Patna High Court
Prabhunath Singh & Anr vs Sukhdeo Rai on 21 June, 2010
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No.102 OF 1980
Against the Judgment and decree dated 08.11.1979 passed by
Shri V. N. Mehrotra, learned Second Addl. District Judge,
Chapra in Probate Case No. 12 of 1969 / 8 of 1974.
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PRABHUNATH SINGH & ANR
-----------------------Defendant-Appellants
Versus
SUKHDEO RAI
--------------------Plaintiff-Respondent
For Appellant - Sri P. K. Shahi, Sr. Advocate.
Sri Purnandu Singh, Advocate
Sri Prananti Singh, Advocate
For Respondent - M/s Ramsuresh Roy, Sr. Advocate
Sri Kamla Pd. Roy, Advocate.
PRESENT
HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
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Mungeshwar 1) This First Appeal has been filed by the defendants-
Sahoo, J.
appellants against the Judgment and decree dated
08.11.1979passed by Sri V. N. Mehrotra, the learned Second Addl. District Judge, Chapra in Probate Case No. 12 of 1969 / 8 of 1974 decreeing the plaintiff suit. The plaintiff-respondent, Sukhdev Roy field the application for the grant of probate or letters of administration with respect to the registered will dated 12.09.1941 executed by Ram Subhag Roy which was registered as probate case as aforesaid.
2) According to the plaintiff-respondent, Ram Subhag Roy 2 executed the registered will dated 12.09.1941 which was duly attested and registered. Ram Subhag Roy was illiterate and hardly he could write anything without dictation. On the ground of old age his hands were trembling so he only put his left thumb impression on the will and on his instruction, Rajgrih Singh signed for him on the will. In the registered will, it was stipulated that during the life time of his wife, Gulabo Kuwar, she will remain in possession of the entire property and on her death, it would devolve on the petitioner, Sukhdeo Roy. The said Ram Subhag Roy died on 12.09.1941 and his widow Gulabo Kuwar died 8 years prior to the filing of this probate case. The appellant-plaintiff used to maintain Gulabo Kuwar and after death, he came in possession of his entire property. He performed Shradh of Ram Subhag Roy and her widow Gulabo Kuwar.
3) The appellants objected the application. Their main defence is that Ram Subhag Roy never executed any will in favour of Sukhdeo Roy nor the will is duly attested. The alleged will is forged and fabricated. On the death of Ram Subhag Roy, the father of the appellants, namely, Nagina Roy and father of respondent, namely, Ram Jatan Roy forcibly took possession of the lands of Ram Subhag Roy, his widow was getting maintenance from them. Ram Subhag Roy was the illiterate person and was not capable of understanding the worldly affairs. Ram Subhag Roy had a paralytic attack in 3 the year 1939 and was confined to bed. He lost his mental balance and was unable to talk. The respondent manufactured the will during the aforesaid period and never disclose about the will for last more than 30 years. The said will was never scribed by Sri Damodar Prasad. All other allegations regarding registration and attestation were also denied. It is further alleged that Gulabo Kuwar never came in possession. Ram Subhag Roy was living with Nagina Roy who was the father of the appellants and, therefore, there was no question to depriving him from the legal inheritance. Shradh were performed by the father of the appellant. It was further pleaded that Ram Subhag Roy was able to sign his name and he could also right something but because the will is false one, the respondent could not secure his signature on the will.
4) On the basis of these pleadings of the parties, the learned Court below framed 4 issues and after discussing the evidence, the leaned Court below found that the will is the last testament of Ram Subhag Roy and it is genuine and valid and, therefore, the application for probate was allowed.
5) The learned senior counsel, Sri P.K., Shahi appearing on behalf of the appellant submitted that the will is said to have been executed and registered on 12.09.1941 but the probate case has been filed in 1969 and, therefore, the application for grant of probate or letter of administration is time barred. 4 Mr. Shahi submitted that the right to sue arose on the date of death of Gulabo Kuwar who according to the respondent died in the year 1961-62 but the probate case has been filed in the year 1969. According to Article 137 of the Limitation Act, the application should have been field within 3 years but it was not done so. According to Mr. Shahi when there is no specific provision made in the Limitation Act regarding filing of probate application, the residuary article 137 of Limitation Act will apply. In support of his contention, Mr. Shahi relied upon decisions reported in 2009 (3) P.L.J.R. 80 (S.C.) and 2008 (8) (S.C. Cases) 463.
6) Mr. Shahi next contended that the will was not proved according to Section 63 read with Section 68 of the Indian Evidence Act and, therefore, the application filed by the respondent would not have been allowed by the Court below. He referred the evidence of A.W.3, Sukhan Mahto and submitted that his evidence is not according to the law as laid down by the Hon'ble Supreme Court reported in 2008 (15) (S.C. Cases) 365. The learned counsel further submitted that the respondents has failed to explain long delay and, therefore, there was suspicion but in spite of the fact that there was no explanation, the learned Court below has allowed the probate case. On these grounds, the learned counsel submitted that the impugned Judgment and Order are liable to be set aside.
