Phulai Devi @ Phulait Devi vs Smt. Runia Devi
2021 Latest Caselaw 4112 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
               L.P.A. No. 265 of 2021
Phulai Devi @ Phulait Devi, aged about 57 years, wife of Sri Mahadeo
Gope, resident of Kande Piska, P.O. & P.S. Nagari, District Ranchi,
Jharkhand.
                   ..........Opposite Party No.1/Appellant/Appellant
                          -Versus-
1. Smt. Runia Devi, wife of Bhushan Gope, resident of village
   Mahugaon, P.O. Murto, P.S. Bero, District Ranchi, Jharkhand.
               ..........Applicant/Respondent 1st Party/Respondent

2. Birju Gope
3. Shankar Gope
   Sl. No.2 & 3 both are sons of Late Gopal Gope, resident of village
   Kundi, P.O. & P.S. Itki, District Ranchi, Jharkhand.
4. Kabutari Devi, wife of Shri Shri Charku Gope, resident of village
   Paryago, P.O. Tangerbansil, P.S. Mandar, District Ranchi,
   Jharkhand.
5. Keshri Devi, wife of Ram Sundar Gopal, resident of village
   Mahugaon, P.O. Murto, P.S. Bero, District Ranchi, Jharkhand.
6. Balak Devi, wife Shri Bhola Gopa, resident of village Bhasnanda,
   P.O. Ita Childara, P.S. Bero, District Ranchi, Jharkhand.
7. The villagers and Local Residents of village Mahugaon, P.O.
   Murto, P.S. Bero, District Ranchi, Jharkhand.
                                ................ Opposite Party No. 2 to 7/
                                   Respondent 2nd Party/Respondents
                      ---------

CORAM:               HON'BLE THE CHIEF JUSTICE
            HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                      ---------
For the Appellant:     Mr. Satish Kumar Keshri, Advocate
                      ---------
Oral Order
03/Dated: 01.11.2021

1)    This appeal is directed against the judgment dated 20.07.2021

passed by a learned Single Judge of this Court in Misc. Appeal

No.146 of 2020 whereby the decision dated 17.12.2019 of the

Additional Judicial Commissioner-VIII, Ranchi in Original Suit No.02 of

2019 (arising out of Letters of Administration Case No.05 of 2017)

granting Letters of Administration to the estate in favour of respondent

No.1, has been upheld and the appeal has been dismissed.

2) Facts in brief, which would be necessary to be dealt with for

consideration of lis and which emanate out of the records, are

narrated as under:-

The respondent No.1, Smt. Runia Devi, filed Letters of

Administration Case No.05 of 2017 under Section 278 of the Indian

Succession Act, 1925 for grant of Letters of Administration to the

estate of deceased Chhednu Mahto @ Chhednu Ahir in her favour on

the basis of a registered Will which was executed by her father

Chhednu Mahto @ Chhednu Ahir being his last Will and testamentary

in favour of the aforesaid sole legatee Smt. Runia Devi, wife of

Bhushan Gope, on 17.05.2013. The Testator had died on 26.08.2016

and thereafter the Letters of Administration case was filed. The case

was contested by the appellant Phulai Devi along with others who

have been arrayed as respondent Nos.2 to 6 in this appeal by filing a

written statement. Evidences were led by the parties. However, the

Additional Judicial Commissioner-VIII, Ranchi granted the Letters of

Administration in favour of Smt. Runia Devi, by a decision dated

17.12.2019.

The aforesaid decision was assailed in Misc. Appeal

No.146 of 2020 by the appellant, however, the same was also

dismissed by the learned Single Judge by the impugned

order/judgment dated 20.07.2021 holding that the defendant/appellant

has failed to bring on record any material to create any suspicion in

the mind of the Court.

Hence, this Letters Patent Appeal has been preferred.

3) Learned counsel appearing for the appellant has vehemently

argued that the Will has not been proved as per Sections 47 and 67 of

the Indian Evidence Act, 1872 read with Section 74 of the Indian

Succession Act, 1925 and Section 59 of the Registration Act, 1908. It

has been urged that the registered Will is a fraudulent document

which is result of undue influence of respondent No.1 Smt. Runia Devi

exerted upon her 91 years old father taking unfair advantage as she

was living in her father's house and entire situation was in her control.

