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2022 DIGILAW 175 (TRI)

Ranju Das v. Manisha Das

2022-04-05

ARINDAM LODH

body2022
JUDGMENT Arindam Lodh, J. - The present appeal arises from the impugned judgment dated 06.08.2019, passed by learned Additional District Judge, West Tripura, Agartala in connection with Case No. TS(Probate) 01 of 2018, whereby and whereunder a Probate Certificate was granted in favour of the sole respondent No.-1, that is, Smt. Manisha Das (Guha) in respect of the Will property mentioned in the schedules of the Will itself by the testator. 2. Shortly stated, the respondent No.-1 had filed an application for granting probate stating that the testator executed the Will dated 12.08.2010 bequeathing her properties described in the schedule of the application in her favour. The Will was executed by the testator at Agartala in presence of the witnesses. The deceased at the time of death had a fixed place of abode at Shibnagar, Agartala within the jurisdiction of this court. 3. Having receipt of summons, the predecessor of the appellants, i.e. the husband of appellant No.-1 and father of the appellants No. 2 and 3 had contested the suit by filing written objection. It is pertinent to mention herein that the predecessor of the appellants, was one of the sons of the testator and, he being physically challenged contested the said application through his attorney, the appellant No. 1(b), namely, Shri Rahul Raja Das. 4. Considering the pleadings of the parties, following issues were framed by the learned trial court:- (i) Is the petition filed under Section 276 of the Indian Succession Act, 1925 by the petitioner Smt. Manisha Das (Guha) maintainable in its present form and nature? (ii) Whether the unregistered Will dated 12.08.2010 executed by Late Kamal Rani Das, was her last testament and Will? (iii) Is the unregistered Will dated 12.08.2010 allegedly executed by Late Kamal Rani Das, a genuine Will/testament? (iv) Whether the subject matter of the Will dated 12.08.2010 has been defined clearly and specifically? (v) Is the petitioner Smt. Manisha Das(Guha) entitled to get a probate of the Will dated 12.08.2010 as prayed for? 5. The parties had adduced their respective evidences. The Propounder i.e. the beneficiary of the Will, respondent No. 1 herein, had introduced the Will as Exbt. 1. The appellant No. 1(b) introduced one Power of Attorney by which his father had authorized him to file written statement and adduce evidence. 6. 5. The parties had adduced their respective evidences. The Propounder i.e. the beneficiary of the Will, respondent No. 1 herein, had introduced the Will as Exbt. 1. The appellant No. 1(b) introduced one Power of Attorney by which his father had authorized him to file written statement and adduce evidence. 6. Thereafter, after consideration of the evidence and materials on records and having heard the learned counsels appearing for the parties to the lis, learned Additional District Judge in his findings held that the respondent No. 1 had been able to prove the very genuinity and integrity of the Will executed by her late mother, Smt. Kamal Rani Das in her favour. 7. Feeling aggrieved, and dissatisfied with the said judgment, the appellants have preferred the instant appeal before this court. 8. I have heard Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. Ankita Pal, learned counsel appearing on behalf of the appellants as well as Mr. P. Chakraborty and Mrs. S. Debnath, learned counsel appearing on behalf of the respondents. 9. Since the matter relates to the Will, the question centers around as to whether the propounder i.e. the beneficiary of the Will has been able to prove genuine execution and registration of the Will, and, on the other hand, whether the appellants have been able to establish the suspicious circumstances surrounding the execution of the Will. 10. Mr. 9. Since the matter relates to the Will, the question centers around as to whether the propounder i.e. the beneficiary of the Will has been able to prove genuine execution and registration of the Will, and, on the other hand, whether the appellants have been able to establish the suspicious circumstances surrounding the execution of the Will. 10. Mr. Chakraborty, learned senior counsel, has contended, firstly, the contents of the Will has not been proved as per the procedures embodied in Section 68 of the Evidence Act; secondly, the scribe of the Will has not been produced to prove the contents of the Will; thirdly, the propounder of the Will was herself present at the time of execution of the Will; fourthly, the property mentioned in the schedule of the application for probate is at variance to the property mentioned in the schedule of the Will itself; fifthly, there is no reason apparent on the face of the Will as to why the testator of the Will had deprived her other sons and daughters from her property mentioned in the Will; sixthly, absence of the predecessor of the appellants at the time of execution of the Will while all other legal heirs of the testator were present; seventhly, failure of the propounder herself to identify the exact place of execution of the Will and eighthly, defective descriptions of the properties in the Will. In support of his contention, learned senior counsel has placed reliance upon the decisions of Hon'ble Supreme Court rendered in Gurdial Kaur & Ors. v. Kartar Kaur & Ors. reported in AIR 1998 SC 2861 and in B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors., reported in (2006) 13 SCC 449. 