Jamunabala Dey and Others vs Karunamoy Dey and Another

R. Gogoi, J.—An application filed by the present Appellants as Petitioners for grant of probate of a Will executed by one Late Kalicharan Dey was registered as Title Suit No. 21 of 1976 in the Court of the learned District Judge, Nagaon in view of the multifaced objections, raised by the present Respondents as the opposite parties, against the reliefs claim. The suit having been decreed by judgment dated 31.5.90, the instant appeal has been filed by the opposite parties/Defendants in TS No. 021/76.

The case of the Petitioner in the application for grant of probate, in short, is that the testator late Kalicharan Dey died on 1st September, 1975 at Jakhalabandha leaving the properties described in Schedule ''A'' and ''B'' to the application. It was stated by the parties that the testator Kalicharan Dey''. had executed the Will in respect of the'' aforesaid properties on 12.12.52 wherein the Petitioner No. 1 who is the son and the Petitioner No. 2 who is the widow of the testator, were named as executors. According to the Petitioner, the said will was neither evoked nor substituted by any other Will furthermore, it was stated that the opposite party No. 1 and her children were granted come properties as per Schedule ''D'' by the testator. It was also stated by the Petitioners in the petition for grant of probate that the testator had expressed his desire that the properties that would devolve on the Petitioner No. 2 would be jointly mutated in he names of all the sons. The aforesaid wishes of the testator were made by subsequent additions to the Will made on 3.8.74.

The opposite parties No. 1 to 4 filed a point written statement against the prayer for grant of probate. It was contended by the opposite parties that the Will in question has lot been executed by the testator and in any case it was not as executed voluntarily but was on account of coarcion and undue influence exercised on the testator. It was the further case of the opposite parties that the (sic)estimator was not mentally sound at the time of execution of the Will. The subsequent additions to the Will not being valid for want of legal formalities, no probate can be granted. On the aforesaid principal contentions, the opposite parties prayed for rejection of the orayer made for grant of probate.

The learned Trial Court framed as many is eight issues for trial in the Suit. The issues is framed are reproduced hereinbelow:

Whether the Will was executed by Late Kalicharan Dey ?

Whether the Will was legally attested ?

Whether late Kalicharan was of sound mind at the time of execution of the Will and whether the Will has-been executed with full knowledge ?

Whether the subsequent addition was done by the executant ?

Whether the subsequent addition taken away the effect of the Will ?

Whether there was any undue influence and coarcion in respect of execution of the Will?

Whether the Will is a genuine document ?

Whether the Petitioner is entitled to a probate ?

The learned Trial Court at the conclusion of the proceeding by judgment and order dated 31.5.90 came to the conclusion that the Petitioners were entitled to a decree for grant of probate of the Will. Aggrieved, the instant appeal has been filed.

Issues 1, 2 and 3 as framed are crucial to a decision of the trial claims. Insofar as the Issue Nos. 1 and 2 are concerned the learned Trial Court relied on the evidence of PWs 1 and 2. PW1 is the wife of the testator and she has proved and identified the signature of the testator in the Will. PW2, a scribe had worked with Nirmal Ch. Bora, the original scribe who had written the Will in his own hand. Sri Manik Chettarjee and Shyamal Bora, two other scribes were the attesting witnesses. The original scribe as well as the attesting witnesses have been proved to be dead. Their signatures have been identified by PW2. The learned Trial Court on consideration of the aforesaid evidence on record in coajunction with the vidence of DW1, who had admitted that the testator had executed the Will, came to the conclusion that the Petitioners have duly proved execution of the Will (Ex. 1). The learned Trial Court has taken note of the fact that the Will (Ex.1) having been executed in the year 1952, there is a legal presumption as regards its genuineness and admissibility by virtue of Section 90 of the Indian Evidence Act.

In considering the third Issue framed in the suit regarding the capacity of the Testator to execute the Will, the learned Trial Court after discussing the evidence of DW-1, DW2 and Dw3 has come to the conclusion that DW1 and DW2 being interested witnesses, no reliance on their testimony could be placed and from the evidence of DW3 no finding as regards the alleged insanity of the testator could be arrived at. The learned Trial Court while discussing the said Issue No. 3 also came to the conclusion that the two additions to the Will were made by the testator in his own hand on 3.8.74 which itself would go to suggest that the Will executed in the year 1952 was executed voluntarily and in sound mind. On the basis of the aforesaid discussion, the learned Trial Court came to the conclusion that the testator has the necessary capacity to execute the Will in question. Likewise on a consideration of the materials on record, the learned Trial Court found all the other issues framed in the suit in favour of the Plaintiff (Petitioner).

Mr. A.K. Purkayastha, learned Counsel appearing on behalf of the Appellants in a short and precised argument has called into question the legality of the order passed by the learned Trial Court on four principal grounds. Mr. Purkayastha has first submitted that the burden to prove that the Will was executed validly lies upon the propounder and in the instant case, the said burden has not been fully discharged. Next learned Counsel argues that to be entitled to grant of probate it has to be proved that the Will was executed in accordance with the provisions of Section 63 of the Indian Succession Act and in case, as in the present case the attesting witness or witnesses are not to be found, the proof of attestation had to be made in accordance with the requirements of Section 69 of the Indian Evidence Act. The learned Counsel submits that on the basis of the materials on record, it has not been established that the signatures of the testator as well as the attesting witnesses have been proved. On that basis, the learned Counsel contends that the execution of the Will has not been proved and, therefore, the Petitioners are not entitled to grant of probate of the said Will. The third argument of Mr. Purkayastha is that the subsequent additions to the Will have the effect of nullifying the legal validity of the Will in question inasmuch as there is no attestation to the amendments made. As the Will in question namely, Ext. 1 has been claimed to be a registered instrument, any change/changes can only be effected by registration thereof. Lastly, it has been contended by Mr. Purkayastha that the signatures of the testator and the attesting witnesses being under challenge, the learned Trial Court ought not have come to the impugned findings regarding the genuineness of the aforesaid signatures on the basis of the oral testimony of the witness examined by the Petitioners. The learned Counsel argues that the said signatures ought to have been proved by calling an expert witness in accordance with the provisions of Section 45 of the Indian Evidence Act, 1872.

