Tripura High Court
Smti. Niyati Das vs Smti. Milan Debnath (Gupta) on 3 June, 2023
Page 1 of 15
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
MFA No.04 of 2022
1. Smti. Niyati Das, wife of late Upananda Das, village Padmapur
(Harichand Para), P.O. & P.S. Dharmanagar, Dharmanagar, North
Tripura.
.....Appellant
-V E R S U S-
1. Smti. Milan Debnath (Gupta), wife of late Dhruba Kanti Gupta.
2. Sri Biswajit Gupta, son of late Dhruba Kanti Gupta.
3. Smti. Mitali Gupta, daughter of late Dhruba Kanti Gupta.
All are the resident of village Padmapur (Madhubari Road) P.O. &
P.S. Dharmanagar, Dharmanagar, North Tripura.
.....Respondents
B_E_F_O_R_E
HON'BLE MR. JUSTICE T. AMARNATH GOUD
For Appellant(s) : Mr. Sankar Bhattacharjee, Advocate.
Mr. S. Noatia, Advocate.
For Respondent(s) : Mr. T. K. Deb, Advocate.
Date of hearing : 01.06.2023
Date of delivery of
judgment and order : 03.06.2023
Whether fit for reporting : YES
JUDGMENT & ORDER
Heard Mr. Sankar Bhattacharjee, learned counsel assisted by
Mr. S. Noatia, learned counsel appearing for the appellant also heard Mr.
T. K. Deb, learned counsel appearing for the respondents.
[2] This appeal has been filed under Section-299 of Indian
Succession Act, 1925 read with Order-XLI Rule-1 of Code of Civil Procedure,
1908 (as amended up to date) against the judgment passed in T.S.(Probate) 01
of 2014 by the learned District Judge, North Tripura, Dharmanagar on
06.04.2022.
[3] The fact of the case of the appellant, in short, is that the testator
Dhruba Kanti Gupta died at his residence on 12-03-2012. During the lifetime
of deceased Dhruba Kanti Gupta his relation with his wife, son and daughter
was not good and due to such bitter relation about 14 years ago his wife left his
house along with her son and daughter and started living separately in her
personal residence at Padmapur under Dharmanagar Sub-Division. During that
period the appellant used to look after said Dhruba Kanti Gupta by nursing,
cooking meal and helping to get medical treatment etc. and the appellant has
been permanently residing in the house of Dhruba Kanti Gupta and being
satisfied said Dhruba Kanti Gupta executed a registered Will dated 29-05-1997
before the Sub-Registrar, Dharmanagar in favour of the appellant, Smt. Niyati
Das in respect of his all movable and immovable properties including gratuity,
provident fund and deposited money in the Bank and Post Office.
[4] It is also stated that the appellant was named as the executor in
the said Will and she is entitled to get movable and immovable properties
including the money deposited in Bank as per description of the Will according
to the last desire of the testator. But the appellant could not give details list of
all assets and the debts of the deceased Dhruba Kanti Gupta as just after the
death of Dhruba Kanti Gupta the present Opposite Parties forcefully captured
all the documents of bank and post office, ration card including documents of
landed properties and they forcefully drove out the appellant from the house of
the deceased.
[5] It has been further stated that the deceased left behind Smt.
Milan Debnath as his wife, Sri Biswajit Gupta as his son and Smt. Mitali
Gupta as his daughter as his legal heirs and survivors but due to their
misconduct and misbehaviour with the deceased Dhruba Kanti Gupta he
being dissatisfied with them executed the said Will in favour of the
appellant. Thus, the appellant has prayed for a direction to the
respondents to produce the documents in connection with the Will and
grant probate of the Will in favour of the appellant.
[6] After hearing the parties and having gone through the
material evidence on record, the learned Court below has observed as
under:
"In view of the above discussion and findings the application filed by
the petitioner, Smt. Niyati Das under Section-276 of the Indian
Succession Act, 1925 for grant of a probate of the Will executed by
Dhruba Kanti Gupta (now deceased) is hereby rejected.
The parties to this suit shall have to bear their own costs.
Senior Sheristadar is hereby directed to prepare a decree immediately.
This suit is accordingly disposed off on contest.
Make necessary entry in TR."
