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Govinda Chandra Das and anr. Vs. Harani Dei - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 68 of 1964
Judge
Reported inAIR1968Ori228
ActsSuccession Act, 1925 - Sections 74
AppellantGovinda Chandra Das and anr.
RespondentHarani Dei
Appellant AdvocateP. Kar, Adv.
Respondent AdvocateA.K. Das and ;D. Mohanty, Advs. (No. 2)
DispositionAppeal dismissed
Excerpt:
.....it was executed on 31-3-45. this was done apparently because by 31-3-45 the age of the first plaintiff was only 15 years and it could not have fitted with the plaintiffs' case that the will was executed in favour of the plaintiffs because they promised to perform the obsequies of jai das......has also committed this mistake is significant. that apart we find that both the sheets of paper are torn at the right hand margin at the place where the thumb-impression appears. it is a well-known practice prevalent in this part of the state that in several cases a person who incurs a debt passes on to the creditor a paper containing his signature and thumb impression and when the loan is discharged, the paper is returned to the debtor after being torn at the place where the signature and thumb impression appear. a look at the two sheets of paper constituting the will shows that these papers have been torn exactly at the places where discharged handnotes are usually torn. the plaintiff offers a very interesting explanation as to how these two papers happened to be torn......
Judgment:

Patra, J.

1. This is an appeal against the order of the First Additional District Judge, Cuttack rejecting an application filed by the plaintiffs-appellants for granting to them probate of a Will dated 31-3-54 alleged to have been executed in their favour by one Jai Das, who died on 28th of April, 1957. Admittedly Jai Das left surviving him no issue excepting his daughter Harani Dei, the respondent. The appellants admittedly are the great grandsons of Shyama, the paternal uncle of deceased Jai Das. The genuineness of the Will was disputed by the respondent. The learned Court below held that the appellants failed to establish the genuineness of the Will and rejected their application. It is the case of the appellants that Jai Das duly executed the Will Ext. 1 dated 31-3-54 and bequeathed thereunder only one acre of land to his daughter and rest of the properties to the plaintiffs-appellants. According to the plaintiffs Jai Das did so because the plaintiffs had promised to perform his obsequies after his death. The defence case on the other hand is that the Will is not genuine and was very likely fabricated on a paper which contained the signature of Jai Das Plaintiffs and Jai Das are residents of mouza Balipadia. Jai Das's daughter Harani, respondent is married to Dasarathi Nanda, resident of Mouza Dekudi which is very near Balipadia Mouza. The Will is scribed by Banamali Tripathi (P. W. 2) a resident of Mouza Nalitagiri which is 2 miles off from Jai's village and is attested by Damodar Naik (P. W. 1) and 3 others namely Dhaneswai Das, Barju Das and Sarbaswar Das who have not been examined in this case, The scribe bas deposed that about 15 days before the execution of the Will Jai Das had gone to him and got a draft of the Will prepared and on the date the Will was executed Jai went to his house accompanied by the attestors and got the Will scribed where after he himself read it and put his thumbmarks thereon The 1st plaintiff Govinda who was examined as P. W. 4 said that when Jai first told him about 15 days before the Will was actually executed about his intention to execute it he suggested to Jai that he should also consult his daughter and son-in-law. But strangely enough Jai did not appear to have done so and neither his daughter nor his son-in-law was present at the time of execution of the Will or even knew about its execution. Jai is said to have taken with him one of the attestors of the Will namely P. W. 1 belonging to Dekudi Mouza. If Jai Das had gone to Dekudi to request P. W. 1 to be an attestor of the Will there appears to be no reason why he should not nave informed his daughter or son-in-law about his intention to execute the Will and to request them to be present at the time of execution. There is no suggestion anywhere that Jai Das was on inimical terms with his daughter or son-in-law. In fact, the admitted case of both the parties is that Jai Das died in his daughter's house having gone there a month before his death. The plaintiff himself has admitted that since about 16 years prior to the execution of the Will Jai was living separately from him. Khatians of the lands were no doubt joint but the plaintiff has admitted that each co-sharer was separately contributing his share of the rent for land in his possession which after being pooled together was being paid to the landlord. The entries in the Chowkidari Jamabandi register Ext. D series show that Jai was paying chowkidari tax separately- A faint attempt was no doubt made to prove that some time prior to the death of Jai, he and plaintiffs became joint in mess. But this has not been established. If Jai was so much attached to the plaintiffs as to execute in their favour a Will in respect of the bulk of his properties, it is not explained in what circumstances he during the last part of his life had gone and taken shelter in his daughter's house where he ultimately died

