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GAUHATI HIGH COURT
J.N.Sarma, J.
Lombodhar Bordoloi -Appellant
Versus
Narendra Nath Bordoloi and Ors. -Respondent
Misc Appeal (First) No. 142 of 1993
Decided On : 18-01-1999
PROBATE - Will - Execution and attestation - Testamentary capacity - Bequest to religious or charitable uses - Section 118 of the Indian Succession Act - Applicability to Hindus.
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 Mrinalini Devi. The Will was executed on 26.6.80 and was attested by two witnesses. The Testatrix died on 23.6.89, after 9 years of the execution of the Will. An objection was filed by the step-son of the Testatrix, who is the son through the second wife of the husband of the lady. The objection, inter alia, was 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 section 118 of the Indian Succession Act, which deals with bequests to religious or charitable uses, does not apply to the Wills of Hindus, Buddhists, Sikhs or Jains.
Issues: 1. Whether the Will was duly executed and attested by the Testatrix? 2. Whether the Testatrix had the testamentary capacity to make the Will at the relevant time? 3. Whether section 118 of the Indian Succession Act applies to the Wills of Hindus?
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 testimonies of the attesting witnesses and the scribe of the Will, who deposed that the Testatrix had signed the Will in their presence and that they had attested her signature. The Court also noted that there was no evidence to suggest that the Testatrix was not in a sound state of mind at the time of executing 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 testimonies of the attesting witnesses and the scribe of the Will, who deposed that the Testatrix was in a sound state of mind at the time of executing the Will. The Court also noted that there was no evidence to suggest that the Testatrix was not in a sound state of mind at the time of executing the Will. 3. The Court held that section 118 of the Indian Succession Act does not apply to the Wills of Hindus. The Court relied on section 57 of the Indian Succession Act, which provides that the provisions of Part VI of the Act, which includes section 118, shall not apply to the Wills of Hindus, Buddhists, Sikhs or Jains.
Final Decision: The Court dismissed the appeal and upheld the decree in the suit for Probate.
2. The Will is dated 26.6.80 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 24.9.58 and it was annulled and the second Will was executed on 18.11.66 and that was annulled by this Will dated 26.6.80. 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 Balo Ram Hazarika, who at that time was an employee in 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 23.6.89, 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, interalia, 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 petitioners?
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 Ext 1. He deposed, inter alia, as follows :
(1) That on 26.6.80 she has signed Ext 1 in my presence, after going through the same. Exts 1 (1) to Ext 1 (7) are the signatures of Mrinalini Devi which she had put in my presence. I as a witness had put my signature, Ext 1 (8) after her. An advocate Kakati by name, who had been present there had put his signature as Ext 1 (9).
(2) Ext 1 was registered on 26.7.80. That day I accompanied Mrinalini Devi to the registration office. Ext 1(10) and 1 (11) are my signatures.
(3) At the time of execution of Ext 1 the mental and physical state of Mrinalini Devi were sound. She had executed Ext 1 on her own volition. By Ext 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 Ext 1 in presence of Shri Ranendra Kakati and this witness.
5. 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 bacame an Advocate. He deposed, inter alia, as follows :
“I had written the Ext 1, the Will. It has been written as dictated by Smti Mrinalini Devi. I had read it over to her and being satisfied she had signed the same. Ext 1(1) to 1 (7) are the signatures of Mrinalini Devi which she put in my presence. The other two witnesses put their signatures Exts 1 (8) and 1 (9) after Mrinalini Devi had put her signatures. Exts 1 (12) to 1 (18) are my signatures. Ext 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 this the answer of the witness is as follows :
“It is not a fact that Ext 1 had be
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