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2016 DIGILAW 1016 (ORI)

Amruta Pasayat v. Tama Pasayat

2016-11-02

D.DASH

body2016
JUDGMENT : 1. This appeal has been filed against the judgment and decree passed by the learned Addl. District Judge, Sundargarh in RFA No. 68/28/29 of 2006-10-13 confirming the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Sundargarh in Civil Suit No. 84 of 2002. The respondent as the plaintiff had filed the above noted suit for partition with the declaration that he is having half interest over the property described in schedule-A of the Will executed by Indumati Pasayat on 29.8.2002 (Ext.1). The suit having been decreed, these appellants as the unsuccessful defendants had carried the first appeal under Section 96 of the Code of Civil Procedure wherein they have lost. So now this appeal has been filed under Section 100 of the Code. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that the suit property originally belonged to Gulabati Pasayat, Indumati Pasayat and Amruta Pasayat and it stood recorded as such in their name in the record of right of the year 1977. The property had come to their hands from one Dhaneswar Pasayat, they being his widow and two daughters. Both the daughters namely, Indumati and Amruta got married and after the death of their mother, they became the owners of the suit land and remained in joint possession. Indumati’s husband Ghanashyam died. So the plaintiff came forward to assist Indumati who then grew old and also the members of the family did not come forward to take her care. So being satisfied and highly pleased with the plaintiff, Indumati executed a Will bequeathing her half interest over the property. This Will is said to have been executed out of her free will and volition when she was physically and mentally fit and alert. Indumati continued to live with the plaintiff till her death. Therefore, the plaintiff claims that after Indumati, he became the owner and got the right over the property in so far as the half interest of Indumati is concerned. There being no partition of the same between the two sisters earlier, she filed the suit for a preliminary decree to that effect after the defendants refused to do the same. 4. There being no partition of the same between the two sisters earlier, she filed the suit for a preliminary decree to that effect after the defendants refused to do the same. 4. The defendants coming forward to contest the suit, in their written statement while admitting the ownership of the property as it was originally resting and then to have been finally succeeded by Indumati and Amruta, projected a specific case that after death of Ghanashyam, Indumati being denied of the basic necessities of life was completely neglected by her in-laws family. So she came and stayed with the defendants and they took all her care. It is next stated that being pleased with such generous conduct of the defendants, Indumati executed a Will on 15.5.2000 which was registered bequeathing her half interest over the property in favour of defendant no. 2. It may be stated here that the defendant no. 1 is the sister of the Indumati and defendant no.2 is Indumati’s sister’s son, the son of defendant no. 1. It is stated that such factum of execution of the Will was always within the knowledge of the plaintiff. It is alleged that in order to grab the land, the plaintiff has got the Will dated 29.8.2000 created in her favour. This Will in favour of the plaintiff as asserted in the plaint to have never been executed by Indumati out of her free will and volition as also not in accordance with law and that there was no valid attestation. Thus, it is stated that the Will is not even worth the paper written on. So it is stated that the plaintiff has no right over the property. Defendant no. 2 in her separate written statement which almost run in the same line as that of defendant no. 1 has pleaded further describing certain facts that Indumati was issueless and being denied with basic necessity of her life after death of her husband, she and her son the defendant no. 2 brought her to their village and took care of her health and looked after her comfort. Later on she executed a Will on 15.5.2002 in favour of the defendant no. 2 who is her nephew (sister’s son) in respect of her half interest over the property. 2 brought her to their village and took care of her health and looked after her comfort. Later on she executed a Will on 15.5.2002 in favour of the defendant no. 2 who is her nephew (sister’s son) in respect of her half interest over the property. It is further stated that Indumati had no occasion to execute Will thereafter in favour of the plaintiff who had never rendered any service and never stayed with Indumati. It is further stated that in the year 2002, they performed the sudhi kriyas of Indumati. Thus he claims that he has become the owner of the half interest of Indumati over the property by virtue of the said Will. 5. At this place, it would not be out of place mention that the parties belong to the District of Sundargarh in the State of Odisha and the properties are also situated within the jurisdiction of that