Bhagaban Sahoo vs Krushna @ Krushna Chandra Sahoo
2021 Latest Caselaw 8633 Ori

  IN THE HIGH COURT OF ORISSA AT CUTTACK

               AHO No.3 of 2000 & AHO No.2 of 2000

From the common judgment and order dated 12th November, 1999
passed by the learned Single Judge in F.A.Nos.64 and 183 of 1996.
                                ----------

AHO No.3 of 2000
Bhagaban Sahoo                         ......              Appellant
Versus
Krushna @ Krushna Chandra Sahoo
and others                    ......                     Respondents

Advocate(s) appeared in this case :-
      For Appellant              :     Mr. A.K. Mishra, Advocate
         For Respondents         :     Mr. B.C. Panda, Advocate
                                 AND

A.H.O. No.2 of 2000
Bhagaban Sahoo                         ......              Appellant
Versus
Shyam Sundar Sahoo and others          ......            Respondents

Advocate(s) appeared in this case :-
      For Appellant              :     Mr. A.K. Mishra, Advocate
         For Respondents         :     Mr. B.C. Panda, Advocate


             CORAM : THE CHIEF JUSTICE
                    JUSTICE B.P. ROUTRAY

                            JUDGMENT

18th August, 2021

B.P. Routray,J.

1. Both the appeals have been directed against the common

judgment dated 12th November, 1999 of the learned Single Judge passed

in F.A. Nos. 64 of 1996 and 183 of 1996.

2. The original Plaintiff is the deceased-appellant in both the present

appeals. Defendant No.6 was the appellant in F.A.No.64 of 1996 and

Defendant No.2 was the appellant in F.A.No.183 of 1996. For

convenience, the parties here-in-after are referred with their original

status in the suit.

3. The Plaintiff filed Original Suit No.40 of 1987 under Section 276

of the Indian Succession Act for probate of the Will dated 10th April,

1960. The case of the Plaintiff is that, Harekrushna is the testator and he

(Plaintiff) is the legatee in respect of the Will. Harekrushna has 1/4th

share in 'B' schedule property of the suit. He was a leper and died as a

bachelor on 6th March, 1962. Though Plaintiff is the natural brother of

Harekrushna, but was adopted to the brother of their natural father.

Similarly, Defendant No.2, who was the grandson of Banchhanidhi,

another brother of natural father of Harekrushna and Plaintiff, has been

adopted by Alekha belonging to another branch of the common ancestor

Banamali. Since the genealogy has been mentioned in the suit as well as

in the First Appeal, the same is not mentioned in detail here.

4. It is stated by the Plaintiff that Harekrushna in the later part of his

life was kept in a Leprosy Ashram till his death. Before his death,

Harekrushna executed an unregistered 'Will' in favour of the Plaintiff

on 10th April, 1960 out of his free will in presence of the witnesses.

Being a leprosy patient he had lost the fingers and at the time of

execution of the Will, the scribe attested the thumb impression (Santak)

of Harekrushna on the Will in presence of the witnesses as per his

direction as he was unable to put his signature.

5. The suit was contested by Defendant Nos. 1 to 3 & 5 to 7.

Defendant No.8 supported the contention of the Plaintiff and other

Defendants did not come to contest. As per the contesting Defendants,

no such Will was executed by Harekrushna. Ext.1 (the Will) is a

fabricated and forged document. These defendants also disputed the date

of death of Harekrushna and as per them, he died prior to 10th April,

1960 even before attending the age of majority. Therefore, the interest

of the alleged testator in the joint family property passed on to the

surviving members of the joint family.

6. The learned trial court framed six issues. All such issues were

answered in favour of the Plaintiff and the probate was granted by

judgment and decree dated 22nd January, 1996.

7. Against the same Defendants 2 & 6 filed F.A. No. 183 of 1996

and F.A. No. 64 of 1996 respectively. The learned Single Judge reversed

the findings of the learned trial court in both the appeals and allowed the

same by setting aside the judgment and decree of the learned trial court.

8. The appellant contends before this Court in the present appeals

that the findings arrived at by the learned Single Judge in the First

Appeals are contrary to the evidence and materials brought on record

and as such, liable to be set aside.

