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1999 Supreme(Gau) 19
GAUHATI HIGH COURT
J. N. SARMA, J.
Damodhar Bordoloi -Appellant
Versus
Mrinalini Devi Trust Board and others -Respondent
M. A. (F) No. 142 of 1993
Decided On : 18-01-1999
P. G. Barua, N. Chakravarty, K. C. Mahanta, K. Sarma, R. Baruah and N. Chakravarty, C. C. Deka, N. C. Phukan and R. K. Saikia
Section 118 of the Indian Succession Act does not apply to the wills of Hindus, Budhists, Sikhs or Jains.
Headnote:
INDIAN SUCCESSION ACT - WILL - PROBATE - EXECUTION AND ATTESTATION - TESTAMENTARY CAPACITY - SUSPICIOUS CIRCUMSTANCES - BEQUEST TO RELIGIOUS OR CHARITABLE USES - APPLICABILITY OF SECTION 118 - HINDU WILLS.
Fact of the Case:
The appellant, Lombodhar Bordoloi, filed an appeal against the decree in the suit for probate in respect of a Will left by one Mrinalini Devi. The Will was executed on 26-6-1980 and was attested by two witnesses. The testatrix died on 26-6-1989, after 9 years of the execution of the Will. An objection was filed by the step-son of the Testator, who is the son through the second wife of the husband of the lady. The plea taken up in the objection, inter alia, are that the will is a false one and that it has been made by the petitioners to deprive the legitimate claim of the objector.
Finding of the Court:
The Court found that the Will was duly executed and attested by the testatrix in the presence of the attesting witnesses. The Court also found that the testatrix had the testamentary capacity to make the Will at the relevant time. The Court further found that the bequest made by the testatrix to the religious or charitable uses was not void under Section 118 of the Indian Succession Act, as this section does not apply to the wills of Hindus.
Issues: 1. Whether the Will was duly executed and attested by the testatrix in the presence of the attesting witnesses? 2. Whether the testatrix had the testamentary capacity to make the Will at the relevant time? 3. Whether the bequest made by the testatrix to the religious or charitable uses was void under Section 118 of the Indian Succession Act?
Ratio Decidendi: 1. The Court held that the Will was duly executed and attested by the testatrix in the presence of the attesting witnesses. The Court relied on the evidence of the attesting witnesses, who deposed that the testatrix signed the Will in their presence and that they attested her signature. The Court also found that there were no suspicious circumstances surrounding the execution of the Will. 2. The Court held that the testatrix had the testamentary capacity to make the Will at the relevant time. The Court relied on the evidence of the attesting witnesses, who deposed that the testatrix was of sound mind and memory at the time of the execution of the Will. The Court also found that there was no evidence to suggest that the testatrix was under any undue influence or coercion at the time of the execution of the Will. 3. The Court held that the bequest made by the testatrix to the religious or charitable uses was not void under Section 118 of the Indian Succession Act. The Court found that Section 118 does not apply to the wills of Hindus, as this section is excluded from application to Hindu wills by Section 57 of the Indian Succession Act.
Final Decision: The Court dismissed the appeal and upheld the decree in the suit for probate.
This is an appeal filed by the Objector Lombodhar Bordoloi against the decree in the suit for probate in respect of a Will left by one Mrinalini Devi by the learned Additional District Judge, Kamrup, Guwahati in P.T.S. No. 52 of 1990. An application for probate was filed under Section 276 of the Indian Succession Act for probate of the will by five persons claiming themselves as the members of the Trust Board constituted by the Testator to properly manage her property described in the will.
2. The Will is dated 26-6-1980 and it is at page 18 of the paper book. Earlier to this will the petitioner executed two wills, but both of them were annulled. The first will was executed on 24-9-1998 and it was annulled and the Second will was executed on 18-11-1966 and that was annulled by this Will dated 26-6-1980. The property in the will is the property given to Late Mrinalini Devi by her father and acquired by her. Mrinalini Devi left the place of her husband long back as he married for the second time. The Will was written by one Bala Ram Hazarika, who at that time was an employee the Registrar in the Office of the Assam Co-operative Society, Guwahati-1 and the witnesses are (1) Shri Promode Chandra Bordoloi and Shri Ranendra Prasad Kakati, an Advocate. The lady died on 26-6-1989, that is, after 9 years of the execution of the will. An objection was filed by the step-son of the Testator. He is the son through the second wife of the husband of the lady. The plea taken up in the objection, inter alia, are as follows:-
(i) The will is a false one.
(ii) The will has been made by the petitioners to deprive the legitimate claim of the objector.
3. Nowhere in the objection anything has been stated regarding the testamentary capacity of the testator to execute the will.
4. Three issues were framed. They are as follows :-
1. Whether the Testator executed the will in favour of the petitioner?
2. Whether it is a proper and valid will ?
3. What reliefs are the parties entitled to?
5. PW 1 is Promode Chandra Bordoloi. He is a retired Deputy Labour Commissioner. He attested the will Exhibit 1. He deposed, inter alia, as follows :-
(1) That on 26-6-1980 she has signed Exhibit 1 in my presence, after going through the same. Exhibit 1 (1) to Exhibit 1(7) are the signatures of Mrinalini Devi which she had put in my presence I as a witness had put my signature, Exhibit 1(8) after her. An advocate Kakati by name, who had been present there had put his signature as Exhibit 1(9).
(2) Exhibit 1 was registered on 26-7-1980. That day I accompanied Mrinalini Devi to the registration office. Exhibits 1 (10) and 1 (11) are my signatures.
(3) At the time of execution of Exhibit-1 the mental and physical state of Mrinalini Devi were sound. She had executed Exhibit-1 on her own volition. By Exhibit-1 she had authorised a Trust Board to manage her property. In the cross-examination of this witness nothing has been put to him that Mrinalini Devi had no mental and physical capacity to execute the will. The only suggestion which was given was that Mrinalini had not signed Exhibit-1 in presence of Shri Ranendra Kakati and this witness.
5A. PW-2 is Balo Hazarika, the scribe of the will who was the employee in the office of the registrar at the time of writing will, but later on he became an advocate. He deposed, inter alia, as follows :- "I had written the Exhibit-1, the will. It has been written as dictated by Smt. Mrinalini Devi. I had read it over to her and being satisfied she had signed the same. Exhibits-1 (1) to 1 (7) are the signatures of Mrinalini Devi which she put in my presence. The other two witnesses put their signatures Exhibits-1 (8) and 1(9) after Mrinalini Devi had put her signatures. Exhibits-1(12) to 1 (18) are my signatures. Exhibit-1 had been written on 26-6-80 at the residence of Mrinalini Devi. In the cross-examination also the only suggestion which was given was that this will was written later-on in collusion with Harendra Nath Bordoloi. Regarding
