Legal Heirs of Ram Sundar Prasad Verma Vs Moni Devi Verma

P.K. Musahary, J.@mdashHeard Mr. B. D. Deka, learned counsel for the appellant(s) and also heard Mr. N. Hoque, learned counsel for the sole respondent/opp. Party.

2. The present appellants are the legal heirs of Late Ram Sundar Prasad Verma, who filed an application before the learned District Judge at Dibrugarh u/s 276 of the Indian Succession Act, 1925 for granting probate to the estate of Late Jugal Kishore Verma, which was made over to Addl. District & Sessions Judge, Dibrugarh and registered as T. S. (P) No. 32 of 1998 for disposal. The sole respondent being the wife of the deceased Jugal Kishore Verma contested the said proceeding by filing objection/written statement and the said suit was dismissed on contest with cost of Rs. 20, 000/- vide judgment and order dated 09.07.2001, which is now under challenge in the present appeal.

3. To appreciate the real question involved in the case, the relevant facts need to be narrated. The appellant/petitioner''s son Jugal Kishore Verma, who was a contractor by profession died on 19.09.1995 at the age of 32 years leaving behind his wife (sole respondent), present appellants and other brothers and sisters. He married repondent on 01.07.1994. He executed a Will on 31.07.1995 in favour of his father, present appellant (since deceased) during his life time. As per the aforesaid Will, the testator distributed his properties as under:-

The amount of assets likely to come of the deceased is Rs. 11,28,524.00 approximately.

4. As stated earlier, the sole respondent as the legal wife of the deceased (testator) filed written statement and pleaded that the case is not maintainable, the appellant (s) has no right to file the probate petition, the alleged Will is false and fabricated inasmuch as the signature on it is not the signature of her husband, the Will is void for uncertainty and it was not executed by her husband Jugal Kishore Verma and there is no provision in law for making any affidavit in support of distribution of the properties to the legatees and as such, it has no testamentary value. In the written statement, the respondent/opp. Party alleged that some time after her marriage with late Jugal Kishore Verma, she was subjected to immense physical and mental torture by her in-laws demanding dowry and made her life most miserable. Her husband used to protest it and ultimately, he not being able to tolerate such inhuman treatment, committed suicide and thereafter the act of torture on her person accelerated beyond limit. She also alleged that acid was thrown on her person making her life almost invalid and as such, the execution of the Will is shrouded by suspicious, unnatural and unbelievable circumstances, more particularly, the manner in which the properties were distributed even amongst the persons other than legal heirs giving an insufficient part of testator''s properties to her as a legal wife.

5. Based on the pleadings of the parties, the learned trial Court framed the following issues:-

(1) Whether the position for probate of the Will is maintainable ?

(2) Whether the Will of Late Jugal Kishore Verma is false and fabricated and, whether the same was made freely, voluntarily without any inducement, coercion, undue influence, threat and intimidation ?

(3) Whether the petitioner is entitled to get probate of the Will?

6. In order to establish his case, the appellant examined three witnesses including himself. The appellant examined himself as PW 1. In his deposition, he stated that his son Jugal Kishore Verma died on 19.09.1995 in the Assam Medical College Hospital, Dibrugarh and at that time, he was aged 32 years. He was a contractor in the E & D Department and he had some pending bills to be paid by the Department. Besides he had some deposit in the State Bank of India, Dibrugarh Branch to a tune of Rs. 6,162/-and a fixed deposit for an amount of Rs. 2000/-in the Co-operative Apex Bank. The deceased son executed a Will in his favour. Exhibit-1 is the said Will and Exhibit-1 (1) and Exhibit 1 (3) are his signatures and the said Will was signed in his presence. At the time of execution of the Will, Shri Tiken Saikia and Mukti Chetry were present. The Will was prepared by Shri Bhoven Sarma, Advocate and Exhibit 1 (6) is his signature. His son left his wife without any children. In cross-examination, he admitted that at the time of execution of the Will, the wife of the deceased Jugal Kishore Verma was present at home but she was not called at the time of signing the Will. He read the contents of the Will which were not known to him earlier. He admitted that the amount mentioned in the Will is the earning of his son and he had no right on it and after execution of the Will, he kept the same in his almirah. The Will was not shown to the wife of Jugal. In the cross-examination, he stated that after the death of his son, he had shown the Will to his Advocate Shri Singania. He also stated that he did not know the scribe of the Will since before and he never made him earlier. He has filed the probate case on the advice of his Advocate. From the Accountant of the Department, he came to know that his deceased son was entitled to Rs. 11,20,362/-, which has been mentioned in the Will. He visited the office of the department but he has not filed the account collected from the office.

