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Tripura High Court · body

2021 DIGILAW 147 (TRI)

Loknath Bhowmik v. Mani Gopal Roy Barman

2021-08-31

S.TALAPATRA

body2021
JUDGMENT This appeal under section 100 of the CPC arises from the concurrent finding of fact relating to valid execution of the Will, purportedly executed by one Alpana Roy Barman (Karmakar) wife of the first respondent and as recorded in the judgment dated 17.12.2018 passed by the First Appellate Court [the court of the Additional District Judge No.2, West Tripura, Agartala] in Title Appeal 57 of 2016. Needless to mention that by the said judgment dated 17.12.2018, the First Appellate Court has affirmed the judgment dated 23.07.2016 delivered in Title Suit 03 of 2014 by the Civil Judge, Junior Division, Court No.1, Agartala, West Tripura. [2] By the said judgment dated 23.07.2016, the suit instituted by the appellant for declaration of right, title and interest over the suit land as described in Schedule A which include the schedules B and C. The ownership of the suit land has been claimed by the appellant by virtue of the Will dated 22.11.1989 executed by one Alpana Roy Barman (Karmakar), the testatrix. Along with the declaration as aforestated consequential reliefs of permanent injunction and recovery of possession of the land as described in the Schedule B (the part of the Schedule A land) by evicting the tenant, the respondent No.9. Both the courts below have recorded their finding that suspicious circumstances surrounding the execution of the Will as stated could not be removed by propounder (the plaintiff) and as such no reliance can be placed on the said Will for purpose of determining the title over the suit land. It is admitted that the appellant was never in physical possession of the suit land. The eviction of the respondent No.9 is therefore sought on the basis of the purported appeal. [3] At the time of admission, the following substantial question of law had been formulated by this court for purpose of hearing this appeal by the order dated 27.03.2019: “Whether if the defendant does not prove elements constituting suspicion, can the propounder be saddled with the obligation of removing the suspicious circumstances?” [4] The essential fact for purpose of determining the appeal be introduced briefly at the outset. The suit land, the title of which has been claimed by the appellant (the plaintiff) pertains to Khatian No.521 old plot No. 2717, corresponding to the new plot No.4644 at Mouja Jogendranagar, District: West Tripura measuring 0.05 acre, which has been elaborately described in the Schedule A of the plaint. The appellant has further stated in the plaint that out of the schedule A land, a piece of land with hut measuring to 2 karas has been unlawfully occupied by a tenant (the respondent No.9) and as such recovery of the said land which has been more elaborately described in the Schedule B, has been sought. [5] According to the appellant, the testatrix executed one Will by bequeathing the suit land on 22.11.1989 which was scribed by one Laxman Chandra Das. The testatrix executed the said Will by putting her signature on the Will (Exbt. 1). It has been asserted by the appellant that the testatrix purchased the suit land in the year 1982. Since the appellant became close to the testatrix for providing care and aid, even though the appellant is unrelated to the testatrix, the testatrix bequeathed the said property to the appellant by executing the said Will. Even the appellant was made the executor of the said Will but the Will was, for the reason undisclosed, handed over to one Smt. Bani Debbarma (PW3). Bani Debbarma handed over the said Will after 23 years in 2012. The reason for such delay in handing over, as explained, is that PW 3 had lost her son. That apart, when the appellant intended to erect the fencing along the boundary of the suit land, the respondents no. 1, 2 and 4 had resisted the appellant and his labourers on 15.12.2013. That apart, the respondent No.9, notwithstanding the specific demand of vacating the hut situated over the B Schedule land, refused to vacate the said hut by stating that he did not recognize the ownership of the appellant. [6] According to the appellant, the cause of action for instituting the suit had arisen on 24.10.2012 when the appellant got the Will from his wife, to whom PW 3 had handed over the purported Will and lastly on 15.12.2013 when the appellant faced resistance as stated above from the defendants No. 1, 2 and 4 and denial from the respondent No. 9 in vacating the hut situated on the Schedule B land. [7] It appears from the records that defendant No. 1 to 7 and 9 filed a joint written statement by completely denying the execution of the Will or bequeathing the property by the testatrix by execution of the said Will. According to them, facts as asserted in the plaint are all concocted for unlawful purpose. It has been categorically asserted that with a design to unlawfully gain the suit land, the said Will had been created. [8] Those respondents have categorically asserted in Para 6 of the said written statement that the narrative of the testatrix’s