Gauhati High Court
RFA/36/2017 on 19 February, 2025
GAHC010194792017
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
RFA No. 36/2017
On the death of Ram Niranjan Bawri, his legal heirs and representatives-
1. Shri Ajai Bawari.
2. Shri Chaitanya Bawari.
3. Smt. Rama Bawari.
Sl. No.1 and 2 are sons of late Ram Niranjan Bawri and Sl.No.3 is the
wife of late Ram Niranjan Bawri.
All are residents of A.T. Road, Marwari Patty Charali,
Dibrugarh, Dist.-Dibrugarh.
......Appellants.
-Versus-
1. Dr. Monohar Bawri,
S/o Late Nandlal Bawari,
Resident of Parbotia, PO-Tinsukia (Assam),
At present residing at C/o Shri M.V.D. Centre, 1st Floor,
Purbodai Bhawan, Royal Plaza, Christianbasti,
G.S. Road, Guwahati-781005, Dist.-Kamrup(M),
Assam.
......Respondent.
2. Shri Mahabir Prasad Bawari,
S/o Late Nandlal Bawari,
Resident of Aster Tower,
501-A, Wing Opposite Oberoi Mall,
Malad East-Goregaon East,
Mumbai-97.
3. Shri Banwarilal Bawari,
S/o Late Nandlal Bawari,
Resident of 453 CIT Scheme-47,
Kolkata-29.
4. Smt. Raj Kumari Khetawat,
W/o Shri B.L. Khetawat,
D/o Late Nandlal Bawari,
Resident of Khetawat Aluminium Industries,
Haibargaon, Nagaon, Assam.
5. Smt. Rajani Singhania,
W/o Shri R.C. Singhania,
D/o Late Nandlal Bawari,
C/o R.C. Investment, 314-Empire State Building,
Ring Road, Surat-395002, Gujarat.
......Proforma Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellants : Mr. B.D. Deka. ......Advocate.
For the Respondents : Mr. S.S. Sarangi, Sr. Adv.,
Mr. D. Rathi. ......Advocates.
Dates of Hearing : 21.11.2024 & 17.12.2024
Date of Judgment : 19.02.2025
JUDGMENT AND ORDER
Heard Mr. B.D. Deka, learned counsel for the appellants and also
heard Mr. S.S. Sarangi, learned Senior Counsel, assisted by Mr. D. Rathi,
learned counsel for the respondents.
2. In this regular first appeal, the appellants have challenged the
correctness or otherwise of the judgment and order dated 13.03.2009
passed by the learned District Judge, Tinsukia, in Misc. (Probate) Case
No.87/2001. It is to be noted here that vide impugned judgment and
order dated 13.03.2009, the learned District Judge, Tinsukia, (Trial Court
for short), had granted probate of the Will, dated 10.02.1987, executed
by Suti Devi Bawari, W/o Late Nandlal Bawari.
3. The back ground facts leading to filing of the present appeal is
briefly stated as under:-
"The respondent No.1 herein Dr. Monohar Bawari has filed a
petition under Section 276 of the Indian Succession Act, 1925 for
issuance of probate of the Will of late Suti Devi Bawari, who
suffered demise on 11.12.1988. His case is that his mother late
Suti Devi Bawari was a permanent residence of Parbotia, Tinsukia
Town and she expired on 11.12.1988, at her residence at Parbotia.
She left behind the respondent/petitioner Dr. Monohar Bawari and
the opposite parties, namely, Mahabir Prasad Bawari, Banawarilal
Bawari, Ram Niranjan Bawari, Rajkumari Khetawat and Rajani
Singhania, who are her near relatives. Before her death, late Suti
Devi Bawari has executed her last Will and testament in presence
of witnesses on 10.02.1987. By virtue of the said Will, the testatrix
had appointed the respondent No.1/petitioner as the executor of
the Will. The value of the bequeathed estate by the said Will is
estimated at Rs.3,00,000/- and the amount of liabilities and lawful
deductions of the said testatrix was Rs.35,000/- as described in the
Schedule of the petition. The petitioner had earlier filed one
probate case, being Probate Case No.11/1998 and Misc. Probate
Case No.34/2001 for grant of probate, but the same were
dismissed for default. The Will was executed by the testatrix in her
residence at Parbotia and at that time she was in good health and
mind and therefore, the petitioner has prayed for issuance of the
probate of the Will executed by his mother late Suti Devi Bawari
before the learned District Judge, Tinsukia, by filing a petition
being Misc. (Probate) Case No. 87/2001.