District. The bar contained in part VIII making the provision and mandating to obtain a probate of the Will as the condition precedent to claim the right as a legatee under the Will has no applicability for the natives of that area. The Will thus can be projected as document of title and a declaration can be sought for in so far as the property covered under the Will is concerned and title over the said property can accordingly be claimed. However, if in the suit or proceeding, the said Will is called in question, the person banking upon the Will has to prove it as a Will as required under law that means the facts which are required to be proved in the probate proceeding as also the nexus between the testator/testatrix with the property so bequeathed in establishing that he or she was having the title to it which has flowed from the hands of the testator/testatrix to the legatee under that Will. 6. Faced with the above rival pleadings, the trial court framed as many as eight issues. Rightly taking up issue nos. 6. Faced with the above rival pleadings, the trial court framed as many as eight issues. Rightly taking up issue nos. 4, 5 and 6 which practically cover the validity of the Will as projected by the plaintiff and that as projected by defendants and all other consequential facts, the finding has been finally recorded after evaluation of evidence glancing through the relevant provisions of law as also the ratio of the decisions of the Apex Court as cited there in the judgment that the Will Ext. 1 has been duly executed by Indumati and it was so attested as required under law and thus is a valid one which has gone to revoke the earlier Will Ext. A standing in favour of the defendant no.2 and thereby the plaintiff has derived the interest over half of the suit property under that. 7. The lower appellate court being moved by the unsuccessful defendants has gone to address the contentions raised before it that the Will, Ext. 1 has not been duly executed and attested and that the earlier Will, Ext.A standing in favour of the defendant no. 2 has not been revoked thereby. As is seen, the lower appellate court has made an independent assessment of evidence on record keeping the settled position of law in mind. However, at the ultimatum after analysis of evidence on record having found no such suspicious circumstance still standing unrepelled and having found the evidence with regard to the execution and attestation of the Will Ext. 1 to be sufficient, the conclusion arrived at by the trial court has been affirmed. The appeal thus has been dismissed. 8. This appeal has been admitted on the following substantial questions of law :- “i. Whether the courts below while recording the concurrent finding of due execution of the Will Ext.1 by Indumati Pasayat, the testatrix have perversely appreciated the evidence on record without properly viewing and taking into account the surrounding circumstances and all the attending factors emerging out of the evidence on record which clearly render the execution and attestation highly suspicious leading to a conclusion that said Will is not genuine and has been created for the purpose being not the outcome of free and voluntary act of the Testatrix then not in a sound state of mind and disposition? ii. Whether there has been due revocation of the first Will Ext. ii. Whether there has been due revocation of the first Will Ext. A and the findings on that score as recorded by the courts below are sustainable in the eye of law?” 9. The case in hand is really interesting being involved with two Will said to have been executed by the same testatrix and both sides are armed with one Will each lay their competing claim founded upon those respectively standing in their favour. Fact remains that the Will which is projected as the document of title by the plaintiff is a later one whereas the Will as stated by the defendants is an earlier one executed by the testatrix, Indumati Pasayat. The legatee under the earlier Will Ext. A is none other than the sister’s son of the testatrix whereas legatee under the later Will Ext. 1 is a member of the family of the husband of Indumati. However, here when the legatee under the Will, Ext. 1 has filed the suit for partition and the Will is projected as the document standing in favour of his claim of the said right i.e. half interest of Indumati over schedule –A property, the examination must proceed to search as to whether this Will Ext. 1 was duly executed and attested and as such has been proved. This would go to answer the question of revocation simultaneously and that would practically decide the fate of the suit as to if the claim of plaintiff either is to stand or fall. 10. Learned counsel for the appellants contends that the courts below have completely erred both in fact and law in recording a finding that Ext. 1 is the last Will of Indumati which she had executed and also duly attested in accordance with law. According to him, the evidence available on record have not been appreciated in their proper perspective and the surrounding circumstances and attending factors creating suspicion for the said Will having not been repelled by the plaintiff through evidence, the courts below ought not to have answered the said finding in plaintiff’s favour. The findings are thus said to be perverse and hence according to him call for interference of this Court in seision of second appeal. 