[7] Being aggrieved by and dissatisfied with the said judgment
of the learned Court below, the appellant herein has preferred the present
appeal before this Court for redress.
[8] Mr. S. Bhattacharjee, learned counsel appearing for the
appellant has submitted that the learned Court below has erred in law and
came to an erroneous conclusion as such the judgment passed by the
learned Court below is liable to be set aside. The learned Court below
misinterpreted the clauses of the WILL and completely on imagination
draws inference while the respondents in spite of submitting written
statement did not enter into witness box to rebut the evidence of the
appellant.
[9] The learned Court while decided the issue No.II has
proceeded to discussed irrelevant presumptions. While discussing the
issue No.II it has been observed that the present appellant as PW-1 could
not explain while the WILL was signed on 09.05.1997 and registered on
29.05.1997. It has been also mentioned that in the WILL the testator did
not mentioned that the WILL shall be presented before the Sub-Registrar,
Dharmanagar, North Tripura but, the learned Court below has failed to
appreciate that the appellant had no opportunity to read the mind of the
testator why he has signed the WILL on 09.05.1997 and registered it on
29.05.1997. Thus, the appellant cannot be faulted with the non-
explanation of the testator. The appellant never denied that the WILL was
executed on 09.05.1997 and registered on 29.05.1997 and as such, the
findings of the learned Court below cannot be sustained in the eye of law.
[10] He has further contended that the learned Court below while
deciding issue No. III discussed and come to the conclusion that the
WILL does not bear any description of the WILL but the learned Court
has failed to read the contents of the WILL. There is no specific form for
any WILL and the Court has to read so as to determine the question as to
object and subject of WILL but, the learned Court below has most
wrongly held that there was nothing in record that testator had right, title,
interest over the suit land at the time of execution of WILL as such the
findings of the trial Court in respect of issue No. III is liable to be
interfered with.
[11] While deciding issue No.IV and VI, the learned Court below
has completely misread the provision of Section-276 of the Indian
Succession Act, 1925 wherein, it has been specifically stated what shall
be the contents of the petition for probate and there is no scope for
incorporating any clause. But the learned Court below has found fault
with the appellant that in spite of the fact that she knew that the deed
writer and the attesting witnesses were no more in the world, she did not
mention such fact in the pleading. As such, the findings of the learned
Court below need to be interfered with.
[12] In support of his case, he has placed reliance on a decision
of the Apex Court in Shewantabai v. Arun and Another, reported in
[2020 (1) Civil Court Case 199 = (2019) 3 RCR (Civil) 311], wherein it
has been held thus:
"We have heard the learned counsel appearing on behalf of the respective
parties at length. At the outset, it is required to be noted that there are
concurrent finding of fact recorded by the First Appellate Court as well as
by the High Court on genuineness of the Will which was under challenge
before the Trial Court. Merely because the testator executed the Will in
favour of the neighbour, the genuineness of the Will cannot be doubted.
We are in complete agreement with the view taken by the High Court. At
this stage learned counsel appearing on behalf of the appellant has
submitted that the appellant, the widow of the deceased testator is an old
lady and the entire agricultural property as well as the house is bequeathed
in favour of the neighbour and it will be difficult for her to maintain
herself in this old age.
The present appeal stands disposed of in the above terms. The impugned
order is hereby confirmed subject to above terms."
[13] After hearing the learned counsel appearing for the parties
and having gone through the material evidence on record and the
observations made by the learned Court below, for a definite conclusion,
let us revisit the discussion and the evidence once again.
[14] After registration of the suit initially order was passed
directing ex-parte hearing of the suit against all the opposite parties as
they did not appear before the court even after receipt of notice in
connection with this suit. However, subsequently all the three opposite
parties appeared before the Court and filed separate applications for
vacating the ex-parte order passed against them and after allowing their
applications, all the three opposite parties contested this suit by
submitting their separate written statement.
[15] In their respective written statements the opposite parties
denied and disputed each and every averments made in the application by
the appellant and raised objection regarding genuineness of the so called
last Will of deceased Dhruba Kanti Gupta. It is also pleaded by the
opposite parties that deceased Dhruba Kanti Gupta did never execute any
Will in respect of his movable and immovable properties including the
service benefits in favour of the appellant rather the appellant has
approached before the Court for granting a probate in respect of the so
called last Will of deceased Dhruba Kanti Gupta submitting some false
and fabricated documents.
