of the testatrix as Exhibit-1(1) and Exhibit-1(2). Thereafter, he gave signature on the Will in presence of the testatrix and Exhibit-1(3) is his signature. The other two attesting witnesses thereafter gave signatures in his presence and their signatures were proved as Ehibit-1(6) and Exhibit-1(7). This attesting witness was put to cross examination. In course of cross-examination, it was suggested that he was not present when the Will was written but he stoutly denied the same. From the cross-examination nothing is available to disbelieve this witness about his statement of having witnessed execution of the Will. With these submissions, Mr. PP Das would argue that the learned trial court committed no error in holding that the Will was duly executed. 8. PW-1 is propounder in this case. He stated that on 10.1.997 his mother died and before her death she had executed Exhibit-1 Will on 15.6.1994 and thereby land measuring 1 katha 6 lechas was bequeathed to him. His other brothers, namely, Kalikanta Kalita, Harish Kalita and Mahesh Kalita and his mother were in sound and disposing state of mind when the Will was executed. He stated that the Will was written by Satin Thakuria sitting in his house and after the same was written, it was read over to Asman Bala Kalita. Thereafter, his mother gave thumb impression on the Will in presence of attesting witness, Biswajit Sharma, Chandrakanta Das and Giribala Mahanta. The attesting witnesses thereafter gave their signatures. Exhbit-2 is the Jamabandi of the land in respect of which Will was executed. He admitted that his brothers participated in ‘shraddha ceremony’ of his mother. He denied that the Will was never executed and that it was fraudulent etc. The attesting witnesses thereafter gave their signatures. Exhbit-2 is the Jamabandi of the land in respect of which Will was executed. He admitted that his brothers participated in ‘shraddha ceremony’ of his mother. He denied that the Will was never executed and that it was fraudulent etc. The rest of the cross-examination is in regard to the title of the property. PW-2, Biswajit Sharma stated that on 15.6.1994, he went to attend a patient near the house of Mahat Kalita when Mahat Kalita requested him to come to his house. Sri Satin Thakuria was present there and he read the Will as dictated by Asman Bala Kalita and after writing the Will , writer Satin Thakuria read over the contents of the Will to her, who on being satisfied that the same were as per her dictation, gave her thumb impression on the Will in presence of the witnesses. After Asman Bala Kalita gave her thumb impression, the witnesses gave their respective signatures. He proved Will as Exhibit-1 and thumb impression of the testatrix Ehibit-1(1) and Exhbit-1(2). He proved his own signature as Exhibit-1(3). He stated that other two witnesses, namely, Chandrakanta Das and Giribala Mahanta gave signature vide Exhbit-1(6) and exhibit-1(7) respectively. In course of cross-examination, he did not change his position. He stated that on being requested by Mahat Kalita, he came to his house where Satin Thakuria wrote the Will in his presence as per dictation of the testatrix. He also sticked to his claim that the Will was read over to testatrix after the same was written and it is only thereafter she gave her thumb impression on the Will. The cross-examination of this witness does not reveal any ground to disbelieve the statements given by him on oath. 9. PW-3 is the scribe of the Will. He stated that on 15-6-1994 he wrote the Will sitting in the house of Asman Bala Kalita on her request. He wrote the Will as per dictation of Asman Bala Kalita and after writing the Will he read over the same to her. On being satisfied that it was as per her dictation, Asman Bala Kalita gave her thumb impression on the Will in presence of him and other two witnesses. At the time of execution of the Will testatrix was found hale and hearty. On being satisfied that it was as per her dictation, Asman Bala Kalita gave her thumb impression on the Will in presence of him and other two witnesses. At the time of execution of the Will testatrix was found hale and hearty. He proved thumb impression of the testatrix as Exhibit-1(1) and Exhibit-1(2) and his signature as Exhibit-1(4) and Exhibit-1(5). He also proved the signature of other two attesting witnesses as Exhibit-1(6) and Exhibit-1(7). In course of cross-examination he was pointedly suggested that he did never read over the Will to the testatrix after writing the same but he denied the suggestion. 