Gauhati High Court
Gulesta Khatun And Anr vs Iqbal Hussain on 14 September, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
Test.Cas. 6/2005
GULESTA KHATUN & ANR. .....Appellants
-Versus-
IQBAL HUSSAIN .....Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. S. Barooah, Mr. Shiladitya.
Advocates for the Respondents : Mr. A. Sattar, Ms. M. Kumari, : Mr. H.K. Baruah.
Date of hearing and order : 14.09.2017.
JUDGMENT AND ORDER (Oral)
Heard Mr. Shiladitya, learned counsel appearing for the appellant as well as Mr. H.K. Baruah, learned counsel appearing for the respondents.
2. This is an appeal under Section 384 of the Succession Act, 1925, against the judgement dated 28.02.2005 passed by the learned Ad-hoc Additional District Judge No. 3, Kamrup (M), Guwahati in Probate T.S. No. 1/1993, by which the application for grant of probate or letter of administration under Section 276 of the Succession Act, 1925, which was converted to a suit was dismissed.
3. The appellants case is that the appellants No. 1 to 3 along with one Md. Zahirul Hussain were the petitioners in Misc.(P) Case No. 293/1991, which was for grant or letter of administration in respect of properties left behind by Late Test.Cas. 6/2005 Page 1 of 7 Samsul Hussain. Samusl Hussain died on 05.06.1979 leaving behind his last Will which was registered with sub-Registrar at Guwahati on 22.06.1964, thereby bequeathing his properties to Musstt. Anowara Khatun, Ms. Gulesta Khatun (appellant No. 1), Ms. Parida Khatun (appellant No. 2), Ms. Dilowera Begum (appellant No. 3), Zahirul Hussain (plaintiff No. 4) now represented by his legal representative, Ms. Milan Begum (appellant No. 4). The probate case was filed on 23.08.1991, wherein mention was made that one Iqbal Hussain (respondent herein) had filed T.S. No. 105/1988 for partition of the suit property. The application was contested by the respondent herein. Therefore, Misc. (P) Case No. 293/1991 was converted to a regular suit and renumbered as Probate T.S. No. 1/1993. The respondent/objector filed his written objection on 14.02.1992, denying that Will in question was the last Will. However, claimed that the Will is forged and fraudulent registered by imposter and was not attested by the witnesses. It was further claimed that the Testator was suffering from mental disorder, developed lunacy and mental derangement since the year 1961 till his death and he had no mental capacity to execute the Will and an application for grant of probate was not maintainable having filed 13 years from the death of Samsul Hussain. It was held that the more than 3 years after filing T.S. No. 105/1988 filed for partition of property left by Late Samsul Hussain, this forged Will was manipulated and prepared as counter application to the suit for partition. It was stated that Will was not properly attested.
4. The learned trial court prepared as many as six issues on 05.01.1994, which is as follow:
(i) Whether late Samsul Hussain executed the Will and if so whether the execution was in accordance with law?
(ii) Whether the testator had mental capacity to execute the Will?
(iii) Whether the Will was fraudulently obtained?
(iv) Whether the Will is the last Will?
Test.Cas. 6/2005 Page 2 of 7
(v) Whether the plaintiff is entitled to get probate?
(vi) Whether any other relief/reliefs the parties are entitled to?
5. In respect of issue No. 2, it was held that the testator had no mental capacity to execute the Will. The issue No. 1 was answered in the negative implying that the testator did not execute the Will and if at all it was executed it would not in accordance with law. The issue No. 3 was answered in the affirmative that the Will was fraudulently made. On issue No. 4, it was held that the Will in issue was not the last Will of the testator and therefore, in respect of issue No. 6, it was held that the plaintiff (appellant herein) was not entitled to any relief and the suit was dismissed on contest.
6. The learned counsels for both sides have advanced their lengthy arguments. However, it is not required to burden this order with the gist of their argument.
7. Upon hearing the learned counsels, the following points of determination arise for consideration in this appeal:
(i) Whether the Will dated 20.06.1964 was the law Will of the Testator?
(ii) Whether the decision of the learned trial court warrants any interference?
8. On the perusal of the trial court's record, it appears that the plaintiff had examined 4 witnesses, namely, Gulesta Khatun (PW.1), Minhazuddin Ahmed (PW.2), Md. Muslim Ali (PW.3) and Pavitra Kr. Das (PW.4). The defendant examined Md. Iqbal Hussain (DW.1) and Md. Faruque (DW.2). DW.1 exhibited the written statement of the appellants herein filed in T.S. No. 105/1988 as Exbt.C. In paragraph 9 thereof, it is admitted by the defendants therein that the Will dated 20.06.1964 was the first Will and later on the testator had executed a Test.Cas. 6/2005 Page 3 of 7 second Will in writing dated 13.03.1977, bequeathing the suit property to Gulesta Khatun (appellant No.1) and Farida Khatun (appellant No.2). The said written statement (Exbt.C) was verified by all the four original plaintiffs on 23.09.1988 including the present appellants No. 1 to 3 as well as the predecessor-in-interest of the appellant No. 4. Therefore, on 22.08.1991 when the application for grant of probate was filed being Misc.(P) Case No. 293/1991, the original plaintiffs had already taken their stand on 23.09.1989 in T.S. No. 105/1988 that the Will dated 20.06.1964 was not the last Will but the first Will. Therefore, as the admitted stand of the appellants was that there is existed a subsequent Will, the application/suit for grant of probate was prima-facie not maintainable as a letter of Administration/Probate can validly be granted only on a last Will.
