FA 63/1998 BEFORE THE HON’BLE MR JUSTICE P. K. MUSAHARY JUDGMENT AND ORDER(CAV) Heard Mr. H.P. Barman, learned counsel for the appellant. Also h eard Mr. T. J. Mahanta, learned counsel for the respondents. 2. The brief facts material for the purpose of disposal of this app eal, are that the appellant’s father, during his lifetime, bequeathed his proper ties in favour of the present appellant by executing a registered will on 23.01. 1967. The deceased Bejia Bora had 4 daughters. He had no son. The present appell ant is the 3rd daughter. The will was scribed by one Khetekeswar Das(since decea sed) in presence of attesting witnesses, namely Bhekula Pathak(since deceased) a nd Kanthiram Neog. The testator bequeathed his whole properties including landed properties to the appellant in total exclusion of 1st and 2nd daughters who wer e given into marriage during his lifetime. The 4th daughter i.e. youngest one, w ho was minor at that time, was living with the appellant. In the will in questio n, a condition was made that the present appellant shall give her youngest siste r (daughter of testator), namely, Smt. Kiron Bora in marriage and give her dowry and streedhan failing which 1/4th of their father’s properties would be receive d by Kiron Bora. The testator Bejia Bora died in the year 1990 at the age of 87 years. The propounder Smti. Pomi Bora filed a probate petition before the court of learned District Judge, Golaghat, which was registered as Probate Petition No . 9/93 under Section 276 of the Indian Succession Act, 1925. Smti. Tulai Hazarik a, eldest daughter of late Bejia Bora and Sri Gokul Hazarika, S/o Smti. Tulai Ha zarika and grandson of deceased Bejia Bora, contested the case by filing writt en objections. The appellant examined herself as PW-1. She also examined Kana keswar Pathak, S/o Bhekhula Pathak, attesting witness as PW-2 and Sri Dimbeswar Karmakar, a colleague of scribe late Ketekeswar Das as PW-3. The learned Distric t Judge, upon consideration of the oral and documentary evidence of the parties, rejected the probate petition vide impugned judgment and order dated 03.07.1998 . Being highly aggrieved and dissatisfied with the same, the propounder Smti. Po mi Bora has filed this instant appeal. 3. Mr. Barman, learned counsel for the appellant, submits that exec ution of the will has been proved by examining PWs-2 and 3 as required under Sec tions 68 and 69 of Indian Evidence Act, 1872. The writer of the will and attesti ng witnesses are not available as they have already expired and in their place, PWs-2 and 3 were examined. They are natural witnesses inasmuch as PW-2 is the so n of attesting witness late Bhekula Pathak and PW-3 is a colleague of the scribe of the will in question. The above PWs know the handwriting and signature of th e scribe and attesting witness as per their deposition. According to the learned counsel, once the execution of the will has been proved without any objection, there is no ground for rejecting the prayer for probate and the learned District Judge has committed serious error of law in rejecting the probate petition by p assing the impugned judgment and order dated 03.07.1998. In support of his submi ssions, he has relied upon Ishwar Deo Narian Singh -vs- Smti. Kamta Devi reporte d in AIR 1954 SC 280 wherein it has been observed that the probate court is conc erned only with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed in accordance with law and whether at the time of execution, the testator had sound disposing mind and the question as to whether a particular bequeath is good or bad, is not within the purview of the probate court. The learned counsel particularly refers to pro vision under Section 69 of the Indian Evidence Act, 1872, which provides for man ner of proving a document where no attesting witness is available. The provision under the aforesaid section having been fulfilled or complied with and the exec ution of the will having stood proved, the respondents cannot challenge the will in question and for that matter, granting of probate to the appellant. 4. Mr. Mahanta, learned counsel for the respondents, on the contrar y, submits that the execution of the will, Ext.-1 alone is not sufficient under the law to grant probate by the learned District Judge. Before granting the prob ate, the court concerned is to examine the various aspects, namely : (1) whether the will concerned is the last wish of the testator. (2) whether there was anything unnatural or unofficious about the will or th e will is surrounded by suspicious circumstances. Mr. Mahanta, learned counsel, referring to the will in question, submits that it was executed on 23.01.1967 and it was kept secret by the presen t appellant for about 25 years till a probate petition was filed by her on 07.12 .1992. Under such circumstances, he submits that the will in question, cannot be treated as the last wish of the testator because during the aforesaid period of 23 years, there was every likelihood of change(s) in the mind of testator late Bejia Bora, before his death in the year 1990. 