11. Learned counsel for the respondent on the contrary supports the findings recorded by the courts below. The findings are thus said to be perverse and hence according to him call for interference of this Court in seision of second appeal. 11. Learned counsel for the respondent on the contrary supports the findings recorded by the courts below. According to him, those are all concurrent finding of fact arrived at upon appreciation of evidence on record being duly viewed with all other circumstances emanating from evidence. According to him, the reasons assigned by the courts below in accepting the factum of execution and attestation as revealed from evidence are not in any way to be found to be faulty. Thus there remains absolutely no justification to interfere with the same even if another view is possible to be taken, as according to him as per the settled position of law, the same cannot act as supplant. Thus he urges for answering the substantial questions of law accordingly confirming the judgment and decrees of the courts below. 12. Before proceeding to address the above rival submission so as to find out answers to the substantial questions of law, the settled position of law need be kept in mind. 13. The Apex Court in Anil Kak v. Sharada Raje; AIR 2008 SC 2195 has held :- The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. 14. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. 14. We may now usefully refer to the decision of the Apex Court in case of H. Venkatachala vs. B.N. Thimmajamma; AIR 1959 SC 443 wherein it has been observed as under:- “The party propounding will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67 if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the hand-writing of the person concerned are made relevant. Section 68 deals with the proof of the executing of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by t he party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Will it would be idle to expect proof with mathematical certainty. As in the case of proof of other documents so in the case of proof of Will it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.” 15. In the case of Uma Devi Nambiar v. T.C. Sidhan; (2004) 2 SCC 321 , the apex Court has followed the decision of Constitution of Bench of Apex Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 2006 Bom 33 and reproduced para 4 of the said judgment which is as under:- “The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by 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. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even were there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator’s mind was not free. In such a case the Court would naturally except that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in par near relations.” 16. Now coming to the revocation of the Will, the provisions of section 70 of the Indian Succession Act with illustrations are to be kept in view. The illustration (i) with which we are here concerned is very clear wherein after the word “unprivileged Will” and before the words “revoke the first” the words “which purports to” find mention. From this it is clear that for a finding of revocation of the first Will, it has to be found out that the testator/testatrix by the second Will has purported to so revoke the first one. In this context the subsequent Will as executed must indicate “animus revocandi”. 17. The case of Anil Behari Ghosh vs. Latika Bala Debi; AIR 1951 SC 566 now needs the reference. It has been said therein:- “For proving that the Will had been revoked, it has to be shown that the testator had made another Will or codicil or by some writing declared his intention to revoke the Will. Such a document is required by Section 70 of the Act to be executed in the same manner as a Will. Such a revocation can also be proved, as the section lays down, by burning tearing or otherwise destroying the Will by the testator himself or by some other person in his presence and by his direction, thus clearly indicating his intention of revoking the Will.” The same has been expressed by the High Court of Kerala in the decision in David Tharakan v. Lilly Jacob; AIR 1993 Ker 9 . Though not specifically referring to the decision referred to above, but specifically referring to the decision of the Supreme Court in Jaswant Kaur v. Amrit Kaur; AIR 1977 SC 74 . 18. No particular formality is necessary under the law in the mofussil for showing an intention to revoke a Will, when the Court is asked to draw an inference in favour of revocation from the conduct of the testator. 