M. Ram Kumar Murty 1.M. Adi Narayan Murty 2.D. Vijay Laxmi … v. WITH M.A. No. 645 of 2018 M. Ram Kumar Murty 1.M. Adi Narayan Murty
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Appellate Jurisdiction) M.A. No. 644 of 2018 M. Ram Kumar Murty 1.M. Adi Narayan Murty 2.D. Vijay Laxmi …... Versus WITH M.A. No. 645 of 2018 M. Ram Kumar Murty 1.M. Adi Narayan Murty 2.D. Vijya Laxmi …... Versus …… Appellant ……Respondents …… Appellant ……Respondents CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO For the Appellant For the Respondent no.1 ….... -----
Legal Reasoning
: Mr. Amit Kumar Das, Advocate Mr. Kanisk Kumar Deo, Advocate [in both cases] : Mr. Kundan Kumar Ambastha, Advocate [in both cases] The matters are being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that audio and video qualities are good. 08/Dated: 15/05/2023. I.A. No.594 of 2020 in M.A. No.644 of 2018 & I.A. No.1490 of 2020 in M.A. No.645 of 2018 Mr. Amit Kumar Das, learned counsel for the appellant assisted by Mr. Kanisk Kumar Deo, learned counsel has submitted that I.A. No.594 of 2020 in M.A. No.644 of 2018 and I.A. No.1490 of 2020 in M.A. No.645 of 2018 have been filed for condonation of delay of 296 days in filing both these Miscellaneous Appeals, as such, the delay may be condoned. Mr. Kundan Kumar Ambastha, learned counsel appearing on behalf of the respondent no.1 has no objection. Considering the same, I.A. No.594 of 2020 in M.A. No.644 of 2018 and I.A. No.1490 of 2020 in M.A. No.645 of 2018 are allowed and the delay of 296 days in preferring these Miscellaneous Appeals is condoned. M.A. No. 644 of 2018 and M.A. No. 645 of 2018 Heard, Mr. Amit Kumar Das, learned counsel for the appellant-M. Ram Kumar Murty in both these appeals assisted by Mr. Kanisk Kumar Deo, learned counsel and Mr. Kundan Kumar Ambastha, learned counsel for the respondent no.1-M. Adi Narayan Murty in both these appeals. M.A. No.644 of 2018 has been preferred by the appellant- M. Ram Kumar Murty against the impugned judgment dated 12.09.2017 passed by the learned District Judge-V, East Singhbhum at Jamshedpur in Probate Case No.22 of 2010, -2- whereby the Probate application with respect to Will dated 06.05.2009, filed by the respondent No.1-M. Adi Narayan Murty, has been allowed. M.A. No.645 of 2018 has also been preferred by the appellant- M. Ram Kumar Murty against the impugned judgment dated 12.09.2017 passed by learned District Judge-V, East Singhbhum at Jamshedpur in Title Suit No.1 of 2012, whereby the alleged Will dated 23.06.2009 executed in favour of M. Ram Kumar Murty has been dismissed on contest. Learned counsel for the appellant, Mr. Amit Kumar Das has submitted, that both impugned judgments passed by learned District Judge-V, East Singhbhum at Jamshedpur are not sustainable in the eyes of law as the learned Court below has admitted that there are two Wills one is of dated 06.05.2009 and another is of dated 23.06.2009, which is in favour of the appellant-M. Ram Kumar Murty, as such, the last Will dated 23.06.2009 can only be considered. Learned counsel for the appellant, Mr. Amit Kumar Das has further submitted, that revocation of Will dated 22.06.2009 has rightly been proved in compliance of provisions under Section 70 of the Indian Succession Act, 1925 but the learned Court below has wrongly considered the same and dismissed the application filed by the appellant vide Title Suit No.1 of 2012 and wrongly allowed the Probate Case No.22 of 2010 in favour of respondent no.1- M. Adi Narayan Murty, S/o Late M. Venkat Ramana Murty, R/o Q. No.12, Dhala Road, P.O. & P.S. Golmuri, Town- Jamshedpur, Distt.- East Singhbhum. The respondent no.2- D. Vijay Laxmi, D/o Late M. Venkat Ramana Murty, R/o Padampur, Orissa refused to contest the case. Learned counsel for the appellant, Mr. Amit Kumar Das has thus submitted, that both the impugned orders may be set aside and the both the Miscellaneous Appeals may be allowed. Learned counsel for the respondent no.1-M. Adi Narayan Murty, Mr. Kundan Kumar Ambastha has submitted, that the finding recorded by the learned District Judge-V, Jamshedpur in both the cases i.e. Probate Case No.22 of 2010 preferred by the respondent No.1 and Probate Case No.19 of 2011 converted into Title Suit No.1 of 2012 on contest preferred by the appellant, has been rightly appreciated and the learned Court below has come to a finding that Will dated 06.05.2009 is genuine one and revocation of Will dated 