Patna High Court
Rajani Kumar Verma vs Estate Of Bhattu Mahto & Anr on 5 April, 2016
Author: Shivaji Pandey
Bench: Shivaji Pandey
THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.393 of 2010
===========================================================
Rajani Kumar Verma S/o Bhattu Mahto, R/o vill.-Nanand, PS-Silao,Distt. Nalanda.
.... .... Appellant/s
Versus
1. Estate of Bhattu Mahto S/o late Rohan Singh, R/o Vill.- Nanand, PS-Silao,
Distt.-Nalanda through Smt. Chandrakala Sinha, W/o Anjani Kr. Verma.
2. Smt. Chandrakala Sinha, W/o Anjani Kr. Verma, R/o village-Nanand, PS-Silao,
District-Nalanda.
.... .... Respondent/s
===========================================================
Appearance :
For the Appellant/s : Mr. Mr. B.N.P. Singh
: Mr. B.P. Singh
For the Respondent/s : Mr. T.N. Maitin, Sr. Adv.
===========================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV JUDGMENT
Date: 05-04-2016
Heard counsel for the petitioner and the
respondents.
The appellant in the present appeal is challenging the
judgment and order dated 24th April 2010 passed by 1st
Additional District Judge, Nalanda at Biharsharif in Title Suit
No. 1 of 2009 (Probate Case No. 6 of 2006), whereby and
whereunder the court below has granted probate in favour of
the applicant now the respondent of the present appeal.
The short facts of this case is that Bhattu Mahto
who is Testator of the Will, has two sons, namely, Anjani
Kumar Verma @ Anjani and Rajani Kumar Verma (present
appellant) and two daughters, namely, Keshari Devi and Saroj
Devi. Chandrakala Devi wife of Anjani Kumar Verma is a
Patna High Court MA No.393 of 2010
2/47
legatee of the Will. The fact is emerging that Bhattu Mahto
had landed property about 20 acres at Shikarpur as well as
Nanand. At Shikarpur, Bhattu Mahto inherited the property
from his Nanihal whereas in Nanand he had inherited the
property from the ancestral as well as purchased, thereby
acquired the land. At Shikarpur what he had inherited the
property from his Nanihal, out of which certain portion of land
he had disposed of and at last he had 2.09 Acre of land and
rest land, out of 20 acres, are situated at Nanand.
As per the claim of the respondent, Anjani Kumar
Verma and his wife always looked after and rendered service
to Bhattu Mahto who was pleased with her service, had shown
his interest to donate some land to his eldest daughter-in-law,
Chandrakala Devi, so that she may not face trouble in future.
Bhattu Mahto had disclosed this fact before his well-wishers,
who had advised him to execute the Will in place of gift so
that during his life time, he will remain in possession of the
property and after his death, Chandrakala Devi will be the
owner of the property which was appreciated by Bhattu
Mahto.
Considering the attending facts and
circumstances, out of the free will, in full mental and good
Patna High Court MA No.393 of 2010
3/47
physical condition, without any coercion or undue influence,
he instructed the Scribe to prepare the Will. On his instruction,
one Chandra Shekhar Prasad of village Barhari prepared the
Will on 27th July 2005, after understanding the contents to be
true, he put his thumb impression on the deed of Will and got
attested of his two known persons, namely, Shashi Bhushan
Prasad and Kailash Prasad of village Nanand. By execution of
the Will, he had transferred 2 acres 58 decimals of land. Out of
the aforesaid land, 2.09 acre of land was of Shikarpur and 49
decimals of land is of Nanand. The said Will was registered on
30th July 2005 and claimed that till his life time, Bhattu Mahto
would remain in possession of the land and he died suddenly
on 10th October 2005 at village Nanand.
It has been claimed that the Will dated 27th July
2005 is the last Will of Bhattu Mahto which was duly executed
after understanding the contents made in the Will. It has been
claimed by the plaintiff-respondent, he had incurred the
expenses of Rs. 1,25,000/-(one lakh twenty five thousand) in
the shradh of Bhattu Mahto and he estimated that by Will, he
will acquire the property of Rs. 1,00,000/- (one lakh). In the
probate case, Rajani Kumar Verma was made a party.
The Court below had issued the special citation to
Patna High Court MA No.393 of 2010
4/47
the near relative and also issued the general citation in the
newspaper in terms of Indian Succession Act. On appearance,
objection was filed by the objector-appellant that the legatee-
respondent has not impleaded Keshari Devi and Saroj Devi as
party to the probate proceeding, who are daughters of Bhattu
Mahto, as having not made them as party suffers from defect
of party. It has further been said that not only the aforesaid
fact, the applicant has also not impleaded the sons of Rajani
Kumar Verma (present appellant) and in such view of the
matter, the probate suit was required to be rejected outrightly.
Further the claim has been made that Chandrakala Sinha, the
applicant had ever rendered any service to Bhattu Mahto.
The defendant-appellant also challenged the Will
of Bhattu Mahto about his intention to execute the Will on
account of rendering service to him. This desire was never
expressed to any of his relative or well-wishers, nor any
person advised him to execute the Will in place of gift.
It has specifically been stated that Bhattu Mahto
was not a man of sound mind, was not at all pleased with
Chandrakala Sinha (present respondent). The claim of his
desire and decision to execute the testament the Will in favour
of respondent is a mischievous stand taken by the appellant. In
Patna High Court MA No.393 of 2010
5/47
fact, the stand has been taken that the Will in question was
never executed by Bhattu Mahto and the same is forged and
fabricated which had been created under the conspiracy with
her husband, namely, Anjani Kumar Verma and his associates,
namely, Chandrashekhar Prasad, Shashi Bhushan Prasad and
Kailash Prasad with the sole intention to grab the very
valuable property of defendant-appellant. Plea has been taken
that Bhattu Mahto was too old to move out. He was not a man
of sound mind. He suffered from several ailments; he lost his
sense and mental balance as he was bed ridden.
Everything was kept in dark and secret, stealthily
the document in question was created. The so called attesting
witnesses of the Will, are the supporters of Anjani Kumar
Verma as Bhattu Mahto never intended to propound the deed
of Will. He could not consult with son-in-law, this defendant
and his daughter. It has further been averred that he died just
after two months of execution of the Will. He never instructed
any scribe to create the Will. At the relevant time, the
defendant-appellant was Assistant in District Education
Office, Bihar Sharif and he used to attend his duty from his
native village and regularly served his father Bhattu Mahato.
