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IN THE HIGH COURT OF GAUHATI (SHILLONG BENCH)
Tinlianthang Vaiphei, J.
Dharam Deo Verma – Appellants
Vs.
Ved Mitra Verma – Respondent
Decided On: 28.03.2007
Indian Succession Act - Grant of Letters of Administration - Section 299 of the Indian Succession Act, 1925 - Summary of Acts and Sections: Sections 59, 63, 67, 68 of the Indian Succession Act and Section 68 of the Evidence Act - The court discussed the requirements for proving the execution of a Will, the role of attesting witnesses, and the need to remove suspicious circumstances. The court emphasized the importance of attestation and the burden of proof on the propounder to establish the genuineness of the Will.
Fact of the Case:
The appellant sought Letters of Administration under Section 299 of the Indian Succession Act, 1925, for a Will executed by the deceased. The trial court rejected the application, citing doubts about the genuineness of the Will.
Finding of the Court:
The court found that the appellant had satisfactorily proved the execution of the Will by the deceased, despite the absence of attesting witnesses, and that the Will was not concealed by the appellant. The court also noted that the testator was mentally and physically fit to execute the Will.
Issues: The issues included the genuineness of the Will, the mental and physical fitness of the testator, and the concealment of the Will.
Ratio Decidendi: The court emphasized the importance of attestation and the need to remove suspicious circumstances surrounding the execution of the Will. It placed the burden of proof on the propounder to establish the genuineness of the Will, especially in the absence of attesting witnesses.
Final Decision: The appeal was allowed, and the Will was probated in favor of the appellant. The parties were directed to bear the costs of litigation throughout.
T. Vaiphei, J.
1. This appeal is directed against the judgment and order dated 13.07.2004 passed by the learned Addl. Deputy Commissioner, Shillong, in L/A Misc, Case No. 38(T)1992, refusing Letters of Administration under Section 299 of the Indian Succession Act, 1925, in favour of the Appellant.
2. Heard Mr. M.F. Qureshi, the learned Counsel for the appellant and Mr. S.R. Sen, the learned senior counsel for the respondent.
The facts relevant for disposal of this appeal may be briefly noted at the outset. One late Satyanand Verma died on 25.09.76 at Nongthymmai, Shillong, and was alleged to have executed a Will on 20.11.74 which was registered on the same date in the Office of Sub-Registrar, Jansath, Muzaffarnagar District (U.R), which was witnessed by (i) Ramsaran (ii) Trilokinath and (iii) Shri Krishna Murari, Sub-Registrar, Jansath. Seventeen years after the death of late Satyanand Verma, the appellant filed an application under Section 276 of the Indian Succession Act, 1925, (the Act for short) for grant of Letters of Administration by annexing the alleged will and the same was registered as LA Misc. Case No. 38(T)92. The deceased admittedly left behind him six sons including the appellant. However, the application of the appellant was objected to by one of the sons Shri Ved Mitra Verma, who is the respondent herein, by filing his objection on 27.06.94 with a prayer to reject the application filed by the appellant. The learned Addl. Deputy Commissioner, Shillong, which was ceased with the application, by his order dated 28.04.95 rejected the objection raised by the respondent and granted the Letters of Administration in favour of the appellant on 01.05.95. The respondent promptly preferred and appeal before this Court, which by the order dated 28.04.95 in MAF (T) 28/1995 set aside the impugned order and remitted the case to the learned Addl. Deputy Commissioner, with a direction to dispose of the case afresh within a period of three months from the date of the order. The Letters Patent Appeal being LPA No. 2(S) 1997 preferred by the appellant from the aforesaid order of this Court was dismissed by the Division Bench of this Court by the order dated 06.08.97. It so happened that instead of disposing of the case within three months, the learned Addl. Deputy Commissioner took more than seven years to dispose of the case, which, according to the appellant, was to the lapses on the part of the respondent.
3. In the course of trial before the learned Addl. Deputy Commissioner, three witnesses were examined on behalf of the appellant while the same numbers of witnesses were examined on behalf of the respondent. The trial Court framed the following issues:
1. Whether the application for Letters of Administration is barred by Limitation.?
2. Whether the Testator (L) Satyanand Verma was mentally and physically fit to execute the Will on 20.11.1974?
3. Whether the Will is genuine?
Issue No. 1 was decided in favour of the appellant but issues No. 2 and 3 were decided against him where upon the trial Court rejected the application for Letters of Administration filed by the appellant by the impugned order. It is this order which is under challenge in this appeal.
4. In rejecting the application of the appellant, the learned Addl. Deputy Commissioner held that when late Satyanand Verma, who was an aged man in 1974 and originally residing at Shillong and had gone to Jansath in U.P. for eye operation, it was strange that he executed a will at that point of time, particularly, when he was not in a position to see clearly and did not even mention it to anybody thereafter. He also observed that the two attesting witnesses could not be examined as they had already died and that only the Sub-Registrar i.e., PW 3 was examined, but whose evidence could not clearly establish that the Testator was mentally and physically fit to execute the will and further that it was not clear as to who identified the testator. The trial Court also found from the
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