IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.65 of 2002 Against the Judgment and Decree dated 19.01.2002 passed by Sri Syed Inamuddin Daudi, 2nd Addl. District Judge, Bhojpur at Ara in Title Suit No.3 of 1981. =================================================== Hari Nath Thakur & Anr ………….Plaintiffs- Appellants Versus Sri Bhagwan Thakur & Ors ………..Defendants-Respondent/s =================================================== Appearance : For the Appellant/s : Mr. Anish Chandra Singh, Advocate For the Respondent/s : Mr. Vinay Kirti Singh, Advocate Mr. Janardan Prasad Singh, Advocate Dated : 15thday of July, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The plaintiffs have filed this First Appeal against the Judgment and Decree dated 19.01.2002 passed by Sri Syed Inamuddin Daudi, the learned 2nd Addl. District Judge, Bhojpur at Ara in Title Suit No.3 of 1981 arising out of probate case No.46 of 1980 whereby the learned Court below dismissed the plaintiff's suit for grant of letters of administration. 2. The plaintiffs-appellants filed the probate case No.46 of 1980 for the grant of letters of administration on the basis of will executed by Raghu Mungeshwar Sahoo, J. - 2 - Hajam on 03.01.1928. According to the plaintiff’s case, Raghu Hajam executed the will on 03.01.1928 in favour of Mostt. Daulatia and Nagina Hajam with respect to the property mentioned in Schedule ‘A’. The said Will was registered on 04.01.1928. At the time of execution of the Will, the testator was in the state of sound mind and body. After fully understanding the contents of the Will, Raghu Hajam executed aforesaid Will. The attesting witnesses attested the Will at the instance of testator. Daulatia Devi died in 1940 during life time of testator, Raghu Hajam. Her husband had pre-deceased her. Raghu Hajam himself died in the year 1944 issueless. Raghu Hajam had 4 great grand son apart from the two plaintiffs, namely, Shivpujan Thakur, Ramanand Thakur, Bhola Thakur and Takhman Thakur, sons of Ramdas Thakur. Shivpujan and Bhola both died during the pendency of the suit and their legal representatives have already been substituted. Ram Nagina Hajam came in possession of the suit property on the death of Raghu Hajam. Nagina Hajam died in 1950 leaving behind the plaintiffs and widow. The widow also died during the pendency of the suit. 3. The further case is that the said Will was scribed by Gopalji Sahay which was read over and explained to the testator who after understanding the contents of the Will put mark and the execution portion was signed by Ganga Dayal for Raghu Hajam at the instance of Raghu Hajam. Budhu Sah, Sheo Nath, Ram Nagina Das, Parma Nand Pandey were present and saw the execution of the Will and the attesting witnesses attested the Will in presence of the testator. On these facts, the plaintiffs prayed for issuance of letters of administration. - 3 - 4. Objection was filed on behalf of Sheo Pujan Thakur, Bhola, Ramanand and Lakhman Thakur, sons of Ramdas Thakur. According to the objectors, Vansropan Hajam was the common ancestor of the parties. He had two sons, Tapsi Hajam and Louhar Hajam. Lauhar Hajam had two sons, Rahiman Hajam and Raghu Hajam. Tapsi Hajam had two sons, namely, Kukur Hajam and Neur Hajam. The line of Kukur Hajam extinct. Neur Hajam had 3 sons, Khub Lal, Shiv and Banarsi. Ram Nagina the father of the plaintiffs is the son of Banarsi whereas the objectors are the grand son of Khub Lal Hajam. The alleged deed of Will dated 03.01.1998 is forged and fabricated document. In the year 1928, Raghu Hajam had no sound disposing mind and was incompetent to execute the deed of Will. Ram Nagina Hajam never came in possession over the properties mentioned in Schedule ‘I’ of the petition. The legacy lapsed, therefore, no letters of administration can be granted. The plaintiffs are not in possession of the suit property and that the Will was never read over and explained to Raghu Hajam. After death of Raghu Hajam, all the properties are in joint possession of the objectors and the applicant’s ancestor and rent was paid jointly. 5. On the basis of the aforesaid pleadings of the parties, the probate case was converted to Title Suit No.3 of 1981. The following issues were framed by the learned Court below : (i) Is the suit as framed maintainable ? (ii) Is the suit barred by law of limitation and the principle of estoppel, waiver and acquisence? (iii) Have the plaintiffs any valid cause of action to file the suit? (iv) Is the deed of will executed by Raghu Hazam genuine and valid? - 4 - (v) Are the plaintiffs entitled to get a letter of administration in their names for the properties mentioned in Schedule ‘A’ of the plaint? (vi) Are the plaintiffs entitled for reliefs claimed by them? (vii) To what other relief or reliefs plaintiffs entitled to? 6. After trial, the learned Court below came to the conclusion that the plaintiff failed to give any explanation for not filing probate case in between 1944-1950 by Ram Nagina Hajam because Raghu Hajam died in 1944 and Ram Nagina Hajam died in 1950. Thereafter, also the plaintiffs kept mum for more than 20 years and no explanation has been given for the long delay which creates a reasonable doubt about the genuineness of the Will vide paragraph 9 of the Judgment. The learned Court below disbelieved the evidence of P.W.7 on the ground that he is illiterate man and, therefore, the Will has not been proved according to provision of law. The learned Court below also found that Raghu Hajam died at the age of 28 to 36 years after executing the Will on the ground that he is issueless which appears to be not believable because on the date of execution of Will, he was young. This fact again creates suspicion in the mind. Ultimately, therefore, the learned Court below at paragraph 14 recorded the findings that the plaintiffs have not been able to prove that the Will in question was genuine and no explanation has been given for non-filing of probate for several decades after death of testator. On this findings, the learned Court below dismissed the application of the plaintiff. 