Gauhati High Court
Tarakeswar Majumdar vs Banshilal Gupta & Anr on 11 March, 2016
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
Intest Case No.11 of 2002
Tarakeswar Mazumdar
... ... ... Appellant
-Versus-
Banshilal Gupta & another
... ... ... Respondents.
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the appellant : Mr. P. K. Kalita, Advocate.
For the respondents : Mr. K. Sarma, Advocate.
Date of hearing : 16.02.2016.
Date of Judgment : 11-03-2016
JUDGMENT AND ORDER (CAV)
1. Heard Mr. P. K. Kalita, learned counsel for the appellant. Also heard Mr. K. Sarma, learned counsel representing the respondents.
2. This appeal, filed under Section 299 of the Indian Succession Act, 1925, has been preferred against the judgment and order Intest. Case 11/2002 Page 1 of 15 dated 22.03.2002 passed by the Court of Additional District Judge, Dhubri in Title Suit (Probate) No.3/2000 rejecting the application filed by the appellant praying for probate of the Will executed by Benilal Halawai.
3. The brief factual matrix of the case, as apparent from the record, is that Benilal Halawai was the owner of a plot of land measuring 5¾ lechas together with a two storied building standing thereupon covered by Dag No.371 of Patta No.220 (new)/315 (old) of Ward No.V of Dhubri Municipality. Benilal Halawai, during his lifetime, had executed a Will bequeathing the aforesaid property to his daughter-in-law Smti. Rajkumari Gupta who is the wife of the elder son of the testator, viz. Bharat Lal Gupta. The aforesaid Will was written on 24.12.1991 and executed by the testator on 27.12.1991. Dr. Rajkumar Mahato, the Chief Medical and Health Officer, Dhubri Civil Hospital had examined the testator and thereafter, issued a certificate dated 27.12.1991 certifying his sound health condition. The aforesaid Will bears the signature of two attesting witnesses, whereby the appellant, namely, Sri Tarakeswar Majumdar had been appointed as the executor of the Will.
4. While seeking probate in respect of the aforesaid Will, the petitioner i.e. the executor of the Will had stated that the Testator viz., Benilal Halawai, who died on 07.07.1992 at Dhubri Town leaving behind his two sons i.e. Sri Bharatlal Gupta and Sri Banshilal Gupta Intest. Case 11/2002 Page 2 of 15 and widow Smti. Debi Shah as the surviving legal heirs, had other immoveable properties which were inherited by the other legal heirs.
5. On receipt of the notices in connection with the aforesaid proceeding, two of the legal heirs of the Testator viz. Banshilal Gupta and Smti. Debi Shah had entered appearance and contested the suit by filing joint objection. One of the grounds on which they had resisted the grant of probate was that the Testator did not have any right to bequeath the Schedule-A property in favour of Smti. Rajkumari Gupta on account of the fact that his son Banshilal Gupta and Debi Shah i.e. the respondent Nos. 1 and 2 had earlier filed Title Suit No. 47/1989 in the Court of Civil Judge (Junior Division) No.1, Dhubri against the Testator and his elder son Bharatlal Gupta inter-alia praying for a decree of declaration; partition and a decree of injunction concerning the immoveable properties mentioned therein which also included the Schedule-A property. In the said Title Suit, a separate application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, being registered as Misc.(J) Case No. 37/1989, was also filed wherein an order of temporary injunction had been issued restraining the Testator from alienating the property in favour of Bharatlal Gupta or to any other person. The aforesaid order of temporary injunction remained in force till 07.07.1992. The respondents contended that since the Will had been purportedly executed by the testator on 24.10.1991 during the Intest. Case 11/2002 Page 3 of 15 time when the order of injunction was in force. Hence, the same , having been executed in violation of the order of temporary injunction, is non-est in the eye of law and liable to be declared so. It is also the case of the respondents/OPs that the Will dated 24.12.1991 was obtained by the beneficiary, namely, Smti. Rajkumari Gupta, by practicing fraud upon the Testator and under suspicious circumstances having a vitiating effect on the said document. As such, the prayer for grant of probate was liable to be rejected.
6. On the basis of the pleadings of the parties, the following five issues were framed by the Court below for trial.
"1. Whether the petition is maintainable?