[16] In the written statement of the respondent No.2, it has been
stated that after registration of this suit he obtained some documents
through RTI in respect of the death certificate of his father Dhruba Kanti
Gupta bearing serial No.416, registration No.24 dated 12-03-2012 as
submitted by the appellant along with her application under Section-276
of the Indian Succession Act, 1925 and came to learn that the death
certificate against registration No.24 was actually issued on 20-01-2013
in favour of the deceased Sanjita Sabdakar, the three months old female
baby, of Sri Pinku Sabdakar of village-Chandrapur, Subhash Colony
under Dharmanagar Sub-Division.
[17] Mr. T.K. Deb, learned counsel appearing for the respondents
at the outset of his argument draws attention of this court towards the
order sheets dated 21-04-2016, 24-05-2016, 08-06-2016, 22-06-2016, 15-
09-2017 and 10-11-2017 and submits that from the aforesaid order sheets
it would be clear to this court that the appellant was very much reluctant
to serve notices upon the respondents in-spite of several directions of the
Court for her wrongful gain. Referring the registered Will in Exhibit-1 he
has further contended that no father's name and address of the attesting
witnesses were mentioned in the Will itself to conceal the actual fact and
thereby to obtain a probate from the court by proving a false and
fabricated registered Will allegedly executed by deceased Dhruba Kanti
Gupta, the predecessor-in-interest of the present respondents.
[18] It is further argued that the cross-examination of P.Ws No.
2, 3 and 4 will show how the evidence of those witnesses has been
recorded by the appellant to prove the genuineness of the so called last
Will of deceased Dhruba Kanti Gupta whereas, Section-68 of the
Evidence Act itself provides as to how the evidence of attesting witnesses
should be recorded. It is further argued that for determination of the suit
the evidence of the Court Witnesses No. 1 and 2 is to play a vital role
who deposed the actual fact before the court regarding the death
certificate of deceased Dhruba Kanti Gupta whereas, from the evidence
on record, it has been revealed that against the serial number of the death
certificate of Dhruba Kanti Gupta actually death certificate of one female
baby was issued from the Dharmanagar Sub-Divisional Hospital.
[19] The appellant in her affidavit in chief has stated that on 29-
05-1997 AD deceased Dhruba Kanti Gupta had executed a registered
Will in favour of her bequeathing his all movable and immovable
properties including his bank deposit, gratuity, provident fund, post office
deposit etc. In the name of the appellant after death of testator Dhruba
Kanti Gupta and subsequently on 12-03-2012 testator Dhruba Kanti
Gupta died at his own residence situated at Office road, PO & PS-
Dharmanagar, North Tripura. She has further deposed that during
lifetime of Dhruba Kanti Gupta his relation with his wife, son and
daughter i.e. the respondents herein was not good enough and due to that
bitter relationship they used to reside in another house at Padmapur,
Dharmanagar since 14/ 15 years back from the date of execution and
during those days the wife of the respondent No.1 even did not allow her
son and daughter i.e. the respondent Nos.2 and 3 keep any relation with
their father Dhruba Kanti Gupta (now deceased).
[20] It is also deposed that due to such helpless situation Dhruba
Kanti Gupta (now deceased) being a Govt. Employee was not in a
position to enjoy his day to day life properly and by that time somehow
the appellant was acquainted with said Dhruba Kanti Gupta and on his
desire she started to look after Dhruba Kanti Gupta doing all the
household works of Dhruba Kanti Gupta and also nursing him during his
illness and being satisfied with the service rendered by the appellant said
Dhruba Kanti Gupta ultimately executed a registered Will in favour of
her in respect of his all movable and immovable properties. She has
further deposed that immediately after the death of Dhruba Kanti Gupta
his wife, son and daughter forcefully captured all the documents issued in
land records, service records etc. of deceased Dhruba Kanti Gupta and
drove out her from the house of deceased Dhruba Kanti Gupta and locked
the doors of that house for which she could not submit any document
before the court relating to movable and immovable properties of the
deceased.