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7) On the other hand, the learned senior counsel appearing on behalf of the respondent Mr. Ram Suresh Roy submitted that right to sue in this case arose when the appellants filed partition suit regarding the suit property and, therefore, within 3 years, the probate case was filed. Mr. Roy submitted that the partition suit was field by the appellants in 1968 then cause of action arose. According to Mr. Roy in the present case on the death of Gulabo Kuwar in 1961-62, there was no challenge to the title of the respondent and, therefore, there was no occasion to file probate case. Mr. Roy further submitted that according to Section 68 read with Section 63 of the Evidence Act, one of the attesting witness has been examined to prove the will because the other attesting witness is dead and the delay beyond 3 years has been satisfactorily explained and, therefore, the learned Court below has rightly allowed the application. On these grounds, the learned senior counsel submitted that the First Appeal has got no merit and is liable to be dismissed.
8) In view of the above rival contentions of the parties, the following points arises for consideration :
(i) Whether the registered will dated 12.09.1941 (Exhibit '2') is genuine, duly executed and attested and has been proved according to law and whether the finding of the learned Court below on these points are 6 sustainable in the eye of law ?
(ii) Whether article 137 of the Limitation Act is applicable in this case and whether the probate case is barred under the said article of the Limitation Act ?
FINDINDS
9) Reg. (i) According to the respondent, Ram Subhag Roy was illiterate and could hardly write only on dictation and because of old age his hands were trembling and so he put his left thumb impression only. On the other hand, according to the appellant's case, Ram Subhag Roy had a paralytic attack since 1939 as a result of which he was confined to bed and was unable to talk. To prove their respective cases, the parties have adduced evidence.
10) P.W.1, Rajgrih Singh has stated that Ram Subhag Roy had no paralytic attack. He was well and was capable of understanding the worldly affairs. Ram Subhag Roy was going to different places and also to Kolkata. Ram Subhag Roy in his presence had got the will executed. The scribe wrote the will at his instance and he explained to him and after understanding the contents thereof, Ram Subhag Roy put his left thumb impression and at his instance, this witness signed for Ram Subhag Roy. He has proved his signature as Exhibit '1'. From perusal of paragraph 19 and 20 of his cross examination, it appears that this witness has 7 repeated the same thing. The appellants have failed to point out any such part of his evidence so as to discredit him.
11) P.W.2, Ujjain Singh is co-villager of Ram Subhag Roy. He has also stated that Ram Subhag Roy was of sound mind and had no paralytic attack.
12) P.W.3, Sukhan Mahto is the attesting witness of the will. He has also stated the soundness of mind of Ram Subhag Roy. He has also stated that Ram Subhag Roy was never attacked by paralysis and he also denied that Ram Subhag Roy was confined to bed and unable to talk. According to the evidence of this witness, paragraph 4 and 5, he had fully proved the duly execution and attestation of the will. According to him, Damodar Lal had scribed the will at the instance of Ram Subhag Roy, Damodar Lal read and explain to Ram Subhag Roy and after understanding the contents thereof, Ram Subhag Roy put his left thumb impression. At his instance, Rajgrih Singh singed. This witness has signed as witness to the will at the instance of Ram Subhag Roy in presence of Ram Subhag Roy and Ram Subhag Roy also put his left thumb impression in presence of this witness and other witnesses and Rajgrih Singh also singed in their presence. He has proved the will as Exhibit '2' without objection. In the cross-examination at paragraph 15, he said that Ram Subhag Roy was intelligent because he had never quarrel with anyone and he was attending Panchayati. From 8 perusal at paragraph 20 of his cross-examination, it appears that he has fully stood the test of cross-examination.
13) P.W. 4 is the respondent, Sukhdeo Singh. He has fully supported his case as made out in the application. At paragraph 7, he has stated that the scribe, Damodar Lal has died and likewise the attesting witnesses, Shivnath Singh and Sakaldev Singh has also died. At paragraph 10, he has stated that on the death of Ram Subhag Roy, his widow Gulabo Kuwar came in possession of his lands and after her death, this witness came in possession.
14) P.W.5 is Finger Print Expert. He has compared the disputed left thumb impression of Ram Subhag Roy on the will with the admitted left thumb impression of Ram Subhag Roy on Jarpeshyi (Exhibit '3') and has given his opinion that the thumb impression appearing on Exhibit '2' and Jarpeshyi deed are of one person. P.W. 6 is father of P.W.5. He has stated that because of old age, Ram Subhag Roy could not sign and he put his left thumb impression.
