1)This appeal is preferred challenging the legality and validity of the impugned judgment and decree dated 27/4/01 passed by the learned District Judge, Karimganj in Title (P) Suit No. 23/99 thereby declining to grant probate of the Will alleged to be executed in favour of the appellant.
2) I have heard Mr. BC Das, learned Senior Counsel assisted by Mrs. S. Roy, learned counsel for the appellant and Mr. HRA Choudhury, learned Senior Counsel assisted by Mr. FU Barbhuiyan, learned counsel for the respondents.
3) The relevant facts necessary for disposal of this appeal which are not in dispute are as follows:
One Hriday Malakar executed a Will on 7/1/93 in favour of the plaintiff. The said Will was registered in the office of the Sub-Registrar, Karimganj on the same day. By the said Will, the testator bequeathed all his movable and immovable properties in favour of the plaintiff and the plaintiff was also appointed as sole executor of the Will. The testator having expired on 10/4/94, the executor filed an application under Section 276 of Indian Succession Act, 1925 in the court of learned District Judge, Karimganj for probate of the Will which was registered as Title (P) Suit No. 23/99. After continuance of the proceeding for a certain period, the appellant having amended the petition by incorporating the names of some other more near relatives of the testator, the respondent No. 1 appeared in the proceeding and filed his objection in granting the probate. The objection was raised on the ground that the Will in question was not a genuine one and it is vitiated by suspicion circumstances and not as per the procedures of execution of Will and accordingly the same cannot be probated.
4) The learned probate court on the basis of the pleadings of the parties framed the following issues:
1) Whether there is any cause of action for the suit
2) Whether the suit is maintainable
3) Whether the deed of Will in question is genuine and whether thereby the deceased Hriday Ranjan Malakar bequeathed his entire properties to the petitioner
4) Whether the deceased had right, title and interest over the properties described in the schedule of the petitioner during his life time 5) To what relief/reliefs, the petitioner is entitled to
5) In support of his case, the propounder /appellant examined 5 witnesses including himself and whereas the objector examined himself and another witness in support of their claim. Except the Will in question which was proved as Ext. 1, no other documentary evidence was adduced by any of the parties. The learned probate court upon assessment of the evidence and materials on record decided the issue No. 3 against the appellant and held that the Will, Ext. 1 is vitiated by suspicion circumstances and consequently no relief was granted to the appellant and the case was dismissed by the impugned judgment.
6) Mr. Das, learned Senior Counsel for the appellant in support of the appeal has reiterated the grounds as reflected in the memo of appeal and whereas Mr. Choudhury, learned Senior Counsel for the respondents support the impugned judgment.
7) Submissions of the learned counsel led me to go through the evidence and materials available on record. I have also inspected the Will, Ext. 1.
8) The mode of execution of a Will is provided under Section 63 of the Indian Succession Act, which is quoted herein below:
?63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual war, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other persons in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form or attestation shall be necessary. ?
9) Let us first examine Ext. 1 from the touchstone of requirement of Section 63, more particularly, with regard to requirement of Clause-(c) of Section 63. As per Section 63(c) , a Will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of his signature or mark or the signature of such other persons and each of the witnesses shall sign the Will in the presence of the testator. According to the aforesaid provision, attesting witnesses should be two or more who must see the testator signed the Will or has seen some other person signed as per direction of the testator who signed the Will in his presence. It is also requirement of law that the attesting witnesses himself sign the Will in presence of the testator.
10) A requirement for compliance of Section 63 of the Act has been reiterated by the Apex Court in various cases, reported in 2007(7) SCC 225, 2007(4) SCC 728, 1998 (4) SCC 384 and 1977 (1) SCC 369. Now, let us examine Ext. 1 with the touchstone of the requirement of above provisions of law in the right of the evidence of attesting witnesses i. e. PW. 4 & PW. 5.
11) PW. 4, Swapan Malakar, who was declared hostile at the initial stage, in-chief, deposed interalia that he does not know whether he had put his signature in Ext. 1 as attesting witness and the signature under Ext. 1(5) was put by him in his residence at the request of PW. 1. Similarly, PW. 5, who was also declared hostile, in-chief, denied that the Ext. 1 was written in his presence and the testator put his signature thereon. He further stated that he does not know whether he had put his signature vide Ext. 1(6) at the request of executor/appellant at his residence.
12) PW. 4 and PW. 5 are only attesting witnesses to the Will and both of them denied that they put their signatures in presence of the executor rather they stated that they do not know that they put their signatures in the Will at the instance of the appellant at his residence.
13) The evidence of PW. 1 who also in his examination-in-chief, stated that he was present at the time of execution of the Will on 7/1/93. But he contradicted the said statement in cross-examination and stated that at the time of execution of the Will, he was in duty as PSO being Havildar of the Assam Police and after two days of the execution and registration of the Will, when he returned then only he came to know about the Will. PW. 4 & PW. 5 also denied that the Will was written by the Sushanta Roy Kar, PW. 2.
14) As regards the suspicion circumstances, the Apex Court in the case of Niranjan Umeshchandra Joshi ?vs- Mrudula Jyoti Rao and others reported in (2006) 13 SCC 433, held that the burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in his behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any.
15) The Supreme Court in the case of B. Venkatamuni vs- C. J. Ayodhya Ram Singh and others reported in (2006) 13 SCC 449, has held that having regard to the fact that the Will was a registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring materials on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the will and in sound disposing capacity executed the same.
16) In the instant case although the Will was registered one and the said registration has not been denied but the appellant could not discharge the initial burden of due execution of the Will and attestation of the Will by two or more witnesses as required under Section 63 of the Indian Succession Act.
17) In view of the above discussion, I do not find any merit in this appeal.
18) In the result, the appeal stands dismissed.