illness, development of a close relation with the testatrix as the appellant had provided care and aid has been weaved as ‘sequence of concoction’. That apart, according to the defendants No. 1 to 7 and 9, the appellant has ventured to exercise fraud on the court. [9] Based on the said rival pleadings, the trial judge (the Civil Judge, Junior Division, Court No.1. Agartala), inter alia, framed the following issue which is the pivot in the controversy: “ii) Whether the deceased Alpana Roy Barman executed the Will on 22.11.1989 in favour of the plaintiff bequeathing the whole ‘A’ schedule land of the plaint? If so, whether the plaintiff acquired any right, title and interest over the said land?” [10] The appellant, in addition to admitting Khatian No. 5202 of the suit land (Exbt 2) and the Will (Exbt.1), adduced five witnesses namely Loknath Bhowmik (PW1) Anjan Kr. Roy (PW 2), Bani Debbarma (PW3), Laxman Ch. Das (PW4), the scribe, Sukesh Ch. Barman (PW5). The defendants who filed the joint written statement also adduced four witnesses namely Sukhen Ray (DW-1), Abha Banik (DW-2), Sunil ch. Karmakar (DW-3) and Jiban Debnath (DW4) but they did not adduce any documentary evidence. [11] On appreciation of the evidence, the trial judge arrived at the conclusion that if the whole evidence is considered, it would appear without any doubt that the plaintiff (the appellant herein) never possessed any part of the suit land and did not derive any title over the suit land by virtue of the purported Will dated 22.01.1989 (Exbt-1). Having observed thus, the suit was dismissed. Against the said judgment of dismissal dated 22.07.2016 rendered by the trial court has been challenged in the court of the District Judge, by filing an appeal under section 96 of the CPC being TA 57 of 2016. Having observed thus, the suit was dismissed. Against the said judgment of dismissal dated 22.07.2016 rendered by the trial court has been challenged in the court of the District Judge, by filing an appeal under section 96 of the CPC being TA 57 of 2016. By the impugned judgment, the first appellate court has, inter alia, returned the following finding for dismissing the said appeal: “Here in the case at hand from the evidence of the parties and also after hearing the argument of learned counsel of both the sides it appears to me that the present appellant has failed to satisfy the Court the suspicious circumstances that has arisen in the original suit for which it appears to me that the Learned Court below after consideration of all these aspects has rightly passed the judgment which I do not find it to be interfered with. The citations as referred by the appellant in the case is very much applicable but here in the case at hand there was no such dispute from the side of the respondent-defendants regarding probate of WILL in deciding the appeal, since the ground of appeal as asserted by the respondent-defendants was suspicion in due execution of the WILL. So it appears to me that the citations as referred to by the appellant in this appeal would not assist me to dispose of the appeal finally. Rather the citation of the defendant-respondents seems to very much appropriate for decision of this appeal. So in passing the judgment I have taken note of the principles of the citation has referred to by the learned counsel for the respondent-defendants.” [12] Mr. D. R. Chowdhury, learned senior counsel appearing for the appellant has with sufficient emphasis stated that the concurrent finding returned by the first appellant court stands contrary to the rule of burden of proof. According to Mr. Chowdhury, learned senior counsel the Will under consideration is no doubt is not a privilege Will. As such, execution of the unprivileged Will has to conform to the provisions of Section 63 of the Indian Succession Act, 1925 which provides the rule for the testator to be followed while instituting the Will. According to Mr. Chowdhury, learned senior counsel the Will under consideration is no doubt is not a privilege Will. As such, execution of the unprivileged Will has to conform to the provisions of Section 63 of the Indian Succession Act, 1925 which provides the rule for the testator to be followed while instituting the Will. In the case in hand, the testatrix has observed those rules as provided by Section 63 of the Indian Succession Act viz; (a) The testatrix has signed the Will and the Will has been signed by the testatrix in presence of some other persons [the witnesses]. (b) the signature or the mark of the testatrix and the person signing for her demonstrate that she intended to give effect to the writing as a Will and the Will has been asserted by three witnesses namely Rebati Mohan Debnath (not examined), Bani Debbarma (PW3) and none by the name Suresh Barman appeared as the witness of execution of the Will but one Sukesh Chandra Barman was examined as [PW5] who claimed that the testatrix had come to his hotel and requested him to be the witness of the Will to be executed by her. She had signed the Will in his presence. [13] Mr. Chowdhury, learned senior counsel has further contended that the requirement of Sections 66 and 68 in proving the