2. Whether the Testator has got right to execute the Will in favour of Smti. Rajkumari Gupta?
3. Whether the Will was manufactured fraudulently in the interest of Sri Tarakeswar Majumdar, the petitioner?
4. Whether the petitioner is entitled to get probate?
5. Whether the petitioner is entitled to get any relief under the law and equity?"
7. During the course of trial the appellant/petitioner had examined himself and 7 other witnesses in support of his case whereas the contesting respondents/opposite parties had examined only the respondent/OP No. 2, viz, Banshilal Gupta as the sole witness. After hearing the learned counsels for the parties and on the basis of the materials available on record the learned Court below had dismissed the application for grant of probate by Intest. Case 11/2002 Page 4 of 15 holding that the Will allegedly executed by Benilal Halawi was not a genuine one since the signature of Testator appearing in the Will (Ext-2) did not match with the signature of the said person appearing in the written statement filed on behalf of Testator in connection with Title Suit No.47/1989 in the Court of Civil Judge (Junior Division) No.1, Dhubri.
8. The other ground on which the learned trial Court had rejected the application for grant of probate is that since the value of the property sought to be bequeathed by the Will (Ext-2) was nearly Rs.72,000/- hence, the Will in question was compulsorily registrable. Considering the fact that the office of the Sub-Registrar in Dhubri Town was at a "stones throw" distance from the residence of the testator and since no ground has been cited for non- registration of the Will, the learned Court below was of the opinion that the execution of the Will is not above suspicion and hence, held the same to be not genuine in the eye of law holding the Will itself to be inadmissible evidence. On the basis of such findings the learned Court below had decided the Issue Nos. 1, 2, 3 and 4 against the appellant/petitioner and in favour of the respondents/OPs. Consequently, the petition seeking probate of the Will came to be dismissed by the Court below. It would, however, be pertinent to mention herein that while rendering the impugned judgment and order, the learned trial Court had rejected the contention made by the respondents/OPs to the effect that the Will Intest. Case 11/2002 Page 5 of 15 had been executed in violation of the order of temporary injunction and for that reason was a nullity in the eye of law by holding that the respondents/OPs have failed to substantiate the said argument by producing a copy of the order of injunction on record.
9. Assailing the impugned judgment and order passed by the Court below, Mr. P. K. Kalita, learned counsel for the appellant, submits that the learned trial Court had rejected the claim of the appellant/executor for grant of probate on the basis of visual comparison of the signature of the Testator appearing in the Will with that appearing in the written statement filed in connection with Title Suit No.47/1989. Mr. Kalita submits that the learned Court below had committed manifest illegality in failing to consider the fact that the Will in question was executed by Benilal Halawai whereas the signature appearing in the written statement was that of Benilal Gupta.
10. Mr. Kalita further submits that the evidence available on record would not only go to show that the appellant/petitioner has succeeded in leading sufficient evidence to prove and establish the due execution of the Will but has also succeeded in showing that the Will was executed by the testator Benilal Halawai in a sound state of health and mind after understanding the contents thereof. In the above context, Mr. Kalita submits that PW-3 has Intest. Case 11/2002 Page 6 of 15 testified that the Will was written on 24.12.1991 but not signed on that day. That apart, PW-1 i.e. Dr. Rajkumar Mahato has not only proved the fact that the Testator was of sound health and mental condition on 27.12.1991 when he was examined by the doctor at his chamber but has also led evidence to prove that the testator had affixed his signature in the Will in his presence on 27.12.1991. The evidence adduced by PW-2, the executor, read with the testimony of the other witnesses examined by the plaintiff, according to the learned counsel, conclusively goes to show that the Will in question was duly executed by the testator Benilal Halawai . He submits that the petitioner having succeeded in proving and establishing the aforesaid facts by leading cogent evidence on record the learned Court below had erred in rejecting the prayer for grant of probate.