Sometimes, in absence of defendant his elder brother Anjani
Patna High Court MA No.393 of 2010
6/47
Kumar Verma got Bhattu Mahato treated by the Doctor at
Bihar Sharif. He has further averred that Anjani Kumar Verma
in the pretext of treatment of Bhattu Mahato brought him at
Bihar Sharif and managed to bring him at Rajgir, obtained
L.T.I of Bhattu Mahato on the alleged Will taking undue
advantage of his unsound mind and physical incapability,
Bhattu Mahato got the thumb impression. It has been said that
Bhattu Mahato was a literate person and he could not have put
his thumb impression out of free will rather has been obtained
over the Will, creates a serious doubt in view of fact that the
person who used to put his signature, would never put his
thumb impression on any document. Bhattu Mahato had never
appeared before the Registrar nor he had accepted the
execution. As Anjani Kumar Verma was the Karta of the
family, after the death of Bhattu Mahato, Sharadh was done
from the joint family property at native place.
In support of the case, applicant has examined
A.W.1 Chandrakala Sinha, A.W.2 Kailash Prasad (attesting
witness), A.W.3 Jitan Mahato, A.W.4 Ram Chandra Prasad,
A.W.5 is Sahdeo Prasad. In the Will, two persons have been
shown as attesting witnesses, one is Kailash Prasad (A.W.2)
and Shashi Bhushan Prasad, who has not been examined.
Patna High Court MA No.393 of 2010
7/47
Chandra Shekhar Prasad has been shown to be scribe, has not
been examined in the suit.
In support of the case, the defendant-appellant has
examined altogether four witnesses, namely, O.P.W. 1 Sudhir
Kumar, O.P.W.2 Suresh Prasad, O.P.W.3 Rajani Kumar
Verma (appellant), O.P.W.4 Raghunandan Prasad. The
original copy of the Will has been marked as Exhibit-1.
Exhibit-2 is the sale deed executed by Jago Devi in favour of
Bhattu Mahato. Exhibit -3 is the original Khata of Bhattu
Mahato. Exhibit-4 is the death certificate of Bhattu Mahato.
Exhibit-5 is the original sale deed executed by Ram Krishna
Mahato in favour of Bhattu Mahato. Exhibit-6 is the original
sale deed executed by Jamuna Mahato in favour of Bhattu
Mahato. Exhibit-7 is the original sale deed executed in favour
of Bhattu Mahato. Exhibit-8 is the agreement between Megha
Mahato and Bhattu Mahato. Exhibit-9 is the original deed of
gift executed in favour of Megha Mahato, father-in-law of
Bhattu Mahato.
From the side of the opposite party, Exhibit-A has
been brought as prescription of Doctor dated 21.7.2005. It
has been brought to notice of this Court that in the plaint of
this Succession suit, Chandrakala Sinha has not mentioned
Patna High Court MA No.393 of 2010
8/47
about the two daughters of Bhattu Mahto. In the present case,
admittedly, name of two daughters of Bhattu Mahto have not
been made as party.
The counsel for the appellant has submitted that
the order of the court below suffers from illegality on the
ground that Bhattu Mahto was not of sound mind which pre-
requisite provided under Section 59 and 63 of the Succession
Act as on the date of the alleged execution of the Will, Bhattu
Mahto was quite old and on account of his long illness, he was
incapable to understand his profit and loss. He has further
submitted that the prescription of Doctor which appears from
Ext.-A where the Doctor has categorically mentioned that
Bhattu Mahato was behaving abnormally, requires treatment at
Kanke, Ranchi. He further submits that the property at
Shikarpur is very valuable property, with a purpose to usurp
valuable property this document has been created with a sole
intention to deprive the present appellant. He further submits
that if a person is not a sound state of mind and he does not
understand the consequences of his action, in such situation,
the purported execution of Will would not create any
semblance of any right as the requirement of law is that the
person who is executing the Will, must be of a sound state of
Patna High Court MA No.393 of 2010
9/47
mind, so much so that Bhattu Mahato is a literate person, but
he put his thumb impression itself shows the suspicious
circumstances. Further, it has been said that even registration
of the Will does not give immunity to challenge the Will itself.
The contention is that for a proper execution of Will, it must
satisfy conditions laid down in Section 63 of the Succession
Act and 68 of the Evidence Act. He further submits that as
daughters of Bhattu Mahto have not been impleaded as party,
as well as no recital with respect to them has been made, in
their absence, it cannot be said that it was a valid proceeding
as it suffers from none implement of necessary party, in their
absence the will would be probated and the court below has
fallen in error in granting probate in the present case, placed
reliance on Sections 59, 63, 235 of the Succession Act and
Section 68 of the Evidence Act. Also placed reliance on the
judgment reported in AIR 1990 SC 1742 (Ram Piari v.
Bhagwant and others), this case deals with, mere registration
does not create immunity to challenge the factum of the Will.
(1992) 2 SCC 507 (Guro v. Atma Singh, this case has held, it
is duty of propounder to prove execution in terms of the
Evidence Act and it is foremost duty of propunder, he must
dispel the all suspicious circumstances surrounded the Will
Patna High Court MA No.393 of 2010
10/47
and distinguished the judgment. 2010 (1) BBCJ 291 (Harkesh
Thakur-Vs- Smt. Lalita Devi and Anr.).
The counsel for the respondent submits that in
terms of Section 276 of the Succession Act, the application
was filed before the court below. The present appellant was
impleaded as party. He fully participated in the proceeding.
The cause for the execution of the Will is that Chandrakala
Sinha has three daughters and dependent on the earning from
the agricultural whereas the appellant is Government servant,
sufficient means of livelihood of appellant, was the basic
reason for execution of the Will in her favour. There is no
material to show that Bhattu Mahto was not of sound mind.
The prescription of Doctor (Ext.A) which is brought by the
defendant-appellant is of no value when the Doctor was not
examined and so much so that the document is a registered
one, which was placed before the Registrar and after proper
verification, the Will was registered itself dispels all
suspicious circumstances surrounding the Will, so much so
that witnesses who were examined by him, itself explained
that Bhattu Mahato had good physical health and was keeping
a sound state of mind executed the Will without any pressure
and undue influence, he had executed the Will for the reasons
Patna High Court MA No.393 of 2010
11/47
as aforesaid. He has further submitted that admittedly, Bhattu
Mahato had 21 acres of land, out of the same, only small
portion of the land had been executed in her favour and other
properties are subject to the partition in terms of the Hindu
Succession Act.
