Gauhati High Court
Smt. Khumukcham Ningol Chandam Ongbi ... vs Khumumchan Bishwasakha Singh And Anr. on 21 January, 1999
Equivalent citations: AIR2000GAU69, AIR 2000 GAUHATI 69, (2000) 3 GAU LR 402, (2001) 2 HINDULR 119, (2000) 2 MARRILJ 55
Author: H.K.K. Singh
Bench: H.K.K. Singh
ORDER H.K.K. Singh, J.
1. This First Appeal is against the judgment and order dated 30-9-83 of the learned Additional District Judge, Manipur passed in Original Suit No. 2/82/3/82 by which the application of the respondent herein for grant of probate of the will dated 14-9-87 was allowed.
2. The respondent as plaintiff filed an application for grant of probate of the Will dated 14-9-1978 executed by his father Khumukcham Brajamohon Singh. by which the whole portion of the home-stead under Palta No. 90/232 I.W. T. except a portion measuring 20 ft. breadth from north to south and running over the Ingkhol from east to south) on the northern portion of the aforesaid patta land in his favour. The said land bequeathed to the plaintiff is at Sched- ule "A" of the plaint and by the same Will the portion at the northern side as stated above and described at Schedule 8 of the plaint was bequeathed in favour of one of the daughters of the testator who died on 15-1-1980 surviving by his 4 daughters and his widow Smt. Moirangthem Ningol Khumukcham Orighi Bhamabati Devi. The said 4 daughters are the appellants here. The widow did not contest the suit. The 4 daughters contested the suit by (sic) that deceased Brajamohon Singh was the father of the plaintiff, that he executed any Will in respect of the concerned home-stead on 14-9-78 or on any other date. It was also pleaded that Brajam hon Singh was lying ill for about 3 years just before his death and during his illness he was suffering from senility and. was Incapable of protecting his interest and had no full sense. So he was, therefore,! incapable of making any Will by his discretion. Again it was also plead that if said Brajamohon Singh put his signature on the Will, the plaintiff and his real father taking advantage of their fiduciary relationship with the deceased Brajamohon Singh. obtained the signature of Brajamohon Singh by undue influence.
3. The learned Addl. District Judge framed the following issues :--
1. Whether late Khumukcham Brajamohon Singh executed the Will dated 14-9-78. If so, whether the plaintiff was appointed as executor of the Will?
2. Whether the aforesaid testatorwas not in sound disposing mind at the time of execution of the Will. If so, what is its effect?
3. Whether the said testator executed the Will under undue influence? if so, what is Its effect.
4. What is the value of the Will schedule property at the time of filing the instant petition?
5. Reliefs?
6. Whether the petition is barred by Section 56 of Estate Duty Act read with Rule 22 of the Rules framed under this Act.
4. After hearing, the learned Additional District Judge held that the Will was genuine and the petitioner was the named executor and accordingly, passed an order for grant of probate of the Will.
5. Mr. Kh. Chonjohn, the learned counsel for the appellants had criticised the findings as recorded by the learned Trial Court on various grounds that the Will was not properly attested nor execution thereof was proved and that the propounder of the Will-failed to discharge his onus to dispel the suspicious circumstances appearing in the case. In course of hearing, learned counsel has taken me to the judgment of the learned Trial Court and also to the pleadings and the evidence recorded in the Trial-Court.
6. Section 63 of the Indian Succession Act (hereinafter the "Act") prescribes special provision for the manner of execution and attestation of the unprivileged Will.
The Section is re-produced below :--
"Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules :--
(a) The testaior 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 that 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 of 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."
