Anandananda Dash vs Kuntala Kumari Dash

K.R. Mohapatra, J.—The defendant no. 1 in O.S. No. 1 of 2005 has filed this appeal under Section 299 of the Indian Succession Act, 1925 (for short ''the Act'') assailing the judgment dated 6.5.2008 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack allowing an application under Sections 276 and 278 of the Act and thereby granting probate of the Will dated 14.6.1985 executed by one Gunanidhi Das in favour of the plaintiff (respondent no. 1 herein).

The plaintiff filed an application under Sections 276 and 278 of the Act (O.S. No. 1 of 2005) stating, inter alia, that her father, namely, Gunanidhi Dash, had four daughters and two sons. The genealogy of the family hereunder gives a clear picture of the relationship and status of the parties to this case.

By virtue of the RSD No. 2917 dated 11.6.1949, the father of the plaintiff, namely, Gunanidhi Dash purchased the case land appertaining to Sabik Khata No. 1261, Plot No. 2956 corresponding to Hal Settlement Khata No. 1268 Plot No. 1914 to an extent of Ac. 0.045 decimals situated at Sagadiasahi, Ranihat (Panasahi), Dist. Cuttack (for short ''the suit land'') from Madan Mallik and others. At that point of time, said Gunanidhi Dash along with his family was staying at the Government quarters in the campus of S.C.B. Medical College and Hospital, Cuttack. In the year, 1959, he constructed a Katcha house over the suit land. In the same year, the plaintiff was also given in marriage with one Ananda Chandra Dash, who was a Government servant. Due to the poor financial condition, said Gunanidhi could not give proper dowry to the plaintiff at the time of her marriage. Hence, he voluntarily gifted and dedicated the suit land to the plaintiff on the marriage altar before sacred fire and the plaintiff accepted the same. Subsequently, said Gunanidhi in the year, 1966 delivered the possession of the suit property along with relevant documents to the plaintiff and since then, the plaintiff along with her husband were in exclusive physical possession of the same on payment of land revenue, holding tax and electricity charges etc. The plaintiff and her husband also developed the suit land by making considerable expenses and resided there with their family members. Though said Gunanidhi was working in the S.C.B. Medical College and Hospital, Cuttack, but it was very difficult on his part to maintain the entire family for which the husband of the plaintiff and herself helped him in various ways by providing financial and physical assistance. They also helped Gunanidhi for solemnization of marriage of her (plaintiff''s) brothers and sisters. The brothers of the plaintiff were staying in their respective workplaces and her sisters were staying in their respective in-laws house. Thus, the plaintiff and her husband were taking care of their parents. As there was no document in support of the gift of the suit property in favour of the plaintiff, Gunanidhi executed the Will in question in favour of the plaintiff in presence of the witnesses on 14.6.1985, which was his last Will. The terms of the Will stipulated that the plaintiff would be the exclusive owner of the suit property after the death of the wife (Sabitri Devi) of the testator, namely, Gunanidhi. Gunanidhi died on 10.6.1986 and Sabitri Devi died on 21.8.1983 at her native village Malabiharpur. One of the daughters of Gunanidhi, namely, Prativa and daughter-in-law, namely, Pratima filed a suit claiming right, title and interest over the suit property and tried to evict the plaintiff and her family members therefrom for which the plaintiff filed the present case for the aforesaid relief.