22.06.2009 is not in consonance with Section 70 of the Indian Succession Act,1925 and in view of the judgment passed by the Hon'ble Supreme Court in the case of Bharpur Singh & Ors. Vs. Shamsher Singh reported in 2009 (3) SCC 687, corresponding to AIR -3- 2009 SC 1766, whereby the Hon'ble Supreme Court has described the following circumstances as suspicious circumstances in execution of the Will. Paragraph No.23 of which reads as under: 23.Suspicious circumstances like the following may be found to be surrounded in the execution of the will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator's mind may be very feeble and debiliated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the will. (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts. Learned counsel for the respondent no.1, Mr. Kundan Kumar Ambastha has relied upon the sub-clause (v) and Sub-clause (viii) of the aforesaid judgment and submitted that the finding recorded by the learned Court below is based on the materials available on record and does not require any interference by this Court. Learned counsel for the respondent no.1, Mr. Kundan Kumar Ambastha has further submitted, that the case of the appellant is that father has executed the Will dated 06.05.2009, whereby the properties have been given to his four grand- children equally, born from two sons and one daughter of the testator including daughters of the appellant, respondent no.1 and respondent no.2. While alleging revocation of Will dated 22.06.2009 by the appellant, they have failed to prove the complain allegedly made before the Superintendent of Police, Jamshedpur with regard to cognizable offence though appellant was in touch with a lawyer and such complain was not treated by the Superintendent of Police, Jamshedpur. Then also did not explain why he has not lodged a complaint case before the court at Jamshedpur, who has territorial jurisdiction over the matter. Learned counsel for the respondent no.1, Mr. Kundan Kumar Ambastha has further submitted, that even in the revocation of Will dated 22.06.2009, it has been mentioned that testator has executed a Will on 06.05.2009, which shows that Will dated 06.05.2009 is never a product of forgery, as such, it was incumbent upon the appellant or the testator to explain why he changed his mind in such manner within a period of one and half months and no allegation was made that the respondent No.1-M. Adi Narayan Murty has committed any forgery with his father in obtaining a Will dated 06.05.2009. -4- Learned counsel for the respondent no.1, Mr. Kundan Kumar Ambastha has further submitted, that once the genuineness of Will dated 06.05.2009 is proved from the recital of alleged revocation of Will dated 22.06.2009, then the subsequent Will dated 23.06.2009 executed by the testator, M.Venkat Ramana Murty in favour of M. Ram Kumar Murty is to be strictly proved without any suspicion and doubt. The learned Court below has rightly considered all the facts and elaborately discussed the same in judgment dated 12.09.2017 passed in Probate Case No.22 of 2010 as well as in Title Suit No.1 of 2012 arising out of Probate Case No. 19 of 2011, as such, this Court may not interfere with the same. Learned counsel for the respondent no.1, Mr. Kundan Kumar Ambastha has further submitted, that the case of Bharpur Singh (supra) has been relied upon by the Hon'ble Supreme Court recently in the case of Murthy and Others vs. C. Saradambal and Others, reported in (2022) 3 SCC 209, as such, no interference is required by this Court. Learned counsel for the respondent no.1, Mr. Kundan Kumar Ambastha has further submitted, that a plea, which has been taken by the appellant that admitted fact has been recorded in para 7(C) of the impugned judgment passed in Probate Case No.22 of 2010, has wrongly been interpreted by the learned counsel for the appellant rather it is the fact of both the cases, as such, this Court may not interfere with the same. After hearing learned counsel for the appellant and learned counsel for the respondent No.1 and perusal of both the impugned judgments, it appears to the Court that the admitted fact has wrongly been stated in the impugned judgment at para 7(c) page 5 in Probate Case No.22 of 2010, which has created some doubt in the mind of the appellant rather it should have been fact of the case, which this Court is again incorporating. M. Venket Ramana Murty, father of M. Adi Narayan Murty, M. Ram Kumar