Biswanath Pahadsingh Vs. Panchanan Pahadsingh and ors. - Court Judgment

Excerpt:
property - will - execution of - u, b1, b2 and n were four brothers - u had no issue - plaintiff was adopted by u and u was executed will in plaintiff's favour - after death of n, four branches became separate - under said will he bequeathed his' l/4th share in suit properties - plaintiff filed suit for title of suit property being adopted son of u - lower court disbelieved fact of adoption and dismissed plaintiff's suit - hence, present appeal - whether will, is genuine document and was last document by testator? - held, nowhere it has been shown that finger prints of testator person could be forged - if said document was suspicious document and plaintiff discharged its initial burden proving document to be genuine, it was for respondent to show that it was false and fabricated document and that same did not contain l.t.i. of u - there is no circumstance that u's l.t.i, was taken forcibly or by undue influence - it would be correct to presume that one is illiterate, party challenging document, or signature of l.t.i, has to prove fact, which has not been done in present case - plaintiff having proved his case, lower court should have decreed suit - in result, appeal is allowed - lower court judgment is set aside - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it is submitted that so far as the present case is concerned, even assuming that uchhab was old and weak, and was hard of hearing and of defective eye sight, yet there is no evidence from the side' of the defendant that at the time of execution of the will he was not in a fit state of mind to understand the contents of the document. 1 as son and he will enjoy the property after his death. in the deed which he endorsed. defendants have failed to discharge the shifted-burden on them to hold that the document was executed under any suspicious circumstances.d.m. patnaik, j.1. this is an appeal against the judgment of' the subordinate judge, baripada dismissing the suit of the plaintiff for grant of letters of administration under a will in respect of the assets of one uchhab pahadsingh.2. plaintiffs case is, uchhab, binod, bhagabat and nalu were four brothers of whom uchhab had no issue. he adopted the plaintiff whose natural father was bhagabat. after the death of nalu in 1950, four branches became separate. since uchhab had no is-sue he adopted the plaintiff in the year 1948 and executed a will in his favour. under the said will he bequeathed his' l/4th share in the properties described in the schedule 'b' & 'c' of the plaint. plaintiff possessed those properties. it is further claimed that the will (ext. 1/b) was the last will of uchhab and uchhab executed the will in a healthy stateof mind and body.3. defendants 1, 3 and 4 and 5, 6 and 7 filed separate written statement. they denied any partition in the family. they also challenged as false the adoption of the plaintiff by uchhab. so far as the will is concerned, they took the plea that uchhab was suffering about 4 to 5 months prior to his death and was extremely old and feeble, hard of hearing and of defective eye-sight. therefore, it was claimed that the will was the result of fraud and/or undue influence and misappropriation.4. the lower court framed the following issues :(1) has the plaintiff any cause of action? (2) is the case maintainable? (3) was the testator in a fit state of deposing mind and body to execute a will ? (4) has the testator power to execute the will with respect to the properties mentioned ? (5) is the will valid and genuine ? (6) to what relief, if any, the plaintiff is entitled ?so far as the adoption is concerned, lower court disbelieved the fact of adoption. it also considered the explanation given by the plaintiff that since he was staying in the house of uchhab he claimed to be the adopted son and disbelieved the fact of adoption.5. mr. r.k. mohanty, learned counsel for the appellant also did not press issue of adoption stating that the will itself is independent of the fact of adoption and according to him even if adoption is disbelieved, yet plaintiff has been able to prove that he is entitled to letters of administration in respect of the properties of uchhab.therefore only question remains for decision is whether the will, ext. 1/b. is a genuine document and was the last docu-ment by the testator.mr. mohanty, in support of his contention stated that the courts below committed error in applying principle, of law relating toexecution of will. it is submitted that so far as the present case is concerned, even assuming that uchhab was old and weak, and was hard of hearing and of defective eye sight, yet there is no evidence from the side' of the defendant that at the time of execution of the will he was not in a fit state of mind to understand the contents of the document. in this context, mr. mohanty drew my attention to the evidence of pws 2 and 3, the attesting witness and the scribe pw 3 and submitted that nothing has been elicited in the cross-examination to hold that uchhab suffered from mental debility at the lime of execution of the document.6. mr. p.kar, learned counsel for the respondents strenuously urged relying in the case of