Appeal against a probate order granting Letters of Administration on a registered Will of a Mohammedan testator. The court upheld due execution and attestation of the Will, held the testator had a sound disposing mind, rejected pleas of fraud, absence of the original Will, non-maintainability and limitation, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.459 of 2011
1(a)Shakeel Kajlewash(since deceased)
1(b) Sultana Jahan
1(c)Anjum Ara
1(d)Negar Jahan Ara
2.S. Shamim Ahmad.
3.S. Nasim Ahmad, All sons of Syed Wakil Ahmad, r/o Mohalla Yahiyapur, P.S. Sheikhpura.
... Opposite Party ... Appellant/s
Versus
1.Basanti Devi wife of Late Sitam Ram Yadav.
2.Ramdeo Yadav.
3.Mohan Yadav.
4.Sohan Yadav, All sons of Late Sita Ram Yadav, r/o Yahiyapur, P.S. sheikhpura, District sheikhpura.
8.Tabassum Jahan Ara.
Respondent nos. 6 to 8 are r/o Yahiyapur, P.O. & P.S. Sheikhpura, District Sheikhpura.
9.Naushaba Khatoon w/o Late shakeel Kajlewash.
10.Alquama(minor) s/o Late Shakeel Kajlewash under the guardianship of his Mother and natural guardian Naushaba Khatoon r/o Yahiayapur, P.S. Sheikhpura, District Sheikhpura.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Saba Ashfaque, Adv For the Respondent/s : Mr.Arun Kumar, Adv ======================================================
CORAM: HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT Date : 01-10-2019
Heard learned counsel for the parties.
Indian Succession Act, 1925, for setting aside the judgment and order dated 19.06.2010 passed in Probate Case No. 11 of 1989
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passed by Additional District & Sessions Judge, FTC-II, Sheikhpura, granting Letter of Administration in favour of Sita Ram Yadav applicant/respondent.
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however same was fraudulently taken away by Shameem Ahmad s/o late Wakil Ahmad as such certified copy of the Will was brought before the court. The entire property covered by Will was valued at Rs. 45,000/- and legatee is entitled to appropriate usufructuary in the ratio of 22 Sheers and 18 Sheers out of 1 Mann with respect to property as detailed in Schedule-1 of the Letter of Administration petition and out of sale proceeds of 22 Sheers first party would pay rent at first and remaining will be utilized by him for his personal needs and balance of 18 Sheers would be utilized for the charitable purpose as per terms spelt out in the Will. The properties in the Will are 1/3rd share of the entire estate left by the testator.
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Will. Testator Syed Serajul Haque was never regular practitioner as Mokhtar either at Jamui or at Munger. The signature over the registered will is forged and same is not of Sirajul Haque. The Will has been registered by practicing fraud upon Registering Authority. It has been further stated by the Objectors that the testator Syed Serajul Haque was seriously ill and confined to bed and was unable to move, since, 15 days prior to his death and had lost his mental capacity and was not in a position to know the nature and consequences of his acts and did not execute the Will in conscious state of mind.
(i) whether the petitioner u/s 273 of the Indian Succession Act filed by the petitioner is maintainable?
(ii) whether the Will has been duly
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executed by the testator late Syed Serajul Haque and it had also been duly attested by Md. Imam Ali, Daya Nand Gupta and other witnesses?
(iii)whether the testator executed the Will in his sound mind for disposing his properties?
11 SCC 621 in para 17, the Apex Court has held as follows:-
“17. The legal requirements in terms of the said provisions are now well settled. A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the
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court before it can be accepted as genuine.”
