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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (PRINCIPAL SEAT)
C R SARMA, J.
Smti Siba Gogoi - APPELLANT
Versus
Shri Haren Gogoi, S/o Late Amrit Gogoi - RESPONDENTS
INTEST CASE NO. 10, 11/2006
Decided On : 13.05. 2014
Indian Succession Act, 1925 – Section 372 – Hindu Adoptions and Maintenance Act, 1956 – Sections 18/20 – Will – Grounds of challenge, amongst others, are that the learned District Judge failed to properly appreciate that there existed sufficient suspicious circumstances regarding execution of the Will, that the findings of trial Judge, that in view of the separation agreement the deceased had intended to cancel the nomination of the appellant and that the will was neither bad in law nor the wife was entitled to inherit any property of the deceased, are enormous and not based on record, inasmuch as the said findings are contradictory to the intention expressed by the testator in his application, filed in a Misc. (J) Case – She has prayed for setting aside the impugned judgment and order and also sought a succession certificate in her favour, in respect of the property of her husband – Held, Court find no difficulty in holding that the execution of the Will is not free from suspicion. – The propounder of the Will having failed to remove the above suspicions, it is not safe to act upon the Will and deprive the natural heirs of the deceased, on the basis of the said will. – The attending facts and circumstances and the evidence on records clearly lead to hold that the appellant and her son are entitled to get the succession certificate, as prayed for in the said case. – Court find sufficient merit in these appeals. – Appeals Allowed
1. The above mentioned appeals are directed against the common judgment and order, dated 03.07.2002, passed by the learned District Judge, Tinsukia in Misc (probate) Case No. 114 of 2002 and Misc. Case No. 88 of 2002. As both these appeals have arisen out of the common judgment and order, involving same parties, represented by same sets of Advocate, for the sake of convenience and brevity, I have heard the appeals together and propose to dispose of the said appeals by this common judgment and order.
2. The relevant facts that may be necessary for the purpose of disposal of the appeals, may, in brief, be stated as follows:
(i) The appellant is the wife of late Monoj Gogoi (hereinafter called the deceased) and Master Tusher Gogoi, respondent No.
(ii) in Misc. (probate) Case No. 114 of 2002, is their minor son. The respondent Nos. 1 and 2 are the brother and the sister respectively of the deceased-husband of the appellant. (ii) The said couple, by entering into an agreement of separation, was living separately and the appellant instituted a proceeding, being Misc.(J) Case No. 128 of 2001, under Sections 18/20 of the Hindu Adoptions and Maintenance Act, 1956, seeking maintenance allowance for herself and their son from the deceased husband.
(iii) On 21.01.2002, in Misc. Case No. 128 of 2001, the deceased filed an application, seeking conciliation between the couple with a view to continue with their peaceful marital life. The said petition was posted on 29.01.20012 and the same was pending for conciliation. The deceased, being an employee of the Indian Oil Corporation (for short IOC), on his transfer went to Jhunjhunu in Rajasthan and returned to Digboi in the Ist week of April, 2002. But, after his return to Digboi, in the Ist week of April, 2002, the deceased was found missing from 8.4.2002 and his dead body was found floating on 10.4.2002 in a drain (pond) near his paternal residence. As per postmortem report, he sustained injury caused by blunt object and the cause of death was drowning.
(iv) On his death, the appellant, claiming to be his legal heir, filed an application under Section 372 of the Indian Succession Act, 39 of 1925, seeking a succession certificate for herself and their minor son. This application was registered as Misc. (Succession) Case No. 88/2002. The present respondent No. 1 (brother of the deceased) also filed an application [Misc. (probate) Case No. 114/2002], seeking a probate of Will in respect of the properties as mentioned in the Schedule ‘A’ of the petition, on the ground that the deceased had executed a Will bequeathing his property in favour of the respondent Nos. 1 and 2 and his minor son. The said application for probate of Will was registered as Misc. (probate) Case No. 114 of 2002. The respondent No. 1 in the probate case i.e. wife of the testator contested the claim of the petitioner by filing a written objection. She, challenging the validity, sufficiency, execution, attestation and the period of execution of the Will, contended that the will was a forged one and that her deceased husband, who expressed his desire to settle the maintenance Case No. 128 of 2001, for the purpose of their reunion, never executed the will and that his dead body was found in suspicious condition. She also averred that she, being a nominee in respect of the LIC policy and the service record of her deceased husband, was entitled, alongwith her minor son, to inherit the properties left by her said husband. She prayed for dismissal of the application for probate. She also contended that the Will has been fraudulently prepared for depriving her from the property of her husband and that failure of the petitioner to mention about the Will in his objection, dated 17.4.2002, filed before the LIC authority in connection with the claim of the appellant in respect of the LIC benefit of the deceased, indicates that the Will was not in existence till the said date and that the same was subsequently pre
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