Jharkhand High Court
Sharwan Kumar Gupta vs Abhijit Kumar Lal on 18 August, 2022
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.54 of 2012
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1. Sharwan Kumar Gupta
2. Manoj Kumar Gupta
3. Rajesh Kumar Gupta .... .... .... Appellants Versus
1. Abhijit Kumar Lal
2. Akshit Tilak Lal
3. Ankit Kumar Lal
4. Ankush Kumar Lal
5. Mani Meghle Majan
6. Pradeep Kumar Lal .... .... .... Respondents CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants : Mr. T.N. Jha, Advocate For the Respondents : Mr. Amar Kumar Sinha, Advocate Mr. Kundan Kumar Ambastha, Advocate Mr. Sandeep Kumar Verma, Advocate C.A.V. ON: 25.04.2022 PRONOUNCED ON: 18 .08.2022
1. This Miscellaneous Appeal has been filed against the judgment and order dated 25.02.2012 passed by learned Principal District Judge, Palamau at Daltonganj in Title Suit No.03 of 2007 arising out of Probate Case No.06 of 2006 whereby and whereunder the application for grant of probate or letters of administration in respect of the registered Will bearing No.8029 dated 02.08.2005 executed by the deceased testator namely Sita Sao @ Sitaram Sao has been refused and the application dismissed.
2. As per the case of the applicant Sitaram Sao was the owner of the properties described in the schedule of the probate application and he without any coercion, misrepresentation or undue influence and on his own will and sound disposing state of mind, executed a WILL on 02.08.2005 bequeathing his properties mentioned in the WILL in favour of the plaintiffs, who are his nephews. The said WILL was scribed by Ram Krishna Prasad, who also read over and explained the contents of the WILL to the testator. The said WILL was executed on 02.08.2005 by the Testator by putting his L.T.I. on all the pages of the WILL and registered vide no. 8029. Though the executor/testator Sitaram Sao was a literate person but due to paralysis, he was not able to put his signature and accordingly he put his L.T.I. over all pages of the WILL.
3. The execution of the WILL has been witnessed by Raghvendra Narayan Singh. Besides the above, one Gafur Mian and Sanjay Kumar (Taids) also witness to the WILL. There was no express appointment of the executor 2 of the WILL but the recital of the WILL showed that the plaintiffs had been appointed as executors by necessary implication. The execution of the WILL has been admitted by the Testator in his written statement on 01.05.2006 in Partition Suit No.83 of 2005.
4. The respondents filed caveat/objection objecting to the grant of probate/letters of administration in favour of the plaintiffs denying the execution of the WILL and further contended that the WILL appeared to be suspicious and that there was no reason why the deceased testator would exclude his great-great grandchildren and execute a WILL in favour of his nephews. The Testator Sitaram Sao @ Sita Sao had one son namely Bishwanath Sao. The said Bishwanath Sao had one daughter namely Chanchal Lata Devi who was married to Pradeep Kumar Lal (respondent No.6 herein). The respondent Nos.1 to 5 are the minor children of the said Chanchal Lata Devi who had died on 03.01.2006 before the death of the Testator. Thus, the testator was the Nana of O.P. No.1 to 5 and Nana Sasur of O.P. No.6. Bishwanath Sao (father of the Chanchal Lata Devi and son of the Testator) died on 26.06.2005. The two attesting witnesses namely Sanjay Kumar and Gafur Mian were Taids (advocate clerk). None of them have verified the application for grant of probate/letters of administration. It has been contended that as such the application is defective due to non-compliance of Section 281 of the Indian Succession Act. The caveat/objection filed by the respondents on 11.07.2007 was made part of the written statement.
5. On the basis of aforesaid pleadings, following issues were framed by the learned Trial Court on 11.03.2006:
I. Is the suit as framed maintainable?
II. Have the plaintiffs got valid cause of action for the suit? III. Whether the WILL No. 8029 dated 2.8.2005 was executed by the testator Sita Ram Sao in favour of the plaintiffs out of free will and in sound state of mind and health?
IV. Is the will in question the last WILL of the testator prepared by the scribe on his dictation?
V. Is the will in question of valid, legal and genuine document? VI. Whether the plaintiffs are entitled to grant of probate of the will in question, as claimed?