The appellants herein had filed written objection in the
aforementioned petition. Ram Niranjan Bawari, opposite party
(O.P.) No.3 had filed written statement, wherein he had taken a
stand that the petition is not maintainable in law and facts and the
petitioner has no right to file the present probate case, as the Will
so executed, apart from being false, fabricated and concocted, is
not tenable in the eye of law. However, he admitted the death of
testatrix on 11.12.1988 and also admitted that at the time of her
death, she was staying at Tinsukia at the residence cum Nursing
Home of the petitioner, where she came for her treatment and the
O.P. No.3 had also admitted the contents of paragraph Nos.2 and
6, of the petition, however, he denied execution of the Will by late
Suti Devi Bawari on 11.02.1987, being her last Will and he denied
the validity and legality of the Will and also denied appointment of
the petitioner as executor of the same and also denied the value of
the property and the expenses incurred by the petitioner towards
the funeral and Shradha ceremony and that the value of the
subject matter of the Will, would be more than Rs.16,00,000/- and
that the subject matter of the Will came to the share of Nandlal
Bawari out of Hindu Undivided Family, namely, M/s Chunnilal
Netram and said Nandlal Bawari died on 13.01.1970 leaving behind
Suti Devi Bawari, Mahabir Prasad Bawari, Ram Niranjan Bawari,
Banwarilal Bawari, Dr. Monohar Bawari, Rajkumari Bawari and
Rajani Bawari and that the dispute arose between the heirs of said
Nandlal Bawari relating to enjoyment of the ancestral property and
as such, to save the family from unnecessary litigation, one C.L.
Chandak of Calcutta was appointed by the legal heirs of late
Nandlal Bawari as the sole arbitrator to distribute the properties
amongst the legal heirs of late Nandlal Bawari and accordingly, C.L.
Chandak gave his award on 18.11.1977, superseding all the past
family awards pertaining to the family property and thereby all the
assets and liabilities were distributed amongst the four sons of late
Nandlal Bawari with provision for Smt. Suti Devi Bawari and
unmarried daughter Smt. Rajani Bawari. As per the said award, the
land and bungalow situated at Barbari, Dibrugarh, that is the
subject matter of the Will was exclusively allotted to Smt. Suti Devi
Bawari with condition that she shall enjoy the same throughout her
lifetime. The aforesaid fact was also clarified by the arbitrator Shri
C.L. Chandak in his letter dated 28.01.1994. The subject matter of
the Will also mutated in the name of late Nandlal Bawari and that
the petitioner Dr. Monohar Bawari falsely representing himself as
the only son of the landholder Nandlal Bawari, applied for mutation
on 09.09.1988 and his name came to be mutated vide Mutation
Case No.140 of 1988-89, passed by the S.D.C., Dibrugarh East
Circle on 09.01.1989. Thereafter, opposite party No.3 filed M.A.
Case No.9/92-93, before the Additional Deputy Commissioner,
Dibrugarh and the Additional Deputy Commissioner, Dibrugarh,
though admitted irregularity in the mutation case, but dismissed
the appeal on 02.08.1993, holding that the appeal was barred by
limitation. Thereafter, an appeal being Appeal No.104
RA(Dib)/1993 was filed before the Assam Board of Revenue at
Guwahati and the Revenue Board, vide judgment dated
16.03.1995, set aside the impugned order and directed the Deputy
Commissioner, Dibrugarh to dispose of the case de-novo.
Thereafter, the Deputy Commissioner, Dibrugarh vide order dated
27.08.1996, set aside the order of mutation and as per order of the
Deputy Commissioner, the Circle Officer, Dibrugarh East Circle,
after hearing all the sons of late Nandlal Bawari, mutated the land
vide order dated 05.05.1999 in the name of all the sons of late
Nandlal Bawari, namely, Mahabir Prasad Bawari, Ram Niranjan
Bawari, Banawarilal Bawari and Monohar Bawari, with equal
shares, by right of inheritance, in place of Nandlal Bawari. The
petitioner had preferred one revenue appeal, being Revenue
Appeal No.3/1999 before the Additional Deputy Commissioner,
Dibrugarh and vide order dated 25.03.2000, the ADC, Dibrugarh
stayed the operation of the order dated 05.05.1999 of the Circle
Officer.
Then having failed to achieved his goal, the petitioner
resorted to another foul play with that end and got the Will falsely
prepared and had applied for probate on the basis of the said Will
and the Probate Case No.11/1998 was dismissed on 23.11.1998,
for default and thereafter, Misc. Case No.135/1998 and 34/2001
were filed and the same were also dismissed for default.
Further case of the opposite party No.3 is that on
18.11.1977, the arbitrator had allotted the subject matter of the
Will to Suti Devi Bawari and the same was enjoyed by her during
her lifetime and after the death of Suti Devi Bawari, the property
will devolve upon all the sons of late Nandlal Bawari and as such,
the said property cannot be bequeathed by late Suti Devi Bawari by
a Will and accordingly, it is prayed for dismissal of the petition.
Thereafter, the learned Trial Court has formulated following
points for determination:-
(i) Whether the Will annexed is the last Will executed by
late Suti Devi Bawari and whether the said Will was
executed in a sound state of mind and health?
(ii) Whether late Suti Devi Bawari had the right to dispose
of the subject matter of the Will by executing a Will?
(iii) Whether the execution of the Will in question is duly
proved by the petitioner?
(iv) Whether the petitioner is entitled to a probate as
prayed for?
Thereafter, considering the evidence adduced and the documents
exhibited, the learned Trial Court, vide impugned judgment and
order granted probate of the Will executed by late Suti Devi Bawari
in favour of the petitioner.
4. Being aggrieved, the appellants preferred the present appeal on
the following grounds:-
(i) The learned Trial Court has committed error both in law and facts
in granting probate.
(ii) The learned Trial Court had decided the case on wrong footing.
(iii) The learned Trial Court failed to take note of the stand taken by
the opposite party No.3, in view of the title of the testatrix being
challenged.
