IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 252 of 2012
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Sanjay Kumar Datta (deceased)
1(a). Prateek Datta
1(b). Daisy Datta
1(c). Ritika Datta .... .... …. Appellants
Versus
1. Kamlesh Kumari Datta
2. Malay Dutta
3. Mehta Madan Lal
4. Estate of Late Shakuntla Devi Mehta
5. General People having any interest in the Estate of Late Shakuntla Devi Mehta
.... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : Mr. Prashant Pallav, Advocate
For the Respondents : Mr. Pradeep Kumar Nayak, Advocate
CAV ON : 03.02.2023 PRONOUNCED ON: 28.03.2023
1. Instant miscellaneous appeal has been filed under Section 299 of the
Indian Succession Act against the judgment dated 4th October, 2012 passed by
learned Judicial Commissioner-IV, Ranchi in Probate Title Suit No.01 of 2012
whereby and whereunder the application for probate was dismissed.
2. The probate application is filed with respect to the WILL of Shakuntala
Devi Mehta, who died on 1st February, 2010. The legatee of the WILL is
executor-Sanjay Kumar Datta and the bequeathed property is 16 Katha 06
Chhatak land with a double storied building, shops boundary wall within the
municipal corporation of Ranchi which was the self-acquired property of the
testator. Testator had no son and the legatee is maternal grandson of the testator.
3. The WILL was executed on 28.10.1998 and the three attesting witnesses
are namely Nand Kishore Singh, Ramesh Prasad Kesri and Mehta Madan Lal.
Dr. S.K. Gupta endorsed on the WILL that the testator was in sound physical and
mental health. Signature of the testator has been identified by one Advocate.
4. The probate application has been contested by O.P. No.2, who is the
daughter of the testator and O.P. No.3-Malaya Dutta is the grand-son (Nati), who
have filed their objection petition/written statement dated 06.08.2011.
5. According to the case of the objectors, they were residing in the same
property with the deceased. The applicant was not the executor of the said WILL
and as such had no locus standi to invoke the provision of the Section 276 of the
Indian Succession Act, 1925. Shakuntala Devi was residing in the building
detailed in the schedule property with the O.P. Nos.2 & 3, who are daughter and
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maternal grandson. The execution of WILL has been disputed and claimed that it
was forged and fabricated in connivance with the witnesses. Shakuntala Devi had
lost her memory and was not capable of understanding the things. Shakuntala
Devi died on 01.02.2010 and after her death, they had inherited the property and
were jointly in possession.
6. It is further pleaded that Partition Suit No.577 of 2010 had been filed by
O.P. No.3 against the applicant and other opposite parties claiming a decree for
partition of 1/4th share in the property which is the subject matter of the alleged
WILL.
7. On the basis of the pleadings of the parties following issues were
framed:-
I. Whether the present probate case as preferred by the petitioner is valid,
lawful and maintainable in its present form?
II. Whether the WILL allegedly executed by Shakuntala Devi Mehta since
deceased is genuine, lawful and valid for issuance of the probate in favour
of the petitioner?
III. Whether the WILL, subject matter of the probate case, was obtained under
misrepresentation, fraud, undue influence and under a conspiracy hatched
out by the petitioner and defendant no.4?
IV. Whether there was any valid ground for the executant to make a WILL in
favour of the petitioner keeping in view the fact that defendant no.2
happened to be her only child and the petitioner happens to be the eldest
son of said defendant no.2 whereas the defendant no.3 is the other son of
heirs?
V. Whether the present probate case is liable to be dismissed on the ground
that the WILL in question is no a genuine one rather the same is a forged
and fabricated one?
VI. To what relief or reliefs the petitioner is further entitled to?
8. Altogether four witnesses have been examined on behalf of the
applicant, which includes attesting witnesses Ramesh Prasad Kesri, Mehta
Madan Lal (husband of the testator). Apart from the attesting witnesses PW-1 and
PW-2, the applicant and one witness have also been examined. The WILL has
been proved and marked as exhibit. The signatures of the typist, attesting
witnesses, the certificate of fitness of the testator given on the WILL itself given
by Dr S.K. Gupta, signature of the Advocate and the Notary Public has also been
proved.
