FIRST APPEAL No. 161 OF 2005 Against the Judgment and Decree dated 16.02.2005 passed by Sri Brahma Nand Prasad, Addl. District Judge, Fast Track Court, Munger in Probate Case No.5 of 1992 converted to Title Suit No.5 of 2001. BIJENDRA KUMAR GUPTA …………..………. Plaintiff-Appellant Versus BIRENDRA KUMAR GUPTA . ……….……… Defendant-Respondent ******** For the Appellant : Mr. Rudra Deo Kumar Sinha, Advocate For the Respondent : None. Dated : 19thday of April, 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 plaintiff has filed this First Appeal against the Judgment and decree dated 16.02.2005 passed by Sri Brahma Nand Prasad, the learned Addl. District Judge, Fast Track Court, Munger in Probate Case No.5 of 1992 which was subsequently numbered as Title Suit No.5 of 2001 whereby the learned Court below dismissed the suit with cost. 2. The plaintiff-appellant filed the application for grant of probate or letters of administration which was registered as probate Case No.5 of 1992. The defendant-respondent contested the matter and, therefore, in view of Section 295 of the Indian Succession Act, the said application was renumbered as Title Suit No.5 of 2001. Mungeshwar Sahoo, J. 2 3. The plaintiff’s case in short is that the writing annexed with the application is the last will and testament of Sukhdeyi Devi wife of late Shyam Sunder Narayan. The will is dated 02.11.1988. Sukhdeyi Devi died on 22.11.1988. The said will was duly executed in favour of the plaintiff by Sukhdeyi Devi at her residence which was duly attested. The plaintiff was serving Sukhdeyi Devi as his mother and out of love and affection, she executed the will in presence of the witnesses. Sukhdeyi Devi was the wife of plaintiffs father’s brother. Chit Sundar Narayan, the father of the plaintiff is brother of Shyam Sunder Narayan. She died leaving behind Chit Sundar Narayan who would have inherited the property if there was no will. Therefore, the plaintiff prays for grant of probate or in alternative prayed for grant of letters of administration. 4. The defendant-respondent who is own brother of the plaintiff filed written statement contesting the case. According to him, his case in short is that the alleged Will is forged, fabricated and the same was never executed by Mostt. Sukhdeyi Devi. The property described in Will is part and parcel of joint family dwelling house of the parties which was left behind by common ancestor, late Rajendra Narayan. Rajendra Narayan died in jointness with his 3 sons, namely, Shyam Sundar Nayaran, Chit Sundar Narayan and Shivsundar Narayan along with several grand children who came in joint possession of the house. Shyam Sundar Narayan died issueless in the year 1969 leaving behind Mostt. Sukhdeyi Devi. Shivsundar Nayaran also died leaving behind his wife, Sudha Rani and two sons Manoj Kumar and Sanjeev Kumar and four daughters who also jointly succeeded and came in joint possession of the dwelling house. Smt. Sudha Rani filed Title Suit No. 82 of 1984 in the Sub Judge 1st Munger for partition of the ancestral dwelling house against said Mostt. 3 Sukhdeyi Devi, Chit Sundar Narayan and his sons and grand sons. In the said suit, Mostt. Sukhdeyi Devi appeared and filed written statement on 23.07.1985 admitting jointness and joint possession of the parties. Chit Sundar Narayan filed a written statement contending that he was not pulling well with Mostt. Sukhdeyi Devi and that there had already been partition of the said dwelling house left by Rajendra Narayan. However, the said suit was dismissed as withdrawn on 02.09.1987. Subsequently, Sanjeev Kumar, s/o late Shiv Sundar Naryan filed Title Suit No.190 of 1987 in the said Court for partition of the ancestral dwelling house wherein all the heirs of Rajendra Narayan were made party. The alleged purchasers Dharam Veer Prasad Singh from Sukhdeyi Devi were also made party-defendants alleging that she sold suit property. In the said partition suit, Mostt. Sukhdeyi Devi filed written statement on 20th July, 1988 asserting that the parties are in joint possession over the said ancestral dwelling house and she specifically denied to have executed the said alleged sale deeds. She also alleged that the said sale deeds were the creation of Chit Sundar Narayan who was defendant No.1 in the said suit. 5. The further defence is that Sukhdeyi Devi was in joint possession and she also took the same stand in the aforesaid two suits and, therefore, there was no occasion for her to have described the property in the Will showing boundary. According to the defendant, Chit Sundar Narayan is father of both the parties but he has special inclination towards the plaintiff and in collusion with the plaintiff, filed a complaint case No.585 C of 1997 against the defendant and his sons. The Will has been created by Chit Sundar Narayan in collusion with plaintiff only to support his case as made out in Title Suit No.190 of 1997. Chit Sundar 4 Narayan has also got executed a sale deed on 23.02.1981 in the name of his wife from Dharmveer Prasad Singh who claimed to have purchased the land from Sukhdeyi Devi through registered sale deed dt.20.05.1974. 