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2024 Supreme(Gau) 724
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PARTHIVJYOTI SAIKIA, J.
Damayanti Bora D/o Late Nalia Bora – Petitioner
Versus
Neelamani Bora W/o Jogen Bora – Respondent
Intest. Case No. 1 of 2006
Decided On : 08-05-2024
Advocate Appeared:
For the Petitioner: S. Bora.
For the Respondents: H. Kashyap, A.D. Choudhury.
IMPORTANT POINT
The burden of proof lies on the propounder to establish the validity and execution of a Will, and suspicions about its execution must be dispelled with a cogent and convincing explanation.
Headnote:
Indian Succession Act - Will Execution - Section 63 of the Indian Succession Act, 1925, Section 68 of Indian Evidence Act 1872 - The court discussed the principles required for proving the validity and execution of the Will as per the Indian Succession Act and Indian Evidence Act. The court emphasized the requirements for a valid Will, the necessity of attestation by witnesses, and the burden of proof on the propounder to remove suspicions about the execution of the Will.
Fact of the Case:
The appellant sought probate for a Will executed by her father in her favor. The respondent contested the Will's authenticity, claiming the testator was not of sound mind at the time of execution.
Finding of the Court:
The court analyzed the evidence and held that the Will was valid and genuine, dismissing the doubts raised by the respondent.
Issues: The issues included the authenticity of the Will, non-joinder of necessary parties, suppression of material facts, and valuation of the suit.
Ratio Decidendi: The court emphasized the requirements for a valid Will, the necessity of attestation by witnesses, and the burden of proof on the propounder to remove suspicions about the execution of the Will.
Final Decision: The appeal was allowed, the impugned judgment was set aside, and probate was granted in favor of the appellant.
JUDGMENT :
PARTHIVJYOTI SAIKIA, J.
1. Heard Ms. S. Bora, learned Counsel appearing for the appellant as well as Mr. A.D. Choudhury, learned counsel representing the respondents.
2. This is an appeal under Section 299 of the Indian Succession Act, 1925 whereby the judgment and order dated 15.09.2005 passed by the learned Addl. District Judge, Nagaon in T.S. (P) Case No. 30/2004 is under challenge.
3. On 09.05.2000, late Nalia Bora executed a Will bequeathing certain landed properties in favour of his daughter Damayanti Bora, the appellant. After the death of Nalia Bora, Damayanti Bora filed an application before the court below seeking a Probate.
4. Notices were issued to other legal heirs of late Nalia Bora. He had other daughters and a pre-deceased son who had left behind two wives and children.
5. Smti. Renu Bora, one of the daughters of late Nalia Bora, contested the application filed by Damayanti Bora. She has claimed that her father was suffering from cancer and therefore, he did not have a sound mind at the time of execution of the Will.
6. Smti. Renu Bora further submitted that late Rupam Bora was the only son of Nalia Bora. Even then, his heirs were overlooked while executing the Will and this fact is sufficient to create a doubt about the authenticity of the Will executed by Nalia Bora.
7. Since Smti. Renu Bora has contested the Will of Damayanti Bora, the petition was converted to a Title Suit.
8. The court below framed the following issues:
(1) Whether the suit is maintainable in the present form?
(2) Whether the suit is bad for non-joinder of necessary parties?
(3) Whether the Will is genuine and executed by the testator in sound health and mind?
(4) Whether the suit is bad for suppression of material facts?
(5) Whether Adhani Bora is daughter of Nalia Bora?
(6) Whether the suit property is properly valued?
(7) Whether letter of administration can be issued in favour of the plaintiff as prayed for?
(8) To what relief, if any the parties are entitled to?
9. During the hearing of the case, Damayanti Bora examined herself along with two other witnesses, namely-Khageswar Medhi and Ramananda Debogoswami. Similarly, Renu Bora examined herself along with another witness namely-Dr. Hemanta Phukan.
10. On the basis of the evidence on record, the trial court held that there was no evidence to show that late Nalia Bora disliked his only son, deceased Rupam Bora and that is why he was overlooked while bequeathing property in favour of his daughter Damayanti Bora. The trial court held that the Will was not genuine as the testator Nalia Bora did not have a sound mind at the time of execution of the Will.
11. I have considered the submissions made by the learned counsel of both sides.
12. The only point for determination in this appeal, is as to whether the Will (Ext.1) is a genuine Will or not? The learned trial court has framed the Issue No. 3 to decide this question. Therefore, I shall take up Issue No. 3 first, before taking up rest of the issues.
ISSUE NO. 3
13. At this stage, a brief visit to Section 63 of the Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872 would be fruitful. They read as under:
“Section 63 of the Indian Succession Act, 1925
Execution of unprivileged wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of t