7. Mr. Anish Chandra Sinha, the learned counsel for the appellant submitted that the learned Court below has wrongly appreciated the oral evidence of the plaintiff who all have stated that the Will was executed in their presence by the testator. The learned counsel further submitted that the Limitation Act will not apply for filing application for grant of letters of - 5 - administration but the learned Court below has wrongly held that the plaintiffs have failed to explain the delay. The appellants were in possession of the property on the basis of Will and there was no threat to their title and, therefore, there was no occasion to file probate case earlier. To prove their possession, they have filed documentary evidences but the learned Court below failed to consider the effect of the said evidences. The learned counsel strongly relied upon a decision of this Court reported in 2010 (4) P.L.J.R. 355 Smt. Nalini Mishra Vs. Braj Kishore Mishra and submitted that in that case also after more than 50 years of execution of Will, probate case was filed before the High Court and it was held that Article 137 of the Limitation Act will not apply and allowed the probate case. The fact of that case is fully applicable in the facts of the present case, but the learned Court below wrongly dismissed the plaintiff’s case raising suspicious which are not tenable. Since the scribe and the attesting witness died, the plaintiff proved the Will according to the provision as contained in Section 69 of the Evidence Act. The learned Court below failed to consider the evidence in its right prospective and dismissed the application. Moreover, the Will is registered Will. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff’s application for grant of letters of administration be allowed. 8. On the other hand, the learned counsel appearing on behalf of the respondents submitted that the appellant failed to explain the suspicious circumstances and also failed to explain the long delay for not filing the probate case although plaintiffs were knowing about the alleged Will. Intentionally, the plaintiffs did not file the probate case and allowed the so called scribe and the attesting witnesses to die and thereafter - 6 - probate case has been filed and moreover, the Will has not been proved according to Section 69 of the Indian Evidence Act. As has been found by the learned Court below, Raghu Hajam was aged about 28 years to 36 at the time of execution of Will as has been admitted by the witnesses of the plaintiffs themselves. In such circumstances, it is not believable that he would have executed the Will at this young age stating that he is issueless. Nothing has been mentioned as to whether he was married or not and whether he will not marry because that was the marriageable age. There is no explanation as to why at the age of 36 years, one man will execute Will stating that he is issueless. The learned counsel for the respondent relied upon a decision of the Apex Court reported in 2009 (3) P.L.J.R. 80 (S.C.) Krishna Kumar Sharma Vs. Rajesh Kumar Sharma and submitted that Article 137 of the Limitation Act is very much applicable and the plaintiffs are required to file the probate case within 3 years from the date when right to apply accrued. The delay beyond 3 years after the testator’s death would raise suspicion and greater the delay, greater would be the suspicion. Therefore, the plaintiff were required to explain the said long delay from the death of Raghu Hajam which took place in the year 1944 or even after death of Nagina Hajam in the year 1950. Nagina Hajam was alive for more than 6 years but he never applied for grant of probate which means that the Will itself was never acted upon. According to the learned counsel, the decision relied upon by the appellant is not applicable in the present case because in that case, i.e., Smt. Nalini Mishra case, the Will in question was admitted. The learned counsel further submitted that because during the life time of Nagina Hajam after death of testator, Raghu Hajam, he never claimed any legacy under the Will, therefore, no legacy vested on the plaintiffs on his death in the year 1950. In support of this - 7 - proposition, the learned counsel relied upon decision of the Apex Court reported in 2011 (3) Supreme 1, Siddamurthy Jayarani Reddy Vs. Godi Jaya Rami Reddy & Anr. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. 