6. On the basis of these pleadings, the learned Court below framed the following issues : (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has got a cause of action and right to sue? (iii) Whether the testator Smt. Sukhdeyi Devi is the wife of late Shyam Sundar Narayan of Mohalla Madhopur (Raisar)? (iv) Whether during her life time she executed a valid and genuine deed of will dated 02.11.1988 in favour of the plaintiff? (v) Whether the Testator Sukhdeyi Devi died on 22.11.88 and on account of her death the plaintiff acquired right title, interest and possession in the suit property? (vi) Whether the plaintiff is entitled to a probate in the estate of Sukhdeyi Devi the deceased in respect of the suit property? (vii) To what other relief or reliefs the plaintiff is entitled for? 7. After trial, while deciding Issue No.4, the learned Court below came to the conclusion that P.W.5 did not make attestation on the Will in presence of Sukhdeyi Devi and, therefore, the execution of Will is highly doubtful. The learned Court below also found that there was dispute between Chit Sundar Narayan and Sukhdeyi Devi so under what circumstances Sukhdeyi Devi executed the Will in favour of son of Chit Sundar Narayan, the plaintiff and ultimately the learned Court below came to the conclusion that the plaintiff failed to establish that the alleged deed of Will has been signed by the deceased testator Sukhdeyi Devi. The learned Court below also found that there is no explanation as to why the Will was not registered. On these findings, the learned Court below dismissed the suit. 5 8. The learned counsel for the appellant submitted that the learned Court below has wrongly dismissed the suit. According to the learned counsel, the reasons for which the prayer was rejected are not sustainable at all. The defence of the respondent that the property was joint is not a suspicious circumstances. Even if the house is joint then also it cannot be said that Will could not have been executed by Sukhdeyi Devi. The learned counsel further submitted that the learned Court below has not properly appreciated the evidences of the attesting witnesses. The plaintiff has proved the execution of the Will by attesting witnesses and only on the ground of non-registration, the application could not have been rejected because non-registration of the Will is not suspicious circumstances. The learned counsel further submitted that there is no dispute to the effect that at the time of execution of the Will, Sukhdeyi Devi was of sound disposing state of mind and, therefore, there was no reason why the probate be not granted. The learned counsel for the appellant further submitted that on the ground that one of the natural heir is debarred from inheritance, the Will itself will not be doubtful. The learned counsel further submitted that in the present case there were no suspicious circumstance and the witnesses proved the due execution and attestation of Will and, therefore, the impugned Judgment and Decree are unsustainable in the eye of law. On these grounds, the learned counsel submitted that the First Appeal be allowed 9. It may be mentioned here that when this Appeal was heard nobody appeared on behalf of the respondent. 10. In view of the above facts and circumstances of the case and in view of the above submission, the points arises for consideration in this Appeal is as to whether Sukhdeyi Devi executed genuine and valid Will on 6 02.11.1988 and whether the appellant is entitled for probate / letters of administration with respect to the Will and whether the impugned Judgment and Decree are sustainable in the eye of law. 11. The parties have adduced oral evidence in support of their pleadings. Plaintiff has examined the witnesses to prove due execution and attestation of the Will, Ext.2. This Ext.2 is a unregistered Will. P.W.1 is Chit Sundar Narayan who is the father of the plaintiff and defendant also. This witness has stated that the property described in the Will was the property of late Shyam Sundar Narayan which was in his possession till his death. On his death, the property came in possession of Sukhdeyi Devi, the testatrix. However, he has admitted that the property described in the Will is part of ancestral property which belonged to his father, Rajendra Narayan. Sukhdeyi Devi executed the Will in favour of the plaintiff. Nakul Prasad scribed the Will on the instruction of Sukhdeyi Devi. The scribed read over and explained the contents of the Will to Sukhdeyi Devi and to the witnesses. Sukhdeyi Devi put her signature on the said Will in all pages. This witness and other witness also put their signature, he has proved his signature which have been marked Ext.1 and 1/A. This witness has also stated that Sukhdeyi Devi expressed her desire to execute Will in favour of the plaintiff. P.W.2 is the scribe Nakul Deo Prasad. He has stated that on the direction of Sukhdeyi Devi, he drafted the Will in presence of Jaykant Jha, Lal Mishtri, Harish Chandra Prasad and Chit Sundar Narayan. Thereafter, he read over and explain the contents of the Will to the witnesses and Sukhdeyi Devi. Thereafter, Sukhdeyi Devi put her signature on the Will. He has further stated that he has also signed at the last page of the Will. P.W.3 is Lala Mishtri. He has stated that the said Will was scribed in his presence and Sukhdeyi Devi signed on 7 it. He has also signed on the Will. P.W.5 is Jaykant Jha another attesting witness. He claimed himself to be the neighbour of Sukhdeyi Devi and has stated that he always visits the house of Sukhdeyi Devi, however, he is unable to say the date or month of death of Sukhdeyi Devi. He is also unable to say the date and month of death of husband of Sukhdeyi Devi. In cross-examination at paragraph 4, he is clearly stated that on the instruction of the scribe, he signed on the deed of Will. P.W.4 is the plaintiff himself. These are the oral evidence adduced by the plaintiff. 