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Laldingliani v/s Lalchullova

    Regular First Appeal No. 12 of 2018

    Decided On, 18 June 2020

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE NELSON SAILO

    For the Appearing Parties: T. Lalnunsiama, Robert Laltlana, Lallawmzuali, Ophel Zodinmawii, T.B.C. Malsawmtluangi, J.H. Ricky Lalruatfela, Angela Zothansangi, C. Lalfakzuala, H. Lalremruata, Advocates.



Judgment Text

Nelson Sailo, J.

1. Heard Mr. T. Lalnunsiama, learned counsel for the appellant/opposite party and Mr. C. Lalfakzuala, learned counsel for the respondent/probate petitioner.

2. This appeal is filed against the Judgment and Order dated 24.11.2017 passed by the Senior Civil Judge-IV, Aizawl District, Aizawl in Probate Case No. 8/2014 probating the Will dated 22.5.2013 said to have been executed by Sh. Thangvela (L) of Sairang, Aizawl District, Mizoram in favour of the respondent/probate petitioner. In the probate case, the instant appellant was the opposite party. For brevity and convenience, the appellant/opposite party and the respondent/probate petitioner will be hereafter referred to as the appellant and the respondent respectively.

3. The case of the respondent before the Probate Court was that he is the son of Sh. Thanmawia (L), who is the youngest amongst the three (3) brothers. His two (2) elder brothers are Sh. Hrangdawla (L) and Sh. Thangvela (L). On 22.05.2013, his elder brother Sh. Thangvela made a Will in his favour, naming him to be the successor to his landed property covered by LSC No.SR 6/1996. The Will was witnessed by Smt. Vanlalhumi and Sh. L. Thanga by appending their signatures and later on, Sh. Liandinga, the President of Sairang Village Council too appended his signature. Thus, by filing Probate Case No. 8/2014, the respondent sought probate of the said Will.

4. The case of the appellant on the other hand, is that she is the daughter of Sh. Hrangdawla, the eldest amongst the three (3) brothers. That her father's younger brother i.e., Sh. Thangvela who is therefore her uncle, died as a bachelor. During his lifetime, she took care of all his requirements as he lived alone. As such, he even kept her as his nominee to his Bank Account. When he fell ill and was admitted to the hospital, she took care of him and paid all his medical expenses. Sh. Thangvela on 09.09.2013 made a Will in her favour by giving her his landed property covered by LSC No. S.R. 6/1996. As such, the appellant against the probate case initiated by the respondent, filed her written statement and a counter claim, claiming the landed property of late Sh. Thangvela on the strength of the Will dated 09.09.2013 and also on the ground that she had taken care of him till his last breath.

5. With the above claim of the rival parties, the Court below framed the following two (2) issues –

(i) Whether the Will dated 22.05.2013 executed by Sh. Thangvela (L) is a valid Will.

(ii) Whether the Will dated 09.09.2013 executed by Sh. Thangvela (L) is a valid Will.

6. In support of his claim, the respondent examined three (3) witnesses including himself. He was examined as PW-1 while Smt. Vanlalhumi and Sh. L. Thanga were examined as PW-2 and PW-3 respectively and they were the ones who witnessed the Will dated 22.05.2013 claimed to have been made by Sh. Thangvela (L). As for the appellant, she examined five (5) witnesses including herself. She was examined as OP Witness No. 1 while Smt. C.S. Thanchhingi, Smt. Ramnundangi, Sh. K. Laltanpuia and Sh. Vanlalruata were examined as OP Witness Nos. 2, 3, 4 and 5 respectively. Licensed to :- Advocate Shankar Chakrapani [Client Code :- 11207]

7. After the rival parties examined their respective witnesses, the Trial Court vide its Judgment and Order dated 24.11.2017 allowed the Probate Case of the respondent and dismissed the Counter Claim of the appellant. Aggrieved, the appellant is before this Court through the present appeal.

