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2017 DIGILAW 656 (ORI)

Digambar Pasayat v. Santosh Kumar Pasayat

2017-07-04

D.DASH

body2017
JUDGMENT : 1. This second appeal has been filed questioning the judgment and decree passed by learned District Judge, Sundargarh in RFA No.45 of 2015 confirming the judgment and decree passed by learned Civil Judge (Sr. Divn.), Sundargarh in C.S. No. 225 of 2011. The unsuccessful defendant no. 1 is now the appellant and respondent nos. 1 and 2 are the successful plaintiffs whereas the rest of the respondents are the defendants in the suit. The first appeal had been filed by this defendant no. 1 as a sole appellant. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Case of the plaintiffs in brief as necessary for the purpose may be stated as under:- One Dinabandhu Pasayat is the common ancestor of the parties. He died leaving behind his two sons namely, Purnachandra Pasayat and Tularam Pasayat. The parties to the suit are siblings of Tularam Passayat. Purnachandra Pasayat died issueless. They had some ancestral properties at village Tumulia as described in the schedule ‘A’ of the plaint standing recorded in the name of Dinabandhu; landed properties in that very village standing recorded in the name of Purnachandra and Tularam as specified schedule ‘B’ of the plaint and the landed properties in the village Dhubendand standing recorded in the name of Purnachandra better described in schedule ‘C’ and ‘D’ of the plaint respectively. It is stated that those properties are under the joint possession of the parties without any partition by metes and bounds, though for the sake of convenience, Purnachandra and Tularam during their life time had been possessing some portion of the said properties separately and that state is said to be continuing in so far as the siblings of Tularam are concerned. In the year 1989 during the lifetime of Purnachandra, though a partition had been shown to have been effected amongst the parties by carrying a proceeding under section 19(1)(c) of the OLR Act before the Tahasildar, the defendant nos. 3 and 4 were then not in picture. There an objection being filed by defendant no. 2, the same could not be finally effected. It is stated that Purnachandra and his wife Padmabati during their old age were looked after by the plaintiffs and defendant nos. 3 and 4 were then not in picture. There an objection being filed by defendant no. 2, the same could not be finally effected. It is stated that Purnachandra and his wife Padmabati during their old age were looked after by the plaintiffs and defendant nos. 1 and 2 and they had never executed any will in respect of their properties. On 27.8.2016 Purnachandra when fell ill, was taken to hospital for treatment. Next allegation is made that a will during that period has been created without the knowledge of said Purnachandra solely with an intention to grab his properties in respect of the land described in schedule ‘E’ of the plaint. Everything that regard are to have been stage managed Purnachandra during that period is stated to be not in a fit state of health and mind. This creation of the will is said to be the outcome of the fraudulent activity of defendant no. 1. In the year 2008, the defendant no. 2 filed Mutation cases for recording of the said land covered under the will in his favour and therefrom it came to be knowledge that such a will has been created. The mutation cases were contested and ultimately dropped. The appeal being carried, the matter had been remanded. But then also those got visited with the same result. The plaintiffs having known about the factum of creation of the will purported to have been executed by Purnachandra in respect of the portion of the suit land, though gave proposal to the defendant no. 1 and 2 for partition of the land, the same was denied on the basis of the said will. Hence, the suit has been filed for partition after declaring the will to be nonest in the eye of law. The defendants entering appearance in their written statement asserted the partition to have taken place in that proceeding under the OLR Act. They have further staked their claim on the basis of the will which according to them was duly executed by Purnachandra on 27.11.2006 bequeathing the land which had fallen in his share during said partition and his other lands. It is further stated that said will was with the knowledge and consent of the defendant nos. 2 to 4. They have further staked their claim on the basis of the will which according to them was duly executed by Purnachandra on 27.11.2006 bequeathing the land which had fallen in his share during said partition and his other lands. It is further stated that said will was with the knowledge and consent of the defendant nos. 2 to 4. They further stated that the will had been executed by Purnachandra in a fit state of health and mind and as his hands were trembling then, he had put his LTI thereon. The will is said to have also been consented to by his wife Padmabati. They have also raised the question of jurisdiction of the court in view of the acquisition of land by the MCL under the Coal Bearing Act. With all these they have pleaded to dismiss the suit. 4. The trial court on such rival pleadings framed as many as five issues, out of which issue nos. 3 and 4 are crucial as those refer to the rival case of the parties regarding prior partition and the next contention touching the aspect in so far as the will is concerned. 5. The trial court appears to have rightly taken up those above two issues for decision first, since the answers to those go to decide the fate of the suit. The finding on both the issues being taken together for decision have been returned in favour of the case of the plaintiffs specifically holding on evaluation of evidence that there had been no prior partition as pleaded by the defendants and the will as proved cannot be given the legal seal of approval so as to have its full play in the field. In view of these findings, the suit has been preliminarily decreed. The defendant no. 1 being aggrieved by the same had carried the first appeal. 6. The first appellate court in that appeal sat over again to give answer those two issues in side by side judging the sustainability of the findings recorded in that regard by the trial court. Upon re-evaluation of evidence in the backdrop of the settled law, the first appellate court has not been able to find out any justification to unsettle findings of the trial court on those two issues. Upon re-evaluation of evidence in the backdrop of the settled law, the first appellate court has not been able to find out any justification to unsettle findings of the trial court on those two issues. So the first appeal has been dismissed and the judgment and preliminary decree passed by the trial court in the suit have thus received the conformation. The defendant no. 1 thus having suffered from the judgment and preliminary decree passed by both the courts below has filed this second appeal. 