Will have been conformed to and it has been established by the appellant that there has been no suspicious circumstances to doubt execution of the Will. He has reiterated that the defendant-respondents did not raise the plea of suspicion in execution of the Will, rather they have denied the very execution of the Will by the testatrix. The defendant–respondents even did not adduce any evidence on any plea or as regards the suspicious circumstances. Despite that the suit has been dismissed and such finding, as noted before, has been affirmed by the first appellate court. Since there is no requirement of obtaining probate of the sale deed of the Will, the said Will ought to have been relied as the testament of bequest. Even Mr. Chowdhury, learned senior counsel made a serious attempt to raise a plea against the testimony of PWs 4 and 5 as those witnesses have stated that the appellant (the plaintiff) is an advocate’s clerk and he has actively participated in preparation of the Will. But Mr. Even Mr. Chowdhury, learned senior counsel made a serious attempt to raise a plea against the testimony of PWs 4 and 5 as those witnesses have stated that the appellant (the plaintiff) is an advocate’s clerk and he has actively participated in preparation of the Will. But Mr. Chowdhury, learned senior counsel has fairly admitted that there was no reexamination of those witnesses by the plaintiff (PW1). [14] According to Mr. Chowdhury, learned senior counsel the finding returned by the courts below are entirely based on presumption and surmise and squarely against the settled position of law. In this regard, Mr. Chowdhury, has referred a few decisions of the apex court in order to explain onus of plea regarding suspicious circumstances. In Sridevi and Others v. Jayaraja Shetty and Others reported in (2005) 2 SCC 784 , it has been observed thus: “The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free Will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. DW-2, the scribe, in his testimony has categorically stated that the Will was scribed by him at the dictation of the testator. The two attesting witnesses have deposed that the testator had signed the Will in their presence while in sound disposing state of mind after understanding the nature and effect of dispositions made by him. That he signed the Will in their presence and they had signed the Will in his presence and in the presence of each other. In cross-examination, the appellants failed to elicit anything which could persuade us to disbelieve their testimony. It has not been show that they were in any way interested in the propounders of the Will or that on their asking they could have deposed falsely in court. Their testimony inspires confidence. The testimony of the Scribe (DW-2) and the two attesting witnesses (DWs. 3 & 4) is fully corroborated by the statement of hand-writing expert (DW-5). The Will runs into 6 pages. Their testimony inspires confidence. The testimony of the Scribe (DW-2) and the two attesting witnesses (DWs. 3 & 4) is fully corroborated by the statement of hand-writing expert (DW-5). The Will runs into 6 pages. The testator had signed each of the 6 pages. Hand-writing expert compared the signatures of the testator with his admitted signatures. He has opined that the signatures on the Will are that of the testator. In our view, the Will had been duly executed.” [Emphasis added] [15] On the point of onus on the propounder, Mr. Chowdhury, learned senior counsel has relied another decision of the apex court in Pentakota Satyanarayana and Others v. Pentakota Seetharatnam and Others reported in (2005) 8 SCC 67 where the apex court has laid down that the initial onus to prove execution of the Will always will be on the propounder but the respondents who opposed the plea of the valid execution for presence of undue influence, coercion or other suspicious circumstances, they have to establish their case of undue influence or coercion. Then the onus shifts to the propounder to remove the suspicios circumstances, if any (para 21). It has been further observed that section 68 of the Evidence Act deals with the proof of execution of documents required by law to be attested. The said Section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to the process of the court and capable of giving evidence, he must be called to prove execution. Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of the legal act. The formalities as have been required provided in Section 63 of the Indian Succession Act. The witness should further say the each of the attesting witnesses signed the instrument in the presence of the executant. In this case, the Will is unregistered one. Therefore, the element of solemnity as emerged through the process of registration is absent in the purported execution of the Will in the case in hand. [16] Mr. Chowdhury, learned senior counsel has stated that the witnesses of the Will came forward to prove the execution and as such the onus has been substantially discharged by the propounder. Therefore, the element of solemnity as emerged through the process of registration is absent in the purported execution of the Will in the