[21] In support of her pleadings she has proved the registered
Will and the death certificate of deceased Dhruba Kanti Gupta and she
also examined three other witnesses who identify the signatures of the
attesting witnesses on the registered Will. It appears from the registered
Will (Exhibit-1) that a condition was inserted in the said Will by the
testator Dhruba Kanti Gupta that after his death, the appellant, being the
executor of the Will shall obtain a probate in respect of that Will from the
appropriate court of law. As per oral and documentary evidence adduced
by the appellant, testator Dhruba Kanti Gupta was died on 12-03-2012
and the appellant being the executor of the Will filed her application
under Section-276 of the Indian Succession Act, 1925 before the court on
18-12-2014. Accordingly, there is no doubt that the application filed by
the appellant under Section-276 of the Indian Succession Act, 1925 is
apparently very much maintainable in its present form.
[22] But in her cross-examination she has admitted that she had
been working as maid servant in the house of deceased Dhruba Kanti
Gupta and taking care of him for about 19 years before the death of said
Dhruba Kanti Gupta in his residence at Post Office road, Dharmanagar. It
is also admitted in her cross-examination that the Will in question was
signed by the deceased on 09-05-1997 but it was registered on 29-05-
1997. From Exhibit-1 it has been revealed that the Will was executed on
09-05-1997 but testator Dhruba Kanti Gupta did not put the date below
his signatures on the said Will. Admittedly the appellant could not
examine the writer of the Will and both the attesting witnesses on a plea
that all of them are no more in this world.
[23] Registration of a Will is not at all compulsory in the eye of
law and upon perusal of the Will inExhibit-1 it is found that there was no
clause in writing that the said Will shall be presented before the Sub-
Registrar, Dharmanagar, North Tripura for the purpose of registration on
any subsequent date but the appellant being the executor of the said Will
neither in her pleadings nor in her oral evidence explained the situation
which compel the so called testator of the Will to present the Will before
the Sub-Registrar, Dharmanagar, North Tripura for its registration after
lapse of twenty days from the date of execution of the Will by the testator
Dhruba Kanti Gupta.
[24] As per oral evidence adduced by the appellant, the attesting
witnesses put their respective signatures on the Will in question on 09-
05-1997 and it is also an admitted fact that both the attesting witnesses
neither disclosed their father's name and the residential addresses after
putting their respective signatures at the foot of the Will. The appellant
also did not examine any staff of the office of the Sub-Registrar,
Dharmanagar, North Tripura as a witness before the court to prove the
fact that the similar attesting witnesses were produced before the Sub-
Registrar, Dharmanagar, North Tripura on 29-05-1997 at the time of
registration of the Will while the office of the Sub-Registrar,
Dharmanagar, North Tripura did not obtain signatures of those attesting
witnesses on the reverse pages of the Will on 29-05-1997. In view of the
aforesaid fact on record it is very much clear that the deceased Dhruba
Kanti Gupta did not execute any Will on 29-05-1997 rather it was
executed on 09-05-1997 in favour of the appellant.
[25] In her examination-in-chief it has been clearly stated that as
just after the death of Dhruba Kanti Gupta the respondents drove out the
appellant forcibly from the house of the deceased and locked all the doors
of that house and as such appellant could not submit any document in
respect of the movable and immovable properties of deceased Dhruba
Kanti Gupta before the court. Admittedly Exhibit-1 i.e. the registered
Will executed by Dhruba Kanti Gupta does not bear any description of
his landed properties in the schedule of the properties for which the court
is also in complete dark about the exact plot of land which was owned
and possessed by deceased Dhruba Kanti Gupta before his death on 12-
03-2012. The appellant by adducing oral and documentary evidence has
failed to produce the record of rights of a particular plot of land owned
and possessed by deceased Dhruba Kanti Gupta before his death.
Accordingly, nothing in record that testator Dhruba Kanti Gupta had
right, title and interest over the suit land at the time of alleged execution
of Will.
[26] To prove the execution of the Will in question by deceased
Dhruba Kanti Gupta, the appellant examined PW 2, Sri Debashish
Chakraborty, PW 3, Sri Ranu Roy and PW 4, Sri Birendra Debnath. PW
2, Sri Debashish Chakraborty in his affidavit-in-chief has stated that he is
a deed writer by profession and as a member of Dharmanagar of Deed
Writers' Association he knew the deceased deed writer of Dharmanagar
Deed Writers' Association namely Late Nalini Ranjan Biswas who had
drafted the registered Will of Late Dhruba Kanti Gupta in favour of the
appellant on 29-05-1997 and being a professional deed writer PW 2 is
well familiar with the handwriting and signature of Late Nalini Ranjan
Biswas.