5. The finding of the learned probate court is that the will in que stion was executed by late Bejia Bora in a fit state of mind and although the re spondents brought allegations of fraud or forgery, there was no attempt to adduc e any evidence from their side to prove the same. The respondents were not serio us about those allegations. In view of the above, I am also fully in agreement w ith the findings of the learned probate court and accept his finding that the ex ecution of the will was duly proved as provided under the provision of Sections 68 and 69 of the Indian Evidence Act, 1872. 6. This court is naturally called upon to examine whether there are unnatural or unofficious things in executing the will in question or the same i s shrouded with suspicious circumstances. This aspect has been examined by the l earned probate court. It needs no further examination by this court inasmuch as the same has been scrutinized illustriously and aptly in paragraph 18 of the imp ugned judgment and order dated 03.07.1998, the relevant portion of which are rep roduced below :- 18. In the present case, it is seen that before the will was probated, the propounder went into the possession of the properties of the testator. It is fou nd that some of the properties mentioned in the will (the testator bequeathed al l his properties without specifically mentioning anything) was in possession of the opposite parties of the testator and hence, they got their names mutated. Mu tation is not a proof of title in respect of any land, but it gives evidence in respect of the possession of the same in favour of those whose names have been m utated. Here the opposite parties were in possession of some plots of land of th e testator, and the propounder before making the present petition filed a case U /S. 145 Cr.P.C. and U/S. 447 I.P.C. for recovery of those properties. Thereby, i t is clear that the propounder was very much instrumental in getting the will ex ecuted and she stepped into the possession of the will properties before the wil l was probated. She came to the court for a probate only when she failed to reco ver the possession of the land by proceeding U/S. 145 Cr.P.C. etc. Thus, it is c lear that substantial benefit was derived by the propounder soon after making th e will. 7. Furthermore, in paragraph 20 of the impugned judgment and order dated 03.07.1998, it has been observed that the testator had given to marriage 2 of his daughters providing them with sufficient properties but the will is sile nt in respect of specific properties given to them. The propounder also did not mention anything specifically in respect of the properties bequeathed to her but she came to acquire all the properties standing in the name of the testator sim ply because there was nothing in writing in relation to transfer of properties t o those married daughters. It is probable that when the other 2 daughters were g iven into marriage, they were given some properties, movable or immovable, by vi rtue of which, they had already been possessing some plots of land and they got their names mutated in the land records. There is no evidence on record to show that the appellant made any objection when some plots of land were given to the other 2 daughters of the testator at the time of their marriage or the appellant filed any objection in the proceeding for mutation of lands. 8. The will in question, contains a special/specific recitation to the effect that the younger daughter Kiron who was aged about 15/16 years, shoul d be given to marriage by the propounder with required dowry and streedhan and i f she fails to give those particulars/items and do injustice to her, the 1/4th o f properties would be given to Smt. Kiron Bora. The will in question, therefore, is undoubtedly, conditional. No evidence has been led by the present appellant to prove that she has fulfilled the aforesaid conditions. She has not even proved the primary condition, namely as to whether the testator’s youngest daughter Kiron Bora was given to marriage; not to speak of giving sufficient dowry and streedhan to her, as was wished by the testator. The marriage of Kiron Bora is most material for granting probate a nd unless it is proved that she has got married at the active initiative of the propounder, the will in question, cannot be probated at all. The marriage of Kir on Bora is the most cherished wish of the testator because he was most worried a bout the marriage of his dear youngest daughter before or after his death. The m arriage of Kiron Bora was the primary and last important wish of the testator wh ich he wanted to fulfill even at the cost of bequeathing all the properties to t he appellant upon whom he reposed his whole trust. In the will in question, ther e is no mention about dispossession of portion of the land already given to othe r 2 daughters. Nothing has been stated therein that by virtue of the said will, the appellant would be entitled to get the entire landed properties in exclusion of other daughters and I am, therefore, in full agreement with the findings of the learned probate court in regard to suspicious circumstances surrounding the execution of the will in question. 