In reply, counsel for the appellant has submitted
that he has examined the witnesses, who are neighbours of
Bhattu Mahato who have categorically stated that Bhattu
Mahato at the relevant time was not sound state of mind and
he had never shown his desire to execute the Will in favour of
either party whereas the witnesses have been examined by the
plaintiff-respondent, are not the neighbours, which has no
evidentiary value in view of the nearness of the witnesses who
would be able to give proper description of actual state of
affair.
The counsel for the respondent has also
submitted that merely because the daughters have not been
brought on record, does not mean that the Will was not
probated correctly as in terms of Section 263, which requires
just cause meaning thereby not only impleadment of near
relative, but remains more than that. He has further submitted
that merely because a person who is old, does not mean that
Patna High Court MA No.393 of 2010
12/47
his mind was not properly working and he has not of a sound
mind. If a person has reached to old age, generally he would
prefer to put his thumb impression instead of putting his
signature. Placed reliance on the judgments reported in AIR
2005 SC 780, para-15 (Sridevi and others v. Jayaraja Shetty
and others), 2010 (1) BBJC 291 (Harkesh Thakur vs. Smt.
Lalita Devi), AIR 1931 Calcutta 497 (Sadafal Kanu v. Sodari
Hajam), AIR 1933 Bombay 370 (George Anthony v. Millicent
Spencer) and also relied upon the judgment reported in AIR
1995 SC 346 (Girja Datt v. Gangotri Datt) where the Court has
dealt with in what manner, the attestation of the Will is to be
done, even if the testator put his signature or put marks in
place of signature itself sufficient for the execution of the Will.
The attestation has to be proved by one of the attesting
witness. He further submits that in the present case out of two
attesting witnesses, one attesting witness has been examined
itself satisfies the requirement of Sections 63 and 68 of the
Evidence Act.
In Girja Datt v. Gangotri Datt (supra) the
question has been dealt with, with regard to in what
circumstances, the Will will be revoked and the Court has said
merely the near relative has not been made a party can not be
Patna High Court MA No.393 of 2010
13/47
only ground for revocation of the Will. If the fact shows
otherwise even though relative was not a party, the Will
cannot be revoked.
For proper adjudication of this case it is relevant
to examine the effect of Sections 59, 63, 68, 235, 276 and 278
of the Indian Succession Act including Section 68 of the
Evidence Act.
Section 59 of the Indian Succession Act provides
that every person of sound mind not being a minor may
dispose of his property by Will so it is a pre-requisite that a
person, who has testamented the property, must be major and
was sound state of mind. The conditions are laid down for
execution of valid Will, has been mentioned in Section 63
where it provides that every testator not being a soldier shall
execute his Will according to the following rules. It provides
that 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. Second condition is that 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 and third
condition is that the Will must be attested by two or more
Patna High Court MA No.393 of 2010
14/47
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 there is no particular
form of attestation shall be necessary.
Section 235 of the Succession Act is more
important for the purpose of this case which provides, letters
of administration with the Will annexed shall not be granted to
any legatee other than the universal or a residuary legatee,
until a citation has been issued and published in the manner
hereinafter mentioned, calling on the next-of-kin to accept or
refuse letters of administration.
Section 276 provides essential elements will be
comprised in the Probate application where it has been
provided it must contain following the time of the testator's
death should be there. The application should be annexed with
the copy of the Will and testament. The same may be
executed. In the application amount of assets must be
Patna High Court MA No.393 of 2010
15/47
disclosed. Section 278 deals with the letters of administration
which provides the application should contain time and place
of deceased's death, the family or other relatives of the
deceased and their respective residences have to be disclosed,
the right in which the petitioner claims. Section 263 of the
Succession Act provides revocation or annulment for just
cause. The just cause has been mentioned in the explanation of
section, where the proceedings to obtain the grant were
defective in substance or the grant was obtained fraudulently
by making a false suggestion or by concealing from the Court
something material to the case or the grant was obtained by
means of an untrue allegation of fact essential in point of law
to testify grant though such allegation was made in ignorance
or inadvertently and two other grounds not very much relevant
for the purpose of disposal of this case. Section 68 of the
Evidence Act deals with the manner of proving the execution
of the Will which provides 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 the
execution of the Will, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving
evidence.
Patna High Court MA No.393 of 2010
16/47
Before entering into the merit discussion, the
general principle of granting probate has been adumbrated by
the Hon'ble Supreme Court as well as by this Court in
following manner, if the party propounding a Will or
otherwise makes a claim under the Will is, no doubt, seeking
to prove a document and in deciding how is to be proved,
inevitably, it would be refusal to the statutory provisions
which governs the proof of document. Sections 67 and 68 of
the Evidence Act are relevant for this purpose. As per Section
67, if the document is alleged to be signed by any person, the
signature of the said person must be proved to be in his hand
writing and proving such hand writing, as per Sections 45 and
47 of the Evidence Act, opinion of Expert and or person
acquainted with the hand writing of testamentor must be
proved to be his handwriting and proving his handwriting the
opinion of expert and of persons acquainted with the hand
writing of the person concerned are relevant. Section 68 deals
with the proof of execution of the document required by law to
be attested which provides that the document must be attested
by two attesting witnesses and the same cannot be used for
evidence, until one attesting witness at least be called for
proving the execution and the nature of proof must be satisfied
Patna High Court MA No.393 of 2010
17/47
by the party who relies on the documents in a court of law.
Now, the question would be, as to whether, the
will set up by the propunder has been proved to be last will of
testator has to be looked into, further to be examined, has the
testator signed the will ?, whether the document is last will of
testator, did he understand the nature and effect of disposition
in the Will, did he put his signature knowing contents of the
Will. The answers of aforesaid questions would decide
solemnity and genunity of document, claiming to be will.
It is true that the Will has to be proved like any
other document, except as to special requirements of
attestation mentioned in Section 63 of the Succession Act.
The test to be applied would be the usual test of satisfaction of
a prudent mind in such matter.
