Tripura High Court
Smt. Kalyani Das vs Smt. Minati Das [Majumder on 22 January, 2020
Equivalent citations: AIRONLINE 2020 TRI 116
Bench: Akil Kureshi, S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
RFA No.02 of 2015
Smt. Kalyani Das,
wife of Sri Sunil Chandra Das of village-
Rangamati, P.O. Khedabari, P.S.
Sonamura, at present residing at
Jumerdhepa, P.S. Melaghar, District-
West Tripura
......... Appellant
-Versus-
1. Smt. Minati Das [Majumder],
wife of Sri Ramesh Chandra Majumder
of village & P.O. Khilpara, P.S.
Radhakishorepur, District- South
Tripura
2. Smt. Jharna Das [Majumder],
wife of Sri Swadesh Majumder of
village & P.O. Palatana, P.S.
Radhakishorepur, District- South
Tripura
3. Smt. Aparna Das,
wife of Sri Uttam Das, resident of
village-Rangamati, P.O. Khedabari, P.S.
Sonamura, West Tripura
......... Respondents
For the appellants : Mr. A.K. Bhowmik, Sr. Adv.
Mr. R. Datta, Adv.
For the respondents : Mr. D.K. Das Choudhury, Adv.
Date of hearing : 27.11.2019
Date of delivery of : 22.01.2020
Judgment & Order
Yes No
Whether fit for reporting :
√
Page 2 of 30
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI THE HON'BLE MR. JUSTICE S. TALAPATRA JUDGMENT & ORDER [Talapatra, J] This appeal arises from the judgment dated 20.12.2014 delivered in Title Suit (P) 50 of 2008 by the Civil Judge, Sr. Division, No.2, Agartala, West Tripura. By the said judgment the trial court dismissed the suit returning the finding that the suit properties cannot be held to be joint properties of the parties to the suit. Being aggrieved by the said finding, the plaintiff has preferred this appeal.
[2] The facts as laid in the plaint is that one Shashi Bhusan Das, the father of the plaintiff and the defendants died on 26.01.1977 leaving behind the plaintiff and the defendants and their mother Surabala Das [who, as a matter of records died on 01.03.1988] to inherit the suit land. After death of their mother, according to the plaintiff, the plaintiff and the defendants became the heirs, competent to inherit the suit land which has been described under the schedule of the plaint, which is gainfully reproduced for reference:
Khatian Hal Class of land Area Northern boundary No. Plot (in Acre) No. 691 3568 Nal 0.16 Nepal & Ors in Plot No.3569 Do 3570 Nal 0.42 Akima & Ors in plot Page 3 of 30 No.3460 692 3507 Nal 0.10 Biswanath & Ors in plot No.3501 693/1 3477 Nal 1.13 Kshetramohan in plot No.3476 Do 3483 Nal 0.31 Plaintiff & Defendants in plot No.3477 Do 3485 Nal 0.18 Do Do 3486 Nal 0.12 Kshetramohan in plot No.3476 Do 3504 Orchard (Nal) 0.17 Makhanlal in plot No.3503 Do 3510 Nal 0.20 Biswanath & Ors. in plot No.3500 Do 3724 Nal 0.45 Nurul & Ors. in plot No.3723 Do 4095 Homestead(Nal) 0.14 Makhan in plot No.4099 693/2 4097 Orchard (Nal) 0.08 Plaintiff & Defendants in plot No.4098 Do 4098 Do 0.05 Makhan in plot No.4100 Total 3.51 [3] The defendant No.1, namely Minati Das [Majumder] supported the claim of the plaintiff and urged for passing a decree providing 1/4th share to each of the parties by separating their share by metes and bounds, but the defendants No.2 & 3 respectively Smt. Jharna Das Majumder and Smt. Aparna Das by filing a separate written statement seriously disputed in respect of status of the suit property. They have specifically pleaded in their written statement that their predecessor namely Shashi Bhusan Das was the joint owner and possessor of the land under Khatian No.3265 with one Smt. Parul Rani Das. Parul Rani Das died leaving behind her 5 sons and 4 daughters and her husband, namely Bireswar Dasgupta but they are not brought on record in the suit even the entire property left by Surabala Das, Shashi Bhusan Das and Parul Rani Das has not been brought on record Page 4 of 30 in the suit. According to them, when a suit for partition is framed all the joint properties are to be brought in the stock, to divert any prejudice. Even sons and daughters of Parul Rani Das, namely Sri Ajit Dasgupta, Sri Sujit Dasgupta, Sri Khokan Dasguupta, Sri Kajal Dasgupta [since deceased, his heirs] and Sri Chandan Dasgupta are all necessary parties in the suit. The land under Mouja- Khedabari, Khatian No.3265, measuring 0.73 acres has as well not been brought on record. Even the land recorded under Khatian No.3234, Jote-3261 of Mouja-Khedabari, measuring 0.72 acres has not been brought under the suit.
