Point of Law: Succession - Joint family property - Probate of Will - It is true that, no limitation has been prescribed under law for grant of probate of Will - But in wake of various disputes between co-sharers over the joint family property, apparent silence of plaintiff about execution of so called Will for such a long period, is certainly a doubtful circumstance against him.

JUDGMENT :

B.P. ROUTRAY, J.

1. Both the appeals have been directed against the common judgment dated 12th November, 1999 of the learned Single Judge passed in F.A. Nos. 64 of 1996 and 183 of 1996.

2. The original Plaintiff is the deceased-appellant in both the present appeals. Defendant No. 6 was the appellant in F.A. No. 64 of 1996 and Defendant No. 2 was the appellant in F.A. No. 183 of 1996. For convenience, the parties here-in-after are referred with their original status in the suit.

3. The Plaintiff filed Original Suit No. 40 of 1987 under Section 276 of the Indian Succession Act for probate of the Will dated 10th April, 1960. The case of the Plaintiff is that, Harekrushna is the testator and he (Plaintiff) is the legatee in respect of the Will. Harekrushna has 1/4th share in ‘B’ schedule property of the suit. He was a leper and died as a bachelor on 6th March, 1962. Though Plaintiff is the natural brother of Harekrushna, but was adopted to the brother of their natural father. Similarly, Defendant No. 2, who was the grandson of Banchhanidhi, another brother of natural father of Harekrushna and Plaintiff, has been adopted by Alekha belonging to another branch of the common ancestor Banamali. Since the genealogy has been mentioned in the suit as well as in the First Appeal, the same is not mentioned in detail here.

4. It is stated by the Plaintiff that Harekrushna in the later part of his life was kept in a Leprosy Ashram till his death. Before his death, Harekrushna executed an unregistered ‘Will’ in favour of the Plaintiff on 10th April, 1960 out of his free will in presence of the witnesses. Being a leprosy patient he had lost the fingers and at the time of execution of the Will, the scribe attested the thumb impression (Santak) of Harekrushna on the Will in presence of the witnesses as per his direction as he was unable to put his signature.

5. The suit was contested by Defendant Nos. 1 to 3 and 5 to 7. Defendant No. 8 supported the contention of the Plaintiff and other Defendants did not come to contest. As per the contesting Defendants, no such Will was executed by Harekrushna. Ext.1 (the Will) is a fabricated and forged document. These defendants also disputed the date of death of Harekrushna and as per them, he died prior to 10th April, 1960 even before attending the age of majority. Therefore, the interest of the alleged testator in the joint family property passed on to the surviving members of the joint family.

6. The learned trial court framed six issues. All such issues were answered in favour of the Plaintiff and the probate was granted by judgment and decree dated 22nd January, 1996.

7. Against the same Defendants 2 and 6 filed F.A. No. 183 of 1996 and F.A. No. 64 of 1996 respectively. The learned Single Judge reversed the findings of the learned trial court in both the appeals and allowed the same by setting aside the judgment and decree of the learned trial court.

8. The appellant contends before this Court in the present appeals that the findings arrived at by the learned Single Judge in the First Appeals are contrary to the evidence and materials brought on record and as such, liable to be set aside.

9. The main dispute is whether the alleged Will under Ext.1 is genuine or a forged and fabricated document. All six issues are connected to this dispute. The learned Single Judge doubted the genuineness of the Will on analysis of the evidence regarding presences of witnesses at the time of execution of the Will, its attestation and suppression (of Ext.1) by the Plaintiff for around twenty years after death of the testator.

10. Admittedly the Will under Ext.1 is unregistered and does not contain signature of the testator. It is explained that due to loss of fingers of the testator, he could not put his signature or thumb impression on the same. The pleading at para-3 of the plaint is specific to the extent that, “As a matter of fact the executant being a Leprosy patient at the time of execution he was unable to put his