Tripura High Court
Sri Shyamal Majumder vs Smt. Manju Rani Pal on 1 April, 2022
Author: Arindam Lodh
Bench: Arindam Lodh, S.G.Chattopadhyay
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HIGH COURT OF TRIPURA
AGARTALA
RFA NO. 35 OF 2019
Sri Shyamal Majumder
S/o Lt. Anath Kr. Majumder, resident of Melarmath,
West Bank of Bikram Sagar (Dighi), near
Daily Desher Katha Patrika Office, PS West Agartala,
District Tripura West.
---- Appellant.
Versus
1. Smt. Manju Rani Pal,
W/o Sri Utpal Kanti Pal, resident of
Quarters No.C-4 NEEPCO Colony Complex,
P.O. NEEPCO, Ramchandra Nagar,
District Tripura West.
---Respondent.
2. Sri Tamal Majumder S/o Lt. Anath Kr. Majumder, resident of Melarmath, West Bank of Bikram Sagar (Dighi), near Daily Desher Katha Patrika Office, PS West Agartala, District Tripura West.
--- Proforma Respondent.
For Appellant(s) : Mr. D.R.Chowdhury, Sr. Advocate.
Mr. S. Sarkar, Advocate.
For Respondent(s) : Mr. S. Lodh, Advocate.
Date of hearing &
delivery of Judgment and order : 01.04.2022
Whether fit for reporting : Yes
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BEFORE
HON'BLE MR JUSTICE ARINDAM LODH
HON'BLE MR JUSTICE S.G.CHATTOPADHYAY
Judgment & Order (Oral)
(Arindam Lodh, J)
The present appeal under Section 96 of the Code of Civil Procedure,1908 is directed against the judgment and decree dated and decree dated 07.08.2019 & 09.08.2019 respectively, passed by learned Civil Judge, Sr. Division, Court no.2, West Tripura, Agartala in Case No.TS(P)47/2015 decreeing the suit of the plaintiff-respondent.
2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No.- T.S.(P) 47 of 2015 which was filed for declaration, cancellation of Will and Partition.
3. Background facts:
3.1 One Smt. Gita Rani Majumder, the mother of the plaintiff [respondent No.-1 herein] and the defendants [the sole appellant and proforma respondent herein of the original suit] executed a Will No.III-399 which was registered on 06.11.2010 in favour of her two sons, i.e. the defendants. She has mentioned in the Will that she wanted to devolve her entire property to her two sons. In the Will she assigned reason as to why she did not give any share of her property to her daughter i.e. the plaintiff. It 3 is explained that she had given marriage to her daughter and became well established. Smt. Gita Rani Majumdar was the absolute owner and possessor of land measuring 0.0600 acres, but, she bequeathed only 0.340 acres of land in favour of her two sons, the defendants herein. She executed the Will when she was aged about 62 years. From the body of the Will, it is seen that she herself presented the Will to the Office of the Sub-Registrar, Sadar and from the endorsement of the Sub-Registrar, it is found that during registration she admitted the execution of the Will. She herself appeared before the office of the Sub-Registrar for the registration of the Will. She died on 19.08.2011. Doctor opined that cause of death was renal failure being a case of Diabetic nephropathy. After her death, the defendants had partitioned the land measuring 0.340 acres by registered partition deed dated 08.12.2014. It is the case of the plaintiff that in the first part of January, 2015 she came to know that the defendants had mutated some portion of the land at their behest and on getting this information, on 15.01.2015, the plaintiff enquired from both the defendants about the mutation of the land, wherein the defendants had informed her that their mother had executed a Will in their favour by dint of which they became the owner of the land measuring 0.340 acres. Thereafter, the plaintiff asked the defendants to furnish a copy of the Will. Lastly on enquiry, she came to know that on 06.11.2010 her mother purportedly executed the questioned Will. She 4 obtained a certified copy of the Will from the office of the Sub-Registrar, Sadar. The plaintiff stated in her plaint that from the Will she found that the said Will was executed by her mother on 06.11.2010 i.e. 11 days prior to her going to Chennai for treatment. It is her further case that her mother, Gita Rani Majumder used to share everything with the plaintiff and her husband, but, she did not divulge anything to them as regards the execution and registration of the Will. In her pliant and examination-in-chief she has made specific assertions that the Will was not executed in sound disposition of mind and the reasons thereof, she assigned, are as under:-
(i) the testator did not state anything who would get the two storied building.
