Jharkhand High Court
Sahadev Mahato Son Of Late Madhu Mahto vs Mandu Mahtain W/O Late Rabi Mahato on 6 December, 2022
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 146 of 2016
Sahadev Mahato son of late Madhu Mahto, resident of Village Sitalpur, P.O.
Gharbar, P.S. Baliapur, District Dhanbad.
... Appellant
-versus-
1. Mandu Mahtain w/o Late Rabi Mahato, resident of Village Bhuda, P.O.
Barnasia, P.S. Bank More, District Dhanbad.
2. Satish Mahto son of Late Madhu Mahato, resident of Village Sitalpur, P.O.
Gharbar, P.S. Baliapur, District Dhanbad.
... Respondents
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
----
For the Appellant : Ms. Jasvindar Mazumdar, Advocate
For the Respondents : Mr. Ramchander Sahu, Advocate
----
ORDER
RESERVED ON 24.03.2022 PRONOUNCED ON 6.12.2022 This appeal under Section 299 of the Indian Succession Act, 1925 by the applicant-appellant challenging the judgment whereby the Letter of Administration Case No.6 of 2006 filed under Section 278 of the Indian Succession Act was dismissed by the District Judge III, Dhanbad.
2. The appellant herein filed an application under Section 278 of the Indian Succession Act, 1925, praying for grant of letter of administration in respect of estate of deceased Rabi Mahato.
3. It is the case of the applicant-appellant that Rabi Mahato, a Hindu male died on 15.09.2005 within the jurisdiction of the Court at Dhanbad. It is his case that the deceased was of sound health and perfect state of mind while executing his last will and testament on 02.09.2005. He has bequeathed his estate and effects thereto in favour of the applicant-appellant, as the sole executor. Will was registered on 02.09.2005 in the Office of the Sub Registrar, Dhanbad. The applicant claimed that the Will was duly executed in presence of the attesting witnesses and one of the attesting witnesses, Bhim Mahato had sworn an affidavit along with the said Will. Applicant claimed that the deceased left behind his wife and two brothers, appellant being one of them. The appellant stated that by virtue of the said Will, the property was devolved upon him. Valuation was also mentioned.
4. After filing of the said case, opposite parties were noticed and a show cause was filed by them. They claimed that the will is forged, created and manufactured document as applicant wanted to usurp the entire property left by Rabi Mahato. It is their contention that preparation of Will about 10-15 days prior to the death of the testator, that too when the testator was not in his 2 senses, suggests the malafide intention and the fact that the Will was not voluntary. It is their case that Rabi Mahato fell critically ill and his nerves and brain were affected and he had become paralytic and was not even in a position to operate a bank account. The family, thus, approached the bank where Rabi Mahato was having an account as he was an employee of Steel Authority of India Limited, for withdrawal of his money, but the Bank returned the instrument. Aggrieved by the said action of the bank, a complaint case was filed before the Consumer Forum bearing Consumer Complaint No.251 of 2005 by the applicant-appellant on behalf of Rabi Mahato. Sahadeo Mahato being the eldest male member, was looking after and managing the affair of the family as Rabi Mahato was seriously ill and was near a vegetative state. It is the case of the opposite parties that said Sahadeo Mahato (appellant) obtained some LTI of Rabi Mahato for making correspondence with the bank and pursuing the case before the Consumer Forum. It is their case that on 02.09.2005, the applicant stated that Rabi Mahato's presence is necessary before the Consumer Court to show that Rabi Mahato is alive and near vegetative state. Opposite parties did not create any doubt on the said intention of the applicant-appellant. After the death of Rabi Mahato, they could came to know about the case when a Succession Case No.53 of 2006 was filed, impleading the applicant-appellant wherein this applicant-appellant for the first time disclosed about the Will. It is the contention of the opposite parties that the Will is fabricated as the deceased was not in a state to execute the same. Further, as per them, in the Will no reasons have been assigned as to why these opposite parties were excluded. It is their case that there are several suspicious circumstances, which will render the Will invalid.
5. On the basis of the said pleadings, issues were framed by the Court below, which are as follows: -
1. Whether or not present probate case maintainable?
2. Whether the WILL brought on record was executed by testator Rabi Mahato and if so, whether or not same is valid and lawful WILL?