9. In view of the above contentions of the parties, the points arises for consideration is as to whether the plaintiffs have been able to prove the genuineness of the Will and have been able to explain the suspicious circumstances and whether the impugned Judgment and Decree are sustainable in the eye of law. 10. It is well settled that there is one important feature which distinguishes Will from other documents. Unlike other documents the Will speaks from the death of the testator, and so when it is propounded or produced before a Court, the testator who has already departed, the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Whenever any suspicious circumstances is shown or is apparent from the facts of the case pleaded by the parties, the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator. The persons of - 8 - such suspicious circumstances, naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. Mere registration of Will not enough to presume genuineness. 11. In the present case, admittedly none of the attesting witnesses and even scribed is alive. The plaintiffs to prove the due execution and attestation of the Will had examined witnesses. P.W.5 has stated that Raghu Hajam had executed Will in favour of Ram Nagina Thakur. Ram Nagina Thakur came in possession of the property. The case of the plaintiff is that Will was executed in favour of Ram Nagina and Daulatia both. According to this witness, the Will was executed by Raghu Hajam in favour of Ram Nagina Thakur. P.W.6 has stated that in his presence the Will was executed by Raghu Hajam in favour of Ram Nagina and Daulatia. The scribe, Gopalji Sahay after writing the Will read over and explained to Raghu Hajam who put his left thumb impression which was identified by Ganga Dayal. He identified the left thumb impression Raghu Hajam on the Will. This evidence of this witness itself indicates how he is deposing falsely. He is even identifying the left thumb impression of Raghu Hajam. No doubt he has stated that he was working as Tahsildar of Harihar Singh but he is unable to say the father’s name of Harihar Singh. He is also unable to say the father’s name of Raghu Hajam. He is unable to say how many brothers Raghu Hajam had. He is unable to say the name of husband of Daulatia. He is unable to say the father’s name of Nagina Hajam. At paragraph 5 of his cross-examination, he has stated that he had seen Ram Nagina Hajam at the time of scribing the Will. It appears that this witness is of different village. Raghu Hajam was of different village. From the cross-examination as stated above, he is unable to say anything about the - 9 - parentage and relation of either Raghu or Daulatia and Ram Nagina. Further according to this witness, Ram Nagina Hajam was present when the Will was scribed. In view of the above evidence of this witness in the cross- examination, it is not safe to rely him that he was present in fact when the Will was either executed or attested. As stated above this witness of is different village and he has not signed the Will. Why he was present only has not been explained. In view of the above discussion, in my opinion only because he baldly stated that in his presence the Will was scribed and attested it is not reliable. 12. P.W.7 is also of different village and is son-in-law Ganga Dayal Roy. His evidence is in the same line as that of P.W.6. However, he did not identify the attesting witness, Ganga Dayal Ray, although he stated that he was his father-in-law. Admittedly, he has not signed in the Will. In the cross-examination, he has admitted that he is illiterate man. He has stated that the scribe had gone to the house of Raghu Hajam. Nobody had called this witness and just he was passing by so he stood, therefore, 1-2 minutes and then went away. In his presence, no talk took place. The documents had already been signed vide paragraph 11 of his cross-examination. In view of this statement in the cross-examination that he is illiterate and he was present, therefore, only one or two minutes in the house of Raghu Hajam and the documents had already been signed and he did not talk to anyone, his evidence about the due execution and attestation of the Will is not at all reliable. Since he is illiterate how he can identify and say that this Will was executed and attested. P.W.8 is the brother-in-law of Nagina Hajam. He has also deposed in the same line as that of P.W.6 & 7. However, he has admitted that he has not signed the Will. At paragraph 3, he has categorically stated that at the time of scribing of the deed, Ram - 10 - Nagina and Daulatia both were present. Further, he has stated that he cannot say about the parentage of any of the attesting witness and that he was not called by anyone at the time of execution of the Will. In view of the above evidences of the witnesses examined by the plaintiffs, it appears that none of them are reliable witness. According to these witnesses as stated above, they have admitted the fact that at the time of execution of the Will and attestation thereof, Daulatia Devi, Ram Nagina Hajam both were present there. Now, in view of this evidence, it becomes admitted fact. 13. In A.I.R. 1959 Supreme Court 443 H. Venkatachala Ayangar Vs. B. N. Timmajamma, the Apex Court has held that if it is shown that the propounder has taken prominent part in the execution of the Wills and has received substantial benefit under it, that itself is generally treated as a suspicious circumstances attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. Here as stated above, the plaintiffs-witnesses themselves admitted that Ram Nagina Hajam and Daulatia both were present which again is suspicious circumstances. There is no explanation at all given by the plaintiffs. 