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2015 DIGILAW 463 (CAL)

Bindeswari Dubey v. Uttama Debi

2015-06-05

ASHA ARORA, NISHITA MHATRE

body2015
JUDGMENT Nishita Mhatre, J. 1. Gobordhan Dubey died on 29th November, 1989 leaving behind his wife, four sons, and the wife and children of his pre-deceased son. Gobordhan Dubey allegedly executed a Will on 6th November, 1980 and his sons Bindeswari, Lakhu and Prabhu Dubey were the executors of the Will. Prabhu Dubey, however, died prior to his father. After the death of Gobordhan Dubey, Bindeswari Dubey filed an application for probate of his father’s Will being Probate Case No.13 of 1991. The application was contested by the other heirs of Gobordhan Dubey and was converted to O.S. No.1 of 1995. Bindeswari contended in his plaint that his brother, Lakhu was in possession of the original registered Will of Gobordhan Dubey. He pleaded that despite repeated requests, Lakhu had refused to produce the original Will and therefore the plaintiff had submitted that application on his own for probate on the basis of a certified copy of the Will of Gobordhan Dubey. 2. The defendants, i.e., the other heirs of Gobordhan Dubey, by two separate written statements denied the existence of a Will executed by Gobordhan Dubey. They contended that it was because a civil suit had been instituted by them against the plaintiff, Bindeswari, that he created a story about the existence of a Will in order to frustrate the pending litigations between the parties. 3. The plaintiff, Bindeswari examined himself before the Court in support of his claim and also adduced the evidence of four other witnesses, two of whom were allegedly the attesting witnesses to the Will of Gobordhan Dubey. PW 2, an employee in the office of the District Registrar at Alipore, South 24 Parganas, was examined in order to prove the certified copy of the Will. PW 5 was the son of the advocate who allegedly drafted the Will of Gobordhan Dubey. Lakhu testified in the Court on behalf of all the defendants to rebut the evidence of the plaintiff. 4. The Trial Court, i.e., the Additional District Judge, Alipore, by his order dated 26th March, 2004 dismissed the O.S. No.1 of 1995 and refused to grant the probate to the plaintiff. The Trial Court did not believe the version of the plaintiff that Gobordhan Dubey had executed a Will. 4. The Trial Court, i.e., the Additional District Judge, Alipore, by his order dated 26th March, 2004 dismissed the O.S. No.1 of 1995 and refused to grant the probate to the plaintiff. The Trial Court did not believe the version of the plaintiff that Gobordhan Dubey had executed a Will. On the basis of the evidence on record, the Trial Court concluded that the plaintiff was unable to prove that the Will was in the custody of defendant No.2 - Lakhu Dubey. The evidence of PWs 3 and 4, the attesting witnesses, was disbelieved as there were too many contradictions in their testimonies. Moreover, the Trial Court observed that neither of the attesting witnesses had stated anything about the factum of the registration of the Will which the plaintiff in his testimony had mentioned. The evidence of PW 5, the son of the advocate who drew up the Will, has been regarded as “rubbish” by the Trial Court. This was because PW 5 claimed that he was also present when the Will was executed at the residence of Gobordhan Dubey. The Trial Court observed that none of the witnesses, examined by the plaintiff, had mentioned the presence of PW 5 in the room where the Will was executed. The certified copy of the Will had not been proved and the testimony of PW 2 who was an employee in the office of the District Registrar had failed to support the contention of the plaintiff. The Court observed that despite the fact the register had been produced in Court, the certified copy of the Will had not been proved and therefore could not be exhibited. This was because the witness had not brought any report from the District Registrar showing that his office had searched for the original Will and it was untraceable. The Court accepted the evidence of defendant No.2 – Lakhu. He denied the existence of a Will of Gobordhan Dubey. Therefore, the Court came to the conclusion that the plaintiff had failed to establish that Gobordhan Dubey had executed a Will and dismissed the proceeding. Being aggrieved by the decision of the Trial Court, the plaintiff has filed the present appeal. 5. Mr. He denied the existence of a Will of Gobordhan Dubey. Therefore, the Court came to the conclusion that the plaintiff had failed to establish that Gobordhan Dubey had executed a Will and dismissed the proceeding. Being aggrieved by the decision of the Trial Court, the plaintiff has filed the present appeal. 5. Mr. Hiranmay Bhattacharya, the learned Counsel appearing for the plaintiff / appellant, has drawn our attention to several provisions of law to fortify his submission that the Trial Court had erred in not exhibiting the certified copy of the Will in evidence. He has submitted that the evidence on record amply proves that the Will was executed by the deceased Gobordhan Dubey and that it had been registered. According to the learned Counsel, although it was not marked as an exhibit during the trial, the Appellate Court can always do so under Section 107 of the CPC read with Order 41 Rule 27. The learned Counsel further submitted that the Trial Court had erred in not appreciating the fact that once a certified copy was produced and the nominee from the Registrar’s office who had been examined as the plaintiff’s witness had stated that the original Will was not available, the Court ought to have admitted the certified copy of the Will as an exhibit. He pointed out