Jharkhand High Court
Unknown vs Dr. Sudha Sinha on 10 March, 2022
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No. 123 of 2012
1(i). Neelam Singh
1(ii). Mukul Anand
1(iii). Aparna
1(iv). Abhilasha
1(v). Anuradha .... .... Appellants
Versus
1. Dr. Sudha Sinha
2. Smt. Shyama Devi
3. Subin Kumar
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellants : Mr. Anil Kumar Sinha, Advocates For the Respondents : M/s A.K. Das & Swati Shalini, Advocates C.A.V. ON 02.03.2022 PRONOUNCED ON 10 / 03 / 2022
1. The appellants are the heirs of O.P. No. 1 [Chandra Bhushan Singh (dead)] who have preferred the instant appeal against the order granting probate of Will executed by the testator on 27.11.1997 in favour of his daughter Dr. Sudha Sinha, with respect to 17.6 decimal of land appertaining to Society Plot No. 490 of Services Housing Cooperative Society, Ashok Nagar at Argora passed in Probate Case No. 215 of 2001/T.S. No. 02 of 2003.
2. The case of the applicant Dr. Sudha Sinha in brief is that the suit land was the self-acquired property of the testator Late Babu Amar Nath Singh who executed the Will on 27.11.1997 in presence of two witnesses namely, Dr. Ran Vijay Narayan Singh and Mrs. Meena Kumari. Later one Madhulika Akhouri also put her signature on the will on 21.01.1998. The Will along with the relevant papers were handed over by the testator to the applicant. Babu Amar Nath Singh died on 02.09.1998 leaving behind the following heirs:
i. Smt. Shyama Devi (Widow)
ii. Sri Chandra Bhushan Singh (O.P. 1)
iii. Pravin Kumar (Son)
iv. Arnima Rai (Daughter)
v. Navin Kumar Singh (Son)
vi. Subin Kumar (Son)
3. The application for probate of will was filed on 06.10.2001. It 2 is asserted that the Will was executed out of free will and in perfect health.
4. In pursuance to the general citation, O.P.1 Chandra Bhushan Singh (son) appeared and filed objection petition contesting the probate application. The case of the objector is that Late Babu Amar Nath Singh never executed any Will and the said Will is forged and fabricated as well as antedated document. Babu Amar Nath Singh on retirement from the judicial service in the year 1977 went to his native village in the district of Saidpura in the year 1978. Thereafter he came to Patna in the year 1982-83 and started practicing in Patna High Court as an Advocate. In the year 1990 he suffered severe heart attack and paralysis over right part of his body and remained confined to his bed for 7 to 8 months. Thereafter, till his death on 02.09.1998 he was not in sound state of mind to appreciate or to understand the consequence of his act and was living in his village 'Tues' from 1996 till his death. It is further asserted that Objector Chandra Bhushan Singh was taking proper care of his father and he was living with him till his death. The valuation of the property as described in the application has been disputed.
5. On the objection raised the probate application was converted into a Title Suit No. 02/2003.
6. On the basis of the pleadings of the parties, following issues have been framed by the Probate Court:
I. Is the application for probate as framed maintainable? II. Had Amarnath Singh executed the will in dispute on 27.11.1997 in favour of the petitioner?
III. Is that will date 27.11.1997 (said to have been executed by Amar Nath Singh) his last will and is it a valid and genuine document? IV. Has the aforesaid will dated 27.11.1997 executed by Amar nath Singh in accordance with law, voluntarily, out of love and affection for the petitioner?
V. Did the properties in the aforesaid will belong to Amar Nath Singh on the date of the execution of that will?
VI. Is the petitioner entitled to grant of probate with respect of the aforesaid will?
7. Defendant no.2 Subin Kumar S/o Amar Nath Singh (testator) at later stage was impleaded vide order dated 28.3.2007 passed in Civil Revision no. 9/2005.