That apart, it has also been urged that the Testator was not in a

sound state of mind and was also not physically fit as on the date of

registration he was brought on a bullock cart as he had met with an

accident on that day and he was made to understand that a partition

deed has been prepared for distributing the estate amongst his

daughters in equal share and his signature was fraudulently taken.

4) Learned Additional Judicial Commissioner, Ranchi, as would

appear from the order passed in L.A. Case No.05/2017 which was

later on converted into Original Suit No.02 of 2019, on consideration

of the pleadings of the parties had framed the following issues:-

I. Whether the petition for Letters of Administration is

maintainable in the present form?

II. Whether the testator at the time of executing the will was

in sound state of mind?

III. Whether the Will is obtained by playing fraud or coercion?

IV. Whether all the beneficiaries have been made party?

V. Whether the applicant is entitled to Letters of

Administration in respect of the registered Will dated

17.05.2013 executed by since deceased Chhednu Mahto

@ Chhednu Ahir?

5) Upon appreciation of the evidences and consideration of the

rival submissions, the Court below has held that the Testator at the

time of executing the Will was in a sound state of mind and a cock

and bull story has been tried to be created in the evidences given by

the defendants/opposite parties that on the relevant date an ox had

rammed into the testator causing a serious leg injury. He had to be

brought on a bullock cart and, therefore, the entire story of registration

of Will becomes suspicious. However, during the course of cross-

examination Opposite Party Nos.1 to 4 and 6 have taken a plea that

on the date of execution of the Will an Ox had caused hurt to the

Testator whereas, in the examination-in-chief of OPW-1 it is

mentioned that prior to registration of Will Chhednu Mahto had

sustained injury in an accident and to the other surprise, not a single

word has been stated regarding this accident in the joint written

statement filed by Opposite Party Nos.1, 2, 3, 4 and 6. Due to lack of

consistency and not taking the matter in the pleadings, such story has

been disbelieved. It has been held that the Will has been proved as

per law. One of the attesting witnesses, Yogendra Gope, has been

examined as AW-1 who has fully supported the Will. Accordingly, the

case for grant of Letters of Administration was allowed by the Court

below.

6) Learned counsel for the appellant has urged before us that the

Will is an outcome of undue influence which was exerted by

respondent No.1 Runia Devi upon her 90 years old father who had

unfair advantage over her other sisters 91 she was looking after her

father by staying at her parental home and was in a position to control

his mind. In this regard learned counsel has placed reliance upon a

decision of Hon'ble Supreme Court rendered in Ladli Prashad

Jaiswal v. The Karnal Distillery Co. Ltd. Karnal & Ors [AIR 1963

SC 1279]. However, on perusal of the aforesaid judgment, we are of

the view that such decision would not be in help of the appellant,

rather it can be used as the ratio which would be against the stand of

the appellant. The relevant passage from the aforesaid judgment is

extracted and quoted as under:-

"33. Raghu "Nandan who was practically the only witness examined by the defendant to depose to what transpired at the negotiations and the meeting which culminated in the impugned resolutions has not said anything which may even indirectly support their case. The case that the plaintiff refused to part with the jewellery of defendants, and on that account was able to compel the defendants, to agree to the resolutions was never pleaded and no evidence Was given by the defendants in that behalf. Ladli Prased deposed that he had some jewellery belonging to the Defendants 2 to 5, and that the defendants were in possession of his own jewellery, and after the meeting of October 16, 1945 the jewellery was exchanged. There is again no evidence that the defendants were at the material time in financial difficulties. Admittedly partition of joint family assets had taken place, and the different branches had obtained their shares in severally except in the business. Defendants have also led no evidence as to what their financial resources in 1945 were, and the assumption made- by the High Court in that behalf are not warranted. It is true that because of resolution No. 12 requiring every decision of the Board of Directors to be unanimous, and deletion of Article 47, if the Directors quarrelled, creation of an impasse may be visualised, but by the resolutions the plaintiff acquired no overriding privilege. His rights were the same as of the other branches of the family. On the question as to what transpired at and before the meeting dated October 16, 1945 there is the evidence of Devi Parshad which may be briefly referred to. He has deposed that he was present at the meeting and that the compromise was arrived at by the free consent of the parties and no undue influence was exercised by any party or the other. The compromise talks had begun a week earlier, and the account books of the Karnal Distillery Company were produced at the time of the compromise, and the books were examined by Defendants 2 to 5 and some objections raised during the talks of compromise were settled after seeing the books of account. The witness also produced a copy of the minutes of the meeting which had taken place at 10.30 A.M. on October 16, 1945 stating that the same were typed by him. There was substantially no cross-examination