6. The plaintiffs examined four witnesses, out of which P.W.2 is Raghvendra Narayan Singh, who has deposed that Sitaram Sao was known to 3 him and on his request he had come to Daltonganj. Sitaram Sao had put his thumb impression on all pages of the typed WILL in his presence. On being asked by him I wrote on his behalf the execution of WILL and also identified him. Sita Sao had presented the WILL in his presence for registration and affixed his thumb impression under P.W. 2 has identified his signature as Exhibit 1/1, 1/4 and 1/5. On his evidence, execution of the WILL by the Testator has been marked as Exhibit 1/6. P.W. 2 has further admitted that the WILL had been handed over to Ram Krishna Prasad for registration. Thus, this witness is a witness to the execution and attestation of the WILL and accordingly he had also verified the probate application which was marked as exhibit and his signature over the probate application has been marked as Exhibit A. and that of Ram Krishna Prasad as A/1.P.W. 3 Manoj Kumar Gupta (appellant No.2) is one of the applicant. He has deposed that in Partition Suit No.83 of 2005 Sita Sao was defendant and he had filed his written statement in which he had admitted the execution of the WILL. P.W. 4 Charittar Lal has been examined in support of the fact that the plaintiffs were taking care of the deceased and they had performed cremation and also the Shradh ceremony.
7. The defendants examined three witnesses out of which the respondent No.6- Pradeep Kumar Lal was examined as D.W. 1. In his evidence, he admitted that he had filed one partition suit being Partition Suit No.83 of 2005 in which the testator had been impleaded as defendant. From his evidence, it is further evident that a complaint case bearing Complaint Case No.440 of 2005 was filed in which Sitaram Sao had to obtain bail. Thus, from his evidence itself it is established that Sitaram Sao @ Sita Sao had every reason to exclude his great grandchildren being the sons of Pradeep Kumar Lal (defendant No.6) from inheriting his properties. The respondents examined D.W. 2 on the point that the Testator was suffering from paralysis in the year 2004 which supports the plaintiffs' case. One Vinod Kumar, Advocate's Clerk was examined as D.W. 3, who is a formal witness. One Vijay Kumar Tiwari was examined as D.W. 4, who filed his affidavit-in-chief but did not appear in cross-examination.
8. The learned court below refused the probate application mainly on the following ground :
Firstly, petitioners are nephews and at the time of the execution of the will the brother was alive then why should the will be propounded in favour of the nephews.4
Secondly, despite the fact that there were many close relatives of the testator the witness to the will made are outsiders.
Thirdly, when the testator was a literate person but what was the compulsion that his LTI was taken on the WILL? The LTI has also not been proved. Even presuming that the testator was suffering from paralysis and was not able to write and the thumb impression was that of the said testator then also it should have been proved by expert. There is no requirement of mandatory registration of WILL and it will not displace the suspicious circumstance surrounding the execution of the will. The lineal descendant of the testator will be debarred by this will and therefore there was a greater requirement of proof of the WILL.
9. The appellants argument proceeds on following line:
I. The propounders of the will are the nephews of the testator and they were looking after him in his old age which has come in the recital of the will.
II. The testator had disclosed about execution of the said will by filing written statement in T.S. 83 of 2005 filed by the present defendants. But since the written statement has not been adduced into evidence, therefore this plea that WILL was admitted in the WS cannot be accepted. The very fact that the testator had been impleaded as a defendant in the partition suit filed by Respondent no.6 (DW1) Pradeep Kumar Lal, throws sufficient light on the type of relationship that existed between the testator and the respondent family. Further, from the evidence of this witness it further transpires that a complaint case bearing Complaint Case No.440 of 2005 was filed in which Sitaram Sao had to obtain bail. The only class-I legal heir of the testator was his daughter-in-law was noticed in the present case but she did not appear.
10. It is further contended that PW1 is the scribe PW 2 the identifier, PW- 3 the applicant/plaintiff and PW-4 an independent witness who has deposed that the propounder had performed the last rites of the testator.