7. In order to prove the proper execution of the Will, the appellant examined two attesting witnesses as PWs 2 & 3. PW 2 is Shri Tiken Saikia, who was also a contractor in the E & D Department. He deposed that the knows Jugal Kishore Verma and his signature as well. Before his death, Jugal Kishore Verma visited and requested him to sign on a prepared Will. He accordingly signed on the Will as an attesting witness. At the time, father of the deceased and one Nepali person known as Chetry were present. He deposed that Jugal put his signature in their presence and in his presence all of them put their signature on the Will (Exhibit 1) and Exhibit 1 (4) is his signature and Exhibit 1 (5) is the signature of Mukti Chetry. He also read the Exhibit 1 (Will) which was executed by Jugal voluntarily. In cross-examination, he stated that Jugal called me for signing the Will just about two days before the signing of the Will and accordingly, he came and signed the Will. Chetry came after him. He does not know who wrote the Will and when it was written. He knew that Jugal died after consuming acid. He also stated that Jugal was a married person and he had no children. He does not know about their domestic affairs and he did not meet Jugal''s wife regarding the Will. The other attesting witness Mukti Chetry was examined as PW 3. He deposed that he knew Jugal Kishore Verma and his father but he did not know the name of Jugal''s father. Jugal died on 19.09.1995. He knew Jugal since his childhood. Before his death, a Will was executed and at the time of execution of the Will, he was called and he put his signature on the said Will. Exhibit 1 (5) was the signature. First Jugal put his signature on his Will and there after, as witness Tiken put his signature first and there after, he put his signature. He further stated that the Will was brought by an Advocate whose surname is Sarma, who put signature, Exhibit 1 (6). In cross-examination, this witness stated that he saw the Will for the first time at the time of signing it. He does not know the full name of the Advocate but he could identify if he is shown to him. Will was written on 31st July and he was not present at the time of writing the Will. He also does not know who typed out the Will. At the time of execution of the Will, the testator Jugal and his father and the Advocate were present. He admitted that at the time of the execution of the Will, Jugal''s wife was present at home but she was not called. At the time of death of Jugal, he did not come to Jugal''s house. Jugal died in the Medical College, Dibrugarh but he did not come to see him.

8. From the aforesaid evidence, it has been proved that-

(1) Testator Jugal Kishore Verma consumed acid and remained under treatment in medical hospital and subsequently died on 19.09.1995. He had no illness prior to his death.

(2) Will was drafted by an Advocate named Bhoven Sarma. He was not produced and examined as a witness.

(3) The wife of the deceased was present at home but she was not called to be present at the time of execition of the Will.

(4) The Will was not shown to the wife of the deceased. She was not even informed about the same. The Will was kept by the propounder in his almirah.

(5) The typist of the Will was not produced as a witness.

The respondent/opp. Party examined herself as DW 1. Her evidence is mostly concentrated on physical and mental torture inflicted on her by the in-laws on demand of dowry. Her husband was not party to such torture, rather he loved her and protested the act of torture. Her husband was much concerned about her and he used to consult each and every matter with her. As he could not tolerate torture/ill-treatment on his wife, he consumed acid and died in Assam Medical College Hospital, Dibrugarh. Simultaneously acid was also thrown on her by the in-laws while she was carrying three-month child in her womb and she become senseless and got hospitalised. The evidence on this allegation could not be demolished in cross-examination. Not was any suggestion put by the appellant/ petitioner (s). By bringing on records all these facts, the respondent/opp. Party made an endeavour to prove that the Will was faked as no Will was signed and executed by her husband volunatrily and there are suspicious circumstances attached to it.