of this witness on the evidence given by him that the account books were examined during negotiations for Compromise. The finding of the High Court that the books of account were never examined and the plaintiff pursuaded the defendants to give him a complete discharge in respect of the liabilities incurred by him for his transactions was never pleaded in the written statement, though it was an important particular which if true would have been pleaded. Even assuming that on the general plea of undue influence it was open to the defendants to deed evidence on this matter, the defendants have not chosen to lead any reliable evidence to show that that books of account were not examined and entries were not verified, and the equivocal evidence made by the witness Raghu Nandan has no evidentiary value at all. It is true that the 'plaintiff had started another 'Company in the name of Jagatjit Distilling and Allied Industries but even if that circumstance has any bearing on the issue of undue influence there is again little evidence that he had made large profits and had acquired influence and power thereby. The appointment of receivers by the Court of Subordinate Judge, Karnal was stayed by the High Court, but that single circumstance will not justify an inference that the defendants were effectively prevented from prosecuting their claim. There is no evidence to show that the plaintiff was interested in creating a deadlock so as to prevent the smooth and successful business of the Company.

34. The only two facts viz, that the plaintiff was the eldest member and that he was before the resolution dated February 20, 1945 receiving very much larger sums of money from the Company as his remuneration in comparison with the remuneration received by the defendants, viewed in the light of the other circumstances will not justify an inference that the plaintiff was in a position to dominate the will of the defendants. For reasons already stated the High Court was in error in relying upon the presumption under sub-section (3) of Section 16, because in our view the evidence does not justify the conclusion that the plaintiff was in a position to dominate the will of the defendants and that the resolutions gave an unconscionable advantage to the plaintiff. We must and that the decisions of the District Court and Division Bench of the High

Court, suffered from serious infirmities in that they wrongly placed the onus of proof upon the plaintiff, and reached a conclusion that the plaintiff failed to prove that the resolutions were not obtained by the exercise of undue influence.

35. It was urged that in any event, at this late stage-sixteen years after the date on which the resolutions were passed by the defendants at the meeting dated March 28,1945 -- this Court would not be the justified in declaring the actions of the defendants in pursuance of the resolutions, in valid, for they would affect third parties who must have dealt with the Company of the footing that the management of the Company had authority to transact business. But the plaintiff has unauthorisedly been deprived' of his rights by hi') arbitrary conduct of the defendants. All the courts below have held that the resolutions dated March 28, 1946 are invalid. The High Court declined to grant relief to the plaintiff, for in their view the plaintiff had disentitled himself to equitable relief because of his previous conduct in exercising undue influence, and thereby curing an unfair advantage to which he was not lawfully entitled. It is unnecessary to enter upon a discussion of the question whether in the circumstances it was a sufficient ground for depriving the plaintiff of relief, for we are of opinion that subject to the reservations made by Bishan Narain, J., which fully protect third parties, relief should be awarded. Before the learned Judge, counsel for the plaintiff gave an undertaking tint he will not question the dealings of the defendants qua third parties, and requested expressly that the prayer for declaration that all acts of the Company and the defendants which affected him personally qua the members of Company may alone be declared invalid. That, in our judgment, should be sufficient to meet any objection which may be raised by the defendants on the score of delay.

36. It was also submitted that the plaintiff has lost his right to the shares since the suit was instituted because the Company had enforced its lien and had sold the shares of the plaintiff in enforcement of the lien. The validity of that action of the Company has been challenged in a separate proceeding, and we need express no opinion on that question. All the Courts have

come the conclusion that the resolutions dated March 3, 1946 and March 28, 1946 were invalid and not binding on the plaintiff. Therefore, any action taken by the defendants pursuant to those resolutions may prima facie be regarded as ineffective."

