Patna High Court
Ram Nepal Singh & Rs vs Pramila Devi & Ors on 11 October, 2012
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No. 986 of 2011
Appeal against the judgment and order, dated 28.09.2011,
passed by the 3rd Addl. District Judge, Saran at Chapra
in Probate Case No. 37 of 2004
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1. Ram Nepal Singh, son of late Braj Mohan Singh
2. Satyendra Singh
3. Satish Singh
Both sons of Ram Nepal Singh at residents of village & P.O. - Bharpura, P.S. -
Sonepur, District - Saran
.... .... Appellants
Versus
1. Pramila Devi, wife of late Ganesh Singh
2. Sweta Devi, wife of Narendra Singh, resident of village & P.O. - Bharpur, P.S.
- Sonepur, District - Saran
.... .... (Petitioners) ........... Respondent 1st Party
3. The Estate of Sirji Kuer, wife of late Ram Bahal Singh at village & P.O. -
Bharpur, P.S. - Sonepur, District - Saran
........... (Opposite 1st Party) ............ Respondent 2nd Party
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Probate Petition Valued at : Rs. 95,000/-
Appeal valued at : Rs. 95,000/-
Appearance :
For the Appellant/s : Mr. Bidhanesh Mishra, Advocate
For the Respondent/s : Mr. Ganpati Trivedi, Advocate
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
ORAL JUDGMENT
Date: 11-10-2012
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A probate case, which was registered as Probate
Case No. 37 of 2004, was filed in the court of 3rd
Additional District Judge, Saran at Chapra. Petitioners
were Pramila Devi and Sweta Devi, who wanted probate
to be granted on the deed of Will executed by one Most.
Sirji Kuer. The last Will executed by Sirji Kuer is said to
be dated 06.01.2003, which was contested by the
Patna High Court MA No.986 of 2011 dt.11-10-2012
2/6
present appellants.
Five issues were framed by the court below and
findings thereafter have been given on those five issues,
based on the evidence which came to be led, both in
favour of and against the grant of probate.
Counsel for the appellants submits that the Court
ought not to have granted the probate in favour of
Respondent Nos. 1 and 2, as Will was created under
suspicious circumstances and it was not a genuine Will.
In regard thereto, his submissions are that the age of the
Testator by itself is a give away about the genuineness
of the documents or its creation. Sirji Kuer was said to
be about 95-96 years, which is a ripe old age where a
person making the Will cannot be expected to be of
sound health or mind, having freedom of decision
making, not tainted by any coercion or influence upon
the Testator.
The second attack in support of the above fact is
that one of the witness to the Will, who signed was not
part of the family, but lives good three kilometers away
from the house where Sirji Kuer was living and that also
creates certain doubt about the authenticity of this
witness or the person who signed as a witness to the
Will. Some contradiction has also emerged on the issue
Patna High Court MA No.986 of 2011 dt.11-10-2012
3/6
whether Sirji Kuer put her thumb impression or signature
on the Will, because P.W. 3 made a statement that after
the Will was drawn up Sirji Kuer had signed on the Will,
but the fact is that there is thumb impression and no
signature.
Another submission is with regard to P.W. 4,
whose correctness has been challenged on the ground
that there is some kind of enmity between the parties so
his evidence ought not to have been seriously taken into
consideration because he was an interested witness.
Yet another argument made to assail the order in
question is that section 71 of Indian Succession Act,
1925 comes into play in this case and since the
conditions indicated therein are not available or reflected
in the Will, the Will is a suspicious one and the probate
ought not to have been granted by the trial court in
favour of Respondent Nos. 1 and 2.
Besides the above submissions, counsel contends
that the parameter, which has been laid down for testing
the authenticity of a Will or what is required to be taken
into consideration by a trial court has been laid down in
the case of H. Venkatachala Iyengar versus B. N.
Thimmajamma and others, reported in AIR 1959 SC 443
but the same has not been adhered to by the trial court.
Patna High Court MA No.986 of 2011 dt.11-10-2012
4/6
Counsel representing Respondent Nos. 1 and 2,
who are the beneficiaries of the Will, submits that mere
raising of suspicion may not make a Will untrustworthy,
not capable of being granted probate. The authenticity or
otherwise of the Will has been proven to the hilt, not only
with regard to documentary evidence, but even oral
evidence under the circumstances under which the Will
was created. It is not in dispute that prior to the last Will,
for which probate was sought, which is dated
06.01.2003, yet another Will had been crated by Sirji Kuer, wherein respondent no.1 was the beneficiary. That Will has been in existence to the knowledge of many, but was never seriously contested or doubted during the course of the trial in the present probate case. There is sufficient evidence to show that Sirji Kuer was of good sound health and mind and the reason why she decided to change the earlier Will was, because of the service which Respondent No. 2 had rendered to her over a period of time. She was included as yet another person, who would derive benefit with due consent of Respondent No. 1. The witnesses who have put there signature on the Will under the circumstances under which the Will had been created and the reason for creation of the Will and the time-frame under which the Patna High Court MA No.986 of 2011 dt.11-10-2012 5/6 Will was created have all been established and proved.
One glaring aspect, which is available from records, is that at no point of time, any of the appellants seriously contested the authenticity of the Will by comparing the signature of the Testator with the earlier Will, where also the thumb impression of Sirji Kuer was very much available for ready reference. But then it was probably not done for a reason as that would have given away the serious challenge which was sought to be raised with regard to the present Will.
The witnesses, who were set up in support of the appellants, could not really make a dent as to the existence and the evidence of the authenticity of the Will. In fact, the trial court, while dealing with their evidence, has pointed out the loopholes in their statements or evidence given before the court and the court has come to an opinion that they were not authentic, genuine or natural witnesses, who had anything to do with the issue of the authenticity of the Will. Majority of them were not even capable of knowing and showing the circumstances under which the Will was created.
This Court has meticulously gone through the judgment dated 28th of September, 2011, passed in Probate Case No. 37 of 2004. With due respect to the Patna High Court MA No.986 of 2011 dt.11-10-2012 6/6 counsel for the appellants, the principles enunciated at the bar are not principles, which apply on the set of facts and evidence that emerged.
The overwhelming circumstances and the evidence is in favour of the grant of the probate, in favour of the beneficiaries, who are Respondent Nos. 1 and 2 in the present case. The circumstantial evidence sought to be created against the Will or its authenticity has never been seriously contested by the appellants and it has been a half hearted effort on their part to mean away the benefit from Respondent Nos. 1 and 2, which accrues to them by virtue of the Will.
In totality, therefore, the Court is of the opinion that there is no serious error committed by the Court below in passing the order and allowing the probate in favour of respondent nos. 1 and 2.
Miscellaneous Appeal is dismissed being devoid of merit.
Office is directed to return the lower court's record to the concerned court immediately.
(Ajay Kumar Tripathi, J.) Patna High Court, Patna Dated: 11.10.2012 Shashi Kant Mishra NAFR / -