FIRST APPEAL No. 180 OF 2005 Against the judgment and decree dated 15.03.2005 passed by Sri Syed Md. Nasimuddin, 1st Additional District Judge, Hilsa in Title Suit No.2 of 1997. JANAK PRASAD & ORS. ………. Plaintiffs-Appellants Versus THE ESTATE OF LATE SHIBU MAHATO & ORS. ……… Defendants-Respondents ******** For the Appellant : Ms. Sushmita Mishra , Advocate Mr. Ratan Kumar Sinha, Advocate For the Respondent : Mr. Hare Krishna Kumar, Advocate Mr. Rabindra Prasad Singh, Advocate Dated : 15th day 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) This First Appeal has been filed by the plaintiff against the judgment and decree dated 15.03.2005 passed by Sri Syed Md. Nasimuddin, 1st Additional District Judge, Hilsa in title suit no.2 of 1997 rejecting the application filed under Section 276 of the Indian Succession Act. (2) The said application under Section 276 filed by the appellant was registered as probate case no.1 of 1990. The appellant alleged that Shibu Mahato died in August, 1984 and the writing annexed with the application is the last Will and testament of Shibu Mahato. The Mungeshwar Sahoo, J. 2 said probate case was filed on 04.01.1990. It is alleged that Shibu Mahato died leaving behind no near relatives such as son, widow and daughter and he died issueless. Shibu Mahato was separate from his brother and as he had no issue, he had got love and affection with the appellants and that is why during his life time, he executed the Will in favour of the appellant. (3) It appears that respondent filed a caveat in the case alleging that they are sons and daughters and husband of daughter of Shibu Mahato and contested the matters. Therefore, the probate case no.1 of 1990 was converted to title suit no.2 of 1997. The respondents, caveators alleged that Shibu Mahato had a daughter, Sumirkha Devi who pre-deceased her father leaving behind the daughters, sons and husband as her legal heirs. The Will annexed with the petition is not genuine rather it is forged and fabricated and the plaintiffs have brought it into existence for the purpose of defeating the right of inheritance of the respondents. The further case is that Shibu Mahato was joint with his brother, Raghunandan Mahato and there had been no partition between the two brothers. The appellants are the three sons of Raghunandan Mahato. Shibu Mahato had got no male issue. In the consolidation proceeding, the lands have been recorded jointly in the name of Raghunandan Mahato and Shibu Mahato half and half. Raghunandan Mahato fraudulently created a forged gift deed dated 19.09.1970 purported to have been executed by Shibu Mahato with respect to 3.45 acres of land. The further case is that the defendants are in joint possession of the joint family properties and in fact, they have filed a suit for partition being title suit no.49 of 1989 in the Court of Sub Judge, Hilsa. An application for appointment of Receiver was filed by the respondents and a show cause has been filed by the appellant and in that show cause, they claimed the property on the basis of gift only and there is 3 no whisper of Will. The said show cause was filed on 13.12.1989 and on 21.12.1989, documents were filed but the Will was never produced at that time because it was not in existence. It is further alleged that Shibu Mahato never executed the Will and did not put his L.T.I. and signature and, therefore, the Will is forged and fabricated. On the basis of the aforesaid case of the parties, the learned Court below framed the following issues: (i) Is the suit as framed maintainable? (ii) Have the plaintiffs valid cause of action for the suit? (iii) Whether the deed of Will purported to have been executed by Shibu Mahato is a valid and genuine document? (iv) Whether Shibu Mahato died on 2.7.1984 or on 30.7.1984? (v) Whether the plaintiffs are entitled to get probate or letters of administration for the Will annexed in this case? (vi) To what other reliefs if any the plaintiffs are entitled to get? (4) After trial, the learned Court below came to the finding that the citation in the Will itself as well as in the application for granting probate are far from truth in which it has been asserted that Shibu Mahato had neither any issue nor any near relatives which goes to show that the said Will was not duly executed and speaks a lot against genuineness of the Will and in title suit no.49 of 1989, the plaintiffs did not whisper about the Will. (5) The learned counsel for the appellant submitted that the learned Court below has wrongly held that the plaintiff did not produce any witness to show that the Will was duly executed because the plaintiff have examined P.W.1 and P.W.2 and the scribe P.W.4. The learned counsel further submitted that the learned Court below has not appreciated the 4 evidences properly. The learned counsel further submitted that the learned Court below has wrongly held that the plaintiff did not whisper about the Will in title suit no.49 of 1989 because in the written statement, the plaintiffs claimed the land on the basis of gift as well as the Will both. The learned counsel further submitted that the question whether a particular bequest is good or bad is not within the scope for decision of Probate Court and, therefore, the learned Court below could not have observed that the citation made in the deed of gift proves that it is forged and fabricated. The learned counsel further submitted that on the date of execution of Will, Shibu Mahato had no issue as the daughter pre-deceased him and, therefore, there is no mis-statement in the probate application. Further in the rural areas, only sons are considered to be “Santans” i.e. issue. The learned counsel further submitted that since the two experts had given opinions which were in conflict with each other, it was incumbent upon the learned Court below to appoint neutral expert but instead of doing so, he himself examined the same which is contrary to the well settled principle of law. