Intest.Cas.5 of 2004

Transcription

1 Page No.1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Intest.Cas.5 of Isamuddin Mia 2. Md. Usman Mia Alias Osman Mia Both are sons of Late Uljan Mia, Vill-Milikbari, P.O- Nandanpur Chari Ali (via Hojai), Dist- Nagaon (Assam). - Appellant/Claimant Versus- On the death of Khalil Mia his legal heirs. 1(i) Ajijama Begum (Wife). 1(ii) Rahumuddin Ansari (son). 1(iii) Sahabuddin Ansari (son). 1(iv) Rojaddin Ansari (son). 1(v) Sher Mohammad Ansari (son). 1(vi) Saheb Hussain Ansari (son). 1(vii) Raja Hussain Ansari (son). 1(viii) Husbun Begum(daughter). 1(ix) Saira Begum (daughter). The names of respondent 1(i) to 1(ix) stands substituted as per Hon ble Court s order dated in MC 1081/ Md. Rasul Mia. Both are sons of Late Uljan Mia, Both are resident of village-milikbasti, P.O- Nandapur Chari Ali (via Hojai). Dist- Nagaon (Assam). - Respondent/Opposite party BEFORE HON BLE MR. JUSTICE PRASANTA KUMAR DEKA Advocate for the appellant Ms. T Goswami Advocate for the respondent Ms. B Choudhury Date of hearing & Judgment: 1 st December, 2016 JUDGMENT AND ORDER (ORAL)

2 Page No.2 Heard Ms. T Goswami, the learned counsel appearing on behalf of the appellants. Also heard Ms. B Choudhury, learned counsel appearing on behalf of the respondent No.1 and on his death his legal heirs. 2. The appellants as the petitioner has preferred an application for probate of the last and first will of Lt. Uljan Mia, who died at village Milikbasti, Ps-Hojai, Dist- Nagaon on , leaving at the time of his death the beneficials in the will which was duly executed by Lt. Uljan Mia. The appellants are the sons of testator, Uljan Mia. The original respondent along with other legal heirs of Lt. Uljan Mia were the sons of the said Ulzan Mia. By way of the said petition, the appellants as the petitioners prayed for grant of probate of the first and last Will of Lt. Uljan Mia. Amongst the beneficiaries of the said Will, one of the opposite party, Rasul Mia filed his written statement in support of the Execution of the Will and through his written statement he had specifically pleaded that he had no objection if the probate was granted to the appellants/petitioners. However, the original opposite party No.1, Lt. Khalil Mia and the respondent in this appeal objected by filing his objection/written statement. The predecessor-in-interest (Khalil Mia) of the present respondent through the written statement pleaded that his father Lt. Uljan Mia, while he was both mentally and physically fit sold away 2B2K10L s of land covered by Dag No.147 and periodic patta No.166 of Milikbasti to the answering opposite party No.1 (Khalil Mia) at a value of consideration and thereafter possession was delivered to him by his father Uljan Mia. It was also pleaded that his father Lt. Uljan Mia also executed his last Will with his own clear conscious and in good spirit on by way of which the executor (Lt. Uljan Mia) gave actual shares of all his landed properties to his sons. The opposite party/respondent further pleaded that the Will dated was executed to repulse the evil desires of the appellant/petitioners to deprive the predecessor in interest (Khalil Mia) of the present respondents and his elder brother Rasul Mia. The said Will dated was still in existence and the second Will

3 Page No.3 cannot come into effect until the former Will is cancelled or evoked. Thus, he objected to the grant of probate of the Will dated purportedly executed by Lt. Uljan Mia. On the basis of the pleadings of the parties to the proceeding, the learned District Judge, Nagaon framed the following issues to be decided which are as follows: i. Whether the Will is genuine. ii. Whether the petitioners are entitle to probate. 3. The petitioners examined in all total five witnesses. On the other hand the opposite party No.1/respondent examined five witnesses including the DW-5, who is a doctor. The learned District Judge, Nagaon came to the finding that the PW-1, Devakanta Sharma the deed writer of the Ext-1 Will dated failed to substantiate the number of beneficiaries in the said Will i.e. Ext-1 and the original of Ext-1 was not exhibited. The Ext-1, Will was executed showing the beneficiaries namely, the petitioners/appellants and another son Rasul Mia. But PW-1, in his cross has deposed that the beneficiary was only a son of Uljan Mia. The learned District Judge also discussed the evidence of PW-2 an official of the Registration Office, Nagaon, who deposed that the Will was registered on and executed by Uljan Mia. In the cross-examination, the said PW-2 stated that the Will was executed on commission but the place was not mentioned in the register. PW-3, Isamuddin, one of the petitioner/appellant has stated that the original Will was lost and also deposed that the respondent/opposite party No.1, Khalil Mia was left out from Ext-1 Will. PW-4, Usman Mia another petitioner/appellant supported the deposition of PW-3. PW-5, the attesting witness of Ext-1 deposed that though he was witness to the Will but he was not aware of the contents of the Will. 4. The learned District Judge examined the witnesses produced by the opposite party No.1/respondent and the predecessor in interest of the present respondent. The DW-1, Khalil Mia (predecessor-in-interest of present respondent) in his evidence stated that he