The defendant nos. 1 to 3 filed their objection refuting the contentions made in the probate petition. They contended that the case was not maintainable and the plaintiff had no locus standi to pray for probate of the alleged Will. The probate case was also barred by limitation. The alleged Will was a fabricated document and Gunanidhi had never executed any Will much less in favour of the plaintiff. They further contended that while staying in the Government quarters, said Gunanidhi Dash had constructed the house over the suit land in two phases. The first phase was completed in the year, 1952 when Gunanidhi was residing in a rented house at Nuapatna, Mangalabag with his family members and the rest part of the house was completed in the year, 1954. After its completion, a portion of the suit house was rented out. Gunanidhi was serving as a ''steward'' in the S.C.B. Medical College and Hospital, Cuttack and was getting a handsome salary. The husband of the plaintiff belonged to a poor Brahmin family having scanty landed property. Thus, the plaintiff was presented sufficient ornaments and household articles as well as cash at the time of her marriage. The story of the gift of the schedule property by Gunanidhi to the plaintiff on the marriage altar was a myth. When the husband of the plaintiff was transferred to the Board of Revenue, Cuttack, he could not afford to stay in a rented house because of his poor financial condition for which Gunanidhi allowed the plaintiff and her husband to stay in a portion of the house having tin roof, when the tile roofed house was given on rent by Gunanidhi. The marriage of children of said Gunanidhi was performed out of his own income and income of his eldest son, who was serving as an Engineer under the State Government. The second son of late Gunanidhi, namely, Sujanananda Das was serving in O.S.E.B. since 1972. He had also income from the business taken up by him. Thus, Gunanidhi was financially sound all through out of his life. The father-in-law of the plaintiff died in a helpless condition as the husband of the plaintiff did not take care of him. As on 14.6.1985, Gunanidhi was a psycatric patient and was also suffering from rheumatism of both knees and hands and was unable to take a walk or strain of any kind without help. He was almost bed ridden and not in a condition to identify a person. He was also suffering from mental depression due to madness and physical pain and was dependant on others even for wearing his own clothes and taking food. In the year, 1982, Gunanidhi had a leg injury and was brought to Cuttack by his sons. At that time, settlement operation was going on. Since the plaintiff and her husband, namely, Ananda Chandra Dash, were staying at Cuttack, he (Ananda) was given all the documents of the suit property and some blank white papers with signatures of Gunanidhi for the purpose of looking after the settlement operation. Taking advantage of such situation, the husband of the plaintiff manufactured a forged Will. Sabitri Devi, the widow of late Gunanidhi was all through residing at her native village at Malabiharpur. Thus, there was no occasion on the part of the plaintiff and her husband to take care of Gunanidhi and Sabitri. The second son of late Gunanidhi, namely, Sujanananda had a premature death for which his widow, namely, Pratima was given appointment under Rehabilitation Assistance Scheme. She stayed in a portion of the suit house. The defendant nos. 1 to 3 also made several other allegations against the plaintiff and her husband and prayed for dismissal of the case. The defendant nos. 4 to 8 filed their written statement/show cause separately denying the averments made in the probate petition. They also took a similar stand as that taken by defendant nos. 1 to 3 in their written statement and prayed for dismissal of the case.

The learned trial court taking into consideration the rival pleadings of the parties and the materials on record framed as many as five issues, which are follows:

Is the suit maintainable?

Whether the Will dated 14.6.1985 was executed by Gunanidhi Dash and properly attested.

Whether the Will is genuine and last Will of Testator and granted with free will and volition of the Testator.

Whether the Will is required to be probated.

To what other relief, the plaintiff is entitled.

In order to substantiate their respective cases, the plaintiff examined four witnesses including herself as P.W.1. P.W. 2 is a friend of the husband of the plaintiff. P.Ws. 3 and 4 are friends and colleagues of P.W. 2. The plaintiff also filed documentary evidence, which were marked as Exts. 1 to 5/a. Defendant no. 1 (appellant herein) was examined as the sole witness on behalf of the defendants. They exhibited documents which were marked as Exts. A to A/31.The learned trial court while answering Issue Nos. 2 and 3 came to a categorical conclusion that the Will (Ext. 2/a) was executed on 14.6.1985 by Gunanidhi, which was properly attested and it was the last Will of the testator. The same was executed at the free will and volition when the testator was of sound mind. Accordingly, the learned trial court answered all other issues in favour of the plaintiff vide his judgment dated 6.5.2008, which is under challenge in this appeal.

On a conspectus reading of the rival pleadings of the parties, the undisputed facts emanates therefrom are that there is no dispute with regard to the relationship of the parties with the testator. The testator, namely, Gunanidhi Dash, retired from service in the year, 1963. Gunanidhi died on 10.6.1986 and his wife, namely, Sabitri Devi died on 21.8.1993.The probate proceeding was initiated 16 years after the death of the testator and 9 years after the death of the widow of the testator. The Will dated 14.6.1985 was an unregistered document.

