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IN THE COURT OF THE ADDITIONAL DISTRICT JUDGE NO.5 , KAMRUP (M), GUWAHATI Present : Smti. R. Sarmah, Addl. District Judge No.5, Kamrup (M), Guwahati.

Probate Title Suit No. 11/2014

Shri Ganesh Deka …..... Plaintiff / Petitioner. -Vs-

Shri Dipak Deka & Others …….Defendant/ Respondent. Appearance for the Parties : - For the appellant :Mr. S.P. Roy, Learned Advocate.

For the respondents :Mr. N. Alam. … Learned Advocate Date of argument : 27.02.2020 & 18.06.2020. Date of Judgment : 18.06.2020 J U D G E M E N T

1. This Probate Title Suit has arisen out of an application u/s 276 of the

Indian Succession Act, 1925 filed by Shri Ganesh Deka for granting of

Probate in respect of the Will left by late Niroda Deka (hereinafter

referred to as testatrix).

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2. Plaintiff‟s case in brief is that Niroda Deka expired on 14.07.2010 at

Dispur Polyclinic and Nursing Home, Guwahati, Assam leaving behind

Shri Dipak Deka (son), Shri Monmohan Deka (son), Shri Subhash Deka

(son), and Smti. Niva Deka (daughter) as her legal heirs. Prior to her

death she had executed her last Will on 14.06.2010 wherein the

testatrix had bequeathed her immoveable property as shown in the

schedule of the petition in favour of her daughter Smti. Niva Deka

(wife of petitioner). In the said Will the petitioner was appointed as

sole executor of the Will to obtain Probate.

3. On receipt of the petition for grant of Probate, the said petition was

registered as Misc. (P) Case No. 374 of 2010 and general and special

notices were published for filing objection, if any. In response to the

notice, the legal heirs Dipak Deka and Monmohan Deka contested the

application by submitting joint written objection mainly on the ground

that the testatrix had not executed any Will as claimed by the

petitioner and that no proper description of the property was given in

the Will and that , the alleged Will is forged and manufactured and

thus prayed for dismissal of the probate petition filed by the petitioner.

4. On receipt of the said objection as the matter became contentious this

proceeding was converted to regular Probate Title Suit No. 11 of 2014.

5. Upon pleadings of the parties the following issues were framed :-

1. Whether the petition for Probate of the petitioner is maintainable in

the present form or not ?

2. Whether Niroda Deka since deceased executed her last Will on

14.06.2010 in due conformity with the law ?

3. Whether the plaintiff/petitioner is entitled to relief as prayed for ?

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4. To what other relief/reliefs the parties are entitled to ?

6. During trial of the suit, the plaintiff/petitioner examined himself and

also examined 2 attesting witnesses and the scribe of the Will. The

defendant/opposite parties also adduced evidence of two witnesses.

Witnesses of both sides were duly cross-examined by the other side.

7. I heard arguments advanced by the learned counsel for the plaintiff

and learned counsel for defendant at length.

8. During argument hearing, learned counsel for the plaintiff has

submitted that plaintiff by examining the attesting witnesses proved

the fact of due execution of the Will without any suspicion clouding it.

And hence prayed for grant of Probate to the plaintiff.

9. Refuting the above submission, learned counsel for the defendant

submitted that the grounds which have clouded the valid execution of

the Will, by existence of suspicious circumstances are ambiguity as

regards place of execution of the alleged Will, deprivation of

defendants from the bequeathed share of testatrix and non mention of

recital in the Will regarding testatrix‟s request to the witnesses to

attest.

10. Considering the merit of the suit issue wise :

ISSUE NO. 1 : Whether the petition for Probate of the petitioner is

maintainable in the present form or not ?