3. Whether or not there is any suspicious circumstance surrounding execution of WILL?
4. Whether or not testator Rabi Mahato was in disposing state of mind at the time of execution of WILL in question?
5. To what relief applicant is entitled to?3
6. On behalf of the applicant-appellant, two witnesses were examined. A.W.1 Bhim Lal Mahato, is the attesting witness and A.W.2 is the applicant-propounder.
Two documents were marked as Exhibits, namely, (i) Exhibit 1 - Will of Rabi Mahato dated 02.09.2005; and (ii) Exhibit 2 the signature of A.W.1 Bhim Lal Mahato on the WILL.
7. Opposite parties also examined two witnesses, namely, O.P.W.1 Satish Mahato and O.P.W.2 Mandu Devi @ Mahatain.
They have brought on record as exhibits, a certified copy of order dated 01.07.2005 to 27.10.2005 of Consumer Case No.251 of 2005.
8. After hearing the parties, the Court below held that the testator Rabi Mahato was not in a disposing state of mind at the time of execution of the WILL, thus, the Court below held that the WILL was not genuine and duly attested. The Court below, after hearing the parties and after evaluating the evidences, passed an order against the applicant-appellant, thereby dismissing the application.
9. Being aggrieved by the said judgment of dismissal, the applicant- propounder has approached this Court by filing an appeal.
10. Learned counsel appearing on behalf of the appellant submits that the Trial Court has completely misdirected itself in apprising the issue involved in the case. She submitted that once when the Court finds that the WILL has been registered, the onus will shift upon the objector to prove that the WILL is not genuine and the WILL was executed by the testator not in good health and sound state of mind. It is the case of the appellant that the Court below failed to consider this aspect that the Will is registered. She contends that admittedly, one of the attesting witnesses is dead and the living attesting witness appeared before the Court and has deposed that the deceased was in good health and was in a sound state of mind and executed the WILL in his presence. The said witness also deposed that he accompanied Rabi Mahato to the Registry Office and to the lawyer who drafted the WILL. As per the evidence, the WILL was drafted on the dictates of the testator and was presented for registering on the same date, so no question can be raised on the authenticity and genuineness of the said WILL and also on the physical and mental state of the testator. She further submits that the proximity of the date of death of the testator with the date of execution of the WILL has no bearing in the case. She submitted that the wife of the testator had deserted the testator long ago, thus, she was excluded to inherit by virtue of the said 4 WILL and this is a genuine ground to exclude the wife for which the wife cannot raise an issue about the genuineness.
11. Counsel appearing on behalf of the respondents submitted that the facts of this case and the evidence led even by the appellant suggests that the testator was not in a proper state of mind and health at the time of execution of the WILL and even before also and that being so, the Court had rightly held that the WILL is not genuine. Once a doubt has been raised about the genuinity of the WILL, the application is bound to be rejected. He submits that the evidence led by the parties clearly suggests the fact that the execution of the WILL is under thick cloud and thus, the Court has rightly rejected the application.
12. I have heard the counsel for the parties and have gone through the entire brief and the Lower Court Record.
13. Main question is whether the WILL executed by Rabi Mahato is genuine and whether there is cloud of suspicious circumstances in respect of the execution of the said WILL by Rabi Mahato and claim of suspicious condition being the health condition of the deceased testator.
14. The Hon'ble Supreme Court in the case of H. Venkatachala Iyengar versus B.N. Thimmajamma & Others reported in AIR 1959 SC 443 has held at paragraph 18 of the judgment as under: -
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 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 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, Sections 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 5 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 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 prescribed by Setion 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.
15. The WILL is a document. This document needs to be proved in the Court of law. Under Section 67 of the Evidence Act, 1872, the signature or the handwriting of so much of the document, as is alleged to be in a person's handwriting must be proved to be in his handwriting. For proving such handwriting in terms of Sections 45 and 47 of the Evidence Act, when the Court has to form an opinion on the handwriting, opinion of experts can be obtained and/or evidence of the person who is acquainted with the handwriting of the person concerned and the evidence of handwriting of the person concerned also becomes relevant. In case of a WILL, document executed by a dead person becomes a subject matter before the Court, thus, the signature/ handwriting of the deceased has to be proved, primarily in terms of the Evidence Act by the applicant propounder of the WILL.