that the registration of a Will is not mandatory under the Registration Act, 1908, but the Will of Gobordhan Dubey had been registered as mentioned by the plaintiff in his evidence. The Court ought to have marked the certified copy of the registered Will as an exhibit contended the learned Counsel. The original was in fact in the possession of Lakhu and all attempts on the part of the plaintiff to request Lakhu to produce the Will, had failed. The learned Counsel urged that the plaintiff was therefore constrained to file the present proceedings for probate on the basis of a certified copy of the Will. 6. Mr. Sankar Nath Dhar, the learned Counsel appearing for the respondent, has submitted that no evidence was adduced to establish that the original Will of the testator was with Lakhu. He has pointed out that no search report had been submitted. He then submitted that a tenancy right could not be bequeathed. The learned Counsel urged that the judgement of the trial Court need not be disturbed. 7. He has pointed out that no search report had been submitted. He then submitted that a tenancy right could not be bequeathed. The learned Counsel urged that the judgement of the trial Court need not be disturbed. 7. It appears from the submissions of the learned Counsel that the parties had accepted the partition of almost all the properties except a sweet meat shop at Kalighat. Therefore, the bone of contention appears to be this sweet meat shop which Lakhu claims was his own while the plaintiff contends that it belonged to his father. 8. Let us now consider the provisions of law referred to by Mr. Bhattacharya. Under Section 237 of the Indian Succession Act, 1925 when a Will is lost or misplaced after the testator’s death or destroyed by accident and a copy of the draft of the Will has been preserved, the probate may be granted on the basis of such copy until the original or properly authenticated copy is produced. Under Section 239 of the Act, if a Will allegedly executed by the testator is in the possession of a person who has refused or neglected to deliver it but a copy is transmitted to the executor of the Will, probate should be granted in the interest of the estate, without waiting for the arrival of the registered Will. This section is applicable when the Will is in possession of a person residing in a state other than the one in which the application for probate has been made. 9. The learned Counsel Mr. Bhattacharya then drew our attention to Sections 63 and 65(c) of the Indian Evidence Act, 1872 relating to production of secondary evidence. Under Section 65(c) of the Act, a document can be introduced as secondary evidence if the original Will has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. The learned Counsel has submitted that since the original Will which was in the possession of Lakhu was not produced by him, there was no alternative for the plaintiff but to seek a probate on the basis of a certified copy of the Will. 10. The learned Counsel has submitted that since the original Will which was in the possession of Lakhu was not produced by him, there was no alternative for the plaintiff but to seek a probate on the basis of a certified copy of the Will. 10. The learned Counsel then submitted that the Will was not mandatorily registerable under Section 17 of the Registration Act, 1908, but Gobordhan Dubey had chosen to register the same in terms of Section 18(c) of the Registration Act. Under Section 27 of the Act, a Will may be presented for registration or deposited in the manner provided in the subsequent Section of the Act. Section 32 of the Act requires that every document which is to be registered under the Act whether compulsorily or on an optional basis must be presented in the registration office by a person executing or claiming under the document or by his representative or assign. 11. Section 34 of the Registration Act stipulates the manner in which the Registering Officer should conduct an enquiry preceding the registration of a document. Sections 40 provides that the testator, or after his death the executor of his Will should be present to register the Will. Before the document is registered the Registering Officer must be satisfied under section 41 that the Will was executed by the testator, that the testator is dead and that the person presenting the Will under Section 40 for registration is entitled to present the same. A register of wills and authorities is to be maintained under Section 51 of the Registration Act. Inspection of these records can be sought under Section 57. Certified copies of entries made in the register maintained under Section 51 may be obtained on payment of fees. Sub-section (5) of Section 57 provides that all copies given under this Section shall be signed and sealed by the Registering Officer and shall be admissible for the purposes of proving the contents of the original document. Under Section 58 every document, which is admitted for registration, must be endorsed with the signature of each person admitting the execution of the document and by the signature of the representative, assign or agent of the person admitting the execution. Under Section 58 every document, which is admitted for registration, must be endorsed with the signature of each person admitting the execution of the document and by the signature of the representative, assign or agent of the person admitting the execution. If a person refuses to endorse the document although he admits the execution of the same the Registering Officer can nevertheless register the same but is expected to endorse a note of such refusal. Mr. Bhattacharya’s endeavour has been to establish that the certified copy of the Will ought to have been exhibited by the trial Court since the stipulations contained in the aforesaid sections had been complied. However the attempt has been tenuous. 