(From The Judgment And Decree Dated ... vs Jogeswar Pati (Since Dead) on 30 November, 2024

[Cites 11, Cited by 0]

Orissa High Court

(From The Judgment And Decree Dated ... vs Jogeswar Pati (Since Dead) on 30 November, 2024

Sashikanta Mishra,J. This is an appeal by the Defendants against a reversing judgment dated 15.9.2011 followed R.S.A. No.352 of 2011 Page 1 of 24 by decree passed by the learned District Judge, Mayurbhanj at Baripada in R.F.A No.53/2010 whereby, the judgment dtd.28.8.2010 followed by decree passed by learned Civil Judge (Sr.Division), Baripada in C.S. No.167/2003 was reversed.

2. For convenience, the parties are referred to as per their respective status in the trial Court.

3. The plaintiffs filed the suit for declaration of their right, title and interest and recovery of possession over the suit land. Their case is that they and Defendant No.1 are the sons and Defendant No.2 is the daughter of Late Purna Ch. Pati. Purna Ch. Pati died in the year 1978. The Plaintiff No.2-Sarbeswar Pati filed T.S. No.53/1981 before the learned Sub-Judge, Baripada for partition of the joint family properties, which was preliminarily decreed on compromise on 28.3.1993. The mother of the parties was one of the defendants. On application of the parties for final decree, a Civil Court Commissioner was appointed who measured and divided the joint family properties R.S.A. No. 352 of 2011 Page 2 of 24 among the co-sharers. In the said partition, the widow of Purna Chandra Pati namely, Laxmi Dibya got more than 7 acres of land as described under Lot No.I to VIII of the B schedule attached to the plaint. The Plaintiffs and their mother filed Execution Case No.3/2002 for executing the final decree. Laxmi Dibya died on 27.5.2002 whereupon the Defendant No.1 filed Misc. Case No.11/2003 under Section 47 of C.P.C. with prayer for not allotting the share of Laxmi Dibya in favour of the remaining decree holders. The executing court excluded the suit land from the final decree. It is the further case of the plaintiffs that 10 years prior to her death, Laxmi Dibya was residing with the plaintiffs who were taking care of her. As such, she executed a Will on 6.10.1997 bequeathing her lands to them. The Will was prepared under her instruction and executed when she was in sound state of health and mind in presence of witnesses. On such facts, the plaintiffs filed the suit. The defendant No.1 contested the suit by filing a written statement disputing the plaint averments. It is his specific case that Laxmi Dibya had R.S.A. No. 352 of 2011 Page 3 of 24 never executed the Will consciously. She was not in a sound disposing state of mind, was illiterate and a Pardanashin Brahmin household lady. She was also suffering from different ailments. The plaintiffs, by practicing fraud by way of undue influence and misrepresentation managed to obtain the so-called Will without the knowledge and consent of Laxmi Dibya. The attesting witnesses to the Will are also the hench- men of the plaintiffs. The Plaintiffs and Defendant No.2 and the witnesses have connived to create the Will in question. That apart, Laxmi Dibya has not taken any independent advice for executing the Will.

4. Defendant No.2, being the sister of the parties filed a written statement entirely supporting the case of the plaintiff.

5. Basing on the rival pleadings, the trial court framed the following issues for determination;

(1) Whether the suit is maintainable?

(2) Whether there was any cause of action for the plaintiffs to bring the suit?

R.S.A. No. 352 of 2011 Page 4 of 24

(3) Whether the plaintiffs have right, title and interest over the suit land by virtue of the Will executed by Laxmi Dibya ?

(4) Whether the defendants are entitled for recovery of possession of the suit land?

(5) To what other relief, if any, the plaintiffs are entitled to?

6. After analyzing the oral and documentary evidence on record, the trial Court found that execution of the Will was surrounded by several suspicious circumstances, which were not explained satisfactorily by the plaintiffs being propounders of the Will. The trial court therefore, held that the document on the strength of which the plaintiffs claim their right, title and interest and possession over the property so bequeathed by the testatrix is not free from suspicion and their claim to that effect cannot be entertained. The suit was thus dismissed.