7. Learned counsel for the appellant in course of hearing on admission contends that the courts below have erred in law by recording the findings in respect of issue nos. 3 and 4 relating to the factum of the prior partition as pleaded by defendant no. 1as also holding the will to be invalid in the eye of law. According to him on very flimsy ground and upon improper evaluation of evidence, those findings have been returned. In course of hearing, learned counsel for the appellant has confined his submission in respect of the substantial questions of law as indicated under Ground D which has nexus with Ground E as also to Ground A. The first two substantial questions of law as indicated in the memorandum of appeal concern with the will and the last one is in respect of the partition, consequentially touching upon the maintainability of the suit. Placing the copy of the will Ext. G, he urges that the same being a registered one and when no such suspicious circumstance of high degree surfaces therefrom or even from the evidence let in to support the same, the findings of the courts below against the said will, not only appears to be the outcome of perverse appreciation of evidence but also the settled position of law holding the field. He next contends that the finding that there had not been a prior partition is completely contrary to the evidence on record and the clinching evidence available on that score which have neither been considered nor have been so discarded to bolster the finding in that regard in favour of the plaintiffs. 8. Before addressing the above submission, it is felt apposite to pay due attention to the settled position of law in respect of proof of a will. 9. 8. Before addressing the above submission, it is felt apposite to pay due attention to the settled position of law in respect of proof of a will. 9. The Apex Court in Anil Kak v. Sharada Raje; AIR 2008 SC 2195 has held:- The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. 10. Let me now usefully refer to the decision of the Apex Court in case of H. Venkatachala vs. B.N. Thimmajamma; AIR 1959 SC 443 wherein it has been observed as under:- “The party propounding will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67 if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the hand-writing of the person concerned are made relevant. Section 68 deals with the proof of the executing of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Section 68 deals with the proof of the executing of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by t he party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Will it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.” 11. In the case of Uma Devi Nambiar v. T.C. Sidhan; (2004) 2 SCC 321 , the apex Court has followed the decision of Constitution of Bench of Apex Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee: AIR 2006 Bom 33 and reproduced para 4 of the said judgment which is as under:- “The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even were there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator’s mind was not free. In such a case the Court would naturally except that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in par near relations.” 12. Reverting to the contention raised in respect of the substantial questions of law governing the will in the instant case, it is seen that the will has been admitted in evidence and marked Ext. G which is a registered one. Admittedly, Purnachandra was a literate person fully knowing to read and write and he used to put his signature. A careful reading of the entire will Ext. G goes to show that the reason said to have prompted Purnachandra to bequeath the property in favour of defendant no.1is his satisfaction with the behavior and treatment given by the defendant no.1 in the absence of any issue of his own and that led to cause the deprivation of other children of his brother i.e. the parties to the suit other than defendant no.1. The document contains the LTIs of both Purnachandra and his wife Padmabati. The document contains the LTIs of both Purnachandra and his wife Padmabati. But remains no explanation in the will either with regard to the fact pleaded in the written statement that Purnachandra was then not a position to sign as his hands were trembling or that Padmabati did not know to sign. More importantly, the will is bereft of any explanation especially as regards the deprivation of wife Padmabati, coming to stand as the sole successor of the property upon the death of Purnachandra. There is no whisper therein as to what would happen to her in case she survives Purnachandra in other words when husband is going to bequeath his properties, nothing is stated about any provision being made for the wife’s living and her maintenance in future since they do not having children of their own to support Thus the will oncoming to have the force, Padmabati has been pushed at the mercy of defendant no.1 even to find a roof on her head and if no such favour being shown, the only way is to run on the street which is seen to be wholly unconscionable. There are four witnesses to the said will. Interestingly no such endorsement remains with regard to the attestation in the light of the provision contained in sections 67 and 68 of the Evidence Act read with section 66 of the Indian Succession Act. So the animus attestandi is completely absent and is not gatherable from the document itself. Although an Advocate purported to have been engaged for the purpose by Purnachandra has given certificate with regard to the drafting of the said will under the instruction of Purnachandra and then getting it typed as per his direction that, very certificate also does not express anything as regards the attestation. It simply refers to the satisfaction of the so-called executant with regard to the contents and further act in that direction. When the very aspect of non-taking of signature and instead putting of LTI by Purnachandra is projected as the suspicious circumstance surrounding the will, the certificate of the learned advocate drafting the will appears to provide no support to that explanation as is given in the pleading and evidence. The important part of the certificate is – xx xx xx who admitted to be correct and put signature/LTI in my presence”. The important part of the certificate is – xx xx xx who admitted to be correct and put signature/LTI in my presence”. On a plain reading of the same, it can safely be said that the learned Advocate was not even aware whether the executants put his LTI on the said will or signed therein. This belies the very endorsement itself that in his presence, the LTI had been put and consequentially it leads to doubt the certificate with regard to the drafting being made under the instruction of Purnachandra and as regards his satisfaction with regard to the contents of the will to have been so drafted and placed in English as per his instruction. The endorsement as is found can be said to be there before others coming to sign or put LTI. Furthermore, it is wholly silent about the presence of attesting witnesses and executants going to put his LTI in their presence and they coming to sign thereafter. 