Gauhati High Court
Ramendra Shah vs Shew Ram Shan And Ors on 26 February, 2015
Equivalent citations: AIR 2015 GAUHATI 80, (2015) 4 CIVLJ 579, (2015) 3 CURCC 457, (2015) 149 ALLINDCAS 712 (GAU), (2015) 2 GAU LR 477
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: Intest.Cas. 3/2005
1. Shri Ramendra Shah,
S/o Ram Swaran Shah,
R/o Bidyapara, Ward No. 10,
Dhubri Town,
P.S. & Dist- Dhubri, Assam.
...... Appellant
-Versus-
1. Shri Shew Ram Shah,
2. Sri Raja Ram Shah,
3. Sri Debendra Shah,
All are sons of Late Ram Swaran Shah,
Vill- Kanakpura, P.O: Sohnariya,
District- Deoriya
4. Sri Muniya Shah Gaur
5. Sri Laxman Shah Gaur
6. Sri Shankar Shah Gaur
7. Sri Ashok Shah Gaur
8. Sri Jagannath Shah Gaur
All are sons of Late Ram Naresh Shah Gaur,
Resident of Dhubri Town,
AMCO Road, Railgumti,
P.O: AMCO Road, Dhubri,
Dist- Dhubri, Assam.
...... Respondents
Page 1 of 13
Intest.Cas. 3/2005
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Appellant : Mr. A Dasgupta
Sr. Advocate
Mr. A Kundu
Advocates
For the Respondents : None appears
Date of Hearing : 26.02.2015
Date of delivery of
Judgment and Order : 26.02.2015
JUDGMENT AND ORDER (ORAL )
By this appeal, common judgment passed by learned District Judge, Dhubri in miscellaneous Probate case being T.S.(P) No. 18/1999 and T.S. (P) No. 19/1999 has been challenged by the unsuccessful party saying that the learned Probate Court committed error in allowing probate in favour of the applicant in T.S.(P) No. 19/1999 and rejecting the prayer of the applicant in T.S. (P) No. 18/1999.
2. The appellant herein, as petitioner, filed an application under Section 276 of the Indian Succession Act, 1925 before the learned District Judge at Dhubri on 20.12.1993 stating that the property described in Schedule A and B to the petitioner originally belong to one Murti Devi Shah who died on 01.01.1993 without leaving any son or daughter. She during her life time had executed a registered Will being No. 2813 dated 26.06.1986 in favour of the petitioner bequeathing the schedule properties in his favour. The testatrix was survived by as many as 8 (eight) near relatives name of whom were furnished in paragraph 7 of the application. It was claimed that there was no other Will or letters of administration left by the testatrix and so necessary order need be Page 2 of 13 Intest.Cas. 3/2005 passed for granting probate in favour of the petitioner. The case was registered as Misc. (P) Case No. 213/1993 and notices were issued not only to the near relatives but also to the general citations whereupon opposite parties No. 4 to 8 herein appeared and submitted written objection. In paragraph 6 of the objection, it was stated that Will was never the last Will and testament of Murti Devi Shah and that one annexed to the petition is forged and manufactured for the purpose of application. Rather, it was stated that the testatrix was all along living with her only brother Ram Naresh Shah and his family in the Railway Lease Hold Waste Land at Dhubri town which stood in her name. She was looked after by the opposite parties till she died. Petitioner was a resident of Bihar and he came to Dhubri and settled there after matrimonial tie with a Muslim woman and was residing at Bidyapara. He never visited the deceased and also deceased never visited the petitioner. She, before her death on 01.01.1993, was leaving with the opposite parties and funeral ceremony and Shraddha was performed by the opposite parties. Long before her death, she executed a Will on 02.12.1992 being in sound and good health in favour of the objector, namely, Smti. Munia Devi Shah and already another application registered as Misc. (P) Case No. 33/1994 was pending in respect of probate by that Will. In paragraph 13, it was specifically claimed that in view of the last Will of the deceased testator on 02.12.1992, the probate proceeding has become void ab-initio. With these prayers, the opposite parties claimed that the proceeding be dismissed.
