Jharkhand High Court
Sitaram Goswami vs Shanti Devi on 15 April, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:11359
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 445 of 2016
Sitaram Goswami, S/o Late Trilochan Goswami, R/o village-Khilkanali, P.O.-
Bhitia, P.S.-Govindpur, District-Dhanbad, At present R/o village-Belkupa,
P.O.- Debiyana, P.S.-Nirsa, District-Dhanbad
.... .... Appellant
Versus
1. Shanti Devi, Widow of Late Lakhi Narain Goswami
2. Badu Devi. D/o & Late Lakhi Narain Goswami
3. Ujjwal Kumar Goswami, S/o Late Lakhi Narain Goswami
4. Kumari Karunamayee, Minor D/o Late Lakhi Narain Goswami
All residents of village-Belkupa, P.O.-Debiyana, P.S.-Nirsa, District-
Dhanbad
5. General Public of Mouza- Belkupa, P.S.-Nirsa, P.O.-Debiyana, District-
Dhanbad
... .... Respondents
------
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. Bhaiya V. Kumar, Advocate
For the Respondents : Mrs. Jasvindar Kaur Mazumdar, Advocate
Ms. Niharika Mazumdar, Advocate
------
C.A.V on 08.04.2025 Pronounced on 15.04.2025
1. This appeal is against the order passed in Probate Case No. 03 of 2005
by learned District Judge-II, Dhanbad under Section 276 of Indian
Succession Act, by which the probate application has been dismissed.
2. As per the case of the Appellant/Applicant, Srimatiya Radha Debya @
Kusum Debya, daughter of Late Shashi Bhusan Goswami, and Wife of
Late Basanta Goswami, executed her last WILL dated 03.09.2004 in
favour of the Appellant.
3. After executing the said registered WILL, she died on 26.09.2004. The
suit property was recorded in the name of Joginda Goswami and
Haripado Goswami and the testatrix happened to be the paternal grand
daughter of Joginda Goswami, whereas the respondents are the heirs
and descendants of Haripado Goswami.Testatrix Srimatiya Radha Debya
@ Kusum Debya had purchased the said suit land vide registered sale
deed no. 15702 dated 02.09.1968.
4. The execution of the WILL was witnessed by Tarapado Gorai (P.W.-2),
Sripati Goari (P.W.-3) and Raju Goswami.
5. Grant of probate is contested by defendant Lakhi Narain Goswami (since
dead) who filed show cause before the Probate Court, inter alia, on the
ground that testatrix Radha Debya @ Kusum Debya had not executed
2025:JHHC:11359
WILL in favour of the applicant, as she was ill since last few months
before her death and was not mentally and physically fit in the month of
September, 2004, when she died. Further objections have been raised
on the right of the testatrix to bequeath the property.
6. Learned Probate Court framed the following issues: -
I. Is the case maintainable in its present form?
II. Is there any cause of action for the present case?
III. Is the alleged WILL executed by Smt. Radha Debya @ Kusum
Debya of dated 03.09.04 in favour of applicant is valid?
IV. Is the alleged WILL dated 03.09.04 of Smt. Radha Debya @
Kusum Debya was the last WILL of the testator?
V. Has testator Radha Debya @ Kusum Debya made a WILL
dated 03.09.04 voluntarily and in sound state of mind and body
and without any influence?
VI. Is the applicant entitled for grant of probate of WILL as prayed
for?
7. The probate application has been rejected mainly on the following
grounds: -
(1) In cross-examination, applicant (P.W.1) stated that he had told
the deed writer what should be written in the WILL, which
showed that the WILL was prepared on the dictation of the
beneficiary and not as per instruction of the Testatrix, and that
WILL was not prepared voluntarily in sound state of mind.
(2) The said WILL is said to be executed on 03.09.04 and Radha
Debya died on 26.09.04, so, after 23 days of the execution of
the alleged WILL and it has come in the evidence of the witness
of Opposite Parties that Radha Debya was ill and bed ridden six
months before her death and she was unable to walk and speak.
(3) The attesting witnesses of WILL i.e., P.W.2 and P.W.3 were in
inimical relation with the O.P.
8. It is argued by the learned counsel Mr. Bhaiya V. Kumar, on behalf of the
appellant that learned Probate Court misdirected itself while rejecting the
application of probate for registered WILL, by taking into consideration
extraneous factors into account. The uncontroverted evidence adduced
on behalf of the plaintiffs, established that the deceased was living under
the care and protection of the applicant. As the deceased was Bengali
speaking woman, therefore, it was but natural for the applicant to
2025:JHHC:11359
translate the statement being made by the testatrix to the deed writer.
Not a chit of paper has been adduced into evidence on behalf of the
defendants/ opp. parties with regard to illness of the testatrix and,
therefore, the finding that she was not physically in a fit and disposing
state of mind to execute the WILL, is unsupported by any evidence.
9. It is further argued that the depositions of the attesting witnesses P.Ws.
2 and 3 have been rejected in a most summary manner by only stating
that they were on inimical term with the opposite parties.
