Tripura High Court
Sri Samarjit Kr. Majumder vs Sri Debabrata Majumder on 10 February, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 17
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
RSA. No. 40 of 2018
1. Sri Samarjit Kr. Majumder, son of late Barada Kanta
Majumder, resident of Gangail Road (behind Rest House),
Town Bardowali, Agartala, P.O. Agartala, P.S. West
Agartala, District: Tripura West, PIN-799003.
.....Defendant No.4-Appellant
-V E R S U S-
1. Sri Debabrata Majumder, son of late Ranjit Kr. Majumder,
***as per Hon'ble Court's order dated 29.01.2019 passed
in connected I.A. No. 01 of 2019, the present address of
the respondent No.1 is incorporated in the cause title as
follows:
Presently residing at Banglow-8, Road No.5, Riverside Township, Barnpur, District: Bardhaman, West Bengal, Pin-713325 ..... Plaintiff-respondent
2. Smt. Minati Majumder, wife of late Dilip Kumar Majumder,
3. Sri Subrata Majumder, son of late Dilip Kumar Majumder,
4. Smt. Manidipa Majumder, daughter of late Dilip Kumar Majumder All are residents of Gangail Road (behind Rest House), Town Bardowali, P.O. Agartala, District: Tripura West, Pin-799001.
5. Sri Ajit Kumar Majumder, son of late Baroda Kanta Majumder,
6. Sri Sujit Kumar Majumder, son of late Baroda Kanta Majumder Both residents of Gangail Road (behind Rest House), Town Bardowali, P.O. Agartala, District: Tripura West, Pin-799001.
7. Smt. Jyotsna Deb Majumder, wife of late Ranjit Kumar Majumder, Page 2 of 17
8. Smt. Ratnadeepa Majumder, wife of Sri Dilip Majumder, daughter of late Ranjit Kumar Majumder, Both residents of Chandralaya Apartment, Flat No.4, Srirampur, North Road, Garia, Kolkata-84, West Bengal [***as per Hon'ble Court's order dated 15.05.2019, passed in connected I.A. No.02 of 2019, the address of the respondent Nos.7 and 8 are inserted in the following way:
Presently residing at C/O Sri Dilip Kr. Majumder, 2nd Floor, SHIVAM APARTMENT, 100, BRIJEE, West Road, Garia, Kolkata-70084, West Bengal]
9. Smt. Niharkana Majumder (Baidya) wife of late Rabindra Baidya, P.O. & P.S. Hriswamukh, Belonia, District: South Tripura,
10. Smt. Latika Majumder (Baidya), wife of Harihar Baidya, Opp. To Belonia Hospital, P.O. & P.S. Belonia, District South Tripura.
.....Defendant Nos. 2, 3, & 5-8 respondents.
B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD For Appellant(s) : Mr. D. R. Chowdhury, Sr. Advocate.
Mr. D. Deb, Advocate.
For Respondent(s) : Mr. T. D. Majumder, Sr. Advocate.
Mr. S. Bhattacharjee, Advocate.
Mr. T. Halam, Advocate.
Date of hearing : 04.02.2022
Date of delivery of
judgment and order : 10.02.2022
Whether fit for reporting : YES/NO
JUDGMENT & ORDER
Heard Mr. D. R. Chowdhury, learned senior counsel assisted by Mr. D. Deb, learned counsel appearing for the appellant. Also heard Mr. T. D. Majumder, learned senior counsel assisted by Mr. T. Halam, learned counsel and Mr. S. Bhattacharjee, learned counsel appearing for the respondents.
Page 3 of 17[2] This is an appeal under Section 100 of the CPC against the judgment and decree dated 30.07.2018 passed by the learned Additional District Judge, Court No.2, West Tripura, Agartala in connection with the case No. Title Appeal No. 18 of 2017 allowing the appeal of the appellant- plaintiff by modification partly setting aside the judgment and decree dated 20.02.2017 passed by the learned Civil Judge, Senior Division, Court No.2, Wet Tripura, Agartala in case No. T.S. (P) 150 of 2012 granting partition of the suit land in 1/8th share except the land of the WILL (Exbt.C) bequeathed to the defendant No.4, the appellant herein by his mother. At the time of admitting the appeal, the following substantial question of law was formulated by this Court:
"Whether the finding that the execution of Will is full of doubt and visited with suspicious circumstances is testament and the evidence as led by the beneficiary?"
