HIGH COURT OF JUDICATURE AT ALLAHABAD A F R [Reserved] Case :- TESTAMENTARY SUIT No. 1 of 2009 Plaintiff :- Sobhnath Dube, In The Matter Of: Late Kashinath Dube Counsel for Plaintiff :- R.P. Mishra,Nimai Das,Sandeep Agrawal Counsel for Defendant :- A.K. Upadhyaya,Hari Om Khare,Prabhaker Tiwari,R.K.Singh Hon. Pankaj Mithal,J.
One Kashi Nath Dubey resident of village Rajapur, Tesil and Pargana Mariyahu, District Jaunpur died on 9.2.2007 at the ripe age of about 77 years leaving behind his widow Smt. Tara Devi and a married daughter Smt. Vijay Luxmi from his first wife Smt. Lalti Devi who had died in 1954.
His brother Shobh Nath Dubey on his death applied for grant of Letters of Administration to the estate of the deceased with the Will annexed. He claimed that the deceased before his death on 14.12.2003 had executed an unregistered Will bequeathing his entire property to him. The Will was opposed by the widow Smt. Tara Devi by filing objections on affidavit. Accordingly, the proceedings for grant of Letters of Administration were converted into a testamentary suit vide order dated 22.1.2009.
On the pleadings of the parties and the material brought on record, the Court on 18.5.2009 framed the following issues for adjudication in the suit:-
i) Whether the Will dated 14.12.2003 was duly and validly executed by late Kashi Nath Dubey, son of Sant Das Dubey in favour of the plaintiff Shobh Nath Dubey, son of Sant Nath Dubey; and
ii) Whether the Will in dispute is hit by the provisions of Section 169 (3) of the U.P. Z.A. and LR Act, 1950 (hereinafter referred to as the U.P. Z.A. and L.R. Act).
The original Will dated 14.12.2003 was brought on record. No other documentary evidence was adduced from the side of the plaintiff except the above Will. The plaintiff in order to prove the said Will appeared as witness PW-1 and produced Kamal Chandra Srivastava, one of the attesting witness to the Will as PW-2.
The defendant on the other hand adduced documentary evidence in the form of extract of Khatauni 1414-1419 fasli paper no. A-38/1 to 38/3 in respect of the agricultural land left behind by the deceased, original of the registered Will dated 26.5.2007 paper no. A-40 , its cancellation deed dated 3.7.2007 paper no. A-42 and the certified copy of the objections paper no. A-45 filed by the plaintiff against the mutation application filed by Smt. Vijay Luxmi under Section 34 of the U.P. Land Revenue Act, 1901. A photocopy of the affidavit of Kamal Chandra Srivastava paper no. A-49 filed by him in Original Suit No. 614 of 2008 Shobh Nath Dubey Vs. Tara Devi was also brought on record as evidence. The defendant examined herself as DW-1, Ramjas Maurya as DW-2 and Bhuleshwar Nath Shukla DW-3 who submitted his examination in chief on affidavit but was not cross examined.
None of the documents adduced in evidence were denied or admitted by either of the parties and as such would be deemed to be admitted in evidence. They have not been marked as exhibits.
I had heard Sri Nimai Das, learned counsel for the plaintiff and Sri Rajesh Kumar Singh, learned counsel for the defendant.
The submission of Sri Nimai Das, learned counsel for the plaintiff is that the evidence of Smt. Tara Devi, DW-1 establishes that she has not seen the Will dated 14.12.2013. Therefore, her objection that the above Will is not a genuine document is baseless and not sufficient to dislodge the said Will. The plaint averments have remained un-controverted and as such there remains no doubt regarding the valid execution of the aforesaid Will. The provision of Section 169 (3) of the Act is prospective in nature which came into effect from 23.8.2004 and would not apply to the Will dated 14.12.2003. Therefore, the Will can not be held to be bad for want of registration.
Sri Rajesh Kumar Singh from the side of the defendant contended that the Will has not been proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925 (in short Succession Act) read with Section 68 of the Indian Evidence Act, 1872 (in short the Evidence Act). There is conflict in the statement of the attesting witness. The Will was executed on a stamp paper alleged to have been purchased on 16.12.1997 from Tehsil Nigoha, District Bhadohi from the stamp vendor Bhuleshwar Nath Shukla. The said Tehsil was abolished w.e.f. 27.5.1997 and that the aforesaid vendor had clearly stated on affidavit that he had not sold any stamp paper on the relevant date to the deceased. The execution of the Will in the year 2003 on a stamp paper purchased in 1997 itself casts a doubt upon its due execution. The plaintiff had not mentioned about the Will in his objection in the mutation proceedings even though he had acquired knowledge of the Will before the filing of the objections. He had set up the Will only subsequently after the defendant on 3.7.2007 cancelled the Will dated 26.5.2007 executed by her in respect of properties of the deceased in favour of sons of the plaintiff.