7) In the aforesaid decision, the Hon'ble Apex Court has held that

the burden of proving 'undue influence' primarily lays upon the

defendants. Their pleading must contain the particulars showing as to

how actually the plaintiff took advantage of his position to take

possession of the assets of the person in control. In absence of that

particulars, the pleadings of 'undue influence' would not be

acceptable.

8) Section 16 of the Contract Act provides that, "a contract is said

to be induced by 'undue influence' where the relations subsisting

between the parties are such that one of the parties is in a position to

dominate the will of the other and uses that position to obtain an unfair

advantage over the other."

9) An attempt has been made by learned counsel for the appellant

to persuade us to hold that Runia Devi was taking control of her ailing

and aging father as she was taking care of him to the disadvantage of

other sisters who were married and were living at their respective

matrimonial houses save and except Smt. Keshri Devi whose

husband had died and was also living along with her father and was

dependent upon him. However, on analysis of the evidences led by

the opposite parties, it appears that there are variations in the stand

taken by the Court below and those do not inspire confidence. Such

stories fall flat when paragraph 9 of the written statement is perused.

For ready reference, the same is extracted as under: -

"9. That the statement made Para 7 of the application filed by applicant are wholly incorrect as such denied and disputed. It is incorrect to say that the applicant and her husband had been

looking after the testator till his death, it is further incorrect to say that they extended all kind of health and support his need. It is also incorrect to say that the other sisters of this applicant or their families could not pay proper attention.

As a matter of fact the testator was living with his all daughters for equal period of time and they looked after and provided treatment to him and simultaneously all daughters also assisted in looking after."

It is apparent from the above statement made in the

written statement filed jointly on behalf of Opposite Party Nos.1 to 4 &

6 that they have denied the statement that the applicant and her

husband were solely looking after the testator till his death and further

that it is incorrect to say that they extended all kind of health and

support of his need, rather a positive statement has been made that

the testator was living with his all daughters for equal period of time

and they looked after and provided treatment to him and all daughters

assisted in looking after him. This statement completely demolishes

the stand of the appellant that respondent No.1 Runia Devi was taking

control of her father and she had taken advantage of that, as this

statement would be contrary to the pleading of the appellant taken in

her written statement. Therefore, it has to be held that no material fact

could be pleaded and proved regarding undue influence by Runia

Devi upon her father.

10) Second plea has been taken that fraud has been played upon

her father as he was made to understand that a partition deed is being

executed for distributing his property equally amongst his surviving

daughters. However, on perusal of the depositions of the Opposite

Parties it appears that none of them were present either at the time

when the Will was being executed or at the time when the Will was

registered. Therefore, such stand appears to have been taken without

any foundation and has rightly been rejected by the original court.

11) Let it be noted here that as per the Will, Keshri Devi, one of the

daughters of the deceased-testator, was also living with him and was

dependent upon him and the mandate of the Will is that the

beneficiary Runia Devi would look after her during her lifetime. Keshri

Devi has also been made Opposite Party No.5 and she has filed

written statement fully supporting the stand of the applicant.

12) By way of last resort, learned counsel for the appellant has

submitted that in the Will the Testator has described that one of the

daughters, namely Murti Devi has died before execution of the Will.

However, the attesting witness Yognedra Gope and the pleading of

the applicant discloses that she died in the month of May, 2014,

whereas, the Will was executed on 17.05.2013.

However, this also would not be of much relevance as,

upon perusal of the pleading and evidence led by the parties, it would

appear that Murti Devi was living at her matrimonial house and it is not

disclosed that all the daughters were well connected with each other.

Further, the Will having been proved to the satisfaction of the Court,

the content therein also proved, the version of the testator who was

father of Murti Devi, has to be taken to be as correct, specially when

the issue of fraud could not be effectively raised and proved.

13) Having heard learned counsel appearing for the appellant and

having perused the records of this case, we are of the view that no

cogent reason could be raised by the appellant for making any

interference in the impugned order.

14) The Letters Patent Appeal accordingly fails and is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Manoj/ A.F.R.