(ii) the property was mentioned as vacant land but in reality there is a tin fencing big hut with iron staircase which is also reflected in the khatian of the suit land.
(iii) the testator did not disclose anything as regards the free ingress and egress to and from the two-storied building situated over the rest portion of the land, i.e. the land outside the Will property.
3.2 The plaintiff has alleged that the defendants taking the advantage of the health condition of late Gita Rani Majumder, coerced her to execute the questioned Will. The plaintiff has also doubted the role of Dr. Judhisthir Das and his wife who are the attesting witnesses on the said Will. The portion of the property which is not included in the deed of Will has 5 been described in Schedule-„D‟ of the plaint and the plaintiff has claimed that she is one of the co-sharers of the land of Schedule-„D‟. That apart, the plaintiff has also claimed that the deed of Will dated 06.11.2010 executed by Gita Rani Majumder is required to be declared as void, which is, according to the plaintiff, was not executed in sound state of mind.
4. Summons being received, the defendants appeared and contested the suit by filing written statement. In the written statement, they have stated that their mother executed the Will according to her own wish and volition. In the written statement they have categorically stated that out of total quantum 0.0600 acres of land, a quantum of land measuring 0.0340 acres was bequeathed to the defendants by the said registered Will and the rest of the land measuring only 0.0260 acres is the joint property of both the plaintiff and the defendants. The defendants have categorically stated that at the time of execution of the Will, the plaintiff was in sound mind and good health and the Will was executed upon observing all legal formalities. In the Will it is also specifically stated that there is a pathway measuring 4‟(four feet) for ingress and egress to the joint ancestral building.
5. After exchange of pleadings, learned trial court had framed following issues:-
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(i) Is the suit maintainable in its present from and nature?
(ii) Whether there is any cause of action to file the suit?
(iii) Whether the WILL vide no. III -399, dated 06-11-2010 is liable to be adjudged void or voidable and to be delivered up and cancelled?
(iv) Whether the plaintiff is entitled to get 1/3rd share of the Schedule -A land?
(v) Whether the plaintiff is entitled to get a decree as prayed for?
(vi) What other relief / reliefs parties are entitled?
6. To substantiate her case, the plaintiff had adduced two witnesses and exhibited some documents. On the other hand, the defendants have also adduced three witnesses and proved some documents.
7. After closure of recording evidence and having heard the arguments advanced by the learned counsels appearing for the parties, learned trial court had decreed the suit observing that entire suit land is amenable to partition between the plaintiff and the defendants in three equal shares and declared the Will dated 06.11.2010 as void and accordingly, cancelled the Will.
8. Feeling aggrieved, and dissatisfied with the said judgment and decree dated 07.08.2019 & 09.08.2019 respectively, the defendant No.1, i.e. the appellant herein has preferred the instant first appeal before this court. 7
9. We have heard Mr. D.R.Chowdhury, learned senior counsel assisted by Mr. S. Sarkar, learned counsel appearing for the appellant and also heard Mr. S. Lodh, learned counsel appearing for the respondent.
10. Mr. Chowdhury, learned senior counsel has contended that the defendants [the appellant and the proforma-respondent herein] being the beneficiaries of the Will have discharged their liability to prove the genuinity of the Will. According to learned senior counsel, the plaintiff has failed to prove that the testator i.e. her mother Gita Rani Majumder was not in sound disposition of mind at the time of execution of the Will and that the defendants had coerced her to execute the questioned Will. Learned senior counsel has contended that the learned trial court had given much importance to some of the minor discrepancies as surfaced from the depositions adduced by the scribe and one of the attesting witnesses as well as the authorized witness of the office of the Sub-Registrar. 10.1 Learned senior counsel pointing out some minor corrections submitted that those were made by the authorized person(s) of the office of the Sub-Registrar and the over-writing on the date of execution of the Will should not be the grounds to throw out the entire Will and cannot be treated as the suspicious circumstances as held by learned trial Judge. 8 10.2 Mr. Chowdhury, learned senior counsel to support his submissions that minor discrepancies in the Will should be avoided by the court has pressed into service the judgment passed by the Hon‟ble Supreme Court in the case of Pentakota Satyanarayana & Ors. Vrs. Pentakota Seetharatnam & Ors., reported in (2005) 8 SCC 67. Learned senior counsel has also pressed into service the decision of the Hon‟ble Supreme Court in Janki Narayan Bhoir Vrs. Narayan Namdeo kadam, reported in (2003) 2 SCC 91 to test the veracity of the genuine execution of the Will.