2. It has already been stated that out of the 4 attestors of the Will, only P. W. 1 was examined. It is elicited from him that he was on litigating terms with the defendant. It is the plaintiff's case that the other attestors refused to come and depose in this case. P W. 2, who claims to be working as a scribe for the last 40 years does not possess a deed writers licence. Why this man who belongs to a different village from that of Jai Das should have been selected to prepare the draft and scribe the Will has not been satisfactorily explained. This is a case where we are concerned with the genuineness of a will in which Jai Das is said to have bequeathed almost all his properties in favour of some distant agnates who are his paternal uncle's great grandsons and bequeathed only one acre of land in favour of his only issue, the daughter with whom he was on amicable terms and in whose house he ultimately breathed his last. To uphold such a Will evidence of a very high order is necessary The oral evidence adduced in support of the genuineness of the Will is far from satisfactory. Striking evidence which cuts at the root oi the plaintiff's case and considerably supports the defendant's version that the Will is notgenuine is afforded by the document itself This Will marked Ext. 1 is in 2 different sheets. On the margin of the first sheet there is a thumb mark and below it the signature of Jai Das which originally bore the date 31-3-45. The Figure '4' before '5' has been scored through and the Figure '4' is added after '5' thereby converting 31-3-45 to 31-3-54. This process is repeated in the 2nd sheet on the margin of which we find the thumb impression and signature of Jai Das and the date 31-3-45 subsequently corrected to 31-3-54. The matter does not end there. At the end of the recital in the Will the scribe too had noted the date originally as 31st March, 1945 both in words and figures which were subsequently corrected to 1954 at both the places. This document is alleged to have been scribed in the year 1954. By no stretch of imagination can one expect that a person would by mistake note the year as 1945. That P. W. 2 who claims to be a scribe of 40 years experience has also committed this mistake is significant. That apart we find that both the sheets of paper are torn at the right hand margin at the place where the thumb-impression appears. It is a well-known practice prevalent in this part of the State that in several cases a person who incurs a debt passes on to the creditor a paper containing his signature and thumb impression and when the loan is discharged, the paper is returned to the debtor after being torn at the place where the signature and thumb impression appear. A look at the two sheets of paper constituting the Will shows that these papers have been torn exactly at the places where discharged handnotes are usually torn. The plaintiff offers a very interesting explanation as to how these two papers happened to be torn. Plaintiff's mother who was examined as P. W. 3 says that about 3 years after the execution of the Will when Jai Das was still alive, the defendant's husband Dasarathi went to her house and wanted to see the Will executed by Jai Das. P. W. 3 brought out the Will and handed it over to defendant's husband and then went in to bring betel for him. It seems that when she came back Dasarathi desired to take back the Will but on her declining to part with it during the absence of her son, Dasarathi folded and returned the Will to her and she kept it in the box. The plaintiff says that he heard about the story from his mother immediately after he came back home, but never cared to examine the Will and it is only on the day previous to bringing the Will to Court that he noticed that both the papers were torn at the margin. He therefore pasted each of the sheets on a white paper. This is a story which is impossible to believe. If Dasarathi had heard about the execution of the Will he could have questioned Jai Das himself who was then alive. If he heard about the Will he must have suspected that the plaintiffs got it fraudulently executed by jai Das and he could not have expected that plaintiffs would have shown the Will to him. It is therefore surprising that the plaintiff's mother during her son's absence should have shown the Will to Dasarathi and still more surprising that after showing the Will to Dasarathi she should have gone into the house to bring betel, because during her absence Dasarathi could have either torn the Will which is a very valuable document or could have run away with it. We have therefore no hesitation in rejecting the story as absolutely false. The fact that after the alleged execution of the Will Jai Das executed several kabalas in respect of properties included in the Will one in favour or the plaintiffs and another in favour of his daughter in neither of which any mention of the Will had been made is a further circumstance to show that the Will was not in existence by the time the kabalas were executed. One may ask why when the Will was fabricated on a paper which contained Jai's signature and thumb impression bearing the date 31-3-45, there was any necessity to change the date at all. It could as well have been made to appear that it was executed on 31-3-45. This was done apparently because by 31-3-45 the age of the first plaintiff was only 15 years and it could not have fitted with the plaintiffs' case that the Will was executed in favour of the plaintiffs because they promised to perform the obsequies of Jai Das.

3. After a careful consideration of the evidence and circumstances in this case we are convinced that the Will Ext. 1 is not genuine and was subsequently fabricated by the plaintiffs with the help of P. Ws. 1 and 2.

4. In the result, the appeal fails and is dismissed with costs.

G.K. Misra, J.

5. I agree.


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