This issue relates to maintainability of the petition for Probate in

its present form. Petitioner Ganesh Deka has filed the petition u/s 276

of the Indian Succession Act, 1925 for grant of Probate in respect of

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the last Will purportedly executed by his mother-in-law late Niroda

Deka during her life time. The Will is annexed with the petition. In the

petition it is stated that the writing annexed with the petition is the last

Will of late Niroda Deka who died on 14.07.2010 and at the time of

death she was a resident of Maligaon Chariali, Guwahati-11 within the

jurisdiction of this court and the said Will was duly executed by the

deceased late Niroda Deka whereby she appointed the petitioner as

sole executor of the Will. It is also contended that the deceased died

leaving properties within the jurisdiction of this court. The above

averments are in due compliance with Section 276 of Indian

Succession Act, 1925. It is further contended that no application has

been made to any other court for granting of Probate of the said Will

to the best of petitioner‟s belief in compliance with Section 279 of

Indian Succession Act, 1925. Further the petition is signed and verified

by the petitioner in due compliance of Section 280 of Indian Succession

Act, 1925. The petition also contains a declaration by Sri Anup Kumar

Talukdar who was one of the attesting witnesses of the said Will which

is in due compliance of the requirement of Section 281 of the Indian

Succession Act, 1925. Besides nothing is shown as to why the petition

is not maintainable in its present form.

Thus, I find that there is no evidence or materials on record to

show that the petition is not maintainable.

Accordingly, the issue is decided in affirmative.

ISSUE NO. 2 : Whether Niroda Deka since deceased executed her

last Will on 14.06.2010 in due conformity with the law ?

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Section 63 (c ) of the Indian Succession Act, 1925 provides that

a Will shall be attested by two or more witnesses, each of whom has

seen the testator sign or affix his mark to the Will and each of the

witness shall sign the Will in presence of testator. Again Section 68 of

Indian Evidence Act, 1872 has provided that if a document is required

by law to be attested, it shall not be used as evidence until one

attesting witness at least has been called for the purpose of proving its

execution, if there be an attesting witness alive, and subject to the

process of the Court and capable of giving evidence.

From the above statutory provisions, it becomes clear that for a

valid execution of a Will it must be signed by two witnesses and for

proving the genuineness, one of the attesting witness must be

examined as required by Section 68 of Indian Evidence Act, 1872

subject to certain conditions.

In the case in hand , the executor Ganesh Deka examining himself as

P.W.1 deposed that testatrix late Niroda Deka who is his mother-in-law

had executed her last Will on 14.06.2010 by putting her thumb

impression before the Notary in presence of attesting witnesses Sri

Rajendra Kumar Sarma, Bipul Das and Shri Anup Kumar Talukdar after

the contents of the Will were read over and explained to her by the

writer of the Will Mathur Chandra Bayon and after understanding the

contents of the Will as she was illiterate. He further deposed that in

her said Will testatrix had appointed the plaintiff as executor of her Will

and thereby entrusted him to obtain Probate of the Will as per

provisions of law. He further stated that by a deed of family

arrangement dated 26.08.2009 testatrix along with petitioner‟s

brothers-in-law Shri Dipak Deka, Monmohan Deka and Subhash Deka

had amicably divided the share of late Umesh Deka (husband of

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testatrix) over plot of land measuring 2 kathas 10 lechas and multistory

complex constructed over it. As per the said family arrangement 7

rooms of the said commercial complex came into the share of testatrix.

He proved the death certificate of testatrix as Exhibit 1, original last

Will of testatrix as exhibit 2, thumb impression of testatrix on the said

Will as Exhibit 2(1), 2(2), and 2(3) and the signatures of Rajendra

Kumar Sharma, Bipul Das and Anup Kumar Talukdar as Exhibit 2(4),

2(5) and 2(6) and signature of the writer of the Will Sri Mathur

Chandra Bayon as Exhibit 2(7). He also proved deed of the family

arrangement as Exhibit 3 and the thumb impression of Late Niroda

Deka as Exhibit 3(1) to 3(5), signature of Subhash Deka as Exhibit 3(6)

to 3(10), signature of Dipak Deka as Exhibit 3(11) to 3(15), signature

of Monmohan Deka as Exhibit 3(16) to 3(20). He further denied the

averments made by the defendants in their joint written objection.

