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2015 DIGILAW 95 (ORI)

Debi Prasad Mohapatra v. State of Orissa

2015-02-11

D.DASH

body2015
JUDGMENT D. DASH, J. - The appellant’s petition under Section 276 of the Indian Succession Act, 1925 having been dismissed by the learned Civil Judge (Sr. Divn.), Khurda, the present appeal has been preferred. 2. Facts necessary for the purpose of this appeal are as under : The appellant being armed with a will said to have been executed by testatrix Dinamani Mohapatra who is the father’s sister of the appellant filed an application on her death for grant of a probate with the copy of the said will annexed to it. It is stated that Dinamani Mohapatra was being taken care of by this appellant for a long period and she was staying with him. Therefore, on 07.10.1995 she executed her last will bequeathing all her properties both moveable or immovable in favour of the appellant. It is further stated that the will was written under the instruction of Dinamani Mohapatra and she had voluntarily executed the same in presence of the attesting witnesses namely, Mina Mohapatra P.W.2 and Santosh Pradhan (not examined). It is the further case of the appellant that prior to the execution of the will by the testatrix after the will was written, its contents were readover and explained to her, when the attesting witnesses namely, Mina Mohapatra and other were present and in their presence testatrix put her LTI followed by necessary endorsement to that effect on each of the page of the will where after the attesting witnesses put their signatures. So, it is asserted that the will was duly executed and attested as required under the law. As per the case of the appellant since no near relations of the testatrix to his knowledge are there, general citation being issued, no objection from any quarter has been received. 3.In the proceeding, the appellant examined himself as also one of the attesting witness and tendered the will in original and the death of certificate of the testatrix in evidence which are marked Exts. 1 and 4. The Court below having gone through the evidence has assigned the following reasons in holding that the appellant .has failed to prove due execution and attestation of the said will by the testatrix. 1 and 4. The Court below having gone through the evidence has assigned the following reasons in holding that the appellant .has failed to prove due execution and attestation of the said will by the testatrix. i)the appellant has not adduced cogent evidence with regard to sound disposing state of mind of testatrix at the time of executing the will; ii) the witnesses have not stated in clear terms that testatrix was not in a sound state of health at the relevant time; the witnesses have not stated that the testatrix executed the will voluntarily on her own will and in a free mind; iii)there appears discrepancy with regard to date of death of testatrix in the evidence of the appellant and the. death certificate Ext. 2; second attesting witness has not been examined and no explanation has been given as to how the testatrix died at village Harirajpur, the native village of the appellant; In view of all these, the prayer for grant of probate has been refused. 5.Learned counsel for the appellant submits that the reasons assigned by the Court below in holding that the will has not been duly executed, attested and proved in view of the evidence tendered as required under law, are unsustainable. In this connection with great pain he has taken me through the depositions of the witnesses which have remained unchallenged. According to him, the reasons pointed out by the Court below against the grant of probate holding that the appellant has failed to prove the will by adducing proper evidence as regards its execution and attestation removing all such suspicious circumstance are baseless and thus cannot be accepted. Therefore. he contends that the Court below has erred both in law and fact by refusing to grant the probate as prayed for by the appellant. Learned counsel for the State being the respondent contends that the reasons assigned by the Court below in ultimately rejecting the petition for grant of probate are not unjust and improper and rather. the Court below has found those to have emerged out of evidence on record and it being the duty of the Court to see that all the suspicious circumstances surrounding the execution of the will and attestation are eliminated, right approach has been given by the Court below and no fault can be found with it. the Court below has found those to have emerged out of evidence on record and it being the duty of the Court to see that all the suspicious circumstances surrounding the execution of the will and attestation are eliminated, right approach has been given by the Court below and no fault can be found with it. 6.On such rival submission, this Court is now called upon to examine the evidence on. record and side by side look at the reasons assigned by the Court below. 