Dismissed

Dipak Kumar Das, v. Smti Lakhipriya Das and Ors.

Gauhati HC5 Mar 2018Test.App./2/2013

Case brief

AI extract

What is this about?

An appeal challenging the dismissal of a probate suit where the lower court found the will forged. The High Court held the trial court's finding on forgery was correct despite procedural objections, ultimately dismissing the appeal.

What the court decided

AI extract

Dipak Kumar Das, Vs Smti Lakhipriya Das and Ors. — Succession and Inheritance | Gauhati HC (2018)

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GAHC010129362013

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Test.App. 2/2013

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1:DIPAK KUMAR DAS,

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S/O LATE INDRA KANTA DAS, R/O VILL. MAJROUMARI, P.S.DHEKIAJULI, DIST. SONITPUR, ASSAM.

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VERSUS

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1:SMTI LAKHIPRIYA DAS and ORS, W/O LATE INDRA KT. DAS.

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2:SHRI JAGADISH DAS S/O LATE INDRA KT. DAS

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3:RATUL DAS

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S/O LATE INDRA KT. DAS

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4:SMTI SURAMA DAS D/O LATE INDRA KT. DAS

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5:SMTI KANAKLATA DAS D/O LATE MAHENDRA KOCH

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6:BASANTI SAIKIA D/O LATE MAHENDRA KOCH W/O SHRI PUSPA SAIKIA

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7:SMTI HEMAPROVA BORAH D/O LATE MAHENDRA KOCH W/O SHRI REMANI BORAH ALL ARE RESIDENTS OF VILL. MAJROUMARI P.S. DHEKIAJULI PIN 784110 DIST. SONITPUR

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ASSAM

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Advocate for the Petitioner : MR.S. SAIKIA

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Advocate for the Respondent : MR.D K DAS, Senior Advocate

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BEFORE

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HON BLE MR. JUSTICE KALYAN RAI SURANA

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JUDGMENT

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Date : 05-03-2018

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Heard Mr. S. Saikia, learned counsel for the appellant as well as Mr. D. K. Das, learned Senior counsel assisted by Ms. M. Gogoi, learned counsel for the respondent No.6. None appears for the other respondents.

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This appeal under section 229 of the Succession Act, 1925 is directed against the judgment and decree dated 21.12.2012, passed by the learned District Judge, Sonitpur in T.S. (Probate) No.54/09, thereby dismissing the suit filed by the appellant/ plaintiff for grant of probate under section 276 of the Succession Act, 1925.

¶26

As per the genealogical graph submitted by the learned Senior Counsel for the respondent, Mahendra Koch, who is the father of the Testator of will dated 10.01.2000, had left behind the following legal heirs: (1) Indra Kanta Das (son), (2) Jatin Das (son), (3) Bharat Baruah @ Bharat Das (son), (4) Kanaklata Das (daughter), 5) Lonkeswar Das (son), (6) Basanti Saikia (daughter), and (7) Hemaprova Baruah (daughter).

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Indrakanta Das left behind the following heirs: (1) Lakhipriya Das (wife), (2) Jagadish Das (son), (3) Ratul Das (son), (4) Surama Das (daughter), and (5) Dipak Kumar Das (son). The said Dipak Kumar Das is the propounder of the will dated 10.01.2000, which is the subject matter of this appeal. Jatin Das, the second son of Mahendra Koch died on 14.04.2000 and he was unmarried at that time. It is projected that he had executed a will on 10.01.2000, which is stated to be his last

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will and testament, by virtue of which his properties were bequeathed to the legal heirs of his elder brother Indra Kanta Das.

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The appellant namely Dipak Kr. Das, filed a probate case before the Court of learned District Judge, Sonitpur which was registered and numbered as the Misc (P) Case No.35/01. The said application for grant of probate was contested by Sri Bharat Baruah @ Bharat Das, who was issued notice as OP No.5 (mentioned as causes represented by defendant No.6 in the impugned judgment and decree), in the said proceeding. On contest, the probate proceeding was converted to a contested suit by order dated 28.05.2009. Bharat Baruah @ Bharat Das (OP No.5) had died on 07.08.2005.