8. Mr. T. Lalnunsiama, the learned counsel for the appellant submits that the Will dated 22.05.2013 could not have been probated by the learned Trial Court inasmuch as an executor was not appointed by Sh. Thangvela as mandated under Sections 9 and 17(e) of the Mizo District (Inheritance of Property) Act, 1956 (the Act of 1956 in short). He further submits that although Sh. Thangvela (L) did not appoint an executor in the Will dated 09.09.2013 left by him in favour of the appellant as well but however, as the appellant lived with him and looked after him till his death and therefore, she has every right to inherit his property. As for the respondent, he never looked after Sh. Thangvela and left the ancestral home in fact. He submits that from the evidence of the respondent himself, it can be seen that he invited late Sh. Thangvela to come to his house on 22.05.2013, on which date, the alleged Will was said to have been executed. In this connection, by referring to Section 8(2) of the Act of 1956, he submits that any Will or any part of a Will, the making of which has been caused by fraud or coercion or by such importunity (persistence) which takes away the free agency of the testator is void. Therefore, considering the evidence of the respondent himself, the Will dated 22.05.2013, besides not meeting the requirement of Section 9 and Section 17(e) of the Act of 1956, the same cannot be accepted. In support of his submission, the learned counsel relies upon the following authorities:-

(i) Smt. Indu Bala Bose & Ors. Vs. Manindra Chandra Bose & Anr., 1982 AIR(SC) 133: (1982) 1 SCC 20

(ii) Rani Purnima Devi & Anr. Vs. Kumar Khagendra Narayan Dev & Anr., 1962 AIR(SC) 567

(iii) Lalchhuana Vs. Romawii & Ors., 2014 1 GAuLT 702

(iv) Laxman Vs. Basavanni & Anr., 2018 AIR(Kar) 100

9. Mr. C. Lalfakzuala, the learned counsel for the respondent by referring to Section 3(64) of the General Clauses Act, 1897 (the General Clauses Act in short) submits that the definition of 'Will' includes a codicil and every writing which makes a voluntary posthumous deposition of property. He further submits that Section 74 of the Indian Succession Act, 1925 (the Succession Act in short) defines Wording of Will. Referring to the same, he submits that it is not necessary that any technical words or terms of art be used in a Will. The only requirement is that the wording should be such that the intention of the testator can be known therefrom. By further referring to Section 82 of the Succession Act, the learned counsel submits that the meaning of any clause in a Will is to be collected from the entire instrument and all its parts are to be construed with reference to each other. He also refers to Section 222 of the same Act and submits that the appointment of an executor may be expressed or by necessary implication. In view of such provision, the Will dated 22.05.2013 was rightly probated by the Trial Court. By referring to Section 68 of the Indian Evidence Act, 1872 (the Evidence Act in short), Mr. C. Lalfakzuala further submits that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness has been called for the purpose of proving the execution. In the present case, besides the respondent, the two witnesses who saw the execution of the Will dated 22.05.2013 were examined by the respondent before the Court below and therefore, the Will was rightly probated in favour of the respondent by the Trial Court.

10. The learned counsel further submits that as per the Inheritance Act, a Will has to be probated before the Subordinate District Council Court (SDCC). However, with the enactment of the Mizoram Civil Court Act, 2005 which came into force from 30.10.2008, the Rules for Regulation of Procedure of Officers to Administer Justice in Lushal Hills, 1937 stood repealed. As such, the SDCC being no longer in existence, the appellant cannot insist that the probate case has to be filed only in terms of Section 17(e) of the Act of 1956. He further submits that the Act of 1956 itself was repealed by the Mizo Marriage Divorce and Inheritance of Property Act, 2014 (the Act of 2014 in short) and it came into force w.e.f. 13.02.2015. Referring to the Repeal and Savings clause at Section 40 of the Act of 2014, the learned counsel submits that the Inheritance Act stood repealed and that all acts done under the old Act are deemed to have been done under the new Act of 2014. Therefore, the claim of the appellant that the Will has to be probated only in terms of the Act of 1956 is misconceived and untenable. Mr. C. Lalfakzuala in support of his submissions have relied upon the following authorities:-

(i) Bhagwan Krishan Gupta Vs. Prabha Gupta & Ors., 2009 11 SCC 41

(ii) Judgment & Order dated 08.11.2017 in RSA No.8/2012 (Lalramhluna & Ors. Vs. Lungtiawii & Ors.) passed by a Single Bench of this Court.

11. From the submissions made by the rival parties as well as from the materials available on record, what can be seen is that Sh. Thangvela expired on 09.10.2013 leaving behind his landed property covered by LSC No. SR 6/1996 and which is registered in his name. The appellant is the daughter of Sh. Hrangdawla (L), the elder brother of Sh. Thangvela and she claims that Sh. Thangvela gave her his landed property through the Will dated 09.09.2013 and that she took care of him till his death. The respondent on the other hand is the son of Sh. Thanmawia (L), the youngest of the three (3) brothers. The respondent claims that Sh. Thangvela gave him his landed property through the Will dated 22.05.2013 prepared by him during his lifetime. As may be already noticed, the appellant in support of her counter claim before the Court below examined five (5) witnesses including herself whereas, the respondent examined three (3) witnesses including himself.