narayan mishra v. champa dibya (dead), air 1986 ori 53; and kalyan singh v. smt. chhoti, air 1990 sc 396 and submitted that it is established from the evidence of pws that uchhab had defective eye-sight arid was hard of hearing and extremely old. in such a situation, according to mr. kar, law requires the propounder of the will to prove by cogent evidence thereby discharging the shifted-burden on him, that the contents of the documents were read over to the executant and that he understood its contents and thereafter and only after so understanding he signed the document. according to mr. kar there is no endorsement of the scribe that it was so read over and explained.the rival contentions may be examined in the following manner.7. lower court in para 10 of the judgment has dealt with the execution of the will and has disbelieved the genuineness of the will giving the following reasons.(a) admittedly, uchhab was old and rustic villager with defective eye-sight at the time of execution of the will (ext. 1/b). (b) discrepancy in the evidence of p.ws. 2 & 3 and other witnesses regarding use of inkpot and wooden penand fountain pen and uchhab gave his l. t. i. with the ink, of fountain pen. (c) uchhab had no legal advice before execution of the deed; (d) uchhab was a rustic villager and therefore could not have been in a position t6 understand the technical language simply by reading the same. (e) evidence of p.w. 4 that all the witnesses signed in the fountain pen and ink of the fountain pen was used to take l.t.i. ofuchhab. (f) l.t.i, of uchhab did not appear at the bottom and there is no endorsement by the scribe that the document was read over and explained to the testator; (g) the very fact that the document was written on 17-1-1948, but was presented for the first time in the court shows suspicious circumstances under which' it could have been written.8. i have gone through the impugned judgment and the evidence of witnesses. plaintiff examined four witnesses of whom p. w. 2 anirudha naik and p.w. 4 upendnanath naik are attesting'witnesses of the will and p. w. 3 bhagabat prasad raj the scribe of the will p. w. 2 stated that about 35 to 36 years ago, uchhab executed one deed of adoption in favour of p. w. 1 on stamp papers and he was present at that time. p. w. 3 scribed that deed as per the instruction of uchhab. the scribe read over the document to uchhab who admitted saying 'yes' and gave his l.t.i, and thereafter he and others put their signatures onthat deed. it is stated that bholanath raj, pranabandhu naik, binod pahadsingh, brundaban, anand naik, brundaban barik, ballav naik, upendra naik and others signed in that deed. p. w. 2 proved his signature as ext. 1 and ext. 1/a is the signature of the scribe. in para-3 of the examination-in-chief he seated that uchhab suffered for a day or two and then died. material part of his evidence in cross-examination was that at the time of the execution of the will plaintiff was aged 14 to 15 years. uchhab had no disease prior to his death. he suffered from fever for two days and died. at the same time he denied the fact of his being continuously bed ridden for six weeks. he admitted that uchhab was not able to identify things from distance. he died at his age of 60 to 65 years.nothing has been put in the cross-examination as to the fact of the document not being read over and explained to him as stated in para 1 of his examination-in-chief.p.w. 3 is bhagabat prasad raj who scribed the will nama. he stated that uchhab asked him to write the will that he will adopt p. w. 1 as son and he will enjoy the property after his death. this document was read over to uchhab and he admitted the same to be correct and gave his l.. t. i. in the deed which he endorsed. thereafter the persons present there signed in the will. all total 13persons signed there. he proved ext. 1/b' the will and ext. 1/c, his endorsement under the l.t.i, of uchhab. he stated that at that time uchhab was quite hale and hearty. no one induced him to execute the will. uchhab died about one or two years after the execution of the deed.material part of his evidence in cross-examination was that father of the plaintiff was living and he signed in the will. the witnesses signed in the ink, but ink on the back of the will by the vendor was in a different ink. he was aged about 20 to 23 years at the time of execution of the will. he denied the suggestion that uchhab was ill six months prior to his death and was unable to move, understand and see. he did not remember how many pens were used and in which pen he scribed the will. then he was not working as moharir. he did not ask uchhab to get a draft from the lawyer or to take his advice.nothing has been asked to his witness with regard to the mental or physical debility and the power of understanding of uchhab. there is no challenge to the evidence that so many persons named in the will were present at the time of execution of the will.p. w. 4, upendranath naik, was aged about 65 years on the date of examination in the court. material part of his evidence in the examination-in-chief was that uchhab was issueless. he executed one document to give his property to p. w. 1. he himself, his father-in-law and other brothers