case in hand. [16] Mr. Chowdhury, learned senior counsel has stated that the witnesses of the Will came forward to prove the execution and as such the onus has been substantially discharged by the propounder. Hence, the finding as returned by the courts below is contrary to the evidence as their proper appreciation has not been done. [17] Finally, Mr. Chowdhury, has pressed, in order to buttress, his reliance on another apex court decision being Leela Rajagopal and Others v. Kamala Menon Cocharan and others reported in (2014) 15 SCC 570 where the apex court has observed that the decision on unusual or suspicious circumstances must be based on the cumulative effect of all unusual features and suspicious circumstances having put together and not on the basis of impact of a single feature or a singular circumstances. It has been observed by the apex court as follows: “13. A Will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a Will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the Court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the Court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us.” [Emphasis added] [18] Mr. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us.” [Emphasis added] [18] Mr. S. S. Debnath, learned counsel appearing for the opposing respondents has relied on a decision of the apex court in H. Venkatachala Iyengar, v. B.N. Thimmajamma and Others reported in AIR 1959 SC 443 to contend that the party propounding a 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 Section 45 and 47 of the Act, the opinions of experts and of persons acquainted with the handwriting of the persons concerned are made relevant. Section 68 deals with the proof of the execution 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 requirement and the nature of the proof which must be satisfied by the party who relies on a documents in a court of law. That apart, Sections 59 and 63 of the India 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 requirement of proof of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of the Will it would be ideal to expect proof with mathematical certainty. The test to be applied would be usual test of satisfaction of the prudent mind in such matters [para 18]. However, there is one important feature which distinguishes Will from other documents. As in the case of proof of the Will it would be ideal to expect proof with mathematical certainty. The test to be applied would be usual test of satisfaction of the prudent mind in such matters [para 18]. However, there is one important feature which distinguishes Will from other documents. Unlike other documents, the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision on the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of the Will the court will embark on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that at the time of the Will was signed by the testator, the testator at that relevant time was in sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature on the said document on his own free will. Ordinarily, when the evidence is adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law. Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated [Para 19]. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated [Para 19]. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and the evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tend to make the initial onus very heavy; and unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator., It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas, circumstances may raise a dobut as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter, [Para 20] It is apparent from the above note that the propounder would be called upon to show by satisfactory evidence that the will was signed by the testator and that the testator at the relevant time was in sound and disposing state of mind and he understood and put his signature to the document of his free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, force would be justified in making the finding in favour of the propounder. In other words, the onus on the propounder can be taken to the discharge on proof of the essential fact. This process is to be followed ordinarily by the court but in some circumstances, that process may be discarded. When the courts are not satisfied as regard dispelling the suspicious circumstances. [19] Mr. Debnath, learned counsel has placed his reliance on Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another reported in AIR 1982 SC 133 where the apex court has laid down that the mode of proving a Will by stating that the mode does not ordinarily differ from that of proving any other document, except to the special requirement of proving attestation prescribed in the case of a Will 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 that 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 validly executed. Even where, 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 signatures 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 expect the doubt to be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent 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 