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Case title:  Smt. Niyati Das Vs Smti. Milan Debnath & Ors.

Case no.:  MFA No.04 of 2022

Dated on: 03.06.2023

Quorum:  Hon’ble. MR JUSTICE T. AMARNATH GOUD

 

FACTS OF THE CASE

This appeal has been filed under Section-299 of Indian Succession Act, 1925 read with Order-XLI Rule-1 of Code of Civil Procedure, 1908 (as amended up to date) against the judgment passed in T.S.(Probate) 01 of 2014 by the learned District Judge, North Tripura, Dharmanagar on 06.04.2022.

The fact of the case of the appellant, in short, is that the testator Dhruba Kanti Gupta died at his residence on 12-03-2012. During the lifetime of deceased Dhruba Kanti Gupta his relation with his wife, son and daughter was not good and due to such bitter relation about 14 years ago his wife left his house along with her son and daughter and started living separately in her personal residence at Padmapur under Dharmanagar Sub-Division. During that period the appellant used to look after said Dhruba Kanti Gupta by nursing, cooking meal and helping to get medical treatment etc. and the appellant has been permanently residing in the house of Dhruba Kanti Gupta and being satisfied said Dhruba Kanti Gupta executed a registered Will dated 29-05-1997 before the Sub-Registrar, Dharmanagar in favour of the appellant, Smt. Niyati Das in respect of his all movable and immovable properties including gratuity, provident fund and deposited money in the Bank and Post Office. It is also stated that the appellant was named as the executor in the said Will and she is entitled to get movable and immovable properties including the money deposited in Bank as per description of the Will according to the last desire of the testator. But the appellant could not give details list of all assets and the debts of the deceased Dhruba Kanti Gupta as just after the death of Dhruba Kanti Gupta the present Opposite Parties forcefully captured all the documents of bank and post office, ration card including documents of landed properties and they forcefully drove out the appellant from the house of the deceased. It has been further stated that the deceased left behind Smt. Milan Debnath as his wife, Sri Biswajit Gupta as his son and Smt. Mitali Gupta as his daughter as his legal heirs and survivors but due to their misconduct and misbehaviour with the deceased Dhruba Kanti Gupta he being dissatisfied with them executed the said Will in favour of the appellant. Thus, the appellant has prayed for a direction to the respondents to produce the documents in connection with the Will and grant probate of the Will in favour of the appellant.

 ISSUES

• Whether the application filed by the petitioner, Smt. Niyati Das under Section-276 of the Indian Succession Act, 1925 for grant of a probate of the Will executed by Dhruba Kanti Gupta valid?
• Whether the judgment passed by the learned Court below is liable to be set aside?

LEGAL PROVISIONS

Section-299 of Indian Succession Act, 1925

Section 299 of this Act says that every order made by the District Judge by virtue of the powers conferred upon him by the Act shall be subject to appeal to the High Court.

Order-XLI Rule-1 of Code of Civil Procedure, 1908

Order XLI, Rule 1, of the Code of Civil Procedure provides that the memorandum of appeal shall be accompanied by a copy of the decree appealed against and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.

CONTENTIONS OF THE APPELLANT

Mr. S. Bhattacharjee, learned counsel appearing for the appellant has submitted that the learned Court below has erred in law and came to an erroneous conclusion as such the judgment passed by the learned Court below is liable to be set aside. The learned Court below misinterpreted the clauses of the WILL and completely on imagination draws inference while the respondents in spite of submitting written statement did not enter into witness box to rebut the evidence of the appellant. He has further contended that the learned Court below discussed and came to the conclusion that the WILL does not bear any description of the WILL but the learned Court has failed to read the contents of the WILL. There is no specific form for any WILL and the Court has to read so as to determine the question as to object and subject of WILL but, the learned Court below has most wrongly held that there was nothing in record that testator had right, title, interest over the suit land at the time of execution of WILL as such the findings of the trial is liable to be interfered with.

CONTENTIONS OF THE RESPONDENTS

After registration of the suit initially order was passed directing ex-parte hearing of the suit against all the opposite parties as they did not appear before the court even after receipt of notice in connection with this suit. However, subsequently all the three opposite parties appeared before the Court and filed separate applications for vacating the ex-parte order passed against them and after allowing their applications, all the three opposite parties contested this suit by submitting their separate written statement.

 In their respective written statements the opposite parties denied and disputed each and every averments made in the application by the appellant and raised objection regarding genuineness of the so called last Will of deceased Dhruba Kanti Gupta. It is also pleaded by the opposite parties that deceased Dhruba Kanti Gupta did never execute any Will in respect of his movable and immovable properties including the service benefits in favour of the appellant rather the appellant has approached before the Court for granting a probate in respect of the so called last Will of deceased Dhruba Kanti Gupta submitting some false and fabricated documents.

COURT’S ANALYSIS AND JUDGEMENT

The court stated that the burden of proof of execution of a Will as also the suspicious circumstances attached to execution of such Will always lies on the propounder of the Will who has to prove the due execution of Will and remove the suspicious circumstances from the mind of the court by cogent and satisfactory evidence. The case of the appellant is that deceased Dhruba Kanti Gupta during his lifetime had no good relationship with his wife and children for which deceased Dhruba Kanti Gupta used to reside at his own residence at Office road, Dharmanagar alone for about 14/ 15 years from the date of execution of the Will and that the respondent No.1 even did not allow her son and daughter to keep any relation with their father Dhruba Kanti Gupta (now deceased). So, from the story of the appellant itself it may safely be presumed that late Dhruba Kanti Gupta had not been passing his days in a peaceful condition. On the other hand, being the executrix or trustee, the appellant was very much aware about that clause of the last Will of deceased Dhruba Kanti Gupta. Facing of unnatural death by the testator Dhruba Kanti Gupta at his residence in the presence of the appellant and subsequently obtaining a forged death certificate of deceased Dhruba Kanti Gupta by the appellant, showing the place of death as District Hospital, Dharmanagar itself raise some reasonable suspicion regarding the genuineness of the Will.

The court also  looked into the procedure to resolve the inconsistency in a Will wherein latter clause in the Will inconsistent with earlier clause and in such of inconsistency the last intention of the testator is to be given effect, therefore, the latter clause is held to prevail over the earlier clause of the Will. In the present case testator Dhruba Kanti Gupta in the first part of his Will had bequeathed his all movable and immovable properties without giving details of the properties in favour of the appellant after death of the testator Dhruba Kanti Gupta but, in the last part of the Will he deserved his right alive for cancellation of the said Will at any point of time during his lifetime. The court further stated that if the version of the appellant is to be believed that the deceased is alone and no one has taken care and she is the only one, the deceased would have made the beneficiary the appellant herein in respect of his movable and immovable properties including all service benefits. But, nothing has been indicated except, the landed property and thus, it creates an amount of doubt in the mind of the Court and in view of above, discussion and observation, the present appeal stood dismissed consequently, the findings as observed by the learned Court below stood affirmed.

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Judgement Reviewed by – Fathima Sara Sulaiman

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