There is one distinguishing feature for the proof
of Will than the other documents, as the Will unlike other
documents speaks from graveyard of the testator and when the
same is propounded or produced before the court the testator
who has already departed the world cannot say whether it is
his Will or not. This aspect naturally introduces element of
solemnity in the decision for the question as to whether the
document propounded is proved to be the last Will and the
Patna High Court MA No.393 of 2010
18/47
testament of the departed testator. It is sine qua non for the
propounder of the Will to show by satisfactory evidence the
Will was signed by the testator and at that time he was in as
sound and disposing state of mind that he understood the
nature and effect of disposition and put his signature to the
document of his own free will. If the Will is surrounded by
suspicious circumstances as the alleged signature on the Will
by the testator may be, shaky and doubtful indicating the
testator mind may appear to be very feeble and deteriorated, in
that circumstance, the propounder will be called upon to dispel
all the suspicious circumstances and at initial stage onus upon
the testator very heavy and unless it is satisfactorily
discharged the court will be reluctant to accept the document
as the last Will of the testator. But in a case where caveat is
filed alleging undue exercise of undue influence, fraud or
coercion in execution of the Will propounded such plea may
however be proved by the caveator but even without such plea
circumstances may arise a doubt as to whether the testator was
acting on his own free will in executing the Will and in such
circumstances, it will be part of initial onus to remove such
legitimate doubt in the matter. Apart from other suspicious
circumstances, if the propounders themselves have taken
Patna High Court MA No.393 of 2010
19/47
prominent part in execution of the Will which conferred on
them substantial benefit it would be treated as a suspicious
circumstance attending the execution of the Will and the
propounder is required to remove such suspicion by clear and
satisfactory evidence.
It is also the settled principle of law that the
registration of the document provides credentiality in the
execution of the same but merely because it is registered will
not remain immune from the challenge about the genuineness
of the Will. It will be relevant to place reliance upon the
judgments reported in AIR 1959 SC 443 H. Venkatachala
Iyengar v. B.N. Thimmajamma and others (Para-18 to 22) of
the judgment as follows :
"Para-18. What is the true legal position in the matter
of proof of wills? It is well known that the proof of
wills presents a recurring topic for decision in Courts
and there are a large number of judicial
pronouncements on the subject. The party
propounding a will or otherwise making a claim
under a will is no doubt seeking to prove a document
and, in deciding how it is to be proved, we must
inevitably refer to the statutory provisions which
govern the proof of documents. Sections 67 and 68,
Evidence Act are relevant for this purpose. Under S.
67, if a document is alleged to be signed by any
person, the signature of the said person must be
Patna High Court MA No.393 of 2010
20/47
proved to be in his handwriting, and for proving such
a handwriting under Ss. 45 and 47 of the Act the
opinions of experts and of persons acquainted with
the handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the
execution of the document required by law to be
attested; and it provides that such a document shall
not be used as evidence until one attesting witness at
least has been called for the purpose of proving its
execution. These provisions prescribe the
requirements and the nature of proof which must be
satisfied by the party who relies on a document in a
Court of law. Similarly, Ss. 59 and 63 of the Indian
Succession Act are also relevant. Section 59 provides
that every person of sound mind, not being a minor,
may dispose of his property by will and the three
illustrations to this section indicate what is meant by
the expression "a person of sound mind" in the
context. Section 63 requires that the testator shall
sign or affix his mark to the will or it shall be signed
by some other person in his presence and by his
direction and that the signature or mark shall be so
made that it shall appear that it was intended thereby
to give effect to the writing as a will. This section also
requires that the will shall be attested by two or more
witnesses as prescribed. Thus the question as to
whether the will set up by the propounder is proved to
be the last will of the testator has to be decided in the
light of these provisions. Has the testator signed the
will ? Did he understand the nature and effect of the
Patna High Court MA No.393 of 2010
21/47
dispositions in the will ? Did he put his signature to
the will knowing what it contained ? Stated broadly it
is the decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as to
the special requirements of attestation prescribe by S.
63 of the Indian Succession Act. 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.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike
other documents the will speaks from the death of the
testator, and so, when it is propounded or produced
before a Court, the testator who has already departed
the world cannot say whether it is his will or not; and
this aspect naturally introduces an element of
solemnity in the decision of the question as to whether
the document propounded is proved to be the last will
and testament of the departed testator. Even so, in
dealing with the proof of wills the Court will start on
the same enquiry as in the case of the proof of
documents. The propounder would be called upon to
show by satisfactory evidence that the will was signed
by the testator, that the testator at the relevant time
was in a sound and disposing state of mind, that he
understood the nature and effect of the dispositions
Patna High Court MA No.393 of 2010
22/47
and put his signature to the document of his own free
will. Ordinarily when the evidence adduced in support
of the will is disinterested, satisfactory and sufficient
to prove the sound and disposing state of the testator's
mind and his signature as required by law, Courts
would be justified in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof of
the essential facts just indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by suspicions
circumstances. The alleged signature of the testator
may be very shaky and doubtful and evidence in
support of the propounder's case that the signature in
question is the signature of the testator may not
remove the doubt created by the appearance of the
signature; the condition of the testator's mind may
appear to be very feeble and debilitated; and evidence
adduced may not succeed in removing the legitimate
doubt as to the mental capacity of the testator; the
dispositions made in the will may appear to be
unnatural, improbable or unfair in the light of
relevant circumstances; or, the will may otherwise
indicate that the said dispositions may not be the
result of the testator's free will and mind. In such
cases the Court would naturally expect that all
legitimate suspicions should be completely removed
before the document is accepted as the last will of the
testator. The presence of such suspicious
circumstances naturally tends to make the initial onus
Patna High Court MA No.393 of 2010
23/47
very heavy; and, unless it is satisfactorily discharged,
Courts would be reluctant to treat the document as
the last will of the testator. It is true that, if a caveat is
filed alleging the exercise of undue influence, fraud or
coercion in respect of the execution of the will
propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances
may raise a doubt as to whether the testator was
acting of his own free will in executing the will, and in
such circumstances, it would be a part of the initial
onus to remove any such legitimate doubts in the
matter.
21. Apart from the suspicious circumstances to which
we have just referred in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If
it is shown that the propounder has taken a prominent
part in the execution of the will and has received
substantial benefit under it, that itself is generally
treated as a suspicious circumstance attending the
execution of the will and the propounder is required
to remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present
such suspicious circumstances that decisions of
English Courts often mention the test of the
satisfaction of judicial conscience. It may be that the
reference to judicial conscience in this connection is a
heritage from similar observations made by
Patna High Court MA No.393 of 2010
24/47
ecclesiastical Courts in England when they exercised
jurisdiction with reference to wills; but any objection
to the use of the word 'conscience' in this context
would, in our opinion, be purely technical and
academic, if not pedantic. The test merely emphasizes
that, in determining the question as to whether an
instrument produced before the Court is the last will
of the testator, the Court is deciding a solemn
question and it must be fully satisfied that it had been
validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions
of fact which arise in applications for probate or in
actions on wills, no hard and fast or inflexible rules
can be laid down for the appreciation of the evidence.