(iv) The learned Trial Court failed to convert the Misc. Probate case into
a title suit, for which the appellant herein deprived of contesting
the case as civil suit.
(v) The learned Trial Court has failed to consider the pleadings and
evidence of the parties.
(vi) The learned Trial Court had failed to frame appropriate issues so as
to decide the real dispute between the parties.
(vii) The learned Trial Court has failed to consider the fact that the
signature in the Will was not proved in accordance with law.
(viii) The learned Trial Court has misinterpreted the provision of Section
14 of the Hindu Succession Act, 1956 and arrived at a wrong
finding that the testatrix has the right to dispose of her property
through her testament.
(ix) The learned Trial Court has failed to consider that the execution of
the Will could not be proved as required under Section 68 of the
Evidence Act.
(x) The learned Trial Court has also erroneously held that the testatrix
had the power to dispose of the property being the absolute owner
and in fact, the learned District Judge has no power and authority
to decide the title of the parties.
(xi) The learned Trial Court has misread the decision cited by the
respondent No.1/petitioner as well as language of Section 19(C) of
the Court Fee Act.
(xii) The learned Trial Court has also failed to considering the provision
of Article 137 of the Limitation Act and wrongly arrived at a finding
that the case is not barred by limitation.
(xiii) The learned Trial Court has wrongly accepted the valuation
certificate as the value of the property is more than the value given
after judgment of the probate case and the learned District Judge
had no jurisdiction to decide the case, where the subject matter of
the Will is situated at Dibrugarh Town, in the district of Dibrugarh.
5. Mr. Deka, learned counsel for the appellants, submits that the Will
was allegedly executed on 10.02.1987 and the petitioner had not made
any disclosure of the same till 1998 and he got his name mutated in the
year 1989 pretending to be the only son of late Nandlal Bawari and
appeal was preferred and the same was allowed and ultimately, the
names of all the four sons of late Nandlal Bawari are mutated in his
place. They having failed to achieve the goal, the respondent/petitioner,
now comes with the Will, allegedly executed by late Suti Devi Bawari and
he filed the Misc. Probate application in the year 1998.
5.1. Mr. Deka further submits that the application is barred by limitation
and also there are suspicious circumstances in respect of execution of the
Will. Further, Mr. Deka submits that the testatrix had no right to
bequeath the property in view of Section 14(2) of the Hindu Succession
Act and that the learned Trial Court had no jurisdiction to set aside the
award in arbitration proceeding. Mr. Deka, further submits that the
respondent/petitioner was instrumental in executing the Will which is a
suspicious circumstance and he failed to remove the said suspicion and
that the learned Trial Court has also failed to take note of the delay of 10
years in filing the petition and as such, there is limitation in filing the
same. Further, Mr. Deka submits that by virtue of the arbitration award
only lifetime interest was created in favour of late Suti Devi Bawari and
after her death, it ought to have been devolved upon the
respondent/petitioner and other sons, but the learned Trial Court had
failed to consider the said aspect. Further, Mr. Deka pointed out that
there is discrepancy in dag number and patta number of the schedule
property. In support of his submission, Mr. Deka has referred the
following decisions:-
(a) Bharpur Singh & Ors. v. Shamsher Singh, reported
in (2009) 3 SCC 687;
(b) N. Govindarajan v. N. Leelavathy & Ors., reported
in (2011) 4 SCC 266;
(c) Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors.,
reported in (1977) 1 SCC 369;
(d) Kothi Satyanarayana v. Galla Sithayya & Ors.,
reported in (1986) 4 SCC 760;
(e) Hanuman Prasad Agarwal v. Satyanarain Agarwal &
Ors., reported in 2020 SCC OnLine Cal 973.
6. Per contra, Mr. Sarangi, learned Senior Counsel for the
respondent/petitioner submits that the petitioner is succeeded in
establishing execution of the Will by the testatrix by examining two
witnesses as PWs-1 and 2 and both the witnesses have clearly
established execution of the Will in their presence and PW-1 stated that
he obtained instruction from the testatrix and thereafter, prepared the
Will and that no part was taken by the petitioner/respondent in execution
of the Will and the evidence of PWs-1 and 2 could not be demolished in
cross-examination. Further, Mr. Sarangi pointed out that though the
appellant had filed written statement, there was no specific denial of the
averments made in the petition and there was only evasive denial.
Further, Mr. Sarangi pointed out that property is not subject matter of the
Will and as such, discrepancy in Dag number and patta number is not at
all relevant and Mr. Sarangi has also referred to Order 9 Rule 4 of the
CPC and submits that as per requirement of Section 69 of the Indian
Succession Act, the petitioner/respondent had succeeded in establishing
execution of the Will and the learned Trial Court has rightly granted
probate of the same.
7. In his reply to the submission of Mr. Sarangi, Mr. Deka, learned
counsel for the appellants herein submits that the learned Trial Court had
bypassed the arbitral award and also ignored the fact that the
respondent/petitioner took active part in execution of the Will and also he
got his name mutated over the subject matter of the Will pretending to
be the only son of late Nandlal Bawari and that the learned Trial Court
had wrongly decided the point No.(ii) formulated for determination and
on such count alone, the impugned judgment and order cannot sustain
and therefore, it is contended to allow this appeal by setting aside the
impugned judgment.
