FIRST APPEAL No.374 of 1998 Against the Judgment and Decree dated 21.04.1998 passed by III Addl. District Judge, Vaishali at Hajipur in Probate Case No.9 of 1981. ------- SUNAINA DEVI ------------Opposite Party- Appellant Versus LALLITA DEVI. --------------Applicant-Respondent For the Appellant – Mr. Surendra Kishroe Thakur, Advocate - Mr. Alok Kumar Jha, Advocate For the Respondent – None Dated : 13th day of August, 2010 P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------- J U D G M E N T Mungeshwar Sahoo, J. This First Appeal has been filed under Section 299 of the Indian Succession Act by the Opposite Party-appellant, Sunaina Devi against the Judgment and Decree dated 21.04.1998 passed by the then learned III Addl. District Judge, Vaishali at Hajipur in Probate Case No.9 of 1981 allowing the probate application filed by the applicant-respondent, Lalita Devi. (2) The applicant-respondent, Lalita Devi filed the aforesaid probate case alleging that Pyarelal Thakur was the owner of the property. He died leaving behind Ramsharan Thakur and Ramavtar Thakur who came in possession of the property. Ramavtar Thakur died issueless in 1943 leaving behind his only widow, Chaniya Thakurain. Ramsharan Thakur had a son Ram Anugrah Thakur who 2 died in 1958 leaving behind his son Devendra Thakur, widow Saryug Thakurain and daughter Lalita Devi. On the death of Ramavtar Thakur his widow, Chaniya Thakurain came in possession. Devendra Thakur also died in 1977 leaving behind his widow Sunaina Devi, the appellant. The further case is that because Chaniya Thakurain had no son, the applicant-respondent was leaving with her and looking after her. Chaniya Thakurain being satisfied with her service executed and registered a deed of will on 18.11.1978. Ratneshwar Jha and Rajkumar Tiwari are the two attesting witnesses of the will. Chaniya Thakurain executed the said will in sound, health and mind. After her death, the applicant came in possession of her property. On the basis of these facts, the applicant prayed for grant of probate. (3) The appellant-Sunaina Devi although appeared but did not file any written statement and did not contest the case. So, the learned Court below proceeded ex-parte and allowed the probate application. (4) Mr. Jha, the learned counsel appearing on behalf of the appellant, submitted that the appellant was not given sufficient time to file written statement and the learned Court below proceeded ex- parte. The learned counsel further submitted that although the appellant was not given sufficient time then also in the facts and circumstances of the case and the materials available on record, the learned Court below could not have allowed the application because 3 the alleged will was never brought on record according to Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. The learned counsel submitted that both the attesting witnesses are alive but none of them have been examined as required under the law. The learned counsel relied upon various decisions. Although the respondent was represented by her learned counsel in this Appeal but nobody appears when the Appeal was heard. (5) In view of the above facts and circumstances, the only point arises for consideration is as to whether the impugned Judgment and Decree passed by the Court below is sustainable in the eye of law. F I N D I N G S (6) In the application for probate, it has specifically been mentioned that the will is attested by two witnesses, namely, Ratneshwar Jha and Rajkumar Tiwari. To prove her case, 3 witnesses have been examined by the applicant-respondent. A.W.1 is Lalita Devi, the respondent herself. A.W.2 is Ramchandra Jha and A.W.3 is Indranath Jha. (7) A.W.2 has stated that the scribe, Mahendra Prasad after scribing the will at the instance of Chaniya Thakurain read over and explained to her making her understanding the contents and obtained her left thumb impression. Ratneshwar Jha had signed on behalf of Chania Thakurain. Ratneshwar Jha and Rajkumar Tiwari 4 had signed as witnesses on the request of Chaniya Thakurain. Ramkumar Tiwari is in collusion with opposite party. The scribe, Mahendra Prasad has died and Ratneshwar Jha is transless since 4-5 years. A.W.3, Indranath Jha has identified the signature of Ratneshwar Jha. A.W.1, the application has also in the last line of her examination in Chief has stated that Rajkumar Tiwari has gone in collusion with opposite party. (8) In view of above facts, it appears that none of the attesting witnesses have been examined to prove the will as required under Section 68 of the Indian Evidence Act. From perusal of the evidence of A.W.3, it appears that it is not in conformity with the provision as laid down in