11. The learned counsel for the appellant further submits that the examination of one of the attesting witnesses is sufficient to prove the execution of the Will and that the onus to dispel the existence of any suspicious circumstance surrounding the execution of the Will has been discharged by the propounder in the instant case. Therefore, the present is a fit case where the appeal should be allowed by this court. In support of his aforementioned arguments, Mr. Kalita has relied upon following authorities i.e. (2012) 4 SCC 387 [Mahesh Kumar (dead) by LRS. vs. Vinod Kumar and others], (2010) 5 SCC 274 [S.R.Srinivasa and others vs. S. Padmavathamma] and 2005 (4) GLT [Durlabh Chandra Bhattacharjee vs. Atul Barthakur]. Intest. Case 11/2002 Page 7 of 15
12. Resisting the aforementioned arguments made on behalf of the appellant, Sri Kanak Sarma, learned counsel appearing for the respondents has forcefully argued that the burden of proof to satisfy the Court regarding the absence of any suspicious circumstance would always lie upon the propounder. In the instant case, the Court below has taken note of the inconsistency in the evidences adduced by the petitioner regarding the actual date of execution of the will wherein it has been mentioned that the Will had been executed on 24.12.1991 whereas the main witness PW -1 in his testimony has stated that the testator had put his signature in the Will on 27.12.1991. The learned counsel submits that none of the attesting witnesses has proved the fact that the testator had signed the Will in his presence after being read out the contents of the Will. Mr. Sarma submits that the mutually contradictory version of the witnesses regarding the date of execution of the will coupled with other circumstances noted in the order had rightly raised a suspicion in the mind of the Court regarding the genuineness of the Will. Considering the nature of the evidence lead by the appellant/petitioner giving multiple version regarding the date of execution of the Will and having regard to the observations made by the Court below pointing at other suspicious circumstances surrounding the execution of the Will, the court below had rightly rejected the prayer made by the appellant for grant of probate . Intest. Case 11/2002 Page 8 of 15
13. Mr. Sharma further submits that having regard to the evidence available on record, there is no scope for this court to allow the present appeal by setting aside the judgment and order passed by the trial court. The learned counsel therefore, submits that the present is a fit case where the prayer for grant of probate deserves to be rejected by this Court. In support of his aforementioned arguments, Mr. Sarma has relied upon two judgments of this Court reported in 1997 (1) GLT 360 [Smt. Manjushree Chakravorty and others vs. BImalendu Das] and 2001 (1) GLT 467 [Radheshyam Mandal vs. Ram Dulal Mandal].
14. I have considered the submissions made by the learned counsels for the parties and have also perused the materials available on record.
15. Law is well settled that in order to succeed in a petition seeking grant of probate of a Will, the onus lies upon the propounder to prove and establish due execution of the will as well as its genuineness by leading cogent evidence on record. The existence of any suspicious circumstance surrounding the execution of the Will also has to be dispelled by the propounder to the satisfaction of the court. Therefore, the core questions that would arise for consideration by this Court in the present proceeding is as to whether the appellant/petitioner has Intest. Case 11/2002 Page 9 of 15 succeeded in adducing sufficient evidence on record to prove and establish the due execution and also the genuineness of the Will ?
16. From the evidence available on record it can be seen that one of the attesting witnesses was the PW-1 who was the Physician of the Testator. In his deposition the PW-1 had stated that he had examined the testator on 27.12.1991 in his chamber and had issued a certificate Ext-1 certifying the sound health and mental condition of the testator after medically examining him at his chamber . The Pw-1 had also testified that he had attested the signature of the Testator affixed on the will on 27-12-1991. The PW-1 had proved the signatures of the Testator as Exts- 2(1) (2) and (3) as well as his own signature affixed on the will as Exts- 2 (4)(5) and (6). During cross- examination, the PW-1 had denied the suggestion that "Beninal" (i.e. the Testator) had not signed the will before him. There is nothing on record to dislodge the aforesaid testimony of the PW-1.
17. The PW-2 i.e. the executor had deposed that the will was written in his presence on 24-12-1991 by the clerk Bhuban Barua at the residence of the Testator. He further deposed that on being read over by the scribe, the Testator had understood and confirmed the contents thereof. The said witness also proved the signatures of the Testator as Ext- 2(1) (2) and (3) affixed on the will as well as his own signature as Ext-2(7). Therefore, the Pws 1 and 2 being the two attesting witnesses had given consistent version Intest. Case 11/2002 Page 10 of 15 regarding the due execution of the will, which could not be shaken during their cross-examination. The witnesses PWs 3 and 4 being the tenants in respect of the demised property have also unequivocally supported the case of the appellant. PW- 3 Ramesh Dhanowar, has also confirmed the fact that the Will was written on 24.12.1991 but the same was not signed on that day.