14. Further, from the evidence of the witnesses, it appears that at the time of execution of the Will, Raghu Hajam was aged about only not more than 36 years. He executed the Will stating that he is issueless. There is no explanation as to under what circumstances at the young age, he executed the Will. So far issueless is concerned, nowhere explanation has been given as to whether he was married or not or he was not intending to marry because at that time he was of marriageable age. This - 11 - again creates suspicion which has not been satisfactorily explained. Accordingly to the plaintiffs themselves, Raghu Hajam died in the year 1944 and prior to him, Daulatia Devi died in 1940 but Ram Nagina died in the year 1950. Why Ram Nagina did not apply for grant of probate during this long 6 years. There is no explanation. Even after death of Ram Nagina, the plaintiff kept mum till 1980, i.e., about 30 years. Here also, there is no explanation at all. The learned counsel appearing on behalf of the appellants submitted that sine the Will was acted upon and the father of the plaintiffs Ram Nagina was in possession and after his death, the plaintiffs were in possession, there was no occasion for filing probate case. The right to apply arose only in the year 1980. So far this explanation is concerned, it is the explanation given before the appellate Court only. There is no such explanation or pleading or statements either in the application for grant of probate or in the evidence of any of the witness. 15. The learned counsel relied upon 2010 (4) P.L.J.R.355 (Supra) and submitted that the fact of that case is similar to the present case. In the said case also, the Will was executed in the year 1936 and probate case was filed in the year 2003. From perusal of the said decision, it appears that in that case, the execution of the Will was admitted. It appears that one Akshaybhat Mishra executed the Will by his own handwriting. His signature and handwriting was not challenged by the Caveator. This Court found that justice Kulwant Sahay and late H.N. Chaubey were the attesting witness. The Will was executed in favour of his eldest grand son, Nawal Kishore Mishra and widow of Akshayabhat Mishra was given life interest therein. The Ceaveator claimed the property on the ground that widow was the limited owner in possession of the house which was subject matter of Will and was entitled for maintenance and then she become the absolute - 12 - owner according to Section 14 of the Hindu Succession Act, the Ceavator also inherited the property. On consideration of the evidences in that case, this Court found that the plaintiff has been able to prove that it was in the handwriting of the executor which was in favour of Nawal Kishore Mishra, his eldest grand son with stipulation that his wife would be entitled to maintenance during her life time. This Court also after discussing the evidences came to the conclusion that the attesting witnesses are well known dignitaries and one of them was retired Hon’ble Judge of Patna High Court whose signature was tallied with the records of Patna High Court and it was found to be correct. In view of the above facts of that case, in my opinion, it is not applicable in the present case. Here, the genuineness of the Will and signature of the executor is challenged vehemently. In the case before the High Court, there was no suspicious circumstances whereas in the present at our hand, we have seen there are many suspicious circumstances which have not been explained satisfactorily. The witness examined by the plaintiffs have not been able to prove the due execution and attestation of the Will in the present case whereas in the case before the High Court, Will was admitted one. 16. In 2009 (3) P.L.J.R. 80 (Supreme Court) Krishna Kumar Sharma Vs. Rajesh Kumar Sharma, the Apex Court has held that Article 137 of the Limitation Act is applicable in the applications for grant of probate or letters of administration. However, it has been clarified that the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased death. Delay beyond 3 years after the testator, death would arose suspicion and greater the delay, greater would be the suspicion and such delay must be explained but cannot be equated with the absolute bar of limitation. In - 13 - view of the Apex Court, therefore, the plaintiffs were required to explain delay beyond 3 years after the death of Raghu Hajam. Ram Nagina could have filed the probate case within 3 years from the death of Raghu Hajam but he did not file within during his life time till 1950. There is no explanation. Even after his death, the plaintiffs did not file the present case for 30 years. There is no explanation. 17. In view of my discussion, I find that the plaintiffs have failed to prove the due execution and attestation of the Will according to law. The plaintiffs also failed to explain the suspicious circumstances. Therefore, the learned Court below has rightly refused to grant letter of administration. I find no reason to interfere with the findings of the learned trial Court. Accordingly, the findings of the learned trial Court is hereby confirmed. 18. In the result, I find no merit in this First Appeal, thus this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to cost. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 15thday of July, 2011 Sanjeev/N.A.F.R.