7. Regarding the proving of the due and legal execution oi the Will, the normal law as contained in the law of Evidence will apply. In the present case, the factum of execution and attestation of the Will, Ext. 1 is sought to be proved by the oral evidence of the scribe PW-7 and attesting witnesses PW-2 and PW-5. Shri K. Joykumar Singh the scribe is an Advocate. He lives in the same locality of the testator. The two attesting witnesses are also related to one another. According to PW-7, as per the instruction given by the testator, he drew up the Will, Ext.-1 in respect of the hom-stead situated at Thangmeiband Khoyathong Polem Leikai in favour of the plaintiff, and the testator's daughter, Bimola Devi. The witness (PW-7) testified that the testator was weak due to old age but he was mentally sound. The two attesting witnesses namely; R. K. Sanahal Singh, PW-2 and Konsam Gambhir Singh, PW-5 who live in the same locality of the testator deposed that the plaintiff was adopted by the testator as his son. On the day of execution of the Will, R. K. Sanahal Singh, PW-2 who is a near relation of the testator went to the house of the testator as sent by him. At the house of the testator, he found Konsam Gambhir Singh, PW-5 and K. Joykumar Singh, PW-7. The witness, (PW-2) testified that the testator produced the Will and he put his signature on the Will in his presence and other attesting witnesses and the scribe. The testator himself read the contents of the Will. The other attesting witnesses Konsam Gambhir Singh, PW-5 also identified his signature appearing in the Will, the witness is aged about 87 years at time of making his statement before the Court and he stated before the Court that he cannot remember everything in detail though he remembers the testator, Kh, Brajamohon Singh who is also distantly related with him. He also identified the signature of the testator, Kh. Brajamohon Singh as appearing in the Will. As against the above evidence of the plaintiff, the contesting defendants also produced two witnesses namely : 1) S. Deben Singh, DW-2 and G. Gopaljl Sharma, DW-3. The DW-2 was working as Supervisor Kanungo in the Revenue Department and he worked under the testator Kh. Brajamohon Singh. The testator was by then, Tahslldar of Bishenpur District. The witness worked with the testator for about 6/7 years. According to this witness, the signatures appearing in the Will, Expt-1 are not the signatures of Kh. Brajamohon Singh, the testator, Likewise, DW-3 also stated that he also worked in the Revenue Department under Shri Kh. Brajamohon Singh, SDC for about 7 months and according to him, the signatures appearing in the Will are not the signatures of the said Shri Brajamohon Singh. After appreciating the evidence produced by the parties and believing the witness on behalf of the pltfs and disbelieving the witness on behalf of the Applts, the learned Trial Court came to the findings that the Will was duly executed.
8. Section 59 of the Art prescribed that a person having sound mind may dispose of his property by a Will. Thus, the testator must have a sound disposing mind, which implies soundness of mind and memory, understanding and imbecility arising from the advanced age or due to illness also may incapacitate his testamentory capacity. In the present case, the testator was serving in the Revenue Department as S.D.C. and in later part of his life, due to old age he was more or less confined to his house. The plaintiff has produced two Doctors namely; Shri Kh. Nimai Singh, DW-4 and Shri N. Pratapchandra Singh. PW-6. The Doctors submitted regarding the mental capacity of the testator. The Will was executed on 14-9-78 and the testator died on 15-1-80. These two witnesses (doctors) have stated that they visited and gave treatment to the testator and also prescribed medicine from time to time. These Doctors gave opinion that the testator was in mentally sound condition and he could talk properly though he was becoming weak due to old age. DW-4 examined the testator till about one month before his death. According to DW-1, the daughter of the testator, the testator was bed ridden for about 1 and 1/2 years before his death and during that time he could not talk intelligibly and could not recognise even his daughter also. This witness (DW-1) also stated that about 2/3 months before his death, the testator stated that the hom-stead would be mutually distributed among his daughters after his death. Thus, the learned Addl. District Judge found that this statement is totally against the version of the defendant that their father was not of mentally sound and good health and understanding during the one and half of years before his death and believing the testimony of the plaintiff supported by the statement of the Doctors and disbelieving the testimony of the defendant held that the testator was in a disposing state of mind at the time of execution of the Will.
9. If the Will was prepared under suspicious circumstances, it is for the propounder of the Will to remove the suspicion as held by the Privy Council in the case of Sarat Kumari Bibi v. Sakhichand reported in AIR 1929 PC 29. This decision of the Privy Council has been followed and reiterated subsequently by the Supreme Court in AIR 1965 SC 354, AIR 1962 SC 567, (1992) 2 SCC 507 and in its recent decision in the case of Gurdial Kaur v. Kartar Kaur reported in (1998) 4 SCC 384 : (AIR 1998 SC 2861), the Apex Court held at para No. 3 of the judgment :--
'The law is well settled that if there is a suspicious circumstance about the execution of the Will, it is the duty of the person seeking declaration about the validity of the Will to dispel such suspicious circumstances." Further at para 4 of the judgment it has also been held :--
'The law is well settled 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 executant who had voluntarily executed the same after knowing and understanding the contents of the will".