Witness No. 1, who in his examination-in-chief has stated that Serajul Haque (Mokhtar) in the year 1975 in the month of Aswin called him and he went to his residence and Mokhtar Sahab told that he has to write a Will. Apart from him Sadhu Saran, Dayanand Gupta and Syed Ali Imam were also present at the residence of Mokhtar Sahab. Munshi wrote Will on dictation of Mokhtar Sahab and after writing, he read over the contents of the Will and thereafter same was handed over to him. Mokhtar Sahab himself read the contents of the Will in their presence and put his signature on it in presence of others and asked them to put their signature as attesting witness then he and others in presence of Mokhtar Sahab put their signature on the Will. Next day also he was called by Mokhtar Sahab and when he went there others were also present who were called by Mokhtar Sahab. Registrar of Registration Office, Sheikhpura had also come there who was handed over the document and Registrar enquired from all persons present there and in presence of Registrar, Mokhtar Sahab put his signature and admitted the execution of Will and he had identified him before the Subregistrar and other witnesses also put their signature in presence
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of Sub-registrar. The Will was scribed in Urdu which was executed in favour of Sita Ram Yadav.
In his cross examination he stated that the age of testator at the time of execution of Will was 80-90 years and he was aged 32 years. His nephew was also present there. At the time of execution of Will Md. Serajul was mentally fit. Kameshwar Nath drafted the Will. He is a deed writer in Sheikhpura Registration Office which was written at the dictates of Serajul. Will was scribed in Urdu. Registrar came to residence on next day for which an application was filed before the Registrar. He died after three days of execution of Will. He was present at the time of registration also. He had identified Serajul at the time of registration. He had not read the Will but the same was read over by Serajul. Serajul last rites were organized by Sita Ram Yadav. Sita Ram Yadav was his bataidar. He denied that alongwith Kameshwar Nath and others he has fraudulently prepared the Will when Serajul was not mentally fit.
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read it. The Will was drafted as per instruction of Serajul Haque. Serajul Sahab put his signature first and thereafter on his instruction others present there put their signature. Syed Ali Imam, Dayanand Prasad Gupta, Sishu Prasad, Sadhu Saran and Karu Sah were attesting witnesses of the Will. Serajul Sahab was in fit state of body and mind. Family of Sita Ram Yadav used to serve Serajul. He has not seen any muslim serving Serajul Haque. Serajul Haque had none in his family. This was the only document which was prepared by him.
In his cross-examination he has stated that the draft of Will was prepared first and same was read over to him and Serajul thereafter himself read the contents of the Will. He further stated that Sita Ram Yadav is his bataidar and 22 Sheers was in the share of Sita Ram Yadav and out of remaining 18 Sheer 9 Sheer was to be donated in Masjid and 9 Sheer to be distributed among the poor and needy. It was not registered on the same day. He has denied that Serajul was not in a fit state of mind and was bed ridden. 3-4 days after execution of Will he died.
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of Sita Ram Yadav. Serajul was friend of his father and was on visiting terms. Syed Ali came to him and told that Serajul was calling him and he went there at 9 O’ Clock. He saw Kameshwar Nath, (Wasika Nabis), Karu Sah and Sishu Prasad who were present there. Serajul asked the deed writer to read the contents of the Will upon which Kameshwar Nath read over the contents of the Will and thereafter Serajul took the Will in his hand and himself read it and said alright and put his signature on the Will and thereafter persons present there on the instruction of Serajul Sahab i.e. Karu Sah, Sishu Prasad, Sadhu Saran, Syed Md. Ali put their signatures as attesting witnesses and he signed the Will in presence of Serajul Sahab. When the Will was read over everyone heard it. He also heard it. All signatures were made on the Will in his presence. He was mentally fit and was fully conscious.
In his cross-examination he has stated that the Will was written on 01.10.1975. He was aged 34 years and Serajul age was 80-85 years. He is a stamp vendor for last 27 to 28 years. Registration of Will was done on commission. Deed was registered on 02.10.1975 at his residence and he died on 05.10.1975. Serajul had no relatives in village. He has denied that the Will was fraudulently prepared.
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all went to his residence, Registrar of Registration Office, Sheikhpura was present there and the Will was presented to him and Registrar read over the contents of Will and Mokhtar Sahab put his signature and accepted the execution of Will where all the five witnesses were present.