[3] The facts that would essentially be required for appreciating the substantial questions of law may be introduced at the beginning. Sri Debabrata Majumder, the respondent herein has instituted a suit for partition and declaration of right, title and interest in respect of their respective equal shares which they are entitled to. He has claimed that he defendant No.4, the appellant herein, has undertaken a construction work whereby, the huts where he along with his family members used to reside have been totally guarded creating serious obstructions to their ingress and egress to go out of their hut and also to enter into their hut. He has further claimed that the appellant has no right to undertake any fresh construction works without the suit land being partitioned in equal shares amongst the co-sharers. As such, he has prayed to remove/demolish the building which the appellant, the defendant-4 has constructed during the pendency of the suit by way of granting mandatory injunction. After hearing the parties, vide judgment & decree dated 09.02.2018, the learned Appellate Court allowed the appeal and dismissed the suit observing as under:
Page 4 of 17"The plaintiff and the defendants to the suit are directed to make amicable partition of the suit land as mentioned above within two months from the date of this judgment. If the parties to the suit fail to make partition of the suit land amicably as indicated above, each party to the suit shall be at liberty to approach the Court for partition by metes and bounds with the help of Survey Commissioner to be appointed by the competent court, with a prayer for passing final decree.
Accordingly, the judgment and decree dated 20.02.2017 and 08.03.2017 respectively passed by the learned Civil Judge (Sr.) Division, Court No.2, Agartala, West Tripura in connection with T.S.(P) 150 of 2012 is hereby set aside and the instant appeal filed by the plaintiff-appellant is allowed.
The instant appeal is thus disposed of."
[4] It reveals from record that when the plaintiff has instituted the suit, he had no knowledge of any WILL executed by his grandmother in favour of the defendant No.4, the appellant herein and has came to learn about the fact of the WILL after going through the contents of the written statement filed by the appellant which led the plaintiff to file an application for amendment wherein the plaintiff has challenged the genuineness of the WILL and he has prayed for declaring the said WILL void ab initio.
[5] The factual matrix which are evident from the plaintiff, the respondent herein, are that one Barada Kanta Majumder, the grandfather of the plaintiff was the original owner of the suit land measuring 19 gandas, 3 karas and 2 krantas described in detail in the schedule of the plaint. Lt. Barada Kanta Majumder has left behind his wife Smt. Subhasini Majumder and five sons. The plaintiff has stated in the plaint as well as in the examination-in-chief that before filing of the suit for partition there were several attempts to partition the suit land amicably but, all attempts failed and that invited the cause of action of the present suit. He has further stated that Lt. Subhasini Majumder who was bed ridden was in a state of precarious health and for that it was impossible for her to execute any WILL. It has been further stated that his grandmother was literate lady and Page 5 of 17 was able to read and write when she was in good health. So he has prayed for declaring the said WILL as void ab initio.
[6] During his cross-examination, the plaintiff has denied the fact of execution of WILL as his grandmother lost total memory power in her last 5/6 years till her death. In his evidence, he has stated that despite order of injunction passed by the learned trial Court the defendant No.4, the appellant has constructed a building which is totally obstructing their free ingress and egress as aforestated. No consent was taken by the defendant No.4 not only from him but also from the other evidence. He has further stated that there was/is no permission taken from the Agartala Municipal Council and the building was constructed in utter disregard to the municipal rules and is liable to be demolished by way of granting mandatory injunction.
[7] During cross-examination, he has denied that his grandmother used to visit the market frequently and she was physically and mentally fit till her death. The appellant has filed his written statement and stated that he has no objection to the partition of the suit land in equal shares but he is entitled to the share of his mother Lt. Subhasini Majumder, who according to him, during her life has executed a WILL dated 16.07.1997. He has admitted that the construction of the building in his share of land including the share of his mother. He has pleaded that the WILL is genuine and there are attesting witnesses also. He has categorically pleaded that the plaintiff's suit for partition and declaration of right, title and interest, confirmation of possession and permanent injunction as well as mandatory injunction is totally misconceived and is without any basis of law.
[8] The defendant Nos. 1(a), 1(b), 1(c), 2, 3, 7 and 8 by filing their joint written statement specifically admitted the maintainability and cause of action of the suit. In their pleading they have stated that Lt. Subhasini Majumder, lost her memory totally since 5/6 years before her Page 6 of 17 death and she was completely unfit physically and mentally. They also have stated that several initiatives were taken to partition the suit land amicably but yielding no result. The plaintiff-respondent has deposed before the trial Court and also cross-examined as stated above. He has supported his case made in the plaint and he has denied the execution of the WILL dated 16.07.1997.
