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1981 Supreme(Gau) 90
GAUHATI HIGH COURT
D. PATHAK, Ag. C.J. AND K. N. SAIKIA, JJ.
Abhoy Charan Nath Mazumdar -Appellant
Versus
Raimya Devi and others -Respondent
First Appeal No. 301 of 1973
Decided On : 21-08-1981
B. K. Das, P. Choudhury and B. K. Acharyya
A Will is contingent if it is dependent on the happening of a specified uncertain event, and if the event does not happen, the Will is inoperative and void.
Headnote:
WILL - PROBATE - MENTAL CAPACITY - CONTINGENT WILL - INTERPRETATION - SECTION 124, 125 OF THE INDIAN SUCCESSION ACT, 1925.
Fact of the Case:
The plaintiff-appellant, Abhoy Charan Nath Mazumdar, filed a testamentary suit for probate of a Will purportedly executed by Dulal Chandra Nath Muzumdar on 26-11-1948. The defendants-respondents contested the application, alleging that the Will was a fraudulent document and that it was contingent upon Atul Chandra Nath Muzumdar predeceasing the testator, which did not happen.
Finding of the Court:
The District Judge found that the plaintiff-appellant failed to establish that Dulal Nath was mentally and physically fit at the time of making the alleged Will and that the weight of evidence and circumstances on record satisfactorily established that Dulal Nath had no mental capacity which rendered the Will invalid. The court also held that the Will was a contingent one as the condition of operation of the will was found to be dependent on Atul Nath predeceasing Dulal Nath.
Issues: 1. Whether the testator was mentally and physically fit at the time of making the alleged Will? 2. Whether the alleged Will is a fraudulent and sham document? 3. Is the alleged Will a contingent one and is it entitled to probate?
Ratio Decidendi: 1. The court held that the testator, Dulal Nath, did not have testamentary capacity at the time of making the Will due to his advanced age, physical illness, and unsound mind. The court relied on the evidence of witnesses who testified that the testator was bedridden and unable to move, and that he suffered from asthma and disorder of bowels. The court also noted that the testator had a wrong notion that his only son, Atul Nath, was in poor health and might predecease him, which was contradicted by the fact that Atul Nath lived for 16 years after the testator's death. 2. The court held that the defendants-respondents failed to discharge their burden of proving fraud in the making of the Will. The court noted that the defendants-respondents did not specifically plead fraud in their written objections, as required by Order 6, Rules 2 and 4 of the Civil Procedure Code. 3. The court held that the Will was a contingent one, as it was dependent on the eventuality of Atul Nath predeceasing the testator. The court relied on the language of the Will, which stated that the testator made the Will with a view to keep his immovable properties from destruction that may be caused by my future heirs and successors and with a view to save the properties from further trouble that may have to be faced in future, have made this testamentary disposition (my last Will) in the following terms and conditions.
Final Decision: The court dismissed the plaintiff-appellant's appeal and refused probate of the Will.
SAIKIA, J. :- This propounders probate first appeal is from the judgement and decree of the District Judge, Cachar at Silchar in Testamentary Suit No.2 of 1972 refusing probate of the Will purported to be executed by Dulal Chandra Nath Muzumdar on 26-11-1948. For proper appreciation of the circumstances surrounding the Will the family genealogy is given below:
2. The plaintiff-appellant Abhoy Charan Nath Mazumdar filed Testamentary Suit No.2 of 1972 for probate of the aforesaid Will as its executor. The Testator Dulal Chandra Nath Mazumdar died on 12-1-1949 and the plaintiff-appellant was granted probate by the District Delegate, Cachar on 27-8-49, but the probate was not actually laken out until 27-5-71 after his father, Atul Chandra Nath Mazumdar, died on 17-12-1965. The defendants-respondents filed an application u/s.263 of the Indian Succession Act, hereinafter referred to as the Act challenging the will as a fraudulent document and praying for revocation of the grant of probate on the ground that it was made without proper citation; and by order D/- 31-8-71 the District Delegate revoked the probate on that ground. The plaintiff-appellant thereafter applied for revival of the original probate case being Misc. Case No.51 of 1949 issuing proper citations to the objectors at which the defendant-respondent No.7, Raimya Devi, and defendant-respondent No.2, Anil Chandra Nath Mazumdar, defendant-respondent No.6, Minati Nath and defendant-respondent No.9, Jogomaya Devi being the widow, sons and daughter, respectively of the deceased Atul Chandra Nath Mazumdar, the only son of the testator, contested the application filing written objections whereupon the misc. case was registered as a testamentary suit. Defendants Nos.7 and 8, being two other sons of Atual Chandra Nath Muzumdar did not contest.
3. The defendants-respondents pleaded that the application for probate was not maintainable in law in its present form; that it was barred by limitation; that the testator was not in his proper senses and was physically and mentally incapacitated and that he never voluntarily executed any Will, as alleged; and that the alleged Will was a fraudulent and sham document created by interested person; and lastly, that the Will was a contingent one and the contingency never happened.
4. On the pleadings the following issues were settled:
"1. Is the application for revival of the Probate Case No.51 of 1949 maintainable in law?
2. Is the application barred by limitation?
3. Was the Testator mentally and physically fit at the time of making the alleged Will?
4. Whether the alleged Will is a fraudulent and sham document?
5. Is the alleged Will a contingent one and is it entitled to probate?
6. Is the plaintiff entitled to probate of the alleged Will Of Dulal Chandra Nath?"
5. At the hearing the plaintiff-appellant examined himself and four other witnesses. The defendant-respondent No.1 examined herself only for the contesting defendants. Defendants Nos.3 to 5 being minor sons of Atul Nath were represented by their mother and next friend, defendant No.1. On appreciation of the evidence on record the learned District Judge found that the plaintiff- appellant was not only the executor of the alleged Will but also a beneficiary thereunder and that he was legally entitled to apply for issue of citations without making fresh application for grant of probate and that the application was not barred by limitation. On issue No.3 it was held that the plaintiff-appellant failed to establish that Dulal Nath was mentally and physically fit at the time of making the alleged Will (Ext.4) and the weight of evidence and circumstances on record satisfactorily established that Dulal Nath had no mental capacity which rendered Ext.4 invalid. Issue No.4 was decided in the negative, the defendants-respondents having failed to discharge their burden of proving fraud. It was also held that the due execution of Ext.4 had not been established.
6. Issue No.5 was answered