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The appellant had projected in the petition for grant of probate that Jatin Das, his uncle, died on 14.04.2000 at his residence at village Majroumari under Dhekiajuli P.S. due to illness. He was unmarried and was governed under Dayabhaga School of Hindu Law. Before his death by his last will and testament dated 10.01.2000, executed at Dhekiajuli in the premises of 4 attesting witnesses in sound mind and health and out of his free will and consent, bequeathed all his movable and immovable properties to the propounder as well as other legal heirs of Indra Kanta Das.

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It was projected that by the said will, Smt. Lakhipriya Das, mother of the executor was permitted to withdraw money lying deposited in the bank account of the testator so as to liquidate all his debts and dues. In the writ petition, it was projected that the deceased Jatin Das, had left behind the following heirs at the time of his death: (1) Smt. Lakhipriya Das, (2) Sri Jagadish Das, (3) Sri Ratul Das, (4) Smt. Surama Das, (5) Sri Dipak Kr. Das, (6) Bharat Baruah @ Bharat Das, (7) Smt. Kanaklata Das, (8) Sri Tankeswar Das, (9) Smt. Basanti Saikia and (10) Smt. Hemoprova Borah. As stated earlier, the contesting OP No.5, namely, Bharat Baruah @ Bharat Das had died on 07.08.2005. In his written objection filed on 28.06.2001, it was stated that the testator died on 14.04.2000, but he had not died at village Majroumari but he died in Dhekiajuli. It was denied that Jatin Das even executed a

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will dated 10.01.2000 and the said will was a forged one, and it was stated that the will was prepared by the executor after the death of Jatin Das to grab the properties of the deceased by depriving him. It was stated that 4 attesting witnesses were conspirators with the executor in preparing the forged will and none of them had seen the execution of the will, which was prepared much after the death of Jatin Das by inserting back date on the will.

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It was also stated that the deceased did not have the lawful disposing capacity and he did not bequeath his property on 10.01.2000. It was stated that the deceased had never declared any will to him or to the villagers. It was also stated that Smt. Lakhipriya Das had filed a succession certificate case on 16.06.2000 before the learned District Judge, Sonitpur at Tezpur being Misc (S/C) case No.78/2010, wherein it was mentioned that the deceased was unmarried and died intestate on prolong disease on 14.04.2000 and the deceased did not make any will and that no letter of probate of any will was applied by anybody. On coming to know about the said case, OP No.5 had submitted his objection and therefore, the said succession case was allowed to be dismissed for default by order dated 11.12.2000. It was stated that before his death, the deceased in presence of his heirs and successors, including OP No.5 and other villagers had stated that he did not execute any will. It is submitted that in respect of some properties of the testator, there was an attempt to stealthily remove such items for which the OP No.5 had lodged a complaint on 08.06.2000 before the learned C.J.M., Tezpur which was forwarded to the Officer-in-charge of Dhekiajuli P.S. and a case being GR Case No.735/2000 under section 380/ 506/ 34 IPC was registered. Thereafter, the OP No.5 had instituted T.S. No.95/2000 for declaration of right, title and interest and for recovery of his share of any movable properties and cash left behind by the deceased. And the said suit was pending and that only thereafter, the forged will was prepared.

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On the basis of the pleadings on record, the learned Court below had framed the following issues:

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whether there is any cause of action for the suit?

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whether the petition for Probate is maintainable in law?

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whether the will alleged to have been executed by deceased Jatin Das is forged and prepared after the death of Jatin Das and is liable to be adjusted as forged?

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whether the petitioner is entitled to a Probate, as prayed for?

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to what other relief/ reliefs, if any, the parties are entitled?

