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1989 Supreme(Ori) 294
IN THE HIGH COURT OF ORISSA
S.C. Mohapatra, P.C. Misra, JJ.
N.D. SAMANT (AFTER HIM) SATYABHAMA DEBI AND OTHERS - APPELLANT
Versus
KUMARI JAYASHREE ROY AND OTHERS - RESPONDENT
First Appeal No. 135 of 1974
Decided On : 24-01-1989
B.L.N. Swamy, for the Appellant; R.K. Mohapatra, for the Respondent
The onus lies on the propounder of a Will to prove its due execution and to explain any suspicious circumstances, while the caveator must prove any allegations of fraud or undue influence.
Headnote:
INDIAN SUCCESSION ACT, 1925 - WILL - EXECUTION AND ATTESTATION - MENTAL CAPACITY OF TESTATOR - INTERPRETATION OF WILL - SUSPICIOUS CIRCUMSTANCES - BURDEN OF PROOF - LETTERS OF ADMINISTRATION.
Fact of the Case:
Kamalnath Roy, the son of the intermediary of Jeypore Estate, executed a Will (Ext. 10) in Telugu language on 12-2-1972, bequeathing his savings in the State Bank of India, Jeypore Branch and compensation payable to him by the Estates Abolition Tribunal, Srikakulam in Andhra Pradesh to his daughter Jayashree Roy. After Kamalnath's death, Jayashree applied for letters of administration with the Will annexed. The Defendant, Kamalnath's sister's son, filed a caveat and written statement claiming that the Will is not genuine and that Kamalnath was not capable of making the Will due to a paralytic stroke.
Finding of the Court:
The trial court held that the Will is genuine and was executed by Kamalnath in a sound state of mind and had been duly attested. The court found that the suspicious circumstances in the case, such as the testator's illness and the omission to provide for all children in the Will, were explained by the witnesses and the statement in the Will itself.
Issues: 1. Whether Kamalnath executed the Will (Ext. 10)? 2. Whether Kamalnath had the mental capacity to dispose of his property by making the Will? 3. Whether the Will was duly attested? 4. Whether the suspicious circumstances in the case were explained?
Ratio Decidendi: 1. Execution of a Will is to be proved like any other document as provided u/s 67 of the Evidence Act. An unprivileged Will like Ext. 10 is required to be attested as provided u/s 63 of the Act. 2. Disposing capacity of the person executing the Will as provided u/s 59 of the Act is to be proved. 3. Since the propounder cannot succeed unless he proves the due execution of the Will, onus lies on him to prove the same by explaining the suspicious circumstances. 4. Where the caveator questions the genuineness or validity of the Will alleging fraud or undue influence practised on the testator he is to prove the same. 5. Even if the caveator is not able to prove fraud or undue influence, suspicious circumstances arising in the case are to be clarified by the applicant. 6. Court is required to keep in mind these general principle while considering the application for probate or letters of administration.
Final Decision: The court dismissed the appeal and upheld the grant of letters of administration to Jayashree Roy.
JUDGMENT :
S.C. Mohapatra, J. - This is an appeal by the Defendant u/s 299 of the Indian Succussion Act. 1925 (hereinafter referred to as 'the Act').
2. Letter of administration granted in respect of the Will (Est. 10) dated 12-2.1972 written in Telugu language in favour of the Plaintiff by her father Kamalnath Roy is assailed in the present appeal which is being continued by the legal representatives of the original Appellant who died during pendency of the appeal.
3. Trial court accepted the English translation of the Will as follows;
Maharaja Kumar Shri Kamalnath Roy Jeypore Dt. 12-2-72. The money which I have now with me by this dated 12-2-1972 is Rs. 4,303.63 p. Some amount is yet to come from Srikakulam. All these are to be given to my daughter Jayashree. This is written out of my free Will. I have written this in my own hand. As I am suffering from Paralysis, I am not able to write more. There are no heirs. My daughter is the absolute owner. This is my free Will. It shall thus be determined. Kamalnath Roy, 12-2-72.
This translation has not been disputed before us.
4. Kamalnath is the son of Late Vikram Dev, the intermediary of Jeypore Estate. He was residing in the palace at Jeypore. P.W. 2 is the only surviving son of Kamalnath through Susila who died two to three months before Ext. 10. Plaintiff is his eldest unmarried daughter through Jagmohini (P.W. 6), They have two sons and two other daughters. Defendant is the sister's son of Kamalnath. Kamalnath suffered from illness in 1964 to be treated at Vizag. In 1971, he bad a paralytic stroke, as a result of which this capacity to write was partially affected and he could not freely move about. P.W. 2 has been employed as driver in All India. Radio Station at Jeypore. In the aforesaid background, Kamalnath died on 12-4-1972 leaving some amount in deposit in State Bank of India, Jeypore branch and compensation payable to him by the Estates Abolition Tribunal, Srikakulam in Andhra Pradesh. Plaintiff applied to the State Bank of India, Jeypore with the help of P.W. 2 for payment of the deposits of Kamalnath to her on the basis of the Will (Ext. 10) in her favour. Being advised to obtain authority from the Court, Plaintiff filed the application for a letter of administration with the Will annexed.
5. In the application u/s 278 of the Act, Plaintiff claimed that her father on account of love and affection executed the Will (Ext, 10) in her favour on 12-2-1972 bequeathing his savings in the State Bank of India, Jeypore Branch amounting to Rs. 73,393. 63 paise and the compensation amounting to Rs. 79,618.79 Paise in deposit with the Estates Abolition Tribunal, Srikakulam in Andhra Pradesh. Kamalnath having died on 12-4-1972, Plaintiff would be entitled to grant of letters of administration.
6. On receipt of the application citations were issued by the learned District Judge u/s 283(1)(e) of the Act, calling upon all persons claiming to have interest in the Estate of the deceased. On the basis of such citation, Defendant lodged caveat u/s 284(1) of the Act and filed written statement claiming that the Will is not genuine. It was stated that deceased Kamalnath was suffering from Paralytic stroke before the date of alleged execution of the Will and was not able to write or sign properly. As regards conduct of the Plaintiff, he asserted that the Plaintiff, her sisters and the Defendant filed applications for substitution as legal representatives in Srikakulam Court where she did not make any claim on the basis of the last Will of Kamalnath in her favour.
7. There being contention, the proceeding for letters of administration was registered as a suit as required under the rules made by this Court and was heard in the form of a regular suit according to the provision of the CPC as provided u/s 295 of the Act. Plaintiff examined six witnesses in support of her prayer and proved eleven documents including the Will Defendant remained satisfied by examining himself only. On consideration of the ma