9. Mr. Deka, learned counsel for the appellant/petitioner (s) mainly submitted that the law does not require production and examination of the Scribe or the typist to prove the execution of the Will. It is only the attesting witnesses, who are required to be examined and once the attesting witnesses give evidence to the effect that the testator signed the Will in their presence and they also put their signatures on the Will, the execution of the Will would stand proved and it cannot be challenged on any other grounds. The said legal requirment, according to the learned counsel for the appellant(s)/ petitioner(s), has been duly complied with and such Will can not be invalided or questioned on the ground of not calling the wife of the deceased (testator) and her absence at the time of execution of the Will. There is nothing unnatural in calling PW 2 by the testator to be a witness to the execution of the Will. He is a co-contractor doing contract works in the same Government department and they know each other well. There is nothing unnatural in calling PW 3 as he is known to the family since his childhood. In the present case, the attesting witnesses, as argued by the learned counsel, having supported and proved the signing of the Will by the testator in their presence, the learned Court below should have granted the probate in favour of the appellant (s)/petitioner(s) and the learned Court below has committed grave error of law in giving undue importance on certain misplaced suspicious circumstances, which are not at all legal grounds for rejecting the probate. In support of his submissions, he has cited the following cases:-

(1) Hazara Bradri and Others Vs. Lokesh Dutta Multani,

(2) Dilip Dutta Bhowmik and Others Vs. Mira Dutta Bhowmik and Another,

(3) Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal Ganeshkar and others,

(4) Madhukar D. Shende Vs. Tarabai Aba Shedage,

(5) S. Sundaresa Pai and Others Vs. Sumangala T. Pai and Another,

10. Mr. Hoque, learned counsel for the respondent/opp. Party submits that the Will in question has been made for an unspecified amount, which is not permissible under the law and such Will cannot be probates in favour of the appellant (s)/petitioner(s) inasmuch as it is provided u/s 89 of the Indian Succession Act, 1925 that a Will or bequest not expressive of any definite intention is void for uncertainty. According to him, the evidence on record amply proves that the propounder was not sure about the receivable amount of the testator from the department as outstanding bill for execution of work and as such, the Will in question, is not expressive of any definite intention with certainty. Moreover, he submits that the execution of the Will is surrounded by suspicious circumstances inasmuch as the opp. Party/respondent as the legal wife was given a significant share of the properties, the Will was not signed or executed in her presence although she was present at home and kept her in darkness till she received notice on the probate proceeding.

11. The case in hand mainly involves two questions:

(1) Whether the Will, in question, was duly executed as required under the provision of Indian Evidence Act, 1872 and the Indian Succession Act, 1925.

(2) Whether the Will, in question, surrounded by suspicious and unnatural circumstances warranting rejection of prayer for probate.

12. The established law is that the Will has to be proved like any other document except as to the special requirements of attestation prescribed u/s 63 of the Indian Succession Act, 1925. The requirements u/s 63(c) of the Indian Succession Act, 1925 is to be duly complied. It requires that the Will should 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 presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person and each of the witnesses shall sign the Will in 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. It is necessary to closely examine whether the said provision has been complied with in the present case. The propounder, apart from examining himself as witness, produced and examined two attesting witnesses namely PW 2, Shri Tiken Saikia and PW 3, Shri Mukti Cherry. The law provides for presence of one of the attesting witnesses to prove the execution of the Will.

13. In the present case, as could be found from records, both the two attesting witnesses tendered their evidence before the Court testifying their presence and signing of the Will in presence of the testator and the executant. The presence and signing of these two attesting witnesses on the will in presence of the testator and the propounder could not be disproved by the Opp. Party while cross-examining them before the Probate Court The said attesting witnesses also testified in their evidence that the testator signed the Will in their presence as required u/s 63(a) of the Indian Succession Act, 1925. In a classic decision rendered in Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, it has been held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.

