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Judgment
M.C. Pathak, J.—This appeal is against the judgment and decree of the Additional District Judge, L.A.D. Gauhati in a probate matter.
An application was made by Dinesh Chandra Mitra, hereinafter referred to as the Appellant, before the Subordinate Judge in 1959 for grant of probate of the will executed on 10-1-59 by late Charubala Bhowmik ol Dhubri, District Goalpara, hereinafter referred to as testatrix. The matter becoming contentious, a suit was filed before the learned District Judge in 1961 being Probate Title Suit No. 1 of 1961. The suit was later on transferred to the Additional District Judge, Gauhati, in 1962 and it was registered as Probate Title Suit No. 15 of 1962. The main objector in the suit was Bhabani Prosad Bhowmik who was the son of a brother of the husband of testatrix. Bhabani Prosad Bhowmik however died after the suit was disposed of by the learned Additional District Judge and his heirs have been substituted as Respondents 1 (a) to 1 (g). The objection of Bhabani was that the; will was the result of a conspiracy, that it was not executed and attested in accordance with law, that a previous will dated 23-11-55 was executed by Charubala Bhowmik by which fill her properties were given to the objector Bhabani Prosad and that the subsequent will was obtained by the Appellant according to bis own dictation and by exercising undue influence and that the testatrix had no mental capacity for disposing of her properties r at the time of execution of the will on 10-1-59.
The following issues were framed by the learned Additional District Judge:
Whether the alleged will has been properly executed and attested?
Whether the alleged will in prepared end manufactured document?
Whether late Charubala wig; conscious and of sound health and mind at the time of execution of the alleged will and whether she had the requisite mental capacity in the .matter of disposing her properties?
To what relief, if any, the parties are entitled?
The Plaintiff examined himself and given other witnesses in support of his case I and the objector Bhabani Prosad Bhowmik examined himself and three other witnesses. Ijpbjector Ganesh Bhowmik, who did not file why objection, deposed as witness for the jpwoc objectors and supported the case of the Plaintiff. The learned Additional Dis-strict Judge on an examination of the fence on record found that the will Ext. 1ificas executed by the testatrix and it was taffy attested by the witnesses and thus he decided issue No. 1 in favour of the plain- Having discussed issues Nos. 2 and 3,jlearnea Additional District Judge, how-fogram, held that though the will was executed the testatrix by putting her signatures did not know the contents of the will she neither approved nor disapproved 4J; and thus he answered issues Nos. 2 and r against the Plaintiff and held that the "fsna a prepared document and that bale was not in sound health and mind jx9 time of execution of the will Ext. 1 -she. did not have the requisite mental to dispose of her property. Acidy, the learned Additional District that the Plaintiff was not entitled get a probate of the will and the suit dismissed with costs.
Mr. Dam, the learned Counsel appear-for the Appellant, submitted that the on record conclusively proved that the was duly executed and attested and the learned trial Court also had found so. The will Ext. 1 was duly registered and therefore the learned Counsel submitted that the learned trial Court was wrong in refusing probate to the Plaintiff. The learned Counsel submitted that since the trial court itself had found that the will was duly executed and attested and registered, the legal presumption was that the will was a genuine one and the Court could not refuse probate.
In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, and in the case of Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, the principles which govern the proving of a will have been laid down as follows:
...that the mode of proving a will did not ordinarily differ from, that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were 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. If the a veator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounded case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator''s mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of tine testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said disposition might not be the result of the testator''s free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take- a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by the clear and satisfactory evidence. But even where there were suspicious circumstances and the propounder succeeded in removing them the Court would grant probate, though the will might be unnatural and might cut off wholly or; in part near relations.
