JUDGMENT AND ORDER (ORAL)

Transcription

1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) Test Case No. 01 OF 2003 Smt. Gita Mukherjee Appellant -Versus- Smt. Purnima Mukherjee and another..respondents BEFORE HON BLE MR. JUSTICE KALYAN RAI SURANA For the appellant : Mr. Soumitra Dey, Ms. B. Sarkar, Advocates. For the respondent : Mr. RC Paul, Adv. Date of hearing and judgment: JUDGMENT AND ORDER (ORAL) Heard Mr. S. Dey, the learned counsel for the appellant as well as Mr. RC Paul, the learned counsel for the sole respondent. It is submitted that originally there were two respondents but the respondent No.1 had died and her name was striked out by the order dated passed by this Court. Therefore, only respondent No.2, who was then a minor, but by now has attained majority is the only contesting respondent in this appeal. Test Case No.1/2003 Page 1 of 9

2 2. By this appeal under Section 299 of the Indian Succession Act, 1925, the appellant has challenged the judgment and decree dated passed by the learned District Judge, Karimganj in Title Suit No.22/2001, which was an application under Section 221 of the Succession Act for granting probate of Will stated to have been executed by her son, Chira Ranjan Mukherjee, who expired on In the application for grant of probate, it was projected that before the death of her son, the deceased was working as an employee of Hindustan Paper Corporation Limited. As his relationship with his wife (Smt. Purnima Mukherjee) was in trouble, she left her son and used to reside at her parents house and therefore, her deceased son, by making a last testament /Will on bequeathed all his property to the appellant herein. Accordingly, the said application was filed claiming aggregate money of GIS, CPF, financial assistance etc. lying with the employer amounting to Rs.1,97,678/-. The application was duly verified by the appellant and it was accompanied with a declaration of the witness, who was the attesting witness to the will executed by the deceased. The case was numbered as Misc.(Probate) No.83/2001 and as the original respondent No.1, namely, Anima Mukherjee had submitted objection, and the case was converted to Title Suit No.22/2001. The appellant/plaintiff examined 4 witnesses and the defendant side examined 3 witnesses, who were duly cross examined by other side. 4. Upon pleadings of the parties, the following issues were framed by the learned trial court: 1) Whether the plaintiff has cause of action? 2) Whether the suit is maintainable? Test Case No.1/2003 Page 2 of 9

3 3) Whether will of the testator is a valid one or it is a collusive one? 4) Whether testator was deprived of his conjugal life during life time? 5) Whether the plaintiff is entitled to relief she claims? 5. The learned District Judge took up issues No.1,2 & 3 together and by discussing the evidence, doubted the execution of the Will. The learned trial court disbelieved the evidence of the appellant/plaintiff that Smt. Purnima Mukherjee was not the legally married wife of the deceased. It was held that the plaintiff had made an admission in the probate petition that Purnima Mukherjee was the wife of the appellant s deceased son. On considering the contents of family declaration (Exhbt. D) dated given to the deceased by the employer, it was held that Purnima Mukherjee was the wife of the deceased. It was further held that as per the evidence of the plaintiff, except what was mentioned in the Will, there was no other immovable property and therefore, it was doubted that PW.1 did not know that what property was bequeathed to her by her son. It was held that none of the witnesses stated about the date of death of the son of the plaintiff. While, PW.2 stated that Will was prepared by him on but as per the evidence of PW.3 and PW.4, it was their version that the date of execution of Will was The evidence of PW.2 was also doubted because as per his evidence, he stated that he saw the testator for the first time when the Will was prepared and therefore, the evidence of PW.2 was also doubted by the learned trial court. Moreover, his version was also doubted because as per the contents of the Will (Exhbt.1), it was signed by the deceased after it was read over by its writer but as per the evidence of PW.4, he put the signature on the Will (Exhbt.1(4)) after the executor met him at Test Case No.1/2003 Page 3 of 9