himself takes a prominent 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 part near relations, any and every circumstance is not a ‘suspicious’ circumstance. A circumstance would be ‘suspicious’ when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. [20] To further the reasonings in this direction, Mr. Debnath, learned counsel has relied on a passage from Gurdial Kaur and Others v. Kartar Kaur and Others reported in AIR 1998 SC 2861 where a special feature as regards the satisfaction about the valid obligation of the will has been highlighted: “4. The law is well stated that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said will was the product of the free volition of the executants who had voluntarily executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel suspicious circumstance.” [Emphasis added] [21] Mr. Debnath, learned counsel has submitted that the concurrent finding of the courts below cannot be faulted with, inasmuch as those are well reasoned and why the court has refused to rely on the purported Will has been narrated clearly. In this context, Mr. Debnath, learned counsel has submitted that the testatrix died in the year, 1990 and the suit has been filed in the year, 2014. According to the plaintiff, he did not know about the existence of the said Will till 24.10.2010. The story that has been introduced by PW 1 is improbable according to the both courts below, inasmuch as only reason for that belated disclosure made by PW3 is death of her “son” but when her son died has not been revealed by PW3. Therefore, the evidence of PW3 has not been believed rightly. [22] Mr. The story that has been introduced by PW 1 is improbable according to the both courts below, inasmuch as only reason for that belated disclosure made by PW3 is death of her “son” but when her son died has not been revealed by PW3. Therefore, the evidence of PW3 has not been believed rightly. [22] Mr. Debnath, learned counsel has drawn notice of this court to an observation made by the apex court in H. Venkatachala Iyengar, v. B.N. Thimmajamma and Others reported in AIR 1959 SC 443 where the apex court has emphatically laid down the law in the following words: “The conscience of the court has to be satisfied by the propounder of will adducing evidence, so as to dispel any suspicious or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot from the foundation of a judicial verdict - positive or negative.” [Emphasis added] [23] According to the trial judge, the prime consideration of satisfaction is to get verification that the testator has signed or affixed his mark to the Will which shall be made to appear that it was intended to give effect to the writing as a Will [See Section 63 of the Succession Act]. The trial judge on the basis of the evidence of PW 3 and PW5 has clearly observed that there is no evidence to hold that the testatrix was not in a disposing state of mind on the purported day of execution of the Will (Exbt.1). Having observed thus, further inquiry into that aspect is abandoned. The pertinent observation as regard the conduct of PW3 as made by the trial judge in the judgment dated 24.07.2016 while appreciating the evidence, reads as under: “The pleading and evidence of the plaintiff is that the Will was executed on 22.11.1989 and the testatrix died on 11.08.1990. It is 3/4 months prior to her death the testatrix handed over the will to the PW3. The PW3 lost her two sons and her husband also left home and she also left Jogendranagar in the year 1993. It is 3/4 months prior to her death the testatrix handed over the will to the PW3. The PW3 lost her two sons and her husband also left home and she also left Jogendranagar in the year 1993. So she could not hand over the will to the plaintiff. But on 24th October, 2012 the PW3 came to the house of the plaintiff and handed over the will to the wife of the plaintiff who in turn handed over the same to the plaintiff. Thus, the plaintiff could come to know about the will for the first time on 24th October, 2012. It is also the plea and evidence of the plaintiff that the testatrix Alpana Roy Barman (Karmakar) with her husband (defendant No.1), brother and children went to Charilam during the 1980’s riot and stayed in the house of the paternal house of the plaintiff for about three years. During her stay here in the parental house of the plaintiff the testatrix Alpana Roy Barman feel serious ill and her husband also did not have any income due to shifting of residence and it was the plaintiff and his wife who provided all financial support and medical aid and care to the testatrix and her family members. Thus, the testatrix got pleased upon the plaintiff and his wife and so she bequeathed the suit land to the plaintiff. It has been further observed that from the evidence of the PW 3 Smt. Bani Debbarma we find that from 1988 to 1992 she used to reside at a rented house at Jogendranagar near the house of the defendant No.1 and so she developed an intimacy with Alpana Roy Barman (Karmakar) and used to visit her house for gossiping. During such gossiping Alpana Roy Barman (Karmakar) had narrated to her the background of her