8. Mr. Sarangi, learned Senior Counsel for the respondent herein,
however, referred to Order 41 Rule 33 of the CPC and submits that being
the First Appellate Court, this Court can decide the matter.
8.1. In support of his submission, Mr. Sarangi has referred the following
decisions:-
(i) Surendra Pal & Ors. v. Dr.(Mrs.) Saraswati
Arora & Anr., reported in AIR 1974 SC 1999;
(ii) Kunvarjeet Singh Khandpur v. Kirandeep Kaur &
Ors., reported in (2008) 8 SCC 463;
(iii) Arnab Dutta & Ors. v. Dr. Srinibash Debnath,
reported in AIR 2016 Gauhati 133;
(iv) Sameer Kapoor & Anr. v. State Through Sub-
Division Magistrate South, New Delhi & Ors.,
reported in (2020) 12 SCC 480;
(v) Ramesh Nivrutti Bhagwat v. Dr. Surendra Manohar
Parakhe, reported in (2020) 17 SCC 284;
(vi) Meena Pradhan & Ors. v. Kamla Pradhan & Anr.,
reported in (2023) 9 SCC 734.
9. Having heard the submission of learned Advocates of both the
parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein and also perused the relevant provisions of
law.
10. In view of the dispute projected by learned counsel for both the
parties, the issue to be decided in this appeal is formulated as under:-
(i) Whether the petitioner/respondent has
succeeded in establishing execution of the
last Will by the testatrix, late Suti Devi
Bawari?
(ii) Whether there is any suspicious circumstance
and whether the petitioner/respondent herein,
succeeded in removing the same?
Legal Proposition:
11. Before a discussion is directed into the submissions made by
learned Advocates of both sides, it would be apposite to discuss the
relevant provision of law and also the decisions of Hon'ble Supreme Court
presently holding the field.
12. Section 63 of the Indian Succession Act, 1925 provides for
execution of unprivileged wills, which read as under:-
‚Every testator, not being a soldier employed in an
expedition or engaged in actual warfare, 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
person 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 been 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 or 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 of attestation shall
be necessary.‛
13. Section 68 of Indian Evidence Act 1872 reads as under:-
‚68. Proof of Execution of document required by law to
be attested:
If a document is required by law to be attested, it
shall not be used as evidence until one attesting
witness at least has been called for the purpose of
proving its execution, if there be an attesting
witness alive, and subject to the process of the Court
and capable of giving evidence: xxx‛
14. Thus, a bare reading of the above-mentioned provisions would
show that the requirements enshrined under Section 63 of the Indian
Succession Act have to be categorically complied with for the execution of
the Will to be proven in terms of Section 68 of the Evidence Act.
15. A 'Will' is an instrument of testamentary disposition of property. It
is a legally acknowledged mode of bequeathing a testator's property
during his lifetime to be acted upon on his/her death and carries with it
an element of sanctity. It speaks from the death of the testator. Since the
testator/testatrix, at the time of testing the document for its validity,
would not be available for deposing as to the circumstances in which the
Will came to be executed.
16. In the case of Meena Pradhan (supra), Hon'ble Supreme Court,
relying upon some of its earlier decisions in H. Venkatachala Iyengar
v. B.N. Thimmajamma, reported in 1959 Supp (1) SCR 426 (3-
Judge Bench), Bhagwan Kaur v. Kartar Kaur, reported in (1994) 5
SCC 135 (3-Judge Bench), Janki Narayan Bhoir v. Narayan
Namdeo Kadam, reported in (2003) 2 SCC 91 (2-Judge Bench),
Yumna Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh,
reported in (2009) 4 SCC 780 (3-Judge Bench) and Shivakumar v.
Sharanabasappa, reported in (2021) 11 SCC 277 (3-Judge Bench),
had deduced/inferred the following principles required for proving the
validity and execution of the Will:-
i. That, court has to consider two aspects: firstly,
that the Will is executed by the testator, and
secondly, that it was the last Will executed by
him;
ii. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the
prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities
required under Section 63 of the Succession Act,
that is to say-
(a) 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
the said signature or affixation shall show that
it was intended to give effect to the writing as
a Will;
(b) It is mandatory to get it attested by two or
more witnesses, though no particular form of
attestation is necessary;
(c) Each of the attesting witnesses must have
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 such signatures;
(d) Each of the attesting witnesses shall sign
the Will in the presence of the testator,
however, the presence of all witnesses at the
same time is not required;
iv. For the purpose of proving the execution of the
Will, at least one of the attesting witnesses,
who is alive, subject to the process of court,
and capable of giving evidence, shall be
examined;
v. The attesting witness should speak not only about
the testator's signatures but also that each of
the witnesses had signed the Will in the presence
of the testator;
vi. If one attesting witness can prove the execution
of the Will, the examination of other attesting
witnesses can be dispensed with;
vii. Where one attesting witness, examined to prove
the Will fails to prove its due execution, then
the other available attesting witness has to be
called to supplement his evidence;
viii.Whenever there exists any suspicion as to the
execution of the Will, it is the responsibility
of the propounder to remove all legitimate
suspicions before it can be accepted as the
testator's last Will. In such cases, the initial
onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved
for dealing with those cases where the execution
of the Will is surrounded by suspicious
circumstances. It requires to consider factors
such as awareness of the testator as to the
content as well as the consequences, nature and
effect of the dispositions in the Will; sound,
certain and disposing state of mind and memory of
the testator at the time of execution; testator
executed the Will while acting on his own free
Will;
x. One who alleges fraud, fabrication, undue
influence etc. has to prove the same. However,
even in the absence of such allegations, if there
are circumstances giving rise to doubt, then it
becomes the duty of the propounder to dispel such
suspicious circumstances by giving a cogent and
convincing explanation.