7. The plaintiffs carried the matter in appeal. Learned District Judge took note of the rival contentions and the grounds on which the trial Court had dismissed the suit. The appellate court thereafter R.S.A. No. 352 of 2011 Page 5 of 24 dealt with all the specific grounds and was of the view that the trial court had erred in disbelieving the execution of the Will by the testatrix and therefore, reversed the judgment by declaring the right, title and interest of the plaintiffs over the suit land and also issued direction for delivery of possession in their favour.

8. Being aggrieved, the defendant No.1 has preferred this Second Appeal, which was admitted on the following substantial question of law;

"Whether the finding of the lower appellate court that defendant no.1 has failed to prove the valid execution of Will Ext.1 suffers from perversity of non-

consideration of evidence on record and misconstruction of law."

9. Heard Mr. S.P.Mishra, learned Senior counsel for the Defendant No.1-appellant with Mr. A. Nanda and Mr. C.R. Nanda, learned counsel appearing for the plaintiff-respondents.

10. Mr. Mishra, learned Senior counsel, would contend that law mandates that a Will executed by an old illiterate and Pardanashin lady has to be proved to R.S.A. No. 352 of 2011 Page 6 of 24 have been so executed without any suspicious circumstances. Referring to the judgment of the trial Court, Mr. Mishra argues that in the instant case the Will was attended by several suspicious circumstances. The trial Court arrived at such finding entirely on the basis of the evidence on record. The First Appellate Court however, without framing points for determination as required under Order 41, Rule 31 of C.P.C. simply took note of the reasons ascribed by the trial Court to disbelieve the plaintiff's case and gave his own finding on such points without touching the evidence at all. This, according to Mr. Mishra, entirely vitiates the impugned judgment.

11. Per contra, Mr. C.Ṛ. Nanda would contend that all mandatory requirements for execution of a Will have been complied with in the instant case. It was also proved as per the provisions of Section 68 of the Evidence Act. The so-called suspicious circumstances projected by the Defendant No.1 are nothing but objections raised only for the sake of it. However, fact remains that the evidence on record clearly shows that R.S.A. No. 352 of 2011 Page 7 of 24 the testatrix was in good physical and mental strength and she executed the Will consciously without any pressure from any quarter and executed the document after fully understanding its consequences. According to Mr. Nanda, the trial Court had misread the evidence but the First Appellate Court rightly discarded such findings.

12. Section 63 of the Indian Succession Act deals with execution of Wills and reads as follows;

"63. Execution of unprivileged wills- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

R.S.A. No. 352 of 2011 Page 8 of 24

13. Section 68 of the Indian Evidence Act relates to proof of execution of document required by law to be attested and reads as follows;

"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:

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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

14. Thus on a conjoint reading of the aforequoted provision, it is manifest that the requirements enshrined under Section 63 of the Succession Act had to be strictly complied with for the execution of the Will, which in turn is to be proved in terms of Section 68 of the Evidence Act. In the case of Meena Pradhan and others v. Kamla Pradhan and another; (2023) 9 SCC 734, the Supreme Court observed as follows;

"A will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator's property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testators/testatrix, at the time of testing R.S.A. No. 352 of 2011 Page 9 of 24 the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation".

It was also held in the said judgment that;

Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the profounder to remove all legitimate suspicions before it can be accepted as testator's last Will. In such cases, the initial onus on the propounder becomes heavier.

xxx xxx xxx xxx xxx The test of judicial conscience has been involved for dealing with those cases where the execution of the Will is surrounded by Suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free will. As to suspicious circumstances, it has been held that they must be real, germane and valid and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance; for example, a shaky signature, a feeble mind an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefits etc. Thus, the broad parameters for accepting a will as valid have been summarized as follows; R.S.A. No. 352 of 2011 Page 10 of 24

(a) The testator signed the Will out of his own free Will,

(b) At the time of execution he has a sound state of mind;

(d) The Will was not executed under any suspicious circumstances."