38. Defendant no.2 has also contested the probate application on similar grounds taken by defendant no.1. It has been further averred that defendant no.1 had instituted a partition suit no. 139 /1971 in the Court of learned Sub-judge, Patna impleading the testator as one of the parties. The said partition deed ended in a compromise decree in which all the major members of the family got share in the joint family property including defendant no.1 and Dr Sudha Sinha, except defendant no.2 and his elder brother Navin Kumar Singh who were minor at that time. It is claimed that the scheduled land was joint family property was joint family property in which only defendant 2 and the applicant had share.
9. Learned court below has allowed the probate application on the following grounds:
A. P.W.1 niece of the testator and the attesting witness completed her education while living with the testator and was residing at Patna along with her husband (P.W.2) who is the doctor in NMCH, Patna. She in paragraph 3 of the cross examination has stated that the draft was prepared before her. In paragraph 4 she stated that when she reached the house the Will had already been prepared. She has identified the signature on the Will. The testimony of P.W.1 was corroborated by P.W.2. she has stated in paragraph 3 that despite the paralytic attack the testator was fit in mind and was able to read and write.
B. P.W.3 is the wife of the testator and the mother of both the parties. She has specifically stated that at the time of execution of Will the testator was in a fit state of mind. The mental state of mind has been stated to be good.
C. P.W.5 Arunima Rai is the daughter of the testator. She has brought on record Ext. 3, 4 and 5 which showed that the plaintiff was in active care and confidence of the testator.
D. Learned court has also noted that in Title Partition Suit No. 139 of 1971 a joint compromise decree was passed and legal heirs namely Subin Kumar and Navin Kumar remained in jointness with his father as they were minor at the time of the said compromise will. E. With regard to delayed attestation by Madhulika Akhouri in signing the Will on 28.01.1998, it has been noted by the learned court below that the requirement of Section 63(c) of the Indian 4 Succession Act the Will be decided by two or more simultaneously in view of the ratio decided in 1995 (2) Civil LJ 195. F. With regard to residence of the testator with the defendants, the learned court below felt that since there was matrimonial suit pending in 1997 between the applicant and her husband, therefore, the testator might have worried for her elder daughter who was caring and providing medical and other support to him.
10. The appeal has been preferred, inter alia, on the following grounds:
a. The signature of the testator on the said Will was disputed which had been sent to the expert for examination of the signature and the report was received which has been marked as Ext. E in which it has not been proved that the signature of the deceased on the WILL was that of the testator.
b. The attesting witness P.W.1 (Meena Kumari) has deposed in paragraph 4 that the Will was prepared in her presence and none of the sons of the testator has been made witness. c. The Will is unregistered.
d. P.W.2 is Dr Ran Vijay Singh has expressed ignorance about the vital facts like when Babu Amar Nath Singh got paralytic attack and when he became bed ridden, he could not recognize the signature and he cannot say whether Ext. A is the signature of Babu Amar Nath Singh or not. The date has not been written in the signature of the Will.
e. P.W. 6 is Dr Sudha Sinha has also stated regarding the earlier WILL dated 22.06.1988 (Ext2) executed by her father. She admitted in paragraph 45 that she has not filed any paper regarding the treatment of her father. In paragraph 47 she has deposed that he had heard attack in 1989 in his native village.
11. Learned counsel on behalf of the respondent has defended the impugned order. It is contended that the proceeding in a probate is limited in nature and is confined to determination of the issue whether the will was the last will duly executed by the testator in a free and sound state of mind. The question of title is beyond the purview of inquiry of a probate court. It is argued that not only both the attesting witnesses have proved the will, but also the wife of the testator and mother (PW 3) Shyama Devi, of both sides 5 have also stated that the testator had executed the last will in the fit state of mind.
Reliance has been placed on the following authorities on behalf of the respondent/applicant:
A. M.S. Bhavani v. M.S. Raghu Nandan, (2020) 5 SCC 361 This authority is on the interpretation of will regarding the intention of the testator and is not relevant to the fact of the case.