Thus, the entire joint property, according to them, was not brought for adjudication. In Para-12 of their written statement, the defendants No.2 & 3 have stated that during the lifetime of Shashi Bhusan Das, their father, he executed a Will in favour of the defendant No.3 and that fact of bequest was known to the plaintiff. The other daughters of Shashi Bhusan Das are well settled in their life but the defendant No.3 had no financial stability. Considering that aspect of the matter, Shashi Bhusan Das had bequeathed his entire property to the defendant No.3. Hence, the plaintiff or other legal heirs of Shashi Bhusan Das are not entitled to any share by inheritance as the property as described in the schedule of the plaint was not intestate. The defendants No.2 & 3 submitted the original unregistered Will dated 26.01.1976 executed by Shashi Bhusan Das in favour of Page 5 of 30 Aparna Das [the defendant Non.3], along with Khatians No.3265,3234 Jote-3261, 691,692,693-1 and 693-2 of Mouja- Khedabari. Even after the specific disclosure in respect of existence of the said Will, the plaintiff did not amend his plaint nor did file any supplication with leave of the court. Initially, the preliminary decree was passed, pursuant to the judgment dated 23.08.2013 but on appeal by the defendant No.3, Aparna Das, the said judgment dated 23.08.2013, was set aside by this court by the judgment dated 22.09.2014 delivered in RFA No.18 of 2013. On relying a decision of the apex court in Hem Nolini Judah (since deceased) through her Legal representative Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Ors, reported in AIR 1962 SC 1471, this court came to the conclusion that since the defendant No.3 did not obtain probate of the Will, she was not entitled to claim any right under the Will in terms of Section 213 of the Indian Succession Act, but this court by the judgment dated 22.09.2014, having appreciated Sections 57 & 213 of the Indian Succession Act, held that Section 213 would only apply if the Will is covered under Clauses-(a) or
(c) of Section 57 of the Indian Succession Act. For purpose of reference, Sections 57 and 213 of the Indian Succession Act are reproduced hereunder:
―57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.--The provisions of this Part which are set out in Schedule III shall, Page 6 of 30 subject to the restrictions and modifications specified therein, apply--
(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and
(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such Will or codicil.
* * * * 213. Right as executor or legatee when established.--
(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by Muhammadans or Indian Christians and shall only apply--
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57; and
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such Wills are made outside those limits, in so far as they relate to Page 7 of 30 immovable property situate within those limits.‖ [Emphasis added] [4] In Samar Krishna Saha vs. State of Tripura and others, reported in (2006) 1 GLR 703 Gauhati High Court had clearly observed that the probate of the Will will not be required to be obtained by a Hindu in respect of a Will made regarding immovable property situated in the State of Tripura for the reason that the State of Tripura has, admittedly, never been part of Erstwhile Bengal. Section 213 of the Indian Succession Act applies when a person claims his right as an executor or legatee under a Will and not when he claims his right in other capacity.
As consequence, the said judgment was set aside and the suit was remanded to the trial court with observation that the court has expressed no opinion on the validity of the Will or on whether the Will is valid or not on whether it was executed by the deceased, Sashi Bhusan Das and whether the Will is shrouded by suspicious circumstances. The trial court was asked to decide on the basis of the evidence led before him without being influenced by the observations made in the judgment dated 22.09.2014 delivered in RFA No.18 of 2003.
"7. A careful reading of the provisions, of Section 213 would indicate that an executor or a legatee under a Will has to obtain probate of the Will whereunder he claims his rights, provided that the rights are claimed in a Court of justice. In other words, if a person, who is an executor or legatee under a Will, does not claim his rights under a Will in Page 8 of 30 a Court of justice, he is not required to obtain probate of the Will under which he claims the right. This apart, as indicated under Sub-section (1) of Section 213, the requirement to obtain probate lies only when the Will is made by a Hindu, Buddhist, Sikh or Jain, when the Wills are of the classes specified in Clauses (a) and (b) of Section 57 of the Indian Succession Act. What also needs to be pointed out is that Clause (a) and Clause (b) of Section 57 indicate that these provisions are applicable to all the Wills and codicils made by any Buddhist, Sikh or Jain within the territories mentioned in Clause (a) and also to such Wills and codicils, where, though the Wills and codicils are made outside the territories mentioned in Clause
(a), the immovable property is located within the territories or limits as specified in Clause (a). A combined reading of the Clauses (a) and (b) of Section 57 and also Section 213 would show that where the parties to the Wills are Hindus, but the property is not situated in Bengal, Bombay and Madras, Sub-section (2) of Section 213 of the Indian Succession Act has no application. It, therefore, logically follows that probate of will not be required to be obtained by a Hindu in respect of a Will made regarding the immovable property situated in the State of Tripura, for, the State of Tripura has, admittedly, never been a part of the erstwhile State of Bengal. In the passing, it may also be indicated that Section 213 is applicable only when a person claims his right as an executor or legatee under a Will and not when he claims his right in any other capacity.‖ [Emphasis supplied] [5] From the records, it appears that the trial court took up the matter and considered the issues afresh. The following issues were framed in the suit:
(i) Is the suit is maintainable in its present form and nature?