Mr. Yeesan Mohanty, learned Senior Advocate appearing for the appellant assailed the judgment on several grounds. His main thrust of argument is that the Will (Ext. 2/a) was an outcome of fraud. The common ancestor of the parties to the appeal, namely, Gunanidhi, had never executed any such Will during his life time. The description of the suit properties in the Will is not correct. There are suspicious circumstances surrounding the execution of the Will, which were neither explained by the plaintiff properly nor the same were dealt with by the learned trial court in its proper perspective. The evidence of the attesting witnesses did not support the case of the plaintiff. The suspicious circumstances, as stated by him, surrounding the execution of the Will are as follows:

(a) The Will (Ext. 2/a) contains the Hal Plot number of the suit land i.e. 1914. The Hal Settlement R.O.R. (Ext. A) was published on 13.3.1992 and the Will executed much before i.e. on 14.6.1985. Thus, the Will could not have contained the Hal Plot numbers.

(b) The plaintiff filed a proceeding under Section 144 Cr.P.C., which was registered as Crl. Misc. Case No. 495 of 2000 (Ext. L) in respect of the suit land. Nowhere in her petition she had disclosed about the execution of the Will though it is alleged to have been executed in the year, 1985. Further, in para-3 of the said petition (Ext. L), which contains the application under Section 144 Cr.P.C., police report as well as order of the Executive Magistrate, she had stated that she had paid a sum of Rs. 70,000/- towards value of the land to the testator after which possession of the suit land was delivered to her. On the other hand, the probate petition is silent about the proceeding under Section 144 Cr.P.C. and the pleadings made in the probate petition are contrary to the pleadings in Ext.L.

(c) The testator (Gunanidhi Dash) was not in a sound and disposing state of mind at the relevant period in which the Will alleged to have been executed.

(d) The signature of testator on the Will was not of Gunanidhi Dash as the surname was signed as ''Das'' instead of ''Dash'', which appears in all the admitted documents.

(e) Ext. Z/20 dated 28.06.1996 written by the plaintiff to her sister discloses that the plaintiff had made a confession about the unsound state of mind of the testator. The disposition made in the Will was unnatural. Hence, he prayed for setting aside the impugned order.

Mr. Bibekananda Bhuyan, learned counsel appearing for the respondent no. 1 made his submission refuting the contention raised by Mr. Mohanty. He submitted that non-examination of the scribe of the Will is not fatal to the case of the plaintiff as the attesting witnesses have proved the execution of the Will to the hilt. The requirement of Section 68 of the Evidence Act is complete in all respect and all the attesting witnesses have supported the execution of the Will. There may be some discrepancies in the signature of the testator (Gunanidhi Dash), but when the attesting witnesses have proved the signature of the testator on the Will, the same is deemed to have been proved. There is no limitation for filing of an application for probate of the Will. However, in para-7 of the probate petition, the plaintiff has given explanation for limitation. The defendants had no dissension with the plaintiff. However, they had some difference of the opinion with the husband of the plaintiff for which the case was filed. He further submitted that when the suspicious circumstances alleged by the defendants have not been specifically pleaded in their respective written statements, the plaintiff is not obliged to explain the same. However, suspicious circumstances as alleged by the defendants have been satisfactorily explained by the plaintiff and the learned trial Court has dealt with the same in its proper perspective and on being satisfied with the explanation has granted the probate. As such, the impugned order needs no interference and the appeal is liable to be dismissed.

In the leading case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 SC 443, the Hon''ble Supreme Court has laid down the principles to test the genuineness of a Will in Court of Law. It is held that the Will has to be proved like any other document except as to the special requirement of attestation prescribed by Section 63 of the Act. The Hon''ble Supreme Court in para-20 of the aforesaid case law further held as follows.

"20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator''s free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of 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. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter".

The rival contention of the parties has to be scrutinised keeping in view the aforesaid settled position of law.