12. To consider the rival claims, let us dwell upon the evidences led by the parties. The appellant was examined as OP witness No.1 and in her examination-in-chief, she deposed inter alia that her late uncle Sh. Thangvela during his lifetime made a Will. On 09.09.2013, he indicated that he wanted to make a Will and so, Smt. C.S. Thanchhingi and Smt. Ramnundangi were asked to come and witness the Will. Thereafter, the then Village Council Secretary Sh. K. Laltanpuia was also asked to come and he under the dictation of her uncle wrote down the Will. After the Will was prepared, they all appended their signatures in it. The appellant then exhibited the Will as Exb. D4. In her cross examination, the appellant deposed that it was a fact that Sh. Thangvela was a literate person. The Will was executed in her house and the testator was sitting at the time of executing the said Will. She also admitted that Sh. Thangvela used signature to sign his name during his lifetime but she had not seen other documents where he had given his signature. She also deposed that her late uncle was not paralyzed and was able to move at the time of executing the Will in her favour and that he died in the year 2014.

13. Smt. C.S. Thanchhingi as witness No.2 of the appellant in her examination-in-chief inter alia deposed that when the Will dated 09.09.2013 was going to be prepared, she was asked to come and witness the same. After Sh. K. Laltanpuia finished writing down the Will under the dictation of Sh. Thangvela, they all appended their signatures in the said Will. In her cross examination, she deposed that it was a fact Sh. Thangvela did not sign nor gave his thumb impression on the alleged Will.

14. Smt. Ramnundangi who is the appellant's witness No.3 and sister of the appellant in her examination-in-chief deposed that after Sh. K. Laltanpuia finished writing down the Will as desired by Sh. Thangvela, they all appended their signatures in the Will. In her cross examination, she deposed that Sh. Thangvela was a literate person and he did have a signature and used to sign on documents. She also deposed that Sh. Thangvela was suddenly taken ill and he never signed the alleged Will.

15. Sh. K. Laltanpuia as appellant's witness No.4 in his examination-in- chief deposed that when Sh. Thangvela was going to make a Will, he was called and after he finished writing the Will as desired by him, all of them put their signature in the Will. He further deposed that he was aware about the fact that the relationship between the respondent and Sh. Thangvela was bad and therefore, it was most unlikely that the latter in his right sense would have made the Will dated 22.05.2013 in favour of the former. In his cross examination he deposed that it was a fact that Sh. Thangvela put his thumb impression in the Will dated 09.09.2013 but did not know whether it was his left or right thumb impression.

16. Sh. Vanlalruata as witness No.5 of the appellant and also the elder brother of the respondent in his examination-in-chief deposed that he, the respondent and besides others caused displeasure to their uncle Sh. Thangvela and therefore, since the year 1997, he stopped treating them as his own and that the respondent even at that time was living separately. Sh. Thangvela stayed alone in his dwelling house at Sairang Dawr Veng but from the year 2003, he, Smt. Ramnundangi and the appellant started staying together. Sh. Thangvela was getting old and therefore, the appellant in particular continued to look after him and since 2010, they stayed together. The respondent on the other hand not once looked after Sh. Thangvela and therefore, he was of the firm belief that Sh. Thangvela would not have made any Will in his favour. If any Will was made, it would only be in favour of the appellant.

17. The respondent examined himself as probate petitioner witness No.1 and in his examination-inchief he deposed that although his father is the youngest amongst the brothers, his uncle Sh. Thangvela remained a bachelor and therefore, they all lived together in the ancestral home covered by LSC No.SR 6 of 1996. However, after his father's death, they shifted to their other plot in Sairang Dinthar Veng. Since his uncle was living all by himself, they were mainly the ones who looked after him. He being the son of the youngest amongst the three (3) brothers, his uncle made the Will in his favour and which was witnessed by Sh. L. Thanga and Smt. Vanlalhumi. In his cross examination, besides reiterating what he stated in the examination-in-chief, he also stated that on 22.05.2013, he invited Sh. Thangvela to come over to his place and he accordingly came. He also admitted to the fact that had he not asked him about his property, he would not have made the Will. The Will was written by Smt. Vanlalhumi and after the same was prepared, he and his wife Smt. Vanhlupuii took it to Sh. Liandinga, the Village Council President of Sairang to obtain his signature after about two or three days.