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In order to prove the suit, the appellant/ plaintiff had examined 3 (three) witnesses including himself as PW-1, one Damodar Kayastha, attesting witness was examined as PW-2 and one Ms. Surama Das, sister of the appellant was examined as PW-3. They had exhibited the following documents:- Will dated 10.01.2000 of Jatin Das (Exbt.-1), Copy of Jamabandi (Exbt.-2), Record of Misc (S/C) Case No.78/2000 (Exbt.-A), application for succession certificate (Exbt.-B), certificate issued by the Circle Officer (Exbt.-C). The respondent No.-5 i.e. Kanaklata Das examined 3 witnesses including herself (DW-1), Dipen Borah, Gaon Burha (DW-2) and one Kamal Kishore Chandak, Advocate (DW-3). The respondent proved the following documents:- Affidavit of Basanti Devi, the deed writer, who wrote the will (Exbt.-A).

¶44

The learned Trial Court on the basis of the evidence and pleadings on record in respect of issue No.3, held that the will alleged to be executed by Jatin Das is a forged one and was prepared after his death. In view of the said finding, in respect of the issues No.1, 2, 4 and 5, it was held that in view of the finding recorded in respect of issue No.3, the appellant/ petitioner was not entitled to probate on the will and as a result, the suit was dismissed on contest.

¶45

The learned counsel for the appellant has submitted that the learned Court below had relied on minor discrepancies, which were not at all relevant for deciding the case for grant of probate and had misdirected himself in accepting the small discrepancies to constitute suspicious circumstances when there was none. And therefore, the dismissal of the probate case was on wrong legal premise.

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It is submitted that it was not necessary to rely on the evidence of the writer of the will because as per the requirement of section 68 of the Evidence Act, 1872 the will is required to be proved by calling attesting witnesses for proving of the execution of the will, and that the examination of the writer of will was not envisaged.

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It is further submitted that once the attesting witnesses has proved the signature of the testator of the will to be genuine, it is not open for the learned Trial Court to find that the appellant had not examined the scribe who had written the will. It is also submitted that the onus of proof was wrongly shifted on the appellant by holding that the appellant had not got the signature on the will examined by the expert. It is submitted that as the plea was taken by the respondent, it was their burden to prove that the signature on the will to show that such signature was forged.

¶49

It is further submitted that the learned Court below had incorrectly relied on the cross-examination of the PW-2 and had wrongly construed the reply to the suggestion given during cross-examination to be an admission. In order to appreciate the said content of the relevant part of the cross-examination of PW-2 is quoted below: “It is not a fact that Exbt.-1 (will) was not executed by Jatin Das. But it got written after the death of Jatin Das.” It is also submitted that the affidavit of Basanti Devi, described which was sworn on 27.06.2001 and filed along with the petition No.342/2001 was wrongly appreciated by the learned Trial Court. By referring to the order dated 28.06.2001, it is submitted that while the scribe namely Basanti Devi filed petition No.342/2001 together with the affidavit on 27.06.2001, but the learned Trial Court did not pass any order on the said petition and the affidavit of Basanti Devi which was considered by the learned Trial Court, was not accepted by the learned Trial Court. Therefore, it could not be a document on which the learned Trial Court should have relied upon and moreover, the said scribe having not been summoned by the respondent to stand in the witness box to give her evidence, the provisions of section 114 illustration (g) should not have been held to

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be adverse to the interest of the respondent.

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It is also submitted that the learned Trial Court had wrongly relied on the contents of Misc (S/C) Case No.78/2000 because the said petition filed by the mother of the executor was not at all relevant for deciding the probate case.

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In support of his submissions, the learned counsel for the appellant has relied on the following cases:

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1. S. Sundaresa Pai and ors. Vs. Sumangala T. Pai (Mrs) and another 2002 (1) SCC 630,

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1. Smt. Indu Bala Bose and ors Vs. Manindra Chandra Bose and another, (1982) 1 SCC 20,

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1. Madhukar D. Shende Vs. Tarabai Aba Shedage, AIR 2002 SC 637,

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1. Ram Sundar Prasad Verma and ors. Vs. Moni Devi Verma (2011) 6 GLR 26 and

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1. Dilip Dutta Bhowmik and ors Vs. Mira Dutta Bhowmik and ors 2007 (1) GLT 345.

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Per contra, the learned Senior Counsel for the respondent has submitted that it was the pleaded case of the appellant that the testator was ill at the relevant time and therefore, it was the duty of the appellant to prove that the testator had a sound disposable mind to bequeath his property by will.