16. Further Section 68 of the Evidence Act is also of utmost relevance. This Section deals with the proof of execution of a document, which requires authentication by virtue of law. It provides that a document, which needs to be attested by law, shall not be used as evidence until at least one attesting witness has been called for, for proving its execution, if the attesting witnesses are alive and are capable of deposing before the Court.
This means that even if a WILL is attested, then also at least one of the attesting witnesses, if such witness is alive and can depose before a Court as witness, should be examined to prove the same.
17. The Hon'ble Supreme Court in the case of Bharpur Singh & Others versus Shamsher Singh reported in (2009) 3 SCC 687 has held at paragraph 24 of the said judgment that it may be true that the WILL may be 6 registered, but registration by itself would not mean that the statutory requirement of proving a WILL need not be complied with.
18. As per Section 59 of the Indian Succession Act, 1925, every person of sound mind not being a minor, may dispose of its property by WILL. Thus, from Section 59, it is clear that a major, who is executing a WILL must be a person of sound mind. The explanation 3 and 4 is also of importance as Explanation 3 provides that an ordinarily insane may make a WILL during interval when he is of sound mind and Explanation 4 provides that no person can make a WILL while he is in such a state of mind arising from illness or in other means that he does not know what he is doing. It is necessary to quote Section 59 of the Indian Succession Act, which reads as under:-
59. Person capable of making Wills - Every person of sound mind not being a minor may dispose of his property by Will.
Explanation 1. - A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2 - Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3. - A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4. - No person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
As per Section 63 of the Indian Succession Act, the testator shall sign or affix his mark to the WILL or it shall be signed by some other person in his presence on his direction. Further, the signature of the testator or 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. The WILL shall be attested by two or more witnesses, each of whom has seen the testator sign the same in their presence and each of the witnesses will sign in presence of the testator. It is necessary to quote Section 63 of the Indian Succession Act, which reads as under: -
63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or 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 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.7
(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 the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment 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.
19. Applicant Witness No.1 is Bhim Lal Mahato, who is the attesting witness to the Will. He stated that he knew the testator and the testator prepared the WILL on 02.09.2005 whereby property was bequeathed to his brother. He has stated that he is one of the attesting witnesses. He stated that the testator had put his LTI on the WILL, which was identified by Chandi Charan Pal. Chandi Charan Pal also put his signature on this WILL. The WILL was, thereafter, presented before the Office of the Registrar, Dhanbad. In cross examination, he stated that he is aged about 77 years and he is not keeping in good health since last 2-4 years. He stated in paragraph 7 that the testator is a resident of neighbouring village, so he is acquainted with him. As per him, testator died issueless. In paragraph 22 he stated that he had met Rabi Mahato 10 to 15 years ago for the last time. He stated that when he had seen Rabi Mahato, in his village Rabi Mahato was in good health and was able to move. He stated that Rabi Mahato told him that he will execute a WILL and stated that he told the aforesaid fact to him 2-4 years prior to preparation of the said WILL. In paragraph 23 he stated that Rabi Mahato could sign, but as his hand used to shake, he put his LTI in the WILL. In paragraph 24 he stated that Rabi Mahato had a paralysis attack, that is the reason his hand used to shake. He stated that in 2005 he went for preparation of the WILL. He also stated that propounder of the WILL is illiterate and this witness could only put his signature. He stated that only Sahadeo Mahato accompanied Rabi Mahato and no one else from the family accompanied them. He stated that the Will was prepared in the Registry Office itself by Advocate S.C. Chatterjee and Sahadeo Mahato took them to Advocate S.C. Chatterjee. In paragraph 34 he stated that Rabi Mahato was in a position to speak and it is not a fact that his speech was affected because of his health. He also stated that the attack of paralysis did not paralyse his capacity to speak. He stated that Rabi Mahato stated before the lawyer that he will bequeath his property to his brother 8 Sahadeo Mahato. In paragraph 40 he stated that he does not know as to whether concerned lawyer has stated what Rabi Mahato said; in the same breath he stated that the concerned lawyer has written. He stated that he does not know whether the WILL was typed or not, but, he was asked to sign. He stated that he has signed on typed paper, but, he does not know what was written in the typed paper nor he was explained. He stated that the WILL consisted of two pages and he had put his signature in both the two pages. He stated that after his signature, Chandi Pal also signed. He stated that after he had put his LTI, Rabi Mahato had signed. In paragraph 50 he stated that lawyer had read the contents of the WILL to him and Chandil Pal. He denied the suggestion that Rabi Mahato was not in a good health.