9. The main dispute is whether the alleged Will under Ext.1 is

genuine or a forged and fabricated document. All six issues are

connected to this dispute. The learned Single Judge doubted the

genuineness of the Will on analysis of the evidence regarding presences

of witnesses at the time of execution of the Will, its attestation and

suppression (of Ext.1) by the Plaintiff for around twenty years after

death of the testator.

10. Admittedly the Will under Ext. 1 is unregistered and does not

contain signature of the testator. It is explained that due to loss of fingers

of the testator, he could not put his signature or thumb impression on the

same. The pleading at para-3 of the plaint is specific to the extent that,

"As a matter of fact the executant being a Leprosy patient at the time of

execution he was unable to put his signature and the scribe attested the

thumb impression (Santak) of the said Harekrushna Sahu in presence of

the witnesses as per his direction". The scribe of the Will, who has been

examined as P.W.3, has stated in his evidence that he himself put the

identification and signed on behalf of the executant. The explanation of

the plaintiff that a mark (Santak) has been impressed to represent and

replace the signature or thumb impression of the testator, is not found

specifically pleaded by the Plaintiff. Even in absence of that, the learned

Single Judge considered such explanation and came to the finding that

in view of other evidences regarding execution of the Will being not

unimpeachable, such a probability of impressing mark (Santak) as

contended by the Plaintiff cannot be accepted.

11. The discrepancies in the evidence of P.Ws.1, 2 and 3 as discussed

by the learned Single Judge regarding execution of the Will in their

presence are well evident on record and as such, the doubt raised by the

learned Single Judge upon the circumstances at the time of execution of

the Will cannot be faulted with.

12. The delay in disclosure about execution of Ext.1 in favour of the

Plaintiff is a considerable factor in the present circumstances of the case.

Admittedly, Ext.1 was brought to the knowledge of others around

twenty years after the death of the testator. It is not the case that the

parties were in peaceful possession of their shares over the joint family

property without any dispute. Several legal disputes were fought

between the co-sharers of the common ancestor Banamali which are

apparent on record. To exemplify, one of them is Civil Revision No.265

of 1964 filed in the High Court of Orissa concerning to a suit involving

right of recovery of rent of the suit house, and another is T.S. No. 2/4 of

1951/50. It is true that, no limitation has been prescribed under the law

for grant of probate of the Will. But in the wake of various disputes

between the co-sharers over the joint family property, apparent silence

of the plaintiff about execution of the so called Will for such a long

period, is certainly a doubtful circumstance against him. In the backdrop

of such circumstances, the learned Single Judge has rightly reappraised

the evidence brought on record to doubt the genuineness of the

unregistered Will under Ext.1 to which we also agree with.

13. The further contention by the counsel for the Plaintiff that in

absence of any limitation prescribed for probate, it is up to him to apply

for probate at the suitable time when the requirement arises for which no

adverse inference should be drawn against him for the delay, is not

acceptable since the question here is about bonafide conduct of the

propounder (Plaintiff). The burden of proof is on the propounder and the

test is satisfaction of conscience of the court. In view of the attendant

nature of Ext.1 (Will) that it is unsigned and unregistered one, the

suspicion is more legitimate and thus the onus of proof on the

propounder becomes stricter. After all, it is the ultimate conscience of

the court that has to be satisfied and as such, the nature and quality of

proof must commensurate with the need to satisfy that conscience and

remove all suspicions which a reasonable man may entertain in the

circumstances of the case.

14. Next regarding the actual date of death of Harekrushna (the

testator), no specific finding has been given by the learned Single Judge

and he has opined that in absence of unimpeachable evidence from the

side of the Defendants, it is difficult to arrive at any concrete conclusion

if Harekruhsna died prior to the date of execution of the Will. This is

based on the date of death mentioned in Ext.5 and Ext.A, which are the

death certificates granted by Leprosy Hospital and the Municipality

respectively. Since such discrepancies are apparent on the face of Ext. 5

and Ext. A, we therefore do not see any reason to interfere with the

same.

15. In view of the discussions made above, the appeals are found

devoid of merit and as such are dismissed. No order as to costs.

(B.P.Routray) Judge

(Dr. S. Muralidhar) Chief Justice

18th of August, 2021.

//C.R. Biswal, Secretary//