P.W.2 Mathur Chandra Bayon in his evidence deposed that the

testatrix had approached him for writing her Will and accordingly, on

her request he prepared the last Will of testatrix as per her instruction

and read over and explained the contents to her and after

understanding the contents of the Will, the testatrix along with Ganesh

Chandra Deka (plaintiff), Latun Chandra Das, Rajendra Kumar Sarma,

Bipul Das, Anup Kumar Talukdar went to the office of the Notary Md.

Gyasuddin Ahmed for execution of the Will, in front of the Notary,

testatrix had put her thumb impression which was taken by him and

after executing the Will by putting her thumb impression, Rajendra

Kumar Sarma, Bipul Das, Anup Kumar Talukdar have put their

signatures as witnesses to the said Will. The attesting witnesses Anup

Kumar Talukdar and Rajendra Kumar Sarma have been examined as

P.W.3 and P.W.4. Both the attesting witnesses P.W.3 Anup Kumar

Talukdar and P.W.4 Rajendra Kumar Sarma in their evidence deposed

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that they knew the testatrix and they were present at the time of

execution of the Will and they saw the testatrix putting her thumb

impression over the said Will before Notary Mr. Gyasuddin Ahmed at

his office near GMC Office. The two attesting witnesses proved their

signatures in the Will as Exhibit 2 (6) & and Exhibit 2(4).

Now, let me consider the suspicious circumstances clouding the

execution of the Will as projected by the defence. The summary of the

suspicious circumstances as raised are :

a) Ambiguity as regards place of execution of the alleged

Will.

b) Deprivation of the defendants from the bequeathed share

of testatrix,

c) Non-mention of recital in the Will regarding testatrix‟s

request to the witnesses to attest.

In the case of Niranjan Umeshchandra Joshi (supra), the

Hon‟ble Supreme Court of India has enumerated several circumstances

which have been described as suspicious circumstances, viz. (i) when

doubt is created in regard to the condition of mind of the testator

despite his signature on the Will; (ii) when the disposition appears to

be unnatural or wholly unfair in the light of the relevant circumstances;

(iii) where the propounder himself takes prominent part in the

execution of the Will which confers on him substantial benefits. In

para 37 thereof, it has been mentioned that there exists a distinction

where suspicion are well founded and the cases where there are only

suspicion alone and that existence of suspicion alone may not be

sufficient It was also mandated that the court may not start with a

suspicion and it should not close its mind to find the truth. A resolute

and impenetrable incredulity is not demanded from a judge even if

circumstances of grave suspicion exist.

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In Meenakshiamal & ors Vs Chandra Shekharan & another

(2005) 1 SCC 280 – apex court has held that suspicious

circumstances in respect of a Will does not necessarily mean any

suspicion that may arise because of some contradiction or discrepancy

in the evidence. Suspicion which matters must be one , which was

inherent in the transaction.

In respect of point No. (a) relating to ambiguity as

regards place of execution of the alleged Will, learned counsel

for the defendant has pointed out that in cross examination the

plaintiff has mentioned Chief Judicial Magistrate Court Campus,

Kamrup (M), Guwahati as the place of execution of the Will but the

scribe of the Will has mentioned District Judge Court Campus, Kamrup

(M), Guwahati as the place of execution of the Will.

Scribes usually draft several numbers of Will and in the instant

case it is possible that he may not remember the exact place of

execution of each Will drafted by him, more so after 6 years of

execution of a Will. Besides his cross-examination was recorded on

commission as he was bed ridden and not keeping well. Further the

two attesting witnesses have corroborated the plaintiff‟s statement as

regards the place of execution of the Will. As such the suspicious

circumstance as alleged is not well founded.