(ii) Whether Lt. Shashi Bhusan Das in his life time had executed a Will in respect of the suit land in favour of the defendant No.3, Smt. Aparna Das?
(iii) Whether the plaintiff Smt. Kalyani Das is entitled to get a decree as prayed for in her plaint?Page 9 of 30
(iv) To what other relief/reliefs the parties to this suit are entitled to get?
[6] The trial court has observed that on going through the recitals of the Will [Exbt.D] it appeared that the maker of the Will [the testator] had given the description of the bequest. The said unregistered Will is attested by 2[two] witnesses, namely Rakhal Chandra Das and Nurul Islam and was prepared by Abhinas Chandra Das, a deed writer from Sonamura. The land sought to be bequeathed by the Will is clearly provided under a schedule. For reference, the said schedule of the properties in the Will is reproduced hereunder:
Schedule of the properties District- West Tripura, Thana Sub-Registry Office and place-
Sonamura, Tehshil-Sonamura, Mouja- Khedabari.
(i) Khatian No.397(P), jote-625, Plot No.2176, land measuring 0.08 acres.
(ii) Khatian No.397(P), jote-625, Plot No.2181, land measuring 0.14 acres.
(iii) Khatian No.397(P), jote-625, Plot No.2180, land measuring 0.17 acres.
(iv) Khatian No.397(P), jote-625, Plot No.2171, land measuring 0.03 acres.
(v) Khatian No.397(P), jote-625, Plot No.2172, land measuring 0.065 acres.
(i) Khatian No.396(P), jote-324, Plot No.2188, land measuring 0.20 acres.
Total = 0.0685 acres of land.
That apart, the following property was as well bequeathed by the said Will:
Tehshil- Sonamura, Mouja- Khedabari.
(i) Khatian No.394, jote-625, Plot No.2186, land measuring 0.10 acres.
(ii) Khatian No.397, jote-294, Plot No.2177/2981, land measuring 0.05 acres.Page 10 of 30
Total = 0.15 acres The latter part of property was acquired by the testator by purchase. From Khatian No.3265 [Exbt.A series], it appears that Parul Rani Das, wife of late Bireswar Dasgupta is survived by Shashi Bhusan Das, Surabala Das, Minati Rani Das and Kalyani Das.
[7] The defendants have also produced the original sale deed No.1-2690 [Exbt.B] by dint of which Shashi Bhusan Das had purchased the entire property from Nunu Miah and Abdul Kalam. There is no challenge against that sale deed. [8] The dispute concerns the land described in the said schedule which according to the defendant No.3 has been bequeathed by Sashi Bhusan Das, her deceased father, by the Will [Exbt.D]. The plaintiff has however, as it appears, disputed the validity of the Will alleging that the suspicious circumstances in respect of execution remained unexplained. According to the plaintiff (a) the Will was executed in the year 1976 but the properties under the Will was not claimed by the defendant No.3 till filing of their written statement; (b) the property as noted under the Will has not entered in the records of right. It stands to vindicate that the Will was manufactured for purpose of demonstrating a right through it over the suit property; (c) the Will was prepared by a Deed Writer [DW-2] but the Will, for Page 11 of 30 unassigned reasons, was not registered and (d) no reason has been assigned by the testator in the body of the Will why he had deprived the other legal heirs from the said properties. The court of the Civil Judge, Sr. Division, Court No.2, Agartala, West Tripura has observed in the judgment dated 20.12.2014 that the testator has given the description of the property as bequeathed, at the beginning of the Will. It has been also narrated in the Will how the testator had become the proprietor of the scheduled property. The Civil Judge has also observed that the testator has stated in the Will that even though he had four daughters but he has not bequeathed any property for the plaintiff and the defendants No.1 & 2. Thereafter, it has been observed as follows:
―The Will further appears to be executed without consideration. It, therefore, appeared that the general conditions in making a Will has been properly followed. With a view to prove the exbt. D to witnesses namely, Abinash Chandra Das (DW2) and Nurul Islam (DW4) were examined. DW2 is a Deed Writer by profession. On 26.01.1976 the donor of the Will approached the DW2 and expressed his willingness to execute a Will in faovur of the defendant No.3. All the documents pertaining to the property bequeathed was also made available with the DW2. Accordingly, DW2 has prepared the Will in question in presence of the witnesses. DW2 further added that the Will was executed by the donor in free mind and without any pressure from any corner. The Will has been duly identified to be in the handwriting of the DW2. Similarly the DW3, Nurul Islam, stated to be a friend of the donor. On 26.01.1976 the donor approached the DW3 and requested him to go to Sonamura Deed Writers' Office. Accordingly, the donor accompanied with DW3 approached DW-2 and therein the donor expressed his desire to the DW2 to execute a Will bequeathing his entire properties in favour of the defendant No.3. Accordingly, the Will was drafted and prepared by DW2 in presence of DW3 and Page 12 of 30 thereby the DW3 witnessed/attested the Will by putting his signature therein. The Will in question, therefore, proved to have been executed by the donor Sashi Bhusan Das in presence of DW3 and the Will has been duly attested by 2 witnesses namely, DW3 and another Rakhal Chandra Das out of which DW3 is one of the attesting witness to the Will.‖ Based on the said finding, the Civil Judge has held that the Will has been proved by the defendant No.3 in due observance of Section 68 of the Evidence Act. Thereafter, the Civil Judge went on to examine the question whether the execution is attended by suspicious circumstances or not. The plaintiff [PW-1] has testified that the claim raised by the defendants No.2 & 3 is false. Her father did not execute any Will in favour of the defendant No.3. She has also testified that the Khatian [Exbt.1 series] was opened after death of their father.