It may, however, be stated generally that a
propounder of the will has to prove the due and valid
execution of the will and that it there are any
suspicious circumstances surrounding the execution
of the will the propounder must remove the said
suspicions from the mind of the Court by cogent and
satisfactory evidence. It is hardly necessary to add
that the result of the application of these two general
and broad principles would always depend upon the
facts and circumstances of each case and on the
nature and quality of the evidence adduced by the
parties. It is quite true that, as observed by Lord Du
Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (A I R
1946 P C 156) "where a will is charged with
suspicion, the rules enjoin a reasonable scepticism,
Patna High Court MA No.393 of 2010
25/47
not an obdurate persistence in disbelief. They do not
demand from the Judge, even in circumstances of
grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to
the truth," It would sound platitudinous to say so, but
it is nevertheless true that in discovering truth even in
such cases the judicial mind must always be open
though vigilent, cautious and circumspect."
In AIR 1962 SC 567 Rani Purnima Debi v.
Khagendra Narayan the Hon'ble Supreme Court in Para-23
has dealt with the issue of registered Will and has stated that
if the Will has been registered that is a circumstance which
may having regard to the circumstances prove its genuineness
of will. But the mere fact that a will is registered will not by
itself be sufficient to dispel all suspicion regarding the Will
where suspicion exists, without submitting the evidence of
registration to a close examination. If the evidence as to
registration on a close examination reveals that the registration
was made in such a manner that it was brought home to the
testator that the document of which he was admitting
execution was a Will disposing of his property and thereafter
he admitted its execution and signed it in token thereof, the
registration Will dispel the doubt as to the genuineness of the
will. But, when it is shown that it was done in perfunctory
Patna High Court MA No.393 of 2010
26/47
mannery, the registration of Will would not be of much value.
"Para-23: There is no doubt that if a will has been
registered, that is a circumstance which may, having
regard to the circumstances, prove its genuineness.
But the mere fact that a will is registered will not by
itself be sufficient to dispel all suspicion regarding it
where suspicion exists, without submitting the
evidence of registration to a close examination. If the
evidence as to registration on a close examination
reveals that the registration was made in such a
manner that it was brought home to the testator that
the document of which he was admitting execution
was a Will disposing of his property and thereafter
he admitted its execution and signed it in token
thereof, the registration Will dispel the doubt as to
the genuineness of the will. But if the evidence as to
registration shows that it was done in a perfunctory
manner, that the officer registering the will did not
read it over to the testator or did not bring home to
him that he was admitting the execution of a will or
did not satisfy himself in some other way (as, for
example, by seeing the testator reading the Will) that
the testator knew that it was a Will the execution of
which he was admitting, the fact that the Will was
registered would not be of much value. It is not
unknown that registration may take place without the
executant really knowing what he was registering.
Law reports are full of cases in which registered
Wills have not been acted upon : (see, for example,
Vellaswamy Servai v. Sivaraman Servai, ILR 8 Rang
Patna High Court MA No.393 of 2010
27/47
179: (AIR 1930 PC 24), Surendra Nath v. Jnanendra
Nath, AIR 1932 Cal 574 and Girja Datt Singh v.
Gangotri Datt Singh, (S) AIR 1955 SC 346.
Therefore, the mere fact of registration may not by
itself be enough to dispel all suspicion that may
attach to the execution and attestation of a Will;
though the fact that there has been registration
would be an important circumstance in favour of the
will being genuine if the evidence as to registration
establishes that the testator admitted the execution of
the will after knowing that it was a Will the execution
of which he was admitting."
The same principle has been reiterated in Sridevi
v. Jayaraja Shethi reported in AIR 2005 SC 780. In the present
case, first it has to be decided whether Bhattu Mahto at the
time of execution of will was in a sound disposing state of
mind, in view of the fact that the appellant has taken a plea
that preceding one year of the death of Bhattu Mahto dated
10th October 2005 he was not in sound state of mind on
account of his mental imbalance due to advance age whereas
respondent has refuted the claim that Bhattu Mahto was not in
sound state of mind having understood the contents had
executed the Will and also appeared before the Registrar,
there the Will was registered.
For deciding this issue it has to be understood
Patna High Court MA No.393 of 2010
28/47
that Bhattu Mahto at the time of death was aged in between 90
(is mentioned in the recital of Will) and admittedly he was
under treatment of doctor, as is apparently clear, first from the
written statement raised by the appellant as has been stated in
Para-11(b) that Bhattu Mahto had completely lost his sense, he
was bed-ridden, he was not possessing sound state of mind and
health. Chandra Kala Sinha (A.W.1) in his deposition at Para-
20 has stated that the husband of Chandrakala Sinha used to
take Bhattu Mahto to the doctor for treatment but did not
produce any material to show that she or her husband used to
take her father in-law to the doctor for treatment. In Para-21 of
his deposition she has denied that her father-in-law was not of
sound mind.
