Smt. Kadambini Singh Vs. Lokanath Singh and ors. - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - as the testatrix had no children, the appellant being her sister's daughter was brought to her family from infancy and was looked after like an adopted daughter. being satisfied with her dealings, the testatrix executed the will in favour of the appellant. 7. the law as to proof of a will is well established. the will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63(c) of the indian succession act, 1925. the onus of proof of the will lies upon the propounder. anil chandra banerjee pw 6 and one bijoy kumar das he stated that at that time the appellant as well as her husband pw 3 was also present. this statement clearly goes to show that pw 1 had previous acquaintance with the testatrix.r.k. patra, j. 1. being felt aggrieved by the order of the learned subordinate judge, first court, cuttack refusing to grant probate of the will in her favour, the appellant kadambini singh has filed this appeal under section 299 of the indian succession act, 1925. 2. the appellant's mother and. nilamani are two sisters. nilamani (hereinafter referred to as the testatrix) executed the will dated 9-5-1976 in favour of the appellant. one mangal singh had three sons, namely, sitanath, jagannath and lokanath (respondent no. 1) the testatrix was the wife of sitanath. respondent no. 2 baidyanath singh is the son of jagannath. the will recites that the testatrix's mother-in-law arnapurna being the true owner while alive gifted away the property in question by a gift deed dated: 25-6-1965 (ext. 2) in favour of the testatrix. as the testatrix had no children, the appellant being her sister's daughter was brought to her family from infancy and was looked after like an adopted daughter. being satisfied with her dealings, the testatrix executed the will in favour of the appellant. the case of the appellant is that the will; was duly executed in her favour and was also duly registered.. the testatrix died on 19-7-1976 leaving at the time of: her death, the properties described in the will. the appellant being the sole legatee under the will and being the executor named in the will, is entitled for grant of probate.3. respondent no. 1 lokanath singh filed his written statement contending, inter alia. that the testatrix had no title or interest in respect of the property mentioned in the will. it was also pleaded by him that the will is a forged one. respondent no. 2 baidyanath singh filed his written statement denying the claim made by the appellant. he pleaded that the will was not duly executed nor was it a genuine one. five months prior to her death who died at the age of 70 years, the testatrix suffered from paralysis and was unable to understand anything. she being not in a sound state of mind had no testamentary capacity.4. on the basis of the aforesaid pleadings, the learned subordinate judge framed six issues and considering the evidence adduced in the case came to hold that the testatrix although was literate was not in a sound and disposing state of mind at the time of execution of the will. she has lost her testamentary capacity. accordingly the learned subordinate judge declined to grant the prayer of the appellant.5. in support of the grant of probate, the appellant examined six witnesses. pw 1 is the scribe of the will. pws 2 and 6 are the two attesting witnesses to the will. pw 3 is the husband of the appellant. pw 4 is the deed writer of the gift deed executed by the mother-in-law of the testatrix. pw 5 is the person who identified the testatrix before the sub-registrar when the will was presented for registration. 6. shri ramdas, the learned counsel for the appellant, contended that the evidence on record shows that there are no suspicious circumstances surrounding the execution of the will and the will having been duly executed in accordance with law and having been further registered, the appellant is entitled to grant of necessary relief. he also submitted that the appellant being the testatrix's sister's daughter is a heir coming under (iv) of class ii of the schedule to the hindu succession act, 1956 and by the will the testatrix having not changed the natural course of succession, there is no scope to doubt the claim put forth by the appellant.7. the law as to proof of a will is well established. the will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63(c) of the indian succession act, 1925. the onus of proof of the will lies upon the propounder. in discharging that burden the propounder must not only prove that the will was properly executed and attested but also prove that the instrument so propounded was the last will of a free and capable testator. in absence of suspicious circumstances, surrounding the execution of the will, proof of testamentry capacity and the signature of the testator as required by law is sufficient to discharge the burden. where, however, there are suspicious circumstances, the onus, is on the propounder to explain them to the satisfaction of the court before it accepts the will as genuine. (see air 1959 sc 443, air 1962 sc 567 and air 1964 sc 529).8. in view of the aforesaid, let me consider the evidence on