3. In the mean time the opposite party No. 4 in Misc. (P) Case No. 213/1993, had instituted another application under section 276 of the Indian Succession Act and the same was registered as Misc. (P) Case No. 33/1994 of the same court. In this case it was the stand taken by the petitioner therein that Munia Shah being owner of the schedule land died in her own house on 01.01.1993 and she executed the Will dated 02.12.1992 cancelling her previous Will and Codicils. The testatrix had no issue and her husband had died long ago. The testatrix was survived by 8 near relatives mentioned in paragraph 4 of this application. It was prayed in this application that probate of the Will dated Page 3 of 13 Intest.Cas. 3/2005 02.12.1992 be granted in favour of Munia Devi Shah. Petitioner in Misc. (P) Case No. 213/1993 appeared in this proceeding as respondent No. 5 and submitted written objection stating that the latter Will was forged and manufactured to gain over the property left by the deceased. It was stated that during December, 1992 when Dhubri town was under promulgation of curfew, the petitioner Munia Devi and others wanted to get signature of the deceased on a Will prepared by one Shankar Mohuri but the deceased denied to put thumb impression on the Will. It was stated that the objector opposite party No. 5 was none other than the son of brother of the husband of the testatrix. With these objections, the opposite party No. 5 prayed that the probate proceeding be dismissed.
4. Having found that both the probate proceedings were in relation to the same property and in relation to Wills executed by the same person, the learned trial court took up both the suits together and asked the parties to lead evidence. The suits in the mean time were re-numbered. While Misc. (P) Case No. 213/1993 upon being converted in the form of a suit was renumbered as T.S.(P) No. 18/1999, the Misc. Probate application in Case No. 33/1994 on the face of contention was converted into T.S. (P) No. 19/1999. The learned trial court framed issues in both the cases separately and they are quoted below:-
Issues framed in T.S. (P) Case No. 18/1999:-
i) Is the Will-in-question is genuine and was duly executed by the testator, Murti Devi Shah?
ii) Whether the correct valuation of the property is shown?
iii) Is the petitioner entitled to the probate together with any other relief as may be fit and proper?
Addl. Issue:
iv) Whether the Will in question is the last Will and testament of Late Murti Devi Shah?
Issues framed in T.S. (P) Case No. 19/1999:-
i) Whether the Will in question is a forged and manufactured one as alleged by the O.P?Page 4 of 13 Intest.Cas. 3/2005
ii) Whether the petitioner is entitled to get probate?
iii) What relief, if any, the parties are entitled?
5. Although the suits were tried analogously because of similarity in characters and identity of title and issue, both the parties led evidence separately. In T.S.(P) No. 18/1999, petitioner Ramendra Shah therein examined as many as 8 witnesses and opposite party No. 4, Munia Devi Shah examined one witness. Similarly, in T.S.(P) No. 19/1999 petitioner Munia Devi Shah examined as many as 3 witnesses. Opposite party No. 5, Ramendra Shah did not lead any evidence in this case. After considering the materials available on record, the learned trial court by judgment and order dated 29.09.2004 accepted the contention that unregistered Will dated 02.12.1992 was the last testament of the testatrix and that it was not attended by any suspicious circumstances. Having found that the Will was executed by the testatrix being in sound and disposing state of mind, the learned trial court allowed T.S.(P) No. 19/1999 and dismissed the prayer for probate in T.S.(P) No. 18/1999.
6. I have heard Mr. A Dasgupta, learned senior counsel assisted by Mr. A Kundu for the appellant. None appears for the respondents, although names have been disclosed in the cause list.
7. By the common judgment the learned District Judge has disposed of two suits where different Wills were brought in question. While T.S.(P) No. 18/1999 arose out a registered Will dated26.06.1986, T.S.(P) No. 19/1999 was in relation to probate prayer with respect to an unregistered Will dated 02.12.1992. The Will dated 02.12.1992 apparently being the last Will and testament in question, that part of the judgment is taken first for the purpose of consideration. This is because if it is found that the alleged last Will was not forged or manufactured as objected and that it was not attended by suspicious circumstances and that the testatrix was in sound and disposing state of mind, in that event the previously executed Will shall automatically pale into Page 5 of 13 Intest.Cas. 3/2005 insignificance. Because, the last Will will erase the earlier bequest by its own way.