9. Three witnesses have been examined on behalf of the opposite party and
the photograph of the testator has been adduced into evidence. Witnesses include
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attesting witness Nand Kishore Singh.
10. The learned Court below dismissed the probate application mainly on
the ground that there were three attesting witnesses to the WILL. Two of them
are, P.W. 1-Ramesh Prasad Kesri and P.W. 2- Mehta Madan Lal. P.W. 1 deposed
in para 14 of the cross-examination that he had put his signature in Civil Court
campus and that Sanjay Kumar Datta and his maternal grandmother i.e. the
testator were present there. The plaintiff had asked him to come to Civil Court to
sign the document. Other witness Nand Kishore Singh was not present when he
had put his signature. In para 17, he deposed that he had not gone through the
contents of the WILL at the time of putting his signature. He expressed his
ignorance as to who had put the endorsement. With reference to Exhibit 4 and
4/1, this witness was unable to prove endorsement and signature. Probate
application was rejected by the learned Court below in view of the
inconsistencies surfacing in the testimony of witnesses.
11. Appeal has been preferred by the applicant on the ground that will is
required to be attested by two witnesses under Section 68 of the Indian Evidence
Act read with Section 67 of the Indian Succession Act. Out of the two attesting
witnesses, only one witness is required to be examined. Here two attesting
witnesses have been examined who have supported the case of the applicant, and
therefore, there was no requirement of further examination of the third attesting
witness who has been examined on behalf of the opposite party and has not
disputed his signature on the WILL.
12. It is argued that learned court below failed to appreciate that the legatee-
cum-executor, was none but the maternal grandson of the testator and was
residing with her since his childhood days separate from his parent namely
Kamlesh Kumari Dutta (O.P. No.2) and Batuk Prasad Dutta. The factum of
execution of the WILL gained credence from the testimony of Mehta Madan Lal
(P.W. 2) who was the husband of the testator. He has supported the bequest,
although he was not going to gain anything, but lose his share by the said
bequest.
13. The bequest was made in 1998 whereas the evidence was recorded after
14 years after it, when the witnesses were at fairly advanced age, and, therefore,
there was natural minor inconsistencies, which has been attached undue
significance by the learned Court below to reject the Probate application. PW-1
was aged 96 years at the time of his examination and omissions in his cross-
examination were on account of age and failing memory
14. Learned counsel on behalf of the respondent has defended the impugned
Judgment. It is submitted that the material contradictions appearing in the
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testimony of the witnesses of the applicant went to the root of matter, to make the
attending circumstances to the execution of the WILL to be vitiated and
suspicious.
15. From the rival submissions advanced on behalf of both the sides and the
materials on record, it is apparent that the two main factors which swayed the
Court from allowing the probate application was, inconsistencies appearing in
the testimony of witnesses which has been regarded as contradictory and fatal to
the case of the propounder of the WILL.
16. Section 68 of the Indian Evidence Act, read with Section 63 of the
Indian Succession Act, 1925, (Act 1925), mandates that if the law requires a
document to be attested, it shall not be used in evidence unless at least one of the
attesting witnesses has been examined in case of WILL. Although two attesting
witnesses are required in support of a WILL, examination of only one attesting
witness is sufficient. A Probate Court is not competent to determine the title of
schedule property. The jurisdiction of a Probate Court is limited to determination
that the WILL be executed by the testator was his last WILL.
17. The definition of attestation in Section 63 of the Indian Succession Act,
1925 is the same as in Transfer of Property Act, 1882. The execution of a WILL
includes attestation by witnesses and if there is no attestation, the WILL cannot
be regarded to be validly executed. The following are requirements of valid
attestation:
I. The WILL must be attested by at least two witnesses.
II. Each witness must have seen the testator sign or affixing his Mark or
that some other person has signed it in the presence of and by the
direction of the testator, though they need not know the contents of the
will.