I take up the second issue first as to whether the unregistered Will dated 14.12.2013 is hit by Section 169 (3) of the U.P. Z.A. and LR Act.
The Registration Act, 1908 provides for the documents which are required to be compulsory registered and the documents in respect of which registration is optional. Section 18 of the said Act makes the registration of Wills optional.
In view of the above provision it is not mandatory to get a Will registered. Previously, even the U.P.Z.A. and LR Act was silent with regard to registration of the Will executed in respect of bhoomidhari land with transferable rights. It could be bequeathed by its holder by means of a Will in writing and attested by two persons. However, by U.P. Act No. 26 of 2004 w.e.f. 23.8.2004 Section 169 (3) of the U.P. Z.A. and LR Act was amended and it was provided that such a Will shall also be registered.
The aforesaid provision making the registration of the Will compulsory in respect of bhoomidhari land with transferable rights came into effect from 23.8.2004. It was not in existence prior to the said date. The aforesaid amendment is obviously prospective in nature as no retrospectivity has been attached to it. Accordingly, the aforesaid amended provision of Section 169 (3) of the Act can not be applied to a will deed which was executed on 14.12.2003, prior to its enforcement. In addition to the above neither the Indian Succession Act, 1925 nor the Indian Registration Act, 1908 (in short Registration Act) anywhere mandates for the registration of a testamentary instrument ie. a Will rather Section 18 of the Registration Act makes its registration optional. The above two Acts are Central Acts and would prevail over the U.P. Act. Thus, by amendment to the U.P. Act, registration of a Will can not be made compulsory as it would be against the provisions of the Central Act.
In view of the aforesaid facts and circumstances, issue no. 2 is decided in favour of the plaintiff and against the defendant and it is held that the Will dated 14.12.2003 is not invalid for want of registration as contemplated by Section 169 (3) of the U.P.Z.A and LR Act for the two reasons that the aforesaid provision can not over ride the provisions of the Central Act ie. the Indian Registration Act and can not be applied retrospectively to a Will executed earlier.
Now coming to the first issue it would be important to refer to the pleadings of the parties.
The plaintiff states that the deceased died on 9.2.2007. He had executed an unregistered Will on 14.12.2003 at his residence in Village Rajapur of District Jaunpur and that he is the beneficiary under the Will. The plaintiff has not pleaded that the aforesaid Will was executed in accordance with law and that it was attested by the two marginal witnesses. In the pleadings the names of the attesting witnesses have not been disclosed. The plaint also does not contain any averment regarding the person to whom the custody of the said Will was given or the manner or the time and date of acquiring knowledge of the same.
The defendant in the written statement has denied the said Will. She specifically states that the said Will was not in existence atleast till 23.6.2007. It was procured only after 3.7.2007 when she cancelled the registered Will dated 26.5.2007 executed by her in favour of the sons of plaintiff. The said Will was not disclosed to any one prior to institution of the testamentary case in the High Court on 9.10.2007. The said Will has been typed on stamp papers purchased on 16.12.1997 from a stamp vendor Bhuleshwar Nath Shukla who has denied its sale. On the death of Kashi Nath Dubey the name of the defendant was mutated in the revenue records but the order of mutation was stayed on the application of Smt. Vijay Luxmi, the married daughter of the deceased. The defendant had transferred part of the land . The plaintiff therefore filed suit no. 614 of 2008 for its cancellation. In the said suit the typist of the Will Ramjas Maurya and the stamp vendor from whom the stamp papers on which the Will was executed, were purchased, filed their affidavits respectively stating that the Will was not typed by him and that the stamp papers on which the Will was written were not sold by him.
In the light of the above pleadings it is misconceived to allege that the plaint averments were not controverted rather the pleadings in the plaint are insufficient to establish the due execution of the Will.
In order to grant Letters of Administration, in the background of the above pleadings, it is to be seen whether the Will dated 14.12.2003 was duly executed and has been proved by the plaintiff in accordance with law.
Section 63 of the Succession Act provides that the Will shall be in writing and signed or marked by the testator and that it shall be attested by two or more witnesses, each of whom had seen the testator sign or affix his mark to the Will whereupon each of the witnesses should sign the Will in the presence of the testator.
