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1979 Supreme(Sikk) 4
Sikkim High Court
MAN MOHAN SINGH GUJRAL,A. M. BHATTACHARJEE
Sonam Topgyal Bhutia - Appellant
Versus
Gompu Bhutia - Respondent
Decided On : 06/14/1979
A. Moulik, for Appellant; B. C. Sharma, for Respondent; S. R. Sarkar Advocate General with Anup Deb, Government Pleader, on Court Motion.
Wills in Sikkim are legal and valid modes of post-mortem disposition of property under the laws of Sikkim, and the provisions relating to Wills in the Indian Succession Act, 1925 have become the laws of Sikkim through their continuous and systematic recognition and application by the Courts in Sikkim.
Headnote:
WILL - PROBATE - EXECUTION - SUSPICIOUS CIRCUMSTANCES - ONUS OF EXPLAINING - SHIFTING OF BURDEN OF PROOF - GENUINENESS OF WILL - TESTAMENTARY POWER OF SIKKIMESE-BUDDHISTS - RECOGNITION BY COURTS AND LEGISLATIVE PROVISIONS - INCORPORATION OF INDIAN SUCCESSION ACT, 1925 PROVISIONS INTO SIKKIM LAW.
Fact of the Case:
The appellant filed an application for probate of a will alleged to have been executed by his uncle. The District Judge dismissed the application, finding that the will was not genuine and seemed to have been forged by the appellant with the help of his witnesses. The appellant challenged the judgment on appeal.
Finding of the Court:
The court held that the onus of explaining suspicious circumstances surrounding the execution of a will is heavily on the propounder and that the District Judge was correct in his approach to the question of law involved in the case. However, the court found that the four circumstances relied on and regarded by the District Judge as suspicious were not strong enough to throw any reasonable doubt as to the genuineness of the will.
Issues: 1. Whether the execution of the will was doubtful due to suspicious circumstances. 2. Whether Sikkimese-Buddhists can make a will under the law applicable to them. 3. Whether the provisions of the Indian Succession Act, 1925 relating to wills are applicable in Sikkim.
Ratio Decidendi: 1. The court held that the fact that the testator, who knew how to sign his name, executed the will by his thumb mark was not a suspicious circumstance, especially considering that he was seriously ill at the time. The court also found that the fact that the testator described the appellant as his adopted son in the will, even though there was no formal adoption ceremony, did not make the will doubtful. Further, the court held that the fact that an orange orchard was bequeathed to the respondent in the will, even though the respondent claimed it belonged to him, did not raise any suspicion as the evidence did not show that the orchard actually belonged to the respondent. Lastly, the court held that the fact that the testator excluded the respondent, his brother, from the will was not a suspicious circumstance, as the testator may have had various motives for doing so. 2. The court held that there is no statutory law in Sikkim authorizing testamentary disposition, but that Wills had been and have been recognized, acted upon, and given effect to in the Courts of Sikkim as valid modes of post-mortem disposition of properties. The court traced the history of Hindu Wills in India and found that the testamentary power of Hindus was not created by legislation but was rather recognized and confirmed by legislations and judicial decisions. The court held that the same is the case in Sikkim, where the power to make Wills has been exercised by the people and has been accepted and recognized by the Courts of Sikkim. 3. The court held that the provisions relating to Wills in the Indian Succession Act, 1925, which have never been formally adopted in or extended to Sikkim by any formal legislative authority, are to be regarded as laws in force in Sikkim. The court reasoned that the provisions have been "recognized" "applied" and "acted on" by the Courts of justice in Sikkim in the administration of justice in matters relating to Wills, and therefore, are to be regarded as Laws in force in Sikkim.
Final Decision: The court allowed the appeal, set aside the judgment of the District Judge, and directed the grant of Probate of the Will to the appellant-petitioner.
BHATTACHARJEE, J. :- The application filed by the appellant for probate of the will alleged to have been executed by his uncle Midung Bhutia has been dismissed by the learned District Judge on the finding that "the Will cannot be called to be a genuine Will of the deceased and seems to have been forged by the petitioner along with the help of his witnesses" and being aggrieved by his judgement as aforesaid the appellant has preferred this appeal.
2. The learned District Judge has held that there are strongly suspicious circumstances surrounding the execution of the Will and the onus of explaining these circumstances and of removing the suspicion from the mind of the Court rests squarely on the appellant and that he has failed to discharge the onus in this case. That the onus of explaining the suspicious circumstances surrounding the execution of the Will is heavily on the propounder is settled by a series of authorities of the Privy Council and the Supreme Court and the decision of the Calcutta High Court in Sushma Bala Devi v. Anath Nath Tarafdar (AIR 1976 Cal 377), relied on by the learned District Judge, has referred to some of these Supreme Court decisions on the point including the leading decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma, (AIR 1959 SC 443) and has, if I may say with respect, correctly deduced the law on the point. But while the learned District Judge is correct in his approach to the question of law involved in this case, he is, I am afraid, quite wrong in his appreciation of the evidence on record and, as I shall presently show, the four circumstances relied on and regarded by him as suspicious are not strong enough to throw any reasonable doubt as to the genuineness of the Will.
3. The first circumstances referred to and regarded by the learned District Judge as suspicious is that while it is in evidence that the alleged testator knew how to sign his name, the Will, Ex. 1, however, bears only the thumb mark of the deceased. But it is the respondent's own case that the testator was seriously suffering from tuberculosis and other ailments for about a year before the execution of the Will and it is not unusual that a person, who knows how to sign his name, may execute a document by mark only if he has become disabled to write his name by using a pen or otherwise due to his illness or some other cause. It is no doubt in evidence that the testator knew to sign his name and as such under ordinary circumstances one would have expected some evidence from the side of the propounder as to why the testator executed the Will by his thumb mark and not by his written signature. But the respondent his two petitions of objection has not challenged the execution of the Will and has rather admitted the execution thereof by the testator, his only case being that such execution was the result of force and conspiracy. But it is settled law, as will also appear from the above noted Supreme Court and Calcutta decisions, that if the execution of the Will is not challenged but exercise of fraud or undue influence or coercion is alleged by the caveator, then it is for the caveator to prove such fraud, undue influence or coercion. On the evidence on record, no case of fraud, undue influence or coercion has been made out nor the learned District Judge has made any such finding. As already noted, the learned District Judge has thought that the fact of execution by thumb mark by a testator knowing to sign his name is sufficiently suspicious. But in my view, in the absence of any challenge to the execution of the Will by the testator, such fact alone cannot make the execution of the Will doubtful in any way, particularly when it is the admitted case that the testator was
suffering from serious illness for a long time before the execution of the Will. It should also be noted that no question was at all put to the propounder or any of his witnesses during their examination as to the testator's knowing how to sign his name