13. Moreover, this endorsement of the learned advocate appears to have been put at the foot of the document after the signatures purported to have been given by those four witnesses. If the endorsement with regard to the attestation would have been missed inadvertently in the document itself, the same could have been provided by the learned Advocate but that is also conspicuously absent. The manner of appearance of the signatures of the so-called attesting witnesses also raises the grave doubt that when the will which is a typed one contains the serial number of the witnesses being typed as 1 and 2, the serial no. 3 and 4 have been inserted in writing. Surprisingly, the serial no. 3 which contains the purported LTI of the wife of the executant is not just below serial no.2 but it is by the side of serial no.1 and then again serial no.4 has appeared below serial no.2, as if the legal mandate remains to complete the document within that number of pages and is not to exceed beyond that. Furthermore with regard to these writings made in hand, there is absolutely no explanation as is normally required and given. The learned Advocate who has given the certificate at the end has not written anything with regard to signing of the will by those four witnesses including wife of Purnachandra. Furthermore with regard to these writings made in hand, there is absolutely no explanation as is normally required and given. The learned Advocate who has given the certificate at the end has not written anything with regard to signing of the will by those four witnesses including wife of Purnachandra. He not only does not know whether executants put his signature or LTI but also as is seen has no idea about the presence of the witnesses including that of the wife of the executant or that the will being read over in their presence much less to say, those witnesses coming to sign. All these lead to draw an inference that some portion above the certificate of the learned Advocate had been kept blank and those blank portion have been filled up later by with some management skill being applied. There is no endorsement of the registering authority with regard to the fact of attestation although in this case one of such so called attesting witnesses is the identifying witness, remaining present at the time of registration and the identifying the executant before the Registering Authority. A naked eye look go to reveal that the LTI said to have been so put by the executants on the document and in the Sub-Registrar office significantly varies which though is not conclusive on the point that the executant was absent at the time of execution yet is enough to suggest the haste or use of force in taking the LTI of the executant so as to doubt the same to have been voluntarily given. Over and above there remains no such endorsement by the learned Advocate or any one else with regard to the fit state of mind. On the face of all these embarrassing features, the examination of the learned Advocate as a witness from the side of the defendant no.1 has been withheld which could have gone to clear the clouds hovering on the sky. In view of aforesaid, the evidence of D.W.2 who has been examined as attesting witness providing explanation with regard to the non-taking of signature of the executant has been rightly held to be unworthy of credence. Among the reasons provided by the courts below on detail discussion of evidence the import one is that this D.W.2 stated that the executant and his wife had signed first, which does not reveal from the document Ext. Among the reasons provided by the courts below on detail discussion of evidence the import one is that this D.W.2 stated that the executant and his wife had signed first, which does not reveal from the document Ext. G. 14. In view of all the aforesaid discussion and reasons, the finding recorded by the trial court as also affirmed by first appellate court in refusing to accept the will to have been duly proved for being acted upon is found to be based on proper appreciation of evidence on record and upon their microscopic examination in the touchstone of the settled position of law finding further support from the discussion made hereinabove which appears to have missed the attention of the courts below. Therefore, the submission of the learned counsel for the appellant that Ground D and E of the memorandum of appeal are standing as the substantial questions of law for admission of this appeal gets repelled. 15. Now next coming to the substantial question of law under Ground A as per the sub-mission of learned counsel for the appellant, it may be said that the same is a finding of fact. The trial court having found that there was no partition in metes and bounds upon evaluation of evidence at its level; the first appellate court has affirmed the same and as it appears after independent examination of the evidence at its level sidelining from the very beginning, the discussion of the evidence as made by the trial court and then concluding that there remains no reason to differ. It is the settled position of law that a finding of fact is not liable to be interfered with in the second appeal unless it is shown that the same is the outcome of the perverse appreciation of evidence i.e. by overlooking some important evidence on record or by reading something extraneous into evidence which if would not have been so done, the finding would have been to the contrary. This is not the position in the present case. The courts below have discarded the partition said to have been effected in the OLR proceeding by assigning good reasons. This Court finds no such perversity therein. On carefully going through the judgments of the courts below and the reasons assigned in returning the finding on issue no. This is not the position in the present case. The courts below have discarded the partition said to have been effected in the OLR proceeding by assigning good reasons. This Court finds no such perversity therein. On carefully going through the judgments of the courts below and the reasons assigned in returning the finding on issue no. 4 in the negative, this Court also finds no such legal or factual infirmity therein warranting further examination by framing a substantial question of law on that score. 16. In the wake of aforesaid, this Court concludes that the second appeal does not merit admission. Accordingly, the appeal stands dismissed. No order as to cost.