shifting from Jampuijala during the June riot of 1980 and her staying in the paternal house of the plaintiff. She also narrated to the PW 3 that during her stay there at Charilam she became ill and the plaintiff like younger brother provided all helps and nursing treatment to Alpana Roy Barman (Karmakar). So, the testatrix and her husband (defendant No.1) were pleased upon the plaintiff and his wife. According to the PW3 also deposed that she developed intimacy with the plaintiff and his wife. So, the testatrix and her husband (defendant No.1) were pleased upon the plaintiff and his wife. According to the PW3 also deposed that she developed intimacy with the plaintiff and his wife. According to the PW 3 in the month of November, 1989 one day the testatrix told her that she decided to execute a will in respect of her house at Jogendreanagar in favour of the plaintiff as recognition towards the plaintiff for his financial help and assistance for treatment of the testatrix. And after 2/3 days thereof the PW3 was taken with the testatrix to Agartala Court where a will was shown to her by one Advocate’s clerk who read over and explained the contents of the will and the testatrix also put her signature at every pages of the will in presence of the PW3. Thereafter, the PW3 also put her signature to the will as witness. In the 1st part of 1990 the testatrix fell ill and had handed over the will to the PW3 and in the month of August 1990 the testatrix also died and by that time two sons of the PW3 also expired and her husband was also elsewhere for the time being. Due to death of two sons and leaving of her husband the PW3 broke down and as such could not had over the will to the plaintiff. But in the year 2012 after the Durga Puja the PW3 came to the house of the plaintiff and handed over the will to his wife. The PW3 did not disclose the year of death of her sons. However, from her statement in cross-examination it is sure that her sons died prior to 1995.” [24] Mr. Debnath, learned counsel has referred to certain other parts of the judgment as rendered by the trial court. The trial judge has observed that the testatrix was sent to the scribe by one Rebati Mohan Debnath for drafting a Will. He had discussion with the testatrix regarding the Will and the other document produced by her. One important material from the evidence of PW4 has been ascertained by the trial judge that on his advice the testatrix met him after 8-9 days with witnesses. PW4 has claimed that he wrote the Will (Exbt-1) as per her request. PW4 had read over and explained the Will and thereafter, she signed over it in presence of the witnesses. One important material from the evidence of PW4 has been ascertained by the trial judge that on his advice the testatrix met him after 8-9 days with witnesses. PW4 has claimed that he wrote the Will (Exbt-1) as per her request. PW4 had read over and explained the Will and thereafter, she signed over it in presence of the witnesses. The other part as has been referred by Mr. Debnath, learned counsel is that PW5 has stated that in November, 1989 the testatrix came to his hotel and she requested PW5 to be witness to the execution of the Will. He has stated that he stood as the witness and singed the will. The testatrix also signed the will in his presence. In sequel to such submission as made by Mr. Debnath, learned counsel appearing for the opponent-respondent furthers the observation, as under, has been made by the trial judge: If we analyse the above evidence we find that the circumstances under which the will executed and it came into the hand of the plaintiff is not free from suspicion. Abundantly the PW3 Smt. Bani Debbarma lost her sons not later than 1995 and the plaintiff’s case that sized PW3 handed over the will to the wife of the plaintiff in the year 2012 appears to me to be most unrealistic in the ordinary course of human behaviour. The explanation from the side of the plaintiff that the PW3 has been in mental agony for about 17 years and so she could not inform the plaintiff about the will is most improbable and unacceptable1. Further, in the Ext.1 will there is no whisper of the plaintiff’s story of staying of the testatrix Alpana Roy Barman with her family in the parental house of the plaintiff and illness of the testatrix there and financial and medical aid to the testatrix by the plaintiff and his wife. Plaint shows that the testatrix and her husband were not in good financial condition due to their shifting to Charilam from Jampuijala and the testatrix with the defendant No.1 purchased the suit land for the purpose of residing there. Other than the suit land there was no other plot of land belonging to the testatrix and her husband. The testatrix also had sons and daughters. There is nothing in the recital of the Ext. Other than the suit land there was no other plot of land belonging to the testatrix and her husband. The testatrix also had sons and daughters. There is nothing in the recital of the Ext. 1 will as to why all such natural heirs were deprived of the said properties by the testatrix. Disposition of the suit land to the plaintiff under these circumstances also appear