Mr. M.K. Choudhury, learned Counsel appearing on behalf of the Respondents in reply to the contentions advanced on behalf of the Petitioners has argued that the signature of the testator as well as the attesting witnesses have been proved in accordance with the procedure prescribed by Section 63 of the Indian Succession Act and Section 69 of the Indian Evidence Act. The evidence of the Petitioners witnesses on this point is clear and unambiguous and does not admit the possibility of any other view in the matter. According to the learned Counsel, by virtue of the provisions of Section 90 of the Indian Evidence Act, Ext.1. being a registered document and being over 30 years old, a presumption of validity arises by operation of law and no rebutting materials have been placed before the court to enable the court to come to any other conclusion in the matter.

PW-1, wife of the testator, whose status, however, is denied by the opposite parties, in her evidence has proved the circumstances in which ext. 1 was discovered. Her association with the testator even if the case of the opposite parties regarding her claims to be the wife of the testator are accepted, enable her to befamilier with writing and signature of the testator. PW-1 has proved the signature of the testator in Ext. 1, PW2 the scribe, who had worked with Nirmal Chandra Bora, the original scribe in whose hand writing Ext. 1 was written, has deposed that he is familiar with the handwriting and signature of the original scribe as well as the handwriting and signatures of the attesting witnesses who had also worked with the witnesses as scribes. PW-2 has proved the signatures of the attesting witnesses. The said witness has deposed that the original scribe as well as the attesting witness have all died, in the meantime. DW1, one of the sons of the testator, had admitted that his father, the testator had executed the Will. Insofar as the mental ability of the testator to execute the Will is concerned, DWs 1, 2 and 3 are the relevant witnesses. A perusal of the evidence of the aforesaid witnesses would go to show that apart from mere statements that the testator was not mentally balanced in the year in which he executed the Will, no other supporting material is forthcoming. In the absence of any further evidence regarding the mental health of the testator and/or the treatment, if any, he was undergoing including the evidence of the Doctor attending to him, the case of mental inbalance sot proved by the opposite parties appears to the of doubtful credibility. Considering the State of evidence on record with regard to the execution of the Will as already indicated coupled with the fact that in the facts of the present case the legal presumption u/s 90 of the Indian Evidence Act can be drawn, this Court is of the view that the learned Trial Court had rightly come to the conclusion that the testator had the necessary legal capacity to execute the Will. The first argument of Mr. Purkayastha, therefore, has to fail.

Mr. Purkayastha next argues that PW. 1 has merely proved the signature of the testator in the Will and the said witness has not proved that the testator had signed after the Will had been drawn, proof of which facts alone would establish execution of the Will. The evidence to conclude that the Will was validity executed, therefore, according to the learned Counsel, is absent. In support, Mr. Purkayastha relied on the judgment of the Madras High Court in the case of Doraiswami Vs. Rathnammal and Others, In the aforesaid judgment in para 12, the Madras High Court has observed that proof of signature of the testator in the Will would only mean that the document contains the signature of the testator. The same would not amount to proof of execution of the Will as the possibility of the signatures of the testator being taken on a blank paper or on misrepresentation that the documents represent a different transaction can not be ruled out. I have examined the facts in the context in which the aforesaid observations were made by the Madras High Court. The observations of the learned Judge must be understood in the facts of that case. Without going into the question as to whether the said observations can be construed to be laying down a legal proposition which is capable of being pleased into service to persuade this Court to take a similar view, the aforesaid point needs not detain this Court any further as the circumstances set out in para 12 in the context of which the aforesaid observations were made by the Madras High Court were not even put to PW-1 in the cross examination of the said witness. Rather, DW-1 one of the sons, himself has admitted that the testator had executed the Will. The second contention of Mr. Purkayastha, therefore, fails.

The third argument advanced on behalf of the Appellant that the subsequent additions made in the Will have the effect of invaliding the instrument as a whole as there is neither any attestation to the said additions to the Will nor is there any registered thereof. It is surprising that such an argument has been advanced on behalf of the Appellants as it is by virtue of the one of the additions to the will that the Schedule ''D'' properties have been bequeathed by the testator in favour of the Appellants. Lack of attesting witnesses or lack of registration, if at all, will effect the legal validity of the additions to Will and not the Will as a whole. The third argument of Mr. Purkayastha, therefore, has to be negatived by this Court.

The last argument made on behalf of the Appellants namely, that in the facts of the case, the learned trial court should have summoned an exert witness to enable the Court to come to the conclusion regarding the genuineness of the signatures of the testator and the attesting witnesses has to be again answered in the negative as the materials on record were sufficient to satisfy the learned Trial Court that the signature of the testator and attesting witnesses have been satisfactorily proved. When the learned Trial Court was satisfied on the said aspect of the matter with which conclusion this Court is in complete agreement, no question of exercising the discretion to call an expert witness can and does arise.

No other contention has been advanced.

In view of the foregoing discussion, this appeal has no merit and the same is accordingly dismissed. However, having regard to the facts and circumstances of the case, there shall be no order as to costs.