4 11/11:30 AM. Because as per the evidence of PW.2, at 11:30 PM the executor met him to execute the Will. Whereas as per the evidence of PW.4, he had attended the Bar Library between 1:30 to 1:45 PM. The circumstances of execution of Will was doubted because as per the PW.1, the executor had handed over the Will to her on , this was not correct because on when the Will was prepared, as per records, the executor was in hospital and therefore, the holding over of Will from to appeared to be doubtful when that period executor was in hospital. The writing in Exhbt.1 (Will) was also doubtful because there was over writing on the Will as regards the name of father of PW.3 and therefore, there was a doubt whether the father of the said PW.3, the attestator of the Will was alive or not at the time when the Will was prepared. As per the evidence of PW.2, he did not give categorical date of execution of Will and could not say how many days after the release from hospital, the Will was executed although the PW.3 was a close relative of the plaintiff. As per the evidence of PW.1, father of the PW.3 died in Agrahayan, 2000 i.e. November/December 2000, therefore the reference to the father of PW.3 being alive or not was a source of doubtness as to the genuineness of the Will because no one would refer to his living father as dead. 6. The learned trial court relied on Exhbt. AA(1) to AA(5), which is compared/true copy of the admission register of the hospital where the deceased was admitted. Because as per the writing at Exhbt. AA(4), the executor of the Will was in hospital from 4:00 PM of to 10:00 AM on and therefore, on the execution of Will when said to be executed, whether the executor was mentally and physically sound, was doubted by the Test Case No.1/2003 Page 4 of 9

5 learned trial court and held that in that circumstance when the executor was in hospital from to and to , to and again from to , no person would be in appropriate healthy state of body and mind to execute a Will. The learned trial court has noticed that the letter r used in the word Chira in the Will was different from the other signatures which was proved vide Exhbt. B, C(1) and E(1) and therefore, this circumstances was held to be doubtful. Therefore, the learned trial court by relying on the cases of 1) Surendra Paul and others Vs. Dr(Mrs.) Saraswati Arora and another, AIR 1974 SC 1999, 2) Beni Chand (since dead) by LRs Vs. Smt. Kamlo Kimwar & others, AIR 1977 SC 63 and 3) Kalyan Singh Vs. Chhoti, AIR 1990 SC 367, held that Exhbt.1, the Will was not genuine one and it was also held that the Will ws collusive and manipulated one and therefore, the plaintiff has no cause of action. As regards, the issue No.4, it was held that Purnima Mukherjee did not deprive the deceased from the enjoyment of conjugal life and the said issue was also decided against the plaintiff and therefore, in respect of issue No.5, it was held that plaintiff was not entitled to any relief as prayed for. 7. The learned counsel for the appellant has submitted that the learned trial court failed to consider the fact that the Will was duly proved by PW.1 and other attesting witnesses as well as the scribe and therefore, the judgment in the appeal was vitiated with material irregularity and the same is not sustainable. It is also submitted that the evidence of PW.3 and PW.4 was unimpeachable to the effect that the executor had met them at Bar Library in the District Court on and the Will was executed and signed with sound health and mind. Therefore, the learned trial court had relied on Test Case No.1/2003 Page 5 of 9

6 extraneous consideration to negate the appellant. The learned counsel further submits that the signature of the executor in the Exhbt.1 (the Will), was not disputed by anybody else and the learned trial court did not call for any expert opinion on the signature of the executor and, as such, there was no material before the learned court to hold that the signature on the Will was doubtful. It is also submitted that from the contents of the Will, it is implied that the executor had disinherited his wife and the beneficiaries of the Will, being the mother, could not have been doubted by the learned trial court. 8. Per contra, the learned counsel for the respondent has relied on the findings recorded by the learned trial court and supported the findings, according to him, the circumstance of execution of the Will was extremely doubtful and therefore, there is no infirmity in the judgment and decree impugned in the present appeal. 9. On the basis of the learned counsel for the parties, the following point of determination arises in the present appeal: Whether the learned court below was correct in doubting the circumstance on which Will was executed by the executor, namely, Chira Ranjan Mukherjee? 10. In this connection, as a visual comparison of the signatures appeared in the Exhbt.1 and the signatures of the executor appeared in Exhbt. B(1), C(1), D(1), E(1) are sufficient to show that the signature in Exhbt.1(1) of Chira Ranjan Mukherjee is quite different from the one appearing in the other signatures mentioned above at Exhbt.B(1) to E(1). It leaves this Court with no hesitation that the findings recorded by the learned trial court as to the letter r appeared in the name of Chira is distinctly different from the Test Case No.1/2003 Page 6 of 9