The plaintiff has been examined as P.W.1 in this case. P.Ws. 2, 3 and 4 are the attesting witnesses to the execution of the Will. She, in her deposition, narrating the story in the probate petition stated that the Will was executed on 14.06.1985. She also proved the signature of the testator as Ext.2. She deposed in her examination that on 14.06.1985 at about 10 A.M., prior to the execution of the Will, her father (the testator) told her that he was going to Court to execute the Will in her favour. On the same day in the afternoon, the testator read over and explained the contents of the Will and thereafter handed over the same to the plaintiff. She had not shown the Will to any of the family members including the defendants. She also admitted in Para -27 of her cross-examination that Prativa Kar (defendant no.4) had filed Money Suit No.87 of 2004 for realisation of the rent of the suit house against her husband. She also admitted that the defendant nos. 4 and 5 had filed Title Suit No. 329 of 2000 against the plaintiff and her husband claiming right, title and interest over the said property and for eviction. At Para-31 of her cross-examination, she had admitted to have been initiated a proceeding under Section 144 Cr.P.C., which was registered as Crl. Misc. Case No. 495 of 2000 (Ext. L) against Pratima, Ananda and Biswambar in respect of the suit land and the house standing thereon. Thus, it appears from the deposition of P.W. 1 that the Will was with her from the date of execution i.e. on 14.6.1985, but she had not shown to any of the family members. P.Ws. 2, 3 and 4 are the attesting witnesses to the Will. They have proved their signatures on the Will as Exts. 2/b, 2/c and 2/d respectively. P.W. 2 deposed that the Will was scribed by one Shiba Charan Das in the Verandah of Sub-Registrar Office at Cuttack. At Para-17 of his deposition, P.W. 2 deposed that after preparation of the draft Will, it was read over and explained to Gunanidhi. Thereafter, Gunanidhi and Shiba Charan Das (the scribe) signed in the draft Will. Other two witnesses, who were taking tea in the nearby Tea Stall, were called by Gunanidhi and they signed on the Will in presence of P.W. 2. P.W. 3 in his cross-examination stated at Para-15 that Gagan Bihari Mohanty (P.W.4) signed on the Will first and thereafter, he and Kailash Chandra Khatua (P.W. 1) signed on the Will. Lastly, Gunanidhi signed on the Will. At Para-14 of his cross-examination, P.W. 4 deposed that Gunanidhi wanted registration of the Will, but the scribe (Shiba Chandra Das) refrained him saying that it was not required. P.W. 3 in his evidence had also deposed at Para-9 that the scribe intimated them that the Will was not required to be registered. Thus, from the evidence of P.Ws. 2, 3 and 4, it appears that the Will (Ext. 2/a) was executed at the Verandah of the Sub-Registrar Office at Cuttack. P.Ws. 3 and 4 in their evidence deposed that though the testator (Gunanidhi Dash) wanted registration of the Will, the scribe refrained them saying that the registration was not required. Further, though P.W. 2 deposed that the scribe put his signature on the Will first, P.W. 3 deposed that he had signed the Will first and the scribe had put his signature after all the witnesses signed on the Will. Thus, there is a discrepancy in the statements of P.Ws. 2 and 3 with regard to signing of the Will. In view of Section 68 of the Evidence Act, it is incumbent upon the attesting witnesses, namely, P.Ws. 2, 3 and 4 to prove the execution of the Will in terms of Section 63 of the Act.

None of the witnesses deposed that they had seen the testator signing on the Will and they had attested the Will as per the direction of the testator. But if their depositions are read as a whole, it can be inferred that they had attested the document and put their signatures in presence of the testator on being instructed by him. However, a question automatically crops up in mind as to why the Will was not registered when the same was stated to have been prepared on the verandah of Sub-Registrar Office at Cuttack. P.Ws. 2 and 3 in their evidence deposed that the scribe, namely, Shiba Charan Das, told them that the Will was not required to be registered. Had the scribe been examined, the veracity of such a statement could have been tested. Thus, non-examination of the scribe creates a doubt with regard to non-registration of the Will, especially when P.W. 3 in his evidence had categorically stated that the testator wanted the Will to be registered. The effect of such non-registration of the Will is a circumstance which raise suspicion with regard to execution of the Will, which might have been explained by the scribe of the Will.