[9] In the cross-examination he has stated that "it is also not a fact that she was physically and mentally fit till her death, after the death of her husband." It is not a fact that she used to visit the market frequently." From his evidence, it is clear that there is no dispute in regard to the title of the original owner, Lt. Baroda Kanda Majumder and of the legal heirs of Lt. Baroda Kanta Majumder are entitled to get their respective shares. He in his evidence has stated that taking the advantage of their absence the defendant No.4, the appellant herein illegally started construction on the vacant space despite his serious objection. He has relied upon the documents submitted by the appellant which are marked as Exbt. A, B and C, namely, (i) Original Death Certificate of Lt. Subhashini Majumder (Exbt.A), (ii) Original Survival Certificate of Lt. Subhashini Majumder (Exbt.B), (III) Original registered WILL vide No. III-199 dated 16.07.1997 (Exbt.B), (iv) Signature of DW2 in the WILL (Exbt.C/1), (v) Signature of DW3 in the WILL (Exbt. C/2), (vi) Signature of DW6 in the WILL (Exbt.C/3) and (vii) Original ration card in the name of Samarjit Majumder & Others (Exbt.D).
[10] The defendant No.4, the appellant herein in his examination in chief has deposed that he is the son of Lt. Barada Kanta Majumder. He has stated that his father Lt. Barada Kanta Majumder was the absolute owner of the suit land who died on 28.12.1970 without making any partition of the suit land amoung his legal heirs and after the death of his father, his mother Subhashini Majumder stayed with him till her death i.e. up to Page 7 of 17 28.12.1998. He also stated that hit mother Lt. Subhashini Majumder being one of the co-sharers of the property left behind by his father, executed a WILL (Exbt.C) for her share in his favour on being satisfied with his service. The learned trial court did not discuss anything about the statement of DW-1 which he made during his cross-examination.
[11] A very important and significant aspect has come out in his statement that the executants of the WILL never gave any thumb impression during her life time, whereas the WILL dated 16.07.1997 reveals that the testatrix Subhashini Majumder has put her thumb impression on the said WILL (Exbt.C). The said statement made by the defendant No.4 himself arises suspicious circumstances in the due execution of the WILL. He has denied the fact that his mother was almost blind during the fag end of her life but in his cross-examination he has admitted that he received show cause notice from the Agartala Municipal Council in connection with the sanction of plan of the building. He has admitted that he did not receive the sanction plan from the AMC for construction of building. He has further admitted the fact that the suit land was not portioned amongst the co-sharers of the suit land.
[12] DW-2, Pabitra Chandra Datta, one of the attesting witnesses of the WILL deposed that he put his signature in the WILL executed by the mother of the appellant in the year 1997. He identified his signature in the WILL marked as Exbt. C/1. He has stated that he put his signature after registration of the.
[13] The said DW-2 is one of the attesting witnesses and it is very strange and surprising that he being the attesting witness has put his signature in the deed after registration of the WILL. Another important aspect has come out from his evidence that he has supported the claim of the plaintiff that the moment the defendant, the appellant undertaken construction works, the appellant approached the learned court with a Page 8 of 17 prayer for grant of temporary injunction and also with a petition for police help. The learned court very reasonably has passed the order restraining the plaintiff-respondent from undertaking any construction works.
[14] DW-3, Dhirendra Debnath, another attesting witness of the WILL (Exbt.C) in his examination in chief has stated that on 16.07.1997 he put his signature as attesting witness. It was executed in favour of the defendant-appellant by his mother. The said witness during his cross examination has stated that he does not know the number of share holders in the partition suit he has stated that he put his signature on the last page and he also could not say the page number of the WILL. He has specifically stated that the maker put her signature on the WILL first and then he put his signature. Later on, the witness has stated that the maker gave thumb impression in the WILL. He has categorically stated that he did not go through the sheets of the WILL.
[15] DW-4, Sishir Das stated in his examination in chief that in the first quarter of the year 1997 the mother of the appellant expressed that she wanted to execute a WILL in favour of the appellant bequeathing her share in the suit land. In his cross-examination he has stated that he could not say when the will was executed but he has stated that it could have been executed. He has stated that 5 years back the appellant undertook construction works. This Statement is not supported by any of the witnesses including DW-1 himself. It was constructing the building illegally.