11. With regard to non-examination of the witnesses namely Sanjay Kumar and Gafoor Mian, it is pointed out that petition was filed on 8.4.2010 to issue the dasti summon to these witnesses to which the defendants filed rejoinder and in view of the fact that two witnesses had already been examined namely Raghuvendra Singh and Ram Krishna and therefore the learned court 5 below by order dated 23.4.2010 observed that all the requisite witnesses to the will had been examined so the will was marked as Exhibit 2. In these circumstances the petition was not pressed. It is argued that once the scribe had proved the signatures of the attesting witnesses, there was compliance with the requirement of Section 68 of the Evidence Act. Appellant has relied on the following authorities:
a. H. Venkatachala Iyengar VS B. N. Thimmajamma, 1959 0 AIR (SC) 443 "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 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 6 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 prescribe 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"
b. AIR 1980 Sikkim 33 c. AIR 1956 Patna 377- Fact that witnesses in better position were available but not called to attest will did not throw any suspicion on the genuineness of the WILL.
d. Narendra Gopal Vidyarthi VS Rajat Vidyarthi, 2009 3 SCC 287- How a Will has to be interpreted is no longer res integra. Intention of the testator must be ascertained from the words used and the surrounding circumstances. The Court will put itself in the armchair of the testator.
e. Madhukar D. Shende VS Tarabaiaba Shedage, AIR(SC) 637 "8. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on week foundation nor survive any inherent defects 7 therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R v. Hodge 1838, 2 Lewis CC 227 may be apposite to some extent - "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative".
f. Ujagar Singh v. Chanan Singh, 1985 SCC OnLine P&H 574 "The mere fact that the will was scribed by Dhanraj Singh did not mean that he could not prove the will as an attesting witness".
12. It is argued on behalf of the respondents that the will suffers from several infirmities and surrounding suspicious circumstances which raises serious question on the genuineness of the will. Learned court below has assigned specific reasons for refusing the probate application and dismissing the suit. The main grounds raising suspicion over the genuineness of the will is that propounder of the will are the nephew and there is no apparent reason by the testator should have made testamentary disposition of property disinheriting his grandchildren. The testator was literate person but on the will instead of taking his signature, thumb impressions purported to be made by him have been taken on the will. The will has not been verified as per requirement of section 281 of the Indian Succession Act and the two attesting witnesses have also not been examined. In the absence of verification and proved by the attesting witness a probate application cannot be allowed.
813. Reliance has been placed on the following authorities:
A. AIR 2016 Patna 149-The probate application was dismissed inter-alia on the ground that it had not been duly verified.
B. AIR 2001 SC 2802-- In this case a belated application filed under order 41 Rule 27 to prove the will by calling the attesting witness was rejected by the High Court and the order was upheld by Hon'ble the Apex Court wherein it ruled that proof of signature of scribe or testator is not sufficient proof of the will. It was held, "turning on to the former expression onus probandi , it is now a fairly well-settled principle that the same lies in every case upon the party propounding the will and may satisfy the court's conscience that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the will if the propounder leads evidence to show that the Will bears the signature and mark of the testator and that the Will is duly attested. This attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well-settled that in the event of there being circumstances surrounding the execution of the Will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence".
C. (2003) 2 SCC 91-in this case out of two attesting witness only one examined but he failed to prove attestation of the will by the other attesting witness widow available was not examined. It was held that military appointments of section 63 of the Succession Act and section 68 of the Evidence Act was not satisfied and Section71 of the Evidence Act not attracted to the facts and circumstance of the case. A scribe of a will cannot be treated as an attesting witness.
D. Murthy v. C. Saradambal, (2022) 3 SCC 209 :
32. In fact the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of 9 the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will.
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369], this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.
E. 1990 AIR (SC) 1742- Ram Piari Vs Bhagwant and others.--
"Although freedom to bequeath ones own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion".
F. Janki Narayan Bhoir VS Narayan Namdeo Kadam, 2003 0 AIR (SC) 761 "8. To say will has been duly executed, the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to 10 have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator".
14. To begin with the reason assigned by the learned Court below to dismiss the probate application that the WILL displaced the right of inheritance of the lineal descendants is not tenable. The requirement of testamentary disposition of property arises only when the testator is not in favour of the property to devolve on the legal heirs and descendants. Under Hindu law the owner of the property has absolute right of testamentary disposition, and this cannot be regarded as a suspicious circumstance that testator decided to execute the will in favour of a person who was not to acquire by inheritance. Quite like a person can make a intervivos gift of his self acquired property in favour of any body he pleases, he can like wise make a testamentary bequest to whom so ever he please, subject to certain moral and legal limitations. The only difference is in the former case he can be called to the witness box to once again admit execution, but in the latter case he cannot be called which is why the Court relies on his placement and circumstance as giving the best evidence to the Court to enable it to give a correct judgment.