18. Smt. Vanlalhumi was examined as probate petitioner's witness No.2 and in her examination-inchief, she deposed that when the Will dated 22.05.2013 was made by Sh. Thangvela, she as well as Sh. L. Thanga and the respondent were all present and she stood as a witness to the Will. She saw Sh. Thangvela write his name and also saw Sh. L. Thanga put his left thumb impression in the Will. In her cross examination, she deposed that on the day the Will was executed, she attended a wedding reception in the neighborhood of Sh. Thangvela and that she dropped by to use the washroom in his house and it was then that the Will came to be prepared. She also admitted that in the executed document, the term 'Will' was not used and on being re-examined, she stated that although there is no use of the term 'Will' but nevertheless, they considered the executed document to be a Will.

19. Sh. L. Thanga was examined as petitioner's witness No.3. In his examination-in-chief, he deposed that when the testator Sh. Thangvela made the Will dated 22.05.2013, he was also present and he stood a witness to the same. Apart from him and the Testator, Sh. Lalchullova and Smt. Vanlalhumi were present. He further deposed that though he could not read or write, he witnessed and understood what the testator said out of his own free will and without any compulsion from any quarter about leaving his house in favour of the respondent Sh. Lalchullova. He also saw him write down his name in the Will and as a witness to the same, he gave his left thumb impression. In his cross examination he deposed that when he reached the respondent's house, Sh. Thangvela was already there and to his understanding, he was there for the purpose of making the Will. He accepted the fact that the Will was made by Sh. Thangvela after the respondent Sh. Lalchullova asked him about his property. He denied the suggestion that there was misunderstanding between the respondent and Sh. Thangvela.

20. What can be noticed from the evidence of the appellant is that Sh. Thangvela (L) was a literate person and could give his signature on papers. When the alleged Will was prepared, he was not paralyzed and he could move and also sit but yet, the alleged Will bears his thumb impression instead of his signature. The appellant who said that she was present when the Will was made has nowhere explained as to why Sh. Thangvela gave his thumb impression instead of his signature in the alleged Will. It may be further noticed that when the appellant was cross examined during the probate proceedings, she stated that her uncle died in the year 2014 but as per the statement of the respondent in the probate application and also in the written objection to the counter claim which was not denied by the appellant, Sh. Thangvela expired on 09.10.2013.

21. The deposition of the appellant's witness No.2 also appears to be self contradictory in as much as in her examination-in-chief, she deposed that after the Will was prepared, all those who were present appended their signatures but then in her cross examination, she stated that Sh. Thangvela neither signed nor gave his thumb impression on the alleged Will. The appellant's witness No.3 deposed that Sh. Thangvela was literate and he could give his signature but however, he never signed the alleged Will. As for the appellant's witness No.4, it may be seen that his narrative is not consistent in as much as in his examination-in-chief, he stated that after he finished writing the Will, all of them put their signature in the Will but in his cross examination, he stated that Sh. Thangvela put his thumb impression on the Will. In respect of the appellant's witness No.5, he was not present when the Will Ext. D4 (in favour of the appellant) was being executed.

22. The respondent in his examination-in-chief stated that although his father is the youngest amongst the three (3) brothers, his uncle Sh. Thangvela remained a bachelor and therefore, they all lived together in the ancestral home covered by LSC No. SR 6/1996. Later, after his father's death, they shifted to another plot at Sairang, Dinthar Veng and his uncle was living all by himself and they were the ones who mainly looked after him. He being the son of the youngest amongst the three brothers, his uncle made the Will in his favour, which was witnessed by Sh. L. Thanga and Smt. Vanlalhumi. They both were examined as Probate Petitioner Witness Nos. 2 & 3 respectively and their statements corroborated the version of the respondent.