The name of the plaintiff and the defendants have been recorded as the holders of title in equal share. The defendant No.3 did not raise any objection against such entry. Hence, it is deducible that the Will is a forged document. The Civil Judge having verified the pleadings inferred that the Will was not within the knowledge of the plaintiff and she gathered her knowledge only when the defendants No.2 & 3 filed their written statement claiming that the defendant No.3 has become the sole owner of the suit properties left by Sashi Bhusan Das, since deceased. But to challenge the Will even after such disclosure in the written Page 13 of 30 statement, the plaintiff did not amend the plaint to dispute the Will and even no relief in the face of such disclosure has been sought in the suit. Such relief could have been sought in the suit by way of amendment in view of the subsequent events. Therefore, there is complete absence of the pleading in the plaint in respect of the Will. In this context, the Civil Judge has observed that the parties cannot be allowed to lead evidence beyond the pleadings. A few decisions of the apex court in Harihar Prasad Singh & Ors. vs. Balmiki Prasad Singh :
(1975) 1 SCC 212; Ram Sarup Gupta by Lrs. Vs. Bishun Narain Inter College & Ors. : (1987) 2 SCC 555 have been referred. The law that the evidence cannot travel beyond the pleadings has been restated in those decisions. Finally, it has been observed that since the bequest has been formed in favour of the defendant No.3, the suit property cannot be held to be joint properties of the plaintiff and the defendants. Having observed thus, the suit has been dismissed.
[9] Mr. A.K. Bhowmik, learned senior counsel appearing for the appellant has drawn our attention to the fact that in the cross-examination, the defendant No.3 has stated that her mother died in the year 1988 and she had disclosed the existence of the Will to the defendant No.3 one year before her death. But there is no explanation as to why the defendant No.3 Page 14 of 30 did not disclose the existence of the Will to anybody till filing of the written statement in the suit. According to Mr. Bhowmik, learned senior counsel even the defendant No.3 failed to explain as to why she did not make any claim of her right under the Will before the revenue authority. Even when the Will was prepared and executed in the office premises of the District Sub-Registrar, she did not lay the reason behind not to register the Will. It has been further submitted by Mr. Bhowmik, learned senior counsel that the defendant No.3 has failed to prove execution of Will in compliance with Section 68 of the Evidence Act. That apart, it is also required that the propounder shall satisfy by adducing convincing evidence that there is no suspicious or unnatural circumstance surrounding the execution of the Will. To buttress his submission, Mr. Bhowmik, learned senior counsel has placed his reliance on a decision of the apex court in Kalyan Singh vs. Smt. Chhoti & others, reported in (1990) 1 SCC 266, where the apex court has enunciated the law in respect of obligation of the propounder for establishing genuineness of the Will, which is relied by the propounder to claim the title over the property, as under:
―20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity Page 15 of 30 of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
21. In H. Venkatachala Iyengar v. B.N. Thimmajamma : AIR 1959 SC 443, Gajendragarkar, J., as he then was, has observed that although the mode of proving a will did not ordinarily differ from that of proving any other document, nonetheless it requires an element of solemnity in the decision on the question as to whether the document propounded is proved as the last will and testament of departed testator. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine.
Where there are suspicious circumstances, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. These principles have been reiterated in the subsequent decisions of this Court in Rani Purnima Devi v. V. Kumar Khagendra Narayan Dev : [1962] 3 SCR 195 and Smt. Indu Bala Bose v. Manindra Chandra Bose :
[1982] 1 SCC 20.‖ [Emphasis added] [10] The reference has also been made to a Gauhati High Court decision in Pradip Saikia & Ors. vs. Suwala Saikia & Ors., reported in AIR 2006 Gau 56, where it has been held that the law governing the proof of a Will is well established. The burden of proof of a Will is always on the propounder. If suspicious circumstances surrounding the execution of Will are Page 16 of 30 repelled, the testamentary capacity and the signature of the testator on the Will are proved, that would be sufficient discharge of such burden. However, where any suspicious circumstance occurs, the onus is squarely on the propounder to explain to the satisfaction of the court.