It is needless to refer to more authorities in this regard as the judgment in Meena Pradhan (supra) more or less summarizes the long settled position with regard to execution and proof of Will. Another aspect that needs to mention is the law relating to proof of a Will executed an old, illiterate, ailing or Pardanashin lady.

15. In this regard, reference may be had to the oft quoted judgment of the Supreme Court in the case of Kharbuja Kuer v. Jangbahadur Rai; AIR 1963 SC 1203 wherein the Supreme Court held as follows;

"While affirming the principle that the burden is upon the person who seeks to sustain a document executed by a pardanashin lady that he executed it with a true understanding mind, it has been held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee, through Sir George Rankin, in Jagadish Chandra v. Debnath A.I.R. 1940 P.C.. Further citation is unnecessary. The legal position R.S.A. No. 352 of 2011 Page 11 of 24 has been very well settled. Shortly it may be stated thus. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by providing that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial".

16. This Court in the case of Narayan Mishra and others vs. Champa Dibya and others; AIR 1968 Ori 53 held as follows;

"The disposition made must be substantially understood and must really be the mental act, as its execution is the physical act of the person who makes it. The Court must be satisfied that the deed had been explained to and understood by the party under disability, either before execution or after it under circumstances showing that the deed has been executed with full knowledge and comprehension. Mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is, in itself, no real proof of a true understanding mind in the executant. In the case of execution of a deed by a paradnashin or illiterate lady, the law protects her by demanding that the burden of proof shall in such cases rest not with those who attack, but with those who rely on it. It must be proved affirmatively and conclusively that the deed was not only executed by, but was explained to and really understood by the grantor. Ordinarily, the Courts Insist on proof that the lady had independent legal advice although this may be an absolute and invariable rule and there may be exceptions when the lady is shown to have business capacity and strength of will and the deed is shown to be in the circumstances not an unnatural disposition of her property. But the general rule is that save in such exceptional cases, R.S.A. No. 352 of 2011 Page 12 of 24 the Court would demand affirmative proof on the subject of the lady's intelligent understanding and execution of a deed and would not readily hold this onus to have been discharged where it is not shown that the lady had any independent advice."

17. Thus, law demands that the burden and proof in such cases shall be on persons who rely upon the Will executed by a Pardanashin or illiterate lady.

18. It would now be proper to examine the findings of the courts below keeping the above referred positon of law in perspective.

As already stated, the Trial Court found several suspicious circumstances as narrated under Paragraph-9 of the Judgment. In a nutshell, the suspicious circumstances are enumerated as follows;

(i) The Will does not disclose why the testatrix disinherited one of her sons from her property and favoured the others.

          (ii)    The    relationship      between     the

          brothers was sour.

          (iii)   The    testatrix   was     under     the

          treatment of Plaintiff No.1.

R.S.A. No. 352 of 2011                                  Page 13 of 24
          (iv)   The Will itself shows that the

testatrix was aged about 80 years on the date of its execution. No certificate was appended to the Will sowing the testatrix to be in sound, physical and mental state.

(v) In the earlier suit, the plaintiffs, being the propounders of the Will were looking after the case on behalf of the testatrix.

(vi) There is no evidence that the testatrix had independent advice before execution of the Will.

(vii) The Will was scribed at Baripada but registered at Betnoti without any justified reason.

(viii) The Will was scribed in the office of the Advocate's clerk of the plaintiffs and by the son of the said Advocate's clerk and the plaintiffs played an active part in its execution.

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(ix) The testatrix was illiterate without ability either to read or write.

(x) Both the attesting witnesses are closely associated with the plaintiffs and the scribe.

(xi) The entire contents of the Will were not read over and explained to the testatrix at the time of its execution. It is relevant to note that in listing the different suspicious circumstances, the trial Court has meticulously referred to the corresponding evidence adduced by the parties.