III. If the WILL has already been signed each witness must have received
from the testator a personal acknowledgement of his signature or Mark
or of the signature of such other person signing it for him.
IV. It is not necessary that all the witnesses should be present at once and
the same time. The only requirement is that they should have necessary
animus attestandi.
V. Production of all the attesting witnesses is not essential.
VI. A scribe can be an attesting witness, provided that he knows that he’s
putting his signatures as an attesting witness.
VII. It is necessary for the attesting witness to depose that he signed in the
presence of the testator.
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18. In the present case, there are three attesting witnesses, two attesting
witnesses have been examined on behalf of the applicant, whereas the third has
been examined as DW 2 on behalf of the respondents.
19. PW -1 Ramesh Prasad Kesri is an attesting witness, who has deposed in
his examination-in-chief on affidavit that the testator had executed the WILL in
favour of the applicant her maternal grandson Sanjay Kumar Dutta. The testator
was an educated person and had signed over the WILL knowing fully well about
the content of it in the presence of the witnesses, Advocate Maheswar Prasad and
Dr S.K. Gupta. The WILL was executed in sound mental and physical health. In
his cross-examination, he has deposed that WILL was executed in the Civil Court
and at that time the applicant and the testator were present. Nand Kishore Singh
had signed over the WILL before him, but he was not present when he signed
over it. He has candidly stated that Nand Kishore Singh had not signed in his
presence. Madan Lal signed after he had signed over it. He had not himself read
the content of the document, but had signed over it on being asked by the
applicant who happens to be his friend.
He has not attempted to say that he was aware of the content of the
WILL and also does not claim that all the witnesses had signed in his presence.
He is not an interested witness and has not made any attempt to gloss over his
ignorance or exaggerate his account. The testimony of this witness has the
sterling quality and bears the hall mark of a truthful witness.
20. PW-2 is none other than the husband of the testator and maternal
grandfather of the applicant. Although in the examination-in-chief, he has fully
supported the execution of the WILL in favour of the applicant which was
prepared as said by the testator and has identified the signature of the typist
D. Lakra already marked as Ext-1. He has also identified the note of the testator
on the WILL already marked as Ext-2. He has also identified his signature
already marked as Exts. 3 and 3/2. He has also identified the signature of Dr.
S.K. Gupta marked already Ext-4 and Ext-4/1. Signature of the Advocate has
also been identified by him as Ext-6 and Ext-6/1
When the cross-examination took place, three days after swearing of the
affidavit, he takes a complete U-turn. He admits that his wife had executed the
WILL, but had not said to give her property to anyone. He has denied to have
signed over the WILL.
21. Attesting witness Nand Kishore Singh is examined as DW-2. He has
identified his signature on the WILL and proved it which has been marked as
Exhibit-3. In his cross-examination, he has deposed that Mehta Madan Lal had
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come with one sheet of paper and said that it was family partition document,
which was signed by him. While he was signing the document, only the
signature of Mehta Madan Lal was present on it.
This corroborates the part of the testimony of P.W.1 that Nand Kishore
Singh had not signed in his presence.
22. Dr. S.K. Gupta had died sometimes ago and his endorsement on the
WILL has been proved by A.W.-3 D.L Arya that the will was executed by the
executant in sound physical and mental health by the testator.
23. From the evidence led on behalf of the applicant, it is apparent that out
of the three attesting witnesses, P.W.-1 has supported the case of the applicant
and has also identified signatures on the WILL and has proved it. D.W-2, who is
also one of the attesting witnesses, has identified his signature on the WILL, but
has not supported the other material facts with regard to the execution of it.
