Orissa High Court
Smt. Lata Bhoi And Anr. vs Durga Prasad Bhoi on 21 February, 2003
Equivalent citations: AIR2003ORI202, 2003(I)OLR380, AIR 2003 ORISSA 202, (2003) 2 CURCC 130 (2003) 1 ORISSA LR 380, (2003) 1 ORISSA LR 380
Author: B. Panigrahi
Bench: B. Panigrahi
JUDGMENT B. Panigrahi, J.
1. The plaintiffs in Title Suit No. 13 of 1995 before the Civil Judge, Senior Division, Padampur have filed this appeal against the concurrent findings of the Courts below dismissing their suit for declaration that the registered Will dated 2-3-1994 was void, illegal and inoperative.
2. One Jogindra Bhoi had two sons, namely, Goraehand, father of the defendant and Amrut. The appellants are the widow and daughter of late Amrut. It is, however, pleaded by the appellants that after the death of Amrut the defendant and his father ill-treated the plaintiffs though the father-in-law Jogindra and appellant No. 1 had a strong liking for each other. Therefore, the appellants filed a suit for partition in T. S. No. 27 of 1991 claiming their legitimate share and it was decreed preliminarily and final decree application is pending, Jogindra, the grandfather of the defendant was seriously ill on account of his old age and bedridden. He lost his mental faculty. He died on 3-3-1994. An application has been filed by the defendant under Order 22, Rule 10, C. P. C. making averment, inter alia, that late Jogindra Bhoi had bequeathed his undivided share in his favour through a registered Will executed on 2-3-1994. It is alleged that the testator had neither any intention to bequeath any of his properties nor was in a state of sound disposition of mind before his death. Thus the Will on the basis of which the defendant has claimed title was on account of evil design to grab the properties of Jogindra.
3. The defendant filed written statement, inter alia, by stating that Jogindra had divided the properties into three shares and allotted two such shares to his two sons and kept one such share with him. After division, Amrut, husband of plaintiff No. 1 stayed separately and later on he died. Therefore, the plaintiff did not intend to join with Jogindra after the death of Amrut. Thus, Jogindra had to spend his days miserably being uncared for by the plaintiffs. Thus the other son Gorachand having taken utmost care, Jogindra executed a Will in favour of the father of the defendant on 29-4-1991. But the plaintiff No. 1 became hostile after having come to know about such disposition and, therefore, filed a partition suit. The plaintiff No. 1 had also filed a criminal case against her father-in-law Jogindra alleging outraging her modesty. Hence the plaintiff No. 1 and Jogindra were not looking eye to eye before his death. During his lifetime, Jogindra had never taken to any illness and he had a strong mental faculty and sound disposition of mind. But unfortunately, in the final decree the Court did not pay much importance on the Willnama executed by Jogindra. Thus he again executed a Will and duly registered in favour of the defendant. The Will was executed by Jogindra after having understood the contents and himself presented the Will for registration.
4. The trial Court on considering the summary of evidence, placed implicit reliance on the testimony of the attesting witness and the father of the defendant. So the plaintiffs questioned about the propriety of the judgment and decree passed by the trial Court dismissing their suit. They also reiterated the same grounds before the appellate Court. The appellate Court had an occasion to re-assess the evidence placed by the parties. From the findings of the appellate Court the following facts have emerged that the document, Ext. A was executed on 2-3-1994 and was validly presented before the Registering Officer at Sohela on the same day. The appellants have taken no grounds that there was any impersonation and fraud, rather plaintiff No. 1 in her evidence made an unequivocal statement that her father-in-law Jogindra was taken to Sohela on 2-3-1994 and was brought back on the same evening. Therefore, the plea of innocence and ignorance as advanced by P.W. 1 appears to be far-fetched and unreliable. The execution of the Will has been duly proved by D.W. 1 who was none other than one of the attesting witnesses.
5. Mr. Patra, learned Advocate appearing for the appellants had contended with strong intensity of conviction that neither the other attesting witness nor the propounder was examined before the trial Court. Such contention cuts no ice inasmuch as law does not obligate the pro-pounder to examine all the witnesses to the Will.