So far as the second suspicious circumstance as

projected regarding the deprivation of the defendants from

the bequeathed share of the testatrix is concerned, perusal of

the deed of family arrangement vide Exhibit 3 reveals that testatrix

along with defendants had amicably divided the share of late Umesh

Deka (husband of testatrix) over a plot of land measuring 2 kathas 10

lechas and the multistoried complex constructed over it and as per the

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said family arrangement 7 rooms of the said commercial complex came

into the share of the testatrix. Defendant D.W.1 Dipak Deka in his

cross examination has admitted the deed of family arrangement Exhibit

3 as genuine and also admitted receipt of their due share as per the

family arrangement.

Exhibit 1 is the death certificate issued by Registrar Birth &

Death, Gauhati Municipal Corporation wherein date of death of Niroda

Deka is recorded as 14.07.2010. Exhibit 2 is the Will dated 14.06.2010.

Perusal of the said Exhibit 2 shows that the testatrix had bequeathed

her immovable property as shown in the schedule of the Will in favour

of her daughter Niva Deka and appointed petitioner Ganesh Deka as

executor to obtain probate of the said will and was attested by 3

witnesses viz Rajendra Kumar Sharma, Bipul Das and Anup Kumar

Talukdar.

On perusal of the original Will it manifests that the testatrix in

her sound disposing state of mind and heath executed the said Will

bequeathing her immoveable property as shown in the schedule of the

Will in favour of her daughter (Smti. Niva Deka) wife of petitioner

being satisfied with the services rendered by her daughter who looked

after her well and took good care of her in her old age. Further no

materials have been brought on record to show that at the time of

alleged execution of the Will, the testatrix was not physically and

mentally fit.

In cross-examination D.W.1 Dipak Deka admitted that Exhibit

4 and Exhibit 5 are the evidence on affidavit cum NOC of Dipak Deka

and Manmohon Deka respectively wherein they have averred that they

have no objection if the Hon‟ble Court grants Probate or Letter of

Administration in favour of their sister Niva Deka of the estate

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mentioned in the last Will and testament of late Niroda Deka who is

their deceased mother. He further stated that description of

immoveable properties given in the schedule of the petition for grant of

probate is correct and he further stated that his mother after execution

of Exhibit 3 (deed of family arrangement) became absolute owner of

the property mentioned in the schedule D of the Exhibit 3 which is 7

rooms in the commercial complex.

Hon'ble Supreme Court of India in the reported case of Mahesh

Kumar (D) By Lrs vs Vinod Kumar & Ors (2012) 4 SCC 387

upon discussing various other judgment has held as follows:-

“In Uma Devi Nambiar v. T.C. Sidhan ((2004) 2 SCC 321), the Court held

that active participation of the propounder/ beneficiary in the execution of the

Will or exclusion of the natural heirs cannot lead to an inference that the Will

was not genuine. Some of the observations made in that case are extracted

below:

"A Will is executed to alter the ordinary mode of succession and by the very

nature of things, it is bound to result in either reducing or depriving the

share of natural heirs. If a person intends his property to pass to his natural

heirs, there is no necessity at all of executing a Will. It is true that a

propounder of the Will has to remove all suspicious circumstances. Suspicion

means doubt, conjecture or mistrust. But the fact that natural heirs have

either been excluded or a lesser share has been given to them, by itself

without anything more, cannot be held to be a suspicious circumstance

especially in a case where the bequest has been made in favour of an

offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan

Nambiar it is the duty of the propounder of the Will to remove all the

suspected features, but there must be real, germane and valid suspicious

features and not fantasy of the doubting mind. It has been held that if the

propounder succeeds in removing the suspicious circumstance, the court has

to give effect to the Will, even if the Will might be unnatural in the sense that

it has cut off wholly or in part near relations. (See Pushpavathi v.

Chandraraja Kadamba.) In Rabindra Nath Mukherjee v. Panchanan

Banerjee it was observed that the circumstance of deprivation of natural

heirs should not raise any suspicion because the whole idea behind execution

of the Will is to interfere with the normal line of succession and so, natural

heirs would be debarred in every case of Will. Of course, it may be that in

some cases they are fully debarred and in some cases partly."

