Tripura High Court
Smt. Alpana Bhattacharjee (Choudhury) ... vs Sri Sankar Choudhury on 25 March, 2025
HIGH COURT OF TRIPURA
AGARTALA
RFA No.1 of 2025
1. Smt. Alpana Bhattacharjee (Choudhury) - 56 years,
W/O Lt. Subhash Choudhury
2. Sri Shubhradeep Choudhury - 20 years
S/O Lt. Subhash Choudhury
Both residents of Durai Sibbari,
PS Kamalpur, District- Dhalai,
Tripura, PIN 799287.
------ Plaintiff-Appellants
Versus
1. Sri Sankar Choudhury
S/O Lt. Sachindra Choudhury
Resident of Durai Sibbari
C/O Sweetmeat Shop of Lt. Aghore Das,
Halhali Bazar, PS Kamalpur, District-Dhalai,
Tripura, PIN 799286
2. Smt. Sudipta Choudhury,
W/O Sri Satyajit Ghosh
D/O Lt. Samir Choudhury
Resident of South Manik Bhandar,
near Netaji Club, PS Kamalpur,
District Dhalai, Tripura, PIN-799287
------ Defendant-Respondents
For Appellant(s) : Mr. Dipak Deb, Adv.
For Respondent(s) : Mr. Samarjit Bhattacharjee, Adv,
Date of hearing : 10.03.2025
Date of delivery of
Judgment & Order : 25.03.2025
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This first appeal is preferred challenging the judgment dated
24.09.2024 and decree dated 04.10.2024 delivered by Learned Civil
Judge (Senior Division), Dhalai District, Ambassa [camp at Kamalpur]
in connection with case No.TS(Partition) No.1 of 2022.
Page 2 of 28
2. Heard Learned Counsel Mr. Dipak Deb appearing on behalf of
the appellant and also heard Learned Counsel, Mr. Samarjit
Bhattacharjee appearing on behalf of the contesting respondent-
defendants.
3. Before deciding the merit of the appeal let us highlight the
subject matter of the dispute for which the suit was preferred. The
present appellant filed the suit for partition of the suit land measuring
0.33 acres recorded in Khatian No.798 under Mouja and TK Halhali,
PS-Kamalpur, District-Dhalai and also for cancellation of two nos. of
registered Wills bearing nos.III-64 and III-65, dated 17.07.2020.
According to the appellant-plaintiff, she is the wife of one Subhash
Choudhury (since dead) and mother of plaintiff No.2 being minor
represented by her mother. The defendant No.1 of the original suit
Sankar Choudhury is the full blooded brother of said Subhash
Choudhury (since dead) and Samir Choudhury (since dead) was also
the full-blooded brother of late Subhash Choudhury and father of Smt.
Sudipta Choudhury (defendant No.2 of the original suit). Sephali
Chakraborty @ Sephali Choudhury, W/O Late Sachindra Choudhury
was the mother of Subhash Choudhury (since dead), Sankar
Choudhury and Samir Choudhury (since dead). Said Sephali
Chakraborty alias Choudhury was the owners in possession of land
measuring 0.33 acre as described in the plaint under old CS plot
No.174/p, Pb-441,175,174/p corresponding to Hal Plot Nos.283, 284,
285 of Khatian No.798 at Mouja-Halhali, Tehsil-Halhali, Revenue
Circle-Salema, Kamalpur. During his lifetime according to the
appellant, Subhash Choudhury (since dead) provided sufficient
Page 3 of 28
financial support to his mother Sephali Chakraborty alias Choudhury
for the development and construction of huts and structures on the
suit land. He also took the responsibility for taking care of defendant
No.2 following the untimely death of their parents in 2014. Subhash
Choudhury passed away on 30.04.2019 prior to his mother's death,
leaving behind his mother and the plaintiffs i.e. the appellants herein
as his legal heirs. Later on Sephali Chakraborty alias Choudhury also
passed away on 29.07.2020 leaving behind the plaintiffs now the
appellants herein and the respondent-defendants as her legal heirs.
Following the death of her mother-in-law, the plaintiff-appellant No.1
submitted a proposal to the defendants for equitable distribution of
the suit land. Defendant No.1 assured that upon obtaining the survival
certificate and other relevant documents, he would facilitate an
amicable partition of the suit property through the execution and
registration of a deed of partition and accordingly, the appellant No.1
was awaiting for the same. During the 1st week of March 2021, the
plaintiff No.1 again urged the defendant No.1 for amicable partition of
the suit land when the defendant No.1 expressed his displeasure and
also asserted that the plaintiffs have no rightful claim to the suit
property as the original owner i.e., Sephali Chakraborty alias
Choudhury had bequeathed the land to the defendants through two
separate registered Wills. Hearing the same, plaintiff No.1 made an
objection on 11.09.2020 to the Tehsildar Halhali T.K. for withholding
the mutation. After that, the plaintiff No.1 collected the certified copy
of those two Wills bearing No.III-64 and III-65 dated 17.07.2020
which were executed just few days before the demise of her mother-
Page 4 of 28
in-law. It was alleged that at the time of execution of Wills the
testatrix was more than 84 years and she was not mentally and
physically sound to execute such Wills. The appellant-plaintiffs on
going through the contents of those Wills became astonished to know
that there was no mention about the plaintiffs about their share over
the suit land. It was further submitted that those Wills were
manufactured by the defendants with a view to deprive the plaintiffs
from their ancestral property where the original owner earlier orally
made equitable partition of suit land amongst three sons. Hence, the
plaintiffs i.e. the appellants filed the suit for partition.
4. The suit was contested by the defendants now the
respondents herein. The defendant No.1 took the plea that he works
in a tea stall on daily basis and living his life in a hand-to-mouth
condition since his marriage. His improvised circumstances have
elicited profound affection and concern from late mother, the
testatrix, who cherished him deeply and remained anxious about his
well-being throughout her life. Defendant No.1 demonstrated
consistent care and attention towards his mother, who, in
consideration of securing her son's future executed a registered Will
bearing No.III-64 dated 17.07.2020 thereby bequeathing 0.12 acres
of land out of 0.33 acres of land to defendant No.1 which was
executed in presence of the witnesses with the full knowledge of all
parties including the plaintiffs i.e. the appellants herein.