23. The Apex Court in the case of Smt. Indu Bala Bose & Ors. (Supra) observed that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Successions Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator are required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the disposition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. Although the learned counsel for the appellant by relying upon the aforesaid tests has tried to project that the Will dated 22.05.2013 was made under suspicious circumstances since the respondent had invited Sh. Thangvela to his house when the alleged Will was made. However, from the the evidence of the respondent, it can be seen that the respondent himself has stated that he invited Sh. Thangvela to his house and asked him about his properties and to which, he replied that as the respondent was the son of the youngest of the three brothers, there was none but he who should inherit the property. This was what the testator Sh. Thangvela had precisely stated in the Will dated 22.05.2013 and which was witnessed by Smt. Vanlalhumi and Sh. L. Thanga by appending their signatures on the Will. The statement of the respondent in the making of the Will was also corroborated by the evidence of the two witnesses, who were present at the relevant time. Therefore, any doubt regarding the making of the Will can easily be said to have been dispelled.

24. In the case of Rani Purnima Devi & Anr. (Supra) the sum and substance of the ratio laid down by the Apex Court is similar i.e., the propounder must dispel any suspicious circumstances in the making of a Will and if the same is not done, grant of probate would be vitiated. Therefore, in the given facts and circumstances of that case, the Apex Court held that the burden was not discharged by the propounder of the Will and as such, the appeal was allowed. However, with regard to the instant case as already stated in the preceding paragraph, the respondent led evidence by examining himself and two other persons who witnessed the making of the Will. All the statements made by the three witnesses corroborate and support each other and the respondent being the son of the youngest amongst the three brothers, the doubt on the making of the Will sought to be created by the appellant, appears to be without any substance. Having regard to the evidence led by the respondent, I am of the considered view that his participation in the execution of the Will by itself will not vitiate the making of the Will particularly, in the absence of any evidence that the Will was either not made by the testator with a free mind or it was made under pressure and compulsion or there was doubt on the signature of the testator.

25. In the case of Lalchhuana (Supra), a Co-ordinate Bench of this Court held that in order to probate a Will, the application should be made within the limitation period prescribed by the Act of 1956 and in compliance with the requirement of Section 9 & Section 17 (e) of the same Act i.e., the appointment of an Executor. Subsequent to this decision which was rendered on 13.06.2013, the State Government has framed the Act of 2014 by which the Act of 1956 was repealed. The Act of 2014 came into force w.e.f. 13.02.2015 and was published in the Mizoram Gazette dated 16.02.2015. Chapter VII of the Act of 2014 deals with Will. Section 29(7) provides that the legatee will be the executor of the Will. If the legatee is a minor, his/her father/mother whoever is alive will be the executor. If

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his/her parents had both died, his/her legal guardian will be the executor. Section 29(8) further provides that the probate of a Will must be made within 5 years from the death of the testator. A Single Bench of this Court in Lalramhluna & Ors. (Supra), dealt with the question as to which of the Act will be applicable i.e., the Act of 1956 or the Act of 2014 to the facts and circumstances of that case. By applying the ratio of the Apex Court decision in Lakshminarayan Guin & Ors. Vs. Niranjan Modak, 1985 1 SCC 270, the Court held that the appeal being a continuation of the suit, the pending suit filed under the provisions of the old Act would be deemed to have been filed under the new Act of 2014. When the pending suit is deemed to have been filed under the new Act, the provisions of the new Act would necessarily apply in the pending proceeding. The same ratio, in my considered opinion, will apply to the present case as well in view of the fact that the Will was made on 22.05.2013, the probate case filed in the year 2014 and the impugned judgment and order rendered on 24.11.2017 by the Probate Court. That apart, the instant appeal was filed before this Court in the year 2018. I, therefore with utmost respect do not find the case of Lalchhuana (Supra) applicable to the present case. At the same time I respectfully concur with the decision rendered in Lalramhluna (Supra). Having opined as above, the case of Laxman (Supra) relied upon by the counsel for the appellant would also have no application, in view of the specific provisions in the Act of 2014. 26. In the case of Bhagwan Krishan Gupta (Supra) relied upon by the counsel for the respondent the issue was regarding apportionment of property left by this testator through a Will and therefore, the facts in that case are not similar to the instant case. However, the Apex Court importantly observed that the principles of construction of a Will inter alia is well settled in view of Section 74 & 82 of the Successions Act which provides that a will should be read as a whole and that the surrounding circumstances may be given effect to, for the purpose of ascertaining the intention of the testator from the words used and the surrounding circumstances wherefor the Court will put itself in the armchair of the testator. 27. Thus, upon due consideration of the submissions made by the rival parties, the facts and circumstances of the case and the materials available on record, I do not find merit in the appeal warranting the interference of the impugned judgment and order. Accordingly, the appeal stands dismissed. 28. Office to send back the LCR.
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