Patna High Court
Bhudeo Sharma vs Nagendra Kumar Sharma And Ors. on 6 April, 2004
Equivalent citations: 2004(2)BLJR1101
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. The opposite party is the appellant. This appeal is directed against the judgment and decree dated 26.7.1978, passed by the learned 2nd Additional District Judge, Saran, Chapra, in Probate Case No. 13 of 1973 Nagendra Kumar Sharma v. Bhudeo Sharma, whereby he has allowed the application filed by respondent No. 1 herein under the provisions of Part IX of the Indian Succession Act, 1925 (hereinafter referred to as the 'Act') for probate of the Will stated to have been executed by Bechu Rai in favour of the petitioner on 5.12.1960 (Exhibit-2), and for grant of letters of administration, with respect to the properties detailed in Annexure-A to application. We shall go by the description of the parties occurring in the plaint.
2. According to the case of the petitioner (respondent No. 1 herein), Bechu Roy (deceased) had executed his Will dated 5.10.1960 (Exhibit-2) in favour of the petitioner. The wife of Bechu Roy had pre-deceased him and he himself died issueless on 10.11.1960. By the said Will Bechu Roy executed his entire property in favour of the petitioner (respondent No. 1 herein). His further case is that after the demise of wife of Bechu Roy, he was alone in his house. The petitioner's house was next to that of Bechu Roy. Because of the proximity between the two family the petitioner and his wife took upon themselves the duty of serving Bechu Roy towards the end of his life. They used to look after him every manner including his food. Being pleased with the service rendered by the petitioner and his wife Bechu Roy had executed the said will whereby he had given his entire property to the petitioner.
3. The opposite party (appellant herein) claimed to be the close relative of the testator being his nephew and, therefore, claimed succession to the property. He had opposed the application. His case was that the Will was not duly executed nor properly attested and Bechu Roy had no knowledge of any such attestation nor he ever executed Will. His further case was that Bechu Roy never instructed Brijnandan Singh (AW 1) to sign the Will on his behalf nor the alleged signatures (Exhibits-1 and 1/a) were ever made in presence of Bechu Roy to sign the Will on his behalf. His further case was that Bechu Roy was seriously ill for a long time prior to 1960 and had no testamentary capacity to execute the Will. He has also alleged fraud at the instance of Srikant Sharma (AW 6), the father of the petitioner.
4. Both sides produced documentary evidence, and adduced oral evidence and has examined number of witnesses in support of their respective cases. On a consideration of the materials on record the learned Additional District Judge allowed the application and probated the Will and accordingly issued letters of Administration in favour of the petitioner.
5. The trial Court framed the following issues for adjudication :--
1. Is the probate application maintainable?
2. Was the Will in question dully executed and attested and was the testator Bechu Rai in a sound state of mind and in testamentary capacity at the time of execution of the Will in question ? Whether he executed the Will out of his free Will ?
3. Is the Will liable to be probated and is the petitioner entitled to grant of letters of Administration as prayed for ?
6. The petitioner examined eight witnesses including himself as well as AW 4 (SET Hassan Raza), Finger Print Expert to prove that the Will (Exhibit-2) was duly executed by Bechu Roy and that at the time of execution of the Will be was in a sound state of mind and put his thumb impression on the Will out of his free will. AW 1 is Brijnandan Singh is said to have signed the Will at the instance of Bechu Roy for him who has proved his signature as Exhibits-1 and 1/A on the Will. He has further stated in his deposition that Mithilesh Prasad was the deed-writer and had after writing the Will read over and explained the same to Bechu Roy. He has further stated in his deposition that Bechu Roy was not in a position to put his signature and, therefore, has authorised AW 1 to execute the Will on his behalf. He has further deposed to the effect that in his presence Bechu Roy has put his left thumb impression on both the pages of the Will which followed the signature of AW 1 on both pages. The same was witnesses by 4- 5 persons. He had proved his own signatures on the two pages of the Will which has been marked Exhibits 1 and 1/A. He (AW 1) has further deposed to the effect that Bechu Roy at the time of execution of the Will was in a fit and healthy state of mind and had executed the Will without any undue influence or pressure, though he was physically becoming weak. AW 1 has further stated in his cross-examination that Bechu Roy was a Bramh Bhatt and AW 1 is Rajput. It appears that AW 1 was a family friend. It appears to me that AW 1 has no interest in the matter. He was a good friend of the petitioner and has no personal interest in the matter. He seems to be fairly reliable witness.
