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2017 DIGILAW 538 (GAU)

Reba Rani Das v. Saudamini Das

2017-05-04

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : Heard Mr. S.K. Ghosh, learned counsel appearing on behalf of the appellant/petitioner and also heard Mr. F.U. Borbhuya, representing the respondent Nos. 2 & 3. 1. The respondent No. 1 who is one of the daughters of Late Lochan Moni Das, as submitted by the learned counsel never contested in the Misc. (Probate) Case No. 102/2000 and as such on the prayer of the present appellant her name was struck out vide order passed by this Court on 06.03.2017. 2. The present dispute is with respect to a probate of a will executed by the father of the appellant and the respondent Nos. 2 & 3 and the maternal grandfather of respondent No.4. The appellant, as the petitioner filed an application for granting probate of a will alleged to have been executed by her father Late Lochan Moni Das bequeathing the property mentioned therein in favour of the present appellant/petitioner. The said petition was resisted by the present respondent Nos. 2 & 3 by bringing the allegation that the stamp paper used in preparing the will was purchased by some interested person and got it signed by Lochan Moni Das in some opportune moment on some pretext and got it to their advantage. That the appellant/petitioner never informed the respondent Nos. 2 & 3 about the execution of the will by their late father. The said will was created with the help of their scribe and Barindra Kumar Das, a person from the neighbour who managed Abdul Gani and Nizamuddin, both advocate clerks. The said will is a manufactured one and in order to deprive the respondent Nos. 2 & 3. Accordingly, they objected in granting the probate of the said will in favour of the executor, the present appellant/petitioner. 3. The learned Court below, on the basis of the evidence adduced by the parties to the proceeding dismissed the petition vide judgment dated 08.03.2002 passed in Misc. (Probate) Case No. 102/2000. The learned Court below while dismissing the said petition came to the finding that the respondent opposite parties never challenged the signature of the testator, Late Lochan Moni Das. It is also held by the learned Court below that the PW-2, Sirajul Haque is the writer of the said will, exihibit-1. (Probate) Case No. 102/2000. The learned Court below while dismissing the said petition came to the finding that the respondent opposite parties never challenged the signature of the testator, Late Lochan Moni Das. It is also held by the learned Court below that the PW-2, Sirajul Haque is the writer of the said will, exihibit-1. The said PW-2 is a neighbour of testator, Late Lochan Moni Das and the said will was executed on 07.02.2000 which was un-registered one. However, the learned Court below held that the presence of PW-3, Nizamuddin Choudhury, another advocate’s clerk at the time of writing the will to be suspicious on the ground that the said PW-3 had his residence six miles away from the one of the testator and the reason as to why the said PW-3 had visited the house of the testator in search of PW-2 on 07.02.2000 was not explained. The said suspicious circumstance could not be explained by any cogent reason. 4. The learned Court below also raised the suspicious circumstances on the ground that one of the attesting witnesses being from the Muslim community. The reason behind such suspicious circumstances as per the learned Court below, is that the neighbouring people of Late Lochan Moni Das are Hindus and in such a situation he would have called neighbouring persons who are Hindus. As because a person from the Muslim community having his residence six miles away put his signature as one of the attesting witnesses, under such circumstances, the said event was held to be one of the suspicious circumstances. 5. The PW-4, Barindra Kumar Das is the son of the elder brother of late Lochan Moni Das. The said PW-4 resides within the same compound of the residence of the testator, Lochan Moni Das. Instead of calling the elder brother of Lochan Moni Das, the said testator had called Barindra Kumar Das, the son of elder brother. The said testator never expressed his intention of executing the will bequeathing the property in favour of one of the daughters to the said PW-4. But was asked to put his signature as a witness so that was also termed as one of the suspicious circumstances. 6. None of the attesting witnesses could depose as to who had signed as the attesting witnesses one after another. But was asked to put his signature as a witness so that was also termed as one of the suspicious circumstances. 