Sumeshwar Chaudhur & Ors. v. The State of Bihar

which was the background under which he decided to execute will in respect of the property in favour of the appellants on the condition that the said property will remain with Madhuban Chaudhur till his lifetime and after his death the property shall go to the hands of the appellants.

11. Since after deliberations and discussion of evidence of witnesses the court below came to a finding that the will is not a genuine one as it is full of suspicious circumstance, the probate cannot be granted in favour of these appellants. The probate case was dismissed and therefore the 6 present appeal.

12. Learned senior counsel representing appellants submits that though the will was not a registered document but there was ample evidence of its authenticity as well as reliability, therefore, the dismissal of the probate case was uncalled for.

13. Section 68 of the Evidence Act requires execution to be proved and the same was proved by PW-1 and PW-2. Nothing more was required to be done thereafter. An alternative argument was also taken that since section 295 of the Indian Succession Act, 1925 was not followed in the present case, i.e. the probate case was not registered as a suit and tried in that manner, the judgment of the trial court stands vitiated and it was required to be interfered with.

14. Counsel representing respondent no.2 is in support of the judgment saying that no illegality or error of fact or law emerges from a reading of the said decision. The whole story of the will has been created to somehow pre-empt gift of the property by the mother to her daughter as they were the only successors to the interest and property of Madhuban Chaudhur. Since we are still a patriarchal society, the appellants would not digest the fact that any property of the 7 family member would be given away to the daughter who after marriage is treated as an alien to the family. There is no other reason why this fraud of creation of a will was resorted to.

15. The reading of the will would show that it is a first person account. There is no endorsement in the end of the will that after it has been written it was read out to the testator. The thumb impression of the testator is smudged. In fact, it is quite blurred and not capable of comparison to similar thumb impressions of Madhuban Chaudhur, which was readily available and which was not used for comparison. The opinion of the so-called expert pressed into service by the appellants is an obtained opinion. The so-called expert is not even an expert. He seems to be a kind of self-taught expert as his certificate would show that he is only an LLB. There is no technical degree which he possesses, which could instill confidence or could be relied. The evidence contrary to the same is otherwise. The thumb impressions are smudged. None of the thumb impressions were of the kind which could be compared to each other. In fact the thumb impressions are different. That is why the trial court came to a considered opinion that the will seems to be forged and fabricated from which no benefit could be derived by the claimants. Suspicious 8 circumstance behind the creation of the will is a very strong test which may go against the interest of propounders even they are not in a position to remove the same. Reliance is placed on certain decisions of the Apex Court rendered in the case of Kandiyan Kousallia and ors V. Kandiyan Yesodha and others, 2001 (3) PLJR 190 (SC), H Venkatachala Iyengar Vs. B N Thimmajamma and ors, AIR 1959 SC 443 (especially emphasis is on para 20 and 21 of the said decision). Another decision is the case of Kalyan Singh vs. Smt. Chhoti and others, AIR 1990 SC 396. Para 20, 21 and 22 have significance to the proposition, which are reproduced herein below: “20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity if the will cannot be determined merely by considering evidence 9 produced by the propounder. In order to judge the credibility of the witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party (emphasis mine).

21. In H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426: (AIR 1959 SC 443) Gajendragadkar, J., as he then was, has observed that although the mode of providing a will did not ordinarily differ from that of providing any other document, nonetheless it requires an element of solemnity in the decision on the question as to whether the document pronounced is proved as the last will and testament of departed testator. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Where 10 there are suspicious circumstances, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as a last will of the testator. These principles have been reiterated in the subsequent decisions of this Court in Rani Purnima Devi v. Umar Khagendra Narayan Dev, (1962) 3 SCR 195: (AIR 1962 SC 5676) and Smt. Indu Bala Bose v. Manindra Chandra Bose, (1982) 1SCC 20: (AIR 1982 SC 133).