7. Ram Kripal Singh is AW 1 and seems to be a family friend and was a regular visitor. He has deposed to the effect that Mithilesh Kumar had prepared the Will at the instruction of Bechu Roy and in the presence of AW 2. He has further stated that Bechu Roy at the time of execution of Will was in a fit state of mind and was in a position to understand thing. He has further deposed to the effect that Brij Nandan Singh has put his signature on behalf of the Bechu Roy in presence of AW 2. He has further deposed to the effect that Bechu Roy put left thumb-impression in his presence. He has further deposed to the effect that he (Ram Kripal Singh), Aftab Chand and Jaleshwar Prasad had witnessed the Will which he had done at the request of Bechu Roy. He has proved his signature on the Will as Exhibit 1/B. He has also proved the signature of Jaleshwar on the Will which has been marked Exhibit- 1/C. He has further proved the signature of Aftab Chand on the Will which has been marked Exhibit-1/D. He has also proved the thumb-impression of Bechu Roy on the two pages of the Will which has been marked Exhibit-X and X/1 respectively. He has further deposed to the effect that Bechu Roy was a retired police personnel who was promoted from police to Havildar and was leading a lonely life because he was issueless and his wife had pre-deceased. He has further stated that Bechu Roy was patient of Asthma. There is nothing in his deposition to discredit his evidence. On the whole he is a close villager, close to family without any personal interest in the matter and seems to be a fairly reliable witness. There is nothing in his cross- examination to discredit his testimony.
8. Md. Usman is AW 3 who is a photographer by profession. He has proved the thumb-impression of Bechu Roy on the Zerpeshgi deeds which has been marked Exhibit-Y and the photographs which has been marked Exhibit-B. The thumb impression of Bechu Roy has been used for comparison with that of the Will.
9. SET Hasan Raza is AW 4 who is a Hand-writing and Finger- print Expert, who examined and compared the thumb impressions of Bechu Roy marked Exhibits A and A/1 with the thumb-impression on the registered Zerpeshgi deed dated 10.7.1954 marked Exhibit-X. He is a professional and an independent witness and has given his independent opinion. His opinion to the effect that the two thumb-impressions of Bechu Roy on the Will in question are his thumb-impressions which lends credence to the genuineness of the Will.
10. Raghunath Singh is AW 5 who deposed to the effect that he knew Dhanwanti Kuer, the late wife of Bechu Roy as well as the latter. He has proved the Zerpeshgi deed. He has deposed to the effect that Bechu Roy has put his thumb-impression on the Zerpeshgi deed in his presence which lends credence to the effect that the thumb-impression of Bechu Roy on the registered Zerpeshgi deed was surely that of Bechu Roy which was used for companion of his thumb-impression on Exhibit-2.
11. Srikant Sharma is AW 6 and is the father of the petitioner (respondent No. 1). He has deposed to the effect that the petitioner is his son. He has further deposed to the effect that Bechu Roy was his cousin. Fathers of both of them being full brothers. He has further deposed to the effect that Bechu Roy had died issueless and used to love the petitioner like his son. He has further deposed to the effect that wife of Bechu Roy died about 2-3 years prior to his death. Whereafter the petitioner and his wife served Bechu Rai till death. The petitioner served and treated Bechu Roy like his father. He has further deposed to the effect that the Will was executed and scribed in his presence. Bechu Roy was then in fit and good healthy condition of mind. He used to talk freely and was giving appropriate answers to the questions put to him. He has further deposed to the effect that Behcu Roy was patient of Asthma. He has further deposed to the effect that petitioner had performed the Shradh Ceremony of Bechu Roy as well as his pre-deceased wife. He has also deposed to the effect that he had re-deemed the mortgage of Bechu Roy and had paid Rs. 500/- for the purpose from his own pocket. He had also paid a sum of Rs. 300/- to the Government which Bechu Roy owned. He has also redeemed Zerpeshgi deed executed by Dhanwanti Kuer, late wife of Bechu Roy. He appears to be a truthfull witness and has explained the circumstances as to why Bechu Roy had chosen the petitioner for alienation of his property. There is nothing in his cross-examination to discredit his testimony.
