Jharkhand High Court
Ram Kumar Singh Son Of Daroga Singh vs The State Of Jharkhand Through The ... on 26 April, 2022
1
MISCELLANEOUS APPEAL No. 404 of 2015
[arising out of Judgment dated 20th day of July, 2015
passed by District Judge X, Hazaribag in Probate Case
No.05 of 2007]
----
Ram Kumar Singh son of Daroga Singh, resident of Village Uraba, P.O.
& P.S. Ramgarh, District Hazaribag ... Appellant
-versus-
The State of Jharkhand through the Deputy Commissioner, Ramgarh,
P.O., P.S. and Dist. Ramgarh. ... Respondent
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For the Appellant : Mr. Rajeev Ranjan Tiwary, Advocate
For the Respondents : Mr. Deepak Kumar Dubey, A.C. to AAG II
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PRESENT
HON'BLE MR. JUSTICE ANANDA SEN
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JUDGMENT
Reserved on 19.04.2022 Pronounced on 26.04.2022
This is an appeal by the applicant under Section 299 of the
Indian Succession Act, challenging the judgment dated 20th July, 2015
passed by the District Judge X, Hazaribagh in Probate Case No.5 of
2007, whereby he has dismissed the probate application filed by the
applicant.
2. One Ram Kumar Singh filed a petition under Section 276 of
the Indian Succession Act praying for grant of probate of the WILL dated
29.03.1995, executed by Most. Mutari, wife of Krishna Ganjhu in favour
of the applicant-appellant. It is the case of the applicant that Most.
Mutari was being looked after by the applicant, after the death of her
husband, Krishna Ganjhu, as the couple did not have any child and
there was no one in the family. The widow, thus, executed a WILL,
bequeathing all the properties mentioned therein, in favour of the
applicant. The WILL was unregistered. Most. Mutari died on 20.12.2006
and as there was no executor, the applicant filed an application for grant
of probate.
3. The State was impleaded as respondent in the application.
4. The Court of the District Judge framed four issues, which
were as follows: -
(1) Is the application maintainable?
(2) Whether the will was executed by Most. Mutari on
29.3.1995 bequeathing all her movable properties
including lands under Khata no.4,37,49 and 66 of the
village Urba thana no.169, P.S. Ramgarh, District
Hazaribag in schedule 'A' of the application is valid?
(3) Is the properties in Schedule 'A' properly valued?
(4) Whether the applicant is entitled for grant of probate
of the will or letters of administration in respect of the
property detailed under Schedule 'A' of the
application?
5. Four witnesses were examined on behalf of the applicant.
P.W.1 was the applicant himself, P.W.2 was Narayan Singh, P.W.3 Ram
Lagan Singh and P.W.4 was Akchaya Kumar Bakshi. Unregistered
WILL was also marked as Exhibit 1.
6. Considering the evidence led by the parties, the Trial Court
held that the WILL was not properly executed and the said document is
not trust-worthy and is doubtful. Court also doubted the testimony of the
witnesses, thus, concluded that the credibility of the witnesses are also
doubtful. The Court, thus, dismissed the application filed by the
applicant.
7. Aggrieved by the order dismissing the application filed by
the applicant, the applicant-appellant has preferred the instant appeal.
8. Learned counsel appearing for the appellant submitted that
there is no illegality in the WILL and the WILL cannot be doubted. He
submitted that the WILL was executed in the year 1995, whereas the
deceased died on 20.12.2006, i.e., after more than 11 years, which will
justify the execution of the WILL. Since there were no legal heirs of the
deceased and as the appellant was looking after the deceased, after the
death of her husband, the deceased out of love and affection, had
executed a WILL in his favour, thus, no fault can be found in such
execution. As per him, one of the attesting witnesses and the scribe also
deposed before the Court and they consistently deposed that it is the
deceased, who came to the scribe and on her dictate the WILL was
prepared, after that she had put her thumb impression. Witnesses
categorically stated that they also put their signatures as attesting
witnesses on the WILL, that being so, the findings of the Court below is
absolutely erroneous. Another argument was forwarded that since the
State did not file any written statement, they could not have contested
the application and the Court should have accepted the averments
made in the application. He argues that there is no mandate of law that
the WILL should be registered and the Court below failed to consider
that unregistered WILL also could be probated and thus, the findings of
the Court that no effort was taken to get the WILL registered has got no
legs to stand. He submitted that non-registration of the WILL cannot be
a ground to conclude that the execution of the said document is
doubtful.