In his cross-examination he stated that in the year 1975, he was 35 years old and Mokhtar Sahab was 80 years of age. Mokhtar Sahab was well known to him. He has further stated that he reached the residence of Serajul Sahab at 9:00 am. Mokhtar Sahab was in good health and was able to walk within his residence. Munshijee drafted the Will on the instruction of Serajul Sahab. Sita Ram Yadav was also present there. Serajul Sahab died on 05.10.1975. On 02.10.1975 when he reached the house of Serajul Sahab at 12 O’ Clock, he saw Registrar to be present there. In presence of Registrar he and other witnesses put their signatures. He has denied that at the time of execution of Will Serajul was not mentally or physically fit. He has denied that Will was fraudulently prepared.
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Masjid and after death of Sita Ram Yadav his son Ram Dev Yadav is also following the terms and conditions of Will. He is not related to Syed Serajul Haque.
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Mohammad. Mokarram Hussain had one son Wakil Ahmad. Wakil Ahmad had three sons Akil Ahmad, Shamim Ahmad and Naseem Ahmad (Objectors) and one daughter Bibi Sehnaz Begum @ Bunni. Abdul Wahab had one son Serajul Haque (testator) and one daughter Hussana Ara. Serajul Haque (testator) died issueless. Bibi Hussana Ara had one son Manzoor Hasan and Wali Mohammad had one son Syed. Habib who was issuelesss. Serajul Haque died on 05.10.1975 and he never executed any deed of Will in favour of Sita Ram Yadav as alleged on 01.10.1975. In the alleged Will there is no witness of locality or any relative of Serajul Haque. Serajul Haque due to old age was ill 15 days prior of alleged Will and was unable to move and was not in a fit mental condition and same was prepared by the executor and his associates to grab the property of Serajul Haque. Original Will was never produced in the court. Executor Sita Ram Yadav had executed registered deed of relinquishment on 20.04.1977 with respect to lands of said Will.
In his cross-examination he stated that he was in Government service and retired in the year 2002. Serajul Haque was his cousin uncle. He came to know about the Will 10 days after death of Serajul Haque. He obtained certified copy of the Will and in 1977 Sita Ram Yadav executed deed of
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relinquishment. The property in Will was personal property of Serajul Haque. Name of his sister is Sahnawaz Begum.
Witness No. 3 on behalf of objectors who has stated about the relationship of respondents with Serajul Haque. He stated that respondents are nephews of Serajul Haque. Serajul Haque died issueless on 05.10.1975. Serajul Haque used to live alone and they visited his residence and looked after him. He never executed any Will and the alleged Will is forged and fabricated. He had met Serajul Haque lastly in the year 1974.
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that Mubarak Ali had three sons namely, Mokaram Husssain, Abdul Wahab and Wali Mohammad. Mokaram Hussain had one son Wakil Ahmad and Wakil Ahamd had three sons namely, Akil Ahmad, Syed Shamim Ahmad and Syed Nasim Ahmad (objectors). Abdul Bahab had one son Serajul Haque (testator) and one daughter Hussina Ara. The objectors are nephew of Serajul Haque, who died issueless on 05.10.1975. Serazul Haque had become old and remain ill and mostly remain alone. Nephew and other relatives used to visit him. He had not executed any deed of Will to anyone. Sitaram Yadav used to come as he was his Bataidar . He was looked after by his nephew, his property was looked after by Sitaram Yadav.
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24.05.1977, the land were mutated in their name and rent receipt was granted. The Will is forged and fabricated document.
In his cross-examination, he has stated that he was an employee in Electricity Department and retired in 2009. He remained posted in Patna for 36 years. Serazul Haque was not suffering from any disease, he was old and weak. Serazul Haque used to live alone. Serazul Haque used to take care of himself till his death. At the time of death of Serazul Haque none of the three brothers were present there. 15 to 20 days prior to his death three brothers met him at the that time he was ill, he told to bring the medicine and he went away after giving him medicine.
