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Bhagaban Sahoo v/s Krushna @ Krushna Chandra Sahoo & Others

Company & Directors' Information:- R K CHANDRA PVT LTD [Strike Off] CIN = U36911WB1989PTC046753

Company & Directors' Information:- CHANDRA AND COMPANY PRIVATE LIMITED [Dissolved] CIN = U74999KL1952PTC000280

Company & Directors' Information:- R. CHANDRA LIMITED [Not available for efiling] CIN = U99999MH1953PLC009175

    AHO No. 3 of 2000 & AHO No. 2 of 2000

    Decided On, 18 August 2021

    At, High Court of Orissa


    For the Appellant: A.K. Mishra, Advocate. For the Respondents: B.C. Panda, Advocate.

Judgment Text

1. Both the appeals have been directed against the common judgment dated 12th November, 1999 of the learned Single Judge passed in F.A. Nos. 64 of 1996 and 183 of 1996.2. The original Plaintiff is the deceased-appellant in both the present appeals. Defendant No.6 was the appellant in F.A.No.64 of 1996 and Defendant No.2 was the appellant in F.A.No.183 of 1996. For convenience, the parties here-in-after are referred with their original status in the suit.3. The Plaintiff filed Original Suit No.40 of 1987 under Section 276 of the Indian Succession Act for probate of the Will dated 10th April, 1960. The case of the Plaintiff is that, Harekrushna is the testator and he (Plaintiff) is the legatee in respect of the Will. Harekrushna has 1/4th share in 'B' schedule property of the suit. He was a leper and died as a bachelor on 6th March, 1962. Though Plaintiff is the natural brother of Harekrushna, but was adopted to the brother of their natural father. Similarly, Defendant No.2, who was the grandson of Banchhanidhi, another brother of natural father of Harekrushna and Plaintiff, has been adopted by Alekha belonging to another branch of the common ancestor Banamali. Since the genealogy has been mentioned in the suit as well as in the First Appeal, the same is not mentioned in detail here.4. It is stated by the Plaintiff that Harekrushna in the later part of his life was kept in a Leprosy Ashram till his death. Before his death, Harekrushna executed an unregistered 'Will' in favour of the Plaintiff on 10th April, 1960 out of his free will in presence of the witnesses. Being a leprosy patient he had lost the fingers and at the time of execution of the Will, the scribe attested the thumb impression (Santak) of Harekrushna on the Will in presence of the witnesses as per his direction as he was unable to put his signature.5. The suit was contested by Defendant Nos. 1 to 3 & 5 to 7. Defendant No.8 supported the contention of the Plaintiff and other Defendants did not come to contest. As per the contesting Defendants, no such Will was executed by Harekrushna. Ext.1 (the Will) is a fabricated and forged document. These defendants also disputed the date of death of Harekrushna and as per them, he died prior to 10th April, 1960 even before attending the age of majority. Therefore, the interest of the alleged testator in the joint family property passed on to the surviving members of the joint family.6. The learned trial court framed six issues. All such issues were answered in favour of the Plaintiff and the probate was granted by judgment and decree dated 22nd January, 1996.7. Against the same Defendants 2 & 6 filed F.A. No. 183 of 1996 and F.A. No. 64 of 1996 respectively. The learned Single Judge reversed the findings of the learned trial court in both the appeals and allowed the same by setting aside the judgment and decree of the learned trial court.8. The appellant contends before this Court in the present appeals that the findings arrived at by the learned Single Judge in the First Appeals are contrary to the evidence and materials brought on record and as such, liable to be set aside.9. The main dispute is whether the alleged Will under Ext.1 is genuine or a forged and fabricated document. All six issues are connected to this dispute. The learned Single Judge doubted the genuineness of the Will on analysis of the evidence regarding presences of witnesses at the time of execution of the Will, its attestation and suppression (of Ext.1) by the Plaintiff for around twenty years after death of the testator.10. Admittedly the Will under Ext. 1 is unregistered and does not contain signature of the testator. It is explained that due to loss of fingers of the testator, he could not put his signature or thumb impression on the same. The pleading at para-3 of the plaint is specific to the extent that, "As a matter of fact the executant being a Leprosy patient at the time of execution he was unable to put his signature and the scribe attested the thumb impression (Santak) of the said Harekrushna Sahu in presence of the witnesses as per his direction". The scribe of the Will, who has been examined as P.W.3, has stated in his evidence that he himself put the identification and signed on behalf of the executant. The explanation of the plaintiff that a mark (Santak) has been impressed to represent and replace the signature or thumb impression of the testator, is not found specifically pleaded by the Plaintiff. Even in absence of that, the learned Single Judge considered such explanation and came to the finding that in view of other evidences regarding execution of the Will being not unimpeachable, such a probability of impressing mark (Santak) as contended by the Plaintiff cannot be accepted.11. The discrepancies in the evidence of P.Ws.1, 2 and 3 as discussed by the learned Single Judge regarding execution of the Will in their presence are well evident on record and as such, the doubt raised by the learned Single Judge upon the circumstances at the time of execution of the Will cannot be faulted with.12. The delay in disclosure about execution of Ext.1 in favour of the Plaintiff is a considerable factor in the present circumstances of the case. Admittedly, Ext.1 was brought to the knowledge of others around twenty years after the death of the testator. It is not the case that the parties were in peaceful possession of their shares over the joint family property without any dispute. Several legal disputes were fought between the co-sharers of the common ancestor Banamali which are apparent on record. To exemplify, one of them is Civil Revision No.265 of 1964 filed in the High Court of Orissa concerning to a suit involving right of recovery of rent of the suit house, and another is T.S. No. 2/4 of 1951/50. It is true that, no limitation has been prescribed under the law for grant of probate of the Will. But in the wake of various disputes between the co-sharers over the joint family property, apparent silence of the plaintiff about execution of the so called Will for such a long period, is certainly a doubtful circumstance against him. In the backdrop of such circumstances, the learned Single Judge has rightly reappraised the evidence brought on record to doubt the genuineness of the unregistered Will under Ext.1 to which we also agree with.13. The further contention by the counsel for the Plaintiff that in absence of any limitation prescribed for probate, it is up to him to apply for probate at the suitable time when the requirement arises for which no adverse inference should be drawn against him for the delay, is not acceptable since the question here is about bonafide conduct of the propounder (Plaintiff). The burden of proof is on the propounder and the test is satisfaction of conscience of the court. In view of the attendant nature of Ext.1 (Will) that it is unsigned and unregistered one, the suspicion is more legitimate and thus the onus of proof on the propounder becomes stricter. After all, it is the ultimate conscience of the court that has to be satisfied and as such, the nature and quality of proof must commensurate with the need to satisfy that conscience and remove all suspicions which a reasonable man may entertain

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in the circumstances of the case.14. Next regarding the actual date of death of Harekrushna (the testator), no specific finding has been given by the learned Single Judge and he has opined that in absence of unimpeachable evidence from the side of the Defendants, it is difficult to arrive at any concrete conclusion if Harekruhsna died prior to the date of execution of the Will. This is based on the date of death mentioned in Ext.5 and Ext.A, which are the death certificates granted by Leprosy Hospital and the Municipality respectively. Since such discrepancies are apparent on the face of Ext. 5 and Ext. A, we therefore do not see any reason to interfere with the same.15. In view of the discussions made above, the appeals are found devoid of merit and as such are dismissed. No order as to costs.