8. Mr. A Dasgupta, learned senior counsel for the appellant argues that the Will dated 02.12.1992 was never executed by the testatrix. It is a forged and manufactured one. Mr. Dasgupta would argue that the opposite party No. 5 in T.S.(P) No. 19/1999 is a relative of the testatrix whereas the beneficiary petitioner is only a tenant and so this is a suspicious circumstance in this case. According to Mr. Dasgupta, the earlier Will executed on 26.06.1986 was a registered one but the latter one on 02.12.1992 even if executed being unregistered one, there is scope for having suspicion about its correctness or otherwise. According to him, the testatrix knew that she had executed a Will earlier and got it registered. Under such circumstances, it was natural on her part to get the last Will registered if the Will had at all been executed. Non registration of the alleged latter Will is a pointer to the fact that it was created subsequent to death of the testatrix. In this connection, he called attention of this Court to paragraph 4 of the written statement wherein it was stated that during December, 1992 while Dhubri town was under promulgation of curfew then petitioner of T.S. (P) No. 19/1999 and her sons had tried to obtain thumb impression of the testatrix on a Will prepared by one Shankar mohuri but the deceased had denied to put her thumb impression on the said Will. In paragraph 3 of the objection the objector has specifically stated that the Will was forged and manufactured and prepared after the death of deceased Munia Devi Shah with mala fide intention to get over the property left by her. These two are the suspicious circumstances according to Mr. Dasgupta and so the impugned judgment and decree is liable to be set aside and cost. The suspicious circumstances as argued by Mr. Dasgupta did not find place in the pleadings of the parties. In paragraphs 3 and 4, the objectionist took two grounds. While in paragraph 3 it has been stated that the Will is forged and manufactured, in paragraph 4 it is stated that there was an abortive attempt of getting signature of the testatrix on a Will in December, 1992 taking opportunity of the curfew clamped over the town. Strangely, after having Page 6 of 13 Intest.Cas. 3/2005 pleaded so, the objectionist did not enter into the witness box to say a word about the allegation stated in the application. On the other hand, the petitioner in the present case examined 3 (three) witnesses. PW 1, Satyabrata Dubey, is a attesting witness. He stated that nephew of the testatrix was Laxman Shah and he had called the witness to the house of the testatrix. Having coming to the place he found that already Advocate Sanjib Kumar Sur, Dr. Balaram Basak, Devi Dutt Agarwalla and Raj Kumar Roy were sitting there. Advocate Sur read out the Will written in English and then explained it in Bengali to each one present. Munia Devi Shah, the testatrix was in sound health at that time thereafter she gave her thumb impression on the Will. Advocate Sajib Sur gave his signature thereafter which was followed by the signature of PW 1. PW 1 proved the Will as Ext. 1 and Ext. 1(1) as his signature. The objectionist did not thoroughly cross examine this witness. Only three questions were put to him. He replied to the first question that Munia Devi Shah's nephew Laxman Shah called him. He denied the suggestion that he did not see anybody sitting there and he signed the Ext. 1 Will sitting in his own house. He also denied the third suggestion that PW 1 deposed falsely being friend of Laxman Shah. No question was put to this witness about abortive attempt of the petitioner Munia Devi or her sons to get any other Will during curfew time in December, 1992. No suggestion was made to him that Will was not signed by the testatrix and that it was subsequently manufactured. The thumb impression Ext. 1 was also not challenged to be subsequently obtained by impersonation or otherwise. The statement of PW 1, therefore, that testatrix signed on Ext. 1 after being read it over to her followed by signature of Advocate Sanjib Sur and by PW 1 thereafter remains uncontroverted.