9. In Ishwar Deo Narain Singh(supra), as cited by the appellant, th e law as regard to jurisdiction of the probate court as to how the execution of will is to be proved, have been determined. This law is not in dispute in the pr esent appeal. The question arose in this case is whether this law would be appli cable on the face of existence of certain suspicious circumstances and non-fulfi llment of pre-conditions laid down in the will. The law laid down in the aforesa id case does not help the appellant, rather it helps the respondents, inasmuch i t is held therein that there is no question of executing unnatural will or execu tion of will under suspicious circumstances. The other question relating to cons equence of non-fulfillment of pre-conditions in the will has not been answered. The appropriate case one could refer to is Smti. Indu Bala Bose & Ors. -vs- Mani ndra Ch. Bose, reported in AIR 1982 SC 133 wherein it has been held amongst othe rs that where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before it accepts the will as g enuine and even where circumstances give rise to doubt, it is for the propounder to satisfy the conscience of the court. It is clearly held that therein that s uspicious circumstances may be as to genuineness of signatures of the testator, the condition of the testator’s mind, the deposition made in the will being unna tural, improbable or unfair, in the relevant circumstances or there might be oth er indications in the will to show that the testator’s mind was not free. In suc h a case, the court would necessarily expect that all legitimate suspicions shou ld be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubt by clear and satisfactory evidence. If the propounder succeeds in removing the susp icious circumstances, the court would grant probate even if the will might be un natural and might have fully or in part, near relations . 10. As discussed earlier, in the present case, the appellant as prop ounder, has been trying to hold benefit of the testator’s properties to the excl usion of his other daughters. The other relevant questions as to whether they ar e already in possession of some landed properties as were given by the testator father at the time of their marriage and why should the testator deprive the oth er daughters of their shares of his properties or why should the appellant shoul d get the entire properties of the testator and why the description of the land or the properties bequeathed to the propounder, have not been explained by the a ppellant to the satisfaction of the court. Here lies the suspicious circumstance s which could not be removed to the satisfaction of the court. The appellant cla imed that she looked after her testator father and performed the rituals after h is death. The respondents have denied the same. The petitioner made no attempt t o prove this fact and it has not been proved that the respondents did not look a fter the testator for which the entire properties have been bequeathed to the ap pellant only. One may also refer to Ravindranath Mukherjee & Anr. -vs- Panchanan Banerjee & Ors., reported in AIR 1995 SC 1684 wherein it has been held that cou rts normally act in accordance with wish or wishes of the persons concerned but then if the courts were to doubt either genuineness or voluntariness of the make r of the will, they would be loathe to work in accordance with what has been sta ted in the will i.e. to say if the will is surrounded by suspicious circumstance s, the removal of the same is the burden of the propounder. Here in the instant case, the appellant petitioner took active role in executing the will secretly w ithout letting it known to her other sisters and the act of execution of the wil l was even kept secret for about 23 years and as such, this can be termed as sus picious and unofficious circumstances. No endeavour was made by the appellant to justify the reason for keeping the entire matter secret from the other sisters for such a long period of time. 11. A Division Bench of this court in Smti. Manjushree Chakravorty & Ors. -vs- Bimalendu Das, 1997(1) GLT 360 held that element of suspicion surroun ding the execution of will cannot be lightly brushed aside and the trial court’s view should be given due weight. I have already mentioned earlier, in fact, quo ted some relevant portion of the impugned judgment and order dated 03.07.1998, w herein the learned probate court has illustriously and illustratively discussed about the suspicious circumstances before coming to a conclusion based on availa ble evidence on records. The said circumstances, in my considered view, are soun d enough and sustainable under the law to reject the prayer of the appellant for probate. In the said judgment, reference has been made to H. Venkatachala -vs- B.N.Thimmajamma, reported in AIR 1959 SC 443 wherein the Apex Court held that to render the will infirm unless the propounder cleared the suspicion with clear a nd satisfactory evidence, mere execution of will by producing scribe or attestin g witness or proving the genuineness of the testator’s thumb impression by thems elves, would not be sufficient to establish validity and legality of the will. 12. For the foregoing discussions and reasons, I cannot persuade mys elf to offer different view from the ones taken by the learned probate court in rejecting the prayer for probate. There is no infirmity or illegality in the imp ugned judgment and order dated 03.07.1998 passed by the learned District judge a nd accordingly, I uphold the same. Consequently, this appeal fails. 13. There shall be no order as to costs. 14. Send down the LCRs to the court concerned below.