to me to be unnatural, improbable or unfair and not free form suspicions2. From the statement of the PW5 (one of the attesting witnesses) made in his cross-examination we find that the plaintiff was an advocate’s clerk at that point of time. This fact is also corroborated by the statement of the PW4 Sri Lakshan Ch. Das the scribe who in this cross-examination stated that he knows the plaintiff Loknath Bhowmik since he (Plaintiff) used to come to Court Complex. PW5 in unequivocal word deposed that the plaintiff also had requested him to put signature in the will, meaning thereby that the plaintiff was present at the time of preparation of the signing of the will. This fact negates the story of the plaintiff that he did not have any knowledge of the will till it was produced by the PW3 in the year 20123. The plaintiff throughout his plaint and his evidence on affidavit did not make any whisper as to his earlier profession as an advocate’s clerk. Rather in the very first paragraph of his plaint he projected himself as businessman. Fact remains that the plaintiff had frequent access to the Court premises and the PW4 the scribe is also and advocate’s clerk and the PW5 who was a businessman at the Court complex. So, it is very hard to believe that the plaintiff did not have any knowledge of the will at the time of its execution or soon thereafter. Now the question as to why the plaintiff concealed all such material facts remained unanswered. This aspect also takes us to a serious suspicious circumstances to doubt the voluntariness and willingness of the testatrix to execute the will. Further, if we consider the whole evidence we find that the story projected by the plaintiff about stay of Alpana Roy Barman in the parental house of the plaintiff in the 1980’s riot is not proved. No evidence is lead by the plaintiff to prove these facts asserted by him. Further, if we consider the whole evidence we find that the story projected by the plaintiff about stay of Alpana Roy Barman in the parental house of the plaintiff in the 1980’s riot is not proved. No evidence is lead by the plaintiff to prove these facts asserted by him. Rather the evidence adduced by the defendant side that the testatrix and her family including the DW3 Sri Sunil Karmakar did not stay at Charilam appear to be more probable. [25] The evidence as produced by the opposing respondents as according to Mr. Debnath, has well founded that the plaintiff’s pleas that the testatrix handed over the Will to PW3 is not true, as DW3 had clearly stated that he lived with the testatrix at Jampuijala till 1984. But the testatrix shifted her residence at Jogendrangar in the year 1982- 1984. DW 4 has stated that in the year 1990, the plaintiff contracted his marriage but that was his second marriage. Regarding this fact there is no pleading. That apart, the name of the wife of the plaintiff has not been disclosed as she is a material witness of transaction inasmuch as she had received the original Will from PW3. It may further be noted that nonetheless the wife of the plaintiff was not adduced as witness. The plaintiff’s possession over the suit land had not been established within the standard of probability. Thus, the trial judge has observed that the plea of the plaintiff that the suit land is under his possession, save and except the B Schedule land is improbable. Those findings as already stated have been challenged by filing an appeal being TA 67 of 2016. Hearing the parties, the first appellant court affirmed the finding returned by the trial judge. One of the important observations made by the first appellate court in the course of affirmation is being extracted hereunder: “PW5 one Sukesh Ch. Barman is also another attesting witness of the alleged WILL (Exhibit 1) but during cross-examination he specifically stated “Loknath Bhowmik also requested me to put my signature on the WILL.” This part of evidence of witness is very much vital in deciding this appeal. Barman is also another attesting witness of the alleged WILL (Exhibit 1) but during cross-examination he specifically stated “Loknath Bhowmik also requested me to put my signature on the WILL.” This part of evidence of witness is very much vital in deciding this appeal. Because if this part of evidence of this witness is accepted as true that it is crystal clear that in the year 1989 when the alleged WILL was executed that time the present appellant had knowledge about the execution of the WILL which he has suppressed in the plaint and if it is so the suit is definitely will be barred by limitation. The appellant in course of hearing of argument could not explains this lacuna that has arisen from the evidence on record.” [26] The first appellate court has completely disbelieved the ‘fact of ignorance’ of the plaintiff about the execution of the will prior to 2012 (reference may be made to the cross examination of DW4). That apart, the testatrix was living in the plaintiff’s place with his support is entirely unbelievable as the evidence does not support this kind of inference. Even the role of Bani Debbarma [PW3] has added to suspicion according to the first apex court. First appellate court