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2017 DIGILAW 1060 (GAU)

Bishnu Pada Saha v. Minati Saha

2017-08-07

MIR ALFAZ ALI

body2017
JUDGMENT : Mir Alfaz Ali, J. 1. This appeal is directed against the judgment and order dated 24.05.2013 passed by the District Judge, Dhubri in TS (Probate) No. 35/2008. The case of the plaintiff is that one Brojendra Saha and Joytsna Saha (since deceased) were the parents of the appellant, Bishnu Saha. Said Brojendra Saha and Joytsna Saha executed a WILL on 28.7.97, bequeathing their property mentioned in the schedule of the WILL in favour of the appellant Bishnu Saha. Bishnu Saha was also made the sole executor of the WILL. After the death of the testators, the plaintiff Bishnu Saha filed an application before the District Judge for granting probate in respect of the said WILL. Respondent Minati Saha is the wife of the elder brother of the appellant. Said Minati Saha resisted the petition for probate by filing an objection stating inter alia that the parents of the appellant did not execute the WILL and the same was a fraudulent one. It has also been contended that testators were mentally shocked after the death of their elder son and they were not mentally fit to execute the WILL. Taking advantage of serious physical and mental illness of the testators, the appellant in connivance with the attesting witness prepared the fraudulent WILL, which was never the last wish of the testators. Objections have also been raised that the petition was filed without appointing guardians of the minor children. 2. On the basis of the above pleadings, learned District Judge framed the following issues: a. Whether the petition is maintainable? b. Whether the WILL is valid document? c. Whether the WILL is fraudulent as alleged and fraudulently execution? d. Whether the WILL is fraudulently executed as alleged by the O.P. 3. Plaintiff examined three witnesses to prove the WILL. Defendant also examined two witnesses and after hearing the parties and on appreciation of evidence, learned District Judge dismissed the petition for probate. 4. Aggrieved by the judgment and order of the learned District Judge, the appellant has preferred the instant appeal. 5. I have heard Mr. P.K. Roy, learned counsel for the appellant and Mr. S.K. Goswami, learned counsel for the respondent. 6. Learned counsel for the appellant has submitted that despite, the execution of the WILL having been duly proved by adducing sufficient evidence by the plaintiff, leaned District Judge dismissed the suit erroneously on the ground of maintainability. 5. I have heard Mr. P.K. Roy, learned counsel for the appellant and Mr. S.K. Goswami, learned counsel for the respondent. 6. Learned counsel for the appellant has submitted that despite, the execution of the WILL having been duly proved by adducing sufficient evidence by the plaintiff, leaned District Judge dismissed the suit erroneously on the ground of maintainability. Countering the submission of the learned counsel for the appellant, leaned counsel for the respondent relying on the decisions in Anil Kak v. Kumari Sharada Raje reported in (2008) 7 SCC 695 and Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria reported in (2008) 15 SCC 365 , submitted that the plaintiff has failed to prove the execution of the WILL as per requirement of the law and therefore, learned Trial Court rightly dismissed the suit. Further contention of the learned counsel for the respondent was that the probate petition was not maintainable, as the same was not verified by one of the attesting witnesses as per the requirement of Section 281 of the Indian Succession Act. 7. Section 281 of the Indian Succession Act lays down that where the application is for probate, the petition shall also be verified by at least one of the witness to the WILL, when procurable. It is therefore amply clear from the language of the Section 281, that requirement of Section 281 is not mandatory and only directory. If an attesting witness is available or procurable at the time of filing the petition, there should be an additional verification of such attesting witness. Absence of additional verification by one of the attesting witness cannot render the proceeding not maintainable and therefore, the submission of Mr. Goswami, that the suit was not maintainable for want of verification as per Section 281 is not acceptable. 8. Section 63 of the Indian Succession Act provides the requirement of law which are to be satisfied for execution of a valid WILL, which reads as under: "Section 63: Execution of unprivileged WILLs. -Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his WILL according to the following rules:- (a) The testator shall sign or shall affix his mark to the WILL, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a WILL. (c) The WILL shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the WILL or has seen some other person sign the WILL, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the WILL in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 9. Section 63 of the Succession Act does not provide as to how a WILL has to be proved. Section 68 of the Indian Evidence Act provides as to how a document, which is required by law to be attested has to be proved. WILL being a document, which is required by law (Section 63 of Succession Act) to be attested by two or more witnesses, has to be proved as per Section 68 of the Evidence Act. As per Section 68 of the Evidence Act, if a document is required by law to be attested, at least one attesting witness is required to be examined to prove the document, if such witness is alive. 