Gunendra Nath Choudhury vs Amarendra Nath Choudhury And 3 Ors
2022 Latest Caselaw 1179 Gua

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GAHC010014082019




                     THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : Test.Cas./2/2019

         GUNENDRA NATH CHOUDHURY
         S/O LATE NAGENDRA NATH CHOUDHURY, R/O ROHINI KUMAR
         CHOUDHURY PATH, KUMARPARA, GUWAHATI-9, P.S. BHARALUMUKH,
         DIST. KAMRUP (M), ASSAM.



         VERSUS

         AMARENDRA NATH CHOUDHURY AND 3 ORS
         C/O MRS RANU KALITA CHOUDHURY, MANGALDOI COLLEGE,
         MANGALDOI, DIST. DARRANG, ASSAM.

         2:MRS. DHARITRI DAS CHOUDHURY
          C/O DHARMA DAS
          JAYA NAGAR
          HOUSE NO. 33
          BYE LANE NO. 2 SIX MILE
          GUWAHATI 22
          DIST. KAMRUP (M)
         ASSAM.

         3:MRS. LABANYA DUTTA
          C/O MR. SISIR DUTTA
          REHABARI
          MILANPUR
          GUWAHATI-7
          DIST KAMRUP (M)
         ASSAM.

         4:MRS. CHANDRAMALLIKA CHOUDHURY SAIKIA
          C/O SRI PRAFULLA KUMAR SAIKIA
          PALASH PATH
          NABIN NAGAR
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             DISHA APARTMENT
             R.G.B. ROAD
             GUWAHATI-24
             DIST. KAMRUP (M)
             ASSAM

Advocate for the Petitioner   : MR. A BISWAS

Advocate for the Respondent : MR. A J SARMA (R1)

BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 04.04.2022

Hear Mr. A. Biswas learned Counsel appearing for the appellant as well as Mr. S. K. Ghosh, learned Counsel representing the respondents.

2. This is an appeal under Section 299 of the Indian Succession Act, 1925 read with order 42 of the Code of Civil Procedure against the judgment dated 04.08.2018 passed by the District Judge, Kamrup (M), at Guwahati in PTS Case No. 04/2016 rejecting the prayer for probate.

3. Late Nagendra Nath Choudhury has two sons and three daughters. The three daughters are already married and they live in their matrimonial houses. The son Amarendra Nath Choudhury also lives separately. The appellant being the other son used to live in his ancestral house along with his deceased father late Nagendra Nath Choudhury.

4. Late Nagendra Nath Choudhury executed a Will on 14.08.2012 bequeathing a plot of land measuring 2 kathas along with houses thereon in favour of the appellant.

5. It may be stated that because of a motor accident, the 95 years old late Nagendra Nath Choudhury was bed ridden for some years. While bed ridden, once he fell from the bed and sustained further injuries.

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6. The Will dated 14.08.2012 was registered on 16.08.2012 and on 17.08.2012 late Nagendra Nath Choudhury breathed his last.

7. The appellant filed the application before the court below in order to have a probate upon the said will. Notices were issued to the other children. They objected to the prayer for probate alleging that the Will dated 14.08.2012 was executed in a suspicious circumstance. They further alleged that late Nagendra Nath Choudhury was never in a sound mind to execute the Will.

8. The court below, in order to adjudicate the dispute framed the following issues:

(i)Whether the case is maintainable in its present form?

(ii) Whether the testator Nagendra Nath Choudhury executed the Will in question and if so, whether he was in sound physical mind to execute the same?

(iii) Whether the testator was competent to execute and registered the Will?

(iv) Whether the petitioner is entitled to get probate as prayed for?

(v) To what relief/reliefs the parties are entitled to?

9. During the trial, the appellant examined himself and one of the attesting witnesses. The respondents examined two witnesses.

10. Finally, on the basis of the evidence on record, the trial court dismissed the application seeking probate.

11. I have gone through the impugned judgment. The learned trial court has categorized the circumstances and held that the Will was executed in a suspicious circumstance.