11. On the other hand, Mr. P. Chakraborty, learned counsel appearing on behalf of the respondents has contended, firstly, the Will has been proved in accordance with law; secondly, the attesting witnesses of the Will are the sons and daughters of the testator herself; thirdly, the testator was possessing good health and sound disposition of mind at the time of execution of the Will; fourthly, Section 63 of the Indian Succession Act has been complied with; fifthly, the appellants failed to establish suspicious circumstances as raised by them. Learned counsel for the respondents has further contended that learned trial Judge after considering the evidence and materials on record has correctly granted probate in favour of the propounder of the Will. 12. I have given my thoughtful considerations to the submissions advanced by learned counsels appearing for the parties. I have also minutely perused the Will. 13. Dealing with the first contention of Mr. Chakraborty, learned senior counsel that the contents of the Will has not been proved in accordance with Section 68 of the Evidence Act, I find that at the time of admitting the document into evidence the defendants did not raise any objection as regards the procedural deficiencies to prove the contents of the Will. 14. Here, I find that, the applicant i.e. the respondent No. 1 has specifically stated that her mother i.e. the testator of the Will had consciously desired to execute the Will in her favour. The Will was drafted by an Advocate. Out of three attesting witnesses, the two attesting witnesses were the own brother and sister of the propounder, i.e. the respondent No. 1. They are Kalyan Kumar Das and Smt. Chandana Sarkar. Both of them appeared before the witness box and had proved the signature of their mother put forth in every page of the Will. They have stated that at the time of execution of the Will she was in good health and sound disposition of mind and the Will was executed in front of them at the wishes and desires of their mother. 15. More importantly, in the present case, most noticeably feature is that the testator has executed the Will (Exbt.-1) in favour of one of her daughters in the presence of her own son and daughter, that is, brother and sister of the propounder, who have supported the truthfulness of the execution of the Will (Exbt.-1) by their mother in favour of their one sister. In the opinion of this Court, when a Will is executed by a testator in favour of one of her sons or daughters in presence of other sons or daughters, it must carry enough weight regarding the integrity of the Will. 16. Before I advert to the merits of the submission of Mr. Chakraborty, learned senior counsel, it would be apposite to refer Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. 16. Before I advert to the merits of the submission of Mr. Chakraborty, learned senior counsel, it would be apposite to refer Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Section 63 of the Indian Succession Act, reads as under: '63. Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [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.' Section 68 of the Indian Evidence Act, reads as under: '68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness 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: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied] 17. On consideration of all aspects and in absence of any objection to the Will, the trial Judge had brought the Will into evidence. At the time of argument, Mr. Chakraborty, learned senior counsel has fairly submitted that he has no objection to the admissibility of the document i.e. the Will, but, its mode of proof. It is settled proposition of law that if the mode of proof of a document has not been challenged at the very first instance when the document has been introduced and taken into evidence, then, it cannot be challenged at a later stage, even not at the stage of argument, to say the least, at the stage of appeal or revision. 18. The Privy Council in Padman v. Hanwanta, AIR 1915 PC 111 , [SCC OnLine PC 21] did not permit the appellant to take objection to the admissibility of a registered copy of a Will in appeal for the first time. It was held that this objection should have been taken in the trial court. Further, It was observed that:- [AIR p. 112] 'The defendants have now appealed to His Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first Court against the copy obtained from the Registrar's office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.' 