Section 63 (c) of the Indian Succession Act. From perusal of the record, it appears that a mere statement has been made by A.W.1 and A.W.3 that one of the attesting witnesses, Rajkumar Tiwari has gone in collusion with the appellant. Likewise, so far Ratneshwar Jha is concerned, A.W.3 has stated that he is not seen for last 4-5 years. From perusal of the lower Court record, it appears that no summons were ever issued to any of the attesting witnesses. The applicant-respondent was allowed to prove the will according to Section 69 of the Indian Evidence Act. (9) In similarly situated case, Division Bench of the Hon’ble Calcutta High Court in the case of Amal Shanker Sen Vs. Dacca Cooperative Housing Society Ltd. A.I.R. (32) 1945 Calcutta 350 has held at page 352 as follows : 5 “XXXX………….In order that S. 69, Evidence Act, may be applied, mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient. It is only when the witness does not appear even after all the processes under O. 16, R.10, which the Court considered to be fit and proper had been exhausted that the foundation will be laid for the application of S.69, Evidence Act…….” (10) In another decision reported in A.I.R.1939 Calcutta 688 (Hare Krishna Panigrihi Vs. Jogneshwar Panda), the Hon’ble Calcutta High Court has held as follows : “This presupposes in my opinion that the witness is actually produced before the court and then if he denies execution or his memory fails or if he refuses to prove or turns hostile, other evidence can be admitted to prove execution. In the case referred to above the witness was actually before the court and afterwards turned hostile. In this case, however, the witness was not before the Court at all and no question of denying or failing to recollect the execution of the document did at all arise. The plaintiff simply took out a summons as against the witness and nothing further was done later on. In a case like this where the attesting witnesses are not before the Court, S.71, Evidence Act, has in my opinion, got no application. In such cases it is the duty of the plaintiff to exhaust all the processes of the Court in order to compel the attendance of any one of the attesting witnesses and when the production of such witnesses is not possible either legally or physically, the plaintiff can avail himself of the provisions of S.69, Evidence Act.” (11) In the recent decision, the Hon’ble Supreme Court in the case of Babloo Singh Vs. Ram Sahay A.I.R.2008 (S.C.) 2485 at paragraph 17 and 18 approved the above two decisions of the Hon’ble Calcutta High Court, i.e., Amal Shanker Sen’s case and Hare Krishna Panigrihi case (Supra). (12) As stated above, A.W.3 has not even identified the 6 signature of Rajkumar Tiwari, one of the attesting witnesses and his evidence is not according to Section 63 of the Indian Succession Act. (13) The Hon’ble Supreme has also held in the said decision that the Court while granting probate of the will must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background fact may also be taken note of. Thus in addition to proving the execution of the will by examining the attesting witnesses the prepounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. The executant of the will in this case appears to be illiterate lady and so she put her left thumb impression. There is no evidence to the effect that the testator put her left thumb impression after fully understanding the contents of the will and the effects thereof. The only evidence is that A.W.3 has stated that scribe read over and explain to her and obtain left thumb impression. (14) In view of my above discussion, it appears that will in question which has been marked Exhibit ‘1’ was not proved according to Section 63 of the Succession Act and 68 of the Evidence Act and, therefore, it could not have been marked as Exhibit in the case. The learned Court below wrongly allowed the applicant to prove the will according to Section 69 of the Evidence Act without exhausting the process under Order 16 Rule 10. 7 Moreover, the witnesses examined by the applicant who have tried to prove the will u/s 69 Evidence Act have not been able to prove the same according to law. (15) On the basis of above discussion, I find that the learned Court below has wrongly allowed the probate case granting probate to the will which was not brought on record according to law. Therefore, the impugned Judgment and Decree are not sustainable in the eye of law. Accordingly, this Appeal is allowed. The impugned Judgment and Decree are set aside and the probate case of the applicant-respondent is dismissed. No order as to costs. Patna High Court, Patna Dated 13 th, August, 2010 AFR/ Sanjeev (Mungeshwar Sahoo, J.)