7. P.W. 2 is the attesting witness. She has stated that the will was written by one Dillip, a registered deed writer as per the instruction of the testatrix in her presence and in presence of Santosh the other attesting witness as well as one identifying witness. She has also stated that the contents of the will were read over and explained to testatrix in Oriya where after she put her LTI in all the pages in their presence and thereafter she and others signed. The witness has not been cross examined. So, it appears from the evidence of this witness that Dinamani putting her LTI after having found the contents of the will to have been correctly written when others present have also seen it. The will is a registered one. Evidence of the appellant is that he is the father of Dinamani’s own brother. He has also stated about the execution of the will by Dinamani in presence of the attesting witness and also the identifying witness. The will, Ext. 1 also finds mention the endorsement regarding the contents of the same being read over and explained to the testatrix with further explanation as to why her LTI was taken that since her hand was trembling and thereby stating that she though usually sign why the course was not so adopted in the case. True it is that the age of the testatrix at the relevant time as indicated in the will Ext. 1 was 78 years but that itself is no ground in the absence of any other evidence to come to a conclusion that she was not in a fit state of mind. It can not be generally said that the person at those age does not remain mentally fit and in sound state of health. 1 was 78 years but that itself is no ground in the absence of any other evidence to come to a conclusion that she was not in a fit state of mind. It can not be generally said that the person at those age does not remain mentally fit and in sound state of health. Even the health condition of the testatrix is not a ground to discard the factum of execution of will unless it is shown by evidence that the beneficiary or anyone interested for him has taken advantage of it in getting the document executed without the knowledge, by some misrepresentation etc. Normally, common experience go to show that a person at that age with such failing health condition when feels to have been reaching at the end of the road in the journey of life, instinct comes for execution of such type of documents. So, there cannot. be any strait jacket approach in such matter as has been done by the Court below. It’s no doubt true that the beneficiary under the will is to show by evidence that the testatrix was in a fit state of mind. Here the Court below has probably given more emphasis that the witnesses must state in specific words as regards the fitness of the state of mind. It has been lost sight• of that the action and conduct of a person as shown in evidence is the real test to conclude with regard to the fit state of mind of a person. So as here in the. present case, the witnesses have stated that the testatrix had gone, got the will written as per her instruction, put her LTI and stood before the Sub-Registrar for the purpose of registration. In view of all these, the reason given by the Court below that there is no evidence to that effect is not at all acceptable. Next, the Court below has gone to say that no evidence is there about voluntary execution of the will out of free will and mind. What has been stated about again just leads me to say that the conclusion is contrary to the weight of evidence on record. The other reason with regard to non-examination of the second attesting witness is legally unsustainable. Here there is no specific challenge to the will from any quarter. What has been stated about again just leads me to say that the conclusion is contrary to the weight of evidence on record. The other reason with regard to non-examination of the second attesting witness is legally unsustainable. Here there is no specific challenge to the will from any quarter. One attesting witness has been examined which is the mandate of law under Section 68 of the evidence Act that a document which is required by law to be attested, here the will, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there being an attesting witness alive and subject to the process of the Court and capalable of giving evidence. There is no legal bar for the beneficiary to examine both the attesting witnesses but the mandate of law is that he has at least to examine one. So that having been done in the present case, it is not understood as to how the non-examination of the other attesting witnesses can be taken either as a suspicious circumstance or be adversely viewed for the execution of the will. The other suspicious circumstance pointed out is that the appellant has not led evidence as to how the testatrix died at Harirajpur i.e. in the village of the appellant. A bare reading of the will, Ext. 1 shows that the testatrix had disclosed therein that she was a dependant upon the appellant who is a resident of village Harirajpur. Therefore, it is not understood as to for what purpose the appellant was again required to prove that why testatrix died at that village and how that is affecting the execution of the will when no other evidence to create any such doubt in mind surfaces. The non-explanation of the fact as to how the attesting witness P.W. 1 remained present at the time of execution of the will is not to be taken as a suspicious circumstance particularly when the will is not facing a challenge from any quarter and there is no evidence to show any connivance of this P.W. 1 with the beneficiary under the will. 8.For the aforesaid discussion of evidence and reasons as stated above, finding of the Court below that the appellant has not been able to prove due execution of the will and its attestation in accordance with law is held to be unsustainable and is accordingly set aside. The probate of the will (Ext.-1) to the estate of Dinamani Dibya @ Mohapatra stands granted. 9.In the result, the appeal stands allowed. No order as to cost. Appeal allowed.