GOPY NATH PAKRASHI Vs. SUKHADAMOYEE NARJ SILPA MANDIR

JUDGEMENT

(1.) I have read the draft judgment of my learned Brother and I agree with His Lordship's findings and ordering portion. However, I wish to add few words to supplement with the risk of slight repetition. In this appeal the question is whether the learned Trial Judge has rightly accepted the document dated 15th August, 1971 said to be the last Will and testament of one Sadhan Pakrashi as a genuine and lawful testamentary instrument or not. The learned Counsel for the appellants, Mr. S.P. Roy Chowdhury urges that had the learned Judge read evidence carefully he could have found the document is a manufactured and forged one and further it was executed under suspicious circumstances. Though such plea is not taken but after reading of the document with the evidence adduced by both the parties it will appear that this document cannot be of Sadhan Pakrashi's. Mr. Roy Chowdhury contends further that the grantee is 'an interested person' and there was no reason to exclude the appellants who are the nephews of the testator. His further contention is that it will appear from the evidences of the witnesses cited by the defendants appellants viz. D.W.I, D.W.2 and D.W.3 that on the relevant date the testator was in Calcutta. Admittedly he had been an acute patient of blood dysentery and so he had no ability to move about. The document is of dated 15th August, 1971 when the testator died on 31st August, 1971. While the learned Trial Judge has believed the oral testimony of one Radha Rani Pal, D.W.2, who is an interested witness as she is a teacher of one of the beneficiary schools on the one hand and on the other learned Trial Judge has discarded the evidence of D.W.I, D.W.2, D.W.3 for no apparent reason. Therefore, the testator's coming from Calcutta and staying at Rishra on the eventful date is a seriously doubtful question of fact. This factual issue cannot be answered only upon the oral evidence of witnesses of both the sides. There has been no corroboration apart from the evidence of D.W.2, that on 15th August, 1971 the testator came down from Calcutta to Rishra on 15th August, 2006. His next contention is if the document is read it will appear that it is any document other than testamentary one.

(2.) The learned Counsel for the respondent, on the other hand, says that it is proved by P.W.2 (Radharani Pal) that the Will has been duly and lawfully executed on 15th August, 1971 and on that date he was present there. P.W.2 has also proved the signatures of other attesting witnesses. The disposition has been made by the testator not in favour of any individual, but for religious and charitable purposes. There is.no unnaturalness of the disposition.

(3.) The only factual issue posing us is that on 15th August, 1971 whether it was possible for Sadhanbabu to come from Calcutta to Rishra to execute the document or not. The learned Judge has read the evidence of P.W.2 who was one of the attesting witnesses. We have also done so and we have no hesitation to tell that Radharani is absolutely disinterested witness and the way she has deposed anyone will come to conclusion that she is an absolute truthful witness. She has admitted that Sadhan Pakrashi was suffering from blood dysentery and he was not physically well but he was mentally sound and had full mental capacity to execute this Will. She has said that for the purpose of execution of the Will he came down from Calcutta to Rishra alone and returned on the same day. She has further said that he asked her to be present there at the time of execution of the Will. It is also her evidence that he prepared a draft of the Will. Since there was scribbling and overwriting the Will was prepared afresh basing on the draft. She has said that in her presence all attesting witnesses signed. She was merely a teacher of a school set-up by testator. She did not and does not have any benefit from the school out of the disposition made by the testator. She gets salary from the aid of the Government not from the fund of the testator. Her testimony is believable and can be believed. Number of witnesses in proving a fact in issue does not matter. What matters is the truthfulness of the witness. If a single witness gives true and correct version of any fact-in-issue it is only desired assistance to the Court. While weighing evidence adduced for and on behalf of the appellants I find Gopi Nath Pakrashi was not staying with his uncle at the relevant time. He has admitted that he had been with his uncle for the period from 1946 to 1958 and thereafter he had not. If the evidence of Gopi Nath, Saila Bala and Netai are read it will appear that there is a contradiction amongst themselves. Even Saila Bala has admitted that two months before death Sadhanbabu came to Rishra. So it was physically possible for him to come to Rishra from Calcutta. Ordinarily a man suffering from blood dysentery does not become so weak that he cannot move about or his mental faculty can be disturbed. Learned Trial Judge has rightly found that there has been no document, viz. medical prescription of the doctors or any other document which suggest that he was incapable of moving on 15th August, 1971.