Mr. Mohanty, learned Senior Advocate drew attention of this Court to certain circumstances (stated above) which, according to him, create suspicion surrounding the execution of the Will. He submitted that the signature of the testator appearing on the Will (Ext. 2/a) creates a suspicion with regard to execution of the Will. The testator (Gunanidhi) was ordinarily signing as ''Gunanidhi Dash'' but the signature appearing on Ext. 2/a as ''Gunanidhi Das''. He further submitted that as per the prevailing practise in Odisha, the Brahmins of the State use to write their surname as ''Dash'' and non-brahmins use to write their surname as ''Das''. The plaintiff herself and defendant no. 1 have also written their surname as ''Dash''. He also relied upon Exts. Z to Z/19 in which the father of the plaintiff and defendant no. 1 had either been described or signed as Gunanidhi Dash. P.W. 1 (the plaintiff) also admitted in her evidence that her father (the testator) was giving his signature as Gunanidhi Dash. The learned trial court did not accept such contention of the learned counsel for the defendant no. 1 on the ground that O.P.W. 1 had stated in his evidence that the signature of Gunanidhi Dash was taken in the blank papers to be used before the settlement authorities but the same has been used for the purpose of Will. Thus, the defendants have admitted to the signature of Gunanidhi Dash in the Will itself. Mr. Mohanty, learned Senior Advocate strenuously urged that finding of the learned trial court to that effect is an error apparent on the face of the record. On scrutiny of the evidence of D.W. 1, it appears that he has categorically stated at para- 26 of his cross-examination that the alleged blank papers signed by Gunanidhi Dash, which were kept with Ananda Dash, have not been used to execute the Will in favour of the plaintiff. D.W. 1 has only stated in his written statement as well as the evidence that during the period of settlement operation, Sri Ananda Dash (husband of the plaintiff) was residing at Cuttack for which all the documents of the suit land along with some blank papers with signatures of Gunanidhi Dash were handed over to him to take follow up action in the settlement operation in good-faith. Thus, finding of the learned trial court is an error apparent on the face of the record. Moreover, the learned trial court did not place any reliance on the signatures of Gunanidhi Dash on Exts. AA/1 to AA/31 for the reason that those are xerox copies and not originals. The learned trial court, however, compared the signature of Gunanidhi Dash appearing in Exts. Z/13, Z/14, Z/15 and Z/16 and held that there was no variance in the signature of Gunanidhi Dash with that appearing in Ext. 2/a. Law is well settled in this regard. No fault can be found with the learned trial court when it compared the signature of Gunanidhi Dash appearing on Ext. 2/a with that of Exts. Z/13, Z/14, Z/15 and Z/16 but it cannot form a definite opinion with regard to the genuineness of the same, unless it is compared with by an expert, more particularly when the signature of Gunanidhi Dash appearing on Ext. 2/a is seriously disputed by the defendants. The process of comparison of signature of Gunanidhi Dash is a scientific investigation which comes within the purview of Order 26, Rule 10A C.P.C. Thus, the learned trial court has committed an error of law in coming to the aforesaid findings. The learned trial court ought to have sent contemporaneous and admitted signatures of Gunanidhi Dash to a handwriting expert to be compared with that of appearing on Ext. 2/a in exercise of power under Order 26, Rule 10A C.P.C. to arrive at a definite conclusion.

On scrutiny of the materials available on record, it appears that father of the plaintiff and defendant no. 1, namely, Gunanidhi Dash has led his hand by signing as Gunanidhi Dash in most of the documents which are not disputed. Apparently in the signature of Gunanidhi Dash on Ext. 2/a, the surname has been written as ''Das''. Apparently, such a discrepancy has not been explained satisfactorily. In view of the discussions made above, finding of the learned trial court to the effect that the signature of Gunanidhi Dash which finds place in Ext. 2/a is that of the father of the plaintiff, is not acceptable.

The next contention raised by Mr. Mohanty is that the Will bears the Hal Plot numbers of the suit land which creates a serious doubt with regard to genuineness of the Will. Referring to Ext. A, Mr. Mohanty submitted that Hal R.O.R. was published on 13.3.1992 and the Will was executed on 14.6.1985. Thus, at no stretch of imagination, it can be said that Hal Plot numbers were known to the testator in the year, 1985 when Hal R.O.R. was published in the year, 1992.

Mr. Bhuyan, learned counsel for the respondent no. 1 refuting the contention raised by Mr. Mohanty submitted that though Hal R.O.R. was published in the year, 1992, the settlement proceeding had commenced much prior to that and there are different stages of the settlement proceedings in which Hal Plot numbers are being referred to. Thus, no exception should be taken to the same. He also drew attention of this Court to the finding of the learned trial court and submitted that the learned trial court taking into consideration the different aspects of the matter came to the conclusion that by the time the Will was executed, there must be publication of the draft R.O.R. showing Hal Plot numbers. This Court in order to test the rival contentions of the parties and finding of the learned trial court verified the case record from which it appears that neither such a plea was taken by any of the parties to the effect that draft R.O.R. was published or Hal Plot numbers were known to the testator at the time of execution of the Will. There is also no document available on record to support the contention of Mr. Bhuyan. There is no explanation as to how Hal Plot numbers were known to the testator in the year, 1985 when final publication of the R.O.R. in respect of the suit land was published in the year, 1992. The discussion of the learned trial court and finding on the aforesaid aspect appears to be based on surmises and conjectures. There is no material in support of the same. In that view of the matter, it cannot, at all, be said that suspicion with regard to mentioning Hal Plot numbers in the Will is explained by the plaintiff satisfactorily.

