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2016 DIGILAW 1226 (JHR)

Most. Achala Devi v. Gita Sinha

2016-08-05

D.N.UPADHYAY

body2016
JUDGMENT : D.N. Upadhyay, J. This appeal has been preferred against the judgment dated 16.05.2007 and decree following thereupon passed and signed on 23.05.2007 by the 1st Additional District Judge, Palamau at Daltonganj in connection with Title Suit No.1 of 2001 arising out of Probate Case No.2 of 2000 whereby the learned Additional District Judge has dismissed the suit preferred by the plaintiff and refused to grant probate against the Will in question. 2. The plaintiff Achala Devi has filed an application for grant of probate against a Will dated 25.12.1970 executed by testator Tarni Charan Sinha in favour of the plaintiff. Initially the application for grant of probate was registered as Probate Case No.2 of 2000 but after filing of objection by way of written statement by the contesting defendants, Probate Case No.2 of 2000 was converted to Title Suit No.1 of 2001. 3. It is disclosed that late Tarni Charan Sinha, after death of his first wife, married Jagwanti Devi. From his first wife he was having one son Devendra Prasad Sinha whereas from the second wife Jagwanti Devi, he was blessed with three sons and four daughters. The descendants of late Tarni Charan Sinha have been made opposite parties in the probate application. At the time of filing of probate application Devendra Prasad Sinha, son born through first wife was not alive and therefore his heirs and successors have been made party. The genealogical table has been annexed with the original application filed for grant of probate. 4. It is stated that late Tarni Charan Sinha was having landed property within the district of Palamau and the property described in Schedule-A of the plaint was owned and possessed by him as his self-acquired property. In respect of Schedule-A property, the testator had executed a Will on 25.12.1970 and he was the custodian of said Will till his death. Late Tarni Charan Sinha died on 02.05.1971 at his residence at Daltonganj leaving behind three sons, daughters and widow Jagwanti Devi. It is contended in the application that execution of Will was known to family members and it was executed after due consultation with them. It is contended that late Tarni Charan Sinha was an employee in the A.G. Office and after completing service he was superannuated. It is contended in the application that execution of Will was known to family members and it was executed after due consultation with them. It is contended that late Tarni Charan Sinha was an employee in the A.G. Office and after completing service he was superannuated. He was a literate person but at the old age his hands started trembling and therefore, he was not able to write or sign and for the purpose of acknowledgment he used to put his L.T.I. He was drawing his pension by putting his L.T.I. Tarni Charan Sinha, due to love and affection and also on being satisfied with the services rendered by the petitioner Achala Devi and her sons, executed a Deed of Will on 25.12.1970 in presence of his daughter Sunita Sinha O.P. No.6, Shyam Sundar Prajapati, Prem Sagar Pandey and Baleshwar Pandey and bequeathed Schedule-A property in favour of the applicant. The Deed of Will was written by Sri Narsingh Narayan Singh, Deed Writer and it was attested by Prem Kumar Sinha. Sunita Sinha, daughter of late Tarni Charan Sinha was also witness to the last testament of Tarni Charan Sinha. The testator died on 02.05.1971 leaving behind his widow, sons, daughters-in-law and grand daughters. Since Devendra Sinha, son born through first wife was not alive, his wife and daughters were made party. 5. Application for grant of probate was filed on 16.02.2000. Explanation for the delay in presenting the Will for its probate has been explained that it was not available to the petitioner. Even after death of Tarni Charan Sinha they tried their level best to find out the Will but they could not succeed. In course of searching certain papers when the Will was detected, application for grant of probate was filed. It is further contended that late Tarni Charan Sinha, at the time of executing said will was having good health and sound mind and the last testament was prepared out of free will, without coercion or threat and that too in presence of witnesses. 