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2016 DIGILAW 1071 (ORI)

Sk. Fakiru v. Shaira Banu

2016-11-09

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. This is a plaintiff’s appeal in a suit for declaration of right, title, interest and permanent injunction. 2. The case of the plaintiff is that Lal Bibi was the owner of the suit land. The same was recorded in her name in the settlement R.O.R. Defendant No.2 is the son of Lal Bibi. Both Lal Bibi and her son Shekh Pyara were staying at Jeypore, but later on Shekh Pyara did not take care of Lal Bibi and shifted to Nabarangpur about 40 years back. The plaintiff being the nephew took care of Lal Bibi till her death. Lal Bibi being satisfied with the treatment of the plaintiff executed a willnama in favour of the plaintiff on 1.3.1987. She died in July, 1993. Defendant no.1 fraudulently obtained a death certificate from the Registrar of Births and Deaths–cum-Executive Officer, Nabarangpur Municipality to the effect that Lal Bibi died on 1.9.1986. The defendant No.2 in order to deprive the plaintiff from the suit land executed a sale deed in favour of defendant No.1 in respect of the suit land vide registered sale deed No. 2122 of 2008. Since the defendants 1 and 2 threatened the plaintiff to vacate the suit land, he filed the suit. 3. Pursuant to issuance of summons, defendant no.1 entered appearance and filed a written statement and counter claim admitting that the suit land originally belonged to Lal Bibi. She had admitted that defendant no.2 is the son of Lal Bibi. It is stated that the alleged willnama executed by Lal Bibi in favour of the plaintiff is a fabricated one. After death of Lal Bibi, defendant no.2 being the owner of the suit land sold the same to defendant no.1 by executing a registered sale deed. Soon after the execution of the sale deed, defendant no.1 was in possession over the suit. However, on 8.8.2011 the plaintiff forcibly trespassed into the suit land and started construction over the same. After death of Lal Bibi, defendant no.2 being the owner of the suit land sold the same to defendant no.1 by executing a registered sale deed. Soon after the execution of the sale deed, defendant no.1 was in possession over the suit. However, on 8.8.2011 the plaintiff forcibly trespassed into the suit land and started construction over the same. Defendant no.1 reported the matter to the Town Police Station, Jeypore but the plaintiff did not listen and proceeded with construction of a house for which he filed the counter claim for declaration of right, title, interest over the suit land, for direction to the plaintiff to delivery him the vacant possession of the suit land and to declare that the willnama dated 1.3.1987 executed by Lal Bibi in favour of the plaintiff for the suit land is a fabricated document. 4. On the inter se pleadings of the parties, learned trial court struck eight issues. The plaintiff had examined five witnesses and on his behalf seven documents had been exhibited. On behalf of the defendants six witnesses had been examined and five documents had been exhibited. On an anatomy of the pleadings and the evidence, both oral and documentary, learned trial court came to hold that the willnama executed by Lal Bibi in favour of the plaintiff is not a genuine one and defendant no.1 has acquired right, title and interest over the suit land on the strength of the sale deed executed by defendant no.2 in his favour. Held so, learned trial court dismissed the suit. The plaintiff has unsuccessfully challenged the judgment and decree passed by the learned trial court before the learned District Judge, Koraput, Jeypore in RFA No.17 of 2013, which was eventually dismissed. 5. Mr. Das, learned counsel for the appellant, submitted that the parties are illiterate Muslims. The unregistered Will was executed on 01.03.1987 and the parties were examined before the court below after lapse of 30 years. He further submitted that human memory is very short and it is difficult for an illiterate person to remember all the circumstances existed at the time of execution of the Will. He further submitted that P.W. 1, who is an attesting witness, stated that he was present at the time of execution of the Will and he signed in the Will as an attesting witness. P.W.1 further stated that other witnesses died a few years back. He further submitted that P.W. 1, who is an attesting witness, stated that he was present at the time of execution of the Will and he signed in the Will as an attesting witness. P.W.1 further stated that other witnesses died a few years back. The learned court below, on a wrong appreciation of evidence, dismissed the suit. He further submitted that the respondent No. 2 obtained the death certificate to show that Lal Bibi died in the year 1986. The appellant produced necessary certificates to show that Lal Bibi was alive till 1994 but the same is disbelieved by the court below. He further submitted that the learned lower appellate court has confirmed the judgment of the court below mechanically. 6. Mr. Pattnaik, learned counsel for the respondents, supported the impugned judgments of the courts below. 7. Law with regard to proof of Will is no more res integra. Before proceeding further, it is apt to refer to the decision of the apex Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 SC 443 . The apex Court in paragraphs 19 to 22 held thus; “19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not ; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. 22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. 22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson (1) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.” 8. Keeping in view the authoritative pronouncement of the apex Court in the decision cited supra, the instant appeal may be examined. To prove the case, the plaintiff had examined five witnesses including himself. P.W.1 is the attesting witness to the Will vide Ext.1. P.W.2 is the scribe. P.Ws.3 and 4 are independent witnesses. P.W.1 in his examination in chief had stated that Purna Patra scribed the Will in his presence. The scribe read over and explained the contents of the Will to Lal Bibi. Thereafter, Lal Bibi put her LTI in his presence. He signed on the Will. Sk. Hussian signed on the Will. In the cross-examination, he deposed that he could not say the name of the scribe, but he is the son of one Narayana Patra. The scribe called him to stand as a witness while he was going for the purpose of his work. He could not read Urdu. He could not say as per whose direction the Will was executed. In the cross-examination, he deposed that he could not say the name of the scribe, but he is the son of one Narayana Patra. The scribe called him to stand as a witness while he was going for the purpose of his work. He could not read Urdu. He could not say as per whose direction the Will was executed. He did not remember the exact day on which the Will was executed. He was at his shop room on the date of execution of the Will. The Will was already scribed when he went to Tahasil Office to stand as a witness. By the time he reached the Tahasil Office, Lal Bibi had already left towards her house. Learned trial court came to hold that the evidence of P.W.1 shows that the Will was not executed in accordance with law. Learned trial court came to hold that each and every witness deposed falsehood. The Will was not the product of free Will of Lal Bibi. Due execution of the Will was not proved. Learned trial court held that the Will was not a genuine one. Learned lower appellate court affirmed the findings of the learned trial court. Further, the plaintiff was present at the time of execution of the Will and took active participation of execution of the Will. The same was a suspicious circumstance. 9. The findings of the courts below cannot be said to be perverse. There is no error apparent on the face of the record. Since no substantial question of law involved in the second appeal, the same is dismissed. No costs.