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2022 DIGILAW 536 (GAU)

Lalrinpuia, S/o. Lalzawnchhuaha (L) v. Zokhumi

2022-05-24

MARLI VANKUNG

body2022
JUDGMENT : Heard Mr. Lalpianfela Chawngthu, learned counsel for the appellant and Mr. F. Lalengliana, learned counsel for the respondent. 2. This is an appeal against the Judgment & Order dt.14.11.2019 passed by the Sr. Civil Judge Champhai, in Probate Case No.2 of 2018 wherein the ‘will’ dated 24.05.2017 executed by Lalzawnchhuaha (late) was probated by the Learned Civil Judge 3. Brief facts of the case is that Mr. Lalzawnchhuaha (late) was the owner of the house bearing H/1-48 along with adjacent land located at Vengthar, Khawzawl. During his lifetime he had executed a ‘will’ dated 9/4/2017 in the presence of three witnesses namely Lalchhantluanga, Lalzawnchhuaha, and FK Lalsangluaia. In the’ ‘will’ his son from his first marriage, Lalrinpuia was bequeathed the house at Vengthar, Khawzawl. However, as long as the present house stands, his two daughters namely Lalbiaknungi and Lalremruati, from his present wife, were to collect the rent charges. He also apportioned the value of his properties to his children namely Lalrinpuia, Rokhuma, Lalbiaknungi and Lalremruati at 25% each. 4. The petitioner/respondents case is that on 21.05.2017, the Mr. Lalzawnchhuaha (late), had informed his first children to gather around as he wanted to let them know that he had an intention to change the previous ‘will’ dated 09.04.2017. On that day only Lalniliani, Lalrinmawii, Sanghmingthangi and Parliani were present while his other children from his first marriage were absent. He straight forwardly informed them that he has an intention to withdraw his previous ‘will’ dt.9.4.2017 and that he intended to make a fresh and new ‘will’. His children who were present on 21.5.2017 were not willing to accept that their father had intention to make new and fresh ‘will’. However, Mr. Lalzawnchhuaha along with his wife Zokhumi and a Ngaihthangi went to the Champhai District Court, Zote on 24.05.2017 and approached an Advocate Lalchhuansanga Sailo for making a fresh ‘will’. On the said ‘will’ Zokhumi, the petitioner/respondent, W/o Lalzawnchhuaha (L) and Ngaihthangi, W/o Sangkhanngina put their respective signature as witnesses in the presence of the said Advocate and the testator. 5. Mr. Lalzawnchhuaha, then died on 19/02/2018 due to heart attack and his wife Smt. Zokhumi petitioner/instant respondent, filed an application under Chapter VII of the Mizo Marriage, Divorce & Inheritance of Property Act, 2014 for grant of probate of ‘will’ Dt. 24.05.2017 executed by Mr. Lalzawnchhuaha. 5. Mr. Lalzawnchhuaha, then died on 19/02/2018 due to heart attack and his wife Smt. Zokhumi petitioner/instant respondent, filed an application under Chapter VII of the Mizo Marriage, Divorce & Inheritance of Property Act, 2014 for grant of probate of ‘will’ Dt. 24.05.2017 executed by Mr. Lalzawnchhuaha. After filing the application, the persons whose names appeared in the first ‘will’ were summoned and the respondent/instant appellant Lalrinpuia filed his written objection. 6. The respondent/instant appellant objected to the ‘will’ dated 24.05.2017 stating that there is no strict proof that the petitioner is the legitimate wife of Mr. Lalzawnchhuaha and that there was no marriage certificate in respect of the marriage between the petitioner/instant respondent and is not eligible to file the present case before this Court. He also stated that the ‘will’ executed on 09.04.2017 is the last ‘will’ executed by their father Lalzawnchhuaha and the witnesses put their signatures to the said ‘will’ in the presence of witnesses and children of the deceased Lalzawnchhuaha. The respondent/instant appellant also stated that the deceased Lalzawnchhuaha had not informed all his first children that he had an intention to change the previous ‘will’ dt.09.04.2017. The said ‘will’ dt.24.05.2017 was executed without the knowledge of the first children of the deceased Lalzawnchhuaha. The respondent/instant appellant further stated that the ‘will’ dt.24.05.2017 was made under coercion and undue influence by the petitioner/instant respondent and not in accordance with the provisions of Chapter VII of the Mizo Marriage, Divorce and Inheritance of Property Act as such the ‘will’ dt.24.05.2017 is null and void. 7. The ld. lower court then framed the following issues : (1) Whether the petitioner is eligible to file the present case? (2) Whether the testator Lalzawnchhuaha made his ‘will’ on 24.05.2017? If so whether he executed his ‘will’ in his free ‘will’? (3) Whether the ‘will’ dt.24.05.2017 was made in accordance with the provisions of Chapter VII of the Mizo Marriage, Divorce & Inheritance of Property Act, 2014? (4) Whether the petitioner is entitled to her claim? 8. After both the parties adduced their evidence the learned Lower Court decided all the issues in favour of the plaintiff and probated the ‘will’ dated 24.05.2017. Aggrieved by this the appellant has approached this court. 