6. On the other hand, the contesting opposite parties/defendants have submitted that the property under Schedule-A was property purchased from joint family fund and it was not selfacquired property of late Tarni Charan Sinha. The alleged Will presented by Achala Devi is nothing but a manufactured document at the instance of her son Alok Kumar Sinha who is an advocate. 6. On the other hand, the contesting opposite parties/defendants have submitted that the property under Schedule-A was property purchased from joint family fund and it was not selfacquired property of late Tarni Charan Sinha. The alleged Will presented by Achala Devi is nothing but a manufactured document at the instance of her son Alok Kumar Sinha who is an advocate. At no point of time Tarni Charan Sinha had executed any Will by which Schedule-A property was bequeathed in favour of Achala Devi. It is contended that execution of said Will is shrouded with suspicious circumstances and it was manufactured to grab the property. If execution of Will was within the knowledge of petitioner and other family members, why it was not presented within a reasonable period after death of the testator. Partition Suit No.12 of 2000 was also filed by the contesting respondents. The Will was presented almost after 29 years of death of testator and that itself creates great suspicion against existence of Will executed by Tarni Charan Sinha during his life time. 7. The opposite parties/defendants who are sons of petitioner plaintiff have raised no objection against grant of probate in favour of the petitioner. On the basis of pleadings of the parties issues were framed by the learned Additional District Judge. Both the parties adduced evidence and proved documents in support of their claim and contention. The plaintiff has examined altogether 12 witnesses whereas the contesting defendants have examined four witnesses. The learned Additional District Judge, at the conclusion of trial, dismissed the suit and refused to grant probate against the Will allegedly executed by late Tarni Charan Sinha and hence this appeal. 8. Learned counsel appearing for the appellant has submitted that at the time of death of Tarni Charan Sinha he was having good health and sound mind and the Will was executed in presence of witnesses. The requirement of Section 63 of Indian Succession Act and Section 68 of the Evidence Act have been complied with and the Will has properly been proved. The ascribe of Will is Narsingh Narayan Singh PW6 and he has clearly stated that Will was prepared by him at the instance of Tarni Babu in presence of Prem Kumar Sinha PW2. The requirement of Section 63 of Indian Succession Act and Section 68 of the Evidence Act have been complied with and the Will has properly been proved. The ascribe of Will is Narsingh Narayan Singh PW6 and he has clearly stated that Will was prepared by him at the instance of Tarni Babu in presence of Prem Kumar Sinha PW2. Prem Kumar Sinha has proved the Will and deposed that on 25.12.1970 at the instance of Tarni Charan Sinha Will was prepared by Narsingh Narayan Singh, Deed Writer. The Will was read over and explained to Tarni Charan Sinha by Narsingh Narayan Singh and finding it correct, he put his L.T.I. on each and every page of said Will. The Will has been proved and marked Exhibit2 and endorsement with signature of Prem Kumar Sinha has been marked Exhibit1. Signature of Sunita Sinha has also been proved and marked Exhibit-1/A. PW3 Shyam Sundar Prajapati has deposed that he was in visiting term to the house of testator and son of Tarni Babu was known to him who had given tuition to him. This witness has supported the execution of Will. Baleshwar Pandey PW4 and Ajay Kumar Sinha PW5 have supported the fact that Will was executed by Tarni Charan Sinha in favour of Achala Devi. Alok Kumar Sinha PW7 is son of plaintiff and a practicing advocate. He has stated that hands of testator were trembling during his old age and therefore, the testator put his L.T.I. on the Will. He has stated that Tarni Charan Sinha was not having very cordial relation with his other sons except Janardan Prasad Sinha (father of this witness). The other sons of Tarni Sinha were residing outside Daltonganj and they were not looking after their father. It was Janardan Prasad Sinha who was taking care of his father Tarni Charan Sinha. He has proved letter written by Akhilesh Prasad Sinha marked as Exhibit3, notice Exhibit4 and order of the High Court Exhibit-5. It was submitted that no fraud was committed in preparation of the Will. He has said that he is having good relation with Sunita Sinha