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Hence in the light of the aforesaid judgment and relevant

circumstances as discussed above, deprivation of defendants from the

bequeathed share of testatrix do not lead to a suspicious circumstance.

In respect of point No. ( c) relating to non-mention of

recital in the Will regarding testatrix’s request to the

witnesses to attest, there is no statutory provision in the Indian

Succession Act 1925 which makes it mandatory that a genuine will

should contain a recital regarding testatrix‟s request to the witness to

attest. Further perusal of evidence of attesting witness shows that

PW3 and PW4 the attesting witnesses have deposed that the testatrix

had put her thumb impression in the Will in their presence and they

had put their signatures in the Exhibit 2, Will in presence of the

testatrix which is sufficient to hold due compliance of Section 63 (c ) of

Indian Succession Act, 1925.

There is also nothing to disbelieve the evidence of attesting

witnesses. As such, I find no suspicious circumstance on this count.

Hon'ble Supreme Court of India in the reported case of

Surendra Pal and Ors. vs. Dr. (Mrs.) Saraswati Arora and Anr.

(1974 ) 2 SCC 600 has observed as follows:-

“7. The propounder has to show that the will was signed by the

testator: that he was at the relevant time in a sound disposing state of

mind, that he understood the nature and effect of the dispositions, that

he put his signature to the testament of his own free will and that he

has signed it in the presence of the two witnesses who attested it in his

presence and in the presence of each other. Once these elements are

established, the onus which rests on the propounder is discharged. But

there may be cases in which the execution of the will itself is

surrounded by suspicious circumstances, such as, where the signature

is doubtful, the testator is of feeble mind or is overawed by powerful

minds interested in getting his property, or where in the light of the

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relevant circumstances the dispositions appear to be unnatural,

improbable and unfair, or where there are other reasons for doubting

that the dispositions of the will are not the result of the testator's free

will and mind. In all such cases where there may be legitimate

suspicious circumstances those must be reviewed and satisfactorily

explained before the will is accepted. Again in cases were the

propounder has himself taken a prominent part in the execution of the

will which confers on him substantial benefit that is itself one of the

suspicious circumstances which he must remove by clear and

satisfactory evidence. After all, ultimately it is the conscience of the

Court that has to be satisfied, as such the nature and quality of proof

must be commensurate with the need to satisfy that conscience and

remove any suspicion which a reasonable man may, in the relevant

circumstances of the case, entertain.”

Hon’ble Supreme Court of India in the case of Smti. Indu

Bala Bose and Ors. Vs Mahindra Chandra Bose and Anr. 1982

(1) SCC 20 while endorsing the observation made in the case

Surendra Pal and Ors (Supra ) further observed that

8. Needless to say that any and every circumstance is not a

„suspicious‟ circumstance. A circumstance would be „suspicious‟ when

it is not normal or is not normally expected in a normal situation or is

not expected of a normal person.

In Leela Raja Gopal & ors v. Kamala Menon Cocharan &

ors. AIR 2015, Hon’ble Apex court has held that –

“13. A will may have certain features and may have been

executed in certain circumstances which may appear to be somewhat

unnatural. Such unusual features appearing in a will or the unnatural

circumstances surrounding its execution will definitely justify a close

scrutiny before the same can be accepted. It is the overall assessment

of the court on the basis of such scrutiny; the cumulative effect of the

unusual features and circumstances which would weigh with the court

in the determination required to be made by it. The judicial verdict, in

the last resort, will be on the basis of a consideration of all the unusual

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features and suspicious circumstances put together and not on the

impact of any single feature that may be found in a will or a singular

circumstances that may appear from the process leading to its

execution or registration. This , is the essence of the repeated

pronouncements made by this court on the subject including the

decisions referred to and relied upon before us.”