9. Mr. (4) Whether the petitioner is entitled to her claim? 8. After both the parties adduced their evidence the learned Lower Court decided all the issues in favour of the plaintiff and probated the ‘will’ dated 24.05.2017. Aggrieved by this the appellant has approached this court. 9. Mr. Lalpianfela Chawngthu, learned counsel for the appellant submits that there were suspicious circumstances surrounding the execution of the ‘will’ for that the PW1 stated in her examination in chief that her husband Mr. Lalzawnchhuaha told the Advocate Lalchhuansanga Sailo of his intention to make a fresh ‘will’ while PW2 stated that on reaching the court she met the Advocate Lalchhuansanga Sailo and she told him that they would like to prepare a ‘will’, while the Advocate Lalchhuansanga Sailo stated that the testator approached him and asked him whether he could draft a ‘will’ for him or not. That the statements of PW1, PW2 and PW3 contradicted each other. PW1 stated that she did most of the talking while PW2 stated that PW1 was silent, PW3 stated that Lalzawnchhuaha told him how he wanted the ‘will’ to be prepared and he typed whatever the testator. The accounts given by the three witnesses who were present at the time of execution of the ‘will’ were different. That the testator Mr. Lalzawnchhuaha had never expressed his desire to execute a ‘will’ again on 24/5/2017 to any of his relatives nor did anyone advise him to execute a fresh ‘will’ accept the instant respondent. Everything was done in the dark and secretively. The attesting witness PW No.2 Ngaihthangi also stated in her cross examination that the Petitioner/instant respondent Zokhumi was her close relative. 10. That the deceased Mr. Lalzawnchhuaha had six children out of his previous marriage which included two sons namely Rokhuma and Lalrinpuia and usually in the Mizo society inheritance of property usually runs along the line of the male descendants. It is unusual for the deceased to make a ‘will’ in favour of his two minor daughters and his youngest son of his previous marriage and leave out his other son and daughters. It is unusual for the deceased to make a ‘will’ in favour of his two minor daughters and his youngest son of his previous marriage and leave out his other son and daughters. That PW1 stated in her examination in chief that her husband during his life time had executed the ‘will’ dated 9/4/2017 and on 21/5/2017 he had informed that he wanted to change the ‘will’ however on her cross examination there were discrepancies in the name of the persons who were suppose to be present on 9/4/2017 and on 21/5/2017. That for the above reasons there was suspicious circumstances in the alleged ‘will’ executed by the deceased Mr. Lalzawnchhuaha which the respondent was unable to dispel. The learned counsel further submitted that the ‘will’ dt.24.05.2017 is not proved as per the Indian Evidence Act, 1872 and section 67 & 68 of the Evidence Act was not complied with. 11. The learned counsel has relied upon the Apex Court’s decision in H. Venkatachala Iyengar vs. B.N. Thimmajamma & Others, reported in 1959 AIR SC 443 para 31, Ram Piari Vs. Bhagwant and others reported in (1990) 3 SCC 364 para 2, Gurdial Kaur and others vs. Kartar Kaur and others reported in (1998) 4 SCC 384 . 12. Mr. F. Lalengliana, learned counsel for the respondent on the other hand submits that there was no such suspicious circumstances under which the ‘will’ dated 24.05.2017 was executed. The execution of the ‘will’ dated 09.04.2017 and 24.05.2017 is not disputed. That the testator of the ‘will’ Mr. Lalzawnchhuaha had stated his desire to make a fresh ‘will’ on 21.05.2017 and thereafter had gone to the District Court Champhai along with his wife Zokhumi and Ngaihthangi and requested one advocate Mr. Lalchhuansanga Sailo to draft the ‘will’. Mr. Lalchhuansanga Sailo read out and explained the contents of the ‘will’ which was then signed by the testator and the witnesses. There was no suspicious circumstances which cast doubt on the credibility of the ‘will’ and the signatures of the testator and the witnesses were not rebutted during the cross examination of the witnesses in the trial court. That though the witnesses for the present appellant in the trial court had stated that they believe that Zokhumi the petitioner/instant respondent must have slyly forced and coerced him to prepare the ‘will’, they have no documents or evidence to prove such an allegation. That though the witnesses for the present appellant in the trial court had stated that they believe that Zokhumi the petitioner/instant respondent must have slyly forced and coerced him to prepare the ‘will’, they have no documents or evidence to prove such an allegation. The learned counsel has relied on the Judgment of the Apex court in Madhukar D. Shende vs. Tarabai Aba Shedage reported in (2002) 2 SCC 85 (para 9), Sridevi and Others vs. Jayaraja and others reported in (2005) 2 SCC 784 (para 11). 