Sri Paresh Chakraborty vs Sri Arun Chakraborty
2023 Latest Caselaw 250 Tri

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                    HIGH COURT OF TRIPURA
                               AGARTALA
                            RSA No.17 of 2021

Sri Paresh Chakraborty
S/o of Lt. Rashmohan Chakraborty,
resident of Lalchari, P.O.- Balaram,
P.S.- Ambassa, District-Dhalai, Tripura,
presently residing at Kulai Thakurpalli,
P.O.-Kulai Bazar, P.S.- Ambassa,
District-Dhalai, Tripura;
                                                   ---Plaintiff-Appellant
                                  Versus
1. Sri Arun Chakraborty

2. Sri Prallad Chakraborty
   Both are sons of Lt. Rashmohan Chakraborty,
   resident of Netaji Nagar, P.O.- Kolai Bazar,
   P.S.- Ambassa, District- Dhalai, Tripura;

                                                 ---Defendant-Respondents

For the Appellant(s)             :         Mr. S. Lodh, Advocate
For the Respondent(s)            :         Mr. S. Bhattacharjee, Advocate
Date of hearing &
Delivery of Judgment & Order     :         28.03.2023

Whether fit for reporting        :         Yes


          HON'BLE MR. JUSTICE ARINDAM LODH

                    JUDGMENT & ORDER (ORAL)

This appeal is directed against the judgment and decree

dated 17.03.2021, passed by the learned District Judge, Dhalai

Judicial District, Ambassa in Title Appeal No.2 of 2019, reversing the

judgment and decree dated 14.02.2019, passed by the learned Civil

Judge (Sr. Division), Dhalai Judicial District, Ambassa in TS No.14 of

2018(re-numbered), arising out of TS No.27 of 2014.

2. Briefly stated, the plaintiff, Sri Paresh Chakraborty and

the defendants of the present suit are full-blooded brothers and they

are the sons of Lt. Joshoda Bala Chakraborty and Lt. Rash Mohan

Chakraborty. During her lifetime, Joshoda Bala Chakraborty had

executed a Will on 18.02.2000 in favour of the plaintiff. On

24.02.2002, Joshoda Bala Chakraborty died. After her death, the

defendants took over the possession of the suit land, which was a

paddy land. The plaintiff used to cultivate the suit land through his

tenants under two separate agreements. It is the case of the plaintiff

that he acquired right, title, interest over the suit land by dint of a Will

executed by his deceased mother, i.e., Lt. Joshoda. He also used to

possess the suit land even before the death as well as after death of his

mother and was enjoying usufructs out of the suit land, when suddenly

he was dispossessed by his two brothers, the defendants/respondents

nos.1 and 2 herein. So, the cause of action to institute the present suit

was his dispossession from the suit land where plaintiff had sought for

declaration of right, title, interest and recovery of possession of the

suit land.

2.1. In response to summons, the defendants appeared and

contested the suit by filing written statements. Thereafter, during the

course of trial, the following issues were framed:-

i. Whether the suit is maintainable in its present form and manner?

ii. Whether there is any cause of action for filing the suit? iii. Whether the plaintiff has right, title and interest over the suit land?

iv. Whether the plaintiff was dispossessed from the suit land illegally by the defendant?

v. Whether the plaintiff is entitled to get the decree as prayed for?

vi. To what other relief(s) plaintiff is entitled?

2.2. Evidences were adduced by the parties to the suit during

the course of trial. Relevant documents were adduced and brought on

record. Thereafter, having heard the arguments advanced by the

learned counsel appearing for the parties, the learned trial court

decreed the suit in favour of the plaintiff.

2.3 Feeling aggrieved, the defendants preferred first appeal

before the learned District Judge, Dhalai Judicial District, Ambassa.

Learned District Judge after hearing the defendant-appellants and the

plaintiff-respondent came to a finding that the executors of the Will

remained silent for a long time and they also did not bring the

existence of the registered Will of Lt. Joshoda Bala Chakraborty in

public, especially to the knowledge of the other survivors of Lt.

Joshoda Bala Chakraborty and thereby the said executors have failed

to discharge their duties and responsibilities and suspected the

genuinity of the Will. Accordingly, the learned District Judge set aside

and quashed the decree passed by the trial court.

2.4 Being aggrieved by and dissatisfied with the judgment

and decree passed by the first appellate court i.e. learned District

Judge, Dhalai Judicial District, Ambassa, the appellant (original

plaintiff of the suit) challenged the said reversal judgment and decree

by way of preferring the instant second appeal before this Court.

3. At the time of admission of this appeal, following

substantial questions of law were formulated by this Court:-

I. "Whether the first appellate court while reversing the judgment dated 14.02.2019 delivered in Title Suite No.14 of 2018 [re-registered No. from Title Suit No.27 of 2014] for its transfer from the court of the Civil Judge, Senior Division, Unakoti, Kailashahar for bifurcation of the judicial district] by the Civil Judge, Senior Division, Dhalai Judicial District, Ambassa was correct in observing that since the registered Will was executed by the testatrix by putting thumb impression on the Will, its presentation to the District Sub-Registrar for registration and execution cannot be held beyond suspicion? and II. Whether the first appellate court while reversing the judgment of the trial court has mis-read the fact, as not challenged by the defendants, as regards the

disclosure of execution of the Will by the mother of the parties namely, Yashoda Bala Chakraborty?"