A Will is an instrument that contains the last desire of the testator/testatrix. Normally, the Court, therefore, acts in accordance with the wishes of the maker of the Will. However, if, any way, the Court is to doubt either the voluntariness or genuineness as regards the execution of the Will, it would disassociate to act in accordance with what has been narrated in the Will. If the Will is surrounded by suspicious circumstances, the removal of such suspicion shall be always the onus or obligation of the propounder. Until and unless such suspicion is removed, the Will cannot be 'probated'.
[11] The law has been enunciated by Delhi High Court in Yashodha Gupta vs. Sunil Goyel & Ors., reported in AIR 2002 Delhi 20, where Delhi High Court has categorically held inter alia that disinheritance of a heir of equal degree without reason would be suspicious. It has been observed in Yashodha Gupta (supra) as follows:
―106. Reliance was placed on Vellaswamy Servai & Ors. vs. L. Sivaraman Servai : AIR 1930 PG 24 wherein it was stated (page 25, column 2) that Page 17 of 30 where the propounder of a Will is its principal beneficiary and he takes ‗a leading part in giving instructions for the Will and in procuring its execution and registration' would be a suspicious circumstance.
107. In Guro (Smt) v. Atma Singh : (1992) 2 SCC 507, the Supreme Court mentioned in paragraph 3 of the Report some suspicious circumstances such as ‗a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit.'
108. In Kalyan Singh v. Smt. Chhoti & Ors. : AIR 1990 SC 396, the supreme Court observed as follows in paragraph 18 of the Report:-
‗In the normal course, the wife would be the first to be thought of by the husband while executing a Will. She should have been the first beneficiary of her husband's bounty unless there was odium or embittered feelings between them. But there is no such evidence and it was not even the plaintiff's case that their relationship was strained. Why then she should be excluded altogether? It is indeed baffling since it runs counter to our societal values.'
109. Later, in paragraph 22 of the Report, the Supreme Court took notice of three facts which cast a serious doubt on the authenticity of the Will. These were the fact that the plaintiff therein was the sole legatee, no right whatsoever had been conferred to the testator's wife which was unnatural and finally that the Will had not been produced for many years before the Court or the public authorities even though occasions arose for producing it.
110. In Bhagwan Kaur, w/o Bachan Singh v. Kartar Kaur w/o Bachan Singh : (1994) 5 scc 135, the Supreme Court reiterated in paragraph 8 of the Report that the propounder of a Will taking an active part in its execution would be a suspicious circumstance and the fact that no provision was made in the Will for the widow of the testator would also be a suspicious circumstances.
111. In Ram Piari v. Bhagwant & Ors. : AIR 1990 SC 1742, the testator had disinherited his daughter by executing a Will one day before his death. He bequeathed all his property in favor of the sons of her sister. This was held by the Supreme Court to be a suspicious circumstance and the Will was not accepted as genuine.Page 18 of 30
112. However, in Sadasivam v. K. Doraisamy :
(1996) 8 SCC 624, the Supreme Court held in paragraph 6 of the Report that divesting of close relations being the purpose of the execution of a Will is normally not a suspicious circumstance.
113. Similarly, in Ravindra Nath Mukherjee & Anr. v. Panchanam Banerjee (dead) by LRs. : (1995) 4 SCC 459, the Supreme Court held in paragraph 4 of the Report that the whole idea behind the execution of a Will is to interfere with the normal line of succession. Therefore, if a natural heir is not a beneficiary under a Will, it would not be a suspicious circumstance. It was also held in paragraph 7 of the Report that someone has to take necessary steps for the execution of a Will. If he happens to be someone close to the testator, eyebrows are bound to rise but if there are circumstances justifying the conduct of the propounder, they would require to be taken into consideration.
114. In paragraph 8 of the Report, the Supreme Court expressed the thought that a total view has to be taken of all the circumstances and it is only then that the Court should reach a conclusion about the authenticity of a Will.
115. This, I think, has to be the guiding principle along with what the Supreme Court has said in H. Venkatachala Iyengar [AIR 1959 SC 443].
116. Learned counsel for the plaintiff relied upon Dharmadas Mondal & Ors. v. Kashi Nath De:
AIR 1959 CaL 243 to contend that the mere registration of a Will leads only to a presumption about the validity of the proceedings which took place before the Registrar. It does not have any reference to antecedent proceedings regarding the actual writing of the Will or the mental capacity of the testator or the signing of the Will by the attesting witnesses.
117. A similar view was expressed by a Division Bench of this Court in Prem Chand v. Mool Chand etc.: 1983 RLR 522. It was held that the presumption about the validity of a registered Will can be displaced by proof of suspicious circumstances.