13. I have considered the submissions made by both the learned counsels for both the parties and have also perused the evidence and documents available on record. 14. The points that arises for consideration are ; (i) whether the ‘will’ dated 24.05.2017 executed by the deceased Mr. Lalzawnchhuaha was made under suspicious circumstances and therefore is liable to be set aside and quash and (ii) whether section 67 & 68 of the Evidence Act has been complied with. 15. With regards to the circumstances under which the testator had executed the ‘will’ dated 24.05.2017 and the discrepancies mentioned in examination in chief of the PW1, PW2 and PW3, I find that the discrepancies are very minor and the plaintiff witnesses have all basically held firm to the fact that on 24.05.2017 the Testator Mr. Lalzawnchhuaha had approached the advocate Mr. Lalchhuansanga Sailo to draft the ‘will’ for him. Mr. Lalchhuansanga Sailo has in his examination in chief as Plaintiff witness No. 3 clearly stated that the testator had approached him and asked him whether he could draft a ‘will’ for him and as agreed he had drafted the ‘will’ in respect of his land and building No H/1-48. That he had drafted the ‘will’ as dictated by the testator and after he finished writing the said ‘will’, he explained all the contents of the ‘will’ in the Mizo language. That the ‘will’ was made without any undue influence, coercion and force. That he was present when the witnesses to the ‘will’ put their signature. I find that this witness is an independent witnesses having no interest in the case and the truthfulness of his statement has not be challenged or rebutted during his cross examination. That the ‘will’ was made without any undue influence, coercion and force. That he was present when the witnesses to the ‘will’ put their signature. I find that this witness is an independent witnesses having no interest in the case and the truthfulness of his statement has not be challenged or rebutted during his cross examination. The allegation made by the respondent/appellant witnesses that Zokhumi petitioner/respondent must have slyly forced and coerced the testator to prepare the ‘will’ has not been supported by any evidence and appears to be based on mere suspicion and speculation. The witness for the opposite party in the trial court are the two sons and two daughters of the deceased Mr. Lalzawnchhuaha from his first marriage, who have not accepted the ‘will’ executed by their father on 24.05.2017 but have accepted a ‘will’ dated 09.04.2017, however, even if the deceased Mr. Lalzawnchhuaha had executed a ‘will’ on 9/4/2017 he has the liberty to replace the previous by executing a latter ‘will’ which will prevail over any previous ‘will’. There is nothing to show that Mr. Lalzawnchhuaha was physically or mentally incapacitated from executing the second ‘will’. There is nothing un natural in the contents of the ‘will’ dated 24.05.2017 wherein Mr. Lalzawnchhuaha had bequeathed his house and property at Khawzawl vengthar jointly in favour of his two daughters with his second wife with whom he was residing and the ‘will’ also mentioned that if his house was to be sold after his death by his daughters then his youngest son from his first wife Lalrinpuia would get one third of the sale proceeds. 16. Both the attesting witnesses to the ‘will’ have been examined in the trial court and have thus fulfilled the requirements under section 66 and 67 of the Indian Evidence Act. Further the authenticity of the signature of the deceased Mr. Lalzawnchhuaha in the ‘will’ executed on 24.05.2017 was not rebutted or challenged during the cross examination of the attesting witnesses in the trial court. 17. The Apex Court in Madhukar D. Shende vs. Tarabai Aba Shedage (supra) held that : “It is well-settled that one who propounds a ‘will’ must establish the competence of the testator to make the ‘will’ at the time when it was executed. 17. The Apex Court in Madhukar D. Shende vs. Tarabai Aba Shedage (supra) held that : “It is well-settled that one who propounds a ‘will’ must establish the competence of the testator to make the ‘will’ at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the ‘will’ in the manner contemplated by law. The contestant opposing the ‘will’ may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the ‘will’ and in sound disposing capacity executed the same. The factors, such as the ‘will’ being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a ‘will’, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a ‘will’ as against the person disputing the ‘will’ and the pleadings of the parties would be relevant and of significance.” 18. In view of the above discussions and in view of the decision of the Apex Court, I find no reason to interfere with the Judgment & Order dt.14.11.2019 passed by the Sr. Civil Judge Champhai, in Probate Case No.2 of 2018 wherein the ‘will’ dated 24.05.2017 executed by Mr. Lalzawnchhuaha(late) was probated by the Learned Civil Judge. 19. The RFA No.2 of 2020 is accordingly dismissed and stands disposed of.