record. it is not the case of the appellant that the testatrix was illiterate. pw 3,the husband of the appellant testified in his evidence that the testatrix was able to read and write and was not illiterate. pw 6 is one dr. anil chandra banerjee and is an attesting witness to the will ext.1. he stated, that the testatrix was not illiterate. he has gone to the extent of saying that he had seen the testatrix writing and even on the date of execution of the will she was able to read and write. in the face of such categorical and unequivocal evidence the learned subordinate judge has rightly held that nilamani, the testatrix was literate.9. pw 1 is the scribe of the will ext. 1 and was an advocate's clerk. he deposed that he scribed the will under the instructions of the testatrix who was mentally and physically fit and was in a clear disposing state of mind. according to him on being called by the husband of the appellant (pw 3) to scribe the will, he went to his house where the testatrix was then residing. under the instructions of the testatrix, he scribed a draft will which he read over and explained to the testatrix. she admitted the contents thereof to be correct. thereafter he scribed the will ext. 1. he read over and explained the contents of ext. 1 to the testarix who admitted the same to be correct and put her thumb impression (l. t. i.) thereon in token of execution in presence of baidyanath singh, pw 2, dr. anil chandra banerjee pw 6 and one bijoy kumar das he stated that at that time the appellant as well as her husband pw 3 was also present. pw 1 further deposed that pws 2 and 6 attested the will before the testatrix. there is no explanation by pw 1 as to why the testarix put her lti instead of putting her signature she being a literate lady. pw 1 has made endorsement ext: 1/a on the will, to the effect that as the testatrix was illiterate, he read over and explained the contents of the will to her in presence of the attesting witnesses and after admitting the contents to be correct, she put her ltis on the will in token of execution thereof. at several places of ext. 1 pw 1 has made endorsements against the ltis of the testatrix to the effect that she was illiterate. pw 1 tried to explain the position by stating that he did not know whether the testatrix was illiterate or not. he however admitted that he did not make any enquiry to know as to whether the testatrix was literate or not. in absence of any explanation by pw 1 as to how he made the ednorsement on the will without knowing whether the testatrix was illiterate or not, his evidence has to be accepted with a pinch of salt. pw 1 posed himself to be a stranger to the testatrix. he admitted in his evidence that he was looking after o. e. a. appeal no 11 of 1976 on behalf of the appellant. this shows that the appellant and her husband pw 3 had acquaintance with pw 1. pw 1 stated that pw 3, the husband of the appellant, came to him and told him that the testatrix wanted him to scribe the will. this statement clearly goes to show that pw 1 had previous acquaintance with the testatrix. had it been not so, she would not have asked pw 3 to fetch pw 1 for scribing the will. pw 2 is an attesting witness to the will. he deposed that pw 1 wanted to know from the testatrix as to how she would execute the will and she expressed that she would execute it by putting her ltis thereon. there is no explanation even by pw 2 as to why the testatrix wished to put her lti when she was otherwise literate. pw 3, the husband of the appellant, was examined in the court two days after pws 1 and 2 were examined. he tried to offer explanation as to why the testatrix put her ltis on the win. according to him as the hands of the testatrix were shivering, she executed the will by putting her ltis instead of putting her signatures. neither pw 1 nor pw 2 stated that the hands of the testatrix were shivering for which she had to put her ltis. pw 6, dr. anil chandra banerjee who , was another attesting witness, offered explanation by stating that on the date of execution of the will the hands of the testatrix were trembling. this witness (pw 6) further stated that on the date of execution of the will the testatrix personally served tea to him. it is not clear as to how she personally served tea to pw 6 when her hands were trembling. it is in the evidence of pw 3 that the testatrix was not an ordinary house wife. pw 3 stated that the testatrix was personally attending courts in connection with her litigations. this indicates that she was quite capable and competent to look after her own affairs. it was brought out in the evidence of pw 4, the deed writer, that if the execution is unable to sign the document on account of trembling of his hands, a certificate on the deed to that effect is furnished by the deed writer. there is no certificate in ext. 1 to the effect that because of trembling of her hands, the testatrix put her. ltis. as the testatrix was looking after her own litigations and other affairsand was: a forward lady, it was not expected from her that she would put her ltis on the deed. pw 6 the second attesting witness, deposed that on the date of execution, of the will, she went to the house of the