It was the further case of defendant No.2 i.e. the respondent
No.2 herein that her mother died on 19.11.2008 and her father died
on 17.07.2013. Following the death of her parents, the testatrix took
Page 5 of 28
care of defendant No.2 and she was brought up and grown up under
the care and custody of testatrix. The defendant No.2 rendered
service towards her grand-mother i.e., the testatrix until her
marriage. As a result, the testatrix had a special love and affection for
her and accordingly, the testatrix executed another registered Will
bearing No.III-65 dated 17.07.2020 further bequeathing 0.12 acres
out of 0.33 acres of the suit land to the defendant No.2 which was
executed in presence of the witnesses and with the full knowledge of
all parties concerned, including the appellants herein. Moreover, the
plaintiffs have a null class of land measuring 0.04 acres of land
recorded in Khatian No.870 of Mouja and Tehshil-Halhali and plaintiff
No.1 has another land measuring 1.44 acres recorded in Khatian
No.473 of Mouja and TK-Halhali. Late Subhash Choudhury purchased
the said land measuring 0.04 acre after receiving financial assistance
from the testatrix and the same was inherited by both the plaintiffs
after the death of Subhash Choudhury. The plaintiff No.1 purchased
the land measuring 1.44 acres after receiving financial assistance
from the testatrix. It was further submitted that both the Wills in
question were written by Dibakar Roy at the request of and as per the
version of the testatrix and after going through the contents of the
Wills and being satisfied, the testatrix put her signature in presence of
the witnesses and the witnesses also signed in her presence.
Thereafter, deed writer Dibakar Roy presented those Wills for
registration before the Sub-Registrar Office Kamalpur on 17.07.2020
and the Sub-Registrar after verifying the documents and examining
the testatrix registered those Wills as per law and the testatrix
Page 6 of 28
executed the said Wills without being influenced by any one and she
was in good health and sound mind at the time of executing those
Wills. Sri Arun Singh S/O late Tanu Singh of Kamalpur Town and one
Sri Tarini Debbarma S/O Late Raj Mohan Debbarma of Vill-
Chotosurma were present and signed as attesting witnesses of the
aforesaid Wills and both the Wills are valid and proper. Hence, the
contesting defendants i.e. the respondents herein by their written
statement prayed for dismissal of the suit for partition with costs.
5. Upon the pleading of the parties, following issues were
framed by the Learned Trial Court below:
ISSUES
i) Whether the suit is maintainable in its present
form and nature?
ii) Whether there is any valid reason for
cancellation of 2 registered WILLS bearing
No.III-64 & III-65 dt.17.07.2020 as claimed
by the plaintiffs?
iii) Whether the description of the suit land is
proper?
iv) What should be the quantum of share of the
plaintiffs and the defendants in the suit
property?
v) Is the plaintiffs are entitled to a decree for
partition as prayed for?
vi) Whether the plaintiffs are entitled to any relief
or reliefs as claimed by them?
To substantiate the issues, both the parties have adduced
their oral/documentary evidence on record in support of their
respective contentions. For the sake of convenience, the name of the
witness of the parties and their exhibited documents are mentioned
herein below:
Plaintiff's witness:
i) PW-1: Smt. Alpana Bhattacharjee
(Choudhury),
ii) PW-2: Sri Chandra Mohan Saha
iii) PW-3: Sri Benu Malakar
Defendant's witness:
Page 7 of 28
i) DW-1: Smt. Sudipta Choudhury
ii) DW-2: Sri Subhash Chandra Das
iii) DW-3: Sri Dibakar Roy
iv) DW-4: Sri Arun Singha
Plaintiff's Exhibits:
i) Exbt.-1: Certified true copy of Khatian vide
no.798 of Mouja Halahali in the name of
Shefali Chakraborty @ Choudhury;
ii) Exbt.-2: Certified true copy of the WILL vide
no.III-64 dated 17.07.2020 in three sheets,
as a whole (SO);
iii) Exbt.-3: Certified true copy of the WILL vide
no.III-65 dated 17.07.2020 in three sheets,
as a whole (SO);
iv) Exbt.-4: Received copy of objection dated
11.09.2020 address to the Tehshilder,
Halahali T.K. in one sheet (SO);
v) Exbt.-5: Death certificate of Late Shubash
Choudhury (compared with the original);
vi) Exbt.-6: Survival certificate of Late Subhash
Choudhury (compared with the original);
vii) Exbt.-7: Photocopy of death certificate of
Late Shefali Choudhury dated 06.08.2020, on
admission by the defendants.
Defendant Exhibits:
i) Exbt.-A: Original copy of registered WILL
bearing no.III-64 dt. 17.07.2020 containing
02 pages, as a whole;
ii) Exbt.-A/1: Signature of DW-3 on Exhibit-A,
on identification;
iii) Exbt.-A/2: Signature of DW-4 on Exhibit-A,
on identification;
iv) Exbt.-A/3, A/4, A/5 & A/6: Signatures of
Sephali Chakraborty @ Sephali Choudhury on
Exhibit-A, on identification;
v) Exbt.-B: Original copy of registered WILL
bearing No.III-65 dt.17.07.2020 containing
02 pages, as a whole;
vi) Exbt.-B/1: Signature of DW-3 on Exhibit-B,
on identification;
vii) Exbt.-B/2: Signature of DW-4 on Exhibit-B,
on identification;
viii) Exbt.-B/3, B/4, B/5 & B/6: Signatures of
Sephali Chakraborty @ Sephali Choudhury on
Exhibit-B, on identification;
ix) Exbt.C: Certified copy of Khatian bearing
no.798 of Mouja and Tahshil-Halahali,
Revenue Circle-Salema in the name of
Sephali Chakraborty @ Sephali Choudhury
containing 02 pages, as a whole;
x) Exbt.-D: Certified copy of Khatian bearing
No.473 of Mouja and Tahshil-Halahali,
Revenue Circle-Salema in the name of
plaintiff no.1, Smt. Alpana Bhattacharjee
Page 8 of 28
(Choudhury) containing 02 pages, as a
whole; and
xi) Exbt.-E: Certified copy of Khatian bearing
no.870 of Mouja and Tahshil-Halahali,
Revenue Circle-Salema in the name of
plaintiffs containing 01 page.
Finally, on conclusion of trial, Learned Trial Court below by
the judgment dated 24.09.2024 dismissed the suit with the following
observation:
ORDER
15. In the result, the suit of the plaintiffs is
dismissed with cost.
16. Let a decree be drawn accordingly within 15 days
from today.
17. The suit is disposed of contest.
Challenging that judgment, this present appeal is preferred
before this Court.
6. At the time of hearing, Learned Counsel for the appellant
drawn the attention of the Court that the judgment of the Learned
Court below suffers from infirmities and the same is perverse.