19. In the case of Dol Govinda Das v. Makbul Sekh's infant heir and Ors., [ AIR 1936 Cal 164 ] it was held that objection has to be raised at the earliest opportunity as envisaged under Section 5 of the Evidence Act. The said principle of law was followed by Hon'ble Supreme Court in PC Puroshothama Reddiar v. S Perumal, 1972 (1) SCC 9 : AIR 1972 SC 608 . 20. The said principle of law was followed by Hon'ble Supreme Court in PC Puroshothama Reddiar v. S Perumal, 1972 (1) SCC 9 : AIR 1972 SC 608 . 20. As I have discussed here-in-above and in view of the above authorities of law on the subject, I do not find any error of law in the finding of the learned District Judge as regards the mode of proof and bringing the document, that is, the Will (Exbt.-1) into evidence. 21. To deal with the second question as raised by learned senior counsel that the scribe was not produced to prove the contents of the Will. Here, as I said earlier, the defendants had never raised any objection regarding the admission of the contents of the Will. They allowed the propounder of the Will to bring it into evidence without raising any objection against any part of the Will. That apart, the attesting witnesses in their depositions, and being confronted with cross-examinations have not disputed the contents of the Will or that the contents are not written as per the directions of the testator. To reiterate, the mode of proof has to be challenged at the first instance when the document was brought on record as evidence but not at a later stage. Accordingly, I am unable to accept the submission of learned Sr. counsel in this regard. 22. More importantly, Section 68 of the Evidence Act and Section 63(c) of the Indian Succession Act, 1925 do not contemplate or suggest that the contents of the Will must be proved by examination of the scribe. On conjoint reading of the above provisions, the law in this regard is very clear that the Will can be proved only by an attesting witness, and this is mandate as given in Section 68 of the Indian Evidence Act, if the attesting witnesses are alive. Where the material statements of the attesting witness indicate that the Will was signed by the testator in his presence and he put his signature at the direction of the testator, in my opinion, the provisions of Section 63(c) of the Indian Succession Act are complied with. Where the material statements of the attesting witness indicate that the Will was signed by the testator in his presence and he put his signature at the direction of the testator, in my opinion, the provisions of Section 63(c) of the Indian Succession Act are complied with. That apart, when it is found from the body of the Will that the testator had admitted before the Sub-Registrar or his authorized agent to have signed the Will with full knowledge of the contents and the Will has been proved by at least one attesting witness, then, it will give rise to be a strong evidence that the Will was valid and enforceable. 23. Now, coming to the next question whether mere presence of the propounder at the time of execution of the Will makes the Will suspicious. In my opinion, mere presence of beneficiary will not in all cases tantamount to a suspicious circumstance warranting the genuinity of the execution of the Will unless it is established that the propounder has taken a prominent role for execution of the Will, in his/her favour. In the instant case, it is seen that the propounder i.e. the beneficiary of the Will has not suppressed her presence and she is found to be very honest. True it is, that presence of beneficiary at the time of execution of the Will is one of the suspicious circumstances which is required to be explained by the person claiming benefits under the Will. As I have already said that the beneficiary of the Will has never tried to conceal her presence at the time of execution of the Will, and in the case in hand, I find that not only the beneficiary of the Will, but also one of the sons and daughter of the testator were also present during the execution of the Will and more significantly both of them signed as attesting witnesses in presence of their testator-mother, and at the time of signing the Will (Exbt.-1) by the testator, they were present. Thus, the basic requirements of section 63(c) of the Indian Succession Act, 1925 are fulfilled. More importantly, they appeared before the witness box and confirmed the very intention of their mother-testator to bequeath her properties as described in the schedule of the Will in favour of one of their sisters, the respondent No. 1. Thus, the basic requirements of section 63(c) of the Indian Succession Act, 1925 are fulfilled. More importantly, they appeared before the witness box and confirmed the very intention of their mother-testator to bequeath her properties as described in the schedule of the Will in favour of one of their sisters, the respondent No. 1. They have confirmed the fair execution of the questioned Will. In this situation, it will be unwise to say that mere presence of the beneficiary of the Will would warrant the document i.e. the Will as suspicious. 