10. Ms. Niharika Mazumdar, learned counsel for the respondents,
contended that in the WILL, there is no description of the property by
which the property has been bequeathed in favour of the applicant. It
only states that her entire property is bequeathed in favour of the
applicant.
11. It is argued by learned counsel that testatrix was living with OP No.1
Lakhi Narayan Goswami and this has come in the testimony of DW-5,
who happens to be his wife. She has deposed in para-13 onwards that
the testatrix was 90 years old at the time of her death and for last six
months, she was not even in a position to walk around. She had never
visited Dhanbad Registry Office and the registry had been obtained
setting up an imposter. During her lifetime, she was living with OP No.1.
The testimony of DW-5 is corroborated by DW-2 Kirit Bhushan Gorai,
who was neighbour and independent witness and has deposed in para-
17 that at the time of death of Radha Debya (testatrix) her age was 85
years and the last rites were performed by O.P. No.1 Lakhi Narayan
Goswami. In para-18 he has deposed that she was not in a position to
move around and therefore, it is wrong to say that she had executed a
registered sale-deed in favour of the appellant.
DW-3 in para-16 has deposed that testatrix was looked after by OP No.1.
It has further been argued that the applicant PW-1 has deposed in para-
29 that the WILL was drafted as per the instructions of the scribe and
therefore it was not made as per the instruction of testatrix.
DW-2 has deposed in para-32 that family of Sitaram Goswami was living
in the house of Radha Debya. Reliance is placed on behalf of the
appellant on (1987) 1 SCC 610 Smt. Malkani Vs. Jamadar and Ors.
ANALYSIS
12. The registered WILL dated 03.09.04 executed by Smt Radha Debya in
favour of Sita Ram Goswami in the presence of attesting witnesses
2025:JHHC:11359
Tarapad Gorai (PW-2), Sripati Gorai(PW-3) and Raju Goswami has been
adduced into evidence and marked as Ext-1. PW-2 has deposed that
the WILL was executed by Radha Debya in sound state of mind in the
Registry Office Dhanbad, in his presence. He has further deposed that
Sripati Gorai (AW-3) and Raju Goswami were witnesses to the said
WILL.
13. PW1 the beneficiary has deposed in para-8 that he had been
maintaining the Testatrix and taking care of her. In para 17 of the cross-
examination, he has deposed that Testatrix was his aunt (fuferi mausi)
and she had kept him to look after her and was living there for last 40
years. PW-2 has also deposed in para-7 that Testatrix had kept the
applicant with her to look after her property, and being satisfied by his
services, had executed the WILL of her property in his favour. It has also
been deposed by him in para-19 of the cross-examination that 10-15
days before the execution of the WILL, she had called him for discussing
the matter of execution of the WILL. Sripati Gorai and Hemchandra
Gorai were present at that time. He has also deposed that they had gone
for the execution of the WILL in a reserved vehicle, and she had said
that Mihir Das will scribe the WILL. WILL had been also witnessed by
Raju Gosai.
PW-3 in para 21 of the cross-examination has stated that Testatrix had
called him and disclosed her intent of executing the WILL in favour of
Sita Ram Goswami. He has also corroborated the testimony of PW-2
that they were called for and told by the Testatrix that she wanted to
execute the WILL in favour of the Applicant.
14. As per the recital of the WILL, it had been executed with respect to all
her movable and immovable property.
15. At the outset it may be noted that a probate court is not competent to
determine the title of the property bequeathed. The jurisdiction of a
probate court is limited to determine that the WILL executed by the
testator was his last WILL. Whether he/she had right to execute the WILL
with respect to the property is beyond consideration in a probate
application.
16. Therefore, if the description of the land sought to be bequeathed has not
been detailed in the WILL, and the testamentary disposition is with
respect to the entire property of the Testatrix, probate application cannot
be denied on this score. It makes no difference what are the properties
2025:JHHC:11359
which have been set out in the probate application, as probate is granted
with respect to the property as stated in the WILL and not with respect
to the description given in the probate application.
17. What are the factors to be considered by the Court in a probate case
has been dealt with in Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369
wherein it has been held:
10. There is a long line of decisions bearing on the nature and
standard of evidence required to prove a WILL. Those decisions have
been reviewed in an elaborate judgment of this Court in R.
Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443: 1959
Supp 1 SCR 426]. The Court, speaking through Gajendragadkar, J.,
laid down in that case the following propositions:
"1. Stated generally, 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 in such matters. As in the case
of proof of other documents, so in the case of proof of WILLS,
one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a WILL to be
attested, it cannot be used as evidence until, as required by
Section 68 of the Evidence Act, 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.
3. Unlike other documents, the WILL speaks from the death of
the testator and therefore the maker of the will is never available
for deposing as to the circumstances in which the WILL came to
be executed. This aspect introduces an element of solemnity in
the decision of the question whether the document propounded
is proved to be the last WILL and testament of the testator.
Normally, the onus which lies on the propounder can be taken to
be discharged on proof of the essential facts which go into the
making of the WILL.