Regarding the value of registration in proving the genuineness of a will, the Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, has laid down as follows:
There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact diat a will is registered will not by itself] be sufficient to dispel all suspicion regarding it where suspicion exists, without sub nujting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that lie registration was made in such a manner that it was brought home to the testator that the document of which '' he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering twill did not read it over to the testator did not bring home to him that he was admitting the execution of a will or did .not satisfy himself in some other. ray (as, for example, by seeing the testator reaqing the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon: (see, for example, AIR 1930 24 (Privy Council) Surendra Nath Lahiri Vs. Jnanendra Nath Lahiri, and Girja Datt Singh Vs. Gangotri Datt Singh, Therefore, the mere fact of registration may not by itself bo enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration Would be an important circumstance in, favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the Execution of which he was admitting.
7-16. Keeping in view the above principles governing the proving of a will, let us examine the evidence in the instant case. (After discussing the evidence his Lordship proceeded.)
On a consideration of the evidence of the Plaintiffs witnesses, we hold that P. Ws. 4 end 6 cannot be relied upon as to the fact {hat before registration and after readingover the will, either the Sub-Registrar of P. W. 1 or anybody else put any questions to the testatrix as to whether the will was according to her instructions. We have scrutinized the evidence carefully and we hold that the evidence in the instant case falls short of satisfying the Court that the testatrix knew that the document, the execution of which she admitted and at the bottom of which she signed, was her last will representing her wishes.
The suspicious circumstances that are found from the evidence on record are (1) P. W. 6 who is the propounder, executor and substantial beneficiary under the will Ext. 1, was not given any property in the previous will and the propounder himself took a prominent part in the execution of the will which conferred on him substantial benefits, though he denied these facts even to the extent of perjuring himself.
(2) The reasons for changing the will executed in 1955 were that Bhabani Prosad Bhowmik was not looking after and nursing her properly and he was hurting her using harsh and unpleasant words and he had taken away from her by force whatever amounts she had in her hand and had been squandering away in various ways. The reasons given in the will Ext. 1 and the reasons given by witnesses Dinesh and Mahen dra are different. Dinesh stated that while Charubala was ill at Kalapani one night she asked Bhabani to light the lamp which was resented by Bhabani with harsh words saying, that for property his life had been made miserable. P. W. 5 Mahendra does not state specifically what was the reason and he was, not reported about this incident by the testatrix. There is no mention in their evidence about Bhabani taking money from the testatrix and squandering it away. It is very suspicious that the will would be'' changed for the incident namely Bhabani refusing to light the lamp and saying something. The evidence in the case shows that the testatrix went to Kalapani with Bhabani where she lived there and it was Bhabani who retested Dinesh to come to Kalapani to take e testatrix to Dhubri for treatment. The defence case is that it was harvesting season and Bhabani could not leave Kalapani at that time.
It is in evidence that Bhabani arrauged the cart and accompanied Charubala and Dinesh up to the Ghat where they took the boat. The learned Advocate appearing on behalf of the Appellant argued that Ext. K-14 written by Bhabani to his uncle a month after the execution of the will shows that he and his mother had become poison to the testatrix. From this, the learned Counsel argued that the lady even after a month was in full consciousness and did not like these persons. No doubt this statement shows that they were not liked by the testatrix. But in the next sentence of the said Exhibit (Ext K-14) it is found that everyday they were being discussed and the testatrix''s mind had been poisoned. After return from Kalapani, Charubala lived in that part of the house which was occupied by P. W. 6 and his wife. But prior to that Charubala -Jived with Bhabani and his mother. This " created an opportunity for P. W. 6 to poison the mind of the testatrix against Bhabani and his mother in absence of Bhabani.
(3) Another suspicious circumstance is that in the will of 1055 there was no mention of 37 B 6 K 5 Ch of land described in schedule ''Kha'' to the present will Ext. 1. The defence case is that this land is not the exclusive property of the testatrix. The Plaintiff Dinesh Mitra P. W. 6 filed a case u/s 103 G. T. Act for mutation of his name as the sole executor in respect of 87 B 6 K 5 Ch. of land of Kalapani acquired estates. In that case Bhabani filed an objection stating that the land in question was set apart for performing the Dol-Durgotsav, that mere was an agreement between the co-sharers that Charubala during her lifetime would perform Dol-Durgotsav every year with the income derived fro in these lands and that alter her death any member of Bhowmik family who would perform Dol-Durgotsav would remain in possession of the said lands.