18. No particular formality is necessary under the law in the mofussil for showing an intention to revoke a Will, when the Court is asked to draw an inference in favour of revocation from the conduct of the testator. The conduct must be such as to show that the testator’s mind was directed to the question whether the Will was to remain in force or not, and that his conduct proceeded on the footing that the Will was no longer to be in force. When all that can be suggested is that the testator never afterwards thought about the Will or perhaps forgot about it, the Court will not be justified in drawing an inference of intention that the Will should cease to have operation. The oral evidence of revocation, of course, must be definite, free from vagueness and uncertainty. So the matter in hand now has to be examined in the light of above. The subsequent Will thus has to be proved accordingly. The burden of proving animus is on the party who sets up the case of revocation in showing animus revocandi. 19. A careful reading being given to the judgment of the trial court, it is seen that keeping the aforesaid legal position in mind it has gone to appreciate the evidence and discussed it at para-9. The plaintiff has examined P.W.1, the scribe of the Will, Ext. 1 and two attesting witnesses to the Will as P.Ws. 2 and 4. The person who had typed the Will also examined as P.W. 5. At last the plaintiff has come to depose on oath as P.W.6. P.W.1 is an Advocate. The trial court has discussed his evidence in great detail and so also the evidence of the other witnesses and has found no such circumstance of suspicious nature surrounding the execution of the Will (Ext.1) by Indumati. Merely, because a person is old or has met her death within a short period from the date of execution of the Will, those facts are not of much significance so as to be taken note of and as circumstances for doubting the execution of the Will if the same is proved otherwise. Merely, because a person is old or has met her death within a short period from the date of execution of the Will, those facts are not of much significance so as to be taken note of and as circumstances for doubting the execution of the Will if the same is proved otherwise. In fact, it can be argued also in the other way that in case of mistake and repentance thereof, towards the end part, strong desire may come in the mind of the person to ractify it and do justice to someone who has been visited with injustice due to the earlier said act. The discussion of evidence has been very vivid in ultimately arriving at a conclusion that Ext. 1 has been duly executed by Indumati and attested in accordance with law as provided in Section 63 of the Indian succession Act read with section 68 of the Evidence Act. This Court finds neither any such infirmity nor that the acceptance of evidence to be without justification and reason. 20. Next coming to the question of revocation referring to the provision section 70 of the Act, it has gone to draw the intention of the testatrix as regards revocation having carefully read the descriptive part of the Will (Ext.1) showing the animus revocandi wherein the reason of said execution etc. finds place. The trial court arrived at a conclusion that the Will Ext. 1 has been duly executed and attested and there has been revocation of all earlier Wills. In course of argument, learned counsel for the appellants has not been able to place any such evidence on record as to have been winked at by the courts below so as to entertain doubt in mind with regard to execution of Ext. 1 and say that the execution is shrouded with suspicion pointing such features that those have gone unexplained by the plaintiff and thus in directly stands against the execution of the said Will. The lower appellate court as is seen from the judgment has made an independent assessment of the evidence at its level so far as the execution of the Will is concerned, which is under challenge as well as the attestation part as mandated under the law including the revocation. 21. The lower appellate court as is seen from the judgment has made an independent assessment of the evidence at its level so far as the execution of the Will is concerned, which is under challenge as well as the attestation part as mandated under the law including the revocation. 21. In view of above and also on going through the evidence of witnesses examined on behalf of the plaintiff, I am not in a position to cull out any such material or find any reason to differ with the finding of the courts below as regards execution of Ext. 1, its attestation and the revocation part. Therefore, this Court without any hesitation hereby holds that the findings of the trial court do not suffer from the vice of perversity. The appreciation of evidence has been made by the courts below being quite conscious of the settled position of law covering the subject with regard to the execution, attestation of the Will and revocation part placing the burden of proof upon the plaintiff, in ultimately saying it to have been properly discharged. Thus, those findings are hereby affirmed. 22. The aforesaid discussion and reasons accordingly provide the answers to the substantial questions of law which run against the appellants leading for the consequential result of confirmation of the judgment and decree passed by the courts below. 23. In the result, the appeal stands dismissed. In the facts and circumstances, the parties are to bear their own cost throughout.