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It is further submitted that PW-1 was confronted with the contents of para 4 and 10 wherein she had stated that the testator had died without any will and that no probate case was pending due before any Court and with the series of ligation between the parties would show that the will had been suppressed at earlier point of time, but only after the succession case filed by the mother of the executor was dismissed, the will had surfaced, which is one suspicious circumstances relating to the execution of the will.

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It is further submitted that as the scribe, namely, Basanti Devi had submitted an affidavit before the learned Trial Court, the learned Trial Court had competence to read its contents because it created the circumstances which gave rise to existence of suspicious circumstances on the execution of the will. And that the DW2, Gaon Burha had deposed to the effect that he was aware of the statement by the said scribe that the will was a forged one and moreover, the counsel who had drafted the said affidavit and had identified the deponent had given his evidence as DW-3, stating that the will by property was given and prepared on the back date by the propounder. Hence, by relying on the case of Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh and ors, (2009) 4 SCC 780, it is submitted that there is no infirmity on the order passed by the learned Trial Court and the appeal was liable to be dismissed.

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Having considered the submissions made by both sides and on perusal of the materials on record, the following point of determination arises for consideration in this appeal i.e.

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1. Whether the learned Trial Court had erred in law and on facts in holding that the will dated 10.01.2000 (Exbt.-1) by Jatin Das was forged and prepared after his death?

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1. Whether the proceeding of T.S.(P) 54/2009 was maintainable?

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The point of determination No.2 is taken up first: The learned Trial Court in internal page 5 of the said order has recorded that the OP/defendant No.1 Bharat Baruah @ Bharat Das, since deceased, had contested the application under section 276 of the Indian Succession Act, 1925 by filing written statement dated 28.06.2001 and accordingly, by order dated 28.05.2009, the petition was directed to be registered as a title suit. In the same page, the following observation has been made by the learned Trial Court, which is quoted below:

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“With regard to the issue of abatement of the suit, it may be mentioned here that the OP-defendants’ side by the petition No.1171/06, dated 20.12.2006, apprised the Court that the contesting OP-defendant No.5 Bharat Baruah @ Bharat Das died few days ago and accordingly, prayed to pass a direction to the petitioner- plaintiff for necessary steps. However, the petitioner-plaintiff has not submitted any formal petition for substitution of the legal representatives of Late Bharat Baruah @ Bharat Das, aforementioned. However, keeping in consideration that the right to sue survived in the instant proceeding in favour of the other legal heirs, on record, including Kanaklata Das, the OP-defendant No.6, the sister of Late Jatin Das, and who is examined as DW-1 in this proceeding in defence of the causes raised by Bharat Baruah @ Bharat Das (since dead), the instant suit is held not abetted, on account of death of the said contesting OP-defendant No.5, Bharat Baruah @ Bharat Das, on 07.08.2005 under Order XXII Rule 4(3) of CPC, as contented in the petition No.1019, dated 18-10-2012, by the OPdefendant No.6, Smt. Kanaklata Das.”

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It would be relevant to quote the order dated 18.10.2012, referred in the above quotation of the LCR at pg 36:

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“18.10.2012

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Both sides have filed hazira.

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The defendant-O.P. No.7 has, by petition No.1019, prayed to dismiss the suit, on the ground of being abated due to non substitution of defendantO.P. No.5 Bharat Baruah who died on 07.08.05.

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No objection is filed as per order, dated 16.07.12.

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Let a copy of petition No.1019 be furnished to the plaintiff-petitioner. Fixed 18.12.12 for objection hearing on petition No.1019.”

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On perusal of the said order shows that the OP No.6, namely, Smt. Kanaklata

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Das by filing petition No.1019 had prayed for dismissal of the suit on the ground that the suit was abated as Bharat Baruah, OP No.5 who had died on 07.08.2005 had not been substituted. As per the order dated 16.07.2012, the learned Trial Court had directed both sides to enlighten the Court as to whether the OPdefendant No.5 who had filed written statement was substituted and notice served on his legal heirs. The said order is quoted below:

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“On scrutiny of the entire case record including its order-sheet, it could not be confirmed whether the deceased OP-defendants, including OPdefendant No.5, who filed written statement, were submitted and notice was duly served on their legal heirs. Hence, judgment could not be delivered in this long pending suit, pending since 26.03.2001.