10. Burden of proving the WILL lies with the propounder being the beneficiary of the WILL. The Apex Court in the case of Daulat Ram & Ors. v. Sodha & Ors. reported in (2005) 1 SCC 40 while dealing with as to how a WILL has to be proved held as under: "10. WILL being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. v. Sodha & Ors. reported in (2005) 1 SCC 40 while dealing with as to how a WILL has to be proved held as under: "10. WILL being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the WILL has been validly executed and is a genuine document, the propounder has to show that the WILL was signed by the testator and that he had put his signatures to the testament of his own free WILL; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the WILL was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so." 11. In Surendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr. reported in (1974) 2 SCC 600 , the Apex Court observed as under: "(i) The propounder has to show that the WILL was signed by the testator : that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free WILL and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the WILL itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the fight of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the WILL are not the result of the testator's free WILL and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the WILL is accepted. In cases where the propounder has himself taken a prominent part in the execution of the WILL which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by dear and satisfactory evidence." 12. What therefore follows is that in a probate case, the primary burden on the plaintiff is to prove, that the WILL was genuinely executed by the testator and the testator was physically and mentally fit to make the WILL. If there is any suspicious circumstance, onus to dispel the suspicion is also on the propounder of the WILL. However, if any plea of fraud, coercion undue influence is raised burden to prove such pleas lies with the person who raises it. Thus, keeping in view the requirements of Section 63 of the Succession Act as well as Section 68 of the Evidence Act, let us now proceed to scrutinize the evidence to see whether the appellant has been able to discharge his burden. 13. Plaintiff has examined himself as PW-1. According to him, he came to know about the WILL after death of the testators. Therefore, PW-1, the executor of the WILL had no personal knowledge as regards execution of the WILL. PW-2, Gobinda Ch. Saha was also not the attesting witness of the WILL. According to him, he came to know about the WILL from PW-1. PW-3 was the scribe of the WILL. He stated that under instructions of Brojendra Saha and Joytsna Saha, he had written the WILL on 28.08.1997 in the office of the Sub-registrar at Bilasipara. PW-2, Gobinda Ch. Saha was also not the attesting witness of the WILL. According to him, he came to know about the WILL from PW-1. PW-3 was the scribe of the WILL. He stated that under instructions of Brojendra Saha and Joytsna Saha, he had written the WILL on 28.08.1997 in the office of the Sub-registrar at Bilasipara. It is pertinent to mention, that the WILL was registered on the same day on which it was prepared. Although, the scribe, PW-3, exhibited the signature of the witness to the WILL, during cross examination, he has stated that he was not conversant with the signature of Gajen Saha, who was an attesting witness of the WILL. Evidently, the attesting witness of the WILL were Gajen Saha and Rabindra Nath Malakar. None of those witnesses have been examined by the plaintiff in support of the WILL. It was brought on record, that Gajen Saha, one of the attesting witness to the WILL died, but Rabindra Nath Malakar was alive. However, Rabindra Nath Malakar, the attesting witness of the WILL was not called by the plaintiff to prove the execution of the WILL. Except the scribe of the WILL, no other witness having personal knowledge of execution of the WILL was examined. A question may arise here, whether the scribe, PW-3, can be treated as attesting witness. There is no bar for the scribe of a WILL to become an attesting witness, but in that case it has to be shown that the scribe had signed the WILL for the purpose of attesting it. A scribe merely putting his signature as a scribe, cannot automatically become an attesting witness, nor can a scribe be presumed to be an attesting witness, because 'attestation' has it own meaning. A scribe merely putting his signature as a scribe, cannot automatically become an attesting witness, nor can a scribe be presumed to be an attesting witness, because 'attestation' has it own meaning. Section 3 of the Transfer of Property Act defines as to what is meant by attestation, which reads as under: "attested',' in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary" 14. Section 68 of the Evidence Act provides that a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it, provided, an attesting witness is alive and subject to the process of the court and capable of giving evidence. From the evidence on record it transpires that one of the attesting witness was alive and in fact, he had been examined as DW-2 by the defendant and therefore the attesting witness, who was alive was capable of giving evidence and also subject to process of the Court. What is therefore evident is that the plaintiff has failed to comply with the mandatory requirement of Section 68 of the Evidence Act to prove the execution of the WELL by calling at least one of the attesting witnesses and therefore, the execution of WILL itself remained not proved in the present case. Consequence of such failure on the part of the plaintiff would be that the WILL cannot be used as evidence. 