24. The most intriguing witness is A.W.-2 the husband of the testator
(examined at the age of 96 years) who has fully supported the execution of the
WILL in his examination-in-chief, but has resiled from his statement on oath, in
his cross-examination. Minor inconsistencies or even contradiction appearing in
the cross-examination vis-a-vis his statement given in examination-in-chief on an
affidavit is understandable, but to turn around and deny the statement given in
examination-in-chief is nothing short of perjury. This witness appears to be
caught in a predicament where the applicant and O.P. No.3 both are his maternal
grandsons (Nati), whereas O.P. No.2 Smt. Kamlesh Kumari Dutta is his
daughter. Although he admits that his wife had executed a WILL, but then
suddenly enforced amnesia takes over, and he does not state further details in the
cross-examination and goes to deny his signature in the cross-examination.
25. Law is settled that the onus of proof is on the propounder of the WILL,
and in the absence of suspicious circumstances attending the execution of it,
proof of testamentary capacity and signature of the testator on the WILL is
sufficient to discharge the onus. What can be suspicious circumstance has been
explain in Guro (Smt) v. Atma Singh, (1992) 2 SCC 507 at page 511
“3. Such suspicious circumstances may be a shaky signature, a feeble mind and
unfair and unjust disposal of property or the propounder himself taking a leading
part in the making of the will under which he receives a substantial benefit. The
presence of suspicious circumstances makes the initial onus heavier and the
propounder must remove all legitimate suspicion before the document can be
accepted as the last will of the testator”.
26. Probate Court is a Court of conscience and it is bounden duty of the
court to ascertain the real WILL of the testator, if any. The Court has to be
satisfied with the due execution of the WILL and that it is aboveboard. An
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onerous responsibility lies on the Court to be on guard against manufactured
WILL and at the same time to remain conscience keeper of the testator who does
not remain in his/her mortal form before the Court. Court sits in the armchair of
the testator not to exercise its (Courts) Judgement as if it were hearing an appeal
against the testator’s judgement. It sits in that armchair to look to the surrounding
circumstance of the testator, which include the circumstances in which the
natural heirs of the testator are placed, to determine only the probability of the
propounded WILL being that of the testator placed in those circumstances.
27. If the WILL accords with that of the testators circumstances, it will be a
strong factor to accept that WILL. If the contents run counter to that of a testator
placed in those circumstances, it WILL be a negative factor which will require
heavy evidence for the propounder to place before the Court. The Courts efforts
to the best of its judgement based upon the material on record is to ensure justice
to the testator’s soul (desire). Injustice occurs when a genuine WILL fails.
Equally, when a fake WILL succeeds. It is here the Court exercises its balance
taking into account a large number of factors. The due execution of the WILL is
to be proved as per the provision of the Indian Evidence Act and Indian
Succession Act. The degree of proof is by preponderance of probability
depending on the evidence on record taken as a whole. It has been held in
Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357 that the
Court of Probate is only concerned with the question as to whether the document
put forward as the last WILL and testament of a deceased person was duly
executed and attested in accordance with law and whether at the time of such
execution the testator had sound disposing mind. The question whether a
particular bequest is good or bad is not within the purview of the Probate Court.
Therefore, the only issue in a probate proceeding relates to the genuineness and
due execution of the WILL and the Court itself is under duty to determine it and
preserve the original WILL in its custody. The Succession Act is a self-contained
code insofar as the question of making an application for probate, grant or refusal
of probate or an appeal carried against the decision of the Probate Court.
28. Appreciation of evidence in case of probate of WILL is no different
from that in other cases. Evidence is to be looked into its totality to arrive at a
finding regarding the genuineness and veracity of the WILL. If there are
suspicious circumstances, the parroted account of attesting witness may not be of
final avail. The integrity of the attesting witness or his failing memory or other
shortcomings cannot be allowed to override, when the Court is satisfied on the
entire materials that the document was executed by the testator. Here, although
only one attesting witness has fully and remaining two have only partly
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supported the execution of the WILL, from the overwhelming evidence, the
attending circumstance cannot be termed as suspicious for the following reasons:
First, the testator is the maternal grandmother aged 74 years and the
legatee is her maternal grandson. Signatures of the testator have been duly
proved on all the five pages.