Kailash Prasad, the attesting witness of the same
village was examined as A.W.2. He has only stated about the
execution of the Will, stated that Bhattu Mahto after going
through the Will and after proper understanding put his
signature and both the attesting witnesses had put their
signature in his presence but he has not said a word about the
mental condition and illness of Bhattu Mahto. Jitan Mahto
resident of Shikarpur was examined as P.W.3, has not said
about the mental condition of Bhattu Mahto and he is of
Patna High Court MA No.393 of 2010
29/47
another village, only stated about Bhattu Mahto had acquired
the land of Shikarpur and the cultivation was being conducted
of Shikarpur independently and separately. Ram Chandra
Prasad, P.W.4 of same village has not stated about mental
condition of Bhattu Mahto. Sahdeo Prasad, P.W.5 of the same
village has said about acquiring land by Bhattu Mahto
From the side of appellant, Sudhir Kumar of
same village claiming to be close agnate and a neighbour has
been examined as D.W.1, has stated that Bhattu Mahto had
died at the age of 90 years, he was suffering from illness, was
weak and one year before death, he lost mental balance. In the
cross-examination, he has stated that he had attnded the doctor
in connection with treatment of Bhattu Mahto but there is no
cross-examination about the mental condition of Bhattu
Mahto. Suresh Prasad, D.W.2 is also a neighbor as well as
agnate and stated that he used to visit the house of Bhattu
Mahto, has stated that he died at the age of 90 years, was ill for
7 - 8 years and lost his mental balance one year prior to his
death. The appellant who has examined himself as D.W.3 has
stated that Bhattu Mahto had left behind two sons and two
daughters, the Will is a manipulated document, Bhattu Mahto
had never shown his desire to any person with regard to
Patna High Court MA No.393 of 2010
30/47
execution of Will in favour of any person. He has stated that in
connection with treatment, he used to carry his father on many
occasions. He was treated by Dr. Nandlal Choudhary and he
has issued the prescription dated 21st July 2005. The doctor
has identified abnormal behavior and referred him to Neuro
Physician cum Psychiatric Department, Kanke Mental
Hospital, Rachi (Jharkhand) and that prescription has been
marked as Ext-A. In the examination in-chief, he has stated
that his elder brother Anjani Kumar Verma who was looking
after the affairs of the house, on account of advance age and
suffering from illness, but there is no cross-examination with
regard to mental position of father of appellant, namely,
Bhattu Mahto. Raghunandan Prasad has been examined as
D.W-4 resident of the same village, claiming to be a
neighbour and having good interaction with the family
members has stated that one year before his death, Bhattu
Mahto lost his mental balance and confined to his bed for
three months before death. In his cross-examination, he has
stated that he used to visit Bhattu Mahto and whenever he paid
respect by folded hands, he used to give reply.
In the present case, one thing is also important
that the propounder of the Will has kept silence with regard to
Patna High Court MA No.393 of 2010
31/47
two daughters nor any special citation has been issued to them.
The issuance of special citation will be dealt with later on but
if they would have been called as witnesses, or notice would
have been issued, daughters would have been the best
witnesses to say about the mental condition of their father but
in absence of their evidence, it has to be assessed about the
mental condition of Bhattu Mahto at the time of execution of
the Will. Admittedly Bhattu Mahto was a man of advance age.
Every person may not lose the mental balance but specifically
while filing the written statement, specific plea has been taken
by the appellant of Bhattu Mahto being ill and in the evidence
he has stated that his father had lost mental balance, was not
understanding anything, so much so that he had produced the
doctor's prescription and proved that the doctor had opinioned
about the mental condition of Bhattu Mahto being of abnormal
behavior, suggested for treatment at Kanke Mental Hospital,
Ranchi.
There is no cross-examination or suggestion that
Bhattu Mahto was not shown to that doctor or the certificate
produced by the appellant is concocted, manipulated
document. The Court below has refused to take into
consideration this on account of the fact that the doctor was
Patna High Court MA No.393 of 2010
32/47
not examined will not be proper consideration to discard the
prescription of the doctor whereas the appellant has stated that
he had taken his father for treatment before the doctor who had
examined and recorded the abnormal behavior and suggested
for treatment at Kanke Mental Hospital, Ranchi. The said
witness has stated about the mental condition of Bhattu Mahto
and said that he lost mental balance one year prior to his death
and Bhattu Mahto had died in a close proximity with the
execution of the Will.
Learned Counsel for the respondent submitted
that appellant or any witnesses has nowhere stated that what
action committed by Bhattu Mahto was treated to be abnormal,
has not been stated by the appellant or any of supporting
witness, mere bald claim is not sufficient. Mere because the
appellant or any witness have not stated that what action
Bhattu Mahto constitutes abnormal behaviour, will not
sufficient to hold that appellant failed to prove the mental
condition of Bhattu Mahto, especially in view of the fact that
respondent has not cross-examined the appellant and his
supporting witnesses on mental condition of Bhattu Mahto.
So this Court is of the view that Bhattu Mahto at the time of
execution of the Will was not of sound mind, lost his capacity
Patna High Court MA No.393 of 2010
33/47
of understanding of the fact and in such view of the matter
about the mental condition this matter goes in favour of the
appellant.
Another point has been raised by the appellant
that Bhattu Mahto was a literate person, in stead of putting his
signature, he has put his thumb impression in the alleged Will
it self shows suspicious circumstances in execution of the Will
whereas counsel for the respondent has submitted that merely
because a person has put his thumb impression does not create
ipso facto suspicious circumstances that too, to a person who
has attained advance age generally a person of advance age in
stead of putting signature uses to put thumb impression and
placed reliance on two judgments i.e.
AIR1997 SC 3819 (Misri Lal v. Daulati Devi)
AIR 2005 SC 780 (Sridevi v. Jayaraja Sheth)
Learned counsel for the respondent has further
submitted that there is no material to show that Bhattu Mahto
was educated person and used to put his signature A.W.1
Chandrika Sinha has stated in Par-21 that Bhattu Mahto was
not a literate person, where she has stated that it is not correct
that Bhattu Mahto was a literate person. But in the written
statement, in Para-16 the appellant has stated that Bhattu
Patna High Court MA No.393 of 2010
34/47
Mahto was a literate person and D.W.3 Rajni Kumar Verma,
appellant in Para-7 has stated that Bhattu Mahto was a literate
person and the statement made in the written statement has not
been disputed by the appellant anywhere. The presumption is
that if a fact has not been denied, will be essential factor to
show that Bhattu Mahto was a literate person and he used to
put his signature. To counter this fact, strong reliance on
judgment has been placed on Misri Lal v. Daulati Devi (supra)
where the court in Para-10 has said that it is not unnatural for
the old person to prefer thumb impression by way of marks, in
stead of signature. But in that case the Hon'ble Supreme Court
has noticed that the testatrix while executing the deed with
respect to other property had affixed her thumb impression. So
in that circumstance, suspicious circumstance was removed. It
will be relevant to quote Para-10 of the judgment:
"Para-10: After going through the judgments of the
Trial Court and the Appellate Court as well as the
oral and documentary evidence placed before us, we
are of the view that the High Court has not exceeded
its appellate jurisdiction in re-appreciating the oral
evidence to upset the findings of the Trial Court. The
learned Judge while dealing with the objection
regarding the thumb impression has stated that it is
not unnatural for an old person to prefer to put
thumb mark instead of signature. In addition to that
Patna High Court MA No.393 of 2010
35/47
as we noticed earlier, the testatrix herself in
executing the waqf deed in respect of other property
has conveyed the title by affixing her thumb
impression only. Therefore, the doubt regarding
execution of the Will on the basis of thumb
impression has been rightly overruled by the High
Court."