According to Learned Counsel for the appellant, Learned Court below
failed to appreciate the oral evidence on record because the testatrix
was more than 84 years old at the time of alleged execution of WILLs
and she was not in sound state of mind, so those purported WILLs
suffers from full of suspicion, but the Learned Court below failed to
appreciate the evidence on record properly and dismissed the suit for
partition. It was further submitted by the Learned Counsel for the
appellants that the evidence on record could not be properly
appreciated by Learned Court below and the disputed Wills were not
proved before the Learned Court below by the contesting respondents
in accordance with law. Hence Learned Counsel urged for interference
of this appeal by setting aside the judgment and decree and also to
cancel the two registered Wills. In support of his contention, Learned
Counsel also referred the written statement filed by the contesting
respondent-defendants wherein in para No.24(j), they have asserted
that Sephali Chakraborty handed over possession of the land to them
bequeathed by the Wills on 17.07.2022 which was nothing but a
concocted story because said Sephali Chakraborty expired on
29.07.2020. So, the story as projected by the contesting respondent-
defendants cannot be accepted and the execution of Wills were made
full of suspicion. So, the purported Wills are liable to be cancelled but
the Learned Trial Court without appreciating the evidence on record
dismissed the suit for which the interference of the Court is required.
7. Per contra, Learned Counsel for the contesting respondent-
defendants Mr. Samarjit Bhattacharjee taking part in the hearing
submitted that the suit was not maintainable as because the testatrix
Sephali Chakraborty @ Choudhury during her lifetime through Exhibit-
A and B bequeathed land measuring 0.24 acres in respect of
respondent Nos.1 and 2 out of land measuring 0.33 acres and those
Exhibit-A and B were duly and lawfully executed by the testatrix and
the present respondent-defendants have successfully proved those
documents before the Learned Trial Court in accordance with law. So,
Learned Trial Court based on the evidence on record rightly and
reasonably dismissed the suit for partition and there is no illegality or
infirmity in the judgment delivered by Learned Trial Court below.
Learned Counsel further submitted that the contesting defendants in
their written statement and evidence specifically asserted that the
appellants got some other land i.e. land measuring 0.04 acres which
is recorded in Khatian No.870 under Mouja and Tehshil-Halhali and
also have got land measuring 1.44 acres which also has been
recorded in Khatian No.473 under Mouja and Tehsil-Halhali and both
the lands were purchased with the financial support of the deceased
testatrix. So, it cannot be said that the appellant-plaintiffs were
deprived of and furthermore, since Exhibit-A and B were duly proved
and executed by the testatrix. So, the present appellants have failed
to show that those were made under suspicious circumstances and
the present respondents have duly complied with the provision of
Section 63 of Succession Act. According to Learned Counsel, Learned
Court below rightly delivered the judgment dismissing the suit of the
plaintiffs i.e. the appellants herein. Learned Counsel further submitted
that after bequeathing of 0.24 acres of land out of 0.33 acres of land,
still 0.09 acres of land is left which may be partitioned amongst the
legal heirs and the present respondent-defendants shall have no
objection if the said quantum of land is partitioned amongst the heirs
and urged for dismissal of this appeal with costs.
Learned Counsel for the respondents referred one citation of
the Hon'ble Supreme Court of India in Civil Appeal No.13192 of
2024 dated 02.01.2025 reported in (2025) 2 SCC 804 [titled as
Gopal Krishan and others V. Daulat Ram and others] wherein
Hon'ble the Apex Court observed as under:
"Impugned in this appeal is the judgment and order
of the Punjab and Haryana High Court in Daulat Ram
v. Gopal Krishan dated 26-3-2018 whereby it has
been held that the will, subject-matter of
controversy, allegedly of one Sanjhi Ram, had not
been proved, thereby finding that the lower
appellate court had erred in holding otherwise. The
said lower appellate court had set aside the decree
of the civil court which had found that the will and
the subsequent mutation of the properties
enumerated therein was bad in law, as the will was
"illegal", "null" and "void". The question that falls for
our consideration is:
"What do the words "by the direction of the
testator" as they appear in Section 63(c) of
the Succession Act, 1925 mean? Is the term to
be interpreted liberally or strictly?
Consequently, was the High Court correct in
holding, in agreement with the civil court, that
the will, subject-matter of dispute, stood not
proved?"
2. Facts, shorn of unnecessary details, as they
appear from the record are as follows:
3. Sanjhi Ram ("testator"), was the owner of 1/4th
share of land measuring 40 canals, 3 marlas,
comprised in Khewat No. 7. Khatauni No. 9, Rett No.
9, Kila No. 9/8 situated in the revenue estate of
Village Umarpura, Khurd, Tehsil and District
Gurdaspur, Punjab. His share in the aforesaid
property was to the extent of 10 canals and 1 marla
("the suit property").
4. The testator had no children and resided with his
nephew Gopal Krishan (hereafter "Appellant 1"). He
executed a will on 7-11-2005 and passed away the
next day on 8-11-2005. The death certificate issued
by the competent authority is dated 19-11-2005.
5. Having received the property by virtue of the
aforesaid will, the appellant transferred the same in
favour of his four sons viz. Ravinder Kumar; Rajinder
Kumar; Satish Kumar and Roop Lal vide sale deed
dated 16-1-2006. The said property was sold jointly
for a sum of Rs 98,000 to Madhu Sharma and Meena
Kumari, vide sale deed dated 3-2-2006.
6. Respondents 1 to 7 herein filed a suit bearing No.
282 of 2006 before the civil court, seeking
declaration to the effect inter alia: (i) that the
plaintiffs (respondents herein) were the owners of
Sanjhi Ram's 1/4th share; (ii) that the will dated 7-
11-2005 was forged and fabricated; and (iii) that the
mutation carried out subsequent to the execution of
such a will is illegal and not binding on the plaintiffs.
7. By way of written statement dated 24-4-2006 the
contentions made in the plaint were denied.
8. The trial court framed seven issues primarily
pertaining to: (a) validity of the will subject-matter
of the present lis; (b) whether the plaintiffs are
estopped by their act and conduct from filing the
suit; and (c) whether the plaintiffs have the locus
standi to file the suit and whether the same is
maintainable, within limitation and filed with
sufficient court fees, being affixed thereto.
9. Of primary importance to the present adjudication
are the findings qua Issue 1. The relevant extracts
from the judgment of the civil court are as below:
"10. On going through the file I find it has
been admitted by the witnesses of the
defendants that Sanjhi Ram remained ill. The
claim of the plaintiffs is that he died on 7-11-
2005 and the claim of the defendants that he
died on 8-11-2005. The defendants did not
bring the death certificate of Shri Sanjhi Ram
on the file and thus failed to rebut the
contention of the plaintiffs. The visit of Sanjhi
Ram at Tehsil Gurdaspur on 7-11-2005 and
then executing the will on the said day without
any registration of the same and adjustment
of lines on the page in the lower portion and
further adjusting the seal by the scribe in the
left margin and further the place the thumb
mark alleged to be of Sanjhi Ram make the
will suspicious which cannot be relied on."