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In view of the above, both sides are requested to enlighten this Court on the above aspects of the instant suit, for ends of justice in the compelling situation.

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Fixed 17.08.12 for petition/ objection filing, if any and hearing.”

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Therefore the perusal of the order dated 16.07.2012 and 18.10.2012 indicates that although the information about the death of Bharat Baruah (OP No.5) was given to the learned Trial Court, no steps was taken for substitution of the legal heirs of the said deceased. The hearing of the suit was done and concluded on 18.12.2012, which is after the OP No.6 had filed petition No.1019 to dismiss the suit. Therefore, this was not a case that the suit was heard prior to the death of OP No.5, namely Bharat Baruah @ Bharat Das. The learned Trial Court, by the impugned order, without disclosing any reasons and without any petition filed on this behalf, had applied the provisions of Order XXII Rule 4(3) CPC and allowed the substitution of the deceased OP No.5 by OP-defendant No.6 Smt. Kanaklata Das although it has recorded in the same paragraph that the petitioner-plaintiff had not submitted any formal petition for substitution. The learned Trial Court had also not discussed whether the substitution was within the period of limitation as provided

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under Article 120 and Article 121 of the Schedule of the Limitation Act, 1963. Therefore, in the considered opinion of this Court, the learned Trial Court had no power or jurisdiction to treat a petition for dismissal of the suit on the ground of failure to substitute as a petition under Order XXIV Rule 4(3) so as to suo-motu carry out the substitution without any formal order for setting aside of abatement without there being any application in this regard. The said step was taken by the learned Trial Court without even issuing any notice to the OP No.6, namely, Kanaklata Das. Therefore, the order of substitution has vitiated the impugned judgment because of the reason that if the Court substitutes one legal representative in place of the defendant, such substituted legal representative has a right to place on record his/ her stand as a substituted defendant, which is within this scope of the provisions of Order XXII Rule 4(2) CPC.

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In the present case, neither the Trial Court, nor the appellant/plaintiff were ignorant of the death of the said OP No.5 and therefore, atleast the appellant was not prevented from filing the application for substitution within the period of limitation. As a consequence of such substitution, as the legal representatives of the OP No.5 was not substituted, any decision in the said probate proceeding would not bind his legal representative. Moreover, the sister of the OP No.5, namely, Smt. Kanaklata Das was also not issued any notice to put on record her stand as to whether she was a legal representative of the said deceased.

¶85

On a perusal of the written objection filed by the OP No.5, it is seen that he had not made any statement to the effect that he was filing the said written statement/ objection in the representative capacity on behalf of the OP No.6. Therefore, this Court cannot approve of the manner in which the substitution was carried out in the judgment itself, while no order was passed in connection with petition No. 1019 filed by the OP No.6, namely Smt. Kanaklata Das for dismissal of the suit on abatement and for non-substitution of OP-defendant No.5, namely, Late Bharat Baruah @ Bharat Das.

¶86

Hence, the point of determination No.2, as formulated by this Court, is

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answered in the negative by holding that the proceeding of T.S. (P) 54/2009 had abated on the death of OP-5, and, as such, the said suit was not maintainable.

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The point of determination No.1: It appears that in course of cross- examination of PW-1, he was confronted that the proceeding of Misc (S/C) Case No.78/2000. He had exhibited the record of the said case as Exbt.-A and the signature of his mother Smt. Lakhipriya Das was marked as Exbt.A(1) and Exbt. A(2) and the application for grant of succession was executed as Exbt.-B and in paragraph 10 of the Exbt.-B, his mother had stated that the deceased did not make any will. As per the evidence of the PW-1, in para 9 thereof it has been stated that by the will dated 10.01.2000, the testator had allowed his mother to collect bank deposits from State Bank of India and United Commercial Bank.