[16] DW-5 Somesh Debbarma is the witness of the office of Sub- Registrar and he has stated that he has no personal knowledge about the execution of the WILL. Importantly, the said witness has stated that he did not even receive the thumb impression of Subhashini Majumder. It also raises a suspicious circumstance in the due execution of the WILL (Exbt.C).
Page 9 of 17[17] DW-6, Narayan Paul, is the deed writer of the WILL and he has stated that the attesting witnesses put their signatures in the said WILL and he wrote the WILL as per the dictation of the maker Lt. Subhashini Majumder. He has further stated that at the time of registration, Lt. Subhashini Majumder appeared before the Sub-Registrar but, during his cross-examination he has stated that he does not know the quantum of share of Lt Subhashini Majumder though the WILL was written as per dictation of the maker.
[18] DW-7, Sujit Kumar Majumder, is one of the sons of Lt. Barada Kanta Majumder. He has stated that the said land was not divided and demarcated. The health condition of his mother was very bad before 2 years of her death. He has further stated that Lt Subhashini Majumder lost her mental balance and also absent mindedness and loss of memory prior to the making of the WILL. The precarious condition of her health was extended up to five years of her death. His mother was literate and she was able to write her signature. He has made a specific statement that his mother never put her thumb impression during her life time. The said statement has received support from the statement of DW-1. He has stated that his brother, the appellant herein, constructed the building for which the jut of the latest brother i.e., father of the plaintiff-respondent has badly been affected by ingress and egress. He has further stated that no consent was taken from them before construction of the pucca building by the appellant herein. He also stated that he had never seen any deed writer to visit their house for writing the WILL.
[19] DW-7, Sujit Kumar Majumder, in his examination-in-chief has deposed that all the witnesses and the signatories in the deed of WILL are the relatives and friends of the appellant and neither his family members nor the local people of the places where they reside are the witnesses to the said WILL dated 16.07.1997. he has further stated that Lt.
Page 10 of 17Subhashini Majumder was a literate lady and she could write her name both in English and Bengali. But, in the WILL it is found that his mother put her thumb impressions which itself proves that the said WILL is a false and fabricated one.
[20] DW-8, Smt Minati Majumder also supported the statements of DW-7. Mentionably, Minati Majumder is the eldest daughter in law of Lt. Subhashini Majumder who is the wife of Lt. Dilip Kumar Majumder.
[21] From the above discussion it reveals that all the defendants and their witnesses have stated including the defendant No.4, the appellant herein that their mother in law was literate and she could write both in English and Bengali. The entire notion of pleadings and evidence of defendant No.4, the appellant and his witnesses i.e. Des 2, 3, 4 and 5, till her last breath she was physically fit and was in full state of mind and reasons of understanding which was controverted by DWs-7 and 8 who are one of the sons and daughter in law of the Lt. Subhashini Majumder that since 5/6 years before her death she was suffering from total imbalance of mind and was almost blind.
[22] It is very noticeably that the appellant who has deposed who has deposed as DW-1 in whose favour the WILL was made, has himself stated that his mother never gave thumb impression during her life time and she was a regular reader of religious books of Sr. Sri Swarupananda Maharaj. But, it is not explained in his evidence why his mother put thumb impression on the body of the WILL i.e. Exbt. C. This fact also has been supported by DWs-7 and 8. DW-3 has stated that Lt. Subhashini Majumder put her signature in the WILL at the first instance, later on; he has stated that the maker gave thumb impression in the WILL. This type of answer definitely casts a doubt in the mind of this Court and according to this Court the said witness is not at all credible and thus this evidence is bereft of any merit about the execution of the WILL.
Page 11 of 17[23] In the light of the aforesaid evidence and discussion, this Court is constrained to find that the very execution of the WILL is doubtful.