9. There is another aspect which is a glaring circumstances appearing on record. The respondent herein as DW.1 has produced a death certificate, marked as Exbt.E, it shows that Md. Khoka Ali, had signed as the one of the attesting witness in the Will dated 20.06.1964, which is a death certificate issued by the Guwahati Municipal Corporation, certifying that the said Md. Khoka Ali had died in the month of June, 1973 and his death was registered on 07.06.1973. There is no cross-examination on Exbt.E by the appellants herein before the trial court. Therefore, a person who had already died as far as back on 07.06.1973 could not have verified the petition for grant of probate filed in the year 1991. As per the trial court's record, none of the attesting witnesses of the purported Will had verified the petition for grant of probate and therefore, the application for grant of probate is in contravention to the provisions of Section 281 of the Succession Act, 1925, which mandates that the petition for grant of probate is required to be verified by at least one attesting witness to the Will. The evidence on affidavit filed by PW.1 does not speak about the valid allegation of the Will or the petition for grant of probate. No other plaintiffs stood in the witness box to prove the Will and its due attestation by attesting witnesses.
Test.Cas. 6/2005 Page 4 of 710. In the cross-examination of PW.2, Minhazuddin Ahmed, had stated that he was present when the Will was signed/executed. In his evidence, the PW.2 does not state whether any of the attesting witnesses were present. Therefore, going by the said evidence on record although there were two attesting witnesses to the Will, none of those witnesses could have validly attested the said Will because according to PW.2 only he was present at the time of execution of the Will. He was not an attesting witness. No witness has proved the signature of any of the two attesting witnesses. Therefore, it appears that Section 63(c) of the Succession Act, 1925, has not been complied with. None of the attesting witness of the Will had verified the Probate petition.
11. Another point which goes against the appellants is that the original Will was not produced or proved. Therefore, the signature of the testator and the signatures of the attesting witnesses were also not proved. The plaintiffs wanted to prove the Will by secondary evidence and the said application filed on record was dismissed/rejected by the learned trial court by order dated 06.01.2003. This order has attained finality. Without establishing before the learned trial court that the original Will was lost, a certified copy of Will was sought to be proved. It would be interesting to note that the plaintiff (PW.1) did not prove the Will. As per her evidence on affidavit filed on 17.02.2003, in paragraph 3, it is stated that "two attesting witnesses of the Will died before few years." In paragraph 4 thereof, it is stated that the witness "Md. Minhazuddin Ahmed, know well deceased Samsul Hussain Will prove the Will in question of the above case". The said Minhazuddin Ahmed (PW.2) in paragraph 3 of his evidence on affidavit has stated that although he was not an attesting Will he saw the Testator signing the Will in his presence with sound health and in paragraph 4 thereof, it is stated that Testator was in a fit state of mind at the time of execution of the Will. He does not exhibit the said Will. The PW.3 and PW.4 also did not exhibit the Will. A certified copy of the Will remains on record as an unmarked document. Therefore, as per the records, the alleged loss of Will, the signature of the testator and the signature of the alleged attesting witnesses were never proved.
Test.Cas. 6/2005 Page 5 of 712. As the primary document which is the Will in the present case has not been proved by any of the appellants/plaintiffs or by any other plaintiffs' witnesses, coupled with the fact that by Exbt. A, the respondent could successfully show that the testator had no mental capacity to execute the Will, the burden had shifted on the appellants to prove that the testator was capable of executing of Will within the meaning of Section 59, Explanation 3, of the Succession Act, 1925, which provides that a person who is ordinarily insane may make a Will during an interval in which he is of sound mind.
13. In view of the discussion above, as the Will has not been proved in accordance with law, the secondary evidence having been rejected by order dated 16.01.2003 passed by the learned trial court, coupled with the fact that in the written statement of T.S. No. 105/1988 (Exbt.C) there is an admission by the PW.1 as well as appellants No. 2, 3 and predecessor-in-interest of appellant No. 4 that there is existed another Will dated 13.03.1977, the Will dated 20.06.1964 set up by the propounders is not proved to be the last Will of the testator and moreover, it was proved that the testator did not have the sound mental health for which he was not capable of making Wills as required by Section 59 of the Succession Act, 1925. Therefore, the valid execution of the Will as required under Section 63 of the Succession Act, has not been proved. The signature of the persons signing the alleged Will, as required under Section 67 of the Evidence Act, 1872, has not been proved and the proof of execution of the Will, required law to be attested as per Section 68 of the Evidence Act, 1872 has not been proved.
14. Therefore, in view of the discussion above, it is unhesitatingly held that the Will dated 20.06.1964 was not the law Will and Testament of the Testator. The execution of the said Will remains disproved. The valid and lawful attestation of the said Will remains not-proved. The Probate Petition suffers the defect of lack of verification by any of the attesting witnesses. Moreover, even Test.Cas. 6/2005 Page 6 of 7 the Will was not exhibited. Vide Exbt. C, it is proved that Will dated 20.06.1964 was not the last Will of the Testator. Hence, both the point of determination is answered in the negative and against the appellants.
15. Therefore, this appeal stands dismissed by upholding the judgment and decree dated 28.02.2005 passed by the learned Ad-hoc Additional District Judge No. 3, Kamrup (M), Guwahati in Probate T.S. No. 1/1993.
16. There shall be no order as to cost.
17. Return back the LCR.
JUDGE Mkumar.
Test.Cas. 6/2005 Page 7 of 7