12. Reliance has been placed by the learned Counsel for the Appellant on certain provisions of the Indian Evidence Act. It was submitted that the Appellant had no option but to adduce secondary evidence to prove the Will of Gobordhan Dubey because Lakhu refused to produce the original. Learned Counsel submitted that in view of the fact that the Will had been proved by secondary evidence, it should have been marked as an exhibit by the trial court. He urged that under Section 114(e) of the Evidence Act a presumption has to be drawn that the Will was genuine and its existence must be accepted. The learned Counsel then tried to impress upon us that even at the appellate stage the certified copy of the Will could be marked as an exhibit under Order 41 Rule 27 read with Section 107 of the Code of Civil Procedure. 13. There is no doubt that to obtain probate of a Will, the original Will must be annexed to the application. It is only in exceptional circumstances where the original Will is lost or destroyed or cannot be produced by the executor because it is with a person in another state that the grant is limited in duration. The contention of the Appellant that he was unable to annexe the original Will because of the obdurate attitude of Lakhu (Defendant No.2) in not producing the original is not borne out from the evidence on record. There is no material besides the word of the Appellant that Lakhu was in possession of the original Will. The contention of the Appellant that he was unable to annexe the original Will because of the obdurate attitude of Lakhu (Defendant No.2) in not producing the original is not borne out from the evidence on record. There is no material besides the word of the Appellant that Lakhu was in possession of the original Will. There is no evidence on record to indicate that the Appellant had at any point of time called upon Lakhu in writing to disclose the original Will of their father. Thus, we concur with the trial court on this aspect of the matter that there was no material on record to show that Gobordhan Dubey had executed a Will or that the original was in Lakhu’s possession. 14. The contention of the Appellant is that because of Lakhu’s denial of the existence of the Will, he was required to produce a certified copy of the same. Under Sections 237 and 238 of the Succession Act a probate of a Will which is lost or misplaced since the testator’s death can be granted on the basis of a copy of the Will. In fact, probate can be granted even when there is neither a copy is available nor is any draft preserved. The probate in such cases can be granted if the contents are established by evidence. The reliance placed by Mr. Bhattacharya on section 239 of the Succession Act is misplaced. This section comes into play only when the Will is in possession of a person residing outside the state in which the application for probate has been made. No evidence has been led to establish that Lakhu who was allegedly in possession of the Will was residing outside the State of West Bengal. 15. The certified copy, which was annexed to the plaint, has not been proved in accordance with law by the Appellant. Although Mr. Bhattacharya had drawn our attention to several provisions of law with respect to the Registration Act and the Evidence Act, we are unable to accept his argument that the learned trial court fell in error by not accepting a certified copy of the Will of Gobordhan Dubey and admitting it into evidence. P.W.2 was an officer from the office of the District Registrar, Alipore. His evidence does not lend credence to the contention of the Appellant that Gobordhan Dubey had executed a Will. P.W.2 was an officer from the office of the District Registrar, Alipore. His evidence does not lend credence to the contention of the Appellant that Gobordhan Dubey had executed a Will. The witness admitted that he had not brought before the Court any report from the District Registrar showing that a search was conducted and that the registry had failed to trace the Will. The register containing the thumb impressions of the testator was not produced before the Court although it was the case of the appellant that the testator himself had the document registered. Therefore, the trial court rightly disbelieved the testimony of P.W.2 and held that the execution of the Will was not proved. The documents from the Registrar’s office do not support the contention of the Appellant that a Will had been executed by Gobordhan Dubey and that it was attested, as required under the Succession Act. The claim of the Appellant that he was the propounder of the Will and therefore, was aware that the Will had been executed by his father in accordance with law is not borne out from the evidence on record. The two witnesses, who claimed to be attesting witnesses, have been disbelieved by the trial court and rightly so. In such circumstances the contention of Mr. Bhattacharya that since the register was produced in court, it sufficiently proved the existence of a Will, is not tenable. Even assuming the existence of the Will is to be accepted, the Will cannot be accepted as genuine on considering the depositions of the appellants witnesses. 16. It is, thus, difficult to accept the contention of the Appellant that a Will had been executed by his late father and that it had been executed in accordance with law with two persons witnessing the execution of the document. 17. In these circumstances, the appeal is dismissed. 18. No order as to costs. 19. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.