The original Will dated 14.12.2003 kept in a sealed cover was opened and duly perused by me. It is a type written document on four stamp papers of Rs. 50/- each. It bears the signatures of the testator Kashi Nath Dubey and is witnessed by Mata Saran Dubey and Kamal Chandra Srivastava. It bears the signatures of Ramjas Maurya as typist and that of Ashwani Kumar Mishra, Advocate. The stamp papers on which the Will is written bears the endorsement of purchase in the name of the testator. The stamp papers were purchased on 16.12.1997 from the stamp vendor Bhuleshwar Nath Shukla of Tehsil Nigoha, District Bhadohi.
It is settled in law that it is for the propounder of the Will to prove it and to remove all suspicious circumstances surrounding the Will to enable the Court to give effect to the said Will.
Section 68 of the Evidence Act clearly provides that where a document is required in law to be attested, it shall not be used as evidence until atleast one attesting witness has been called for the purposes of proving its execution.
The plaintiff appeared as a witness PW-1 to support the Will. In his affidavit filed in examination in chief he stated that the Will dated 14.12.2003 of the deceased Kashi Nath Dubey is his only Will which was executed by him at his residence in the village. The Will was executed by him of his own free will after duly understanding the contents thereof without any fear from any corner. He had not stated a single word as to the person who has written or typed the Will and as to the persons who have attested the same.
In his cross examination he admitted that at the time when the Will was executed, he was living in Ghaziabad. He was not aware of the time/date or the person from whom the stamp papers for executing the Will was purchased. He had acquired knowledge of the Will in the first week of June 2007 telephonically from Mata Saran Dubey, one of the attesting witnesses to the Will.
The statement of PW-1 demonstrates that the Will was not executed in his presence. He was not present in the village at the time of execution of the Will. The statement of PW-1 is hardly of any purpose to prove due execution of the Will.
The Will is attested by two witnesses namely Mata Saran Dubey and Kamal Chandra Srivastava. The first attesting witness Mata Saran Dubey had died and therefore the other witness Kamal Chandra Srivastava was produced as DW-2 to prove the due execution of the Will. In his examination in chief he states that the deceased Kashi Nath Dubey through Awadhesh Kumar Dubey son of Mata Saran Dubey had called him at his residence on 14.12.2003 where Ashwani Kumar Mishra was present and was joined by Mata Saran Dubey with typist later on. The Will was written by Ashwani Kumar Mishra on the direction of the deceased. It was read out to him whereupon the deceased directed the typist to type it. After the will was typed, it was read by the deceased and was signed by him in his presence and that of Ashwani Kumar Mishra and Mata Saran Dubey. Thereafter, attesting witnesses signed the Will.
The aforesaid statement of PW2 though proves the Will and makes it usable as evidence under Section 68 of the Evidence Act but does not removes the suspicious circumstances surrounding the Will.
In his cross examination the said witness fumbled and stated that he had gone to see the deceased at his residence a day earlier. On the said visit, the deceased had asked him to come again the next day and therefore he had gone there on 14.12.2003. This statement of DW-2 is in conflict with his examination in chief wherein he clearly states that he had gone to the house of the deceased on 14.12.2003 on the message of the deceased received from Awadhesh Kumar Dubey, son of Mata Saran Dubey. This makes the presence of DW-1 at the time of execution of Will a little doubtful.
The aforesaid Awadhesh Kumar Dubey had filed his affidavit stating that on the direction of Kashi Nath Dubey he had called Kamal Chandra Srivastava from his house but as he failed to get himself cross examined his statement on affidavit is of no use and is inadmissible in evidence which can not be relied upon. Thus, the conflict in the statement of DW-2 remains unresolved.
It may be important to note that in the natural course the estate of the deceased after him would have devolved upon his widow. Accordingly, on her application for mutation her name was recorded vide order dated 26/27. 4. 2007 and the name of Kashi Nath Dubey was expunged. However, on the application moved by Smt. Vijay Luxmi, the married daughter of Kashi Nath Dubey the said order of mutation was directed to remain stayed vide order dated 16.4.2007.
In the said mutation proceedings plaintiff applied for impleadment and filed objections on 26.2.2008. He had acquired knowledge of the Will in the first week of June 2007 but even then he did not uttered a single word regarding the Will in his objections. The objections are completely silent regarding the aforesaid Will.
The above fact leads to an inference that the plaintiff knowingly suppressed the Will or had concealed the same with ulterior motive for which no plausible reason exists on record except that he failed to mention about it as he was expecting that the defendant would accept the Will. This is no reason to justify the concealment of the Will.
The above evidence is a strong indication that the Will had been manufactured subsequently and was not in existence till 26.2.2008 and the plaintiff is lying.
The presence of one of the attesting witnesses Kamal Chandra Srivastava at the time of execution of the Will is doubtful in view of contradiction in his own statement as stated earlier.