15. It has been held in Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC 459 at page 461 "execution of will in favour of a person who is not the natural heir should not raise suspicion because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially".
16. Further, role of a probate Court is a limited one to see whether there has been a testamentary disposition of property by the testator under a sound state of mind and by free will without any undue influence. Once the due execution is proved it is not for the Court to sit over the merit of his decision. It has been held in Gurdev Kaur v. Kaki, (2007) 1 SCC 546 :
1128. The court does not sit in appeal over the testator's decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind.
77. The court does not sit in appeal over the right or wrong of the testator's decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest.
78. The contents of the will have to be appreciated in the context of his circumstances, and not vis-à-vis the rules for intestate succession. It is only for this limited purpose that the court examines the nature of bequest. The court does not substitute its own opinion for what was the testator's will or intention as manifested from a reading of the written instrument. After all, a will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another.
79. If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the statute, a presumption of due execution and attestation applies.
In view of the above mere displacement of the natural line of succession cannot be regarded as a suspicious circumstance to raise cloud over the authenticity of the will.
17. The authorities relied upon by both sides reiterate the law that probate court is a court of conscience and great responsibility lies on it to give form to the will and wishes of a person who is not alive. Specific provisions under Sections 63 of the Indian Succession Act and Section 68 of the Evidence Act are intended to ensure that the WILL is duly executed and proved. The signature and attestation of the testator and witnesses, once proved raises a presumption of due execution and can be rebutted if there are attending suspicious circumstances.
18. As per the probate application the testator died on 28.7.2006 which was scribed by Ramkrishna Prasad and was read over to the testator by Raghvendra Narayan Singh and at the time of the execution of the will Sanjay Kumar and Gaffoor Mian were present throughout. Though the testator Sita 12 Sao was literate person but due to paralytic attack of his hand he was not able to put his signature and thumb impressions were marked.
19. To sum up the propounder of the will is the nephew of the testator and the contesting respondents are the maternal great-grandson's (R1 to R5) and maternal grandson in law (R-6) of the testator. The will is registered. The scribe of the will and its identifier have proved the will. The probate application has been verified by the scribe Ram Krishna Prasad and Raghvendra Narayan Singh who have claimed themselves to be the attesting witness and therefore examination of these witnesses can be regarded as compliance with Section 68 of the Evidence Act. In view of the law laid down by the Apex court in Seth Beni Chand v. Kamla Kunwar, (1976) 4 SCC 554 at page 558 "8. There is no substance in the grievance that the proof of the will in this case is incomplete for want of an attesting witness's evidence. Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. Since by Section 63 of the Succession Act, 1925 a will has to be attested by two or more witnesses, Section 68 of the Evidence Act would come into play and therefore it was incumbent on the propounder of the will to examine an attesting witness to prove due execution of the will. But this argument overlooks that Dwijendra Nigam is himself one of the three persons who made their signatures below the thumb impression of Jaggo Bai. None of the three is described in the will as an attesting witness but such labelling is by no statute necessary and the mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document. By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. Nigam's evidence shows that he and the other two witnesses saw the testatrix putting her thumb mark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb mark on the will".
13In the present case PW 2 Raghvendra Narayan Singh has signed on each page of the will just by the side of the thumb impression and he identified it and has stated in his testimony that the testator had put his thumb impression in his presence. His deposition has remained undemolished in the cross-examination and there is no reason to disbelieve this independent witness. He has however admitted that WILL was not typed or prepared in his presence. Another witness who has proved the WILL is the scribe (PW1) who has deposed that the typed WILL was read over to the Testator by Raghvendra Narayan Singh (PW2). The Testator had suffered a paralytic attack is not disputed. He was however, in a fit state of mind as is evident from the deposition of Respondent 6 (DW-1) in para 25 where he has deposed that so long as he was alive he transacted his own business.
20. On perusal of order sheet dated 8.4.2010 of the learned Court below it appears that petition was filed on behalf of the plaintiffs with a prayer to issue dasti summon to Sanjay Kumar and also to examine Gafoor Mian who were also witness to the WILL. The petition dated 8.4.2010 was dismissed as not pressed by order dated 23.4.2010 by the Learned Court below and was observed that all the requisite witnesses of the WILL have been examined, hence the prayer to mark the will was allowed and it was marked as Exhibit 2.