15) From the discussion of the oral evidence adduced by the respondent, it appears that the evidence are consistent. The attesting witness P.W.3 has fully proved Exhibit '2'. The co-villagers have proved that Ram Subhag Roy was never attacked by paralysis. Now let us consider the evidence adduced on behalf of the appellants.
16) D.W.1, Trigana Singh has stated that Ram Subhag Roy was 9 foolish person and was not understanding his affairs of benefit. He was attacked with paralysis prior to 28 to 30 years of his death and because of paralytic attack, he was not going outside. In the cross-examination at paragraph 11, he has stated that Ram Subhag Roy was being treated by Nagina, father of the appellants and Ram Jatan and Gulabo. It may be mentioned here that Ram Jatan is the father of the respondent. At paragraph 13 of his cross-examination, he has stated that Ram Subhag Roy was his uncle and whenever he was touching his feet, Ram Subhag Roy was blessing him and there was conversation regarding Sukh-dukh. Ram Subhag Roy was blessing him also. This clearly indicates about the soundness of mind of Ram Subhag Roy.
17) D.W.2 although has stated that Ram Subhag Roy was suffering from paralysis but at the same time in his cross- examination at paragraph 6, he has stated that he cannot say whether Ram Subhag Roy was being treated by any Doctor or Baidh. This witness claimed himself to be co-villager. According to the appellant's case, after death of Ram Subhag Roy, Ram Nagina and Ram Jatan forcibly took possession of the land of Ram Subhag Roy and this is the evidence of D.W.1 at paragraph 9 but this witness D.W.1 at paragraph 8 has stated that after death of Ram Subhag, his widow came in possession of the entire property. This is the case of the respondent.
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18) D.W.3, Abdul Sakur has stated that Ram Subhag Roy had come for scribing the will and will was scribed. Therefore, according to this witness, he has supported the case of the respondent. However, it appears that he in the next line stated that at the instance of some other person, the will was executed. Ram Subhag Roy was ill and he was sitting in the vehicle. It may be mentioned here that this is not the case of either party. It is the specific case of the appellant that Ram Subhag Roy was confined to bed and was unable to move and that the will is forged and fabricated but the evidence of this witness is otherwise. In the cross-examination at paragraph 6, this witness has stated that Ram Subhag Roy was coming to Munsi Damodar Sahay and at paragraph 10; he has stated that after scribing, Damodar Sahay went to Ram Subhag Roy. Therefore, he has fully supported the case of the respondent.
19) D.W.4 is one of the appellant, Arjun Roy. He has supported the case as made out by him in the defence. He also stated about attack of paralysis but he has stated that his father Nagina and the appellants were looking after Ram Subhag Roy. He has denied the possession of Gulabo Kuwar after death of Ram Subhag Roy. He had also denied that any will was scribed by Damodar. At paragraph 19 of his cross examination, he has clearly admitted that Ram Subhag Roy was never treated by any Doctor or Baidh.
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20) Therefore, the evidence of the appellants are contradicting to each other. One of the witnesses said that Ram Subhag Roy was being treated by the father of the appellant and also father of respondent whereas the appellant in his evidence has stated that Ram Subhag Roy was never treated by any Doctor or Baidh. It is not believable that a person remained ill for more than 10 years as alleged by the appellant but then he was not treated by any Doctor. The appellant have not field a cheat of paper to prove the fact that they got him treated by anyone. D.W. 3 has admitted the case of the respondent that Ram Subhag Roy had gone to the scribe and will was scribed by Damodar Sahay. This is the case of the respondent. Therefore, the witness of the appellants have admitted the case of the respondent. The Finger Print Expert has proved the fact that the left thumb impression appearing on the will Exhibit 2 is of Ram Subhag Roy. The attesting witness has proved the execution and attestation of the will according to the law. The evidence of the appellant regarding paralysis attack is without any support of medical evidence. The witnesses as discussed above only stated that Ram Subhag Roy has paralysis attack and was confined to bed. Except this statement, no cheat of paper has been filed. On the contrary as discussed above, the witnesses of the appellants themselves have clearly admitted about the soundness of mind of Ram Subhag Roy and have also 12 admitted that Ram Subhag Roy has gone to scribe Damodar Sahay and will was executed.
21) The learned senior counsel, Mr. P.K. Shahi on behalf of the appellant relied upon a decision reported in 2008 (15) (Supreme Court Cases) 365, Lalita Ben Jayanti Lal Popat Vs. Pragna Ben, Jamna Lal Kataria and submitted that it was for the respondent to prove that both the attesting witnesses had either attested the will in the presence of each other and that the testator has acknowledged his signature in the presence of the other attesting witnesses. According to Mr. Shahi in the present case, no such evidence has been adduced. And, therefore, the will is not legally proved.