4 Page No.4 purchased 2B3K10L s of land from his father by registered sale deed, Ext-Ka. He further deposed that his father executed a Will Ext-Khaa on which was not registered. DW-2, Ranjit Kr. Dev is the writer of the Will dated Ext-Khaa. The DW-3, is one of the attesting witnesses of Ext-Khaa. The learned District Judge came to the finding that the DW-3 has stated in his cross-examination that Ex-2 was also written on the same date. So the learned District Judge came to the finding that on perusal of contents of Ext-2, it appears that the said exhibit goes against the plaintiff. In fact, the learned District Judge has appreciated the Ext-Khaa as Ext-2 and there was no dispute in the bar to that effect. The DW-5, Dr. Miss Zerina Ahmed in her deposition stated that Uljan Mia was under her treatment from to and he was in a semi conscious state of mind. 5. Thus the learned District Judge comes to the finding in para-9 of the judgment as follows: 9. From the evidence adduced so far, we may summarize as follows: i. Original Will, Ext-1 is not brought in evidence. ii. Writer of the Will, Ext.1 has not supported the plaintiffs case. iii. Attesting witness is not aware of the contents of the Will. iv. There was a prior Will, Ext. Kha. v. Ext.2 goes against the plaintiffs. vi. Revocation of the earlier Will, Ext. Kha has not been established. vii. As per medical evidence Uljan Mia was not in good mental state on the date of execution of the Will. Ext.1, In fact, Uljan Mia was in semi-conscious state of mind. 6. Further the learned District Judge entered into the question of the limit of testamentary power of Mohamadan person and finally the learned District Judge came to the conclusion that he was not satisfied with regard to the genuineness of the Will, Ext-1 and dismissed the petition for probate by the impugned judgment of the present appeal. 7. Being aggrieved, the petitioners/appellants has preferred this appeal raising that there was misinterpretation by the learned District Judge with regard to Ext-2, the sale deed, with the evidence of DW-5, Jerina Ahmed as the same was untrust worthy though the execution of the Will, Ext-1 was duly proved. The learned District Judge failed to take into

5 Page No.5 consideration with regard to the due execution of the Will and finding given by the learned District Judge with regard to the testamentary capacity of the testator, Uljan Mia was wrong and as such the impugned judgment is liable to be set aside. 8. Ms. T Goswami submits that there was wrong appreciation of evidence on the part of the witnesses both on the petitioner side and the defendant side. With regard to the deposition of PW-1, Ms. Goswami submits that Sri Devakanta Sarmah, the PW-1 was aged about 87 years on the date of deposition and as such the Ext-1 Will was written by the PW-1 in the year 1989, so, there might be some deviation with regard to the number of beneficiaries wrote by the said PW-1. For the said reason the deposition of the cross of PW-1 with regard to the variation of number of beneficiaries cannot be considered to be a major contradiction. With regard to PW-2, the official witnesses from the office of the said Registrar, Nagaon it is submitted that the fact that the Ext-1 Will was registered has been duly proved and though the original has not been produced the same would not disentitle the petitioners/appellants for the grant of the probate. With regard to PW-3, one of the petitioners/appellants, Ms. Goswami submits that the said appellants/petitioner has rightly deposed that the Will was executed on commission in the hospital and that cannot be a suspicious circumstances so far the execution of the Will is concerned. Similarly, the PW-4, the other petitioners/appellants has deposed the actual facts leading to the execution of the Will, Ext-1 and no suspicious stand could be elicited from the mouth of the PW-4, Usman Mia. PW-5, who was one of the attesting witnesses, deposed that he put his signature only after Uljan Mia put his signature on the Will and as such he knows the fact of execution by Uljan Mia submits Ms. Goswami. 9. On the other hand, sieving the deposition of the witnesses of the defendant side Ms. Goswami submits that no such circumstances supporting any suspicious one in the execution of Ext-1 could be established by the respondent/opposite party No.1, rather Ms. Goswami