Mr. Mohanty, learned Senior Advocate for the appellant further contented that the plaintiff had filed Crl. Misc. Case No. 495 of 2000 under Section 144 Cr.P.C. (Ext. L) though by that time the Will executed in her favour was in her custody, she had not mentioned about the same in the petition under Section 144 Cr.P.C. He also drew attention of this Court to Para-3 of the said petition (Ext.L) in which the plaintiff had stated about her payment of Rs. 70,000/- towards value of the land to the testator (Gunanidhi) after which Gunanidhi delivered the possession of the case land in her favour. On the other hand, in probate petition, the plaintiff stated that at the time of marriage, the suit land was gifted to her by Gunanidhi Dash on the marriage altar and possession of the same was delivered to her. Though discrepancy in the statement made in Ext. L as well as the probate petition was confronted to the plaintiff, she had not given any satisfactory reply to the same. Mr. Mohanty further relied upon a decision in the case of Kalyan Singh v. Smt. Choti and others, reported in AIR 1990 SC 396 in which it was held at para-23 as follows:

"22. ���. The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator''s wife, seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiffs title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We, therefore, concur with the conclusion of the High Court and reject the will as not genuine."

He further submitted that Gunanidhi had bequeathed the entire suit property in favour of the plaintiff without making any provision for other children. The Will does not explain as to why other children of Gunanidhi should be deprived of any share from the suit property. The Will was also not produced either in the suit filed by defendant nos. 4 and 5 nor in the proceeding under Section 144 Cr.P.C. (Crl. Misc. Case No. 495 of 2000). Thus, it creates a serious doubt with regard to genuineness of the Will.

Mr. Bhuyan, learned counsel for the respondent no. 1, on the other hand, submitted that the circumstance prevailing in other cases i.e. the suit filed by defendant nos. 4 and 5 and the proceeding under Section 144 Cr.P.C. initiated by the plaintiff do not require the plaintiff to mention about the Will. In that view of the matter, no fault can be found with the plaintiff for nondisclosure of the Will in the aforesaid proceedings. This Court on verification of the records finds that the plaintiff had not stated about the execution of the Will in her favour by Gunanidhi in the proceeding under Section 144 Cr.P.C., though the said proceeding relates to the very same property and the Will was her custody. Though in the probate case, she had specifically stated that she accrued right over the suit schedule property by virtue of the Will executed by Gunanidhi, she had made out a completely different story in Ext. L i.e. the petition under Section 144 Cr.P.C. No satisfactory explanation to the same was offered by the plaintiff though Ext. L was confronted to her by defendant no. 1 during her cross-examination. Thus, it cannot, at all, be said that the plaintiff has satisfactorily explained this suspicious circumstance surrounding the execution of the Will.

Argument was advanced by Mr. Mohanty with regard to the genuineness of the Will contending that Gunanidhi was unsound state of mind and bed ridden at his native village at the relevant time. He also referred to Ext. Z/20 i.e. the letter dated 28.6.1996 written by the plaintiff to her sister in which she had made a confession with regard to the mental illness of Gunanidhi. She in her own handwriting had stated in the letter that "Nana Pagala Hele Kaana Pain". He also relied upon Ext. Z/19 series, which are copies of the essentiality certificates in support of the treatment of Gunanidhi Dash by Dr. B. Dash, Associate Professor, Psychiatry Department of S.C.B. Medical College and Hospital, Cuttack. At the relevant time, he was in a paranoid state of mind which means a form of mental disorder. He further submitted that in view of the specific observation made in Ext. Z/19 series and the letter of the plaintiff addressed to her sister (Z/20), it is quite clear that Gunanidhi was not in a sound state of mind and was bed ridden at his native village at the time of execution of the Will. The learned trial court dealing with the same came to the conclusion that the essentiality certificates relates to the year, 1979 and the Will was executed in the year, 1985. No document was filed to show that Gunanidhi was under treatment of Dr. B. Dash, Associate Professor, Psychiatry Department of S.C.B. Medical College and Hospital, Cuttack at the relevant time when the Will was executed. The learned trial court further held that Ext. Z/19 series do not disclose that Gunanidhi was unsound state of mind at the time of execution of the Will. It was further held that the solitary statement of the plaintiff to the effect that "Nana Pagala Hele Kaana Pain" cannot establish that Gunanidhi was suffering from mental disorder and was of unsound mind at the time of execution of the Will.