9. I have heard counsel for the parties and have gone through
the Lower Court Records including the evidence led by the parties.
Admittedly, the WILL is unregistered.
10. The Hon'ble Supreme Court in the case of Shivakumar &
Others versus Sharanabasappa & Others (Civil Appeal No.6076 of
2009), after considering relevant decisions of the Hon'ble Supreme
Court has culled out principles governing the process concerning proof
of a WILL. The aforesaid principles have also been reiterated in the
case of Kavita Kanvar versus Pamela Mehta & Others reported in
2020 SCC OnLine SC 464 at paragraph 24.8 thereof, which reads as
under:-
24.8. We need not multiply the references to all and other
decisions cited at the Bar, which essentially proceed on
the aforesaid principles while applying the same in the
given set of facts and circumstances. Suffice would be to
point out that in a recent decision in Civil Appeal No.6076
of 2009: Shivakumar v. Sharanabasppa, decided on
24.04.2020, this Court, after traversing through the
relevant decisions, has summarized the principles
governing the adjudicatory process concerning proof of
a Will as follows:-
1. Ordinarily, a Will has to be proved like any other
document; the test to be applied being the usual test of
the satisfaction of the prudent mind. Alike the principles
governing the proof of other documents, in the case of
Will too, the proof with mathematical accuracy is not to
be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is
required to be attested, it cannot be used as evidence
until at least one attesting witness has been called for the
purpose of proving its execution, if there be an attesting
witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the
death of the testator and, therefore, the maker thereof is
not available for deposing about the circumstances in
which the same was executed. This introduces an
element of solemnity in the decision of the question as to
whether the document propounded is the last Will of the
testator. The initial onus, naturally, lies on the
propounder but the same can be taken to have been
primarily discharged on proof of the essential facts
which go into the making of a Will.
4. The case in which the execution of the Will is
surrounded by suspicious circumstances stands on a
different footing. The presence of suspicious
circumstances makes the onus heavier on the
propounder and, therefore, in cases where the
circumstances attendant upon the execution of the
document give rise to suspicion, the propounder must
remove all legitimate suspicions before the document
can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or
alleges fraud, undue influence, coercion et cetera in
regard to the execution of the Will, such pleas have to be
proved by him, but even in the absence of such pleas,
the very circumstances surrounding the execution of the
Will may give rise to the doubt or as to whether the Will
had indeed been executed by the testator and/or as to
whether the testator was acting of his own free will. In
such eventuality, it is again a part of the initial onus of
the propounder to remove all reasonable doubts in the
matter.
6. A circumstance is "suspicious" when it is not normal
or is 'not normally expected in a normal situation or is
not expected of a normal person'. As put by this Court,
the suspicious features must be 'real, germane and valid'
and not merely the 'fantasy of the doubting mind'.
7. As to whether any particular feature or a set of features
qualify as "suspicious" would depend on the facts and
circumstances of each case. A shaky or doubtful
signature; a feeble or uncertain mind of the testator; an
unfair disposition of property; an unjust exclusion of the
legal heirs and particularly the dependants; an active or
leading part in making of the Will by the beneficiary
thereunder et cetera are some of the circumstances
which may give rise to suspicion. The circumstances
above-noted are only illustrative and by no means
exhaustive because there could be any circumstance or
set of circumstances which may give rise to legitimate
suspicion about the execution of the Will. On the other
hand, any of the circumstance qualifying as being
suspicious could be legitimately explained by the
propounder. However, such suspicion or suspicions
cannot be removed by mere proof of sound and
disposing state of mind of the testator and his signature
coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience
comes into operation when a document propounded as
the Will of the testator is surrounded by suspicious
circumstance/s. While applying such test, the Court
would address itself to the solemn questions as to
whether testator had signed the Will while being aware of
its contents and after understanding the nature and
effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will
is shrouded in suspicion, it is a matter essentially of the
judicial conscience of the Court and the party which sets
up the Will has to offer cogent and convincing
explanation of the suspicious circumstances
surrounding the Will.