4. I have heard Mr. S. Lodh, learned counsel appearing for

the plaintiff-appellant and Mr. S. Bhattacharjee, learned counsel

appearing for the defendant-respondents.

5. Mr. Lodh, learned counsel has submitted that by dint of

Will dated 18.02.2000, the plaintiff-appellant became the owner and

possessor of the suit land, but, his brothers i.e. the defendant-

respondents had taken over the possession over the suit land on the

pretext that they are also the shareholders of the property left behind

by their mother and they denied the existence of any Will. However,

the defendant-respondents had averred that even if there was/is any

Will, it was not a genuine one and there are serious suspicious

circumstances because their mother was suffering from chronic

arthritis for several years.

6. Mr. Bhattacharjee, learned counsel for the defendants-

respondents has drawn my attention to the cross-examination, which

according to him, is the admission on the part of the plaintiff-appellant

that the defendant-respondents also used to reside in the same mess

along with him during the lifetime of their mother and have also

looked after their mother.

7. On the aforesaid background, I have carefully gone

through the evidence adduced by the parties to the suit. Besides the

plaintiff-appellant, the attesting witnesses (PW-3 and PW-5) as well

as the scribe (PW-2) had adduced their evidences.

8. It is settled proposition of law that while deciding the

genuinity and propriety of a Will, the Court is to look upon its

execution part and the subsequent registration, if any. From the

evidences of PW3 and PW5, the two attesting witnesses have

categorically deposed that Lt. Joshoda Bala Chakraborty was fully

conscious when the Will was executed, though, her hands were

trembling due to arthritis and for that reason, she put her thumb

impression on the Will. They have also categorically deposed that on

her dictation, the Will was written by PW2, the scribe. It was read

over to her and she understood the contents of the Will and having

satisfied with the contents of the Will, she put her thumb impression

on the Will in front of them. Thereafter, on her request, PW3 and

PW5 put their respective signatures as attesting witnesses on the Will.

PW2, the scribe in clear terms has deposed that Jashoda

Bala Chakraborty herself approached him expressing her willingness

to execute a Will in favour of the plaintiff. Accordingly, he had

written the Will. He further deposed that at the time of execution of

the Will she was free and in sound disposing mind and further, Lt.

Joshoda Bala Chakraborty was in a perfect position to understand the

contents of the Will. The contents being written according to her wish,

it was read over to her and after being satisfied, she put her thumb

impression on the Will as her hands were trembling due to arthritis. At

her request, two neighbouring witnesses were along present during the

process of execution who put their respective signatures on the Will as

attesting witnesses after the thumb impression was put by Lt. Jashoda

following her request.

9. After meticulous perusal of the evidence on record, I am

of the firm opinion that the Will has been executed in terms of Section

68 of the Evidence Act and the essentialities of Section 63(c) of

Indian Succession Act, 1925 have been fulfilled.

9.1 It is also proved that Joshoda Bala Chakraborty herself

presented the Will before the Sub-Registrar, and it was registered in

accordance with law. So, this Court can unhesitantly arrive at a

finding that the Will has been proved in accordance with the

requirements of law, and the factors required to draw suspicious

circumstances are wholly absent rendering the judgment and decree of

the first appellate court perverse.

10. In the opinion of this Court, when the Will is registered

and the plaintiff have been able to prove the execution of questioned

Will coupled with the fact that the attesting witnesses appearing

before Court adduce evidence as per essentialities of Section 68 of the

Evidence Act and Section 63(c) of the Indian Succession Act, 1925,

then, mere non-disclosure of the fact of execution of Will by the

executors or the beneficiary of the Will to other legal heirs, that is,

non-beneficiaries to the Will, shall not alone constitute a suspicious

circumstance to suspect and throw out the Will, through which the

testator had expressed his/her last desire. (emphasis is supplied)

11. Resultantly, the plaintiff became the absolute owner of

the suit land by dint of the Will. It is the settled legal position of law

that possession follows title. Since the title of the plaintiff is proved,

he is definitely entitled to remain in possession of the suit land and the

defendants having no title over the suit land are liable to vacate their

respective possession over the suit land in favour of the plaintiff.

12. Accordingly, the judgment and decree passed by the first

Appellate Court stand set aside and quashed. The judgment and

decree passed by the Ld. Civil Judge (Senior Division), Dhalai

Judicial District, Ambassa is hereby restored. The defendants are

directed to vacate the possession of the land in favour of the plaintiff

as early as possible.

In the light of above observations and directions, the

instant second appeal stands allowed and disposed.

JUDGE

Rohit