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2016 DIGILAW 125 (TRI)

Kajal Paul v. Sajal Paul

2016-06-09

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. D.C. Roy, learned counsel appearing for the appellant as well as Mr. T.D. Majumder, learned counsel appearing for the respondents. 2. This is an appeal filed under Section 100 of the CPC from the judgment and decree dated 16.01.2012 delivered in Title Appeal No. 16 of 2011 by the Additional District Judge, West Tripura, Agartala, Court No.4. 3. At the time of admitting the appeal by the order dated 12.09.2012, the following substantial questions of law were formulated for purpose of hearing the appeal : "1. Whether the judgment and decree of the learned Appellate Court is barred under the provisions of Order 41 Rule 31 of the Civil Procedure Code? 2. Whether the Defendant-Respondents are duty bound to prove their case when evidence is adduced by them? 3. Whether the findings of the learned courts below are perverse? 4. Whether the findings of the learned Trial Court is correct when the attesting witnesses failed to say anything about the contents of the WILL and also to say about the numbers of signature of the Testator of the WILL. and other substantial questions of law at the time of hearing?" Before dealing the grounds of objection from which the substantial questions of law were formulated, this court would observe that Order XLI Rule 31 has provided the procedural guide how the judgment shall be written by the appellate court. It suggests that, there shall be points for determination, the decision thereon, the reasons for the decision and where in the appeal the impugned judgment is reversed or varied, the relief to which the appellant shall be entitled. 4. In the impugned judgment, the appellate court below has formulated two moot questions for disposal of the appeal namely- 1. Whether the WILL bearing no. 384 registered on 25.08.2006 is void ; and whether the same was executed by exercising fraud, coercion and influence? 2. Whether the said WILL was executed by practicing fraud, coercion and undue influence? The appellate court below by providing the reasons has arrived at the decision that the judgment of the trial court judgment dated 26.03.2011 delivered in T.S. 07 of 2010 does not suffer from any infirmity and hence it does not deserve to be interferred with. Accordingly, the appeal was dismissed by the impugned judgment. 5. The appellate court below by providing the reasons has arrived at the decision that the judgment of the trial court judgment dated 26.03.2011 delivered in T.S. 07 of 2010 does not suffer from any infirmity and hence it does not deserve to be interferred with. Accordingly, the appeal was dismissed by the impugned judgment. 5. On the substantial questions whether the defendant-respondents in the suit was duty-bound to prove their case as they adduced the evidence, it has been observed that the appellant, the plaintiff in the suit, has challenged the execution of the will in question. According to him, the execution was shrouded by fraud, coercion and undue influence and as such, that execution cannot be treated as lawful execution of the will expressing voluntary intention of the testator. 6. The trial court by its judgment dated 26.03.2011 has clearly held that there is no particular of fraud, coercion or of undue influence in the plaint . Although, Order VI Rule 4 of the CPC provides that in all cases, in which the party pleading relief on misrepresentation, fraud, breach of trust, wilful default, or undue influence, the particulars with date and time if necessary, shall be stated in the pleading. "Coercion" as defined in Section 15 of the Indian Contract Act or "undue influence" as defined in Section 16 of the Indian Contract Act and "fraud" as defined in Section 17 of the Indian Contract Act are unequivocal. Even in the common parlance, those are fundamentally based on threat or act restraining to do certain things or causing by an act any person entering into an agreement. Undue influence is what is related to the subsisting relation between the parties and the party who is likely to be benefitted is in the dominant position to regulate the course, such as to regulate the testator by using his position and thereby to derive unfair advantage over the other. Similarly, fraud are those acts committed with intent to deceive the person who is supposed to do an act by suggestion or for extending a fact which is not true or by active concealment of the fact or on a promise of an act which are to deceive or such wilful act or omission etc. No such particulars have been laid by the appellant herein, in the plaint. No such particulars have been laid by the appellant herein, in the plaint. The trial court hence has observed as under : "But in case in hand the plaintiff failed to state the particulars of coercion, undue influence and/or fraud. The plaintiff merely stated that by exercise of undue influence, coercion and fraud, the defendant obtained the disputed WILL, an in my opinion the mere statement without giving any particulars of fraud, undue influence and coercion has no force in the eye of law. The WILL is merely executed in favour of the close relative i.e., wife and son, of the testator of the WILL, cannot be a ground to presume the fact that the WILL was executed by undue influence, as generally the WILL is executed in favour of the near relative and not in favour of strangers. Therefore, I find that the plaintiff has failed to discharge his burden of framing of pleading." 7. This observation has been derived by the trial court based on a few decision of the apex court namely Bishundeo Narain versus Seogeni Rai, reported in AIR 1951 SC 280 , has held that – "It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be and the same applies to undue influence and coercion." Ladli prashad Jaiswal versus Karnal Distillery Co. Ltd., Karnal, reported in AIR 1963 SC 1279 and Subhas Chandra Das Mushib versus Ganga Prosad Das Mushib, reported in AIR 1967 SC 878 are the other decisions. The appellate court by the impugned judgment has refused to interfere with this finding.When the burden squarely lies on the plaintiff as regards coercion, fraud and undue influence and he has to inescapably discharge that burden. It cannot therefore be held that the propounder of the will is under obligation to prove that execution of the will was not tainted by those elements forming 'suspicious circumstances'. It cannot therefore be held that the propounder of the will is under obligation to prove that execution of the will was not tainted by those elements forming 'suspicious circumstances'. The initial burden if discharged, may burden be shifed to the propounder to prove that the execution is free from any blemish. 