11. The Hon'ble Supreme Court, in the case of Smt. Jaswant
Kaur versus Smt. Amrit Kaur, reported in (1977) 1 SCC 369, at
paragraph 9 thereof, has held as follows:-
9. In cases where the execution of a will is shrouded in
suspicion, its proof ceases to be a simple lis between the
plaintiff and the defendant. What, generally, is an
adversary proceeding becomes in such cases a matter of
the court's conscience and then the true question which
arises for consideration is whether the evidence led by
the propounder of the will is such as to satisfy the
conscience of the court that the will was duly executed
by the testator. It is impossible to reach such satisfaction
unless the party which sets up the will offers a cogent
and convincing explanation of the suspicious
circumstances surrounding the making of the will.
12. If there are any suspicious circumstances, onus is on the
propounder to explain those circumstances to the satisfaction of the
Court and after being fully satisfied about the explanation, the Court
should pass an order in granting probate of the WILL. Even in absence
of any plea of fraud, coercion or undue influence in relation to execution
of the WILL, but, if there are circumstances, which gives rise to doubt
about the genuineness of the WILL, it is for the propounder to satisfy the
conscience of the Court. The onus is upon the propounder. Thus, at the
execution of the WILL, all the circumstances surrounding the said WILL
should be above suspicion and each and every bit of doubt must be
explained properly by the propounder. From the judgments referred to
above, it is clear that if there is strong suspicion against the
genuineness of the WILL and if there are any circumstance to point that
there are grounds of some doubt in execution of the said WILL by the
testator, the Court can refuse grant of probate.
13. Considering the aforesaid proposition of law, now let me
consider the facts of this case.
14. The WILL is dated 29.03.1995 and the same is
unregistered. The WILL has been exhibited as Exhibit 1. The said
document contains thumb impression of the executor Most. Mutari, two
attesting witnesses are Narayan Singh (P.W.2) and Fauda Gaunjhu.
Ram Lagan Singh (P.W.3) identified Most. Mutari and her thumb
impression. Akchaya Kumar Bakshi (P.W.4) is the scribe of the said
WILL.
15. When I go through the evidence, I find that Akchay Kumar
Bakshi (P.W.4), who is the scribe, has stated in his examination-in-chief
that WILL was prepared on the directions of Most. Mutari in favour of the
applicant and it is he who has scribed the said WILL. He stated that he
read over the contents of the WILL to Most. Mutari and Most. Mutari,
after understanding the contents written in the WILL, had put her Left
Thumb Impression in presence of Ram Lagan Singh and witnesses
Narayan Singh and Fauda Gaunjhu. In cross examination at paragraph
8, this witness states that he could not name any of the persons who
accompanied Most. Mutari at the time of preparing the WILL, but, he
states that he identified those persons as a witness to the WILL. He also
could not say as to who signed as identifier and who were the attesting
witnesses. He further stated that the document, which he had prepared,
is not before him when he was deposing. He also stated that Mutari Devi
is dead, but, he cannot say when she died.
16. P.W.2 is Narayan Singh, who states that he is illiterate, but
he can sign. He states that he is witness to the WILL and states that
Most. Mutari had executed the WILL, who is now dead. He stated that
the WILL was executed in his presence and in presence of Fauda
Gaunjhu and Akchaya Kumar Bakshi. He stated that Most. Mutari had
no heir or successors and Akshay Kumar Bakshi is the scribe of the
WILL. In cross examination, he stated that Ram Kumar Singh, who is
the applicant herein, is his cousin and said Ram Kumar Singh has no
relation with Most. Mutari, but, he he used to look after Most. Mutari. He
stated that Most. Mutari had signed a paper in his presence, but, he
does not know what was the contents of that paper. He stated that Ram
Kumar Singh asked him to give evidence today in Court.
17. Ram Lagan Singh is P.W.3, who stated that Most. Mutari
executed the WILL in favour of the applicant on 29.03.1995. Most.
Mutari had no legal heir or successors. In paragraph 5, he has stated
that as Most. Mutari had got no legal heir, she request Ram Kumar
Singh to look after her and in lieu of such executed a WILL in his favour.
He admits that the document contains his signature and the WILL was
prepared by Most. Mutari in her senses. He states that after the death of
Most Mutari, it is Ram Kumar Singh, who performed her last rites. In
cross examination, he stated that Most. Mutari had no children nor any
nephew or niece. He stated that at the time of death, the elder brother-
in-law and younger brother-in-law of Most. Mutari was alive. He states
that Fujar Gaunjhu is the younger brother-in-law of Most. Mutari, but he
could not recollect the name of elder brother-in-law. He further states
that there is one Chaita Gaunjhu, who is alive and belongs to the same
family. In paragraph 9 of the cross-examination, he states that the WILL
was scribed by Narayan Singh.