12. The defendant’s case is that Chit Sundar Naraya in collusion with the plaintiff created the Will and Sukhdeyi Devi never put her signature on the same. It was the specific case of Sukhdeyi Devi in the said written statement filed in Title Suit No.82 of 1984 and Tile Suit No.190 of 1987 that the property described in Will is a joint family property and each of the party have got 1/3rd share in the Will. It is clearly mentioned that there had been no partition between the 3 brothers. Now, therefore, the question arises for consideration is as to whether in view of the statement of Sukhdeyi Devi in her written statement in Ext. ‘A/1 and A/2’, she could have mentioned in the Will that there had already been partition between the 3 brothers. The written statements was filed by Sukhdeyi Devi in the suits which was after the date of the Will in question. Nowhere had she admitted the fact that she had executed the Will in favour of plaintiff of present suit. Written statement in T.S. No.82/84 is dated 23.07.1985. Her case is that the property is joint property and everyone has got 1/3rd share. Therefore, there appears to be suspicious circumstances regarding this fact of statement made by Sukhdeyi Devi in the written statement and in the Will, 8 Ext.2. There is no satisfactory explanation to this suspicious circumstances. 13. Ext. ‘A’ is the application filed by Chit Sundar Narayan who was defendant No.2 in the said Title Suit No.82 of 1984. At paragraph 18, he has clearly stated that he is not pulling well with defendant No.1. From perusal of this petition, it appears that his specific case is that there had already been partition between the parties and the parties are in separate possession. In the said application also, there is no whisper of execution of Will by Sukhdey Devi who was defendant No.1. In view of the statement of Chit Sundar Narayan made in this Ext. ‘A’ regarding strained relation with Sukhdeyi Devi, there appears no reasoning as to why Sukhdeyi Devi would have expressed her desire to execute the Will in favour of the plaintiff. 14. Ext. ‘D’ is an application filed by Smt. Rajeshwari Devi in Title Suit No.190 of 1987. From perusal of this Ext. ‘D’, it appears that she filed the said application for being impleaded as party on the ground that Mostt. Sukhdeyi Devi had already executed an unregistered deed of Will in her favour on 15.06.1984 and she has filed an application for the grant of probate of the said Will which has been numbered as Probate Case No.17 of 1989. From perusal of Ext. ‘4’, the order dated 30.04.1994, it appears that the learned Court below rejected the said application of Smt. Rajeshwari Devi on the ground that Bijyendra Kumar Gupta has also filed probate case No.5 of 1992 and Rajeshwari Devi also filed probate case No. 17 of 1989 and unless the probate case is decided, she cannot be added as party. The facts remains that the present plaintiff is claiming for the grant of probate with respect to the said property on the basis of unregistered will and Rajeshwari Devi is also claiming for the grant of 9 probate for her favour on the basis of unregistered Will. In the written statement filed by Sukhdeyi Devi, there is no whisper of execution of any Will by her. Two persons are claiming on the basis of unregistered Will. This is another suspicious circumstances regarding the genuineness of the present Will. In the present Will, Ext.2, there is no mention of the early Will in favour of Rajesnwari Devi. Therefore, which one is the last Will and which one is genuine. No explanation has been given by any witness. Chit Sundar Narayan himself has not stated anything regarding execution of Will by Sukhdeyi Devi in favour of plaintiff, although he filed the application much after the date of Will, i.e., Ext. ‘A’. 15. From perusal of Ext. ‘6’, it appears that application was filed by plaintiff of Title Suit No.190 of 1987 for expunging the name of Sukhdeyi Devi wherein it has been stated that Sukhdeyi Devi had executed the Will on 02.11.1988 in favour of present plaintiff, who is defendant No.4 in aforesaid Title suit. From perusal of Ext. ‘E’, the rejoinder application filed by plaintiff of Title Suit No.190 of 1987 to the application filed by Rajeshwary Devi, it appears that in that case Sukhdeyi Devi had also appeared and had filed her written statement on 20.07.1988 which is Ext. A/2. From the above facts as discussed above the circumstances appears to be that in both the earlier Title suits for partition, Sukhdeyi Devi was party. She filed written statement stating that the suit property is joint and there had been no partition between the 3 brothers. She has not disclosed about execution of the Will. Chit Sundar Narayan filed written statement stating that he was not pulling well with Sukhdeyi Devi. Therefore, admittedly, there was conflict interest between Sukhdeyi Devi and Chit Sundar Narayan. There is no explanation about the suspicious circumstances regarding the statements made in the Will which is in direct 10 conflict with the statement made in the written statement of Sukhdeyi Devi. 16. The witnesses examined by the plaintiff have only stated that Nakul Prasad scribed the Will at the instance of Sukhdeyi Devi and she read over and explained to her and the witnesses and then she signed the Will. The learned counsel for the appellant submitted that the plaintiff has proved the due execution and attestation of the Will and, therefore, the Will cannot be doubted on the ground that one of the heir was debarred from inheritance. In this case, this question does not arise for consideration. It is the case of the defendant that the Will is forged and fabricated and there is nothing on record to say that Sukhdeyi Devi was loving the plaintiff alone. 