[27] In his cross-examination it has been admitted that he does
not know the exact date of death of said Nalini Ranjan Biswas, Deed
Writer and that at the time of drafting or execution of the registered Will
of Late Dhruba Kanti Gupta and was not present at the particular place. It
is also admitted that he started his carrier as a registered Deed Writer in
the year 2006 and before that he was not a member of Dharmanagar
Deed Writers' Association.
[28] The appellant being the executor of the registered Will of
deceased Dhruba Kanti Gupta was very much aware who actually drafted
the Will of deceased Dhruba Kanti Gupta and who were the persons put
their respective signatures on the registered Will of said Dhruba Kanti
Gupta as attesting witnesses. So, it may safely be presumed that at the
time of filing of her application under Section-276 of the Indian
Succession Act, 192, the appellant was aware about the fact that the
concerned deed writer and the attesting witnesses of the Will of deceased
Dhruba Kanti Gupta were no more in this world but surprisingly in her
pleadings the appellant did not mention the name of the deed writer and
the attesting witnesses even their actual identities but subsequently she
made an attempt to prove the execution of the Will in question and
signatures of the concerned Deed Writers and the attesting witnesses on
the said Will by examining her three witnesses namely Sri Debashish
Chakraborty (PW 2), Sri Ranu Roy (PW 3) and Sri Birendra Debnath
(PW 4) who had admittedly no opportunity to remain present at the time
of execution of the Will by deceased Dhruba Kanti Gupta during his
lifetime.
[29] In her application under Section-276 of the Indian
Succession Act, 1925 has specifically mentioned that as the wife and
children of deceased Dhruba Kanti Gupta were not residing at the
resident of Dhruba Kanti Gupta during his lifetime she has been
permanently residing in the house of deceased Dhruba Kanti Gupta for
taking care of said Dhruba Kanti Gupta and being satisfied said Dhruba
Kanti Gupta executed his last Will dated 29-05-1997 in favour of her
regarding all movable and immovable properties of Dhruba Kanti Gupta
(now deceased) including gratuity, provident fund and deposited money
in the bank and post office but surprisingly in her examination-in-chief
for an unknown reason did not state that she was permanently residing in
the house of deceased, Dhruba Kanti Gupta whereas, it reveals from the
case record that on 15-11-2021 she submitted a photocopy of post
mortem examination report dated 13-03-2012 in respect of deceased
Dhruba Kanti Gupta before the court by a firisti wherefrom, it has been
revealed that the post mortem examination was done at Dharmanagar
Hospital over the dead body of deceased Dhruba Kanti Gupta, on 12-03-
2012 at 01.20 pm in connection with Dharmanagar PS UD case no. 11 of
2012 under Section-174 of the Code of Criminal Procedure dated 12-03-
2012.
[30] One UD case is generally registered under Section-174 of
Cr.P.C. when a human being faced unnatural death. From that post
mortem examination report it is also found that the doctors conducted
autopsy over the dead body of late Dhruba Kanti Gupta had opined that
death of Dhruba Kanti Gupta was caused/occurred within 24 hours from
the time of conducting post mortem examination. It is a general rule that
when a post mortem examination is done over the dead body of a human
being in connection with a police case, no final death certificate is issued
in favour of the family members of the deceased rather a provisional
death certificate is issued to the relatives of the deceased only for the
purpose of cremation of the dead body but in this case she has proved one
death certificate of Dhruba Kanti Gupta (Exhibit-2) which mentioned the
place of death of deceased Dhruba Kanti Gupta at Dharmanagar Hospital
whereas in her examination-in-chief has specifically mentioned that on
12-03-2012 AD Dhruba Kanti Gupta was died in his own residence at
Office Road, Dharmanagar, North Tripura which ultimately confirmed by
the testimony of CW No.1, Sri Pradip Malakar that on 12-03-2012 no
death certificate vide No. 416 with registration No. 24 dated 12-03-2012
was issued from Dharmanagar District Hospital in respect of deceased
Dhruba Kanti Gupta whereas by submitting the concerned register of
death the CW No.1 has confirmed that the death certificate of Dhruba
Kanti Gupta which has been marked as Exhibit-2 as per identification of
the appellant is a forged document.