and her husband Pramod. PW8 has proved the death certificate whereas PW9 Akhouri Achutanand who is an advocate has supported the case of the plaintiff. Achala Devi has examined herself as PW10. It was submitted that no fraud was committed in preparation of the Will. He has said that he is having good relation with Sunita Sinha and her husband Pramod. PW8 has proved the death certificate whereas PW9 Akhouri Achutanand who is an advocate has supported the case of the plaintiff. Achala Devi has examined herself as PW10. She has supported the execution of Will and deposed that the testator had executed the Will on 25.12.1970 and it was written by Narsingh Babu as per dictates of Tarni Charan Sinha and the document was read over and explained to him after which he put his L.T.I. in presence of witnesses namely Prem Kumar Sinha and others. PW11 Ramji Singh is a formal witness. He has proved the L.T.I. PW12 Shyam Bharat Prasad is a photographer who had taken photographs of admitted and disputed L.T.I. of Tarni Charan Prasad Sinha. PW3 is finger print expert namely Shivendra Nath Mishra and he has proved his report which has been marked as Exhibit-11. He has corroborated that he matched disputed L.T.I. with the admitted L.T.I. and both the L.T.I. appearing on the documents are of one and same person. Learned counsel appearing for the appellant has placed reliance on the judgment reported in 2004 (1) Civ. C.R. 1 (SC), (2007) 1 SCC 546 , AIR 1988 Delhi 39, AIR 1995 Orissa 131, AIR 1982 Patna 87 and 2001(3) JCR 484 (Jhr.). 9. On the other hand, the defendants have examined four witnesses namely Dukh Narayan Tiwari, Taied and proved power of attorney. Ajit Kumar Sinha DW2 is a teacher and grand son of late Tarni Charan Prasad Sinha and he is son of Devendra Prasad Sinha. He is contesting defendant No.13. He has supported the case of the defendants and deposed that the schedule property was not self-acquired property of Tarni Prasad Sinha rather it was ancestral property of the co-sharers. He has further stated that in the Will, area of the schedule property has been described as 14 decimal but it was incorrect because the in year 1964, four decimal of land was sold by Tarni Charan Sinha in favour of Shyamdei Devi. Janardan Prasad Sinha, husband of the plaintiff was attesting witness in the aforesaid sale deed. He has further stated that in the Will, area of the schedule property has been described as 14 decimal but it was incorrect because the in year 1964, four decimal of land was sold by Tarni Charan Sinha in favour of Shyamdei Devi. Janardan Prasad Sinha, husband of the plaintiff was attesting witness in the aforesaid sale deed. He has proved one sale deed which is more than 30 years and marked as Exhibit-B. This witness has stated that all the sons of Tarni Charan Sinha were taking care of their father and they were jointly bearing the expenses incurred for his treatment or on other domestic requirement. The testator was not having sound health in his last age. The expenses incurred in the last rituals of Tarni Prasad Sinha was equally shared by all the sons and grand sons. At the time of death of Tarni Charan Sinha, his daughter Sunita was not married and marriage of Sunita was solemnized with the help of all the brothers. After death of Tarni Charan Sinha, the defendants have requested to partition the joint property but Alok Sinha (son of the plaintiff) has been delaying with the matter and then notice was issued and partition suit was filed. Notice for partition was sent through advocate B.K. Singh on 02.12.1999 through registered post. The carbon copy of notice has been proved as Exhibit-C and the receipt have been marked Exhibit-D and D/1. It is disclosed that after receiving notice so served upon Alok Sinha, he made a plan and engineered and manufactured a Will allegedly executed by Tarni Charan Sinha. On the face of the Will it will appear that it is a fabricated document because L.T.I. on the Will have been taken in ink and finger prints are not appearing. The witnesses examined by the plaintiff are all working with Alok Sinha and they are advocate clerk or deed writer working in the court. Akhilesh Prasad Sinha defendant No.2 has been examined as DW3 and he has supported the contention made by him in the written statement. This witness has also stated that Will was manufactured by Alok Sinha in collusion with his colleague and advocate clerks. Narsingh Narayan Singh is famous for creating forged document and he has ascribed. Basant Kumar Sinha DW4 has proved Exhibit A/1. This witness has also stated that Will was manufactured by Alok Sinha in collusion with his colleague and advocate clerks. Narsingh Narayan Singh is famous for creating forged document and he has ascribed. Basant Kumar Sinha DW4 has proved Exhibit A/1. Learned counsel appearing for the respondents has relied on the judgment reported in 2009(2) JLJR 81 (SC), 2008 (66) AIC 140 (SC), 2014 (3) JBCJ 1, AIR 1973 (SC) 1728, 2009 (2) Civ. C.R. 6, (2014) 8 SCC 294 . 