14. In the aforesaid case, two attesting witnesses were produced. One of them was examined and cross-examined but the other witness died before the cross-examination was completed and consequently, his evidence could not be used as evidence in the case yet the learned trial Court was satisfied that the Will was duly executed and the testator had a sound disposing mind. In the said case, it was held that the Will, in question, was duly executed and probate should be issued. As regards the question raised by the opp. Party/ respondent that the signature affixed on the Will (Exhibit-1) was not the signature of the testator and it was a forged one, it must be examined in the light of provision u/s 67 & 68 of the Indian Evidence Act, 1872. Section 67 relates to the proof of signature and handwriting of person alleged to have signed on written document produced. Section 68 relates to proof of execution of document required by law to be attested. It provides that 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 the execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. It is provided thereunder 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 unless its execution by the person by whom it purports to have been executed is specifically denied. The evidence on record in the present case shows that both that attesting witnesses were present at the time of put signature by the testator on the Will and both the witnesses are still alive and testified the same before the Court and thus, the signature of the testator has been proved by them.

15. In this regard, one can rely on the decision rendered in S. Sundaresa Pai (supra) wherein it has been held amongst other that it is purely within the discretion of executant of the Will and how he distributes his assests and even if his assets have been distributed in unnatural and uneven manner, it cannot by itself raise suspicion. In the said case, the widow daughter of the executant was not bequeathed with anything and yet Will stood duly proved and upheld. In the present case, the widow wife of the testator has been admittedly given 15% of the assets and she has been placed at a better position and as such the allegation of uneven distribution of properties left by the testator is incorrect and unfounded.

16. The Apex Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, held that the propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator and he at the relevant time, was in a sound and disposing state of mind and he understood the nature and effect of the dispositions and put his signature on the document of his own free will. There is no allegation in the present case that the testator was not in a sound and disposing state of mind or he could not understand the nature and effect of the Will. The allegation is confined to genuineness of the signature found on the Will. There was no document either from the respondent/opp. Party requesting the Court for taking opinion of handwriting expert. In my considered view, there is no scope for sending the Will for expert opinion, even if it was so demanded inasmuch as the required evidence from the attesting witnesses are available on record and they have proved the signature of the testator as required u/s 68 of the Indian Evidence Act, 1872. On the face of the evidence on record, particularly, the evidence of PWs 2 & 3, who were present at the time of signing and execution of the Will, in question, and who witnessed in their own eyes putting the signature by the testator, no other view suspecting their signature of the testator could be taken and it must be held that the Will was duly executed as required under the law.

