…... Laxman Chandra Mandal @ Lakhan Chandra Mandal Ashok Mandal & Ors v. ….. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellate Jurisdiction) M.A. No. 332 of 2018 …... Laxman Chandra Mandal @ Lakhan Chandra Mandal Ashok Mandal & Ors. Versus ….. …… Appellant . .……Respondents
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO …... For the Appellant For the Respondents : Ms. Priti Priyamvada, Advocate : ----- The matter is being taken up through Video Conferencing. Learned counsel for the appellant has no objection with it and submitted that audio and video qualities are good. 06/ Dated: 05/05/2023 Heard, learned counsel, Ms. Priti Priyamvada on the instruction of learned counsel for the appellant, Mr. Manish Mishra. The appellant/plaintiff- Laxman Chandra Mandal @ Lakhan Chandra Mandal has preferred this Miscellaneous Appeal against the judgment dated 30.01.2018 in Original Suit No.3 of 2012, passed by learned District Judge-IV, Jamshedpur whereby the Original Suit No.3 of 2012 has been dismissed on the ground that there is delay in filing the petition, one of the attesting witness examined in this case is not reliable and the evidence of appellant/plaintiff has been found not reliable. Learned counsel, Ms. Priti Priyamvada on the instruction of learned counsel for the appellant, Mr. Manish Mishra has assailed the impugned award on the ground that learned Court below has not considered the judgment passed by the Hon'ble Supreme Court in the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur, reported in (2008) 8 SCC 463, which has taken note of the judgment passed by the Bombay High Court in the case of Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [AIR 1983 Bom 268] and relied upon para 15 of the same, which is quoted hereunder:- “15. Similarly reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [AIR 1983 Bom 268] . Para 16 reads as follows : (AIR p. 270) “16. Rejecting Mr Dalpatrai's contention, I summarise my conclusions thus— (a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; (b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (c) such an application is for the court's permission to perform a legal duty -2- created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death; (e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion; (f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates.” Conclusion (b) is not correct while Conclusion (c) is the correct position of law. Learned counsel, Ms. Priti Priyamvada on the instruction of learned counsel for the appellant, Mr. Manish Mishra has thus submitted that impugned order may be set aside and the will may be probated. After hearing, learned counsel for the appellant, perused the impugned order as well as the judgment relied upon by the learned counsel for the appellant, it appears that the appellant has filed a probate case in the year, 2010 with regard to will dated 15.02.2008 executed by his father, Late Nityanand Mandal, which was subsequently converted, on objection filed by the defendant nos.1 and 2/ respondent nos.1 and 2 on 16.11.2011 as Title Suit No.3 of 2012 in terms of order dated 15.03.2012. Father of the applicant died on 03.07.2008 as natural death at Village Burudih, P.O. Sangram, P.S. Potka, District- Singhbhum East, Jharkhand. It is clear from the facts of the above mentioned that the Probate Case has been filed well within the limitation prescribed under the Law i.e. Article 137 of the Limitation Act, 1963. However, no such plea with regard to the Limitation has been raised before the court below by the appellant, as such, this Court is not inclined to allow the appellant to raise new plea and issue, which have not been agitated before the court below. It further appears that the appellant is relying upon a will dated 15.02.2008 executed by his father, Late Nityanand Mandal notarized before the Notary Public, Sri Pramod Kumar Bhagat and executed in presence of three attesting witness and the appellant/ plaintiff was appointed as executor of the will. As per the contents of the Will is Nityanand Mandal desire to bequeathed all his schedule property after his death in the name of his grand-daughter, namely, Mausmi Mandal, W/o Sri Rabindranath -3- Mandal due to love and affection and for looking after in all respect by her, though, Nityanand Mandal had three sons, namely, Lakhan Chandra Mandal, Ashok Mandal and Achinta Mandal. The defendant has appeared before the court below and opposed the prayer and submitted in the written statement that Will is forged and fabricated by the plaintiff along with his son-in-law and it is manufactured on the old papers approximately 20 years. The plaintiff-appellant has forged and fabricated signature of his father and he prepared it with help or assistance of son-in-law and his friends of Village Sangram only to grab the property to deprive the defendants from their legitimate share and it is beyond natural inheritance. Nityanand Mandal used to reside with the defendants till his lifetime and he was never look after for plaintiff or his daughter and as such, there is no question of sympathy or love and affection for his elder son and his family and Nityanand Mandal has died on 03.07.2008 on sudden heart attack after prolonged illness. The learned court below has framed five issues, which are as follows:- (i) Whether Nityanand Mandal executed Will on 15th February, 2008 voluntarily and in healthy mind ? (ii) Whether the Will dated 15th February, 2008 was last Will of testator Nityanand Mandal? (iii) Whether the plaintiff/ appellant has right to get Probate of Will dated 15 th February, 2008 executed by Nityanand Mandal ? (iv) Whether the court has jurisdiction to issue probate? and (v) Whether Laxman Mandal is entitled to get relief of Probate of Will of his father Nityanand Mandal ? The issue nos.(i), (ii), (iii) and (v) have been decided against the plaintiff-appellant and with regard to issue no.(iv) it has been decided that the court below has territorial jurisdiction to decide the same. While deciding issue nos. (i), (ii), (iii) and (v), the learned Tribunal has considered the evidence of P.W.-1 (Laxman Chandra Mandal, plaintiff-appellant) P.W.2 (Muchiram Kaibart), P.W.-3 (Pado Mandal) and P.W.-4 (Avanikant Mandal) and also considered the defendant witnesses, Ashok Mandal (D.W.1), Aswani Mandal (D.W.-2), Achinta Mandal (D.W.-3), Dibakar Mandal (D.W.- 4). The documentary evidence has also been brought on record such as death certificate of Nityanand Mandal marked as Exhibit-1, Will and four signatures of the testatrix on the Will, four signatures of Advocate, A.K. -4- Pradhan on the Will and signature of attesting witness, Shaktipad Mandal, Khirod Sardar and the signature of witness (P.W.-2- Muchiram Kaibart) as attesting witness have been marked in series of Exhibit-2 (Exhibit- 2 to Exhibit-2/11). Further one compromise deed dated 27.04.1990 and Bantanama have also been marked as Exhibit-3 and Exhibit-4 and sale deed dated 05.03.1997 marked as Exhibit-A. The learned court below has considered the oral and documentary evidence and found the witnesses of the plaintiff-appellant to be not reliable. A detail reasoning has been given by the court below. P.W.-2- Muchiram Kaibart has submitted in examination-in-chief that after reading and caused it to be read, the testator marked his signature before this witness in Bangla script, but it appears that preparation of dead in Bangla language is normal function among their society, but the testament was prepared in Hindi. If the testator is acquainted with Bangla script what was the need for preparing Will in Hindi. Whether he understand Hindi at that time has not been dealt with in the Will paper ? The court below has also found that there is no evidence that P.W.-2 or any other witness explained the contents of the testament to the testator at the time or before making sign by the testator on the testament. Considering the same, when the reliability and authenticity of a Will is not unimpeachable that too notarized before a Notary Public and the register has also not been marked as Exhibit, so as to establish that when it was executed, the learned court below has rightly rejected the same. The principle laid down under Sections 68 and 69 of the Indian Evidence Act, 1872 as well as under Section 63(c) of the Indian Succession Act, 1925 has also not been followed and the reason, which has been assigned by the learned court below does not suffer from any illegality, irregularity or impropriety, this Court sitting in Miscellaneous Appeal is not inclined to interfere with the same. Accordingly, the instant Miscellaneous Appeal is dismissed. R.S./ (Kailash Prasad Deo, J.)