xi. Suspicious circumstances must be 'real, germane
and valid' and not merely 'the fantasy of the
doubting mind'. Whether a particular feature
would qualify as 'suspicious' would depend on the
facts and circumstances of each case. Any
circumstance raising suspicion legitimate in
nature would qualify as the suspicious
circumstance for example, a shaky signature, a
feeble mind, an unfair and unjust disposition of
property, the propounder himself taking a leading
part in the making of the Will under which he
receives a substantial benefit, etc.
16.1 It is further held that in short, apart from statutory compliance,
broadly it has to be proved that -
(a) The testator signed the Will out of his own
free Will,
(b) At the time of execution he had a sound state
of mind,
(c) He was aware of the nature and effect thereof
and
(d) The Will was not executed under any
suspicious circumstances.
17. It is also settled in plethora of decisions of Hon'ble Supreme Court
that powers of probate court are limited viz., to examine whether the will
in question was executed without coercion and undue influence, to gauge
if the testator was of a sound disposing mind and whether the will was
duly attested or not. It is also well settled that a probate court can never
go into the question of title and while granting a probate, the court would
not decide any dispute with regard to title.
17.1. Reference in this context can be made to following decisions:-
(i) K.K. Birla v. R.S. Lodha, (2008) 4 SCC 300;
(ii) Kanwarjit Singh Dhillon v. Hardayal Singh
Dhillon, (2007) 11 SCC 357;
(iii) Chiranjilal Srilal Goenka (Dead) By LRs v.
Jasjit Singh & Ors., (2000) Supp. 5 SCR 313,
Discussion:-
18. In the instant case, coming to the first point formulated above, I
find from the record of the learned Trial Court that the
respondent/petitioner had examined two witnesses, namely, Gopal
Agarwal as PW-1 and B.L. Agarwal as PW-2. The evidence of PW-1 Gopal
Agarwal reveals that he is the relative of the petitioner and the opposite
parties and late Suti Devi Bawari was his aunt and late Suti Devi Bawari
resided at H. Singhania Road at Dibrugarh till 1977-78 and thereafter,
shifted to Tinsukia and resided at Tinsukia till her death on 11.12.1988.
After her shifting to Tinsukia, she was looked after by Dr. Manohar
Bawari only. And Mahabir Prasad Bawari and Banwarilal Bawari had been
shifted to Bombay in the year 1967-68 and Mahabir Prasad Bawari shifted
to Calcutta in the year 1970 and thereafter, they interchanged their place
of abode since the year 1977 and Ram Niranjan Bawari has been staying
with his family at Dibrugarh and the petitioner is staying at Tinsukia since
the year 1974 and in 1975 Rajani and his Mami-late Suti Devi Bawari, had
been residing with the petitioner at Tinsukia and they were looked after
by the petitioner and after the death of Suti Devi Bawari, the entire
expenditure of Shradha was borne by the petitioner. He further testified
that in the first week of February 1987, while he was in the residence of
the petitioner, his Mami-late Suti Devi Bawari expressed her desire that
she wanted to transfer her land and bungalow, situated at Dibrugarh, in
favour of her son Dr. Manohar Bawari and at that time, the petitioner also
appeared there and PW-1 requested him to prepare a Will. And
thereafter, he and the petitioner went to the chamber of Advocate B.L.
Agarwal and requested him to come to the residence of the petitioner
and B.L. Agarwal, Advocate being a friend of Dr. Manohar Bawari came to
his residence and had a talk with his Mami regarding the preparation of
Will and he took some instruction from her and after a couple of days, on
10.02.1987, late Suti Devi Bawari executed the Will at her last residence
at Parbotia in his presence and put her signature in his presence and he
also put his signature in the Will as attesting witness and B.L. Agarwal,
Advocate also put his signature in his presence as an attesting witness
and that the Exhibit-1 is the said Will and Exhibits-1(i) and 1(ii) are the
signatures of late Suti Devi Bawari and Exhibit-1(iii) is his signature and
Exhibits-1(iv) and 1(v) are the signatures of Advocate B. L. Agarwal.
Though PW-1 was cross-examined at length, nothing tangible could be
elicited to demolish whatever he deposed in his examination-in-chief in
respect of the execution of the Will and putting his signatures thereon by
witness - B.L. Agarwal and by the testatrix.
19. PW-2, Advocate B.L. Agarwal also corroborated the evidence of
PW-1. His evidence reveals that in the first week of February 1987, Dr.
