SHANKARSAN PARIDA Vs. LAXMIDHAR NAYAK

JUDGEMENT

(1.) Claiming to be the sole legatee, Shankarsan Parida filed a petition under Section 276 of the Indian Succession Act, 1925 for a letters of administration annexing a registered will dated 9-5-1968 which is said to be the last will and testament of Sadhu Parida who died on 29-11-1971 in the district of Howrah in West Bengal sustaining fatal injuries on account of accidental fall from train at Baudia Railway Station on his way to Shankarsan staying in the premises of Baudia Cotton Mills. Sita Dei widow of Sahu entered caveat and assailed the petition on the ground of absence of due attestation and the same not being the out come of free will alleging that Sadhu Para was not in a sound state of mind. She died during pendency of the proceeding on 21-11-1974. Thereupon, Laxmidhar filed an application order Section 283 of the Act and contested the application of Shankarsan. His case is that Sadhu was old, invalid and mentally deranged. His physical and mental condition being very unsound, Shankarsan took advantage of the same and making an attempt to oust widow of Sahu exercised undue influence and administering opiums kept her under complete control. Shankarsan instigated Sadhu to institute a suit to recover some landed properties acquired in the name of his widow. In effect he claimed that the will had been executed in suspicious circumstances. Sita died during pendency of the proceeding. Shankarsan examined three witness in support of his case. P.W. 2 claims to be the attester of the will. Respondent examined two witnesses and exhibited five documents to prove his title and the judgment in suit against Sita by Sadhu. On appreciation of evidence, he disbelieved the scribe of the will of P.W. 1. He also disbelieved the attesting witnesses P.W. 2 on the ground that the Sub Registrar did not read out the will to Sadhu before registering the will. P.W. 2 was disbelieved on the ground that he was acting as Pleader's clerk on behalf of Shankarsan in several suits between Shankarsan and Laxmidhar. Learned trial Judge found that the other scribe having his sirastha near the sirastha of P.W. 2, there appears some undue influence exercised over Sadhu. On analysis, learned trial judge found that Sadhu was living with Shankarsan at the time he executed will and he bequeathed his entire properties in favour of Shankarsan. The Sub Registrar was not examined to prove that the will was registered properly. With these circumstances, due execution of the will was disbelieved.

(2.) There can be no doubt that onus and proving the will is on the propounder and in absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however, there are suspicious circumstances, onus is on the propounder to clear them by explaining to the satisfaction of the court to accept the will as genuine. If any doubt arises, propounder is to satisfy the conscience of the court. A circumstance becomes suspicious when the same is not normal or is not expected of a normal person. Such circumstances may be with regard to the genuineness of the signature of the testator, the condition of the testor's mind, the disposition made in the will being unnatural, improbable or unfair in the circumstances of a particular case.

(3.) In the present case, learned trial Judge suspected due execution of the will on account of non-examination of the Sub Registrar to prove the valid registration of the will. There is no case that the document was not properly registered. Accordingly, non-examination of the Sub-registrar cannot be a circumstance to doubt the genuineness of the will. However, as has rightly been held by the learned trial Judge, absence of provision for the second wife Sita by bequeathing the entire property in favour of Shankarsan is not natural. Shankarsan tried to explain the same by proving previous litigation with Sita. Laximidhar proved a judgment in Suit No. 342 of 1936-I(Ext. 'C') where Sita and her husband Sadhu filed a suit against Sankar and others for title and possession which was decreed in favour of Sita. First wife of Sadhu abandoned him and married father of Sankar to give birth to him. Thereafter, Sadhu married Sita. In such circumstances, the suit by Sadhu against Sita and will of the entire property without making any provision of the second wife is not normal and is suspicious. Sankar ought to have explained the circumstances under which Sadhu came to reside with him not only to execute the deed of adoption but also the will.