11. On the other hand, Mr. Lodh, learned counsel appearing on behalf of the respondents has laid much emphasis on the discrepancies surfaced in the Will. Mr. Lodh, learned counsel has pointed out that the corrections made in the Will without initials and there is overwriting in mentioning the date by the scribe who is an Advocate. Mr. Lodh, also has found some contradictions in the depositions of the scribe, namely, Smt. Paushali Dutta and one of the attesting witnesses who deposed as DW-3 and DW-2 respectively. Mr. Lodh, learned counsel also has drawn our attention to the court witness no.1 (CW-1) who after perusal of the pasting sheets maintained in the office of the Sub-Registrar, Sadar deposed that there were some corrections made in the original Will without any initials. Mr. Lodh, learned counsel has tried to persuade this court to substantiate his contention 9 that there is enough ground to suspect the very genus of the Will that the testator i.e. Gita Rani Majumder had not mentioned in her Will about the pathway for egress and ingress to go out and to enter into the building, which stands over the land not being the part of the Will property. Further, according to learned counsel for the respondents, no prudent person will execute such a Will where there would be no pathway for egress and ingress. Furthermore, there is no mention of the tin-roof hut situated over the vacant space of the land which includes the land of the Will property. 11.1 To justify his submission about the suspicious circumstances, Mr. Lodh, learned counsel has placed reliance upon the decision of the Hon‟ble Supreme Court in H. Venkatachaya Iyengar Vrs. B. N.Thimmajamma & Ors., reported in AIR 1958 SC 443: 1958 STPL 2048 SC.
11.2 Mr. Lodh, learned counsel also relied upon the following decisions:
i. G. Sekar Vrs. Geetha & Ors., (2009) 6 SCC 99: 2009 STPL 8338 SC;
ii. Jarnail Singh & Anr. Vrs. Bhagwanti (D). THR. LRS.
& Ors., (2019) 17 SCC 704: 2018 STPL 12377 SC;
iii. Iswar Deo Narain Singh Vrs. Kamla Devi & Ors., reported in AIR 1954 SC 280: 1953 STPL 328 SC.
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12. Findings of the trial court:-
12.1. We have perused the judgment passed by learned trial court decreeing the suit of the plaintiff. After minute perusal of the findings of the learned trial court, it is noticed that the learned trial court has taken note of discrepancies in the statements of the attesting witnesses when DW-3, Dr. Judhisthir Das stated that he and his wife put their signatures in the evening of 06.11.2010 where in his examination-in-chief the said attesting witness deposed that in his presence the testator had put her signature on the disputed Will and on the very same day i.e. on 06.11.2010 the disputed Will was presented before the Sub-Registrar, Sadar for registration. 12.2. On perusal of examination-in-chief of DW-2 i.e. the scribe/draftsman, learned trial Judge found that in her examination-in-chief she stated that on 06.11.2010 the testator at her Melarmath residence as well as the attesting witnesses had signed the Will, whereas in her cross- examination she made a statement, which according to learned trial Judge, was a direct contradiction with her examination-in-chief when she deposed that the signature of the executrix and the attesting witnesses were taken in her presence at the court complex. In view of such difference in the statements of the scribe i.e. the draftsman (DW-2) and the attesting witness (DW-3), learned trial Judge had doubted the integrity of the Will. According 11 to learned trial Judge, the statements of DW-2 that he put their signatures in the evening had led him to suspect the genuinity of the execution of the Will. Learned trial Judge questioned himself that "if it is signed in the evening then how it has been presented before the Sub-Registrar, Sadar on the very same date of execution considering the deposition of DW.2 which reveals that on the date of the execution any instrument was allowed to be submitted last at 2 pm before the Sub-Registrar, Sadar". 12.3. Learned trial Judge has again observed that- on perusal of the disputed Will I find that the Sub-Registrar, Sadar has registered the Will on 06.11.2010. So, if it is considered to be true then the testimonies of DW-2 and DW-3 are self-contradictory regarding the time of the execution of the same before the Sub-Registrar, Sadar. Learned trial court also observed that the Will was executed in haste. Another reason of the learned trial court to doubt the Will is that he found an overwriting beneath the signature of the draftsman i.e. Paushali Dutta, DW-2. Learned trial court also questioned why the testator i.e. Gita Rani Majumder omitted to mention the tin roof huts over the vacant land of Schedule 'D' and why the testator did not mention in the Will about the pathway for the entry and exit to and from the building which kept outside the Will property.