In addition to the above, the said attesting witness in Original Suit No. 614 of 2008 had filed his affidavit clearly stating that he had not signed the Will dated 14.12.2003 as attesting witness. Even though the said affidavit of Kamal Chanda Srivastava filed in the above suit is not admissible in evidence in this suit as only its photocopy had been filed instead of its certified copy but nonetheless the statement of DW-1 to the effect that the said Will was not signed by the said attesting witness who was not even present at the relevant time and that the alleged attesting witness Kamal Chandra Srivastava on 25.9.2008 had filed an affidavit in Original Suit No. 614 of 2008 denying his signatures on the said Will had remained un-controverted.
The aforesaid affidavit of the attesting witness Kamal Chandra Srivastava paper no. A-49 clearly states that he had not signed the Will dated 14.12.2003 alleged to have been executed by Shobh Nath Dubey and that he was not its attesting witness.
Smt. Tara Devi, DW-1 in her examination in chief stated that the Will dated 14.12.2003 was not executed by her deceased husband and that on the alleged date of its execution the alleged attesting witness of the Will Kamal Chandra Srivastava had not come to their house. He had filed his affidavit in Original Suit No. 614 of 2008 stating that he had not signed the Will dated 14.12.2003 as the attesting witness. This part of the statement of DW-1 Smt. Tara Devi had not been controverted by any piece of evidence. The aforesaid attesting witness Kamal Chandra Srivastava had not denied filing of his affidavit in Original Suit No. 614 of 2008. He had not even explained the circumstances under which the alleged affidavit was filed and the reason for taking altogether a different stand in the present case. In these circumstances, his testimony is not trust worthy.
The revenue documents prove that after the death of Shobh Nath Dubey, the name of his widow was mutated. On the strength of the above mutation treating herself to be the owner of the property of the deceased, she executed a registered Will dated 26.5.2007 in favour of the sons of the plaintiff. In view of the above Will, the plaintiff remained silent but as soon as the said Will was cancelled on 3.7.2007, the plaintiff first filed a suit for getting the sale deed executed by the defendant cancelled and then initiated proceedings for grant of Letters of Administration. These facts are evident evident from the originals of the Will dated 26.5.2007 and its cancellation deed dated 3.7.2007. All this casts a strong doubt about the bonafidies of the plaintiff.
The cumulative effect of the entire evidence on record establishes that the Will dated 14.12.2003 which is unregistered remains shrouded with mystery and therefore according to test laid down in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC369 for proving the Wills, the judicial concious of the Court is also to be satisfied apart from applying the usual test for proving the Will.
In the present case, in the first place the pleadings are silent about the due execution of the Will in accordance with law and about the attesting witnesses. Secondly, the presence of one of the attesting witness Kamal Chandra Srivastava who had entered the witness box as PW-2, at the time of execution of the Will is doubtful as there is conflict in his statement. At one place he states that he went to the house of the deceased on 14.12.2003 on being called by the deceased through the message conveyed by Awadhesh Kumar Dubey and on the other place states that he had been to the place of the deceased a day earlier whereupon the deceased had asked him to come the next day. Thirdly, his signing of the alleged Will dated 14.12.2003 as attesting witness is also doubtful for the reason that DW-1 Smt. Tara Devi stated that he had filed an affidavit in Original Suit No. 614 of 2008 clearly stating that he was not the attesting witness of the aforesaid Will. This statement of DW-1 Taran Devi remains un-controverted as no one has denied that Kamal Chandra Srivastava had not filed it or that it does not contain the statement as alleged by her. Lastly, the cancellation of Will dated 26.5.2007 by the defendant is a strong reason for the plaintiff to fabricate the above Will dated 14.12.2003 on stamp papers purchased on 16.12.1997 in respect whereof no explanation was furnished. These suspicious circumstances have not been removed by the plaintiff by offering any explanation or evidence.
In view of the aforesaid facts and circumstances, the propounder of the Will has failed to remove all reasonable doubts and to satisfy the concious of the Court that the Will on which he is relying upon is the last Will and the testament of the deceased which has been duly executed by him.
The evidence on record to the contrary creates an impression in the mind of the Court that the aforesaid Will was procured and manufactured after the defendant had cancelled the bequeath made by her of the properties of the deceased in favour of the sons of the plaintiff in order to maintain the claim and rights of his immediate family over the property of the deceased.
Accordingly, the Court does not feel safe to grant Letters of Administration to the plaintiff to administer the estate of the deceased on the basis of the aforesaid Will.
In the result, the suit fails and is dismissed with cost upon the parties. The Original Will is directed to be kept in a sealed cover in the safe custody of the registry.
SKS 3.7.2015