17. The learned counsel relied upon the case of Ranjan Kumar Ghosh Vs. C.T. Roy 1997 (2) B.L.J. 1040 and submitted that in this case, all the attesting witnesses have been examined who have supported the execution of the Will and, therefore, the learned Court below had no occasion to doubt the genuineness of the Will. From perusal of the said decision, it appears that after considering the evidences, this Court found that there was no suspicious circumstances in that case and even if there was some suspicious circumstances regarding ailment of the deceased testator, it was well explained by the propounder. In the present case as discussed above, there is no explanation about the suspicious circumstances which speaks much about the genuineness of the Will. 18. The learned counsel next relied upon the case of In the goods of Kamashwari Devi Vs. Devesh Pratap Singh 2001 (2) B.L.J. 211 and submitted that there is no evidence in this case that the testatrix was not in sound disposing state of mind and that the probate Court cannot decide 11 title ect. So far this well settled principals of law are concerned, there is no dispute. From perusal of the Judgment at paragraph 9, it appears that in that case, there was no denial of the genuineness of the signature of the testatrix on the impugned document. In the present case, the learned Court below compared the signatures of the written statement and the Will and has recorded a finding that the signatures are not similar. 19. In a decision reported in A.I.R. 1955 (Supreme Court) 346 Girja Datt Singh Vs. Gangotri Datt Singh, the Hon’ble Supreme Court at paragraph 14 has held as follows : “(14) It still remains to consider whether the attestation of the signature of the deceased on the will, Ex. A-36 was in accordance with the requirements of S. 63, Indian Succession Act. Section 63 prescribes that : “(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 acknowledgment of his signature or mark, or of the signature of such other person: and each of the witnesses shall sign the will in the presence of the testator………………………………” In order to prove the due attestation of the will Ex. A- 36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. -23 and Ex. A-36 from Gonda to Tarabganj for reasons best known to themselves. If no reliance could thus be placed upon their oral testimony, where would be the assurance that they actually saw the deceased execute the will in their presence and each of them signed the will in the presence of the deceased. It may as well be that the signature of the deceased on the will was appended at one time, the deceased being there all alone by himself and the attestations were made by Uma 12 Dutt Singh and Badri Singh at another time without having seen the deceased sign the will or when the deceased was not present when they appended their signatures thereto in token of attestation. We have no satisfactory evidence before us to enable us to come to the conclusion that the will was duly attested by Uma Dutt Singh and Badri Singh and we are therefore unable to hold that the will Ex. A-36 is proved to have been duly executed and attested.” 20. In the present case, the evidence of Chit Sundar Narayan regarding due execution and attestation of the Will is concerned is doubtful because his statement is contrary to the statement made by Sukhdeyi Devi in her written statement. It appears that he has got strained relationship with the defendant and a complaint case was also filed by him. He admitted that he had strained relationship with Sukhdeyi Devi. According to the defendant, he is playing the main role and he has created this document in favour of the plaintiff only to support his case. The other attesting witness P.W.5, Jaykant Jha, has clearly stated in his cross- examination that he put the signature on the direction of the scribe. The other witness Harish Chandra Prasad has signed only in first, second and third pages only. Likewise, Lala Mishtri has signed in the third page only. Chit Sundar Narayan has singed in first two page only. There is no evidence that these witnesses saw the deceased signing in the Will and they themselves signed the same in presence of the deceased and each of them signed the Will in presence of the testator. 21. From the above discussion of the evidence and materials available on record, I find that there are many suspicious circumstances indicated above which have not been explained to the conscience of the Court. It is well settled principal of law that propounder has to explain the suspicious circumstances to the satisfaction of the Court. Here, I find that the appellant has failed to explain the said suspicious circumstances mentioned above to the satisfaction of the Court and, therefore, the 13 learned Court below has rightly rejected the application for grant of probate. I find no reason to interfere with the findings. In such circumstances, the impugned Judgment and Decree cannot be interfered with. 22. In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 19thday of April, 2011 Sanjeev/N.A.F.R.