6 Page No.6 took this Court to the cross-examination of DW-2 and submitted that he does not know if the Ext-Khaa was executed in counter of the Ext-1. Taking this Court to the cross-examination of DW-3, Ms. Goswami points out that the said DW-3 is not at all reliable witness inasmuch as he deposed that Uljan Mia was 55 years of age on the date of execution of Ext-Khaa on the face of Uljan Mia s son Khalil Mia, who was about 65 years on the date of execution of Ext- Khaa. Regarding the evidence of DW-5, Ms. Goswami submits that the evidence of the doctor is not at all reliable inasmuch as in her cross-examination she deposed that she has not brought the hospital register to support her evidence on the face of her deposition in cross-examination that at the time of production the name of Uljan Mia was entered into the hospital register as indoor patient and his ailment was recorded in the hospital admission register. Thus, Ms. Goswami submits that the respondent/defendant failed to dislodge the genuineness of the execution of the Will and the learned District Judge on the wrong appreciation of the evidence on record has rejected the probate petition of the appellant and for the said reason the appeal is to be allowed. 11. Countering the argument of Ms. Goswami, Ms. B Choudhury submits that the suspicious circumstances are very much apparent for the following reasons: i. the fact that the original Will was lost was never mentioned in the probate petition though the same is required to be submitted along with the probate petition. ii. the fact that there was no revocation of the earlier Will dated itself goes to show that in order to deprive the beneficiaries in the earlier Will dated , the Ext-1 Will was manufactured and same was executed on commission in the hospital while the testator was in a semiconscious mental health. Thus, Ms. Choudhuty submits that on the face of the suspicious circumstances so submitted, the learned District Judge, Nagaon has done no illegality in rejecting the probate petition of the operation. 12. On hearing the submissions of both the learned counsel, this Court perused the evidence on record and come to the finding as follows: (a) On perusal of the petition of the appellant it is apparent that there was no submission or any explanation with regard to the loss of the original Will. Under Section 276 of the Indian

7 Page No.7 Succession Act it shows that there is a requirement for annexing the Will along with the application for probate. The word Will under Section 276 means the original Will. In the event the original Will is missing/lost a duty is cast upon the petitioner to inform the probate Court with regard to the misplace/loss of the said Will. None mentioning of the said information in the connected affidavit in the probate petition is something suspicious, considering the facts and circumstances of the case more so when there is a Will dated and the beneficiaries includes all the sons of Lt. Uljan Mia. Intent to deprive some of the beneficiary-sons from the property of Lt. Uljan Mia cannot be ruled out. (b) the fact that the Will was executed on commission was never pleaded by the petitioners in their petition nor in the connected affidavit filed along with the said petition. It is the PW- 2, who on the cross-examination admitted that the Will was executed on commission but the place of such commission has not been mentioned. 13. Now coming to the evidence adduced by DW-5, doctor, who in her chief deposed that she found the person (Uljan Mia) in semi conscious stage at the time of her first examination. She deposed further in her chief that Uljan Mia was under her treatment from till though he was discharged on against her advice. The PW-3, Isamut Uddin in his chief admitted that the Will Ext-1 was executed in the hospital on commission and the date of execution of the Will was The fact that the Will was executed on commission in the hospital are normally written on the original Will in a separate sheet of paper annexed to it or in some other cases the same is written on the overleaf of the first page of the registered deed itself. The fact that the original Will Ext-1 was lost was never mentioned or pleaded at the first instance in the petition for probate by the petitioner. Subsequent examinations and cross-examinations of various witnesses gave a final finding that the testator, Lt. Uljan Mia executed the said Will Ext-1 in the hospital and as there is no rebuttal evidence with regard to the DW-5 with regard to the mental status of

8 Page No.8 Uljan Mia, this Court has no other alternative but to hold that Uljan Mia had no knowledge at all about the execution of the Ext-1. More so, when the fact of loss of the Will in its original form had not been pleaded initially nor there was any move on the part of the petitioner to adduce secondary piece of evidence of the Will as required under the Indian Evidence Act. 14. On perusal of the impugned judgment, I do not find any infirmity with regard to the genuineness of the Will. However, the learned District Judge has no jurisdiction to discuss into the merit of the Will with regard to the testamentary power of a person under Mahamadan Law. Setting aside the said finding, I upheld the judgment of the learned District Judge to the extent that the Will, Ext-1 is not genuine and the refusal to grant probate has rightly been exercised by the learned District Judge. 15. This appeal is partially allowed. 16. Send down the case record. 17. No cost. JUDGE Rakhi