10. DW-1 Kalikanta Kalita stated that Will was never executed by Asman Bala Kalita and rather she had executed a Bibaghnama on 3-4-1994 expressing that the petitioner and the opposite party would share the property after her death. Exhibit-Ka is that document. He stated that the land described in the Will was never the property of the testatrix alone. It was self-acquired property of their father Late Sargaram Kalita and after his death in course of chita mutation, name of testatrix was written as they were minors at that time but when they attained majority, land was mutated in the name of opposite parties and the name of the petitioner as well. Exhibit-2 Jamabandi was mentioned in this regard to show that name of testatrix was struck off and names of the petitioner and the opposite parties were there. However, in course of cross-examination, he admitted that their names were entered into records of rights only after death of the testatrix. Be that as it may, whole of the evidence of DW-1 is in regard to the title of the property and not in regard to the execution of the Will or suspicious circumstance surrounding the execution. Mahesh Kalita examined himself as DW-2. Mahesh Kalita also spoke in the same way. He also claimed that opposite party and the testatrix shared the whole property and testatrix was never absolute owner of the property and so she never could have executed Will in respect of the entire property. According to him, petitioner misled the testatrix by concealing material fact and induced her to execute the Will. He also claimed that opposite party and the testatrix shared the whole property and testatrix was never absolute owner of the property and so she never could have executed Will in respect of the entire property. According to him, petitioner misled the testatrix by concealing material fact and induced her to execute the Will. Thus, it is clear that while plaintiff led evidence to prove due execution of the Will, the opposite party rather led evidence to show that the testatrix was not the absolute and exclusive owner of the property with respect to which Will was executed. The learned trial court rightly did not enter into the question of the title of the property and left the matter open. Whether testatrix was the owner of the whole property cannot be subject matter of probate proceeding. The parties shall be at liberty to get the matter duly adjudicated by a competent civil court, if they so desire. Probate application shall remain only confined to the question as to whether the Will was duly executed by testatrix being in sound and disposing state of mind and as to whether there was any suspicious circumstances surrounding the execution. Here in this case, as pointed about, opposite parties having raised a question that the Will was fraudulent and not executed by testatrix virtually led no evidence to prove their assertion. On the other hand, plaintiff being propounder of the Will discharged his burden. Under S. 63 of the Indian Succession Act, 1925, a Will has to be necessarily attested by at least two witnesses. In the case in hand, Exhbit-1 is attested by two witnesses. Section 68 of the Evidence Act requires that a document which is required by law to be attested shall not become admissible in evidence unless at least one of the attesting witness, if alive, is examined. Plaintiff in this csae, examined PW-2 Biswajit Sharma as the attesting witness. Will contains signature of three attesting witnesses, namely, Biswajit Sharma, Chandra Kanta Das and Giribala Mahanta. If at least one of them is examined then the condition precedent of S. 68 of the Evidence Act becomes fulfilled. With the examination of Biswajit Sharma, Exhibit-1 Will has become admissible in evidence. Biswajit Sharma has duly stated that he was present when the Will was executed by Asman Bala Kalita and then he gave his signature in her presence. With the examination of Biswajit Sharma, Exhibit-1 Will has become admissible in evidence. Biswajit Sharma has duly stated that he was present when the Will was executed by Asman Bala Kalita and then he gave his signature in her presence. At that time other two attesting witnesses were present there and they gave their respective signatures. So it is clear that all the three witnesses gave their signature in one sitting on 15-6-1994 after the Will was executed by the testatrix. The only suspicious circumstance indicated by opposite party is that testatrix used to reside with the propounder during her last days and so he might have induced her to execute Will. Having made the allegation, it was the burden of the opposite party to bring some evidence on record to show that such an inducement did really exist. The learned trial Court did not believe that such inducement was there and so held that there was no suspicious circumstance surrounding the Will. Having gone through the deposition of PW-3, it is clear that Will was written as per dictation of the testatrix and thereafter it was read over to her. The Will was executed on 15-6-1994 and she died three years thereafter on 10-1-1997. No evidence has been led by the opposite party to show that she was not in sound and disposing state of mind at the time of the execution of the Will. Rather all PWs spoke in one voice saying that she was hale and hearty at the time of execution of the Will. This being the position, I do not find any ground to interfere with the judgment and award passed by the learned probate Court. Accordingly, the appeal stands dismissed. As observed, question of title of the property is kept one. Parties shall be at liberty to get the same adjudicated, if so desire. 11. No order as to cost. Appeal dismissed.