B. Ganesan v. Kalanjiam, (2020) 11 SCC 715 "The appeals raise a pure question of law with regard to the interpretation of Section 63(c) of the Act. The signature of the testator on the will is undisputed. Section 63(c) of the Succession Act requires an acknowledgment of execution by the testator followed by the attestation of the will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgment may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgment on part of the testator. Where a testator asks a person to attest his will, it is a reasonable inference that he was admitting that the will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed will, read it out to them after which they attested the will".
C. Annie M. Pichamuthu (Dr) v. Bessie Thangam Selvaraj (Dr), (1979) 4 SCC 197 at page 198.
12. At the outset it may be noted that a probate court is not competent to determine the title of schedule property. The jurisdiction of a probate court is limited to determination that the will executed by the testator was his last will. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court 6 considering a probate application. It has been held in Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357 "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 whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court".
13. A probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any. This will be evident from the fact that the chapter VI (Ss74 to 111) is devoted to the construction of WILL. But before entering into construction of a WILL it is for the Court to be satisfied about the due execution of the WILL and that it is above board. It has been held in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 "The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.
Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's 7 signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator".
14. In the present case Ext 1 and 1/1 are the signatures of testator on the will dated 27.11.97 PW1 Meena Kumari is one of the attesting witness who has proved Ext 1 to 1/5. She has deposed in her examination in chief that the testator was in a perfect state of his mind at the time of execution of the will. It has further been stated by her that the execution of the will had taken place at Patna where the testator was leaving along with his wife (PW3).
PW 2 - Dr. Ranvijay Kumar Singh the second attesting witness. It has been stated by him that the will had been executed in the presence of his wife (PW1) and he had also signed the will as attesting witness. In para 20 to 22 of his cross it has been stated by him that the testator had prepared a will in his own hand writing on 22.6.1988 in favour of the plaintiff in respect of the same property and this witness and also signed on the same as an attesting witness, and that the will dated 27.11.19 97 was prepared by the testator for the reason that the previous will had been misplaced.
The most important evidence is PW 3 (Shyama Devi) the mother of both the parties this suit. This witness has stated in para one that the testator had told her that he had executed a will in favour of the plaintiff in respect of the property in the will, and that the mental condition of the testator was absolutely fine at the time of execution of the will.
PW 5 (Arunima Rai) is the daughter of the testator and the sister of both the sides. She has also supported the applicant's application for probate.
15. Altogether seven witnesses have been examined on behalf of the O.P. 1.
DW1 (Shyama Charan Lal) is a formal witness who has only proved Ext A and A/1.
It has been stated by DW 2 (Bhola) that the testator had suffered a paralytic attack in the year 1990 and since then he was not able to walk as his right hand and leg were not functional and that he was not in a position to write since then. In para 15 of his cross he has deposed that Amar Nath Singh had not been taken to Ranchi in his presence, rather this was informed by someone else.
8DW 3 (Jitendar Kumar Pandey) is an advocate's clock who used to do Pairvi on behalf of defendant no.1.
DW 4 (Gyanendra Prasad Singh) has deposed that schedule property was in the possession of defendant number one.
DW 5 (Praveen Kumar) the full brother of the parties has deposed in para two that after the testator had suffered a heart attack and paralytic attack in the year 1990 his mental capacity had diminished and was living in his native village Teus since 1996 until his death never left the village for Patna. He has, however, admitted in paras 18 and 19 of his cross- examination that the testator used to visit Patna during the said period from 1990 to 1998.
DW 6 (Jitendra Prasad Singh) the brother-in-law (sala) of the defendant no.1 he has fully supported the defendant's case and denied that will had been instituted by testator.
DW 7 (Chandra Bhusan singh) is the defendant no.1 and the eldest brother of the applicant. He has deposed that the testator became mentally and physically invalid after he had suffered a heart attack and paralytic attack in the year 1990. It has also been deposed that he had been continuously living since 1996 in his native village and never left for Patna. The applicant's case for probate of Will has been disputed. It has however been admitted that schedule property was acquired in the name of his father.