[24] Another important aspect which is necessary to be discussed is that DW-3 has stated that he could not participate at the time of execution of the WILL at house of the appellant as he was out of station. He has further stated that probably before "Durga Puja" of 1997 the testatrix went to him and handed over the registered WILL to him to keep it in the safe custody with a request that after her death the said WILL might be handed over to the executor of the said WILL, namely, Pabitra Chandra Dutta who is the known to this witness. Said Pabitra Chandra Dutta in his evidence has never stated that the WILL was handed over to him at any point of time by said DW-3. Further, it has been revealed that they have suppressed the execution of the alleged WILL. According to them, the WILL was executed in the year 1997 but, till the filing of the written statement neither, the appellant nor any of the witnesses ever divulged the existence of the said WILL to any of the legal heirs of Subhashini Majumder. This has raised a serious doubt about the genuinity of the WILL.
[25] The question falls for consideration, had the WILL been executed in the year 1997 why it was not executed after a reasonable period of the death of the testatrix, there is no explanation by way of pleadings or in the written statement filed by the appellant.
[26] I have perused the pleadings of the appellant. He has nowhere stated when and how the WILL was registered and the place where the testatrix and the attesting witnesses have put their signatures. In my opinion, the propounder, i.e. the appellant should make a clear statement as to how he gained the knowledge of the WILL, when and how. In my considered opinion, such requirements are not a mere formality and in Page 12 of 17 absence of such averments and evidence, it is very difficult to believe the genuineness of the WILL even if it is a registered WILL.
[27] It is also noticed that when it was a definite case of the appellant that the testatrix was physically and mentally fit then it is not understood why she put her thumb impression in the WILL. The propounder has failed to discharge his burden that under what circumstances she had to put her thumb impression instead of signature in the WILL. It also raises serious suspicious circumstances to the genuine execution of the WILL. The appellant is totally silent who brought the testatrix to the office of the Sub-Registrar.
[28] In view of the above discussion, I hold that the execution of the WILL is full of doubt and suspicious circumstances have not been removed by the appellant. Hence, the WILL is required to be declared null and void. Accordingly, I declare that said WILL dated 16.07.1997 void ab initio and as cancelled. The proper entry be made in the office of the Sub- Registrar, in view of this judgment. Accordingly, the issue whether the appellant entitled to get the share of his mother by virtue of the registered WILL bearing No. III-199 is decided against the appellant.
[29] The next point required to be decided is whether the construction done by the appellant during the pendency of the suit is required to be demolished by way of granting a mandatory injunction. It is found that the appellant has himself admitted that he has undertaken construction works which is also support by his brother in law as well as DWs7 and 8.
[30] The defendant No.4, the appellant herein, in his evidence has clearly stated that on 09.10.2012 and 10.10.2012 police from the West Agartala P.S. visited his house. They also visited the house on 12.10.2012 and restrained him from undertaking any further construction works. In his Page 13 of 17 cross-examination he has stated that there was no sanction plan from the Agartala Municipal Council. The defendant Nos.7 and 8, the respondents herein, have stated that despite the instruction of police and as well as in violation of the order of temporary injunction he has undertaken the construction works which is totally blocked the ingress and egress of the plaintiff-appellant and his other family members.
[31] This Court may gainfully refer a decision in Sant Ram Nagina Ram vs. Daya Ram Nagina Ram, reported in AIR 1961 PUNJAB 528, wherein, the Division Bench while dealing with the question of demolition of a structure illegally built on a land jointly possessed by all the co-sharers has laid the following principle (para-77, 78, 79 & 80):
"77. From the consideration of the decisions of different High Courts on the subject, it is evident that apart from some cases which are distinguishable as having been decided on their own peculiar facts, there is an obvious conflict! which cannot be reconciled.
78. The weight of the authorities and the principles which have been discussed above, give rise to the following propositions -
(1) A co-Owner has an interest in the whole property and also in every parcel of it.
(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-
owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
Page 14 of 17(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.
(8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition Or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.
(9) Where a portion of the joint property is, by common consent of the co- owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered.
79. This is a case which attracts the application of proposition No. 4. From what has been stated above, the question referred by the learned Single Judge will be answered as follows:
"If, in spite of protests by one co-owner, another co-owner raises a building on a portion of joint land, not exceeding his own share therein, the aggrieved co-owner cannot obtain a decree for demolition of that building without proving special damage or substantial injury to him unless the other co-owner who has raised the building has done so by asserting an exclusive title in himself and by denying that of the other co- owners."
80. As the entire case is before this Bench for decision, I am of the view that, as the defendants had openly denied co-ownership and had asserted their exclusive title on the false plea of previous partition and had continued to raise the structure despite the protestations of the plaintiff, and in disregard of the temporary injunction issued, the decree passed by the trial Court for demolition of the structure and restraining the defendants from making any structure thereon in future, is manifestly just."