22) From perusal of the decision of the Hon'ble Supreme Court, reported in 2008 (15) S.C.C. 365, it appears that in that case, the Hon'ble Supreme Court found that the legal requirements was not complied with and also the Hon'ble Supreme Court found that large number of suspicion circumstances surrounding the execution were not explained. In the present case at our hand, I have already discussed the evidence of P.W.3 who has clearly stated that both the attesting witnesses have signed the will in presence of Ram Subhag Roy and Ram Subhag Roy put his left thumb impression in presence of the attesting witnesses and P.W.1 has signed at his instance on behalf of him and, therefore, in my opinion the legal requirement has been 13 complied with in this case. No doubt, the appellants, have tried their best to raise suspicion about the execution of will by alleging facts such as attack of paralysis, confined to bed and foolishness and unable to talk but as discussed above, the evidence in support of these facts adduced by the appellants are not reliable.
23) In view of my above discussion, I find that the will (Exhibit '2') is valid, genuine and duly executed and attested and registered will. The finding of the learned Court below on these points are therefore confirmed.
24) Point No. (ii) According to the learned counsel, Mr. Shahi, the probate case was time barred. According to him, Article 137 of the Limitation Act is applicable and the probate case has been filed more than 3 years after the death of Gulabo Kuwar. The learned senior counsel relied upon the decision reported in 2009 (3) P.L.J.R. 80 (S.C.) Krishna Kumar Sharma Vs. Rajesh Kumar Sharma. The Hon'ble Supreme Court in the aforesaid decision have held that Article 137 is clearly applicable to the petition for grant of letters of administration. In such proceedings, the application merely seeks recognition from the Court to perform a duty because of the nature of the proceedings. It is a continuing right and that duty is only morale and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. It further appears that 14 the matter was remanded by the Hon'ble Supreme Court to decide the case afresh according to the decision reported in 2008 (8) (S.C. Cases) 463, Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur. In the aforesaid decision, the word "Right to Apply" has been explained. At paragraph 15, the Hon'ble Supreme Court has held as follows :
"15. Similarly reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani. Para 16 reads as follows : (AIR p.270) "Rejecting Mr. Dalpatrai's contention, I summaries my conclusions thus -
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death;
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and 15
(g) once execution and attestation are proved, suspicion of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law."
25) It appears that in that case, the testator, Mahendra Singh Khandpur had expired on 05.10.1995 and the petition for grant of letters of administration was filed on 07.08.2002. The learned Addl. District Judge held that the petition was not time barred. The said order was challenged before the High Court on the ground that Article 137 is applicable and, therefore, the application was time bared. The High Court upheld the decision of Addl. District Judge. At paragraph 16, the Hon'ble Supreme Court has held that the Right To Apply actually arose on 09.08.1999 and the application was filed within 3 years as such the same was within time and dismissed the Appeal. Therefore, the crucial question to be decided is when the Right to Apply accrue in the present case at our hand. The case of the respondent is that after death of Gulabo Kuwar, he came in possession. Therefore, there was no compelling circumstances or there was no necessity for filing the probate case. The necessity arose only when the appellants filed partition suit including the lands mentioned in the will, i.e., lands of Ram Subhag Roy. It may be mentioned here that Ram Subhag Roy had no issue. He died leaving behind his widow Gulabo Kuwar. The respondent was living with them. In my opinion, 16 therefore, the Right to Apply actually arose when the suit for partition was filed by the appellants including the lands of Ram Subhag Roy in the year 1968 and, therefore, the application is not barred by law of limitation. As has been held by the Hon'ble Supreme Court, it is a continuous right which can be exercised at any time after the death of the deceased as long as the Right to do so survives. The Right to Apply would accrue when it became necessary to apply which may not necessarily be within 3 years from the date of the death of testator. The delay is required to be explained but it cannot be equated with the absolute bar of limitation and once execution and attestation are proved, suspicion of delay no longer operates.
26) In view of the above settled principal of law and in view of my above finding regarding point No. (i), no suspicion arose in the present case and the Right to Apply accrue only on the institution of partition suit and, therefore, in my opinion, the application for the grant of probate or letters of administration is not barred. Therefore, I find no merit in the submission of the learned senior counsel appearing for the appellant. Although Article 137 of the Limitation Act is applicable but since the Right to Apply accrue in 1968 on the filing of partition suit, the probate case is not time barred. Accordingly, point no. (ii) is answered against the appellant and in favour of the respondent.
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27) In view of the above discussion and findings, I find no merit in this First Appeal and accordingly this First Appeal is dismissed. In the facts and circumstances of this case, there shall be no order as to cost.
(Mungeshwar Sahoo, J.) Patna High Court, Patna Dated 25th May, 2010 AFR/ Sanjeev