SONAM TOPGYAL BHUTIA Vs. GOMPU BHUTIA

JUDGEMENT

(1.) The application filed by the appellant for probate of the will alleged to have been executed by his uncle Midung Bhutia has been dismissed by the learned District Judge on the finding that "the Will cannot be called to be a genuine Will of the deceased and seems to have been forged by the petitioner along with the help of his witnesses" and being aggrieved by his judgement as aforesaid the appellant has preferred this appeal.

(2.) The learned District Judge has held that there are strongly suspicious circumstances surrounding the execution of the Will and the onus of explaining these circumstances and of removing the suspicion from the mind of the Court rests squarely on the appellant and that he has failed to discharge the onus in this case. That the onus of explaining the suspicious circumstances surrounding the execution of the Will is heavily on the propounder is settled by a series of authorities of the Privy Council and the Supreme Court and the decision of the Calcutta High Court in Sushma Bala Devi v. Anath Nath Tarafdar (AIR 1976 Cal 377), relied on by the learned District Judge, has referred to some of these Supreme Court decisions on the point including the leading decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) and has, if I may say with respect, correctly deduced the law on the point. But while the learned District Judge is correct in his approach to the question of law involved in this case, he is, I am afraid, quite wrong in his appreciation of the evidence on record and, as I shall presently show, the four circumstances relied on and regarded by him as suspicious are not strong enough to throw any reasonable doubt as to the genuineness of the Will.

(3.) The first circumstances referred to and regarded by the learned District Judge as suspicious is that while it is in evidence that the alleged testator knew how to sign his name, the Will, Ex. 1, however, bears only the thumb mark of the deceased. But it is the respondent's own case that the testator was seriously suffering from tuberculosis and other ailments for about a year before the execution of the Will and it is not unusual that a person, who knows how to sign his name, may execute a document by mark only if he has become disabled to write his name by using a pen or otherwise due to his illness or some other cause. It is no doubt in evidence that the testator knew to sign his name and as such under ordinary circumstances one would have expected some evidence from the side of the propounder as to why the testator executed the Will by his thumb mark and not by his written signature. But the respondent his two petitions of objection has not challenged the execution of the Will and has rather admitted the execution thereof by the testator, his only case being that such execution was the result of force and conspiracy. But it is settled law, as will also appear from the above noted Supreme Court and Calcutta decisions, that if the execution of the Will is not challenged but exercise of fraud or undue influence or coercion is alleged by the caveator, then it is for the caveator to prove such fraud, undue influence or coercion. On the evidence on record, no case of fraud, undue influence or coercion has been made out nor the learned District Judge has made any such finding. As already noted, the learned District Judge has thought that the fact of execution by thumb mark by a testator knowing to sign his name is sufficiently suspicious. But in my view, in the absence of any challenge to the execution of the Will by the testator, such fact alone cannot make the execution of the Will doubtful in any way, particularly when it is the admitted case that the testator was suffering from serious illness for a long time before the execution of the Will. It should also be noted that no question was at all put to the propounder or any of his witnesses during their examination as to the testator's knowing how to sign his name and the fact was sought to be proved by the respondent only while examinating his own witnesses. I have no doubt that there being a clear admission as to the execution of the Will by the testator and there also being no question put to the propounder or his witnesses as to the testator's knowing to sign his name, it was not for the propounder or his witnesses to come out on their own as to why the Will was executed by the testator by his thumb mark and not by his written signature. I am, therefore, of opinion that in the circumstances of this case, the fact that the testator, though knowing to sign his name, executed the Will by his thumb mark is not a circumstances which can be regarded to make the execution of the Will doubtful, particularly when the execution of the Will has not been challenged and has rather been admitted by the Respondent.