[32] It is an admitted position that the land has not been partitioned and there is no demarcation of the shares of the co-owners of the land in question by way of metes and bounds. So the construction which has illegally been made over the un-partitioned land it is to be declared illegal. Accordingly, this Court grant a decree of mandatory injunction asking the defendant No.4, the appellant to demolish the construction he has undertaken over the un-partitioned land and restore the land in its original Page 15 of 17 position which was vacant in front of the hut of the plaintiff, the appellant herein.
[33] In support of the case of the respondent, Mr. S. Bhattacharjee, learned counsel has relied upon a case in Raj Kumar and Others vs. Surinder Pal Sharma [Manu/SC/1840/2019] at paragraph-28 of the judgment, the Hon'ble Apex Court has held thus:
"28. The Will which purportedly makes the bequest, is oddly described as a Will Deed. This possibly explains why Surinder Pal Sharma had claimed in his reply, that he was the owner of the tenement even during the lifetime of the mother Suhagwanti. It is in this context that we have read the different portions of the testimony of Raj Kumari and Surinder Pal Sharma; the notice and the reply to hold that there exists grave doubt whether the "Will Deed" was executed and is a "Will" as it purports to be. The marriage of Veena Malhotra as per her wish is not challenged. The testator was an illiterate lady. Even if we are to accept signatures of the testator and the witnesses, we cannot ignore "other evidence" that Suhagwanti and her family members did not understand the true nature of the document executed. There are substantial and good reasons to legitimately suspect and question execution of the Will, which Surinder Pal Sharma, as the propounder of the Will, has not been able to repel and remove so as to satisfy this Court that the Will was validly executed. For these reasons, we would hold that execution of the Will has not been proved by "other evidence" in terms of Section 71 of the Evidence Act."
[34] This Court constrained to observe that it is the duty of the learned trial Judge to discuss all evidences and materials on record but, I find that the learned trial court did not disclose the evidence at all in detail and there is clear evidence of non-application of mind by the learned trial court. At present, Subhashini Majumder is no more in this world and since during her life time no partition was taken place her share will be distributed amongst the surviving legal heirs of Barad kanta Majumder.
[35] It is pertinent to discuss here that the WILL is registered in the year 1997 and it came into light only in 2012 when the suit has been Page 16 of 17 filed by the appellant, the defendant No.-4. He has filed the written statement and at that point of time, the fact of existence of this WILL has been informed. The secrecy of the WILL (witnesses) is the interested witnesses of the beneficiary i.e. the defendant No.4 who is the appellant herein. The very existence of the WILL is suspicious and the appellant has not proved the execution of the WILL beyond reasonable doubt and it always remains as a suspicion. Many witnesses were examined on behalf of the defendant who supported the case of the plaintiff.
[36] In the light of the above weightage as given holding that the WILL is suspicious and the appellant cannot have the benefit of the WILL. The WILL which has been executed in the year 1997 came into light in the year 2012 itself creates a suspicion. It is reasonably presume that if a WILL is executed and immediately after the demise of the testatrix the said WILL came into light without any delay, it is also hard to believe that when the testators is having huge family of sons and daughter in laws, there was no logical reason to maintain a secrecy about the WILL with the family members and not obtain their signature as witnesses to the WILL by the testatrix.
[37] It is a settled legal proposition that as a rule, relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. Ordinarily, the reliefs are drawn on the basis of pleadings. Even in some cases, on the basis of pleadings the court can mould the reliefs. But the foundation of such relief must have its anchor in the pleadings. It is always the creditor who has final call in the matter, unless contrary of law and is provided by lawful agreement. Having observed thus, the impugned judgment passed in TA No. 18 of 2017 dated 30.07.2018 by the learned Additional District Judge, Court No.2, West Tripura, Agartala needs no interference whatsoever.
Page 17 of 17[38] Having appraised the records afresh, this Court is of the view that there is no infirmity in the findings arrived at by the learned Additional District Judge, Court No.2, West Tripura, Agartala in TA No. 18 of 2017 dated 30.07.2018 and hence, this Court affirmed the finding of the learned Addl. District Judge. Accordingly, the appeal being RSA. No. 40 of 2018 stands dismissed.
[39] Draw the decree accordingly and send down the LCRs thereafter.
JUDGE A.Ghosh