6. The plaintiffs have advanced another limb of argument that Jogindra was not in a fit state of mind or in other words he did not possess sound disposition of mind. As against the bald statement of P. W. 1, D.W. 1 had clearly stated that Jogindra had executed the Will after having understood the contents. Merely because he passed away on the subsequent day, that cannot be regarded as one of the suspicious circumstances shrouded at the time of execution of the Will.
7. Several factors might contribute leading to the death of Jogindra. It is to be borne in mind that the plaintiff No. 1 being his own daughter-in-law, stooped to such a trickery and even she did not have hesitation to level allegation of outraging her modesty, such unfounded allegations must have haunted him day-in and day-out.
8. The plaintiffs were staying in a separate village and not in visiting terms to the house of Jogindra. Considering the evidence of P. W. 2, it appears that he came to know about a month before the date of execution of the Will that Jogindra suffered from fever and diarrhoea. But this alone would not detract the possibility of execution of Will in favour of the defendant.
9. The suspicious circumstances may be enumerated as follows:
(i) The genuineness of signature of the testator;
(ii) The condition of the testator's mind; and
(iii) Disposition made in the Will being unnatural, improbable and unfair in the light of the relevant circumstances. Keeping these circumstances in view let me now advert to the evidence placed before the trial Court. There has been no dispute as regards the signature of the testator which has been proved by the attesting witness, D. W. 1. It is a registered Will presented by the testator himself who had admitted before Sub-Registrar regarding execution of the Will. There is nothing on record to establish that the testator did not have sound disposition of mind or in other words he did not have testamentary capacity. Since there was bad-blood between the plaintiff and the defendant and his father, in such circumstance, the testator would not have ever liked the plaintiff to succeed his estate after his death.
10. Learned counsel appearing for the appellant has placed a judgment reported in 1995 (3) OLR 200, in the case of Smt. Kadambini Singh v. Lokanath Singh. On a careful reading of the judgment, it appears that the facts of the present case are quite distinct from the facts stated in the above judgment. In the judgment, it is discussed that although the testatrix was a literate lady, but curiously her L. T. I. was taken in the Will. The service of the Registering Officer was requisitioned to the residence in stead of the testatrix going herself to present the Will. But in the instant case the testator himself went to the registration office and presented the Will.
11. Reliance was placed similarly on a decision reported in 1988 (I) OLR 352. in the case of Gopal Charan Mohanty v. Shrimati Adarmani Mohanty. In that case, the facts stated were something different from the present case. Therefore, the principle decided in the above case cannot be stretched to the present case. In the case relied on by the appellant, reported in AIR 1994 AP 72 (Addepalli Venkata Laxmi v. Ayinampudi Narasimha Rao) there was evidence led by the parties from which it was established few days preceding the execution of the Will, the maker of the Will was indisposed. Therefore, the testatrix was taken to Guntur for treatment as she was suffering from jaundice. Therefore, the pro-pounder was unable to dispel the suspicious circumstances as a reason whereof the Will was held to be not genuine. But in this case there is nothing on record to suggest that the testator was ill except the fact that he died on the subsequent day of execution. But that by itself will not render the Will invalid in isolation of other circumstances.
12. Reliance can be placed on a judgment reported in AIR 1964 SC 529 in the case Sashi Kumar Benerjee v. Subash Kumar Banerjee. The initial burden is on the propounder to remove the suspicious circumstances surrounding the execution of a Will, proof of testamentary capacity and also the signature of the testator required by law. Once such burden is discharged, then the onus shifts to the person who alleged that the Will was an outcome of undue influence, fraud and coercion. In this case undisputedly the defendant placed before the Court below the credible evidence with regard to execution of the Will, testamentary capacity and sound disposition of mind. Since both the Courts below have accepted the evidence of defendant with regard to the execution of the Will, it would be improper and illegal to re-appraise the evidence in this appeal on same identical issue.
13. Another contention that has been advanced by Mr. Patra that there was no reason as to why the testator preferred to execute the Will excluding the plaintiff No. 1 from succeeding his property as she would have normally Inherited the property along with Gorachand. Mere uneven distribution of the assets, there would be no presumption that the Will was unnatural and bias. It was the prerogative of the propounder to choose his successor. Since he suffered from several odd and traumatic events being meted out at the instance of plaintiff No. 1, probably that might have been the factor to exclude her from succeeding his interest.
14. Accordingly, there being no point of law involved in this appeal, it is, therefore, dismissed, at the admission stage but in the circumstances without costs.