19. Coming to the judgment of the First Appellate Court, it is seen that the objections raised with regard to the execution of the Will and its proof and the findings of the trial Court were examined under Paragraph-14. A bare reading of the analysis made by the 1st Appellate Court under 7 sub-paragraphs of paragraph-14 would show that the evidence on record has not been referred to in the least. What the First R.S.A. No. 352 of 2011 Page 15 of 24 Appellate Court appears to have been done is, to draw inference from the circumstances cited as suspicious. In other words, the First Appellate Court appears to have given his own explanation/interpretation of the suspicious circumstances to negative the views of the trial Court.

19.1. The First Appellate Court has held that since the Defendant No.1 was not residing with her but was residing with the Plaintiffs, it is natural that she would give her properties to them depriving him. This interpretation of facts, on the face of it, is untenable. Since the Will purports to be a departure from the natural line of succession by depriving one of the legal heirs from the property, it is absolutely necessary that proper reasons should be ascribed. The recitals of the Will do not in the least mention any reason as to why the testatrix decided to deprive one of her sons (and daughter) from her properties while favouring two other sons.

R.S.A. No. 352 of 2011 Page 16 of 24 19.2. The finding of the trial Court based on evidence regarding sour relationship/enmity between the brothers has been downplayed by the First Appellate Court by stating as follows;

"In the second place, the learned trial Court suspected the Will on the ground of enmity between the Plaintiffs/appellants in one hand and the Respondent No.1 on the other.

This enmity, in my view, could not have been considered as a ground to suspect Will. At the cost of repetition, it may be mentioned here that the plaintiffs-appellants were taking care of the testatrix Laxmi Dibya for last 10 years of life. xxx xxx xxx."

It is evident that the First Appellate Court has not considered the correctness of the reasoning adopted by the trial Court at all, rather has attempted to draw his own inference from the facts, which is unacceptable. The fact that the relationship between the propounder of the Will and the person deprived there from was far from cordial being bitter, the same certainly assumes great significance when considered along with other suspicious circumstances. R.S.A. No. 352 of 2011 Page 17 of 24 19.3. The First Appellate Court has not laid much emphasis on the age of the testatrix on the ground that she had proceeded to Betnoti for registering the Will which by itself shows that she was in a fit state of health and mind. It was further held that the Defendant No.1 did not adduce any convincing evidence that the testatrix was suffering from diseases and was not in a fit state of health and mind to execute the Will.

Firstly, in view of the settled position of law discussed earlier, the burden of proving a Will executed by an illiterate lady on the face of suspicious circumstances is entirely on the propounders which cannot be shifted to any other person. The First Appellate Court has committed manifest illegality in trying to place the burden on Defendant No.1. Secondly, merely because the testatrix, an old lady of 80 years, had proceeded to Betnoti to execute the Will does not, ipso facto, lead to the irresistible conclusion that she was in a fit physical and mental state at that time particularly, on the face of the evidence on record R.S.A. No. 352 of 2011 Page 18 of 24 that she was being treated for her illness by the Plaintiff No.1, who is an Ayurvedic Doctor and all her affairs including the previous suit between the parties were being looked after by the Plaintiffs on her behalf. 19.4. As regards the registration of the Will at Betnoti despite its execution at Baripada which the trial Court found to be odd, the First Appellate Court has held that the parties are residents of village Baisinga which is nearer to Betnoti than Baripada. It seems this is an explanation supplied by the First Appellate Court himself and is self-contradictory inasmuch as if they were residents of Baisinga then why did they take the trouble of going to Baripada for execution of the Will in the first place. Accepting that they did so because their Advocate's office is at Baripada then also, it does not stand to reason as why after going all the way to Baripada for execution of the Will, the testatrix would choose not to get it registered at Baripada itself but do so at a third place i.e. Betnoti.