8. But in this case since the plaintiff has failed to discharge the intial burden as stated, the propounder, the defendants in the suit had under no obligation as such to show that the execution of the will was not tainted by any blemish. In this regard, the extent of the onus of the propounder as enunciated by the apex court in Ishwardeo Narain Singh versus Smt. Kamta Devi reported in AIR 1954 SC 280 may be referred. It has been observed by the apex court as under : "2. The dismissal of the application for probate on the ground that the disposition in favour of Thakurji is void for uncertainity can on no principle be supported and indeed learned counsel appearing for the respondent has not sought to do so. The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of said execution the testator had sound disposing mind. The question whether a particular bequest in good or bad is not within the purview of the Probate Court. It is surprising how this elementary principal of law was overlooked by both the Courts below. However, as learned counsel appearing for the respondents has not sought to support this ground nothing further need be said on that." 9. This case is not related to grant of the probate, but here the issue is the execution of the will. Unless the pleadings are properly delineated, the propounder will be under no obligation to show that the testator had sound disposing mind or that the will was executed duly and attested in accordance with law. 10. After scrutiny of the records, this court has further come across that the plaintiff's relation with the testator was not fine-tuned and he was entangled in a suit with the testator who is his father. 11. 10. After scrutiny of the records, this court has further come across that the plaintiff's relation with the testator was not fine-tuned and he was entangled in a suit with the testator who is his father. 11. Another important aspect, which has come to the fore is that the said will was registered and the original will has been filed by the respondent herein along with the application being IA 513 of 2016 for inspection of this court. From the said registered will it appears that the petitioner himself appeared before the Sub-Registrar, Sadar, Agartala, presented the will and signed the necessary papers. Only thereafter, the execution was admitted by the Sub-Registrar. In this respect, the decision of the apex court delivered in Rabindra Nath Mukherjee versus Panchanan Banerjee reported in AIR 1995 SC 1684 may be referred to : "6. Insofar as the third circumstance is concerned, we may first observe that witnesses in such documents verify whether the same had been executed voluntarity by the concerned person knowing its contents. In case where a will is registered and the Sub-registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested lose significance. The documents at hand were registered and it is on record that the Sub-registrar had explained the contents to the old lady. So, we do not find the third circumstance as suspicious on the facts of the present case." 12. The third circumstance in that case was that the witnesses to the documents were interested for the appellant. Meaning thereby, even if the witnesses have any interest that will also not create the element of blemish when the will itself is registered. In Rabindra Nath Mukherjee versus Panchanan Banerjee, what the apex court has further enuniciated is that deprivation by itself cannot be held as blemish nor can it be used as the suspicious circumstances. The apex court observed as under : "4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in other only partially. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in other only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritence of latter could not have been taken as a suspicious circumstance, when some of her descendents are even beneficiaries under the will". 13. Mr. D.C. Roy, learned counsel appearing for the appellant has submitted that since the witnesses failed to say anything about the contents of the will and the number of signatures that the testator set on the will it itself leads to the irresistable inference that they were not aware about the content of the will to which they were attesting witnesses. As a result, it should create a circumstance which may lead to the inference that the will was not voluntarily executed by the testator. As already discussed, not only the will was executed by the testator but he himself appeared before the Sub-Registrar, Sadar for presenting the will for purpose of registration and he got the will registered after discharging all formalities. Therefore, the incidence of execution and the incidence of observance of the formalities for the registration if put together, it would show that the testator had been acting in sound disposing mind for securing his intention which has been reflected in the form of the will and that it can regulate his succession so far his property is concerned. As such, this court even does not find any perversity in the findings returned by the courts below. 14. As consequence of what has been observed, this court is bound to hold that the appeal is devoid of merit and accordingly, the same is dismissed. Draw the decree accordingly. Send down the LCRs thereafter. Before parting with the records, the Registy is directed that the original will be kept under the seal cover which was produced along with IA No. 513 of 2016 and that shall only be returned on application by the applicant of IA No. 513 of 2016 on proper identification.