4. Cases in which the execution of the WILL is surrounded by
suspicious circumstances stand on a different footing. 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
2025:JHHC:11359
benefit and such other circumstances raise suspicion about the
execution of the WILL. That suspicion cannot be removed by the
mere assertion of the propounder that the WILL bears the
signature of the testator or that the testator was in a sound and
disposing state of mind and memory at the time when the WILL
was made, or that those like the wife and children of the testator
who would normally receive their due share in his estate were
disinherited because the testator might have had his own
reasons for excluding them. The presence of suspicious
circumstances makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon the execution of
the WILL excite the suspicion of the court, the propounder must
remove all legitimate suspicions before the document can be
accepted as the last WILL of the testator.
5. It is in connection with WILLS, the execution of which is
surrounded by suspicious circumstances that the test of
satisfaction of the judicial conscience has been evolved. That
test 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 called upon to decide a solemn question and
by reason of suspicious circumstances the court has to be
satisfied fully that the WILL has been validly executed by the
testator.
6. If a caveator alleges fraud, undue influence, coercion etc. 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 raise
a doubt as to whether the testator was acting of his own free
WILL. And then it is a part of the initial onus of the propounder
to remove all reasonable doubts in the matter."
18. In view of the above, it follows that the mode of proving a WILL does not
ordinarily differ from that of proving any other document, except as to
the special requirement prescribed in the case of a WILL by Section 63
of the Indian Succession Act and Section 68 of the Evidence Act. The
onus of proving WILL is on the propounder and in the absence of
suspicious circumstances surrounding the execution of the WILL, on
2025:JHHC:11359
proof of testamentary capacity and signature of the testator as required
by law, is sufficient to discharge the onus. Where, however there are
suspicious circumstances, the onus would be on the propounder to
explain them to the satisfaction of the court before the WILL could be
accepted as genuine. The presence of suspicious circumstances makes
the initial onus heavier and the propounder must remove all legitimate
suspicion before the document can be accepted as the last WILL of the
testator. (See Guro (Smt) v. Atma Singh, (1992) 2 SCC 507).
19. WILL in question is registered, and this does not relieve the propounder
of the WILL from the requirement of getting it probated, but its
registration raises presumption of its due execution. Law is settled that
there is presumption of genuineness in favour of registered document
and heavy burden lies on the party who assails such a document (2009
(5) SCC 713 Vimal Chand Ghevarchand Jain and Ors. Vrs.
Ramakant Eknath Jajoo).
20. Attesting witnesses PW-2 and PW-3 have proved its due execution.
There is no evidence to suggest that any fraud was played in its
execution. Law is settled that if a WILL appears on the face of it to have
been duly executed and attested in accordance with the requirements of
the statute, a presumption of its due execution and attestation applies
(see Gurdev Kaur and Ors. v. Kaki and Ors., (2007) 1 SCC 546). What
prompted the court to hold that these witnesses were on inimical terms
with the objectors/respondents is not clear. Unless there is some
material to suggest that they were ill disposed and were out there to gain
something by deposing in a particular manner against the respondents,
their evidence cannot be discarded.
21. What circumstances would be regarded as suspicious cannot be
precisely defined or exhaustively enumerated. That inevitably would be
a question of fact in each case. In any case mere absence of detailed
description of property in the WILL cannot be regarded as a suspicious
circumstance. Deposition of witnesses that the Testatrix was ill since last
six months, and was not in a position to stir out of her home, is not
supported by any documentary evidence of her treatment. Such a
document could have been produced, particularly when the
objectors/respondents claim that she was under their care and was
being looked after by them. Merely because the Testatrix died within a
month after the execution of the WILL is by itself not sufficient to infer
2025:JHHC:11359
that, she was not in sound health and disposing state of mind at the time
of execution of the WILL.
22. Evidences have to be appreciated in their totality, and a stray statement
in the cross-examination of PW-1 that he had stated to the scribe about
what is to be written, is not sufficient to rebut the weight of evidence of
its due execution. In para 28 of the cross-examination, it has been
deposed by him that WILL was prepared as per the instruction of the
Testatrix. In para-29 he has deposed that he had stated to the scribe
what has to be written in the WILL. As discussed in the foregoing
paragraphs, PW -2 and PW -3 have also deposed that Testatrix had a
meeting with them about 10-15 days before the execution of the WILL,
where she had expressed her intention to execute the WILL in favour of
Sita Ram Goswami. In this view of matter, it cannot be said that due
execution of the WILL was vitiated on account of any active part played
by the beneficiary.
23. For the reasons discussed above, this Court is of the view that learned
Probate Court erred in refusing to grant probate and therefore the
impugned order is set aside. The application for grant of probate which
was converted into a suit, as aforesaid, is allowed.
24. Let the probate be granted to the plaintiffs-executors, in respect of the
WILL executed and registered on 03.09.2004 by Srimatiya Radha Debya
@ Kusum Debya (since deceased) with a copy of the WILL annexed, in
accordance with the law and upon payment of requisite court fees.
Miscellaneous Appeal is accordingly allowed.
Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated 15th April, 2025
NAFR/Pawan/-