10, Shri Kh. Chonjohn Singh, learned counsel for the appellants has submitted that the following suspicious circumstances appeared in the case.
1) The plaintiff professed himself as the son of the testator though he is the son of Khumukcham Iboyaima Singh, PW-2:
2) Two signatures of the testator were scored out, for which no satisfactory explanation was given, and
3) The entire property was given to the plaintiff or out of which a small portion was given to one of the daughters thereby leaving no share for the 3 (three) other daughters.
11. It is true that throughout the proceedings, the plaintiff described and represented himself to be the son of the testator. But it was admitted that the plaintiff was not the real son of the testator, but he was the son of the younger brother of the teetator and it has been stated by all the witnesses who are related to the parties that the plaintiff started living with the testator from the days of his childhood. When he was very young, he was treated as the son of the testator, PW-2 who is a close relation of the testator has stated that the plaintiff was adopted by the testator as his son as the testator did not have any son. From the early days, the plaintiff was treated as the son of the testator and considering these circumstances, the learned Trial Court held that this did not amount to a suspicious circumstance in the case. The conclusion arrived at by the learned Trial Court cannot be interfered with.
12. Regarding the scoring out of the two signatures of the testator as appearing in the Will, the explanation given by the scribe is that the testator put the two signatures while he was in lying position and thus scored out the same as it did not look nice. This cancellation is also attested by the attesting witnesses subscribing their signatures. Thus, the explanation given in this regard was accepted by the learned Trial Court. I also do not find any infirmity in the said finding of the learned Trial Court. The concerned Will at Ext.-L is in respect of his home-stead under Patta No. 90/232 I.W.T. measuring .25 acres under Dag No. 262 situated at Thangmeiband Khoyathong Polem Leikai, Imphal described at Schedule "A" appended at the Will itself. Out of the entire home-stead, a portion measuring 20 ft. In breadth in the northern portion of the Ingkhol was given to the 3rd daughter of the testator. Nowhere in the pleading, it has been asserted that all the properties of the testator were given to the plaintiff only. It is not brought to the notice of the Court as to whether the testator had and left any other land or Immovable property besides the aforesaid land. Again, even the entire home-stead, was not given to the plaintiff. A substantial portion of the home-stead was given to one of the daughters of the testator. Thus, this alone cannot be taken as suspicious circumstance, which may invalidate the Will.
13. The testator is a retired Govt. servant. He did not have a son and he treated the plaintiff as his son. Thus, it is quite natural that he wanted to give some of the properties to the plaintiff after his death by making a Will. It has been found and noted above that the testator was in mentally sound and disposing state of mind as proved by the evidence of the witnesses including the Doctors. There has been slight defects in the statement of one of the attesting witnesses i.e. PW-5 due to the fact that he was an old man, 85 years old at the time of giving his statement before the Commissioner as he was examined on Commission issued by the Court. Thus, due to loss of memory, he might have committed some slight defects in his incoherent statement which is quite natural. Regarding the mode of proving of a Will the Supreme Court in the case of H. Venkatachala Iyengar v. B.N.Thimmajamma reported in AIR 1959 SC 443 held that as in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. Though in the same case, the Supreme Court further held that other factors like surrounding circumstances including that existence of suspicious circumstances, if any, should be clearly explained and dispelled by the propounder.
14. In our case at hand, it has been found that the testator had a free disposing state of mind and he executed the deed which was duly attested by the witnesses and that the suspicious circumstances though suggested by the learned counsel for the appellants had been clearly dispelled. Thus, I do not find any ground for holding a contrary view other then the finding arrived at by the learned Trial Court.
15. In the result, there is no merit in this appeal and it is, accordingly, dismissed.
Parties are to bear their own costs through out.