12. For ready reference, paragraph 11 of the impugned judgment is quoted as under:

"11. Now, although both Gunendra Nath Choudhury and Narayan Ch. Kalita corroborated one another regarding the execution and registration of Page No.# 4/10

the document (WILL) by their father during this lifetime, there are some suspicious circumstances which cannot be over looked. They are:

i. Said Nagendra Nath Choudhury was admittedly bed ridden for a long period of time. PW-1 Gunendra Nath Choudhury specifically admitted that his father was confined to bed at that time due to fracture of his leg. He also admitted that he was under medical treatment. The age of the testator was 90 years at the relevant point of time.

ii. Although he was under regular medical treatment and was confined to bed and was above 90 years old at the time of execution of the WILL, he was not examined by a doctor to ascertain his ability to understand and also to ascertain his mental fitness to execute such document. The document was purportedly executed and registered on the evening of 14.08.2012 on commission and only 2 days after, i.e., 17.08.2012 said Nagendra Nath Choudhury died in the morning after cardiac attack. Thus, there remains the question about his good health on the date of execution and registration of the document, as well as, his mental fitness to execute such document.

iii. PW. 1 stated that no draft of the WILL was prepared before finalizatin of the same and he added that after preparation of the WILL, he went through it. He bore the entire expenditure of drafting of the WILL and also registration of the WILL on commission. He is the beneficiary of the WILL, as well as, he was appointed as an executor of the WILL. His brother and sisters were not present at the time of execution of the WILL and only he himself, his wife, advocate Narayan Ch. Kalita, one Girindra Kalita and the Sub Registrar were present at the time of so called exeuciton of the WILL.

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iv. One Dasharat Deka contacted the advocate Narayan Ch.

Kalita and said Dasharat Deka was known to the advocate from before. Dasharat Deka is the brother-in-law (brother of his wife) of PW 1 Gunendra Nath Choudhury.

Thus, the entire circumstances are suspicious. The entire execution of the WILL was done in such a hurry and in such a manner that nobody could guess or nobody could know about the execution of the WILL, save and except, Gunendra Nath Choudhury and his wife. Said Gunendra Nath Choudhury used to reside with his father and there was every scope for exerting pressure on the old and infirm person, who was bed ridden at that point of time. The death of testator immediately after execution and registration of the document also creates a great suspicion about the health and mental ability at the time of execution and registration of the WILL. Ext. 1 is the said WILL and the WILL also does not speak anything why the other heirs and successors were excluded by the testator from getting the benefit of the properties left by him. There is also no mention as to why only Gunendra Nath Choudhury was chosen by the testator for bequeathing the aforesaid plot of land with standing house, shed and appurtenances. Hence the very dispositions, made in the WILL, are unfair and unnatural and no explanation has been given for that".

13. In H. Venkatachala Iyengar v. B.N. Thimmajamma, reported in AIR 1959 SC 443, the Supreme Court has held as under:

" 18. What is the true legal position in the matter of proof of wills? It is well-

known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his Page No.# 6/10

handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

19. However, there is one important feature which distinguishes wills from other Page No.# 7/10

documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The Page No.# 8/10

presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules Page No.# 9/10

can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."

14. The execution of a Will is based on one single requirement and it is "sound mind". Anybody having a sound mind can execute a Will. So, in this case, the question is whether the testator was in a sound state of mind at the time of execution of the Will.

15. When a person bequeaths his property to a stranger or to one of his legal heirs by excluding other legal heirs, then the matter becomes a serious one. In that case, it is the duty of the propounder to satisfy that the testator was in a sound state of mind at the time of execution of the Will. In that case, the degree of proof is much higher. The Will in hand was registered not in the office of the Sub Registrar but it was registered in the house of the testator. The Sub Registrar was not examined. The propounder examined another witness named Narayan Ch. Kalita, who is a lawyer by profession. He has stated in his evidence that the brother-in-law of the propounder took the initiative and on his asking, prepared the Will of the testator. Mr. Narayan Ch. Kalita has stated in his evidence that he took all the initiative to bring the Sub-Registrar to the house of the testator for registration of the Will. This witness further stated that it was the testator who paid all the expenses for bringing the Sub- Registrar to his house for registration of the Will.

16. The respondents examined two daughters of the testator. Both of them have stated in her evidence that their father was bed ridden at the time of the execution of the Will. The DW-1 Dharitri Das Choudhury has stated in her cross-examination that her deceased father was short of hearing and was unable to speak prior to his death.

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DW-2 Chandramallika Choudhury Saikia has stated in her cross-examination that on 12.08.2012 when she came to visit her father in his house, he told her that he had a fall from the bed and received injury in his hands and in his spine. DW-2 has also stated that at that time her father was unable to speak clearly. She came to know about the injuries of her father only after seeing some prescriptions.

17. Now, this Court is of the opinion that the learned trial court has correctly appreciated the evidence available in the record and nicely categorized the circumstances which clearly depict that the Will in question was executed in a suspicious circumstance. The Will which is exhibited as Ext. 1 does not speak about any reasons as to why the other legal heirs of the testator were excluded.

18. Under the aforesaid pemised reasons, this court is of the opinion that that the judgment passed by the court below is a well reasoned one and does not require any interference of this court.

19. The appeal is found to be devoid of merit and stands dismissed accordingly.

JUDGE

Comparing Assistant