17. As regards the suspicous, doubtful and clouded circumstances in executing the Will in question, as alleged by the respondent/opp. Party, it needs closer scrutiny inasmuch as a Will may be treated as invalid if the said allegation could be proved. One of the doubtful circumstances alleged is that the Advocate, who prepared the Will and the person who typed out the Will was not produced as witnesses to support the claim that the Will was prepared as per the wish of the testator and under what circumstances the said Will was directed to be prepared. The second serious doubtful circumstances alleged is that the opp. Party/respondent (wife), although she was present at home at the time of execution of the Will, was not called and made her remain present and she was kept in darkness about the execution of the Will till she received the notice from the Probate Court Thirdly, no close relative of the testator has been called to be attesting witness and some outsiders have been called and made attesting witnesses. Fourthly, the testator put his signature on the Will in "Hindi", which he usually does not do so and he prefers to put his signature in "English" as a literate person. Fifthly, the medical certificate from the Assam Medical College Hospital authority was not produced by the propounder although it was stated that the same was in his possession to examine as to how the testator died in the hospital. Last but not the least, the doubtful circumstance alleged is that the respondent/ opp. Party was given an insignificant share of the testator''s properties although she is legally married wife and she is supposed to get the major share. The non-production and non-examination of the Advocate, who drafted the Will and the person who typed out the Will cannot be treated as a suspicious circumstances. There is no legal requirement in the provision of law to examine the counsel or other person connected with the preparation of the Will. The only requirement is whether the attesting witness has been produced and examined and in my considered view, therefore, there is no lapse on the part of the propounder in proving the Exhibit-1 (Will). The second doubtful circumstance arisen due to not calling the respondent/opp. Party at the time of execution of Will has no serious adverse consequence. There is no legal requirement for calling or requiring presence of the wife of the testator so far as it is concerned with the execution of the Will in presence of two attesting witnesses. It is the discretion of the testator, who should be called or required to be present at the time of execution of the Will. By not calling the respondent/opp. Party, no legal provision in regard to execution of Will has been violated and on that ground the genuineness of the Will cannot be suspected. Similar is the case in respect of calling or requiring person to be present as attesting witness to the execution of the Will. As regards the suspicion arose due to signing of the Will by the testator in "Hindi", except the evidence of the respondent/opp. Party, no evidence has been led that he usually put his signature in "English" and not in "Hindi". It is also the discretion and choice of the testator to put his signature in any language. The only requirement under the law is that the testator must sign in presence of two witnesses and the same should be proved. In any case putting signature in "Hindi" cannot have any adverse effect on the execution of the Will duly proved by the attesting witnesses. As regards the fifth suspicious circumstance pointed out by the respondent/opp. Party in regard to non-production of the medical certificate, it must be said that it is also a redundant requirement not contemplated under the law. In Madhukar''s case (supra), it has been held that there is no rule of law or of evidence which requires a doctor to be kept present when a Will is executed. So, it can not be said that in order to prove due to execution of the Will, the propounder is required to produce the medical certificate on the death of the testator. The last alleged unnatural or doubtful circumstances pertaining to giving an insignificant of uneven share to the respondent/ opp. Party, one has to consider in the light of the provision made in the Will itself, which has already been quoted earlier. The propounder as father of the deceased and other four brothers and one unmarried sister of the deceased were given 10% each while the mother and the wife of the deceased (testator) were given 15% share each of the properties left by the testator. There is no uneven distribution of share of the properties. The propounder has not been given greater share. It is the mother and wife (respondent), who have been given 15% share each. It cannot, therefore, be said that the respondent/opp. Party was given insignificant share. It cannot also be said that the propounder managed to take greater share of the properties. There is nothing unnatural in giving 10% share each to the propounder and the other brothers and sister of the deceased (testator). There is nothing unnatural in giving 15% share each to the testator''s mother and wife. From the manner in which the share of the properties has been distributed in the Will, no allegation of unfair and unjust disposal of properties can be brought. The only possible allegation that could be made against the propounder is that he has taken active part in the matter of execution of the Will but it is not enough to establish the allegation of unnatural action against him if one fairly takes into consideration that the wife of the deceased (testator) was given 15% share, which is higher than the shares prescribed in the will for others at 10%, except the mother of the deceased, who also got 15% share. In this regard, I may refer to V.S. Mane''s case (supra) in which it is held, amongst other, that circumstances like propounder taking prominent part in the execution of a Will, which confers substantial benefits on him cannot be considered as a suspicious circumstances reflecting the genuineness of the Will. It is further held that in any case; motive for making the Will is not really relevant The Apex Court has even gone to the extent that debarring natural heirs from getting the share of the assets by executing the Will should not raise any suspicion. The active part played by a close relation of one of the executors in execution of Will may raise suspicion in absence of other circumstances on record to show voluntary character of document as has been held in Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others,

18. The above alleged circumstances, sound to be suspicious but they are not really so. They are just some collateral grounds, immaterial for the purpose of proving the execution of the Will and such collateral grounds are no good grounds to discard the testimony of the attesting witnesses as has been held in Hazara Bradri''s case (supra). The law requires evidence of attesting witnesses which must be consistent, natural and truthful which remained unshattered even after intensive cross-examination and no material contradiction could be brought out The same standard of evidence is available in the present case also.

19. What is suspicious circumstance has been explained by the Apex Court in Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, It is held therein that any and every circumstance is not a suspicious circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.

20. Considering the entire matter in the light of the aforesaid discussions. I am unable to agree with the learned Probate Court that the execution of the Will was doubtful and it was shrouded in mystery and suspicious circumstances. In my considered view, the learned Court below has given undue weightage on collateral grounds, which are really not relevant in the matter of execution of Will. The learned Probate Court has lost sight of the consistent, natural, truthful and uncontradicted evidence of attesting witnesses, which are sufficient to establish the execution of Will in question and grant the Probate in favour of the appellant(s)/ petitioner(s). In view of the above, I set aside and quash the impugned judgment and order dated 09.07.2001 passed by the Additional District Judge, Dibrugarh in T.S. (P) No. 32 of 1998 dismissing the Probate Application.

21. This appeal stands allowed. Parties are directed to bear their costs. Return the LCRs to the Court below forthwith.