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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J.
Dipak Deka S/o Late Umesh Deka – Appellant
Versus
Ganesh Deka, S/o Late Madhu Ram Deka – Respondent
RFA 7 OF 2021
Decided on : 21-07-2022
Code of Civil Procedure, 1908 - Order XIV Rule 2 - Indian Succession Act, 1925 - Section 276, 63, 59, 61 - Indian Evidence Act, 1872 - Section 68 – Appeal - Proof of execution of document required by law to be attested - Execution of unprivileged Wills - Whether Will in question was executed by Testatrix in sound mind and plaintiff was able to prove same in accordance with law - Supreme court observed that testamentary Court is not a court of suspicion but that of conscience. It has to consider relevant materials instead of adopting an ethical reasoning - It was further observed that a mere exclusion of either a brother or sister per-se would not create a suspicion unless it is surrounded by other circumstances creating any inference. (Para 29)
Findings of Court :
It would be seen that that trial Court had duly taken into consideration while deciding Issue No. II all aspects including fact that Will has been proved, there is no contradiction in evidence of plaintiff witnesses and circumstances under which Will was executed was also not suspicious. This Court duly agrees to findings of Court below as regards Issue and same is in accordance with well settled principles of law - It is also relevant to take note of that trial Court while passing judgment have also taken into consideration Issue Nos.III and IV as would be seen from a perusal of Order whereby, petition for Probate was allowed on contest without cost and appropriate directions were issued in that regard.
Result : Appeal dismissed.
JUDGMENT :
Heard Mr. R.K. Jain, learned counsel for the appellant and Mr. S.P. Roy, learned counsel for the respondent.
2. The instant appeal arises out of the judgment and decree dated 18.06.2020 passed by the Court of the Additional District Judge No.5, Kamrup (M), Guwahati in Probate Title Suit No.11/2014 thereby granting the probate of the Will dated 14.06.2010.
3. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the trial Court.
4. One Niroda Deka (since deceased), (herein after referred to as testatrix) had executed a will dated 14.06.2010 whereby, the Plaintiff was made executor of the will and the properties described in the Schedule to the said Will was bequeathed in favour of her daughter Smti. Niva Deka. The testatrix expired on 14.07.2010 at her residence at Maligaon Chariali, Guwahati 781011. Pursuant thereto, the Plaintiff being the executor of the Will dated 14.06.2010 filed an application under Section 276 of the Indian Succession Act, 1925 (for short “the Act of 1925”) for a Probate with Will annexed. In the said application citation was given as regards three sons and the daughter of the testatrix. The said application was filed before the Court of the District Judge, Kamrup (M) at Guwahati and was registered and numbered as Misc (P) Case No.374/2010. The record shows that on 18.11.2011, the plaintiff filed two evidence on affidavit alongwith NOC’s of the defendant No.1 & 2. Relevant to mention that the counsel appearing for the Defendants had filed a Petition No.40/2011 praying adjournment for filing objection and accordingly 14.02.2011 was fixed for filing objection. It reveals from the record that on 02.07.2011 the Defendant Nos.1 and 2 filed their written objection.
5. In the said written objection various preliminary objections were taken as regards the non maintainability of the said Probate proceedings. On merits, it was stated that late Niroda Deka (testatrix) had not left any Will or testament in favour of the malafide beneficiaries and or in favour of the Plaintiff as her executor in any manner and hence the question of grant of Probate certificate by the Court in favour of the Plaintiff did not arise at all. It was further stated that the alleged Will is not a registered instrument/document as per the requirement of the Registration Act as it relates to immovable property, value of the said is more than Rs.100/-and hence the same is liable to be dismissed/rejected with cost. In paragraph No.11 which is the reply to the statements made in paragraph Nos.2, 3, 4, 5, 6, 7 and 8 of the Probate Application the Defendants stated that alleged Will is not executed and left behind by the deceased Niroda Deka and the same is a forged, manufactured and got up document of the illegal beneficiary and the petitioner made out taking the advantage of the helpless conditions of the answering Defendants. Relevant herein to mention that except the denial of execution of the Will, there was no mention whatsoever, as to why the Will has been stated to be forged, manufactured and got up document.
6. It is pertinent to mention that a perusal of the written objection would not disclose in any manner that there was any suspicious circumstances leading to the execution of the said Will by the Testatrix. The record further shows that pursuant to the filing of the said written objection the said Probate Misc (P) Case No.374/2010 was re-registered as Title Suit No.6/2011. On 26.06.2012, the Court below framed as many as 4 (four) issues which are as follows:
(II) Whether Niroda Deka (since deceased) executed her last Will on 14.06.2010 in due conformity with law?
(III) Whether the Plaintiff/Petitioner is entitled to the relief as prayed for?
(IV) To what any other relief/relief(s) the parties are entitled to?
7. The record further reveals that on 26.09.2013 the plaintiff filed evidenc
Point of Law : It has to consider relevant materials instead of adopting an ethical reasoning. It was further observed that a mere exclusion of either a brother or sister per-se would not create a su....
The propounder of a Will must prove its execution and validity, and the presence of suspicious circumstances must be specifically pleaded by the opposing party to shift the burden of proof.
The propounder of a Will must satisfactorily dispel all suspicious circumstances regarding its validity, particularly when substantial benefits accrue to them, or the Will may be deemed invalid.
The mere presence of beneficiaries during will execution is not sufficient to invalidate it; the burden of proving suspicious circumstances lies with the challengers.
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