16. Altogether five witnesses have been examined on behalf of defendant no.2 DW-1 (Subin Kumar) is the defendant no.2. He has deposed in para 2 that the schedule property was the self-acquired property of his father (testator). It has also come in his evidence that DW 5, defendant no.1, plaintiff and DW 3 had been allotted individual shares in the ancestral property and had thus separated themselves from the testator by the judgement and decree passed in Title Partition Suit no. 139/1971. He has deposed that the will was forged and fabricated document.
DW 2 (Suresh Ram) is a co-villager of defendant no.2. He has deposed that Late Amarnath Singh lived in his native village continuously for 2 to 2.5 years before his death. In para 5 he deposed that he cannot give the date of the death of the testator.
9DW 3 (Raj Kishore Prasad) is the father-in-law of the defendant no.2 he has fully supported the defence version and denied all about the execution of the will. He has however admitted in his cross examination that he was not a resident of the village Teus and failed to say that the family members his son-in-law lived.
DW 4 (Bhakti Pad Mishra) is the expert who examined the handwriting and signatures of the testator on various admitted documents as well as on the will under consideration. This expert witness has given opinion that the signatures in the red enclosed portions stamped and marked A-1 to A-4, Exts-3, 5, 5/1,5/2 and 5/3 are all written by one and the same person, and that it has not been possible to express any opinion on the red enclosed signatures stamped and marked B1 and B to (the signatures on the will under consideration). It has however been admitted in para 4 of the cross examination that he cannot just say that B1 and B2 are different from other signatures.
17. Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree. It may result in complete disposition in favour of one of the heirs of the testator or it may even be in complete exclusion of any of the heir. It is but natural that those who may stand to lose on account of it will object and contest the probate application. An onerous responsibility on the probate court lies to be on guard against any manufactured will and at the same time to remain the conscience keeper of the testator who does not remain in his mortal form before the court.
18. The due execution of a will is therefore to be proved as per the provisions of law as laid down in the Evidence Act as well as that of the Indian Succession Act. The degree of proof and appreciation of evidence is based on preponderance of probability depending on the evidence on record taken as a whole. In the present case there are overwhelming evidence and circumstances which are in proof of the due execution of the will.
Firstly, the will has been executed by the father in favour of his eldest daughter.
Secondly, the will has been proved by the attesting witnesses PW-1 &
2. Thirdly, the other witnesses who have supported the execution of the will is the mother of both the parties and wife of the testator (PW 3).
10Fourthly, Exhibit 2 is the will executed by Sri Amar Nath Singh dated 22.6.1988. This will according to the applicant's case had got misplaced and therefore could not be placed for probate. This is not the last Will but this document as well the disposition of property has also been made in favour of the plaintiff/applicant.
Fifthly, mere absence of date in the recitals of the Will in question or under the signatures of the testator, cannot be said to be a suspicious circumstance so as to cast a cloud on the due execution of the Will, when the signatures of attesting witnesses bear the date of signature. The evidence is to be appreciated in its totality and not in isolation.
Sixthly, Exhibits 5 and 5/1 which are the signatures on the bank pay in slip dated 6.8.1998 for the term deposit scheme at SBI, NMCH campus, Patna also disprove the defence case that the testator remained confined to his native village from 1996 till his death. DW 5 has also admitted in para 18 and 19 of his testimony that though he lived at Teus from 1990 to 1998, but he used to visit Patna during the said period for his treatment and for meeting his family members. Defendant no.1 DW 7 has also admitted in para 13 of his cross examination that his father drew attention all his life through his SBI account initially at Ranchi and subsequently from Patna Branch.
Seventhly, defendant no.2 (DW1) has admitted in para 16 that after 3-4 months after paralytic attack he had recovered and lived sometimes at the village and on other occasions also kept visiting Patna, Ranchi. This contradicts the appellants'/opposite parties' case that after his paralytic attack he confined to his native village and did not go to Patna where the Will was executed.
I find that there is no infirmity in the impugned order. Under the aforesaid facts, the order of probate of WILL passed by the learned Court below is affirmed.
The appeal stands dismissed with cost.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 10th March, 2022
AFR / AKT