22. The Privy Council in Mt. Biro v. Atma Ram, AIR 1937 P.C. 101 had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There are alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his step-mother and his paternal aunt. These women though entitled under the Hindu Law only to maintenance were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was, however, provided that the 11 lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her husband’s estate, if she predeceased any of her co-devisees. The will was not produced until 22 years after its execution though there were occasions to produce it, had it been in existence. Considering these circumstances, the Privy Council (at p. 104): “It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them. That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But is not the only circumstance which tells against genuineness. The will purports to have been executed on 24th August 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisors could have produced the documents, if it 12 had been in existence; but they did not do so………………” The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator’s wife seems to be unnatural. It casts serious doubt on genuineness of the will. The will has not been produced for very many years before the court or the public authorities even though there were occasions to produce it for asserting plaintiff’s title to the property. The plaintiff was required to remove these suspicious circumstances placing satisfactory materials on record. He has failed to discharge his duty. We, therefore, concur with the conclusion of the High Court and reject the will as not genuine.”

16. Counsel for the O.Ps. further takes stand that there is yet another strong circumstance against the will because reading of the same would show that it made no provision for the widow even though she was very much alive and living with the testator in the same house. It is also strange that the wife had absolutely no knowledge or information about such a desire of Madhuban Chaudhur. The will came into existence without making any provision and to clear ouster of the widow from the arrangement made in the 13 will even during her life time.

17. Learned senior counsel for the appellants relies on a recent decision rendered in the case of Krishna Kumar Birla v. Rajendra Singh Lodha and others, (2008) 4SCC

300. Emphasis is on paragraph187 of the said decision as well as in the case of Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others, AIR 1995 SC 1684, which indicates that deprivation of legal heirs by itself will not make the will suspicious.

18. The Court after hearing the parties has carefully gone through Ext.2, the document relating to the will as well as the evidence led on behalf of both the parties. Though the Court may not be an expert on the issue but a naked examination of the so-called thumb impression would show that there is no consistency amongst the various pages where it has been used. The thumb impressions are deliberately smudged to ensure that proper comparison and verification with another thumb impression of the testator would not be made possible, which is of significance with regard to the authenticity of the will. The court has been taken through the various statements of the witnesses, their examination-in-chief as well cross-examination. All that is pointer to only one 14 aspect that the creation of the will is not above suspicion, which has been dealt with in quite detail by the learned trial court. The trial court has discussed the evidence which was led both on behalf of these appellants which are documentary as well as oral as well as the materials pressed into service by the respondents and has rightly come to the conclusion that the will is not worthy of acceptance as it is full of suspicious circumstance. The various infirmities in the evidence of the witnesses pressed into service on behalf of the appellants have emerged in the judgment of the trial court and it cannot be the case of these appellants that the trial court has very casually brushed aside their assertion and evidence without meeting the arguments. In fact, the court certifies that the various parameters involved in the dispute with regard to the issues of the will has been correctly analyzed and answered and the trial court has rightly rejected grant of probate as this Court also comes to a considered opinion that the whole story of will and its creation was with the object of ensuring that the property of Madhuban Chaudhur did not pass into the hands of a woman who after marriage is not treated as part of the family. The whole game in filing of this case on behalf of the appellants was to prevent the daughter of Madhuban 15 Chaudhur from acquiring any interest or benefit in her share and property left behind by her father by method fair and foul.

19. To sum, therefore, the appellants have failed to establish their claims for grant of probate both before the trial court as well before the this Court.

20. As regards the technical plea that since the probate case was not registered as a regular suit under section 295 of the Indian Succession Act, 1925, this Court can only hold that the case has been tried as a suit and the judgment of the trial court indicates that the same has all the attributes of the suit and which goes into the decisions of a suit. Mere non- labeling of the probate case as suit will not take away the benefit of the judgment by holding the judgment to be vitiated, as is the stand of the appellants’ counsel.

21. The appeal has no merit. It is dismissed. (Ajay Kumar Tripathi, J) Patna High Court; The 14 March,2013 R.K.Pathak/- (NAFR)