10. On appeal the lower appellate court relied on a
judgment returned by a Division Bench of the High
Court of Judicature at Allahabad and one judgment
of the Rajasthan High Court to hold that even if the
testator was ill, so long as his mental faculties were
not affected, no inference could be drawn that he
was not of sound state of mind or that he could not
execute a will. In the facts of the instant case, it was
observed that nowhere did the case record reflect
that Sanjhi Ram's mental faculties were in any way
questionable nor was he disoriented or affected by
illness. In regard to other observations of the civil
court reproduced (supra) the lower appellate court
held as under:
"16. As noted above, the learned lower court
had found the will Ext.D-1 suspicious also for
the reason that the spacing in between last
lines in this will was narrower than the space
available between lines in remaining upper
part of this will. In this context the learned
counsel for the appellants has relied upon
Bahadur Singh v. Pooran Singh:2011 SCC
OnLine Raj 2225 which applies to the facts of
the case in hand. Vide it the Hon'ble High
Court categorically observed that merely
because the spacing of last two-three lines is
less than the earlier lines it cannot be said
that the will is not genuine. To accommodate
writing in one page, sometimes last lines are
written closely and therefore such
circumstances should not be considered as
adverse circumstances. In the case in hand
also will Ext. P-1 is on a single page.
Moreover, the lines on more than two-third of
this page have equal spacing between them. It
is in the last 1/3rd part of the page of will that
spacing goes on narrowing. When the will is
on a single page only narrowing of space
towards end of the writing has to be taken as
a natural phenomenon."
Having observed as above, the will was held to be
valid and genuine, so also it was held that the
consequent sale deeds cannot be held invalid. The
judgment of the lower court was set aside.
11. In second appeal the High Court found that:
11.1. The reduction of space while concluding the
will had "totally escaped the notice of the court's
below", and that this was a glaring illegality and
perversity. The attesting witness, Janak Raj (DW 1)
had not stated in his examination that his thumb
print had been appended to the will upon the
direction of the testator which is a requirement in
law. For such a conclusion, reliance was placed on
Janki Narayan Bhoir v. Narayan Namdeo Kadam
:(2003) 2 SCC 91 and the judgment of the Division
Bench of the High Court titled Kanwaljeet Kaur v.
Joginder Singh Badwal:(2016) SCC OnLine P&H
19877.
11.2. Placing reliance on the Constitution Bench
judgment of this Court in Pankajakshi v.
Chandrika:(2016) 6 SCC 157, the Court without
framing substantial questions of law set aside the
judgment of the lower appellate court. The appeal
preferred by the present respondents was thus
allowed.
12. Having traversed the courts below as aforesaid,
the dispute stands before us. We have heard the
learned counsel for the parties.
13. Section 63 of the Succession Act, 1925 runs thus:
"63. Execution of unprivileged wills.-Every
testator, not being a soldier employed in an
expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner
at sea, shall execute his will according to the
following rules-
(a) The testator shall sign or shall affix
his marks to the will, or it shall be
signed by some other person in his
presence and by his direction.
(b) The signature or mark of the
testator, or the signature of the person
signing for him, shall be so placed that
it shall appear that it was intended
thereby to give effect to the writing as a
will.
(c) The will shall be attested by two or
more witnesses, each of whom has seen
the testator sign or affix his mark to the
will or has seen some other person sign
the will, in the presence and by the
direction of the testator, or has received
from the testator a personal
acknowledgment of his signature or
mark, or of the signature of such other
person; and each of the witnesses shall
sign the will in the presence of the
testator, but it shall not be necessary
that more than one witness be present
at the same time, and no particular form
of attestation shall be necessary."
(emphasis supplied)
14. As seen above, Section 63(c) enumerates five
distinct situations:
A is the testator of the will in question. B and C have
signed the will. For B and C to qualify as attestors;
Situation 1
Each of them has to have seen A sign the will
or put his mark on it;
'OR'
Situation 2
They should have seen some other person,
let's say D sign the will in the presence of and
on the direction of A:
'OR'
Situation 3
They ought to have received a personal
acknowledgment from A to the effect that A
had signed the will or has affixed his mark
thereon;
With the use of the conjunctive, "and" one further
stipulation has been provided:
B, C, D or any other witness is required to sign
the will in the presence of A however it is not
necessitated that more than one witness be
present at the same time.
The statutory language also clarifies that B and C,
the attestors, are not required to follow any
particular prescribed format.
15. The requisites for proving of a will are well
established. They were recently reiterated in a
judgment of this Court in Meena Pradhan v. Kamla
Pradhan:(2023) 9 SCC 734. See also Shivakumar v.
Sharanabasappa:(2021) 11 SCC 277. The principles
as summarised by the former are reproduced as
below: (Meena Pradhan case:(2023) 9 SCC 734, SCC
pp. 737-38, para 10)
"10.... 10.1. The court has to consider two
aspects: firstly, that the will is executed by the
testator, and secondly, that it was the last will
executed by him;
10.2. It is not required to be proved with
mathematical accuracy, but the test of
satisfaction of the prudent mind has to be
applied.
10.3. A will is required to fulfil all the
formalities required under Section 63 of the
Succession Act, that is to say:
(a) The testator shall sign or affix his
mark to the will or it shall be signed by
some other person in his presence and
by his direction and the said signature
or affixation shall show that it was
intended to give effect to the writing as
a will;
(b) It is mandatory to get it attested by
two or more witnesses, though no
particular form of attestation is
necessary;
(c) Each of the attesting witnesses must
have seen the testator sign or affix his
mark to the will or has seen some other
person sign the will, in the presence and
by the direction of the testator, or has
received from the testator a personal
acknowledgment of such signatures;
(d) Each of the attesting witnesses shall
sign the will in the presence of the
testator, however, the presence of all
witnesses at the same time is not
required;
10.4. For the purpose of proving the execution
of the will, at least one of the attesting
witnesses, who is alive, subject to the process
of court, and capable of giving evidence, shall
be examined;
10.5. The attesting witness should speak not
only about the testator's signatures but also
that each of the witnesses had signed the will
in the presence of the testator;
10.6. If one attesting witness can prove the
execution of the will, the examination of other
attesting witnesses can be dispensed with;
10.7. Where one attesting witness examined
to prove the will fails to prove its due
execution, then the other available attesting
witness has to be called to supplement his
evidence;
10.8. Whenever there exists any suspicion as
to the execution of the will, it is the
responsibility of the propounder to remove all
legitimate suspicions before it can be accepted
as the testator's last will. In such cases, the
initial onus on the propounder becomes
heavier;
10.9. The test of judicial conscience has been
evolved for dealing with those cases where the
execution of the will is surrounded by
suspicious circumstances. It requires to
consider factors such as awareness of the
testator as to the content as well as the
consequences, nature and effect of the
dispositions in the will; sound, certain and
disposing state of mind and memory of the
testator at the time of execution; testator
executed the will while acting on his own free
will;
10.10. One who alleges fraud, fabrication,
undue influence et cetera has to prove the
same. However, even in the absence of such
allegations, if there are circumstances giving
rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious
circumstances by giving a cogent and
convincing explanation;
10.11. Suspicious circumstances must be
"real, germane and valid" and not merely "the
fantasy of the doubting mind [Shivakumar v.