Manohar Bawari, along with his cousin Gopal Agarwal came to his
chamber situated at Modi Lohia Road, Tinsukia and told him that his
mother wanted to execute a Will and requested him to accompany them
to the house of the petitioner. On the same day, he went to the house of
the petitioner and he was introduced to Suti Devi Bawari by the petitioner
and then he receives instruction from his mother and thereafter, drafted
the Will as per instruction of Suti Devi Bawari. Then on 10.02.1987, he
went to the house of the petitioner with the Will prepared by him, where
Suti Devi Bawari, the testatrix, put her signature on the Will in his
presence as well as in presence of Gopal Agarwal and thereafter, Gopal
Agarwal and these witnesses also put their signatures on the Will,
executed by late Suti Devi Bawari as attesting witnesses and at the
relevant time the petitioner and his wife both were present. He also
stated that testatrix was around 70 years old at the time of execution of
the Will, she was physically sound and that the petitioner had the
knowledge of execution of the Will and he was present at the time of
execution of the Will. The evidence of this witness also remained un-
rebutted in his cross-examination.
20. PW-3 is the respondent/petitioner, Dr. Manohar Bawari. His
evidence reveals that vide a deed of family settlement dated 29.01.1974,
a settlement was arrived at in presence of Jagannath Bawari and the
family partition took place and all the properties immovable and movable
were partitioned, except the subject matter of the Will, which was
exclusively allotted to the mother of the petitioner. Thereafter, when
dispute arose amongst the sons of Late Nandlal Bawari regarding the
ancestral property, business etc., the matter was referred to sole
arbitrator, namely, C.L. Chandak of Calcutta and the subject matter of the
Will was already settled and belonged to Suti Devi Bawari exclusively, as
such, there can be no arbitration in respect of the said property, unless
volunteered by Suti Devi Bawari and the said arbitrator passed the
arbitral award on 18.11.1977 by an addendum to that award on
20.11.1977, and confirmed exclusive allotment of the property in favour
of late Suti Devi Bawari. His evidence also reveals that his mother and
sister Rajani were living with him since 1975-76 and he had been
maintaining them exclusively and Rajani was given marriage in the year
1979 and the expenses were borne by him. His evidence also reveals that
in the first week of February, 1987 while Gopal Agarwal met his mother
at his residence, his mother had expressed her desire to dispose of the
property situated at Barbari, Dibrugarh by executing a Will in his favour
and thereafter, he met B.L. Agarwal, Advocate, for preparation of the Will
and said B.L. Agarwal came to his house and taken instruction from his
mother and on 10.02.1987, B.L. Agarwal came to his house with the Will
prepared by him and his cousin Gopal Agarwal was also present at that
time and he and his wife were also present and at the relevant time his
mother was hale and hearty, and continued so till her death and that he
had borne her funeral expenses and the expenses of Shradha estimated
to be Rs.5,000/- and Rs.30,000/- respectively, and none of his brothers
have contributed to the same. He also confirmed Exhibit-1, the Will and
Exhibit-1(i) and 1(ii), the signatures of his mother and Exhibit-2 the
family settlement deed, dated 29.01.1974 and Exhibit-3 the arbitration
award dated 18.11.1977, and 20.11.1977, passed by C.L. Chandak and
Exhibit-4 the copy of the order dated 25.03.2000 in the Revenue Appeal
No.3/1999 and Exhibit-5, the copy of the order passed by the Hon'ble
High Court in Criminal Revision No.828/2003. Nothing tangible could be
elicited in cross-examination of this witness also by the other side.
21. The appellant/opposite party, Shri Ram Niranjan Bawari also
adduced evidence as DW-1. Besides reiterating the facts mentioned in his
written statement and in his evidence-in-affidavit, he also testified that
the land allotted to Suti Devi Bawari, was measuring 0 bigha 0 katha 15
lechas, under Dag No. 406 and land measuring 0 bigha 4 kathas 4 lechas,
under Dag No. 715 of P.P. No. 249, with the house standing thereon,
situated at Gabharupathar, Ward (Barbari), Dibrugarh Mouza, which
stood mutated in the name of Nandlal Bawari. But, Manohar Bawari
falsely representing himself as the only son of the land holder Nandlal
Bawari, on 09.09.1988, applied for mutation of his name and got his
name mutated in respect of the aforesaid land by Mutation Case No.
140/1988-89, passed by the Sub-Deputy Collector, Dibrugarh, East Circle
on 09.01.1989. His evidence also reveals that the Will dated 11.02.1987
(Exhibit-1), is false and manufactured and Exhibit-1(1) and Exhibit-1(2)
are not the signatures of his mother Suti Devi Bawari and as such, the
respondent/petitioner is not entitled to any property on the basis of the
said Will.
21.1. His cross-examination reveals that according to the award of the
Arbitrator, dated 18.11.1977, the property in question was allotted to his
mother for her life time only and after her death, the property will
devolve upon all the four brothers. It is also elicited that he has no
concern relating to the existence or non-existence of the Will in question.
Further, it is elicited that he knows that attesting witnesses of the Will,
but he did not have any talk regarding the execution of the Will before
filing the written statement. This witness also admitted that he knows
about the order, dated 21.01.2008, passed by the learned trial Court, but
he has not filed any appeal or revision petition against that order and also
admitted that he has not produced any document bearing the signature
of his mother which has been admitted by the petitioner. Further, it is
elicited that the statements made in his written statement, according to
him, are correct.