12. Mithilesh Kumar is AW 7, who had scribed the Will in question. He has deposed to the effect that Bechu Roy was in a fit and healthy condition of mind and body. He had himself signed the deed in the capacity of scribe and has proved the signature (Exhibit 1/g). He has further deposed to the effect that the witnesses had signed in his presence and Behcu Roy had put his thumb-impression in his presence. He appears to be a professional deed-written He has given the evidence as to the actual state of affairs. He is an important witness and there is nothing in his cross-examination to discredit his testimony.
13. Nagendra Kumar Sharma is PW 8 and petitioner himself. He deposed to the effect that Bechu Roy was his uncle, and that his grand-father and the father of Bechu Roy were full brothers. He died issueless and his wife had pre-deceased about three years ago. Bechu Roy loved him as his son and he treated him like his father. AW 8 always lived with him. He has further deposed to the effect that after the demise of wife of Bechu Roy, the petitioner's wife was looking after Bechu Roy and used to cook his food. Houses of the two families are separated by a lane. He has further deposed to the effect that Bechu Roy was not an educated person and could just write a little with difficulty and write his signature. He has further deposed to the effect that Bechu Roy owned and possessed the properties which has been entirely alienated in his favour and he was in a fit state of mind at the time of execution of the Will. He had understanding of thing at that time. He has further deposed that Bechu Roy was patient of Asthma. He has further deposed to the effect that Bechu Roy voluntarily and of his own will executed his Will in favour of the petitioner (AW 8). This is in substance, the deposition of AW 8 (petitioner, which he has deposed and has given accurate graphic description of the Will. It is remarkable that the deposition of all the witnesses of the petitioner are remarkable, consistent without malicement and fit to be relied upon.
14. Opposite party (appellate herein) has examined so many witnesses. Triguna Nand Ojha is OPW 1. He is the Purohit of Bechu Roy. He has deposed to the effect that he has performed the Shradh Ceremony on the death of Bechu Roy. The Shradh was performed by Srikant Sharma and other co-sharers. For about two years prior to his death Bechu Roy used to stammer and giving incoherent answers. Although he was in good health and was moving around. During the course of cross-examination he was not able to answer most the relevant question. In any view of the matter his deposition has no bearing on the issues in question.
15. Bhudeo Sharma is OPW 2 and he is an opposite party. He has deposed to the effect that Bechu Roy was an educated person and he has not put his left thumb-impression on the Will. He has made general statements to the effect that the Will had not been propounded by Bechu Roy. On a plain reading of the deposition it appears that he does not inspire confidence and has made sweeping evidence about invalidity of the Will.
16. It thus appears to me on a combined reading of the deposition of both sides that the Will (Exhibit-2) was duly executed by Bechu Roy. The Will has been duly proved by the appropriate persons. The scribe of the Will has come forward to give the deposition and the witnesses to the same have also deposed. As stated hereinabove, the deposition on behalf of the. petitioner's witnesses is comprehensive and consistent, on the other hand, the deposition of the opposite party is inadequate and does not inspire confidence. I, therefore, conclude that the Will (Exhibit-2) propounded by Bechu Roy was prepared at his instance, was duly executed by him and attested by his witnesses.
17. I further find from the deposition of all the witnesses including those of the opposite party that Bechu Roy was in full control of his mental faculties at the time of execution of Will. He had sufficient understanding and testamentary capacity at the time of execution of the Will. No evidence has been led on behalf of the opposite party that any fraud was played on Bechu Roy or he had executed the Will on account of any misrepresentation or duress. Furthermore, the legates is a closely related person who along with his wife and his father had adequately served Bechu Roy in the evening of his life, particularly in a situation when he was issueless and his wife had pre-deceased him. I have no hesitation in concluding that it is a genuine Will, is fit to be probated, and I accordingly grant letters of Administration in favour of the petitioner.
18. This appeal is accordingly dismissed with costs.