Sharanabasappa:(2021) 11 SCC 277]".
Whether a particular feature would qualify as
"suspicious" would depend on the facts and
circumstances of each case. Any circumstance
raising suspicion legitimate in nature would
qualify as a suspicious circumstance, for
example, 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 benefit, etc."
16. This case raises the question whether the third
requirement under Section 63 of the Act stands met
in the present case particularly as to the contours of
the meaning of the phrase "direction of the testator".
17. The word "direction", as discussed in the
Cambridge Dictionary, can be employed in various
contexts: (a) giving instructions to someone to find a
particular place or location; (b) looking to an area or
position where someone is placed; (c) a sense of
direction i.e. the ability to find or locate a particular
place; (d) control or instruction; and (e) information
or orders telling somebody how or what to do.
18. The present case concerns (d) and/or (e) as
above. The view taken by the High Court is that the
attesting witness, in his deposition, did not state that
the act of affixing his thumb impression on the will
subject-matter of dispute was at the direction of the
testator and, therefore, the requirement stipulated
under Section 63 of the Act was not met.
19. The abovesaid conclusion of the High Court is
based on the testimony of Janak Raj, who is DW 1.
His testimony reads as under:
"1. That I know both the parties. I also knew
Sanjhi Ram, Son of Shri Tulsi Ram, who was a
resident of our Village. He was residing at
Gopal Krishan. Sanjhi Ram died issueless. His
wife predeceased him. Gopal Krishan used to
serve deceased Sanjhi Ram and was looking
after him. Shri Sanjhi Ram who was real uncle
of Gopal Krishan, while possessed of sound
disposing mind, executed a valid will on 7-1-
2005 in favour of Gopal Krishan. I have seen
the original will which bears my thumb
impression. The will is Ext. D-1. The same was
scribed by the Deed Writer at the instance of
Shri Sanjhi Ram. He further scribing the same,
read over and explained the contents of the
will Ext. D-1. Shri Sanjhi Ram after admitting
the contents of the will, appended his thumb
impression in my presence and as well as in
the presence of other attesting witness Shri
Tarsem Lal and thereafter 1 and other
attesting witness put my thumb impression
and signature, respectively. On the basis of
will Ext. D-1 Shri Gopal Krishan defendant is
owner in possession of the land of Shri Sanjhi
Ram. The plaintiffs have got no right, title or
interest in the land let by Shri Sanjhi Ram...."
(emphasis supplied)
20. The language of Section 63(c) of the Act uses the
word 'OR'. It states that each will shall be attested
by two or more witnesses who have seen the
testator sign or affix his mark on the will 'OR' has
seen some other persons sign the will in the
presence and by the direction of the testator 'OR' has
received a personal acknowledgment from the
testator of his signature or mark, etc. What flows
therefrom is that the witnesses who have attested
the will ought to have seen the testator sign or attest
his mark 'OR' have seen some other persons sign the
will in the presence of and on the direction of the
testator. The judgment relied on by the learned
Single Judge in the impugned judgment Daulat Ram
v. Gopal Krishan:2018 SCC OnLine P&H 8352 i.e.
Kanwaljeet Kaur:2016 SCC OnLine P&H 19877 holds
that the deposition of the attesting witness in the
said case had not deposed in accordance with
Section 63(c) of the Act, where two persons had
undoubtedly attested the will, but the aspect of the
"direction of the testator" was absent from such
deposition.
21. In the considered view of this Court, the learned
Single Judge fell in error in arriving at such a finding
for the words used in the section, which already
stands extracted earlier, read- "or has seen some
other person sign the will, in the presence and by the
direction of the testator, or has received from the
testator a...". That being the case, there is no reason
why the "or" employed therein, should be read as
"and". After all, it is well-settled that one should not
read "and" as "or" or vice-versa unless one is
obliged to do so by discernible legislative intent.
Justice G.P. Singh's treatise, Principles of Statutory
Interpretation tells us that the word "or" is normally
disjunctive while the word "and" is normally
conjunctive. Further, it is equally well-settled as a
proposition of law that the ordinary, grammatical
meaning displayed by the words of the statute
should be given effect to unless the same leads to
ambiguity, uncertainty or absurdity. None of these
requirements, to read a word is which is normally
disjunctive, as conjunctive herein, are present.
22. In the present case the testimony of DW 1 is
clear that he had seen the deceased affix his mark on
the will. That alone would ensure compliance of
Section 63(c). The part of the section that employs
the term "direction" would come into play only when
the attestor to the will would have to see some other
person signing the will. Such signing would explicitly
have to be in the presence and upon the direction of
the testator.
23. The requirement of law while undoubtedly
present, was not of concern in the instant dispute.
On that count, we find the High Court to have erred
in law. As such the impugned judgment, Daulat Ram:
2018 SCC OnLine P&H 8352 of the High Court with
the particulars as described in para 1 is set aside.
The judgment of the first appellate court stands
restored. Consequently, the will of Sanjhi Ram is
valid and so are the subsequent sale deeds executed
by Gopal Krishan.
24. The appeal is allowed in the aforesaid terms.
Pending application(s) if any shall stand disposed
of."
Also referred another citation of Hon'ble Supreme Court
reported in 2022 SCC 381 [titled as Swarnalatha and others v.
Kalavathy and others dated 30.03.2022] wherein in para Nos.21,
24, 25, Hon'ble the Apex Court observed as under:
"21. When it was not even the case of the
respondents that the testators were not in a sound
and disposing state of mind, the High Court fault
with the appellants for not disclosing the nature of
the ailments suffered by them. The exclusion of one
of the natural heirs from the bequest, cannot by
itself be a ground to hold that there are suspicious
circumstances. The reasons given in Exhibit P-1 are
more than convincing to show that the exclusion of
the daughter has happened in a very natural way. If
Exhibit P-1 (Will) had been fabricated on blank
papers containing the signatures of the mother,
there would have been no occasion for the father to
make a mention in his own Will (Exhibit P-2) about
the execution of the Will by the mother.