In the case at hand, the evidence of P.W.1 received full

corroboration from the testimony of P.W.2, P.W.3 and P.W.4. They had

given consistent version regarding due execution of the will which

could not be shaken during their cross examination. All have

categorically denied the suggestions as regards forgery of Will, that

plaintiff in collusion with witnesses had manufactured the will to grab

the entire properties of the testatrix and that testatrix was bed ridden

on the date of execution of the Will. The witnesses are found to have

withstood the cross examination and nothing significant capable of

creating dent in their testimony could be elicited during the cross

examination.

From a meticulous & careful scrutiny of the evidence available

on record it can be inferred that petitioner succeeded in establishing by

cogent evidence that testatrix had affixed her Thumb Impression on

the Will as per her own volition on 14.06.2010 at Guwahati having

understood the nature and effect of the disposition. Defence failed to

rebut the evidence of plaintiff side. In absence of any cogent material

on record to indicate existence of any suspicious circumstances

surrounding the execution of the Will, the genuineness of the Will also

cannot be doubted.

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The evidence also demonstrates that there is nothing material

which could be considered as suspicious circumstance shrouding the

genuineness of the will.

Since the defendants have alleged fraud on part of the plaintiff

in securing the execution, it was incumbent upon them to prove and

establish the same by leading cogent evidence which they have failed

to do in the instant case.

There is no evidence that after execution of the Will in question

the testatrix had executed any other Will. From a careful scrutiny of

the evidence, it can be inferred that valid execution of the Will as

required under Section 63 of the Indian Succession Act, 1925 has been

proved. Thumb impression of the person executing the alleged Will as

required u/s 67 of Evidence Act, 1872. has also been proved and the

proof of execution of the Will, required in law to be attested as per

section 68 of Evidence Act, 1872 has been proved.

In the light of the above judgments and foregoing discussions

and analysis , I hold that the alleged suspicious circumstances have in

no way created any doubt against the unshaken evidence of due

execution of the Will on 14.06.2010 vide Exbt. 2. and in the relevant

circumstances the disposition does not appear to be unnatural,

improbable and unfair.

Thus, it can safely be held that plaintiff has proved the due

execution of the Will dated 14.06.2010 by the testatrix with sound

disposition of mind. The point no. 2 is thus answered in favour of the

plaintiff .

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In view of my findings on point No. 1 and 2, the executor Shri

Ganesh Deka is entitled for the Probate of the Will dated 14.06.2010

executed by Late Niroda Deka. There is no plea that after execution of

the Exbt. 2, late Niroda Deka had executed any other Will. In the

result, it is declared that Will dated 14.06.2010 executed by testatrix

late Niroda Deka is a genuine Will and is the last Will of the testatrix.

ORDER

Probate Title Suit is decreed on contest.

Petition for probate is allowed on contest without costs. It is

declared that Will dated 14.06.2010 executed by testatrix Late Niroda

Deka is a genuine Will and is the last Will of the testatrix. Petitioner Sri

Ganesh Deka being the appointed executor of the Will is entitled to get

probate of the Will dated 14.06.2010 executed by testatrix Late Niroda

Deka subject to payment of due court fees on the properties

mentioned in the Will as per present value of the properties. Petitioner

is directed to obtain fresh valuation certificate of the landed properties

from concerned authority, if not already obtained.

Issue Probate certificate accordingly on getting valuation

certificate & payment of due court fees as per provisions of Court Fees

Act. The original “Will” be kept in the safe custody of the Sheristadar

of the office of the Court of District Judge, Kamrup (Metro) forever.

Prepare Decree accordingly.

Judgment is delivered in open court. Suit is disposed of on

contest without costs. Parties are directed to bear their own cost.

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Given under my hand and seal of this court on this the 18th day

of June, 2020 at Guwahati, Kamrup (M), Assam.

Additional District Judge No.5,

Kamrup (M), Guwahati.

Dictated & Corrected by me

Additional District Judge No.5,

Kamrup (M), Guwahati.