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the plaintiff’s probate application be allowed. A written argument has been filed by the appellant elaborating these grounds. (6) On the other hand, the learned counsel appearing on behalf of the respondent submitted that after filing partition suit by these respondents, the appellants have filed this present probate application. In the probate application, false statement has been made to the extent that there are no near relatives of deceased late Shibu Mahato. In the Will also, it is mentioned that Shibu Mahato died issueless which is also wrong statement. The learned counsel further submitted that these 5 suspicious circumstances coupled with the fact that Will is unregistered one, the learned Court below has rightly rejected the application. The learned counsel further submitted that according to the plaintiffs themselves, Shibu Mahato died in July 1984 and the Will is dated 02.04.1984, therefore, after executing the Will within three months, Shibu Mahato died and there is no explanation in the Will as to why the legal heirs who would have succeeded to the property had there been no Will, have been deprived of their rights. The learned counsel further submitted that the appellants have failed to explain these suspicious circumstances and, therefore, in this First Appeal no interference can be made. According to the learned counsel, the learned Court below has rightly appreciated the facts and evidences of the case. On these grounds, he submitted that the appeal is liable to be dismissed. (7) In view of the above facts and circumstances, the point arises for decision in this appeal is as to “whether the appellants are entitled for grant of probate as prayed for by them” and “whether the impugned judgment and decree are sustainable in the eye of law?” (8) Admittedly, the respondents are the sons, daughters and husband of late Sumirkha Devi who was daughter of Shibu Mahato. These respondents have also filed partition suit being title suit no.49 of 1989 claiming half share in the property of Shibu Mahato and Raghunandan Mahato on the ground that there had been no partition between the two brothers and the respondents are entitled to the share of Shibu Mahato. In spite of the above facts, the probate case was filed after the said partition suit wherein it is stated that the deceased left behind him no near relatives vide paragraph 8 of the application. In paragraph 5 also, the same statements have been made. In paragraph 6, it is pleaded 6 that the deceased was issueless. So far these pleadings are concerned, the learned counsel for the appellants tried to convince me that in fact, on the date of execution of the Will, Shibu Mahato had no issue and no near relatives such as son, widow and daughters and because in the villages, only sons are considered to be the issue, such statements are made in the application. So far this submission is concerned, it is not acceptable at all. The plaintiffs were knowing that the respondents are the legal heirs of Shibu Mahato. Although, Section 276 does not in so many words required the petitioner to state the names of the relatives of the testator but it was the duty of the petitioner to state the real facts disclosing the names of the relatives of the testator. In the instant case, the near relatives i.e. the legal heirs have already filed partition suit claiming title to the property but intentionally their names have not been mentioned in the probate application and instead of mentioning their names it has been mentioned that there is no near relative of deceased Shibu Mahato and he died issueless. This itself creates a grave doubt and suspicion. It is the duty of the person applying for grant of probate to bring to the notice of the Court who are person who prima facie have a claim on the estate of the deceased. If their names are not cited intentionally, in my opinion, it is fatal to the case of the plaintiff and it is a ground for revocation of the probate as well. Admittedly, in this case, it is not denied that the respondents are legal heirs. (9) The learned counsel for the appellant submitted that the Probate Court is only required to see whether the signature and L.T.I. of the testator of the Will is genuine or not and if it is found genuine then whether he should have executed the Will or whether the Will is bad is not the question to be decided by the Probate Court. So far this submission is 7 concerned, no doubt the Probate Court cannot decide the illegality or otherwise of the Will but it is well settled principles of law that the onus to prove that the Will is genuine and the signature appearing on the Will is of the testator and also to explain the suspicious circumstances if any is on the propounder of the Will. (10) P.W.1 claimed himself to be the attesting witness in the Will. From perusal of paragraph 11, it appears that he has admitted that he is a witness in title suit no.49 of 1989. He has deposed in favour of the appellants and against the respondents. Therefore, it appears that this is a man of the appellant. The learned Court below has rightly observed that this witness is an interested