21. The original registered WILL has been adduced into evidence and marked as Exhibit 2 executed on 2.8.2005 by Sri Sita Sahu in favour of the applicants with respect to land fully detailed in it. The will states the reason for bequeathing the property in favour of the applicants. The scribe of the will has been mentioned as Ramkrishna Prasad and has been stated in the will that it was read over to the testator. The typist is Binod Kumar. The LTI has been identified by Raghvendra Pratap Singh. Sanjay Kumar and Gaffoor Mian have also appended their signature on the will.
22. A probate court when adjudicating upon a contested will, places itself in the armchair of the testator as the old phraseology goes. It does not examine the propounded WILL as it were an appellate Court sitting in appeal over the testator's judgement. It sits in that armchair to examine and adjudicate whether the propounded document is genuinely testator's bequest or is a fake document put up.
23. In this process the court looks into his circumstances as established on record. If the bequest accords with that of a reasonable person very little 14 proof is necessary but if it is contrary to contrary to a reasonable man to those circumstances a much higher degree of proof is necessary, before the Court accepts the document as the last WILL of the deceased. With these being the principles in mind let us first examine the circumstances of the testator.
24. Defendant Pradeep Kumar Lal (R-6) has been examined as DW-1 and he has deposed in para 22 that he had impleaded Sita Sao as defendant in partition suit no.83/2005. Respondent no.6 (DW1) has deposed in para 24 that his wife Chanchal Lata Gupta had filed a criminal case bearing no. 540/2005 against Sita Sao, Bhagwan Sao, Manoj Kumar Gupta, Sarvan Kumar Gupta and Rajesh Kumar Gupta. In para-38 has deposed that in Partition suit no.83/05 Sita Sao had filed WS. With such being the conduct of the objectors (natural heirs) would they really accept a bequest in their favour ? When the testator was sued in both civil and criminal matters it was but natural that the testator excluded the heirs from inheritance. The testator exercised his judgement and even got the document registered . He did what he could do. The Court's conscience will respect his wishes subject to the basic proof that is amply there.
25. A Court when it grants a probate of a fake WILL does injustice to the soul of the deceased. Equally when it refuses probate of a genuine WILL it does injustice to the soul of the testator.
26. Registration of a will is not compulsory, however, registration adds to the level of authenticity or the probative force in favour of the will be proper. It is not final or conclusive. Yet it shifts the onus on the objector to show that even the registration was perfunctory and therefore presumption of due execution and that testator admission before the sub- registrar should be given a go by. Unless the objector establishes that the testator himself did not appear before the sub- registrar his thumb impression taken by the sub- registrar at the time of registration in token of admission of execution is not of the testator, there is little the objector can be heard to say. After all sub- registrar as part of his official duty unless satisfies himself on the identity of the testator's (who seeks registration) receives admission of execution and also satisfies himself on the document, he is not expected to admit the will to registration. If the sub- registrar doubts the identity of the person or his state of mind then he is not expected to admit the will to registration. It has been held in AIR 1923 PC114 that in document found registered and certificate of 15 endorsement under Section 60 endorsed thereon. Presumption arises under Section 114 of the Evidence Act that official acts have been regularly performed and the document was duly presented by person duly authorized under law.
27. In view of the above stated position of law there was a presumption in favour of due execution of the registered will which has been duly proved by the two witnesses as discussed above. It is an admitted position that the testator had suffered a paralytic attack which is the circumstance that explains why the WILL was not signed by him but thumb impression was affixed on it. It has also come in evidence that the testator was on a litigating term with both R-6 and his wife (since dead) which explains why the testator decided for testamentary disposition of his property in complete exclusion of the respondents. I do not find any suspicious circumstance to refuse the petition for grant (probate).
The judgment and order of the court below is set aside.
However, since no executor has been appointed in the WILL, therefore a letter of administration to be granted with certified photo copy of the WILL annexed is granted. The formal letters of administration as per Schedule VII of the Indian Succession Act, shall be issued by the Court below. The original WILL shall remain in the safe custody of the learned Court below till all formalities for administration of the estate have been completed and the estate distributed. The matter is sent back to the Court below for completing of all formalities according to law. Deficiency if any in Court fees shall be made up.
The appeal is allowed.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 18th August, 2022
AFR / AKT