10. I have gone through the pleadings of the parties, documents and evidence on record and the impugned judgment. It is settled law that a Will is to be proved as other documents are proved according to law and the court shall proceed with the eqnuiry in the like manner. 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 sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will. Therefore, the propounder of Will has to prove its due and valid execution by eliminating suspicious circumstances. If there are suspicious circumstances surrounding the execution of a Will, the propounder must remove it by cogent and satisfactory evidence. Whether a Will is genuine or not has to be decided on the facts of each case. There is no mathematical equation to determine whether a Will is genuine or not. The authenticity of Will depends on the circumstances surrounding its execution and the quality of the evidence that is led in respect of its genuineness. The natural conduct of human being is to acquire property for spending his life smoothly and also in order to make his future life secure. They become more attached with the property than their children, relatives and friends. In order to protect the property so acquired, he takes all best efforts not only during his lifetime but also try to make arrangement that the property after his death should not be misutilised. What I mean to say is, if the descendants are not competent to inherit the property, he makes special arrangement by executing a Will or by transferring the property to a right hand by way of gift. What I mean to say is, if the descendants are not competent to inherit the property, he makes special arrangement by executing a Will or by transferring the property to a right hand by way of gift. The Will is a kind of document by which the testator expresses his last wish to bequeath his property, therefore, the Court should be more cautious, careful and responsible when such Will is presented either for grant or Probate or for Letters of Administration. The Court must visualise the circumstances under which the Will was executed and if the circumstances are not free from suspicion, the propounder shall be called upon to remove those suspicious circumstances with cogent and convincing explanation. 11. Now coming to the circumstances appearing in the case at hand. It is stated by the plaintiff that the Will was executed in presence of witnesses on 25.12.1970. The ascribe and attesting witnesses have also been examined. The testator died on 02.05.1971 i.e. within six months from the date of execution of the alleged Will. At the time of alleged Will Sunita Sinha, daughter of testator was alive and as per the case of plaintiff she had also signed the Will. Sunita Sinha did not appear before the court to support execution of said Will by Tarni Charan Sinha on 25.12.1970. The description of the property given in the Will is not correct and the area under Schedule-A property was left only 10 decimal instead of 14 decimal because Tarni Charan Sinha had himself executed sale deed in favour Shyamdei Devi in the year 1964. The wife of testator was alive and she was also present in the house. The testator got himself married after the death of his first wife but he was blessed with two daughters and one son from his first wife. From the second wife Jagwanti Devi he was having three sons and four daughters. At the time when the alleged Will was executed, eldest son Janardan Sinha was alive and it is admitted by both sides that Janardan Sinha was always accompanying his father Tarni Charan Sinha for any transaction relating to property. In support of such contention the sale deed executed in favour of Shyamdei Devi in the year 1964 for a portion of land described in Schedule-A property was introduced. In support of such contention the sale deed executed in favour of Shyamdei Devi in the year 1964 for a portion of land described in Schedule-A property was introduced. It is made clear