appleant for treatment of her son who was suffering from dysentery and was requested to attest the will. pw 6 stated that on the date of execution of the will the testatrix was able to read and write. this evidence of pw 6 strikes at the very foundation of the appellant's case. pw 6 has also stated that on the date of execution of the will the testatrix was quite hale and hearty. if she was hale and hearty on the date of execution of the will, it was expected that she would put her signatures on the will, she being a literate lady. in the face of such evidence, i have no hesitation to hold that the appellant has not been able to lift the veil of suspicious circumstances surrounding the execution of the will.10. relying on a judgment of the supreme court in rani poornima devi v. kumar khagendra narayan. deb and anr., air 1962 sc 567, the learned counsel for the appellant contended that the will ext. 1 having been registered, there is no scope to doubt its genuineness. in the said case the supreme court observed that registration of a will having regard to the circumstances may prove its genuineness. but the mere fact that a will is registered will not by itself be sufficient to dispel all suspicions regarding it where suspicions exist without subjecting the evidence on registration to close examination. the will in question was registered on 25-5-1976 at the residential house of pw 3 and not in the office of the sub-registrar. the endorsement of the sub-registrar on ext. 1 read as follows:'presented for registration at 5 p. m. on the 25th day of may, 1976 at the private residence of kadambini singh, wife of pratap chandra singh at khatbinsahi, cuttack, by nilamani singh, widow of sitanath singh of gandarpur.'11. pw 3 has tried to give explanation by stating in his evidence that the testatrix told him that she would not go to the registration office, she being a pardanashin lady. pw 2, the attesting witness, has stated that the sub-registrar was called to the house of pw 3 for registration of the will because the testatrix expressed that she being a female would, not go to the registration office. the reason or explanation offered for getting the will registered at the residential house of pw 3 is not at all acceptable in view of the admission of the husband of the appellant that the testatrix was personally going to courts in connection with her litigations. it is also in the evidence of pw 3 that after execution of the will the testatrix had gone to gandarpur on many occasions. in view of such evidence, the plea that the testatrix, being a female and/or pardanashin lady did not go to the office of the sub-registrar for getting the document registered is untenable. getting the will registered at the residential house of pw 3, is in, my considered opinion, another suspicious circumstance attending to the execution of the will. the fact of registration instead of clearing the cloud of suspicion has helped deepening the suspicious circumstances.dw 4 is one biswanath singh. he was examined on behalf of the contesting respondents. he stated that his mother and the mother of testatrix are two sisters. the testatrix became widow about 30 to 39 years back and after the death of her husband she appeared to have becomeinsane. about 10 days prior to the death of the testatrix in july, 1976, he went to see her on getting information that she was ill. at that time he found that she was suffering from paralysis and was not able to talk and understand anything. she was even not able to recognise him. on enquiry being made, the mother and wife of pw 3 told him that the testatrix was so suffering for the last three months. dw 3 is one alekh chandra singh. he also stated in his evidence that in may, 1976, he saw the testatrix in the house of pw 3 and at that time she was suffering from paralysis and was bed-ridden. she could not recognise him. she was not able to hear and talk. dw 4 is baidyanath singh, respondent no. 2. in his evidence; he also stated that in february. 1976, the testatrix was attacked by paralysis. she was completely bed-ridden and was not able to understand anything.12. in view of the aforesaid evidence on record, i am inclined to agree with the findings of the learned subordinate judge that the execution of the will is surrounded by suspicious circumstances and nilamani the testatrix was not in a sound and disposing state of mind at the time of execution of the will and had lost her testamentary capacity. in the circumstances, the learned subordinate judge has rightly rejected the application made by the appellant for grant of probate of the will. 13. shri ramdas submitted that the appellant being nila-mani's sister's daughter is one of the class ii heirs under the hindu succession act, 1956 and by executing the will the testatrix has not changed the natural course of succession. in view of section 15(1)(b) of the said act which provides that the property of a female hindu dying intestate shall devolve according to the rules set out in section 16 upon the heirs of her husbad; learned counsel did not pursue this argument. 14. in the result, i do not find any merit in this appeal which is accordingly dismissed. there shall be no order as to costs.