1212.4. We have noticed that the learned trial court in his finding had observed that the plaintiff had failed to discredit the testimony of DW-3 that the testator at the time of execution of the Will was in sound disposition of mind. He observed that-"though it has been established from the pleadings of both the parties that the testator was physically ill prior to the execution of the Will but this evidence is not sufficient enough to establish the plea that she was not in sound mental disposition at the time of execution of the Will in absence of any cogent and reliable evidence adduced by the plaintiff. Thus, so far as the fact of plea of unfitness of the testator on health ground is concerned, I find that this plea has not been substantiated by the plaintiff by adducing sufficient evidence." However, on the following grounds, the learned trial Judge decreed the suit in favour of the plaintiff:-
(i) Not proving the signature of the testator by the
propounders on the disputed Will.
(ii) No explanation of the overwriting made in the date
appearing below the signature of the draftsman in the original Will and the absence of any date in the pasting paper of the disputed Will in the Volume Book maintained in the office of the Sub- Registrar, Sadar.
(iii) No correction of the overwriting of the date in the pasting papers made in the original Will.
(iv) Suppression of the fact of the presence of the propounders of the disputed Will at the time of its execution by the attesting witness and the draftsman. 13
(v) Place of the execution of the disputed Will by the testator and the place of putting signatures by the draftsman and the attesting witnesses.
(vi) Time of the execution of the disputed Will, whether morning or evening.
(vii) Non-examination of the actual scribe of the disputed Will i.e. the person who has actually typed the Will in Bengali language in the computer.
13. Having given due considerations to the above findings of the learned trial Judge as well as submissions rendered by learned counsels appearing for the parties, we have re-appreciated the evidence and materials on record. We have read the entire contents of the Will which was written in Bengali versions. It is clearly written in the Will that the testator Gita Rani Majumder had desired to devolve her entire property in favour of her two sons i.e. the defendants herein. She also had assigned reasons as to why she did not want to give her daughter any share of the land of Schedule-„A‟, however, in the Will she has specifically mentioned that she was executing the Will in question for a land measuring 0.0340 acres out of her total land of 0.0600 acres. She also has mentioned the boundary. The testator has also kept a pathway having 4‟ (four feet) width. As we have observed in the preceding paragraphs that from the very Will it comes to fore that Gita Rani Majumder had herself presented the Will to the office of the Sub-Registrar. From the remarks of the Sub-Registrar in the Will, it becomes apparent that 14 Smt. Gita Rani Majumder had admitted the execution of the Will. So, we find no reason to suspect the execution and registration of the Will. The settled law in this regard is that documentary evidence will prevail over the oral evidence. We have kept in mind that the Will was executed on 06.11.2010 and the witnesses i.e. DW-2 and DW-3 adduced evidence in the year 2018 and 2019. In that situation, in the opinion of this court, the time and place where the testator had put her signature and the attesting witnesses had put their signatures should not come in the way in appreciating the total intention of the testator surfaced in the Will itself. The court has called CW-1 to examine the genuinity of the Will. CW-1 Tania Roy being authorized by Sub-Registrar appeared and adduced evidence. By way of producing the concerned Volume Book she admitted that there were some corrections and there were no initials who corrected the Will. It is, in the context of the case, in our opinion, these mistakes should not weaken the very veracity and genuinity of the Will. After going through her evidence, it comes to fore that she stated that -"the original copy of the pasting produced by me today in connection with Deed No.III-399 of the year 2010 is found to be similar and same with the original copy of the said deed on comparison and production. There is nothing to suggest that the original copy of the deed bearing No.III-399 of the year 2010 is not the same and 15 similar with original copy pasting by me from the office of Sub-Registrar, Sadar."
14. These minor mistakes, according to us, are not of much significance to generate suspicion about the genuinity of the Will. The attesting witness, Judhisthir Das has specifically stated in his evidence that he and his wife had a cordial relation with testator and she often used to visit to his house and shared daily happiness and sorrows. During her lifetime, Gita Rani Majumder expressed her willingness to register a Will in favour of her two sons for a portion of land measuring 0.0600 and requested him and his wife Smt. Bani Saha to be present as attesting witnesses of the Will. He has specifically stated that the testator informed him that the learned Advocate had drafted and prepared the Will as per her versions bequeathing 0.0340 acres of land out of her total land measuring 0.0600 acres. Accordingly, the learned Advocate produced the Will before the said Gita Rani Majumder and after going through the contents, the testator Gita Rani Majumder being satisfied that those were written as per her versions, put her signatures in the said Will in presence of him, his wife Smt. Bani Saha and learned Advocate Smt. Paushali Dutta and thereafter, he and his wife put their signatures as attesting witnesses to the said Will and the learned Advocate also put his signature in the said Will.