9. PW 2 is Dr. Balaram Basak. He corroborated PW 1 saying that he knew the testatrix as his patient. Before her death he was called and he was aware about the execution of the Will. Some of the relatives of the testatrix called him to the place where Advocate Sanjib Sur and some other persons were sitting. Munia Devi Shah was sitting there in sound health. After the Will was prepared, Munia Devi Shah gave her signature and then Advocate Sanjib Sur gave his signature. Thereafter he gave his own signature as Ext. 1(3). He stated that Page 7 of 13 Intest.Cas. 3/2005 Murti Devi Shah is now dead and she died about thirteen months after the execution of the Will. The Will was written in English but it was explained in Bengali because she knew Bengali. In course of cross examination, he replied that he knew the testatrix 10/12 years before the Will was executed in connection with treatment. He issued prescriptions to her. In reply to suggestion, he denied that signature 1(3) was given sitting in his own chambers and not in presence of the testatrix. He could not recollect the name of the relation of the testatrix who had called him to the place where the Will was executed. No question was put to this witness also challenging the truthfulness or otherwise of the thumb impression of the testatrix on Ext. 1 Will. Only suggestion was given to him is that he did not give signature in presence of the testatrix. His statement as to presence of Advocate Sanjib Sur and reading out of Will and explaining it in Bengali followed by execution by testatrix, went uncontroverted and unchallenged.
10. PW 3 is Sanjib Sur, Advocate, who deposed on oath that he prepared the Ext. 1 Will in his own chamber as per advice of the testatrix. It was thereafter typed and then on 02.12.1992 he went to the house of the testatrix at A.M. Co. Road in Dhubri town in Railway Gumti. Thereafter Ext. 1 Will was executed. Dr. Balaram Basak was present there. Satyabrata Dubey and other persons were also present there at the time of execution. He claimed to have explained it in Bengali to testatrix whereafter she gave her thumb impression. He thereafter endorsed thumb impression which are Ext. 1(4) and 1(5). Ext. 1(6) signature was given thereafter by him. The objectionist did not subject this witness to prolonged cross examination. He was asked as to how did he know the testatrix to which he replied that he came to know the testatrix only after she had come to his chambers. He denied the suggestion that testatrix never visited his chamber. He also denied the suggestion that Laxman Shah did not call him. He stated that after preparing the Will he did not take signature of others before taking signatures of testatrix. Exts. 1(4) and 1(5) endorsement were given after thumb impression of testatrix was given. He denied the suggestion that the Will was forged.
Page 8 of 13 Intest.Cas. 3/200511. On totality of the consideration of the evidence led by the petitioner's side in T.S. (P) No. 19/1999, it is clear that at least two attesting witnesses came to the dock and volunteered to depose that the Will was prepared by one Sanjib Sur, Advocate in English. He explained the contents in Bengali to the testatrix who was acquainted with the language. Then the testatrix gave her signature on Ext. 1. PW 3, Sanjib Sur, Advocate, endorsed signature and gave his signature thereafter. This was followed by signature of PW 1, Satyabrata Dubey and Dr. Balaram Basak. Thus, at least one attesting witness, namely, Satyabrata Dubey unhesitatingly deposed that the testatrix had executed the Will. There being insufficient cross examination of this witness, the deposition made by him in course of examination in chief remained intact and unshaken.