20. Applicant Witness No.2 is Sahadeo Mahato, who is the applicant. He has stated at paragraph 3 that first wife of Rabi Mahato had expired and the second wife, who is opposite party No.1, had left Rabi Mahato about 17 years ago. At paragraph 5 he stated that on 02.09.2005, Rabi Mahato had executed a WILL in his name at Registry Office, Dhanbad. At paragraph 6 he stated that Rabi Mahato had put his thumb impression on the WILL in presence of the witnesses Bhimlal Mahato, Chandicharan Pal and this applicant. At paragraph 9, he has stated that Rabi Mahato had expired on 15.09.2005. At paragraph 10, he has stated that Rabi Mahato had got the lawyer to write all those things which are there written in the WILL. At paragraph 11, he has stated that hand of Rabi Mahato used to shake due to paralytic attack, thus, he was asked to put thumb impression on the WILL. At paragraph 13 he has stated that Rabi Mahato used to tell that he will make a WILL of all his properties - moveable and immovable and the cash lying in the bank in favour of the applicant as he and his son used to take care of Rabi Mahato and his medicines, clothing, food etc. At paragraph 15 he stated that Rabi Mahato till his last time was healthy and was able to move and speak, only his hand used to shake due to paralysis. At paragraph 16 he stated that he had himself gone to the house of witnesses and had request for making the WILL. In cross examination, at paragraph 27 he has stated that Rabi Mahato was working in IISCO, Chasnala where his nominee was recorded as Mandu Mahatain. He also stated that Mandu Mahatain had also filed a case for Succession Certificate, but he does not know the fate of the said case. At paragraph 33 he has stated that Mandu Devi is the wife of Rabi Mahato but she never resided with Rabi Mahato. At paragraph 39 he has stated that the physical health of Rabi Mahato was good till execution of the WILL. At paragraph 41 he has stated that in 2005 Rabi Mahato's hands and legs used 9 to shake due to paralysis. At paragraph 42 he stated that Rabi Mahato had suffered paralytic attack two years prior to execution of the WILL. At paragraph 45 he has stated that at the time of execution of WILL also medicines were continuing. At paragraph 46 he has stated that Rabi Mahato was admitted in hospital, but he cannot tell as to in which hospital he was admitted. At paragraph 49, he has stated that for this money only Rabi Mahato had filed a case in the Consumer Court and Anil Mahato had accompanied him. At paragraph 52, he has stated that Advocate Sabasachi Chatterjee has been his lawyer from the inception in Succession Case No.53 of 2006 and in the Probate Case which later on was converted into L.A. Case. At paragraph 54 he has stated that on the date when case was filed in Consumer Court Rabi Mahato had come to the Court. At paragraph 56 he has stated that SBI Sindri Branch did not allow withdrawal of money to Rabi Mahato since Rabi Mahato was not able to put his signature properly as his hand was shaking and his signature was not matching with the specimen signature. At paragraph 57 he has stated that Rabi Mahato had tried to put his proper signature on the withdrawal form in the Bank but he was not able to put his signature as his hand was shaking. At paragraph 58 he has stated that Rabi Mahato had tried to put his signature but could not put as such he returned from the Bank. At paragraph 63 he has stated that Rabi Mahato had executed the WILL after the consumer case. At paragraph 65 he has stated that his son Anil Mahato knows the remaining things about the consumer case and the withdrawal of money from the SBI Bank as Rabi Mahato was accompanied by Anil Mahato in the consumer Court. At paragraph 71 he has stated that it is not true that at the time of execution of the WILL Rabi Mahato was deaf, dumb, handicapped or without having capacity to think.