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jurisdiction to decide the authenticity and genuinity of the Will. The Apex Court in the case of Pasupati Nath Das (Dead) Vs. Chanchal Kumar Das(Dead) by L.Rs. and Ors. since reported in 2018(13) SCALE 486 in para 12 has held as follows:-
“We must, at the outset, say that the scope of the matter arising from Probate proceedings is very limited. The scope of the matter is primarily and principally regarding the genuineness of the execution of the testament or Will. This part has been succinctly dealt with in a decision rendered by this Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors since reported in (2008) 4 SCC 300. Paragraphs 57 of the said decision spell out the scope of the enquiry in Probate proceedings as under:
that applicants have been able to prove that the Will was duly executed by the testator in sound disposing state of mind after fully understanding its contents in presence of two attesting
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witnesses satisfying the requirement of Section 63(c) of the Indian Succession Act as well as Section 68 of Evidence Act and same was duly registered. The applicant has been able to successfully satisfy the Probate Court that the Will was prepared by the Deed Writer Kameshwar Nath who drafted the contents of the Will on the instruction of testator Serajul and same was read over and explained to him in presence of witnesses and thereafter testator himself read the contents of the Will and on being satisfied put his signature on the Will in presence of attesting witnesses Dayanand Gupta and Sishu Prasad who saw the testator putting his signature on the Will and thereafter on his instruction attesting witnesses put their signature on the Will. The Will was drafted and prepared on 01.10.1975 and thereafter its due execution was accepted by the testator before the Sub-registrar on 02.10.1975 in presence of other witnesses where Karu Sah identified testator Serajul before the Sub-registrar and put his signature as an identifying witness. The witnesses examined on behalf of applicant have been cross-examined by the other side but there is nothing in their cross-examination to disbelieve their testimony which appears to be trustworthy and reliable. This Court also on reappreciation of evidence finds that the applicant has been able
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to establish the due execution of Will satisfying the requirement of Section 63(c) of Indian Succession Act as well as Section 68 of Evidence Act.
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by fraud and if fraud is pleaded it is the party who alleges fraud has to establish it. The Apex Court in Jagdish Chand Sharma
versus Narain Singh Saini (dead) through legal representative and others since reported in (2015) 8 SCC 615 has held in paragraph no.47 which is quoted below:-
“47.That a propounder has to demonstrate that the Will was signed by the testator and that he was at the relevant time in a sound disposing state of mind and that he understood the nature and effect of the disposition and further that he had put his signature to the testament on his own free will and that he had signed it in presence of two witnesses who had attested it in presence and in the presence of each other, in order to discharge his onus to prove due execution of the said document was reiterated by this Court amongst others in Surendra Pal and Ors. (supra) It was held as well that though on the proof of the above facts, the onus of the propounder gets discharged, there could be situations where the execution of a Will may be shrouded by suspicious circumstances such as doubtful signature, feeble mind of the testator, overawed state induced by powerful and interested quarters, prominent role of the propounder, unnatural, improbable and unfair bequests indicative of lack of testator's free will and mind etc. In all such eventualities, the conscience of the Court has to be satisfied and thus the nature and quality of proof must be commensurate to such essentiality so much so to remove any suspicion which may be entertained by any reasonable and prudent man in the prevailing circumstances. It was propounded further that where the caveator alleges undue influence, fraud and coercion, the onus, however, would be on him to prove the same, and on his failure, probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. (emphasis is mine)
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615 , has held as follows:-
"A Will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator's acquisitions during his lifetime, to be acted upon only on his/her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. As understandably, the testator/testatrix, as the case may be, at the time of testing the document for its validity, would not be available, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. This is more so, as many a times, the manner of dispensation is in stark departure from the prescribed canons of devolution of property to the heirs and legal representatives of the deceased. The rigour of Section 63 (c) of the Act and Section 68 of 1872 Act is thus befitting the underlying exigency to secure against any self serving intervention contrary to the last wishes of the executor."