Finding:-
22. Thus, having carefully gone through the evidence of the PWs-1, 2
and 3 and also the evidence of DW-1, I find that execution of the Will
(Exhibit-1) by the testatrix, late Suti Devi Bawari, is proved by two
attesting witnesses, namely, Gopal Agarwal and B.L. Agarwal. Their
evidence goes a long way to show that deceased Suti Devi Bawari had
executed the Will, Exhibit-1 bequeathing the subject matter of the Will, in
favour of the petitioner/respondent. Both PWs-1 and 2 also proved their
respective signatures over Exhibit-1, as attesting witnesses and also of
the testatrix. And further it appears that Exhibit-1 is the last Will of the
testatrix, Late Suti Devi Bawari and the learned trial court had arrived at
a categorical finding in this regard and this court is inclined to endorsed
the said finding.
23. The respondent/petitioner, thus succeeded in establishing
execution of the Will by the testatrix, Late Suti Devi Bawari. Mr. Sarangi,
learned Senior counsel for the respondent/ petitioner had rightly
submitted that statutory requirement has been complied with. Though
the appellant herein had alleged that the Will dated 10.02.1987 (Exhibit-
1), is false and manufactured and Exhibit-1(1) and Exhibit-1(2) are not
the signatures of his mother Suti Devi Bawari, yet, as held by Hon'ble
Supreme Court in the case of Meena Pradhan (supra) in principle No.
'x', the burden to prove fraud, fabrication, undue influence, etc. is upon
the party who alleges the same. Same principle was reiterated in the case
of Gian Chand and Bros. v. Rattan Lal, reported in (2013) 2
SCC 606, wherein it has been held as under:-
‚18. It is well-settled principle of law that a
person who asserts a particular fact is required
to affirmatively establish it. In Anil
Rishi v. Gurbaksh Singh [(2006) 5 SCC 558] it has
been held that the burden of proving the facts
rests on the party who substantially asserts the
affirmative issues and not the party who denies
it and the said principle may not be universal in
its application and there may be an exception
thereto. The purpose of referring to the same is
that if the plaintiff asserts that the defendant
had acknowledged the signature, it is obligatory
on his part to substantiate the same.
....‛
23.1. But, the appellant herein had not taken any steps to establish the
same. Had it been the case that the Will dated 10.02.1987 (Exhibit-1), is
false and manufactured and Exhibit-1(1) and Exhibit-1(2) are not the
signatures of his mother Suti Devi Bawari, then he could have very well
applied to the learned trial Court for sending the admitted signature of his
mother and the disputed signature in the Will to the Forensic Science
Laboratory for verification. But, he had not availed that opportunity.
Thus, his claim remained unsubstantiated. And his evidence could not
outweigh the clear and cogent evidence of the respondent/petitioner and
his witnesses.
24. It also appears from the evidence of the P.W.1 and 2 that the
testatrix had signed the Will out of her own free will. There appears to be
no influence from any quarter. The testatrix had expressed her desire to
P.W.1 in the first week of February 1987, while he was in the residence
of the petitioner that she wanted to transfer her land and bungalow,
situated at Dibrugarh, in favour of the petitioner and at that time the
respondent/petitioner also appeared there and then PW-1 requested him
to prepare a Will. Also it appears that P.W.1 and the petitioner then went
to the chamber of P.W.2, who is an Advocate and requested him to come
to the residence of the petitioner and the P.W.2 came to the residence of
the petitioner and obtained instruction from the testatrix regarding the
Will and then on 10.02.1987, the testatrix had executed the Will at her
last residence at Parbotia. It also appears that at the time of execution of
the Will the testatrix was physically sound and hale and hearty and she
was aware of the nature and effect thereof as she herself expressed her
desire to execute the Will before P.W.1 in respect of the land and
bungalow, situated at Dibrugarh, in favour of the respondent/petitioner.
Thus, apart from the statutory requirement the respondent/petitioner has
also been able to prove the requirement No. (a), (b) and (c), as
discussed in para No. 16.1 of this judgment.
25. Now, coming to the requirement No. (d) in the said paragraph, I
find Mr. Deka, learned counsel for the appellants, has pointed out two
suspicious circumstances surrounding the execution of the Will. Firstly,
Mr. Deka has pointed out that the petitioner/respondent had taken active
part in execution of the Will. Secondly, Mr. Deka has pointed out that the
petitioner/respondent had never disclosed about existence of the Will till
1998, the time of filing of the Probate Case No.11/1998. It is the
contention of Mr. Deka that had the Will been existed prior to mutation of
his name in respect of the property which is the subject matter of the
Will, he could have disclosed the same at that time.
26. The submission of Mr. Deka received due consideration of this
Court. It is to be noted here that as held by Hon'ble Supreme Court in the
case of Meena Pradhan (supra), in principle No. 'xi', taking leading part
in making the will under which the respondent/petitioner had received a
substantial benefit is a suspicious circumstances. In the case in hand the
respondent/petitioner, along with P.W.1 went to the chamber of P.W.2
when the testatrix had expressed her desire to transfer her land and
bungalow, situated at Dibrugarh, in favour of the petitioner. But it also
appears from the evidence of P.W.2, who is an Advocate by profession
and prepared the Will, had visited the residence of the
respondent/petitioner and obtained instruction from the testatrix
regarding the Will and then on 10.02.1987, the testatrix had executed the
Will at her last residence at Parbotia. The Will was not prepared at the
instance of the petitioner. Apart from visiting the chamber of the P.W.2,
and requesting to prepare the Will, as desired by the testatrix, he did
nothing so as to brand his conduct as suspicious. Therefore, this
particular feature failed to qualify as suspicious circumstance. Mr.
