A CHANDRABATI Vs. LAXMI DEI

JUDGEMENT

(1.) Letters of Administration in respect of a Will alleged to have been executed by one A.B. Amajee having been granted in favour of one Shrimati Laxmi Dei, her sister-in-law has come before this Court for relief.

(2.) This is second journey of the parties to this Court in the following background. A.B. Amajee (hereinafter described as 'the testatrix') is the daughter of one E. Kanhaya whose sister is A.B. Amadu. The said A.B. Amadu is the grandmother of A. Bhaikar Rao and Laxmi Dei. A. Bhaskar Rao' sister Laxmi and widow A. Chandrabhati are the contesting parties. According to Laxmi (also described as 'the propounder'), a Will was executed by the testatrix on 17-2-1957 stipulating inter alia that after the death of A.B. Amajee, Laxmi and A. Bhaskar Rao shall get the properties. It contained a further stipulation that if any of the legatees died without leaving behind any son or daughter, the properties would go to the other legatee. A Bhaskar Rao died on 19-9-1974 issueless and hence Laxmi put claim to enjoy the entire properties, since Amajee had died earlier on 12-8-1957. According to Laxmi, after the death of Amajee, both she and her brother were possessing the bequeathed properties and on the death of A. Bhaskar Rao, her brother, she wanted the properties to be recorded in her name. In absence of grant of letter of administration in her favour, she was unable to do so and, therefore, she moved the District Judge, Cuttack for grant of letters of administration. Her claim was stoutly resisted by Chandrabati on the ground that the Will was not genuine, but a forged one and the signature purporting to be that of Amajee was not her and the document was created with the object of grabing the properties of Amajee and depriving Chandrabati of her legal entitlement. Four issues were framed. The issue that is vital relates to the genuineness of the Will, its due attestation and execution. Initially the suit was dismissed on 28-7-1977 on the finding that the Will was not genuine and not duly executed and attested. This Court in First Appeal No. 241 of 1977 set aside the judgment and remanded the suit with a direction that the original Court should give an opportunity to the applicant-plaintiff to get the disputed signature in the Will examined with the admitted signature of the testatrix by a handwriting expert and grant opportunity to the parties to adduce evidence by examining the handwriting expert who had the opportunity of comparing the signatures, or any other expert and to dispose of the suit on the evidence on record. The signatures were sent for the opinion of P.W.5, the expert and he was also examined. On evaluation, the trial Judge came to hold that the Will was genuine and was duly and properly executed, and the applicant was, therefore, entitled to a letters of administration.

(3.) Mr. Deepak Misra, learned counsel appearing for the appellant, submits that in a case of this nature, what is important is to find out truth. According to him, the peculiarity of the Will, age of the beneficiary and the conditions stated in the Will appear to be so illogical that a prudent man cannot accept the Will to be genuine; the very fact that the Will was sought to be probated after twenty years shows non-genuineness of the Will; the burden is on the propounder and on the scanty evidence which is contradictory and inconsistent, the original Court should not have granted the letters of administration; conduct of the propounder clearly goes to show that the Will was not in existence at the time of death of Amajee and was a manufactured and fabricated document; the evidence has not been properly scrutinised and attestation and execution as mandatorily prescribed to be proved in the case of a Will has not been so done. The respondent, however, submitted that the attesting witnesses were close relations and there is nothing suspicious or mysterious about the Will, as the properties were not intended to go out of the family; the restrictions which were imposed by the testatrix were reasonable; the expert' evidence clearly proves that the Will was genuine and there was so infirmity attached thereto and the evidence has been carefully scrutinised, proper conclusions drawn and there is no scope for interference. It has also been submitted that merely because the expert did not know the language in which the signature of the testatrix appears in the Will, it cannot be discarded as unreliable.