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15. From the above statements of the attesting witness, in our opinion, the essential requirements of Section 68 of the Evidence Act are wholly fulfilled. The learned trial Judge also came to the conclusion that the plaintiff had miserably failed to establish her claim that at the time of execution of the Will her mother was not in a fit state of mind. There is no evidence at all that the beneficiaries of the Will i.e. the propounders had taken the active part in the execution and registration of the Will, which is one of the suspicious circumstances as held in the case of Ayengar (supra). Furthermore, if the propounders i.e. the defendants had any intention to manipulate the mind of their mother, i.e. the testator, then, they could easily influence their mother to execute the Will for the entire land the testator owned at the time of execution of the Will. Mr. Lodh, learned counsel for the appellant has drawn our attention that DW-1, one of the defendants, has stated in his cross-examination that he was present at the time of execution of the Will and that is the proof of his taking active role in execution of the Will. We are afraid of such proposition. Mere presence of a beneficiary of the Will cannot be said that he had coerced or influenced the testator.
16. In the case of Pentakota Satyanarayana (supra), the Hon‟ble Supreme Court held thus: (SCC.p.82,83, para 25) 17 "25.It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Ors, (2005) 2 SCC 784. In the said case, it has been held that the onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case."
17. From the body of the Will, it has come to our notice that the Sub-Registrar, Sadar has endorsed the presentation of the Will by late Gita Rani Majumder. It is clearly written that "Presented for Registration at 12 A.M. on the 6th Nov. day at the Sadar Sub-Registry office by Smt. Gita Rani Majumder". The testator Gita Rani Majumder also put her signature beneath the said endorsement. Again, the Sub-Registrar endorsed at the last page of the Will that the testator admitted the execution of the Will (Exbt.-„C‟) and under the stamp and seal it is clearly written that "Execution is admitted by 18 Smt. Gita Rani Majumer ..." and, thereafter, the Sub-Registrar put his signature thereon dated 6/11/2010.
18. More importantly, Section 68 of the Evidence Act and Section 63(c) of the Indian Succession Act, 1925 do not contemplate or suggest that the contents of the Will must be proved by examination of the scribe. On conjoint reading of the above provisions, the law in this regard is very clear that the Will can be proved only by an attesting witness, and this is mandate as given in Section 68 of the Indian Evidence Act, if the attesting witnesses are alive. Where the material statements of the attesting witness indicate that the Will was signed by the testator in his presence and he put his signature at the direction of the testator, in our opinion, the provisions of Section 63(c) of the Indian Succession Act are complied with. That apart, when it is found from the body of the Will that the testator had admitted before the Sub-Registrar or his agent to have signed the Will with full knowledge of the contents and the Will has been proved by at least one attesting witness, then, it will give rise to be a strong evidence that the Will is valid and enforceable.
Another significant aspect to be kept in mind that where the witnesses are examined after a considerable period from the date of emergence of the Will, contradictions in the testimony of the witnesses are 19 not un-natural and bound to come. Such contradictions shall have to be ignored.
19. Next, we have taken into account the submissions of learned counsel for the respondent that beneath the signature of the draftsman there is overwriting on the date. After perusal of the evidence of the draftsman, DW-2, we find that on being noticed she confirmed that she put her signature in the said Will on 06.11.2010 which is also supported by DW-3 and CW-1[Court witness].
20. Situated thus, we have found sufficient grounds to interfere with the judgment passed by the learned trial court. Accordingly, it is interfered, and the Will dated 06.11.2010 is restored. The judgment and decree of the learned trial court cancelling and declaring the Will No. III- 399 as void stands set aside and quashed. However, the plaintiff, Smt. Manju Rani Paul will be entitled to a decree of partition relating to the land described in Schedule-„D‟ i.e. the land measuring 0.260 alongwith the defendants in equal shares. Thus, the appeal is allowed.
21. Prepare the decree in terms of the above.
Send down the LCRs along with the decree.
JUDGE JUDGE sanjay