7 signature in Exhbt.1(1) and the signatures in Exhbt. B(1) to E(1). The other circumstances, which appears to be a clinching factors in the present case is the endorsement made in the hospital admission register. The executor, namely, Chira Ranjan Mukherjee shown to be admitted at Sl. No.338 at Bed No.M-4 having admitted on at about 4-00 PM and he was discharged at 10:00 AM on Therefore, an indoor patient in the hospital could not have been said to be a fit person with good heath and sound mind on the date i.e when the alleged Will was executed at the District Court at Karimganj. If the evidence of PW.2,3 & 4 are to be believed that from 11:00 AM to 1:45 PM, the executor of the Will was at the campus of the District Bar at Karimganj. He had also gone at 7:00 AM to the house of PW.3. This appears to be not possible because the hospital authority would definitely missed a patient at the breakfast and lunch hour, when the patient were required to be checked as indoor patient and if a patient is required to go out, definitely there would be an entry to permit him to go out. This fact has not been satisfactorily explained by the appellant/plaintiff. The other factors, such as, mistake in the name of the father of PW.3 and whether he was dead or alive when the Will was executed on and other minor discrepancies become a source of major doubts for which the court is required to examine the circumstances under which will was prepared. 11. It is also found to be surprising that at the time of crossexamination of the appellant/plaintiff, he was not aware of the exact date when her son was admitted to hospital. As per the evidence of PW.2, who admitted in Exhbt.1 that it was not endorsed when the executor has put his signature after he perused the same. According to him, the contesting witness signed Exhbt.1 before him. As per the Test Case No.1/2003 Page 7 of 9

8 statement made by the said PW.2 in cross-examination, the executor came to meet him at 12:00 noon. If the evidence of PW.3 was to be believed, the executor had gone to his residence at 7:50 AM and requested him to go to Karimganj at about 10:30 AM and therefore, PW.3 was at the Bar Library at 10:30 AM and executor came to the Bar Library at about 11-11:30 AM. Therefore, there is a discrepancy as regards the time given by the PWs.2 & 3. As per the version of PW.4, he had gone to the Bar Library at about 1:30 PM to 1:45 PM. Therefore, a cumulative reading of evidence of PWs. 2,3 & 4, it appears that the executor of the Will was absent from the hospital at least at 7:30 AM and 11:00 AM to 1:45 PM in the afternoon, which, according to this Court, is a circumstance that creates doubt as to the genuineness of the execution of the Will. 12. Therefore, the point of determination is answered against the appellant by holding that the findings recorded by the learned trial court on all issues No.1 to 5 appears to be correct and raise a presumption that circumstances of preparation of the Will on was extremely doubtful and the execution of the Will on was doubtful because the executrix was admitted in hospital from to Therefore, the state of good mind and sound health of the executor of the Will was not conducive for execution of the Will with free and sound mind. This circumstance cannot be ignored and therefore, the doubt which existed in the mind of the trial court is not found to be unfounded. 13. In view of above, this Court does not find any infirmity in the findings recorded by the trial court on the issues framed by the learned District Judge, Karimganj. Test Case No.1/2003 Page 8 of 9

9 14. Accordingly, the appeal stands dismissed and the impugned judgment and decree dated passed by the learned District Judge, Karimganj in Title Suit No.22/2001 of dismissing the suit, is confirmed. Cost awarded. 15. Let a Decree be prepared accordingly. 15. Let the LCR be returned forthwith. JUDGE MKS Test Case No.1/2003 Page 9 of 9