of uchhab were present there. uchhab declared that he was to give his property to p. w. 1 after his and his wife's death. accordingly p. w. 3 scribed the deed which was read over to him and then he gave his l.t. i. and signed on that deed. he identified his signature as ext. 1 /d. he stated that at that time uchhab was able to see, move, work and understand. he died four to five months after the execution of the will. he did not suffer for a long.in cross-examination he could not say whether the date on which the will was executed was a holiday. he could not say if uchhab obtained anybody's advice. he stated all those present signed in the will. ink and fountain pen was used by taking l. t. i. of uchhab and one of his brothers. all the witnesses signed in the fountain pen. he denied suggestion that in 1948 there was no use of fountain pen ordinarily. uchhab suffered for about 10 days prior to his death. hecould not say what was his disease. he died when he was 70 years of age. nothing has been elicited in the cross-examination to disbelieve that main issue, whether uchhab suffered from mental disability.9. defendants have not examined any witness to indicate illness and mental debility of uchhab. evidence of the sole witness in support of the case of the defendants is not acceptable in comparison to the evidence of three material p. ws. examined from the side of the plaintiff. it is further established and proved that no doubt uchhab was old, but that oldness did not affect his mental alertness. there is no evidence from the side of the defendants from which it can be concluded that uchhab was so old and disabled that he was not able to put his l.t.i. there is also no evidence that somebody else helped him or assist him in any manner in putting l.t.i. or that he was forced under circumstances to put l.t.i. signatures of so many persons and their presence at the time of execution of the will as stated by p.w. 2 is believed by me disagreeing with the finding of the lower court that the execution of the will is not believed or that it was scribed in a suspicious circumstance and i accept the contention of mr. mohanty in this regard.10. reasons given by the lower court are rather found to be innocuous reasons for discarding the genuineness of the document. there has been inadequate and effective cross-examination to support case of the defendants about mental and physical debility of uchhab. a person who deposes about more than 30 years when the document was executed can hardly be able to say that as to what was the reasons for difference in the ink. since there is no cross-examination with regard to mental debility of uchhab i have no hesitation to accept the evidences of p. ws. 2, 3 and 4 that uchhab executed the document in a fit state of mental condition. i have no quarrel over the proposition laid down by the decisions cited by mr. kar. defendants have failed to discharge the shifted-burden on them to hold that the document was executed under any suspicious circumstances.11. it was strenuously urged by mr. karthat the lower court also found that thedelay in presenting the will after so manyyears was itself a circumstance to suspectits genuineness.i do not think that itself is the only ground to disbelieve the document. it may be, as rightly submitted -by mr. mohanty that occasion did not arise for presentation of the will. that apart', nothing has been shown from the side of the defendant that the persons named to be present have been shown as signatories, were fake and did not live at that time. this contention of mr. kar is therefore not accepted.12. mr. kar, however, strenuously urges that if assuming uchhab was a literate as is the case of the plaintiff, yet there would not have been any necessity for him to put the l.t.i, instead of the signature and that too ' not on the bottom of the deed but on margin and that itself would show suspicious circumstances underwhich the document was executed.it is difficult to say that under what circumstance a person even if literate would put his l.t.i. if somebody is suffering from paralysis of the right hand, certainly he would be in a position to put the l.t.i, only. for the purpose of authenticity and identity of the person, l.t.i, is always taken. a signature may be forged, but nowhere it has been shown that the finger prints of a person could be forged. if the document was at all a suspicious document and that the plaintiff discharged its initial burden proving the document to be genuine, it was for the defendant to show that it was a false and fabricated document and that the same did not contain l.t.i. of uchhab. there is no circumstance that uchhab's l.t.i, was taken forcibly or by undue influence. i may point out merely because someone puts his l.t.i. it cannot be presumed about his physical or mental condition, nor it would be correct to presume that one is illiterate, party challenging the document, or the signature of l.t.i, has to prove the fact, which has not been done in the present case.plaintiff having proved his case, lower court should have decreed the suit.13. in the result, the appeal is allowed. lower court judgment is set aside. plaintiff is entitled to the letters of administration. no costs.