¶90

In the cross-examination, the PW-1 had stated that after execution of the will, he took the will to his house where his mother Lakhipriya Das and others were present and at that time before he took the will, Jatin Das (then alive) had disclosed above the will to his other family members and the PW-1 had told the family members about the will and the will was shown to his mother and to the other family members. Therefore, on or around 10.01.2000, if the statement made by PW-1 in his cross-examination was to be believed, Late Lakhipriya Das was not aware of the will, and therefore, while submitting a petition for succession certificate the mother of the propounder had made an averment that there was no will. Thus, the inevitable conclusion can only be that the will of Late Jatin Das had surfaced only after the succession case filed by the mother of the appellant had been dismissed.

¶91

Therefore, in the opinion of this Court, the suspicious circumstances surrounding the execution of the will was created by none other than PW-1. It was his statement in his cross-examination that his mother was not only shown the will but the testator had discussed about the intention of making his will was also discussed with all the members of his family. Under the circumstances, the litigation between the parties specifically MC Case No.745/11 under section 145 Cr.P.C.,

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dismissal of Misc (S/C) Case No.78/2000 and the proceeding of T.S. 95/2000 which is mentioned in the written statement of the OP-5 is of significance and all point at the direction that the will had not seen the light of the day till the petition for succession i.e. Misc (S/C) Case No.78/2000 was dismissed, which is the existence of a highly suspicious situation surrounding the execution of the will on 10.01.2000. Therefore, this Court is constrained to hold that the appellant had not been able to dispel the existence of such suspicious circumstances revolving around the execution of the will. Moreover, PW-2 did not give any positive statement in his evidence on affidavit that he and another attesting witness had signed the will in the presence of the testator, which is one of the specific requirement of section 63(c) of the Succession Act. He had merely deposed that the testator had signed the will but no statement has been made to the effect that he had received from the testator a personal acknowledgment of the signature on the will as required under section 63(c) of the Succession Act. Such requirement is provided under the Succession Act, 1925 to prove the will.

¶94

Therefore, this Court does not find any infirmity in the impugned order of the learned Trial Court refusing the grant of probate to the appellant. However, this Court in case of Ram Sundar Prasad Verma, (2011) 6 GLR 26, it held that the examination of counsel or other persons connected with drafting/ or preparations of will is not required. In light of above, no adverse opinion can be drawn for nonexamination of Basanti Devi by the appellant. Moreover, it was the plea of the OP No.-5 that will was prepared after the death of the testator and therefore, the Probate petition was converted to suit before his death on 07.08.2005 and the witnesses were examined only thereafter, i.e. starting from 09.04.2009 onwards. Therefore, the deceased-defendant could not have taken any steps after his death, to summon the writer of the will or to examine her as a witness in the case.

¶95

In view of the discussions above, the point of determination No.1 is decided in the negative by holding that this Court could not find any fault with the finding recorded by the learned Trial Court on issue No.3 by holding that the Will (Exbt.-1)

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was not executed by the deceased Jatin Das and it was prepared only after his death.

¶98

In course of the specific findings recorded by this Court, as discussed above, the cases cited by the learned counsel for the appellant is not found to be relevant to the fact situation of the present appeal.

¶99

In view of above, the discussions this appeal does not succeed and accordingly, the appeal is dismissed by up-holding the impugned judgment and decree dated 21.12.2012, passed by the learned District Judge, Sonitpur, Tezpur in T.S. (P) 54/09.

¶100

The parties are left to bear their own costs.

¶101

Let the LCR be returned forthwith.

¶102

It is appropriate to mention that although the records of Misc (S/C) 78/2000 was marked as Exbt.(A and B) by the DW-1 in his cross-examination, the said record is not available with the LCR and therefore, it is presumed that the said record had been consigned to record separately. Therefore, on the receipt of the LCR, the learned District Judge, Sonitpur, Tezpur, on his administrative side, shall direct the concerned staff to make an inquiry whether the said record of Misc. (S/C) No.78/2000 had actually been consigned to record room, without any further reference to this Court.

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JUDGE

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Parimita

Dipak Kumar Das, v. Smti Lakhipriya Das and Ors.

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Dipak Kumar Das, v. Smti Lakhipriya Das and Ors.

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