[31] The burden of proof of execution of a Will as also the
suspicious circumstances attached to execution of such Will always lies
on the propounder of the Will who has to prove the due execution of Will
and remove the suspicious circumstances from the mind of the court by
cogent and satisfactory evidence. The case of the appellant is that
deceased Dhruba Kanti Gupta during his lifetime had no good
relationship with his wife and children for which deceased Dhruba Kanti
Gupta used to reside at his own residence at Office road, Dharmanagar
alone for about 14/ 15 years from the date of execution of the Will and
that the respondent No.1 even did not allow her son and daughter to keep
any relation with their father Dhruba Kanti Gupta (now deceased). So,
from the story of the appellant itself it may safely be presumed that late
Dhruba Kanti Gupta had not been passing his days in a peaceful
condition. As between funeral fire and mental worry, it is the latter which
is more devastating, for, funeral fire burns only the dead body while the
mental worry burns the living one. This mental torment may become
acute when the person with such mental worry is going to take his life's
last big decision.
[32] From Exhibit-1 i.e. the registered Will of Dhruba Kanti
Gupta it is found that in the last part of the Will it has been mentioned
that only after death of testator Dhruba Kanti Gupta the said WILL would
be effective and before that the testator Dhruba Kanti Gupta shall have
right to cancel that Will at any time before his death. The aforesaid clause
in the registered Will of deceased Dhruba Kanti Gupta itself shows that at
the relevant time the testator Dhruba Kanti Gupta was in the condition of
mental instability i.e. why he was not sure whether he was going to take
correct decision or not regarding execution of the Will in question and
only for that reason he kept his right reserved in writing regarding
cancellation of the Will during his lifetime.
[33] On the other hand, being the executrix or trustee, the
appellant was very much aware about that clause of the last Will of
deceased Dhruba Kanti Gupta. Facing of unnatural death by the testator
Dhruba Kanti Gupta at his residence in the presence of the appellant and
subsequently obtaining a forged death certificate of deceased Dhruba
Kanti Gupta by the appellant, showing the place of death as District
Hospital, Dharmanagar itself raise some reasonable suspicion regarding
the genuineness of the Will (Exhibit-1).
[34] The procedure to resolve the inconsistency in a Will, latter
clause in the Will inconsistent with earlier clause and in such of
inconsistency the last intention of the testator is to be given effect,
therefore, the latter clause is held to prevail over the earlier clause of the
Will. In the present case testator Dhruba Kanti Gupta in the first part of
his Will had bequeathed his all movable and immovable properties
without giving details of the properties in favour of the appellant after
death of the testator Dhruba Kanti Gupta but, in the last part of the Will
he deserved his right alive for cancellation of the said Will at any point of
time during his lifetime.
[35] It is an undisputed fact that the deceased person is a
Government employee and he has bank accounts and service benefits
apart from the land, which is the subject matter of the said Will. If the
version of the appellant is to be believed that the deceased is alone and no
one has taken care and she is the only one, the deceased would have
made the beneficiary the appellant herein in respect of his movable and
immovable properties including all service benefits. But, nothing has
been indicated except, the landed property and thus, it creates an amount
of doubt in the mind of the Court and there is reasonable apprehension
that since the deceased was an old aged man following old aged ailments,
the appellant was looking after him, the so called maid might have
executed the Will under duress without any free will and consent of the
deceased. It is pertinent to mention herein that in respect of the claim of
the appellant, no one has been examined and there is also no witness to
support her claim. The judgment as placed by the learned counsel
appearing for the appellant has no relevance with the facts and
circumstances of the present case.
[36] In view of above, discussion and observation, the present
appeal stands dismissed consequently, the findings as observed by the
learned Court below stands affirmed. As a sequel, miscellaneous
applications pending, if any, shall stand closed. Send down the LCRs
forthwith.
JUDGE
A.Ghosh
Digitally signed by ANJAN
ANJAN GHOSH GHOSH
Date: 2023.06.03 18:33:02 +05'30'