Murty and D. Vijay Laxmi has initially executed a Will dated 06.05.2009 with regard to a flat purchase in Navjivan Complex, Baridih in the year, 1994, in the same year, he has retired from M/s Timplate Company holding M. Adi Narayan Murty. The Will dated 06.05.2009 has been executed in favour of four grand daughters, who are the daughters of M. Adi Narayan Murty, M. Ram Kumar Murty and D. Vijay Laxmi. The testator, M. Venket Ramana Murty died on 21.01.2010 at Baridih, P.S. Sidgora, Town- Jamshedpur, District- East Singhbhum and soon after his death, M. Adi Narayan Murty filed a probate case to grant probate for the Will dated 06.05.2009. Another fact of the case is that M. Ram Kumar Murty filed Probate Case -5- No.19 of 2011 to grant probate for the Will dated 23.06.2009 executed after revocation of Will dated 06.05.2009 by instrument dated 22.06.2009 and, as such, the dispute between the parties is that which of the Will either Will dated 06.05.2009 or Will dated 23.06.2009 executed after revocation of earlier Will dated 22.06.2009 is genuine one. Probate Case No.19 of 2011 has been filed in the year, 2011. M. Adi Narayan Murty (respondent no.1) contested the same and thus, Probate Case No.19 of 2011 has been converted into Title Suit No.1 of 2012, but daughter of M. Venket Ramana Murty namely, D. Vijay Laxmi did not appear in any of the matters. In Probate Case No.22 of 2010, M. Adi Narayan Murty examined two witnesses, himself as A.W.-1 and Badal Gorai as A.W.-2. Apart from that, documentary evidence as Exhibit-1 to 1/d i.e. signature of testator and witnesses of Will dated 06.05.2009, Exhibit-2 i.e. Will dated 06.05.2009 and Exhibit-3 i.e. Death certificate has been produced, whereas M. Ram Kumar Murty has examined four witnesses in Probate Case No.22 of 2010 i.e. Ranjana Srivastava as O.P.W.-1, M. Ram Kumar Murty as O.P.W.-2, Banti Palli Venkat Rao as O.P.W.-3 and Somnath Bose as O.P.W.-4. Apart from that, M. Ram Kumar Murty has also produced documentary evidence i.e. Exhibit A to A/9, which are Signature of testator and witnesses of will dated 23.06.2009, Exhibit-B, which is nomination form dated 16.10.2008, Exhibit C to C/3 which are revocation of will & signature of witnesses dated 22.06.2009, Exhibit D to D/3, which are general power of attorney & signature of witnesses, Exhibit-E, which is pass-book State Bank of India and Exhibit-F, which is medical prescription dated 23.06.2009. Same witnesses have been examined by Ram Kumar Murti in Title Suit No. 1 of 2012. M. Adi Narayan Murty being the defendant in the suit has examined another witness i.e. Ram Kumar Pandey as D.W.-2. The dispute before this Court is whether the finding recorded by the learned Court below with regard to revocation of Will dated 22.06.2009 and execution of fresh Will dated 23.06.2009 requires any interference or not? It is clear that the fact of the case has been wrongly mentioned by the learned Court below as admitted fact rather it is the fact of this case, which has been admitted by the learned Court below, against which, two separate Miscellaneous Appeals are preferred before this Court and while examining Section 70 of the Indian Succession Act,1925 that the alleged revocation of Will dated 22.06.2009 never speaks of forgery committed by M. Adi Narayan Murty in obtaining such Will from his father, M. Venket Ramana Murty, which was in -6- favour of all the grand-daughters born from his two sons and one daughter, in which, M. Adi Naranay Murty was executor. This part has been admitted in alleged revocation of Will dated 22.06.2009 and there is no whisper about forgery committed with testator M. Venket Ramana Murty on 06.05.2009 nor any documentary evidence has been brought on record by M. Ram Kumar Murty to show that under signature of his father in an application, the Superintendent of Police, Jamshedpur was informed about such forgery. This was a development, which has no factual background as because this document has never been brought on record and subsequently this was never recited in the revocation of Will dated 22.06.2009. The learned Court below has rightly considered the Section 70 of the Indian Succession Act, which reads as follows:- “70. Revocation of unprivileged Will or codicil.—No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.” The learned Court below has examined the provision in the light of the judgment passed by the Hon'ble Supreme Court in the case of Durga Prasad vs.