witness. P.W.2 has only stated that in his presence, the Will was executed. It may be mentioned here that this witness has not signed on the Will. Therefore, his evidence is of not much importance. P.W.4 is the scribe. He has stated that prior to execution of the Will he was not knowing Shibu Mahato. Shibu Mahato himself disclosed him that he is Shibu Mahato. In such view of the matter, it is not safe to rely upon the evidence of the scribe about the identity of Shibu Mahato because P.W.3 is one of the plaintiffs. P.W.1 is interested witness. P.W.2 has not signed on the Will and P.W.4 says that prior to execution of the Will, he was not knowing Shibu Mahato. Over and above the same, the Will is unregistered Will. Further, the deed of Will is dated 02.04.1984 and just within three months, Shibu Mahato died. These are other circumstances which have not been explained by the appellants. (11) Two experts have been examined, one on behalf of the appellant and the other on behalf of the defendants who are P.W.5 and D.W.4 respectively. Both of them have given contrary opinions regarding the signature appearing on the gift deed and Will. It may be mentioned 8 here that there is no admitted signature of Shibu Mahato. The respondents are claiming that the gift is also forged and the Will is also forged. Therefore, the opinions of the experts are not relevant in this case. (12) Exhibit 4 has been filed by the appellant which is a death certificate. It shows that Shibu Mahato died on 02.07.1984. From perusal of Exhibit1, the unregistered Will, it appears that it is mentioned in the Will that Shibu Mahato died issueless. No reason has been given in the Will for depriving the natural heirs from inheritance. This is another suspicious circumstance. Instead of giving reasons for depriving the heirs, it is mentioned that Shibu Mahato died issueless. This is nothing but a false statement. Likewise, as stated above in the application for probate also, intentionally the names of the respondents have not been mentioned and it is pleaded that Shibu Mahato died leaving behind no near relatives. This intentional statement made by the appellants is another suspicious circumstance. (13) The learned counsel for the appellant relied upon a decision reported in A.I.R. 1963 Patna 24(Sheogobind Singh & Anr. vs. Rajeshwari Kuer). In that case, it has been held that the question whether a particular bequest is good or bad is not within the purview of the Probate Court. There is no dispute with regard to this well settled principle of law. Here, in the present case at our hand, the dispute is that the Will has been forged and created by the appellants. In such circumstances, the appellants were required to prove that the Will was duly executed and attested in accordance with law and at the time of such execution the testator had sound disposing mind. The appellants were also required to explain the suspicious circumstances to the conscience of the Court. As 9 stated above, in the present case, various suspicious circumstances have not been explained by the appellants. (14) The learned counsel for the appellant also filed a photocopy of a decision of Delhi High Court(Khemchand vs. State and others), F.A. No.241-243 of 2005 decided on 17th May, 2010 and submitted that giving no reason in the Will to divest the inheritance does not create any suspicious circumstances and cannot be made ground to discard the Will. In that case, it appears that the plaintiff and the defendants both were legal heirs of the testatrix. Out of them, the testatrix bequeathed property in favour of respondent nos.2 and 3 only to the exclusion of the appellant. In such circumstances, it was held so. In the present case, the appellants are not at all legal heirs of the testator, Shibu Mahato. Therefore, the aforesaid decision is not applicable in the present case. Here, the legal heirs have been deprived of and the property is being bequeathed to the appellants who are not entitled to inheritance if the Will was not executed. (15) The learned counsel for the appellant relied upon another decision of the Apex Court i.e. A.I.R. 1954 Supreme Court 280(Ishwardeo Narain Singh vs. Smt. Kamta Devi and ors.). In the said decision, the Apex Court held that the Court of Probate is only concerned with the question as to whether the document put forward as the last Will and testament of deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator have sound disposing mind. In the said decision also, it has been held that the question whether a particular bequest is good or bad is not within the purview of the Probate Court. In the present case, it is not 10 the decision of the trial court that the Will in question is bad. So far the points argued by the appellant is concerned, there is no dispute. It is well settled that the Probate Court cannot go into question as to whether the Will is bad or good. This question does not arise in the present case. From perusal of the evidences as well as the pleadings and also the facts and circumstances of the case, many suspicious circumstances appeared and the propounders have failed to explain the suspicious circumstances satisfactorily to the conscience of the Court. Therefore, I find no reason to interfere with the finding of the learned Court below. Accordingly, I find that the learned Court below has rightly not granted probate. (16) In view of my above discussion, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. The parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 15th April, 2011 Saurabh/N.A.F.R.