that L.T.I. of Tarni Charan Sinha was identified in that sale deed by eldest son Janardan Sinha. Suspicion has been raised on the ground as to why Janardan Prasad Sinha had not attested the Will and the L.T.I. of his father Tarni Charan Sinha. He should have been best attesting witness to the Will. PW1 has claimed himself to be Purohit of Tarni Prasad Sinha but it was denied by other family members. The evidence given by PW1 in para 20 that Tarni Babu died in the year 1971-72 and prior to his death, this witness met with him and at that point of time Tarni Charan Sinha disclosed him about execution of Will. This is nothing but a white lie because alleged Will, according to plaintiff, was executed on 25.12.1970. Prem Kumar Sinha PW2 at the time of his deposition on 07.07.2003 was aged about 51 years. If the age of Prem Kumar Sinha is calculated back, then he was hardly aged 2021 years in the year 1970 and the age of Tarni Charan Sinha at the time of his death was more than 80 years. He is also an advocate who got his licence in the year 1994 but in para 3 he says that he has been practicing since the year 1983 which could not be correct because he has given his licence No. 66/1994. He has proved his endorsement as Exhibit1 and further stated that Baleshwar Pandey, Prem Sagar Pandey, Shyam Sunder Prajapati and Sunita Sinha were also present at the time of execution of said Will. The wife and daughter of testator were alive. At the time execution of said Will the wife, daughter and son Janardan were also present. The process to prepare Will had started at about 9.00 a.m. which continued up to 4.00 p.m. He says that other witnesses were not known to him from before but he got their introduction at the time of execution of said Will. At the time execution of said Will the wife, daughter and son Janardan were also present. The process to prepare Will had started at about 9.00 a.m. which continued up to 4.00 p.m. He says that other witnesses were not known to him from before but he got their introduction at the time of execution of said Will. He himself has admitted that up to Class-III he had studied at Daltonganj then he went to Purulia and studied up to Class-IX, then went to Darbhanga from where he passed Higher Secondary in the year 1967 and after his graduation he remained at Patna in the year 1969-70. If statement of this witness is correct, he had no occasion to remain present at the time of execution of Will and he was not supposed to attest the Will. Since wife, daughter and son of the testator were present, they were the best person to identify the L.T.I. of testator. Sunita Sinha, as per contention of the plaintiff, had signed which is also appearing and proved by other witnesses but she did not appear before the court to support that her father Tarni Charan Sinha had ever executed a Will in favour of Achala Devi. From the evidence of PW3 Shyam Sundar Prajapati it would also appear that he has deposed a lie. This witness was studying in Class-VI in the year 1964 and from the year 1974 he had started to work as a Taied (advocate clerk). It is not expected that a person who was minor at the time of execution of the Will would become a witness to Will executed by testator at the age of 80 years and that too in a circumstance when testator was a literate person and superannuated after rendering services in the A.G. Office. This witness has stated that at the time of execution of Will Tarni Babu was aged about 8090 years. In para 14 this witness has deposed that on 25.12.1977 Tarni Babu was aged about 8090 years but the fact remains that Tarni Babu died in the year 1970. Nothing more is required to disbelieve this witness. Baleshwar Pandey PW4 has gone to the extent of saying that Achala Devi was also present at the time of execution of said Will. Prem Sagar Pandey is the junior of Narsingh Sinha. Nothing more is required to disbelieve this witness. Baleshwar Pandey PW4 has gone to the extent of saying that Achala Devi was also present at the time of execution of said Will. Prem Sagar Pandey is the junior of Narsingh Sinha. He along with Narsingh Babu and Prem Sagar Pandey had gone to the house of Tarni Charan Sinha where other witnesses were also present. He has not stated what was the work of Tarni Babu. He has failed to give description of the house of Tarni Babu. The surprising circumstance is evidence of Narsingh Narayan Singh who is ascribe of the Will. The other witnesses have stated that they had assembled at the