118. Considering the various authorities cited before me, it is quite clear that whether a Will is genuine or not has to be decided on the facts of each case. There is no mathematical equation to determine whether a Will is genuine or not. The authenticity of a Will depends on the circumstances surrounding its Page 19 of 30 execution and the quality of the evidence that is led in respect of its genuineness.‖ [Emphasis added] [12] Before we refer the submission made by Mr. D.K. Das Choudhury, learned counsel appearing for the respondents No.2 & 3, it would be apposite to reproduce the entire testament [Exbt.D] for purpose of appreciation of the objections raised by the appellant.
―Exhibit-D WILL/LAST TESTAMENT (unregistered)* Executant : Sri Sashi Bhusan Das, S/O- Lt. Ganga Chandra Das, resident of vill-Rangamatia, under the police station- Sonamura, within the district- West Tripura, Sub-registry office- Sonamura, by caste- Hindu, by profession-cultivation, Indian National.
...... Will executants This is an will/Last Testament is executed to the following effects-
That I have been the absolute owner-in-possession over the viti land measuring 0.08 (eight) acres posted in the jote 0.397 recorded in Khatian No.625, appertains to the plot/dag No.2176 by way of ‗Deed of Exchange' bearing No.1-2698 dtd. 06.05.70 AD last, .14 (fourteen) acres ‗Bastu' classes appertaining to the plot/dag No.2181, .17 (seventeen) acres charra classes appertaining to the plot/dag No.2180, .03 (three) acres Doba classes appertaining to the plot/dag No.2171, 0.65 acres (bank of pond) appertains to the plot/dag No.2172 and within that Mouja the land measuring .20(twenty) acres charra classes appertains to the plot/dag No.2188, recorded in the Khatian No.624 posted in the jote No.396 thus totaling 685 acres of land along with other lands by of ‗Exchange Deed'. And I have been the owner-in-possession over the land measuring 0.10(ten) acres nal classes located on the eastern side/end appertains to the plot/dag No.2186 recorded in the Khatian No.625, posted in the jote No.394 on the strength of a sale deed Page 20 of 30 bearing regn No.3793 dtd on 01.08.69 AD last and the land measuring 0.05 acres viti classes appertains to the plot/dag No.2177 recorded in Khatian No.394, jote No.397 thus totaling .15(fifteen) acres by way of purchase. There are my 4(four) daughters namely Minati Das, Kalyani Das, Jharna Das as well as Aparna Das. I have taken care of my said 4(four) daughters by way of bringing up them whole heartedly carefully. And accordingly I have given my two (2) elder daughters in marriage in proper time and they have been residing in their husband's house/in-laws house peacefully and happily. My elder 2(two) daughters have taken the entire responsibility of my 3rd daughter (namely Jharna Das). And I have helped them financially for imparting as well as incurring their educational expenses. As because Jharna Das would engage herself in employment/service. This in my firm belief/determination. For which after my expiry that Jharna Das will not have to get any property left by to me. Be it mentioned herein that, Human life is transient as well as uncertain. No one can tell about death as death keeps no advance date. For this reason I have gifted my below noted schedule property in the name of my younger daughter named Aparna. And after my expiry Aparna alone would be the owner. After my expiry my other 3(three) daughters namely Minati Das, Kalyani Das and Jharna Das would not be entitled to claim/demand over the noted land. If they/anyone of them put their demand/claim to this then that would be summarily rejected by all courts of law. After my expiry Aparna Das would be the absolute owner-in-possession over the noted below schedule land by way of getting the land mutated in her name. She would be entitled to sell out the property. To this neither, nor any my successors as well as heirs shall have any objection to it. If any such act happens then that would be summarily rejected. Therefore, voluntarily and in well state of mind have executed the said will/Last Testament without having instigated by another/others in presence of the witnesses attended herein.
Schedule of the land as referred Situated within the district : West Tripura, P.S., Sub- Registry office at Sonamura, T.K. Sonamura at Mouja- Khedabari.
397 no jote 625 khatian 2176 plot viti .08 acres 397 no jote 625 khatian 2181 plot bastu .14 acres Page 21 of 30 397 no jote 625 khatian 2180 plot charra .17 acres 397 no jote 625 khatian 2171 plot doba .03 acres 397 no jote 625 khatian 2172 plot doba .065 acres and within that Mouja 396 no jote 324 khatian 2188 plot chara .20 acres Total = .685 acres of land (by way of exchange) T.K. Sonamura, Mouja (within Khedabari) 394 no jote 625 khatian 2186 plot (eastern portion) .10 acres 397 no jote 294 khatian 2177/2981, dag's entire land viti .05 acres Total = .15 acres of purchase land.
This will or last testament is being read over to the will executant and admitting he same to be correct I have signed accordingly.