24. The High Court made a mountain out of a
molehill, by reading too much into the lack of
knowledge on the part of appellant No. 1 about the
time of registration of Exhibit P-2 (Will) and the
minor contradictions between her statement as PW-1
and the statements of PWs 4 and 5. The adverse
inference sought to be drawn by the High Court
about the failure of the testator Mannar Reddiar to
ensure the presence of the daughter and the second
daughter-in-law at the time of execution of Exhibit P-
2, has no basis in law.
25. The law relating to suspicious circumstances
surrounding the execution of a Will is already well-
settled and it needs no reiteration. It is enough if we
make a reference to one of the recent decisions of
this Court in Kavita Kanwar v. Mrs. Pamela Mehta
where this Court referred to almost all previous
decisions right from H. Venkatachala Iyengar v. B.N.
Thimmajamma. But cases in which a suspicion is
created are essentially those where either the
signature of the testator is disputed or the mental
capacity of the testator is questioned. This can be
seen from the fact that almost all previous decisions
of this Court referred to in Kavita Kanwar (supra) list
out circumstances, which in the context of the lack of
sound and disposing state of mind of the testator,
became suspicious circumstances. In the matter of
appreciating the genuineness of execution of a Will,
there is no place for the Court to see whether the
distribution made by the testator was fair and
equitable to all of his children. The Court does not
apply Article 14 to dispositions under a Will."
Referring the same, Learned Counsel for the respondent-
defendants submitted that since the respondent-defendants have able
to prove Exhibit-A and B and have been duly executed and registered
by the deceased testatrix and also the respondent-defendants have
duly proved the said Exhibits before the Learned Trial Court in
accordance with law and the present appellants have failed to show
any suspicious circumstances to cast any doubt upon Exhibit-A and B
as such, the Learned Trial Court below rightly and reasonably
dismissed the suit of the appellant-plaintiffs and as such, according to
Learned Counsel, there is no merit in the appeal and prayed for
dismissal of this appeal with costs.
8. I have heard both the sides at length and gone through the
record of the Learned Court below. After hearing both the sides, it
appears that in this appeal this Court is to decide the following point:
Whether the judgment and decree of the Learned
Court below suffers from any perversity or not?
Here, in this case as already stated Learned Trial Court in
total framed 7 nos. of issues and to substantiate the issues both the
parties have adduced their oral/documentary evidence on record as
already mentioned earlier. The purported Wills were duly proved and
marked as Exhibit-A and Exhibit-B. On perusal of Exhibit-A and
Exhibit-B, it appears that those were duly proved and executed by the
contesting respondents before the Learned Trial Court and the
attesting witnesses also proved the Will in accordance with Section 68
of the Indian Evidence Act including DW-3 i.e. Dibakar Roy, who
identified his signature on Exhibit-A and B as deed writer marked as
Exhibit-A1 and Exhibit-B1 and the contesting witness DW-2, Arun
Singh also identified his signature on Exhibit-A marked as Exhibit-A2
and also identified the signature of testatrix on Exhibit-A i.e. Will
No.III-64 dated 17.07.2020 which were marked as Exhibit-A3, A4, A5
and A6 and also identified his signature on Exhibit-B marked as
Exhibit-B2 as attesting witness and also identified the signature of
testatrix on Exhibit-B2 i.e. Will No.III-65 dated 17.07.2020 which
were marked as Exhibit-B3, B4, B5 and B6. Thus, it appears that
those Wills i.e. Exhibit-A and Exhibit-B were duly proved and
registered and those were duly proved by the respondent-defendants
before the Learned Trial Court during the trial of the suit. DW-3, deed
writer also in course of his cross-examination stated that he had
written the age of the testatrix as 84 years based on voter ID card
and Adhaar Card he had mentioned the age of the testatrix as 84
years. In this regard, I would like to refer herein below the relevant
provision of Section 63 of the Succession Act, 1925 which provides as
under:
63. Execution of unprivileged wills.- Every testator,
not being a soldier employed in an expedition or
engaged in actual warfare, or an airman so employed
or engaged, or a mariner at sea, shall execute his
will according to the following rules:
(a) The testator shall sign or shall affix his marks to
the will, or it shall be signed by some other person in
his presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so
placed that it shall appear that it was intended
thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more
witnesses, each of whom has seen the testator sign
or affix his mark to the will or has seen some other
person sign the will, in the presence and by the
direction of the testator, or has received from the
testator, or has received from the testator a personal
acknowledgement of his signature or mark, or of the
signature of such other person; and each of the
witnesses shall sign the will in the presence of the
testator, but it shall not be necessary that more than
one witness be present at the same time, and no
particular form of attestation shall be necessary.
Further, I would also like to refer herein below the relevant
provision of Section 68 of Indian Evidence Act which also provides as
under:
68. Proof of execution of document required by law
to be attested.- If a document is required by law to
be attested, it shall not be used as evidence until 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:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless
its execution by the person by whom it purports to
have been executed is specifically denied.
From the aforesaid provisions of law, it appears that Exhibit-A
and B were duly executed by the testatrix in favour of the contesting
respondent-defendants and the same were also duly proved by the
contesting respondent-defendants before the Learned Trial Court in
accordance with law and attesting witnesses also confirmed its
execution in accordance with law.
9. In course of hearing of arguments, Learned Counsel for the
appellants relied upon few citations. In (2014) 1 TLR 485 [titled as
Timir Baran Ghosh V. Dilip Kumar Ghosh and Ors. dated
09.12.2013], wherein in para Nos.23 and 24 this High Court
observed as under:
"23. On scrutiny of the will, this Court does not find
any ambiguity as regards the disposition but as
regards the exclusion of the legal heirs, no reason
has been narrated in the will, even why the
physically challenged daughter or the wife has been
excluded has not been explained or narrated. This
definitely has created a suspicious circumstance so
far the execution of the will is concerned and the
appellant could not remove that circumstance.