house of Narsingh Narayan Singh but this fact has not been corroborated by Narsingh Narayan Singh. He says that he does not know the profession of Prem Kumar Sinha. It was not within his knowledge as to who had collected the witnesses. But, on the other hand, the witnesses have stated that at the instance of Narsingh Narayan Singh they had assembled at his house and from there they accompanied by Narsing Narayan Singh went to the house of Tarni Charan Sinha. Alok Kumar Sinha PW7 is the son of plaintiff and he has supported the case of his mother. When he was asked, whether he intend to examine Prem Sagar Pandey, he refused and said that Prem Sagar Pandey is junior of counsel appearing for the defendants. This witness has admitted pendency of Partition Suit No.12 of 2000. It is also admitted by this witness that Janardan Singh, father of this witness, for the purpose of representing testator Tarni Charan Sinha was having some blank papers affixed with L.T.I. of Tarni Charan Sinha. After scrutinizing the evidence, I do not find that material witnesses are reliable in view of the discussions made above. 12. Besides the incredible deposition of prosecution witnesses another strong suspicious circumstance is that the legal heirs and successors of Tarni Charan Sinha have been disinherited from the property for no reason. The testator has not made proper arrangement for marriage of his daughter Sunita or his wife Jagwanti Devi. The most suspicious circumstance is that Sunita Sinha, daughter of the testator has signed the Will but she did not appear to support execution of the Will. The testator has not made proper arrangement for marriage of his daughter Sunita or his wife Jagwanti Devi. The most suspicious circumstance is that Sunita Sinha, daughter of the testator has signed the Will but she did not appear to support execution of the Will. The Plaintiff and her son have stated that Sunita is not mentally fit and therefore, she did not appear in court. No such pleading is appearing in the plaint or application filed for probate. Non-examination of Sunita Sinha will certainly lead to adverse inference. The witnesses examined on behalf of plaintiffs have stated that Janardan Sinha, Plaintiff Achala Sinha and daughter Sunita Sinha were present at the time of execution of Will and they all were knowing about the document. Had it been so, the delay of more than 29 years in presenting the Will becomes strong suspicious circumstance. The existence of Will was introduced only after service of notice for the partition signed by defendant No.13. It is settled law if the execution of Will, if surrounded with suspicious circumstance, it is the duty of the propounder of the Will to eliminate and remove all such suspicious circumstance. Again natural conduct of a human being is to be taken note of. If a father or a mother is going to debar their children from getting share in the property after their death and any Will by which the property is going to be bequeathed in favour of any third person or relative other than the children, he or she shall make disposition of his property, if so wished, concealing such disposition from the children who have been disinherited. These facts and reasoning are absent in the case in hand and it is also a strong suspicious circumstance against genuineness of a Will. 13. The facts appearing in the case at hand are fully covered with the facts and ratio decided by this court in the judgment reported in 2014 (3) JBCJ 1 (Miss Chitra Mitra @ Tulu Mitra & Others Vs. Smt. Bandana Mitra and Others). It was pointed out that S.L.P. (C) No.8274 of 2015 preferred against the judgment of this court in the case of Miss Chitra Mitra (supra) has been dismissed by Hon'ble Supreme Court vide order dated 11.05.2015. The learned Additional District Judge has elaborately discussed about the evidence of finger print expert. Smt. Bandana Mitra and Others). It was pointed out that S.L.P. (C) No.8274 of 2015 preferred against the judgment of this court in the case of Miss Chitra Mitra (supra) has been dismissed by Hon'ble Supreme Court vide order dated 11.05.2015. The learned Additional District Judge has elaborately discussed about the evidence of finger print expert. The discrepancy appearing in the report has well been pointed out and discussed in the judgment. 14. In view of the discussions made above, this court do not find reason to interfere with the impugned judgment. Accordingly, this miscellaneous appeal stands dismissed.