has relied on the law as stated by the supreme court as follows: “It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will, the propounder must remove the said suspicion from the mind of the court by cogent and satisfactory evidence.” [27] Now the said finding affirming the judgment dated 26.07.2016 of the trial court has been challenged in this appeal in terms of the substantial question as reproduced before. [28] Before appreciating the rival contention raised by the counsel representing the parties, this court has made a close scrutiny to find out whether the signature or marks of the testator, or the signature of the persons signing for her has been made that it appears that it was intended thereby to give effect to the writing as a Will. [28] Before appreciating the rival contention raised by the counsel representing the parties, this court has made a close scrutiny to find out whether the signature or marks of the testator, or the signature of the persons signing for her has been made that it appears that it was intended thereby to give effect to the writing as a Will. The striking feature, it appears from such scrutiny, is that the signature as purported to be the signature of the testatrix has been made on the top of the Will as usually made for filing any application or statement before the court leaving the space for identification by the counsel. Most significantly there is no closing signature at the end of the will. Suspicious circumstances as identified by the trial judge [marked by 1, 2 and 3 in the extract] cannot be brushed aside. Those confront the conscience of the court and outbalance the technical proof. [29] From scrutiny of the evidence, it appears that PW 4 and 5 have stated that the plaintiff is an advocate clerk. Moreover, PW 5 has made a categorical statement in his cross examination that he was requested by the plaintiff to stand as witness to the purported Will. But in the examination in chief PW5 had narrated a different story. That apart, in the testament (the Will) there is no whisper to lay the reason for excluding the testatrix’s husband (the respondent No.1) and her children (the respondents No. 2 to 8). The plaintiff is admittedly unrelated to the testatrix. DW 3 is the full blood brother of the testatrix who had denied the fact that testatrix had ever ‘lived with the plaintiff.’ From the scrutiny of the evidence, this court does not find any evidence about PW3 who claimed to be very close of the testatrix. That apart, after 22 years of the death of the testatrix, through her (PW-3) the Will has been claimed to have been revealed. It has been admitted by the plaintiff that the Will was initially handed over to his wife. And his wife handed over the said will to the plaintiff. But the wife has not been examined in the trial. Even her name has not been disclosed anywhere. It has been admitted by the plaintiff that the Will was initially handed over to his wife. And his wife handed over the said will to the plaintiff. But the wife has not been examined in the trial. Even her name has not been disclosed anywhere. [30] This court does not find any difficulty to hold that practically the requirement of Section 68 of Evidence Act has technically been complied with but that compliance is not end of all. Mr. Chowdhury, learned senior counsel appearing for the appellant has emphasized on non-pleading of suspicious circumstances. The defendants No. 1-7 and 9 by filing a written statement have categorically asserted that no such will was ever executed by the testatrix and the same is manufactured for claiming the properties by exercising fraud on the court. Since they have not admitted execution of the appeal by the testatrix at all, such pleas as raised by Mr. Chowdhury, learned senior counsel is untenable. [31] The paramount question that, this court is confronted with is that whether the testatrix intended to give effect any writing as a Will. What the plaintiff has stated and intended to prove is that in sound disposing mind, the testatrix had executed the will by bequeathing the schedule A property in his favour. But he has suppressed the fact as proved by PW5 that he had a role in preparation of the will and that he has been working as the advocate clerk in the court premises where the said will has been purportedly executed. These do constitute suspicious circumstances. PW 4 and 5 were unambiguous in making the statement that plaintiff had been working as the advocate’s clerk. Even though Mr. Chowdhury, has made a desperate attempt to dilute their evidence. PWs 4 and 5 misunderstood the occupation of the plaintiff. But as noted earlier there had no reexamination by the plaintiff on that aspect. On overall appreciation of the evidence, this court is of the firm opinion that testatrix had never intended to give effect to the deed (Exbt-1) purported to be a Will for bequeathing the property (as described in the Schedule A of the plaint) and as such the finding returned by the first appellate court concurring the finding of the trial court is affirmed. In consequence thereof, this appeal stands dismissed. Draw the decree accordingly. Send back the LCRs thereafter.