6. None of the attesting witnesses could depose as to who had signed as the attesting witnesses one after another. The signature of the testator transgressed into the writing forming the contents of the will and that goes to show that the signature of the testator was taken on a blank paper and subsequently converted into a will. The ink used in signing the will by the testator and the ink used by the deed writer are not similar and as such the same was held to be one of the suspicious circumstances. None disclosure about the will by the PW-1(the present appellant) to the respondent Nos. 2 & 3, being her sisters had also been categorized as one of the suspicious circumstances. Finally, the Probate application of the appellant/petitioner was dismissed. 7. Being aggrieved by the said judgment passed in Misc. (Probate) Case No. 102/2000 by the learned District Judge, Hailakandi the same has been put under challenge in this present appeal. 8. Mr. Ghosh, the learned Counsel appearing on behalf of the appellant/petitioner submits that the grounds shown to be suspicious circumstances by the learned Court below has no basis inasmuch as the impugned Judgment is perverse, if considered from the material piece of evidence on record. Mr. Ghosh submits that Barindra Kumar Das, the PW-4 in his examination-in-chief specifically deposed that Lochan Moni Das, had expressed his intention of bequeathing properties to the appellant/petitioner and thereafter asked the PW-4 to put his signature as one of the attesting witnesses. But the learned Court below never even considered the said material piece of evidence and instead, held that the fact of the PW-4 being called to be the attesting witness in exhibit-1, though his father was alive, itself a suspicious circumstance. It is also submitted that the signature has not been challenged by the respondent/opposite parties. But the learned Court below never even considered the said material piece of evidence and instead, held that the fact of the PW-4 being called to be the attesting witness in exhibit-1, though his father was alive, itself a suspicious circumstance. It is also submitted that the signature has not been challenged by the respondent/opposite parties. The learned Court below, though considered the said fact of non disputing of the signatures of the testator, but as the same transgressed over few words forming contents of the will that cannot be held to be a suspicious circumstance inasmuch as on verification of the exhibit-1 itself it goes to show that the signature was started in the blank space and traversed in a curved manner resulting transgression over few words of the will. Regarding further writing just on the bottom para that too, below the signature, Mr. Ghosh submits that it is the explanation as to why there was a overwriting in the said exhibit-1. Non-disclosure of the execution of the will by the testator to the sisters by the appellant/petitioner also cannot form the suspicious circumstances more so, when the other family members including PW-4 and his brother are well aware of the fact of the will. Under such circumstances, Mr. Ghosh submits that the impugned judgment is liable to be set aside. 9. Per contra, Mr. Borbhuya submits that there is no perversity at all in the findings of the learned Court below. Drawing the attention of this Court to the exhibit-1, he raised the issue of the signatures on the exhibit-1 that the same have no similarity with the one another. The fact of manufacturing the said will is clearly apparent owing to dissimilarity of the ink by which the testator executed and the writer wrote the will. Further he submits that the fact the signatures of executor were obtained on a blank stamp paper is proved on the face of the exhibit-1 itself, as the contentions of the will were squeezed while writing in order to complete the same within the limited space between the two signatures at the top and bottom of the stamp paper. However on the failure on the part of the deed writer to confine his writings within the limited space, he was compelled to right further contents below the signature of the testator which is unusual if compared to a genuine deed. However on the failure on the part of the deed writer to confine his writings within the limited space, he was compelled to right further contents below the signature of the testator which is unusual if compared to a genuine deed. It is also submitted that there is no cogent piece of evidence as to why Nizamuddin visited the house of the testator who resides six miles away from the house of the executor that too at 7 P.M. in the evening. In support of the difference of the ink of the signatures and the ink used in writing of contents of the exhibit-1, Mr. Borbhuya submits that such differences in the ink itself goes to show that the signatures of the testator was obtained prior to the writing of the said exhibit-1. So Mr. Borbhuya said that there is no illegality and/or perversity in the findings of the learned Court below. This appeal is liable to be dismissed. 