Sarengi, the learned Senior Counsel for the respondent/petitioner has
rightly pointed this out and this is inclined to put imprimatur to the same.
26.1. It is a fact that at the time of mutation of his name over the
subject matter of the Will, the respondent/petitioner had not disclosed
about existence of the Will. But, this feature itself cannot be a suspicious
circumstance because it is the prerogative of the respondent/petitioner to
apply for grant of probate, when the necessity arises for the same. .
26.2. It also appears that the petitioner had also not disclosed about his
other siblings at the time of mutation. But, that is not the question to be
looked into by this Court while dealing with an appeal preferred against
the judgment of grant of probate by the learned Trial Court.
26.3. It is fact that the learned trial court had held that the testatrix,
being absolute owner of the property had the power to dispose of the
same. Thus, it appears that the learned trial court had entered into arena
which is clearly an issue of title and out of the scope of adjudication of
the probate court. And as such the above finding of the learned trial court
is clearly unsustainable.
27. Thus, having examined the submission of Mr. Deka, learned
counsel for the appellants, in the light of the evidence and in the light of
the documents and the decisions referred by him, this Court is of the
view that the suspicious circumstances which Mr. Deka has pointed out,
fails to qualify as suspicious circumstance, and as such, this Court is of
the view that the learned Trial Court had rightly granted probate of the
last Will of the testatrix, late Suti Devi Bawari.
28. In terms of above discussion and findings, the point Nos.1, so
formulated herein this appeal, stands answered affirmatively and the
point No.2 stands answered in negative.
29. Though, Mr. Deka, learned counsel for the appellants, has
submitted that the petition is barred by the law of limitation and that the
learned Trial Court had not considered Article 137 of the Limitation Act
and wrongly arrived at the finding that the grant of probate is not barred
by limitation, yet, the submission of Mr. Deka left this Court unimpressed
in view of the reasoned finding so arrived at by the learned trial court
relying upon several decisions of Hon'ble Supreme Court as well as of
Bombay High Court. It is to be noted here that Hon'ble Supreme Court in
the case of Kunvarjeet Singh Khandpur (supra) had given
imprimatur to the proposition of law laid down by Bombay High Court in
the case of Vasudev Daulatram Sadargani vs. Sajni Prem Lalwani
reported in AIR 1983 Bombay 286, that the right conferred by a Will
is a continuous right which can be exercised anytime after the death of
the deceased. For the sake of clarity the relevant paragraphs are
reproduced herein below:-
15. Similarly reference was made to a decision of
the Bombay High Court in Vasudev Daulatram
Sadarangani v. Sajni Prem Lalwani [AIR 1983 Bom
268] . Para 16 reads as follows : (AIR p. 270)
‚16. Rejecting Mr Dalpatrai's contention, I
summarise my conclusions thus--
(a) under the Limitation Act no period is
advisedly prescribed within which an
application for probate, letters of
administration or succession certificate
must be made;
(b) the assumption that under Article 137 the
right to apply necessarily accrues on the
date of the death of the deceased, is
unwarranted;
(c) such an application is for the court's
permission to perform a legal duty
created by a will or for recognition as a
testamentary trustee and is a continuous
right which can be exercised any time
after the death of the deceased, as long
as the right to do so survives and the
object of the trust exists or any part of
the trust, if created, remains to be
executed;
(d) the right to apply would accrue when it
becomes necessary to apply which may not
necessarily be within 3 years from the
date of the deceased's death;
(e) delay beyond 3 years after the deceased's
death would arouse suspicion and greater
the delay, greater would be the
suspicion;
(f) such delay must be explained, but cannot
be equated with the absolute bar of
limitation; and
(g) once execution and attestation are
proved, suspicion of delay no longer
operates.‛
Conclusion (b) is not correct while Conclusion
(c) is the correct position of law.
16. In view of the factual scenario, the right to
apply actually arose on 9-8-1999 when the
proceedings were withdrawn by Smt Nirmal Jeet
Kaur. Since the petition was filed within three
years, the same was within time and therefore the
appeal is without merit, deserves dismissal,
which we direct but in the circumstances without
any order as to costs.
29.1. It is to be noted here that the learned trial court, in the case in
hand, relying upon the decision in Kunvarjeet Singh Khandpur
(supra) held that the limitation in the present case will run from the
date of dismissal of the Probate Case No. 11/98, which was dismissed on
23.11.1998 and as such the petition is not barred by limitation. In view of
the settled proposition of law, this court is inclined to endorse the finding,
so recorded by the learned trial court in this regard.
30. I have carefully gone through the decisions, referred at the bar and
except what has been discussed herein above, discussion of rest of the
decisions are found to be unwarranted to decide the points, so
formulated by this court herein above. And therefore, this court is not
inclined to burden this judgment with the discussion of all those
decisions, which also proceed on their own facts.
31. In the result, I find this appeal devoid of merit and accordingly the
same stands dismissed leaving the parties to bear their own cost. Send
down the record of the learned trial court with a copy of this judgment.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