This appears from the records of case No. K/19 of 1961-62 u/s 103, G.T. Act. Thereafter the suit was withdrawn by Dinesh Chandra Mitra. Front E\\t. G which is a certified copy of the decree in Title Suit No. 10/63, on compromise between the parties, it appears that these 37 B. 6 K 5 Ch. of land were described as life estate of Charubala Bhowmik. On a consideration of Ext. G and the case u/s 103 G. T. f Act filed by Dinesh, it is quite apparent that Charubala knew fully well that the income from these 37 Bighas and odd land was, meant for performance of Dol-Durgotsav by the Bhowmik family and therefore this land Was not included in the will of 1955. This circumstance raises a very strong suspicion that the contents of the will Ext. 1, were not written according to the instructions of Charubala.
(4) Another suspicious circumstance is that Dr. S. Ray the attending physician of Charubala was not examined who could have Is well deposed as to the slate of mind of "iCaarubala at the relevant time. From the ftyidence of P. W. 3 who is also a doctor it " ''found that at the time of execution of the J; the testatrix was in physical pain and iwasulso mentally uneasy. On seeing fatnesses she was not at ease and she ed to finish the affair as early as possible iJDinesh Mitra the propounder handed,pen to her
These suspicions have not been re by the evidence adduced on the _" the Plaintiff and therefore we hold bough the will was registered it can-fsaid that the testatrix admitted the execution of the will after knowing that it was written accoiding to her instructions and the Ext, 1 represented her wishes.
P. W. 5, Mahendra Choudhury stated that he went to P.W. 1 and got the draft prepared and the draft was brought and read over to Charubala and she assented to it and thon ho took it back lo P. W. 1 and requested him to complete the will in the final form. This is not, however, corroborated by the evidence of P. Ws. 1 and 2. P. W. 1 did not state-that he gave the draft to Mahendra to get the approval of the testatrix. No question was put to this witness whether such instruction or approval was obtained from the testatrix. P. W. 2 who wrote the will from the draft stated that after he had written it, he handed over the draft to P. W. 1. On a scrutiny of the evidence of these two witnesses, the evidence of P. W. 5 to the effect that he took the draft home and obtained the approval of Charubala and thereafter handed it over to P. W. 1 to write it in the final form, is not acceptable.
We have considered the evidence adduced on behalf of Bhabani and the other objectors. On a consideration of the entire evidence on record we are clearly of the opinion that the will, Ext. 1, was prepared according to the instructions of'' Mahendra Choudhury and Dinesh Mitra and the evidence does not show that (he will was according to (ho instructions of Charubala. Theevidence also shows that the will was prepared according to the instructions of Dinesh Mitra and Mahendra Choudhury taking advantage of the serious illness of testatrix in absence of Bhabani. The propounder prevailed upon her to sign it in presence of the witnesses and at that time the testatrix was not in a proper slate of mind to understand the nature of disposition.
From the evidence of P. W. 3 we are of the opinion that the testatrix did not have the requisite mental capacity to dispose of her property at the relevant time. Though tho will was executed and registered, on consideration of the evidence on record, we hold that the will was not proved to be according to the instructions of the testatrix, the testatrix did not approve of the will even if it was at all read over to her; the Sub-Registrar also did not ascertain from the t whether the will was accoiding to her instructions by putting any question to her. In the circumstances the registration1 must be held to be perfunctory.
In the result we hold that no probate can be granted to the Plaintiff in the instant case and we affirm the judgment and decree of the learned Additional District Judge. The appeal is dismissed with costs.
P.K. Goswami, J.
I agree.