24. Next, it is true, that there are some variations in mentioning the schedule of the properties in the application of probate from the properties as mentioned in the schedule of the Will. Here, in my opinion, this cannot be a suspicious circumstance for the reason that, it is the duty of the court to read and examine the Will, as a whole in its true perspective and, added to it, the intention of the testator is an important facet which is to be gathered from the body of the Will itself Here, Will is the document and the pleadings are made on the basis of some oral information supplied by the parties to the lis. So, in the context of the case, it appears to be a matter of oral statement, and it is settled proposition of law that documentary evidence shall prevail over oral evidence. Following such principle, in my opinion, in this situation, the Will itself will prevail over the statements made in the application for granting probate of the Will. The Will is to be regarded as the solemn last desires and wishes of the maker and it will come into force when the testator would be no more in this world. As such, the courts must show respect to such Will, if it is found to be within the bounds of law and free from any legitimate suspicious circumstances. 25. It is trite law that Will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator's acquisitions during his lifetime, to be acted upon when on his/her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. [Ref-Jagdish Chand Sharma v. Narain Singh Saini (dead) through legal representatives and other, reported in (2015) 8 SCC 615 ] 26. [Ref-Jagdish Chand Sharma v. Narain Singh Saini (dead) through legal representatives and other, reported in (2015) 8 SCC 615 ] 26. This court as well as the Hon'ble Supreme Court in the long line of decisions has enumerated the principles wherefrom the suspicious circumstances can be drawn up. In the instant case, I do not find any such circumstances unnatural to doubt the integrity of the Will. The essentialities required to draw suspicious circumstances are found to be absent in the present context of the case. To re-iterate, in the case on hand, the attesting witnesses who is one of the sons and a daughter of the testator herself during their evidence had confirmed the fact that their mother herself had put her signature to the testament of her own free will and signed it (Exbt.-1) in presence of them who attested it in her presence and in the presence of each other. Thus, the burden rests upon the propounder to establish the genuinity of the Will (Exbt.-1) is discharged. And, in contrary thereto, the appellants have failed to come up with cogent evidence that the Will suffers from suspicious circumstances. Moreso, minor variations or discrepancies here and there, as may be surfaced during the examination of the witnesses should be avoided when the court comes to an indefeasible conclusion that the Will is intended to be executed according to the last wishes of the testator free of undue influence and coercion from any corner, and in a sound disposing state of mind capable of understanding its effect. What is more important, that the court has to be satisfied from the body of the Will that the testator intended to give effect to its writings and expressions as a last Will in the disposition of the Will properties. 27. Yet another circumstance, as tried to be projected by learned senior counsel appearing on behalf of the appellants in his persuasion to suspect the genuinity of the Will is the absence of Late Sankar Narayan Das, one of the sons of the testator and predecessor of the present appellants. In my opinion, mere absence of one of the legal heirs or any of the legal heirs at the time of execution of the Will is not per se a matter of suspicious circumstance. Hence, the submission of learned Sr. counsel in this regard does not sound good, and thus, repelled. 28. In my opinion, mere absence of one of the legal heirs or any of the legal heirs at the time of execution of the Will is not per se a matter of suspicious circumstance. Hence, the submission of learned Sr. counsel in this regard does not sound good, and thus, repelled. 28. In the light of the above discussions, I do not find any merit in the appeal and accordingly, the appeal stands dismissed. The order/decree of granting Probate Certificate by the learned District Judge stands affirmed and upheld. Pending application, if any, shall also stand disposed. Send down the LCRs.