presumption of its correctness as it is presumed that official work has been performed in a rightful manner. The Apex Court in case of Rabindra Nath Mukherjee and another versus Panchanan Banerjee (Dead) By Lrs. and others since reported in (1995) 4 SCC 459 has held in paragraph no.6 as follows:-
“6. Insofar as the third circumstance is concerned, we may first observe that witnesses in such documents verify whether the same had been executed voluntarily by the person concerned knowing its contents. In case where a will is registered and the Sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the
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document are interested loses significance. The documents at hand were registered and it is on record that the SubRegistrar had explained the contents to the old lady. So, we do not find the third circumstance as suspicious on the facts of the present case.”
"Section 2(h) "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."
Narain Singh Vs. Kamta Devi since reported in AIR 1954 SC 280, has held as follows:-
“The dismissal of the application for probate on the ground that the disposition in favour of Thakurji is void for uncertainty can on no principle be supported and indeed learned counsel appearing for the respondent has not sought to do so. The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly
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executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court. It is surprising how this elementary principle of law was overlooked by both the Courts below. However, as learned counsel appearing for the respondents has not sought to support this ground nothing further need be said on that.”
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of original Will the attestation and execution of the Will cannot be proved. Original Will was in custody of the applicant Sitaram Yadav but somehow or the other he lost the custody of original Will and as such applicant filed certified copy of the Will which was duly proved and same is acceptable as secondary evidence. Original applicant Sitaram Yadav died during pendency of suit as such non-production of original Will could be satisfactorily explained by him only, however, his wife Basanti Devi has given the details for loss of possession of the original Will. Under the provisions of Evidence Act, if the original document is lost or destroyed, same can be proved by producing certified copy of the document which is acceptable and admissible in evidence. The opposite parties also in their evidence have accepted the due execution of Will. Two admitted documents were on the record establishing the existence which are the deed of civil court of Basanti Devi is Exhibit-3, certified copy of agreement is Exhibit-4, and contents whereof establishes the existence of deed of Will and its admission by the opposite parties is proof of due execution of Will.
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was filed in the year 1989 and as such the application was barred by limitation under Article 137 of the Limitation Act. The limitation starts running from the time the right to apply accrues and in the present case the applicant has given details of factual aspect and the date from which right to apply accrued, as such the application was not barred by limitation. The starting point of limitation begins from the right to apply accrues and not from the date of death of testator.
“15. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus:
(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can
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be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years form the date of he deceased's death. (e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates.
The conclusion 'b' is not correct while the conclusion 'c' is the correct position of law.”
dismissed.
LCR of this case be returned to the court concerned
forthwith.
(S. Kumar, J)
ranjan/-
| AFR/NAFR | AFR |
|---|---|
| CAV DATE | 24.06.2019 |
| Uploading Date | 15.11.2019 |
| Transmission Date | N.A |
2 issues framed by the court
Whether the Will was duly executed and attested by the testator in a sound disposing state of mind, free from suspicious circumstances?
Whether the application for grant of Letter of Administration was maintainable under Section 281 of the Indian Succession Act and whether it was barred by limitation?
Colour shows how this judgement treated each authority
Savithri v. Karthyayani AmmaReferred¶47
(2007) 11 SCC 621 · Who else cites this
Pasupati Nath Das (Dead) Vs. Chanchal Kumar Das (Dead) by L.Rs. and Ors.Referred¶96
2018(13) SCALE 486
Ishwardeo Narain Singh Vs. Kamta DeviReferred¶122
AIR 1954 SC 280 · Who else cites this
Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and OrsExplained¶136
(2008) 8 SCC 463 · Who else cites this
7 provisions across 4 enactments
Maimuna Khatoon
S. Shamim Ahmad
S. Nasim Ahmad
Basanti Devi
Ramdeo Yadav
Smt. Sunita Devi
S. Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