[End] 26.01.1976 AD Scribe and reader Sd/- Sri Abinash Ch. Das, D/W of vill-Gururband P.S. Sonamura, District -West Tripura Witnesses:
Sd/- Rakhal Ch. Das Of Rangamatia Sd/- Nurul Islam of Rangamatia.‖ [* as translated from Bengali manuscript by the Translation Department of the High Court of Tripura.] [13] Mr. Das Choudhury, learned counsel appearing for the respondents No.2 & 3 has submitted that the reasons for disinheritance has been provided quite distinctly by the testator in the Will by stating as well about the source of title. Why other 3[three] daughters have been disinherited from the bequest has been stated in the Will. Thus, the entire property as described in Page 22 of 30 the schedule has been bequeathed to the respondent No.3. This cannot be treated by any appreciation to be suspicious circumstance. Mr. Das Choudhury, learned counsel has stated that the law in respect of onus of the propounder is no more res integra. The respondent No.3 by adducing evidence has discharged the said onus quite adequately.
[14] Mr. Das Choudhury, learned counsel appearing for the respondents No.2 & 3 has contended that the objection as raised on the basis of non-compliance of Section 68 of the Evidence Act is untenable inasmuch as the respondent No.3 [the propounder] has discharged the obligation as saddled by Section 68 of the Evidence Act. For purpose of reference, Section 68 of the Evidence Act is reproduced hereunder:
―68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]‖ [15] Mr. Das Choudhury, learned counsel appearing for the respondents No.2 & 3 has categorically stated that the Will was attested by two witnesses, namely Rakhal Ch. Das and Nurul Page 23 of 30 Islam and the same was prepared and read over by one deed writer, namely Abhinash Ch. Das. Both the attesting witnesses were examined as DWs-3 & 4 whereas the scribe has been examined as DW-2. Those independent witnesses have vividly described how the Will was prepared and all of them have supported the case of the defendant No.3 [DW-1]. Thus, the onus of Section 68 of the Evidence Act has been discharged.
Further, Mr. Das Choudhury, learned counsel has submitted that taking no action on the Will, cannot be treated as the suspicious circumstance inasmuch as the plaintiff is totally silent whether any notice was given to the defendant No.3 at the time of mutation of the records after death of the testator. Thus, there had been no occasion for the respondent No.3 to know that her title was at stake.
Mr. Das Choudhury, learned counsel has quite emphatically submitted that even after the disclosure made by the written statement as regards existence of the Will in favour of the defendant No.3, the plaintiff did not amend the plaint to challenge the validity of the Will. Thus, the evidence as led by the respondent No.3 [the defendant No.3 in the suit] has to be treated as unchallenged. The evidence of the plaintiff without pleading has to be discarded for the well-entrenched law that the evidence is only relevant when it is adduced in relation to the pleading.Page 24 of 30
[16] Having appreciated the rival contentions and the records, the following pertinent questions emerged in this appeal for determination:
(i) Whether the respondent No.3 has discharged the onus under Section 68 of the Evidence Act to prove the Will [Exbt.D]?
(ii) Whether the solitary circumstance of disinheritance by exclusion of the other legal heirs including the plaintiff and the defendants No.1 & 2 have been dispelled by the defendant No.3 to claim the title by dint of the Will?
(iii) Whether the post-execution circumstance, not related to the execution of the Will, can be treated as the suspicious circumstance or not?
[17] In K. Laxmanan vs. Thekkayil Padmini & Ors., reported in (2009) 1 SCC 354, the apex court had observed that the pleadings as understood and as defined under Order VI Rule 1 of the CPC consist only of a plaint and written statement. Any plea raised in the written statement which has not been dealt with by the plaintiff in the plaint, with a leave of the court can be traversed by filing a replication, but non-filing of replication does not and could not mean that there was admission of such fact as set up in the written statement. Therefore, the objection as raised by Mr. Das Choudhury, learned counsel for exclusion of the evidence on the Will as led by the plaintiff without any pleading in the plaint, cannot be sustained Page 25 of 30 inasmuch as the pleading embraces the statements both in the plaint and the written statement.
[18] Whether the respondent No.3 has discharged the onus under Section 68 of the Evidence Act to prove the Will [Exbt.D]?
It is evident from the records that the scribe of the Will testified as DW-2 and categorically stated that he was a licensed deed writer and the testator, Sashi Bhusan Das came to him and asked to prepare a Will and accordingly, he instructed in respect of the bequest. He identified the testator's handwriting and signature. In the cross-examination he was asked why the Will was not registered. He squarely denied the said suggestion by stating that he did not scribe the Will or he was influenced by the defendant No.3. The two attesting witnesses, namely Rakhal Ch. Das [DW-3] and Nurul Islam [DW-4] testified in the trial and clearly stated that the testator executed the Will on 26.01.1976 in their presence bequeathing his properties in faovur of his daughter, Aparna Das [DW-1]. Both the attesting witnesses have stated that they accompanied the testator to Sonamura deed writers officer where the testator instructed the deed writer, namely Abinash Ch. Das [DW-2] and expressed to bequeath his property in favour of his daughter, Aparna Das, the defendant Nio.3., Thereafter, deed writer [DW-2] perused all relevant document and papers regarding the properties of Sashi Bhusan Das. On such perusal, the said deed writer prepared a Will as per Page 26 of 30 dictation of Sashi Bhusan Das. After realizing the contents thereof, Sashi Bhusand Das, the testator put his signature on the Will. Both DWs 3 & 4 had attested the Will as the witness. The deed writer also affixed his signature on the testament. Though the objection in respect of admissibility was raised but from the records it appears that the plaintiff could not assign any tenable reason in support of that objection. It may be noted that the plaintiff did not challenge the signature of the testator on the Will [Exbt.D] and no cross-examination, in this regard, has been carried out when DWs-1,2,3 & 4 claimed that the Will had been executed bonafide by the testator. Hence, in our considered view onus of Section 68 of the Evidence Act has been well discharged by the defendant No.3.