18. From a meticulous scrutiny of the evidence available on record, What, therefore, crystallizes is that the appellant had succeeded in establishing that the Testator had affixed his signature on the will on 27-12-1991 in the chamber of PW-1 in sound health and mental conditionafter having understood the contents thereof. In other words, the propounder had succeeded in establishing by leading cogent evidence that the will was written on 24-12-1991 but finally executed on 27-12-1991 in presence of witnesses which was signed by the Testator Benilal Halwai after being satisfied with its contents on being read over by the scribe. It has also been brought on record by the appellant that the beneficiary, Rajkumari Gupta was the daughter-in-law of the Testator who had taken good care of him during his the old age. The evidence on record also indicates that being satisfied with the services rendered by his daughter-in-law, the Testator had bequeathed the said property by executing the will. Therefore, the intention of the Testator also cannot be doubted in this case. Intest. Case 11/2002 Page 11 of 15
19. As has been discussed above, the propounder has succeeded in showing that there is no ambiguity as regards the date of execution of the will. The evidence on record leaves no manner of doubt that the due execution of the will had been proved as per the requirement of section 68 of the Indian Evidence Act, 1872. In the absence of any material on record to indicate the existence of any suspicious circumstance surrounding the execution of the Will, the genuineness of the will cannot also be doubted. Since, the respondents have alleged fraud on the part of the beneficiary in securing the execution, it was incumbent upon them to prove and establish the same by leading cogent evidence which they have failed to do in the instant case. As such, the argument made by Mr. Sarma, learned counsel appearing for the respondents, that the appellant has failed to prove the genuineness of the Will does not merit acceptance by this Court.
20. While rendering the impugned judgment and order the learned trial Court had held that the Will was a document which was compulsorily registerable. However, a bare perusal of the provisions of the Registration Act, 1908 and more particularly Section 18 (e) of the Act, would go to show that registration of a Will is optional. In the case of Ishwardeo Narain Singh V Kamta Devi reported in AIR 1954 SC 280, the Apex Court had observed that -
"there is nothing in law which requires the registration of a Will and Wills are in a majority of cases not registered at all. To Intest. Case 11/2002 Page 12 of 15 draw any inference against genuineness of the Will on the ground of its non-registration appears to be wholly unwarranted "
In the aforesaid decision the Apex court had further observed that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question as to whether a particular bequest is good or bad is not within the purview of the probate court. As such, it is evident that the very basis of the inference drawn by the learned Court below to the effect that the Will is a document which is compulsorily registerable is found to be wholly erroneous. Hence, the opinion expressed by the Court below regarding existence of suspicious circumstances on account of non-registration of the Will is also held to be completely misconceived warranting rejection by this Court.
21. Coming to the next question regarding the visual comparison of signature made by the trial Court so as to reject the claim of genuineness of the Will, it may be noted herein that the Will in question had been admittedly and evidently executed by Benilal Halawai whereas the person impleaded in Title Suit No. 47/1989 was Benilal Gupta. Even assuming that both the names belonged to the same person, yet, what is noteworthy is that while the testator of the Intest. Case 11/2002 Page 13 of 15 Will had signed the same as "Benilal Halawai", the defendant in the aforesaid Title Suit had put his signature in the written statement as "Benilal Gupta". Naturally, therefore, even if both the signatures belonged to the same person, yet, both of these signatures had made different representations, insofar as the name of the person is concerned. As such, it is obvious that the signatures marked as Exts- 2(1), 2(2) and 2(3) affixed as Benilal Halawai in the "Will" would be different from the signatures marked as Exts-Gha (6), Gha (7) and Gha(9) appearing in the written statement filed in Title Suit No. 47/1989 affixed by "Benilal Gupta". The aforesaid position also stands established from the testimony of PW-8, an Advocate by profession, who had identified the signature of Benilal Gupta.
22. There can be no doubt about the fact that Section 73 of the Evidence Act empowers the Court to make a visual comparison of the signatures appearing in a document with that of an admitted signature of a person so as to arrive at a satisfaction as to the genuineness of the said signature. However, in the instant case, the basis on which the comparison had been made by the learned trial Court, on the face of it, appears to be completely erroneous and hence, does not deserve commendation by this Court.
23. As regards the plea taken by the respondents regarding execution of the will in violation of the order of Temporary Injunction issued by the civil court, as noted above, since the respondents/OPs have not preferred any appeal against the finding recorded by the Intest. Case 11/2002 Page 14 of 15 learned trial Court rejecting the same, such finding has attained finality in the eye of law and need not be gone into by this court in the absence of any challenge made on that behalf by the respondents..
24. For the reasons and discussions recorded herein before, this Court is of the view that the appellant i.e. the propounder of the will has succeeded in proving and establishing the due execution of the will bereft of any suspicious circumstance centering around its execution. In view of the evidence available on record, there is no legally justifiable ground for this court to reject the prayer for grant of a probate. This court is, therefore, of the considered opinion that the learned Court below was not correct in dismissing the probate case filed by the appellant/ executor in the facts and circumstances of the case.
In the result, the impugned judgment and order passed by the learned trial Court stands set aside. The will in question stands probated in favour of the propounder. The appeal stands allowed in terms of the observations made herein above.
No order as to cost.
Send back the LCR.
JUDGE T U Choudhury Intest. Case 11/2002 Page 15 of 15