Dukhu Mahata vs Shridhar Mahata and Others

Satyeshwar Roy, J.—Sridhar Mahata and others, the sons of late Hadiram Mahata, Budhu Mahata and Khudu Mahata filed application u/s 268 of the Indian Succession Act (the Act) for probate of a will said to have been executed by Chutamani Debya bequeathing her property in favour of Hadiram Mahata, Budhu Mahata and Khudu Mahata. Since they were not the executors, probate of the will could not have been granted and letters of administration has been granted by the court below which has been challenged by Dufcau Mahata, one of*the objectors in the court below.

According to the propounders, Smt. Shutamani Debya executed a registered will on 22.12.1917 bequeathing her property in favour of Hadiram Mahata, Budhu Mahata and Khudu Mahata. They were own brothers. The will was marked as Ext. 1. The legates under Ext 1 did not file any application for letters of administration and their sons filed an application which was registered as Probate Case No. 3 of 1970. Objections were filed by other agnatic relations of Smt. Chutamani Debya and the case, therefore, was registered as Title v Suit No. 2 of 1971. The Appellant-objector No. 1 challenged the genuineness of the will. He also stated that she never executed the Will voluntarily. The entire thing was fraudulent.

The court below on the basis of the evidence held that Smt. Chutamani on her free will had executed Ext. 1 and that she had title to the property.

The finding of the court below that the will was genuine has been seriously challenged by the Appellant. It was contended that the will was an unprivileged will. The rules embodied in Section 63 of the Act which, inter-alia, provides that the will must be attested by two or more witnesses applied to the will. It was urged that when it came in evidence that none of the three attesting witnesses in Ext,. 1 was alive, the propounders should have led evidence in terms of Section 69 of the Evidence Act and as that was not done it must be held that the will was not proved in accordance with law. Consequently no letters of administration could have been granted On behalf of the propounders it was urged with reference to the evidence of A. Ws. 1 and 4 that the evidence was led in terms of Section 69 of the Evidence Act and the finding of the court below that the will had been proved according to law and it was genuine cannot be interfered with.

Ext. 1 is dated 21.12.1917 and it is a registered document. There are there attesting witnesses in Ext. 1, namely, Barju, Chinu andt Jiwan Gope. The Scribe was Tarini Charan Acharya. Admittedly all these four persons died before 1970 in which year the application, for letters of administration was filed. The propounders, therefore, could not have examined any of the arresting witnesses as required u/s 68 of the Evidence Act. When no attesting witness can be found, Section 69 of the Evidence Act provides that it must be proved that the attestation of one attesting witness at least is in his hand writing and that the signature of the person executing the document is in the hand writing of that person. Two things therefore, in this case are which the propounders were required to prove for proof of the execution of the will: (a) attestation of either Barju, or Chinu or Jiwan or Tarini, the scribe was in his hand writing, and (b) Smt. Chutamant''s signature was made by the scribe, Tarini after she had executed the will by touching the pen. The two witnesses relied on behalf of the propounders are A.Ws. 1 and 4. So far A.W.1 was concerned, he was an illiterate. All that he stated was that Chutamani had executed the will by touching the pen and Tarini signed on her behalf. He was present then. Thereafter Barju, Chinu and Jiwan Gope witnesssd in presence of Smt. Chutamani. The witness being an illiterate could not and did not identify the signature of any of the attesting witnesses nor the signature of Tarini made on behalf of Smt. Chutamani. So far A.W. 4 was concerned, he was literate. He says that Tarini after writing'' the document read it over to Chutamani who executed it by touching the pen and Tarini signed on her behalf. This will was executed in presence of Barju, Chinu and Jiwan and they signed as attesting witnesses at the request of Chutamani. A.W. 4 claimed that he was then present. It will thus appear from the evidence of A.W. 4 that he did not identify the signature of any of the attesting witnessess or the signature of Tarini who had signed on behalf of Chutamani. In my opinion, the provision of Section 69 of the Evidence Act was not CQmplied with and the will, therefore, could not have been marked as exhibit. The court below did not refer to this aspect of the matter. The court below recorded its finding that as it was a registered will and A.Ws. 1 and 4 stated that it was executed in their presence and was scribed by Tarini and thereafter it was explained by him to the lady.

It appears that the court below had gone into the question of title which was wholly outside the scope of the probate court. All that, it was required to record was whether it was genuine and valid. For that firstly it was required to record a finding whether the will was executed keeping in view the provision of Section 63 of the Act and in the circumstances of this case proved in terms of Section 69 of the Evidence Act. Since there has been non-com-) pliance of Section 69 of the Evidence Act i.e. the will has not been proved in accordance with law, letters of administration could, not have been granted in favour of the propounders.

In the result, the appeal is allowed, the order of the court below is set aside and the application for letters of administration is dismissed. There shall be no order as to cost.