[19] Whether the solitary circumstance of disinheritance by exclusion of the other legal heirs including the plaintiff and the defendants No.1 & 2 have been dispelled by the defendant No.3 to claim the title by dint of the Will?
It cannot be doubted that disinheritance unexplained in the Will may generate suspicious circumstances surrounding the execution of the Will. But in the Will the testator has revealed his mind why he had excluded his other 3[three] daughters quite elaborately. He has provided in the Will that out of his 4[four] daughter 2[two] elder daughters were given in marriage and they are well settled in their life. The said elder daughters had taken the responsibility of raising his 3rd daughter, Jharna Das. Page 27 of 30 He had helped them financially by defraying their educational expenses. Jharna Das would engage himself in employment and that was his firm belief and for that reason he excluded Jharna Das from the bequest and gave the property as described in the schedule to Aparna Das, the defendant No.3. Someone may question the prudence of the testator but for purpose of suspicious circumstances it is not the prudence which is to be considered by the court but whether there is any explanation for such disinheritance is given or not, is to be the basis of consideration. It is not the merit of decision which is likely to be considered by the court. When the testator had revealed his mind and given reasons that denotes that that was his conscious decision to exclude the other 3[three] daughters from the bequest. Correctness of the decision or prudence cannot be questioned for purpose of finding out the suspicious circumstance. The reasons as given in the testament by the testator have sufficiently revealed his faculty and the state of mind which was quite sound. Thus, we do not find any difficulty to hold that the testament [the Will] was executed by the testator having the requisite testamentary capacity. [20] Whether the post-execution circumstance, not related to the execution of the Will, can be treated as the suspicious circumstance or not?
Post-execution circumstances may in some occasions be treated as additional imput to the suspicious circumstances which Page 28 of 30 surround the execution of the Will. But when the execution of the Will has been proved to be beyond any suspicious circumstances such post-occurrence circumstance such as disclosure of the Will to other person at a belated stage becomes wholly irrelevant. Moreover, DW-1 has testified that she does not know that whether any other property jointly owned by the plaintiff, other than the suit land. She has further testified that during his lifetime her father had gifted a portion of his land to her mother by executing a registered gift deed. The said gifted land was subsequently sold by the plaintiff and the defendants. She has stated that she did not institute any action for having probate of the unregistered Will. She has categorically stated during the cross-examination as follows:
―I came to learn about the existence of that unregistered Will about one year ahead of the date of death of my other and I came to learn about that unregistered Will from my mother. It is true that I did not make any attempt to take the Will property in my possession and also to obtain record of right in respect of that property after death of my mother and till the date of institution of the suit.‖ The Will is not a document to be mandatorily registered and as such, non-registration of the Will by itself cannot constitute suspicious circumstance surrounding its execution. In Samar Krishna Saha (supra) Gauhati High Court has clearly observed that probate of the Will will not be required to be obtained by Hindu in respect of a Will made regarding immovable Page 29 of 30 property situated in the State of Tripura for the reason that the state of Tripura has admittedly been never part of erstwhile Bengal. That was the reason why by the previous judgment dated 23.08.2013 the suit was dismissed holding that in absence of probate the defendant No.3 cannot take benefit of the Will.
This court had interfered the said finding as stated above and set aside the said judgment dated 23.08.2013 and the suit was remanded for fresh hearing. Hence, the same issue cannot be re-
agitated by the plaintiff against the defendant No.3. If agitated that would be barred under constructive res judicata [see Section 11, explanation (iv) of the CPC]. The defendant No.3 has plainly stated that she did not take any action on the Will till the suit is instituted. Having regard to the circumstances including the circumstance of execution of the Will, this court is of the view that at the relevant point of time there was no law that within a certain period, the action on the Will has to be taken by the propounder or the beneficiary of the Will. Having observed thus, we have no doubt in our mind that in the present case, the said post-occurrence circumstance cannot be treated as the suspicious circumstance to provide further assurance inasmuch as there are no suspicious circumstances surrounding the execution of the Will [Exbt.D].Page 30 of 30
[21] The appeal, therefore, is devoid of merit and the same is dismissed. The judgment dated 20.12.2014 as challenged under this appeal stands affirmed.
Draw the decree accordingly.
Send down the LCRs thereafter.
JUDGE CHIEF JUSTICE Sujay