Reliance has also been placed on a judgment
reported in AIR 2005 SC 780 (supra) where the Hon'ble
Supreme Court has said that the fact that the person who has
executed the Will was of 80 years and died in 15 days interval
where the Court has said that nothing was brought to show that
the testator was not of good health and physically and mentally
condition. From the cross-examination of the scribe and t he
two attesting witnesses, the objector had failed to bring out
anything to doubt the physical or mental capacity of the
testator of the Will.
In the present case as this Court has already held
hereinabove that the testator was a person of weak mind or not
understanding anything, in such a situation it has to be
examined where the literacy or putting thumb impression has
any nexus or not. Generally, a person who is putting his
signature will not put his or her thumb impression on any
Patna High Court MA No.393 of 2010
36/47
deed but when a person suffering from mental illness it will be
easy to take thumb impression as he will not be able to put his
signature in a proper manner.
In the present case, Bhattu Mahto was of advance
age suffering from different types of ailment, doctor's
certificate shows abnormal behavior, in such a situation, the
plea that it is not abnormal for an old person to put his
signature is rejected in the facts of the present case, as in AIR
1997 SC 3819 (Supra) there the Hon'ble Court has found that
on earlier occasion, the testatrix had put her thumb impression
while executing some other deeds but in the present case no
such document has been produced by the propounder to show
that Bhattu Mahto was in the habit to put his thumb
impression in stead of signature.
One strong suspicion is created with regard to the
fact that why Bhattu Mahto will execute the Will in favour of
only one daughter in-law. Explanation has been offered that
she used to serve her father in-law being pleased with the
services rendered by her he executed the Will in her favour.
The younger son was a government servant, including his wife
was a teacher having sufficient earning on that account Bhattu
Mahto had executed the Will. Apart from this explanation,
Patna High Court MA No.393 of 2010
37/47
strong suspicious circumstance is created, the daughters are
heirs of the same degree, why they have not been given
property through the Will, when major portion of the property
in the Will was inherited by Bhattu Mahto from his Nanihal
and apart from that, if Bhattu Mahto was of the view that the
property was to be given to his daughter in-law, then he could
have asked his daughter or daughter in-law or close relative
being attesting witness or identifier of the execution of the
Will but even apart, Bhattu Mahto has daughters and daughters
in-law but they are neither attesting witnesses nor any close
relative has been made any attesting witness.
It is also a startling fact that appellant was neither
made party nor special citation was issued to the present
appellant. The present appellant filed an application under
Order-1 Rule 10(2) C.P.C. on 1.8.2007 for being added as a
party to the proceeding, the respondent filed Rejoinder on
5.9.2007, whereby seriously contested by the propounder. The Court below after hearing the parties vide order dated 11th December 2007, the present appellant was made a party to the proceeding. It itself shows that in a very clandestine manner, the respondent wanted the Will to be probated. Propunder of will neither impleaded the present appellant as party, who is Patna High Court MA No.393 of 2010 38/47 one of the son of testator, nor daughters were made party, itself creates suspicious circumstance against the propounder of will.
It has to be examined that effect of non-service of special citation to the two daughters admittedly no such averment is made in the application for probate, though Chandrika Sinha, propounder of the Will has stated about having two daughters of Bhattu Mahto. Admittedly in terms of Section 235 of the Succession Act it provides that the letter of administration with the Will annexed shall not be granted to any legatee other than an universal or a residuary legatee until a citation has been issued and published in the manner hereinafter mentioned, calling on the next-of-kin to accept or refuse letters of administration.
Presently two daughters are next to the kin they have not been mentioned in the entire application nor the court has issued any special citation to them. Whet her that will be a sufficient cause for refusing to grant probate to the legate or not. To counter this submission, counsel for the respondent submits that merely because special citation or notice was not given next-to-kin will not ipso facto be just cause to revoke the probate but something more is required apart from mere non- Patna High Court MA No.393 of 2010 39/47 service of citation. In support of his contention, reliance has been placed on AIR 1931 Cal. 497 (Sadfal Kanu v. Sodari Hajam) the issue was also of non-service of special citation had come for consideration where it has been stated that if a person is entitled to special citation and such citation has not been served on him, absence of such special citation would not be itself sufficient to disentitle him to be probated when it has been proved in solemn affirmation. That was a case for revocation of the Will on the ground of non-service of citation. In the said case the Court has said that it is obligatory upon the Court when it is brought to its notice that there is a person entitled to special citation to be issued, it is the bounden duty of a propounder to have special citation served on a person who under the law, is entitled thereto. At the same time, however, even in the case of revocation of a probate the Court has certain amount of discretion.
But in that case, the Court refused to revoke the Will on the premise that the Will will not be revoked, if the party had knowledge about the proceeding. And could not show anything apart from non-citation without further any material being shown which would make the Court to hold that the proceedings were defective in substance or it resulted in Patna High Court MA No.393 of 2010 40/47 any prejudice to anybody.
In the present case, daughters are heirs of the same degree, they have been deprived of the property, as no provision has been made in the Will. It will be relevant to quote relevant paragraph of the judgment passed in sadfal Kanu case (supra):-
"It has been contended that a ground which would be sufficient for revocation of a probate would ordinarily be sufficient to invalidate a grant and that inasmuch as if Khublal Mistri had come forward and alleged that he being a person who would be the heir to the testator in the event of intestacy, was entitled to special citation and had not been so cited, the Court would have been justified in revoking the grant and ordering the proceedings to be taken in his presence therefore upon the circumstances to which reference has already been made, the proper course for this Court to adopt would be to set aside the decision of the learned District Judge and to direct that the proceedings be reopened and then gone on with upon not ice being served upon Khublal. Now it need not be dispute d for the purpose of the present appeal that if it is established in any particular case that the proceeding s which resulted in the grant have been defective in substance, the grant may be set aside and the case reopened and reheard. It may also be concealed that it is obligatory upon the Court when it is brought to its notice that there is a person Patna High Court MA No.393 of 2010 41/47 entitled to special citation to issue such citation and further that it is the bounden duty of a propounder to have special citation served on a person who under the law, is entitled thereto. At the same time, however, even in the case of revocation of a probate the Court has certain amount of discretion. . ."
