Back
2019 Supreme(Gau) 1149
IN THE HIGH COURT OF GAUHATI
KALYAN RAI SURANA, J.
Lohit Kakoti - Appellant
Versus
Puspa Bora and Others - Respondents
Test. Cast. No. 3 of 2006
Decided On : 16-03-2019
For the Appellant : Mrs. T. Goswami
Headnote:
Succession Act, 1925 – Sections 299, 281 –Issue on Forged will –The learned counsel for the appellant has meticulously read over the probate petition, two objections and evidence on record –She has submitted that although the objector Nos. 8, 9 and 10 filed their written objection and cross-examined the PWs, but they did not lead any evidence in the case and, as such, the evidence of the PWs had remained rebutted – She has submitted that the learned trial court had dismissed the probate petition only on the basis of surmises and conjectures, without any corroborative evidence on record – She further submits that it was the burden of the objectors to prove that the Will was forged, but the learned trial court had wrongly shifted the said burden on the appellant and dismissed the case –Held, on examining the materials on record, this court finds that there is no infirmity in the finding recorded to the effect that (i) the Ext. 1 differs in date and place in oral evidence, and (ii) that Ext. 1 bears different signatures in different types of signatures of Sarumai Kakoty on different pages – In the considered opinion of this court, the above referred two findings, amongst others, as recorded by the learned trial court constitute sufficient materials to hold that suspicious circumstances exist as to the execution of the last Will and testament of late Sarumai Kakoti, for which this court is unable to accept the submissions made by the learned counsel for the appellant that there are good grounds of appeal and accordingly, the point of determination is answered in the affirmative and against the appellant by holding that there is no infirmity with the judgment – Appeal dismissed
JUDGMENT :
1. Heard Mrs. T. Goswami, the learned counsel for the appellant. None appears for the respondent Nos. 1, 3, 7 and 9 although notice had been duly served. None appears on call for the respondent Nos. 4 and 5, who had refused to accept notice of this appeal. Moreover, as per order dated 21.2.2018, the name of respondent Nos. 2 and 6 were struck off on the prayer made by the learned counsel for the appellant and that the appeal was held to have abated as against respondent No. 8. By order dated 20.8.2018, the name of respondent No. 10 was struck off on the prayer made by the learned counsel for the Appellant.
2. By this appeal under section 299 of the Succession Act, 1925 the appellant has assailed the judgment and order dated 5.6.2016 passed by the learned District Judge, Sivasagar in Misc. (Probate) Case No. 63/2000, thereby dismissing the application for probate in respect of the last Will and testament of late Smt. Sarumai Kakoti, the testator. The appellant is the propounder of the last Will and testament of late Smt. Sarumai Kakoti.
3. The case of the petitioner in the probate petition filed under section 276 of the Succession Act, 1925 was that by an unregistered Will dated 18.4.1997, the testator had bequeathed a plot of land measuring 7B-1K-12L, covered by Dag Nos. 467 and 437, of P.P. No. 215, of Village-Charing Kakoti Gaon under Mouza-Murabazar, in the district of Sivasagar, Assam. The testatrix expired on 27.4.1997. The trial proceeded ex parte against the respondent Nos. 1 to 7. Although the respondent Nos. 8 to 10 had contested the case by cross-examining the 3 plaintiff's witnesses, but they did not tender defendant's witnesses.
4. In the probate proceeding, the respondent Nos. 8 and 9 had filed their joint objection and the respondent No. 10 had filed her separate objection. The stand of the respondent Nos. 8 and 9 was that the Will was forged. It was stated that the land for which Will was prepared belonged to late Rameswari Kakoti, wife of late Kon Kakoti, who died about 12 years ago leaving behind 8 daughters, namely, (1) Amarawati Baruah, (2) Sonlata Bora, (3) Aideow Bordoloi, (4) Puna Kalita, (5) Ghanalata Boruah, (6) Rupa Phukan, (7) Subama Kakoty, and (8) Sarumai Kakoty and, as such, all daughters inherited ?th share in the said land and accordingly, it was also stated that the testatrix did not have any right or authority to execute the Will in respect of the entire land measuring 7B-1K-12L. It was also stated that the testatrix was lying seriously ill for last 3 months before her death, as such, she did not execute the Will on 18.4.1997. The respondent No. 10 had stated that the testatrix was in coma since last 1 year before her death on 27.4.1997 she was suffering from liver cancer and was living on saline only and was not in a position to rise from bed. It was further stated that since 15.1.1997 till the death of the testatrix, (1) Smt. Subama Kakoty, (2) Gitanjali Phukan, daughter of Smt. Rupa Phukan, (3) Smt. Nabojani Duwarah, daughter of late Dhonolata Barua, and (4) Sri Rajani Kakaty, son of late Dindi Kakaty were in attendance of the testatrix till her death and till the shraddha ceremony was performed by Sri Rajani Kakaty, son of late Dindi Kakaty after a month and that during this period, the appellant, who is a resident of Guwahati had never visited the testatrix. It was stated that, therefore, the Will was a forged document. It was also stated that the testatrix had read upto Class-III and used to sign in Assamese, so the thumb impression in the Will was not genuine.
5. On the basis of the pleadings, although the probate proceeding was not converted to suit, the learned trial court framed the following 7 issues for trial on 31.8.2002, which were recast as under while delivering the judgment, they are:
1. Whether Smt. Sarumai Kakoti executed the Will in question on 18.4.1997 in favour of the petitioner Shri Lalit Kakoti in respect of the land, mentioned in schedule of the petition?
2. Whethe
