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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PARTHIVJYOTI SAIKIA, J.
Ravinder Duggal @ Ravinder Kumar Duggal S/o Late Panna Lal Duggal – Petitioner
Versus
Rajesh Kalia and Others – Respondents
Test App. No. 6 of 2010
Decided On : 21-01-2022
Indian Succession Act, 1925 – Section 63 and 299 - Evidence Act, 1872 – Section 68 – Will – Recovery of possession - Deceased was a State Government employee and she retired from service - Late one was unmarried - She had one sister and one brother Late one pre-deceased her - He died unmarried during lifetime of Late one - Sister has two daughters - All of them lived together - Said one has four children and other has three children - When late one was aged about 70 years, she went to Punjab for pilgrimage - Before leaving for Punjab, said one had given one closed envelope to Mala – Said one got a telephonic information from an undisclosed source that said one had expired - She was also informed that her last rites were also performed at Punjab - Accordingly, filed a petition for granting probate - Whether it is his will or not and this aspect naturally introduces an element of solemnity in the decision of the question.
Finding of the Court:
Will was executed in a suspicious circumstance - Court have decided to agree with decision of the trial Court - In this case, the most important question that arises is as to what is relationship of appellant with late one Appellant never disclosed his relationship with her - So, this court has sufficient reasons to hold that appellant is a stranger - This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to special requirement of attestation prescribed in the case of a Will by Section 63 of Succession Act - Onus of proving the Will is on propounded and in the absence of suspicious circumstances surrounding execution of the Will, proof of testamentary capacity and signature of testator as required by law is sufficient to discharge onus Reverting to the case in hand, the circumstances categorized hereinbefore clearly show that Will executed by late one was executed in a suspicious circumstances - Appellant being propounder of Will failed to remove doubts by clear and satisfactory evidence - This Court is of the opinion that learned trial court correctly appreciate evidence on record and arrived at a correct finding - Under the said premised reasons, present appeal is devoid of merit.
Result: Appeal is dismissed and disposed of
JUDGMENT :
PARTHIVJYOTI SAIKIA, J.
1. Heard Mr. D. Mazumdar, the learned Senior Counsel appearing for the appellant as well as Mr. S. Chauhan, the learned counsel representing the respondent.
2. This is an appeal under Section 299 of the Indian Succession Act, 1925, against the judgment dated 15.12.2009 passed by the Additional District Judge, FTC No. 2, Kamrup (M) at Guwahati in Probate Title Suit No. 3/2005 rejecting the prayer of the appellant for grant of probate in respect of a Will.
3. Smt. Jagadish Kumari Duggal (now deceased) was a State Government employee and in the year 1992, she retired from service. Late Jagadish Kumari Duggal was unmarried. She had one sister named Prakash Duggal and one brother Late Manohar Duggal pre-deceased her. He died unmarried during the lifetime of Late Jagadish Kumari Duggal.
4. The sister Smt. Prakash Duggal has two daughters namely Saroj Bala and Kanchan Mala. All of them lived together. Saroj Bala has four children and Kanchan Mala has three children.
5. In the month of July, 2004, when Jagadish Kumari Duggal was aged about 70 years, she went to Punjab for pilgrimage. Before leaving for Punjab, Jagadish Kumari Duggal had given one closed envelope to Kanchan Mala.
6. On 29.12.2004, Saroj Bala got a telephonic information from an undisclosed source that Jagadish Kumari Duggal had expired on 09.09.2004. She was also informed that her last rites were also performed at Punjab.
7. After getting the aforesaid news, on 03.01.2005, Kanchan Mala had opened the envelope which was given to her by Jagadish Kumari Duggal. She found that the envelope contained a Will. By that Will, Jagadish Kumari Duggal had bequeathed her property consisting of a plot of land measuring 2 kathas within Guwahati city and an RCC building standing thereon and another property at Shillong, Meghalaya in favour of Saroj Bala.
8. Saroj Bala, accordingly, filed a petition for granting probate.
9. When Notices were issued, the present appellant appeared and contested the claim petition of Saroj Bala. The appellant filed a written statement and also filed a counter claim stating that on 17.09.2004, just 21 days before her death, Jagadish Kumari Duggal had executed a Will in his favour bequeathing the aforementioned properties to him.
10. The appellant denied that late Manohar Duggal, the brother of late Jagadish Kumari Duggal had died unmarried. The appellant claimed that Manohar Duggal was married and had a son and the said son died at the age of 14 years and thereafter, Manohar Dugal and his wife died.
11. The appellant further denied that in the month of July, 2004 late Jagadish Duggal had gone to Punjab for pilgrimage. The appellant has claimed that in the month of July, 2004, late Jagadish Duggal was seriously ill and therefore she called him to look after her. The appellant has stated that he immediately came down to Guwahati and had taken late Jagadish Kumari Duggal to Delhi and Amritsar for better medical treatment.
12. According to the appellant, late Jagadish Kumari Duggal actually expired on 09.10.2004 at Amritsar, Punjab, not on 09.09.2004, as claimed by Saroj Bala. He further claimed that he had performed the last rites of late Jagadish Kumari Duggal at Punjab.
13. On the basis of the pleadings of both sides, the learned trial court had framed the following issues:
2. Whether the deceased handed over the possession of her house or scheduled property to the plaintiff prior to her disposition from Guwahati to Amritsar in July 20th?
3. Whether the plaintiff had entered into the house of deceased in January, 2005 illegally?
4. Whether the defendant is entitled to probate of the Will dated 17.09.2004 executed by the deceased in favour of the defendant at Amritsar?
5. Whether the defendant is entitled to recovering of possession of deceased’s property from the pl
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