Secondly, the endorsement on the WILL by Dr. S.K. Gupta that testator
was in sound physical and mental health at the time of the execution of the WILL
has been formally proved after his death.
Thirdly, one attesting witness (PW-1) has proved the WILL and the
other (DW-2) has admitted his signature on the WILL.
Fourthly, the signatures of the Advocate who has identified the
signature of the testator, and that of the signature of the typist has been duly
proved.
Fifthly, the circumstances to be looked into includes whether the WILL
had been presented for probate after an inordinate delay after the death of the
testator. Following dates and events will indicate that there was no time gap to
raise any doubt or suspicion on this count:
I. WILL was executed on 28.10.1998
II. The testator died on 01.02.2010;
III. Probate application is filed on 16.07.2010
Sixthly, all the material witnesses, except husband of the testator
(AW-2), are not related to the parties and cannot be said to be interested. There is
a ring of truth in the testimony of PW-1 and there is nothing in his cross-
examination to cast any doubt on the veracity of his testimony. His evidence
cannot be brushed aside only because one of the attesting witnesses (DW-2) has
been examined on behalf of the Defendants who has not disputed his signature on
the WILL.
Seventhly, once the WILL has been proved by PW-1 and signatures of
the testator, identifier and typist, have been admitted and proved by the attesting
witnesses, the onus was discharged by the propounder of the WILL, and it was
incumbent on the part of the defendants to lead evidence of rebuttal to disprove
the execution of the WILL and the signatures of the testator on it. It is cardinal
principle of appreciation of evidence that one reliable witness sufficient to prove
fact in issue. This Court is of the view that on the discharge of initial onus by the
applicant, the burden to disprove the signatures and due execution of the WILL
was on the defendants which they failed to discharge by taking any step in this
regard.
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Eighthly, there is force in the argument on behalf of the appellant that
age of the witnesses and the time gap after the execution of the WILL when the
deposition was recorded, cannot be lost sight of, while appreciating their
evidence. PW-2, the husband of the testator, aged about 96 years at the time of
deposition, who has admitted to testamentary disposition of property, but has
resiled in the cross-examination and denied to have signed the WILL, cannot be
attached much significance. His account is vacillating in nature, supporting the
case of the applicant in examination-in-chief and resiling from it in the cross-
examination. It appears that family pressures prevailed over him on third day
after swearing the affidavit, when he was cross-examined.
Ninthly, from the getup of the WILL there is nothing suspicious. This is
not a case where one signature has been scribbled by the testator or a LTI has
been put, followed by two signatures of the attesting witnesses. There are five
signatures of the testator on all the five pages, along with an endorsement on the
last page that she had read, understood and then signed over the WILL. Apart
from her signatures, the signatures of the three attesting witnesses, identifying
Advocate, Doctor and Typist have also been proved. In such circumstance, a
presumption of due execution need to be drawn as in the case of Gurdev Kaur v.
Kaki, (2007) 1 SCC 546 :
79. If a will appears on the face of it to have been duly executed and
attested in accordance with the requirements of the statute, a presumption of due
execution and attestation applies.
Emphasis supplied.
Lastly, the factors considered by the learned Court below while
dismissing the probate application like, ignorance expressed by witnesses about
the content of the WILL, witnesses not having signed the document at the same
time are not relevant factors while considering an application for probate of a
WILL.
Under the aforesaid facts and circumstance and for the reasons
discussed above, the impugned Judgment and order is set aside.
Applicant has established his case for probate of WILL.
The appeal is allowed.
Let a certificate for probate be, accordingly, drawn with respect to the
WILL.
Pending I.A., if any, is also disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 28th March, 2023
AFR / Anit