15. Rabindra Nath Malakar, who was an attesting witness to the WILL had been examined as DW-2. He deposed that his signature was obtained in the office of the Sub-Registrar by the scribe of the WILL. Consequence of such failure on the part of the plaintiff would be that the WILL cannot be used as evidence. 15. Rabindra Nath Malakar, who was an attesting witness to the WILL had been examined as DW-2. He deposed that his signature was obtained in the office of the Sub-Registrar by the scribe of the WILL. He further stated that when his signature was taken in the WILL, neither Joytsna Bala Saha was present there, nor had she signed the WILL. He also stated that when the plaintiff approached him to depose in court, he expressed, that he would tell the real facts, if he goes to court and upon expressing his mind, the plaintiff told that his evidence would not be required. Although, the DW-2 stated during cross examination that Brojendra Mohan Saha (one of the testator) was in sound health and mind, according to him Joytsna Bala Saha, another testator was not present in the sub-registrar office. Evidently, the WILL was prepared in the office of the sub-registrar. He also stated that before putting his signature, he did not go through the contents of the WILL. According to him, when he signed the WILL, there was no signature of Joytsna Saha. It was elicited during cross examination of the DW-2 that he was unwilling to be a witness to the WILL, but because of mental pressure exerted on him by Brojendra Mohan Saha, he signed the WILL. Thus, admittedly DW-1 was not a willing or intending witness to the WILL. The Apex Curt, in Niranjan Umeshchandra Joshi v. Mrudulaloya Rao reported in (2006) 13 SCC 433, referred in Kamari Sarada Raje (supra), observed that "while making attestation there must be an animus testandi on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable." According to DW-2, Brojendra Mohan Saha put his signature in the WILL in his presence, but Joytsna Bala Saha did not put her signature. Although DW-2 stated that Brojendra Saha put his signature in his presence, there is no evidence that DW-2 put his signature in presence of the testators. 16. Section 63 of the Indian Succession Act requires that attesting witness have to put their signature in presence of the testators and the testators have also to sign the WILL in presence of the attesting witnesses. 16. Section 63 of the Indian Succession Act requires that attesting witness have to put their signature in presence of the testators and the testators have also to sign the WILL in presence of the attesting witnesses. In the instant case, evidently, no attesting witness had been examined by the plaintiff. Although, one of the attesting witnesses (DW-2) was examined by defendant, he clearly stated that Joytsna Bala Saha did not sign the WILL and she was also not present in the sub-registrar office where the WILL was prepared. It is also evident from the testimony of the DW-2, that his signature was obtained by the scribe, but he did not state that he put his signature in presence of the testators. The above evidence brought on record clearly demonstrates that the statutory requirement of signing WILL by testators in presence of the witnesses and witnesses signing in presence of the testators have not been proved. What therefore transpires from the evidence brought on record is that the plaintiff could neither prove the requirement of a valid WILL as contemplated in Section 63 of the Succession Act nor proved the execution of the WILL as per Section 68 of the Evidence Act. 17. The DW-2, categorically stated that Joytsna Bala Saha was not present in the sub-registrar office and she had also not signed the WILL when his signature was taken. This evidence of DW-2 remained uncontroverted. Thus, evidence of DW-2, who was an unwilling attesting witness of the WILL, rather shrouded the genuineness of the WILL. 18. In view of all the facts and circumstances discussed hereinbefore, there can be no escape from the conclusion that the appellant has failed to prove that the WILL was genuinely executed and therefore, the impugned judgment and order of the learned District Judge, Dhubri refusing to grant probate cannot be faulted, although the reasons for arriving at the decision by the learned District Judge might be somewhat different. The appeal therefore, does not appear to have any merit and deserves to be dismissed. Accordingly, the appeal is dismissed. No cost. Send down the LCR. Appeal Dismissed.