12. The Will is a solemn document of a person the veracity of which is considered subsequent to death of the author. Since it is a document, its proof has to be made like any other document. Under section 63 of the Indian Succession Act, 1925, a Will has to be attested at least by two witnesses. Section 68 of the Evidence Act requires that the document which by law is required to be attested, would not be admissible in evidence unless at least one such attesting witness is not examined provided he is alive. Irrespective of whether execution of the Will is admitted or denied, such requirement of examination of attesting witnesses continues to hold the field. In the case of H.Venkatachala Iyengar v. B.N.Thimmajamma and others (AIR 1959 SC 443), Supreme Court has laid down the propositions in paragraph 18 and 19 as to how a Will has to be proved. Paragraph 18 and 19 of this judgment are quoted below:
"18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to Page 9 of 13 Intest.Cas. 3/2005 be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed Page 10 of 13 Intest.Cas. 3/2005 testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
In view of the aforesaid law laid down by the Hon'ble Supreme Court and considering the evidence led by the parties as aforesaid, it is clear that the attesting witness having been examined and the witness having claimed that testatrix had executed the Will being in sound health, the burden of proof of the propounder has definitely been discharged. Once the propounder discharges his burden to prove execution of a Will being in sound and disposing state of mind, it is the burden of the objector to establish that suspicious circumstances still remain present around the alleged act of execution of the Will. The objector has to make allegation in the pleading that there is suspicious circumstance. Initial burden will be on the objector to make out a prima facie case of suspicious circumstance and in that event it will be duty of the propounder to expel all iota of suspicion by leading appropriate evidence. What are the suspicious circumstances attending the execution of the Will dated 02.12.1992? In paragraph 3 of the written statement, objectionist took a bald stand. It was claimed that the Will was forged and manufactured after death of the testatrix. In paragraph 4 of the written statement it was claimed that in December, 1992 when there was curfew in Dhubri town, the same propounder and her son had attempted to take signature of the testatrix on a Will prepared by Shankar mohuri but the attempt was aborted as the testatrix did not give her signature. As the objectionist did not lead any evidence in this respect the Page 11 of 13 Intest.Cas. 3/2005 mere pleadings as to a specific incident falls through. It cannot be said that any prima facie case has been made out to show that there are suspicious circumstances attending execution of Will dated 02.12.1992. Considering the evidence led by the 3 (three) witnesses of the petitioner and upon perusal of Ext. 1 Will, the learned trial court arrived at a definite finding that Will was duly proved. The persons who claimed to have been present at the time of execution of the Will were cross examined. The court must have observed their demeanour and body language. The privilege of the trial court in observing their body language and demeanour is of utmost importance from the time memorial. Even in the ancient days in India and abroad, the judges had to place reliance upon body language and demeanour to decipher the truth. In the Manu Smriti, there is a proposition for giving importance to the body language and expressions of the witnesses. If any reference is necessary one can take recourse to verse 26 of Chapter VIII of the Manusmriti which goes as follow:
आकारै �रं �गतैगत्या चे�ायाभा�षतेन च नेत्रबक्त्र�वकार�तेहन्गर्त मनः।
(The feeling lying in the mind of the witness has to be understood by studying his body language, exchequer, style of dialogue, change of colour of eyes and face etc.) This being the position, the trial court has always an edge in appreciating evidence over the appellate court. The appellate court, therefore, not having the benefit of observing the body language and demeanour of the witness must be slow in interfering with the findings of fact arrived at by the trial court unless glaring contradictions and deviation are pointed out. Keeping this standard in mind it is required to be seen as to whether in the present case any such glaring contradiction in appreciation of evidence is discernible. As discussed above, at least two attesting witnesses came to the dock. They spoke in no uncertain language that the Will was prepared by PW 3 in English. It was explained to the testatrix in Bengali, the language she was acquainted with. Thereafter on being satisfied, she gave her thumb impression on the document and the Advocate, Sanjib Sur (PW 3) endorsed her signature and authenticated Page 12 of 13 Intest.Cas. 3/2005 such endorsement by giving his signature on the body of the Will. Once two attesting witnesses including the house physician of the testatrix deposed that she subscribed to the Will being in sound and disposing state of mind and the learned trial court having satisfied itself as to the correctness of these witnesses having observed their demeanours and body languages, the learned senior counsel appearing for the appellant could not point out any glaring discrepancy to the contrary. Rather, the objectionist having stayed away from the witness box and not having said a word after having raised an objection that Will was never executed, natural presumption goes against the objectionist.
13. In view of what has been stated above, there is no scope to interfere with the findings of fact of the trial court. The appeal fails. It is, accordingly, dismissed.
14. No order as to costs.
15. Interim order, if any, shall stand vacated.
JUDGE BiswaS Page 13 of 13 Intest.Cas. 3/2005