Moreover, what has appeared from the oral
testimonies of PWs 1, 2 and 3 that PWs 1, 2 and 3
are the close friends of PW-1, the propounder. It has
surfaced without any amount of doubt that PW-1 had
played a dominant role in execution of the will. That
has created a further suspicious circumstance which
could not be removed by the appellant. On the face
of denial of the respondent No.2 that he has attested
the questioned will, the appellant did not take any
step to prove his signature by the other means
saving the means of the oral evidence of PWs- 2 and
3. Apart that, the long time as elapsed for placing the
will for probate has created a definite suspicious
circumstance and the explanation as given that it
was for her mother, he did not place that will for
grant of probate is not acceptable. Long concealment
of the will from the legal heirs who had otherwise
been entitled to the share of the properties left by
the testator has generated further suspicion and the
appellant has failed to give an explanation to dispel
the circumstances.
24. On such aggregate consideration on the
touchstone of law as decided by the apex court, this
Court has no hesitation to hold that even if it is held
that the execution of the will has been proved but
the said execution is attended by those suspicious
circumstances and such suspicious circumstances
could not be removed by way of adequate evidence.
It is to be further noted that at the same time the
respondents have failed to prove that the said will is
manufactured or that their father did not sign over
the testament by adequate evidence. Even the
statement of OPW-2 for purpose of testamentary
state of mind cannot be wholly accepted in view of
his varying assertion in different parts of oral
testimony. Thus to prove the allegations as was with
the respondents has not been properly discharged.
Therefore, the contention that the will was not (sic)
executed or manufactured by the appellant is not
accepted by this Court. But since the appellant could
not eradicate completely those suspicious
circumstances as catalogued, the trial court has
committed no illegality in refusing to grant probate
of the will in question.
As corollary thereof, this appeal stands is
dismissed."
Learned Counsel further referred another citation of the
Hon'ble Apex Court reported in AIR 2020 SC 2614 [titled as Kavita
Kanwar v. Mrs. Pamela Mehta and others dated 19.05.2020]
wherein in para Nos.2, 21, 35 to 38, Hon'ble the Apex Court observed
as under:
"2. The prayer of the appellant for grant of probate
in relation to the Will in question has been declined
concurrently by the Trial Court and by the High Court
essentially after finding several unexplained
suspicious circumstances surrounding the Will in
question. Being aggrieved, the petitioner-appellant,
who was appointed as the executor of the Will in
question and who was, admittedly, the major
beneficiary thereunder, has preferred this appeal
while maintaining that execution of Will by the
testatrix with due compliance of all the requirements
of law has been clearly established on record and
there has not been any such suspicious circumstance
which might operate against the genuineness of the
Will in question.
21. We have bestowed anxious consideration to the
rival submissions with reference to the law
applicable and have also scanned through all the
records pertaining to this case, including the records
of the Trial Court and the High Court.
35. In our view, though the High Court has rightly
observed that even if this third page is assumed to
be existing, it does not remove the suspicious
circumstances but the High Court has stopped short
of going a little further and has not noticed that
volte-face of the appellant regarding this third page
tilts the preponderance of probabilities heavily,
rather conclusively, against her. Noteworthy it is
that the said third page has not been exhibited in
evidence. The flip-flops of the appellant regarding
this third page compels us to examine several of the
possibilities concerning other assets of the testatrix.
35.1. As noticed, the Will in question (Ex.PW1/H) is
drawn on two pages and is complete in itself and
does not leave any scope for any other codicil
concerning the estate of the deceased, particularly
when bequeath has been made not only of the
immovable property and the bank account but also
as regards the other assets of testatrix in the
residuary clause, which reads as under: -
"2. I also direct that in the event of my
acquiring any further movable or immovable
assets hereinafter or any other assets that I
may have forgotten to mention in the present
Will the same shall devolve upon my daughter
Mrs. Kavita Kanwar."
35.1.1. Now, from the evidence on record and from
the stand of the appellant, there is little to doubt that
there had been several other assets of the testatrix
apart from the said immovable property and the
bank account. By virtue of the aforesaid residuary
clause, all such other assets are bequeathed to the
appellant. In the given scenario, two serious
questions perforce acquire immediate attention. One
that while making the application seeking probate,
the appellant did not divulge all other assets which
were to come in her hands by virtue of the said
residuary clause of the Will in question. Secondly,
when there had not been any direction in the two
page Will in question for making payment to anyone
or parting with any movable to anyone, what had
been the reason for the appellant making payment to
different persons, including her own sons, the
daughter of the attesting witness and the daughter
of the respondent No. 1 apart from giving car to the
daughter of the respondent No. 1 and jewelleries to
the respondent No. 1 (as alleged in the written
submissions before the High Court). Both these
questions on the conduct of the appellant only
thicken the suspicious circumstances surrounding
the Will in question.
35.2. On the other hand, as soon as the possibility of
existence of such third page carrying the desire and
directions of the testatrix about distribution of her
other movable property is taken into account, the
document Ex. PW1/H loses all its worth because it
cannot be said the testatrix executed the same after
understanding the meaning and purport of its
contents. If she had the desire of distribution of
movable property in a different manner and to
different persons (as alleged by the appellant before
the High Court), the aforesaid residuary clause
would not have occurred in the Will in question at all.
Secondly, if it is assumed that the testatrix issued
separate directions about distribution of her assets
de hors the Will then, the Will in question ceases to
be her last Will.
36. Hence, to cap all the suspicious circumstances,
the aforesaid equivocal stand of the appellant, as
regards the third page of the Will and her assertion
of having acted in accordance with the "directions"
in the said third page of the Will, effectively knocks
the entire case of the appellant down to the bottom.
The suspicions arising because of the facts and
factors noticed hereinbefore, including the unnatural
exclusion of the respondents from estate; uncertain
and rather inexecutable stipulation about
construction by the appellant for the purpose of the
respondent No.1; active role played by the appellant
in execution of the Will and yet seeking to avoid the
factum of her role by incomplete and vague
statements; and the witnesses having contradicted
the appellant on material particulars etc., have not
only gone unexplained but are confounded beyond
repair with such vacillating stand of the appellant
regarding the said third page of the Will of the
testatrix.
Summation
37. The discussion foregoing is sufficient to find that
thick clouds of suspicious circumstances are
hovering over the Will in question which have not
been cleared; rather every suspicious circumstance
is confounded by another and the curious case of the
alleged third page of the Will effectively and
completely demolishes the case of the appellant. Put
differently, it is difficult to be satisfied that what is
literally coming out of the document in question had
been the last wish and desire of the testatrix as
regards succession of her estate. On the contrary, we
find enough and cogent reasons to affirm the
material findings of the Trial Court and the High
Court that it cannot be said that the testatrix
executed and signed the document in question as her
Will after having understood the meaning, effect and
purport of the contents.
38. The result, inevitable, is that this appeal
deserves to be dismissed. With the concurrent
findings having been affirmed and when the
appellant is found wanting in forth-rightness at
various stages of proceedings, costs ought to follow
the result of dismissal of this appeal.