10. In support of the submission made by Mr. Borbhuya, he relies Pomi Bora –Vs- Tulai Hazarika and Ors reported in 2011 (1) GLT 75. The said decision relied a Division Bench decision of this Court, wherein, it was held that the element of suspicion surrounding the execution of will cannot be lightly brushed aside and the trial Court’s view should be given due weight. Mr. Borbhuya submits that the learned Court below had on sound reasoning explained the suspicious circumstances surrounding the execution of exhibit-1 will and as such no interference is required. 11. Considered the submissions of both the learned counsels. Perused the evidence on record including the exhibit-1, will. The finding of the learned Court below that calling of a person to be present as an attesting witness from a community other than the one the executor belongs, to be a suspicious circumstances cannot be accepted as a suspicious circumstance inasmuch as will has no format prescribed by the Indian Succession Act nor execution of a will requires any religious right to be followed and finding of the learned Court below is totally perverse. Merely because the house was surrounded by Hindu neighbours, an executor cannot call a person from the Muslim community to be an attesting witness is not a finding which can be sanctioned by any Court of law. Merely because the house was surrounded by Hindu neighbours, an executor cannot call a person from the Muslim community to be an attesting witness is not a finding which can be sanctioned by any Court of law. The presence of PW-3, a person of a Muslim Community and having his residence six miles away from the residence of the testator, needs no explanation when it is on record that both the PW-2 and PW-3 are of the same profession i.e. advocates’ clerk. 12. The PW-4 specifically deposed that he was called by the testator to be present as one of the attesting witnesses and the testator having expressed his intention of bequeathing the said property to the appellant/petitioner, the PW-4 put his signature as one of the attesting witnesses. The learned Court below failed to take note of the said part of the evidence of PW-4 and the signing by the PW-4 as one of the attesting witnesses and that too while coming back from work cannot be held to be a suspicious circumstance that too for not calling his father, the elder brother of the testator. Regarding who signed first on the exhibit-1 so far the attesting witnesses are concerned, the law is very much clear. All the attesting witnesses are not required to be present at a time and the said attestation need not be carried out in presence of the other attesting witnesses while the testator puts his signature. So finding of the Court below is not a well reasoned one. The explanation and the conclusion inferred by the learned Court below with regard to the suspicious circumstances arising out of the signatures of the testator having transgressed into some of the words at the bottom of the will, the same is not at all acceptable inasmuch as on the perusal of the said exhibit-1 it shows that the signature though started on the vacant space but it curved towards few words which is not at all unnatural. 13. The submission with respect to the differences in the signature of exhibit-1 cannot be entered into as the same was not raised by the respondents in their written objection. In fact from the language of the written objection it seems that the respondent/opposite parties had admitted the signatures of their father testator. The relied decision by Mr. 13. The submission with respect to the differences in the signature of exhibit-1 cannot be entered into as the same was not raised by the respondents in their written objection. In fact from the language of the written objection it seems that the respondent/opposite parties had admitted the signatures of their father testator. The relied decision by Mr. Borbhuya and the ratio of the said decision is not applicable in the present case in hand inasmuch as the element of suspicion surrounding had been raised by the respondents but the appreciation of the evidence and the reasoning of the learned Court below cannot be accepted to be well reasoned one and as such the findings of the learned Court below are required to be interfered which this Court accordingly do and set aside the same. In the result the appeal succeeds. The impugned judgment passed by the learned Court of District Judge in Misc. (Probate) Case No. 102/2000 is set aside and the matter is remanded back to the learned Court below for passing the judgment afresh keeping in view the findings arrived at by this Court after due appreciation of evidence on record. The learned Court below will notify the parties to this appeal immediately on receipt of the LCR, the date for appearance of the parties whereafter, the learned Court below will dispose of the matter, accordingly as per the law in presence of the parties. Send back the LCR immediately.