Either to act or not to act under the powers which the law confers on it to revoke a grant. If a person is entitled to special citation and such citation has not been served on him, the absence of such special citation would not of itself be sufficient to entitle him to require a will to be proved in his presence after it has once been proved in solemn form, if he was aware of the proceedings: Nistarini Debya v. Brazhmomoyi Debya (1). Of course, if Khublal Mistry applies in the present case for revocation of the probate on the ground of non- citation, it would be for the respondent in order to resist the application for revocation to show that notwithstanding such non-citation Khublal Mistry was aware of the proceedings. In the present case however, when the appellant himself had contested the proceedings he must show that if Khublal Mistry had been cited he would have contested the grant and would have done something which he himself has not been able to do. The discretion which a Court has in this respect cannot be exercised in appellant's favour unless he shows something more than mere citation of Khublal Mistry. In our opinion the appellant has not made out any such case as Patna High Court MA No.393 of 2010 42/47 would entitle this Court on appeal to set aside the decision of the Court below passed especially because Khublal himself will always have his remedy, namely, that if he was not aware of the proceedings and has been prejudiced by reasons of the proceeding s having been held in his absence, he would be able to come forward and apply for revocation of the probate.
We are of opinion that all that the appellant has shown is that there has been no citation on Khublal and without anything further being shown which would entitle the Court to hold that the proceedings were defective in substance or have resulted in any prejudice to anybody it is not possible, nor would it be right, for us to interfere with the decision of the Court below.
The result is that, in our opinion, the order appealed from is correct and that the appeal should therefore, be dismissed. There has been no appearance on behalf of the respondent and there will be no order as to costs."
Another judgment is AIR 1933 Bombay 379 (George Anthony v. Millicent Spencer) where also similar type of issue had come for consideration. There the Court said that grant of probate shall also be revoked if the proceedings before the Probate Court are defective. However, it is duty of the Court to issue citation to all the persons claiming to have Patna High Court MA No.393 of 2010 43/47 interest in the estate. The Court can revoke the grant where parties who ought to have been cited have not been cited but absence of citation has been made discretionary exercise of power to invalidate the grant. It will be relevant to quote the relevant portion as follows:
"...The grant may also be revoked if proceedings in the High Court are defective, under Section 263(a). Sexton 283(1)(c) however makes it discretionary for the Court to issue citations on all persons claiming to have an interest in the estate of the deceased, however slight the interest may be, and though Illus. (2) says that the g rant may be revoked, where parties who ought to have been cited have not been cited it has been held by our appeal Court in Digambar v. Narayan (2), dealing with the corresponding sections of the old Probate and Administration Act of1881 that absence of citations which are discretionary does not in it self invalidate the grant."
In my opinion, therefore, under Section 263(c) there is just cause for a revocation of the grant of letters of administration. Ordinarily, revocation would follow, and under Section 296 of the Act the defendant would have to deliver up the letters of administration to this Court."
Reliance has also been placed on AIR 1940 Cal 296 (Dinbandhu Roy v. Sarala Sundari) where identical Patna High Court MA No.393 of 2010 44/47 question was raised. T here the Court has said that if the person is required to be given notice was deprived of the special citation can be a good ground for revocation but the Court may refuse the same if it is found that the non-cited party had knowledge of the probate proceeding. It will be relevant to quote the relevant portion as follows:
"In my judgment there is no difference in principle between a special and a general citation issue3d under Section 283 (1), cl. (c). The object of both is to give notice to persons interested in the estate of the deceased of the proceedings for grant As a t testamentary grant works in rem, it is of the utmost importance to give a wide publication to the proceedings. When the discretion is exercised and a general citation is issued, it is necessary that it should be published as required by sub. ss. 2 and 3 of Section 283. As I understand the decisions, a special citation issued in the court's discretion under Section 283 must be served. If it is not served on t he party the proceedings are defective and the grant must be revoked at his instance. Absence or non-service of special citation on a person who ought to be cited is itself a good ground for revocation at his instance in the absence of other circumstances on which the Court may refuse revocation on account of the discretion vested in it by Section 263. It would be a defect, but the defect would not be of substance, if the Patna High Court MA No.393 of 2010 45/47 non-cited parted had knowledge of the probate proceeding s. If those special circumstances do not exist the grant must be revoked. It is not possible or desirable to enumerate exhaustively what those special circumstances may be. Delay in applying for revocation, which amounts to waiver or acquiescence, would be one. In the cases where such special circumstances exist, and specially if the will has been proved in solemn form before, revocation would not be made. 35 C W N 58, C W N 568, 21 CLJ 555 I think that Courtney Terrell C.J. has laid down the law correctly in AIR 1929 Pat. 385, when he said that Section 50 Probate and Administration Act (S.263, Succession Act) does not mean that the Court is entitled in its discretion to refuse revocation even when "just cause" is established. His statement regarded generally is what the Legislature means but that statement requires only the qualification which I have noted above."
In AIR 1990 SC 1742 the Hon'ble Supreme Court has held that disinheritance among the heirs of equal degree no reason has been given for exclusion of daughter by testator, father, creates a strong suspicious circumstances and the propounder is remained dispell all the suspicious circumstances for getting grant probated.
It will be relevant to quote Para-4 of the judgment Patna High Court MA No.393 of 2010 46/47 as follows:
"Para-4. Ratio in Malkani v. Jamadar, AIR 1987 SC 767 was relied on to dissuade this Court from interfering, both, because the finding that Will was genuine, was a finding of fact and omission to mention reason for disinheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani's case was land. Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property or agricultural holdings from going out of family is well-known. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. Although this Court does not normally interfere with findings of fact recorded by Courts below, but if the finding is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136."
Patna High Court MA No.393 of 2010 47/47 In the present case on reading of the Will, no where it has been dealt with why testator has executed the Will in favour of only one daughter in-law leaving aside other daughter in-laws as well as the daughters when daughters are already there as the father always feels close to the daughter. No such averment has been made in the Will itself, save and except, mere statement has been made about execution of the Will in favour of Chandrika Sinha. The situation is made more complex and creates suspicious circumstances by keeping silence about appellant and two daughters.
On conspectus of facts and the attending circumstances, this Court is of the view that the court below has wrongly granted probate in favour of respondent as the respondent has failed to remove all the suspicious circumstances surrounding the Will. In such view of the matter, the impugned order of the trial court is set aside and the application filed by the respondent for grant of probate is dismissed.
Jay/- (Shivaji Pandey, J) U