R.S.A. No. 352 of 2011 Page 19 of 24 19.5. By holding that two witnesses were examined on behalf of the propounders to prove the Will, the First Appellate Court has tried to nullify the contention advanced that the propounders had taken active part in execution of the Will. In this context, it would be apposite to note that execution of the Will and its proof are entirely different things. In the instant case, the challenge is not so much to the proof of the will but, to the genuineness of execution in light of the suspicious circumstances put forth. One of most significant facts creating suspicion regarding genuiness of the will is when the propounder himself takes an active part in its execution. Unless that is explained to satisfaction, the mere fact that the Will was proved in terms of Section 68 of the Evidence Act would be of no consequence. The First Appellate Court has not considered this aspect at all.

19.6. The trial Court drew adverse inference against the plaintiffs and according to this Court, rightly so, for non-examination of Defendant No.2, the daughter of the testatrix who was also deprived of any share R.S.A. No. 352 of 2011 Page 20 of 24 from the property. This is a significant omission, which could have lent credence to the case of the plaintiffs that the testatrix willfully deprived one of her sons and her only daughter from the property for valid and justified reasons, but she was not examined. The First Appellate Court strangely held that under such circumstances, the Defendant No.1 could have also examined her but, not having done so, cannot question the Will. This is again an absurd proposition, which strongly militates against the aforequoted principle that the burden of proof in these cases is always on the propounder and not on the persons affected by the Will.

19.7. However, the finding of the trial Court that the Will was not probated has been rightly held to be incorrect by the First Appellate Court. As per Section 57 of the Indian Succession Act, the Will having been executed by an erstwhile princely State i.e. Mayurbhanj, is not required to be probated. R.S.A. No. 352 of 2011 Page 21 of 24

20. Notwithstanding the observations of this Court with regard to the findings of the First Appellate Court, even viewed independently, the admitted and undisputed facts of the case, the evidence on record as considered in the backdrop of the long-settled position of law, strongly suggest that the execution of the Will was not free from reasonable doubts at all in view of the thick veil of suspicious circumstances surrounding it. Among the circumstances narrated and discussed in the preceding paragraphs, the ones that stand out are firstly, the absence of evidence to show that the testatrix was in sound physical and mental state at the time of execution of the Will. Secondly, there is no evidence to show that she had independent advice before executing the Will. Thirdly, no valid reason is ascribed for departing from the natural line of succession and no evidence to show that the testatrix was conscious of the consequences of her action. Fourthly, the fact that the testatrix was staying with the propounders for a considerable length of time who were looking after all her affairs, including legal affairs, R.S.A. No. 352 of 2011 Page 22 of 24 shows that they were in a positon to dominate her Will. This coupled with the overwhelming evidence that the propounders had actively participated in the execution of the Will strongly suggests that it was the product of undue influence on the testatrix by them, which makes the entire transaction all the more doubtful.

21. Thus, from a conspectus of the analysis of facts, evidence, law and the discussion made hereinbefore, it is evident that there are several suspicious circumstances surrounding the Will, which were not explained satisfactorily by the propounders. According to this Court, the trial Court rightly disbelieved and rejected the contentions put forth as regards genuineness of the Will and refused to decree the suit. The First Appellate Court, as already discussed, proceeded on erroneous premises and without analyzing the evidence on record found fault with the trial Court's judgment, but in the considered view of this Court, the inferences drawn by the First Appellate Court are not tenable in the eye of law. R.S.A. No. 352 of 2011 Page 23 of 24

22. For the foregoing reasons therefore, this Court holds that the impugned judgment passed by the First Appellate Court being unsustainable in the eye of law warrants interference. The substantial question of law framed is thus answered in favour of Defendant No.1.

23. In the result, the appeal is allowed. The impugned judgment passed by the First Appellate Court is hereby set aside. The judgment passed by the trial Court is confirmed.

.................................. Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.D.R.-cum-Addl. Principal Secretary Reason: Authentication Ashok Kumar Behera Location: High Court of Orissa, Cuttack Date: 30-Nov-2024 13:36:04 R.S.A. No. 352 of 2011 Page 24 of 24

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