21. O.P.W.1 is Satish Mahato. He is brother of deceased Rabi Mahato and the applicant Sahadeo Mahato. He stated that Rabi Mahato, after the death of his first wife, married Mandu Devi. Mandu Devi is entitled to receive death benefit of Rabi Mahato. As Rabi Mahato used to misbehave, ill treat Mandu Devi, Mandu Devi started residing in her parental house. Rabi Mahato seriously got ill and was taken to Vellore where the doctors lost hope as he was mentally and physically incapacitated. In June-July 2005, he absolutely lost his senses, neither he could hear nor he could speak. Applicant Sahadeo Mahato prepared all the documents and the WILL. In cross examination, he stated that the properties are still joint and not been partitioned. He stated that as Rabi Mahato was seriously ill, it was not possible for him to be taken to Vellore for his treatment. He stated that he has not taken 10 any steps for treating Rabi Mahato nor he had consulted any doctor. Applicant Sahadeo and his family used to look after Rabi Mahato.
22. O.P.W.2 is Mandu Devi @ Mahtain, who is the wife of Rabi Mahato. She stated that her husband was employed in IISCO Ltd. Since early 2005, Rabi Mahato was ill and he was not in a position to move nor he could hear. He has lost his physical senses also. A case was also filed by the claimant in Consumer Forum on behalf of Rabi Mahato for withdrawing money, which was lying in the bank. Rabi Mahato could not even take decision and he was not able to speak or hear. He, ultimately, died on 15.09.2005. She stated that the money which is in the bank, belongs to Rabi Mahato. She stated that she had filed a succession case, but in the same, she has not mentioned that she is the second wife.
23. Some documentary evidences were also produced and were marked exhibits before the Court below. The ordersheet of the consumer case being Case No.251 of 2005 is on record and marked as Exhibit 'A'. In the said case filed under the Consumer Protection Act, Rabi Mahato was the applicant. The order dated 23.08.2005 is very important. On direction of the District Consumer Forum, said Rabi Mahato was produced. The Consumer Forum found that the said Rabi Mahato appears to be deaf, dumb and has no senses even to decide good and bad. He even cannot catch the pen nor he can catch the amount of Rs.10,000/- which was directed to be given to him and the Court found that if any amount is given to him, it will be snatched from him.
24. It is well settled principle that if there is any suspicious circumstances, which shrouds the WILL, the WILL cannot be probated. One of the very important circumstance is health of the deceased and whether he was in a fit state of physical and mental health, when the WILL was executed. The WILL, which is sought to be probated, was allegedly executed on 2nd September, 2005. It is the case of the applicant that the WILL was executed when Rabi Mahato was physically and mentally fit and was capable to execute the same, but this contention, according to this Court is not the correct situation. Even for the sake of argument, the statement of the applicant's witness and opposite parties' witness is not relied upon because of their rivalry, but the observation recorded by the District Consumer Forum in order dated 23.08.2005 in Case No.251 of 2005 cannot be brushed aside or ignored. The said observation clearly suggests that when said Rabi Mahato appeared before the District Consumer Forum, his physical and mental condition was very bad. He was deaf and dumb and he had lost his senses. He even was not in a position to grip pen and was aged about 75 years. Admittedly, the WILL 11 was prepared after the aforesaid date. This clearly suggests that the condition of the testator's mind and body was very pitiable and debilitated at the time when the WILL was executed. As per the Hon'ble Supreme Court in the case of Bharpur Singh & Others versus Shamsher Singh reported in (2009) 3 SCC 687, this is one of suspicious circumstances and can be a ground for not granting probate. This situation clearly suggests that Rabi Mahto's mental and physical health was such that he was not capable to execute the WILL. The Court of District Judge III, Dhanbad has, thus, correctly rejected the application for grant of Letter of Administration being Letter of Administration Case No.6 of 2006 filed under Section 278 of the Indian Succession Act.
25. I find no illegality in the impugned judgment and this miscellaneous appeal is, accordingly, dismissed.
(Ananda Sen, J.) Kumar/Cp-02