Mr. Bhuyan, learned counsel for the respondent no. 1 supported the finding of the learned trial court.

Taking into consideration the aforesaid submission of the learned counsel for the parties as well as finding of the learned trial court, it appears that Gunanidhi during the year, 1979 was suffering from mental disorder and was under treatment of Dr. B.Dash, Associate Professor, Psychiatry Department of S.C.B. Medical College & Hospital, Cuttack. The contents of the letter dated 28.6.1996 written by the plaintiff to her sister and Ext. Z/20 also disclose that the plaintiff has referred to the mental illness of her father. As such, unsoundness of Gunanidhi (testator) cannot be ruled out. In that view of the matter, the onus is heavy on the plaintiff (respondent no. 1) to prove that the testator was not suffering from any mental disorder or illness at the time of execution of the Will (Ext. 2/a). Finding of the learned trial court appears to be based on surmises as it has not made any endeavour to scrutinise the materials available on record in that regard. No evidence was led by the plaintiff to show that the testator was in sound state of mind and was performing his normal day-to-day activity at the time of execution of the Will. Thus, the onus to establish that the testator was in sound state of mind at the time of execution of the Will was not discharged properly.

Mr. Bhuyan, learned counsel for the respondent no. 1 strenuously urged that suspicious circumstances surrounding the execution of the Will are based on facts and whether a Will is genuine or not has to be decided on the facts of each case. There is no mathematical equation to determine as to whether a Will is genuine or not. Further, the suspicious circumstance cannot be definite and the same depends on the facts and circumstances of each case. Thus, there should be specific pleadings with regard to suspicious circumstances surrounding the execution of the Will by the defendants and unless the same is pleaded, the plaintiff will not be in a position to explain the said suspicion by adducing cogent evidence to that effect. True it is that whether a Will is genuine or not depends upon the facts and circumstances of the case for execution of the Will. There cannot be any mathematical equation with regard to the genuineness of the Will. The suspicious circumstances in the Will are the questions of fact and cannot be accurately definite. The Court is to scan the documents and the evidence on record to come to the conclusion that whether suspicious circumstance is of such nature that it would be sufficient to refuse the probate of the Will. The Hon''ble Supreme Court in the case of H. Venkatachala Iyengar (supra) while dealing with the question of suspicious circumstance has categorically observed that even where there was no such plea but the circumstances gave rise to such doubts, it is for the propounder to satisfy the conscience of the Court. The language employed by the Hon''ble Supreme Court makes it abundantly clear that suspicious circumstances need not be pleaded.

On scrutiny of the facts and circumstances of the execution of the Will and the documents available on record, which gives rise to some suspicious circumstances surrounding the execution of the Will, it is for the propounder to offer satisfactory explanation and satisfy the Court that the document from which he derives the benefit is genuine and free from suspicion and a probate or a letter on administration can be granted in respect of the Will. Thus, the contention raised by Mr. Bhuyan, learned counsel for the respondent no. 1 does not hold good.

Taking into consideration the facts and circumstances of the case and the discussions made above, this Court is of the opinion that execution of the Will is shrouded by suspicious circumstance, which was not satisfactorily explained by respondent no. 1 (plaintiff) to the conscience of the Court. In that view of the matter, the impugned judgment and order is not sustainable in law and the same is accordingly set aside. Consequently, probate granted in respect of the Will dated 14.6.1985 (Ext. 2/a) in favour of the plaintiff (respondent no.1) is hereby set aside. The appeal is, accordingly, allowed, but in the circumstances, there shall be no order as to cost.