Learned Counsel thereafter referred another citation of the
Gauhati High Court reported in AIR 2006 GAUHATI 56 [titled as
Pradip Saikia & Ors. v. Smt. Suwala Saikia & Ors. dated
13.05.2005] wherein in para Nos.14, 15, 16, the Gauhati High Court
observed as under:
"14. Law governing the proof of a Will is well
established. The burden of proof of a Will is always
on the propounder and in absence of suspicious
circumstances surrounding the execution of a Will,
the proof of testamentary capacity and the signature
of the testator as required under law would be
sufficient to discharge such burden. However, where
any suspicious circumstance occurs, onus is on the
propounder to explain to the satisfaction of the Court
that Will is genuine. A Will is an instrument that
contains the last desire of the testator/testatrix.
Normally, the Court, therefore, acts in accordance
with the wishes of the maker of the Will. However, if,
any way, the Court is to doubt either the
voluntariness or genuineness as regards the
execution of the Will, it would disassociate to act in
accordance with what has been narrated in the Will.
If the Will is surrounded by suspicious
circumstances, the removal of such suspicion shall
be always the onus of the propounder. Until and
unless such suspicion is removed, the Will shall not
be probated.
15. Suspicious circumstances may be as to the
voluntariness in execution of the Will of the testator,
lack of genuineness in the dispositions in the Will
being unnatural, improbable or unfair in the light of
relevant circumstances and/or there might be other
relevant materials to show that testator's mind was
not free. If the propounder succeeds in removing any
such suspicious circumstances from the mind of the
Court, definitely the Court would grant probate. In
the instant case, though burden was on the
propounder to remove such suspicious
circumstances, they failed to do so. It is a case
where an attempt was made to debar the natural
heirs of the testator from getting their due share of
the properties on the normal line of succession.
16. In view of what has been stated and discussed
above, this Court is of the considered view that there
is (no) illegality or regularity in the findings of the
learned District Judge calling for interference of this
Court. Consequently, this Court is in full agreement
with the views expressed by the learned District
Judge in rejecting the prayer for grant of probate."
Referring the same, Learned Counsel for the appellant drawn
the attention of the Court that in the instant case, the respondent-
defendants have failed to satisfy the Court that Exhibit-A and B were
not free from suspicious circumstances but the Learned Trial Court
below did not consider the evidence on record and accepted A and B
as valid for which the judgment is liable to be interfered with.
Learned Counsel further referred another citation of the
Hon'ble Supreme Court reported in AIR 2009 SC 1766 [titled as
Bharpur Singh & Ors. v. Shamsher Singh dated 12.12.2008]
wherein in para Nos.16, 17 and 19, Hon'ble the Apex Court observed
as under:
"16. We may notice that in Jaswant Kaur vs. Amrit
Kaur & Ors. :(1977) 1 SCC 369 this Court pointed out
that when the Will is allegedly shrouded in suspicion,
its proof ceases to be a simple lis between the
plaintiff and defendant. An adversarial proceeding in
such cases becomes a matter of Court's conscience
and propounder of the Will has to remove all
suspicious circumstances to satisfy that Will was
duly executed by testator wherefor cogent and
convincing explanation of suspicious circumstances
shrouding the making of Will must be offered.
17. Suspicious circumstances like the following may
be found to be surrounded in the execution of the
Will:
i. The signature of the testator may be very
shaky and doubtful or not appear to be his
usual signature.
ii. The condition of the testator's mind may be
very feeble and debilitated at the relevant
time.
iii. The disposition may be unnatural,
improbable or unfair in the light of relevant
circumstances like exclusion of or absence of
adequate provisions for the natural heirs
without any reason.
iv. The dispositions may not appear to be the
result of the testator's free will and mind.
v. The propounder takes a prominent part in
the execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for
long.
viii. Incorrect recitals of essential facts.
19. We, therefore, keeping in view the peculiar facts
and circumstances of this case, are of the opinion
that the impugned judgment of the High Court as
also the first appellate court should be set aside and
the matter be directed to be considered afresh in the
light of the observations made hereinbefore by the
first appellate court. It is ordered accordingly.
The appeal is allowed with the aforementioned
observations and directions. However, in the facts
and circumstances of the case, there shall be no
order as to costs."
Referring the same, Learned Counsel submitted that Exhibit-A
and B were not proved in accordance with law but the Learned Trial
Court did not appreciate the evidence on record of the appellants
properly. Hence the judgment and decree of the Learned Trial Court is
liable to be interfered with.
10. I have also gone through the citations referred by Learned
Counsel for the appellant in course of hearing of argument and also
the citations as referred by Learned Counsel for the respondents in
course of hearing including the record of the Learned Court below.
After going through the oral/documentary evidence on record, it
appears to this Court that the appellant-plaintiffs before the Learned
Trial Court have failed to show that Exhibit-A and B were made under
any suspicious circumstances for which the same are liable to be
cancelled and furthermore, the appellants also have failed to show by
adducing cogent evidence on record that Exhibit-A and B were not
proved in accordance with law and in course of hearing of argument,
Learned Counsel for the appellants also remained silent in respect of
Exhibit-A and B regarding proving of Exhibit-A and B by the
contesting respondents nor I find any material on record that
provisions of Section 63 of Succession Act and Section 68 of Evidence
Act have not been complied with. Moreso, the appellant also have
failed to prove any suspicious circumstances in execution of the Wills
and as such, in my considered view, it appears that Learned Trial
Court below after considering the evidence on record rightly and
reasonably dismissed the suit for partition for which I do not find any
scope to interfere with the judgment delivered by the Learned Trial
Court. Further it appears that Learned Trial Court rightly and
reasonably discussed and decided all the issues after proper
reasoning.
11. In the result, the appeal filed by the present appellants is
hereby dismissed on contest with costs. The judgment dated
24.09.2024 and decree dated 04.10.2024 delivered by Learned Civil
Judge (Senior Division), Dhalai District, Ambassa [camp at Kamalpur]
in connection with case No.TS(Partition) No.1 of 2022 is hereby
upheld and accordingly, the same is affirmed.
Since it emerged from the case record that still 0.09 acres of
land is open for partition. So, the parties of the suit are at liberty to
approach to the competent Court for having partition of the same in
accordance with law.
The appeal thus stands disposed of.
Prepare decree accordingly.
Send down the LCR along with a copy of this judgment to the
respective Courts.
Pending applications(s), if any, also stands disposed of.
JUDGE
MOUMITA MOUMITA DATTA
DATTA 14:57:49 -07'00'
Deepshikha