18. Ram Kumar Singh, the applicant, is P.W.1. He stated that
Most. Mutari died on 20.12.2006 and they had no son or legal heirs. Her
husband predeceased her. He stated that the WILL was prepared on
29.03.1995 and Narayan Singh and Fauda Gaunjhu were the witnesses
and Akchay Kumar Bakshi is the scribe. In paragraph 8 of his
examination-in-chief (which is a typed and affidavited document), he
states that he is identifying the death certificate of Most. Mutari, which is
to be marked. In paragraph 11, the WILL dated 29.03.1995 was marked
as Exhibit 1. In cross examination, he stated that Most Mutari and he
belongs to the same caste and all the properties have been bequeathed
in his favour. Exhibit 1 is the WILL.
19. From the aforesaid evidence, a discrepancy, which clearly
emerges is that Akchay Kumar Bakshi states that he is the scribe of the
WILL. The applicant also says the same, but, Ram Lagan Singh (P.W.3)
in paragraph 9 of his cross examination has stated that it is Narayan
Singh, who is the scribe of the WILL. Another important aspect is that
the applicant in his examination-in-chief (which is a typed and duly
affidavited document sworn by him) states that he is producing the
death certificate of Most. Mutari, whereas when the entire record is
placed before me, there is no death certificate in it. List of Exhibits was
prepared by the Court below, which suggests that the said death
certificate was neither produced nor exhibited.
20. Further, the witness Ram Lagan Singh stated that at the
time of death of Most. Mutari, his brothers-in-law were alive and one of
her family member, namely, Chaita Gaunjhu was also alive at the time
when his deposition was recorded. Surprisingly, I find that though from
the evidence of the witness, it is evident that there exists family
members, who are agnates of the deceased testator, but, in the probate
application, which was numbered as Probate Case No.5 of 2007, family
members were not made a party. The applicant only made the Deputy
Commissioner as party respondent and not any of the family members.
21. Further, I find that general notices were also not issued in
the locality and notices were only sent to the State, which was
represented by the Government Advocate. This is a circumstance,
which strikes the conscience of the Court. It is not explained as to why
agnates of the deceased, who were alive, have not been made a party
nor general notices were issued in the locality.
Counsel appearing on behalf of the appellant also cannot
give any proper explanation. This suggests that the claimant is trying to
hide the existence of the WILL from the agnates.
22. Further the WILL, which was marked as Exhibit 1, was not
produced before the Akchay Kumar Bakshi at the time of deposition,
who claimed that he was the scribe of the WILL. This is also a
circumstance, which creates a doubt in the mind of the Court as to why
document was not produced before him. All the witnesses stated that
Most. Mutari died in the year 2006, but, surprisingly, the death certificate
of the deceased was not brought on record even though the applicant
says that he has produced the same. If at all there was a death
certificate, which the applicant claims to be there, the same should have
been brought on record to conclude as to when Most. Mutari died.
Withholding of this documentary evidence creates a doubt in the mind of
the Court as to whether actually the appellant looked after the deceased
or not and performed her last rites or not. None of the villagers have
been produced as witness to depose that infact this appellant looked
after the deceased till her death and this deceased performed her last
rites. It is the case of the appellant that since this appellant was looking
after the deceased for a long period of time, so out of love and affection
the WILL was executed. This fact of love and affection and the claim
that this appellant looked after the deceased and performed her last
rites have not been proved by any independent witness of the village.
Further, one of the attesting witnesses, who was produced and
examined before the Court as witness, (as the another one was not
produced) is a cousin of the applicant. Further, Akchay Kumar Bakshi,
clearly stated that he cannot identify any of the persons, who
accompanied Most. Mutari at the time of scribing the WILL and he could
not say, who verified the thumb impression of the testator.
23. Considering all these discrepancies, the District Judge X,
Hazaribagh rejected the application holding that the witnesses are not
trustworthy and there is doubt about the execution of the WILL. I also
concur with the said finding. I find that no illegality has been committed
by the Court below in rejecting the application and coming to the
conclusion that there exists doubt about the execution of the said WILL.
24. Accordingly, this appeal is dismissed as there are no
grounds to interfere with the judgment dated 20th July, 2015 passed by
the District Judge X, Hazaribagh in Probate Case No.5 of 2007.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi,
Dated, the 26th April, 2022
AFR
Kumar/Cp-02
