Judgment & Order:

1. Heard Mr. A Biswas, learned counsel for the appellant. Also heard Mr. P K Basu, learned counsel for the respondent Nos. 2 & 3.

2. It appears from the order dated 14.08.2024 that, as per the affidavit of service dated 04.03.2024 filed by the appellant, notice in dasti mode was tendered to respondent No. 1 and was received by him. However, despite service, none appeared on behalf of the said respondent and accordingly, the appeal proceeded ex parte against respondent No. 1.

3. The present appeal has been preferred under Section 299 of the Indian Succession Act, 1925 (for short, “the Succession Act”) assailing the judgment dated 15.09.2023 and decree dated 03.10.2023 passed by the learned District Judge, Kamrup, Amingaon in Probate Title Suit No. 02/2018, whereby the probate suit filed by the appellant came to be dismissed.

4. The case of the appellant, in brief, is that she had instituted an application under Section 276 of the Succession Act before the Court of the learned District Judge, Kamrup, Amingaon seeking grant of probate in respect of the last Will and testament of her late father, Manik Kalita, allegedly executed on 07.03.2011 and registered on 08.03.2011 before the Sub-Registrar, Rangia. According to the appellant, the said Will had been executed in the presence of three witnesses, namely, (i) Smti. Jnanshree Kalita, (ii) Sri Nirendra Kumar Nath and (iii) Omar Faruk. The said application was initially registered as Misc. Probate Case No. 03/2017.

5. Upon issuance of notice, the opposite parties, who are the brothers and sisters of the appellant, entered appearance. However, except respondent No. 1, none of the other respondents contested the Will. As respondent No. 1 raised objection to the grant of probate, the proceeding was converted into a contentious cause and was thereafter renumbered as Probate Title Suit No. 02/2018.

6. During the trial, the appellant examined three witnesses, namely, herself as PW-1, Omar Faruk, one of the attesting witnesses to the Will, as PW-2, and Krishna Kanta Mahanta, the husband of respondent No. 2, as PW-3. The appellant also exhibited the original Will and other documents in support of her case. All the said witnesses were cross-examined by respondent No. 1.

7. On the other hand, respondent No. 1, in support of his defence, examined himself as DW-1 and one Samiran Deka as DW-2.

8. Upon completion of the evidence, the learned Trial Court framed the following issues:

                   1. Whether late Manik Kalita executed any Will in favour of the plaintiff?

                   2. Whether the probate petition filed by the plaintiff is barred by limitation?

                   3. Whether the application for probate filed by the plaintiff is maintainable?

                   4. Whether the plaintiff is entitled to probate as prayed for?

                   5. To what relief(s), if any, are the parties entitled?

9. By the impugned judgment dated 15.09.2023, the learned Trial Court though held the issue Nos. 2 & 3 in favor of the appellant plaintiff, however, upon holding the issue Nos. 1 & 4 respectively against the appellant plaintiff and in favor of the respondent defendant, dismissed the suit and consequently, the decree was drawn on 03.10.2023. Aggrieved thereby, the present appeal has been preferred.

10. Mr. Biswas, learned counsel for the appellant, submits that the learned Trial Court fell into manifest error in holding that the Will had not been proved in accordance with Section 63 of the Succession Act read with Section 68 of the Indian Evidence Act, 1872. According to the learned counsel, the evidence on record clearly establishes that the testator executed the Will in the presence of the attesting witnesses and that the mandatory requirements of law stood duly satisfied. It is further submitted that the evidence also discloses that the testator was physically capable of attending the office of the Sub-Registrar for registration of the Will and that there is no cogent material to support the defence plea that he was bedridden or incapable of movement.

11. Learned counsel for the appellant further submits that the Will in question is a registered Will and therefore, registration is a relevant circumstance which lends assurance to the genuineness of the document, though proof in terms of Section 63 of the Succession Act and Section 68 of the Evidence Act is nevertheless required. In support of the aforesaid submissions, reliance has been placed on the decisions of the Apex Court in Prem Singh & Ors. vs. Birbal & Ors., reported in (2006) 5 SCC 353, Vimal Chand Ghevarchand Jain and Ors. -Vs- Ramakant Eknath Jadoo, reported in (2009) 5 SCC 713, and Daulat Ram & Ors. -Vs- Sodha & Ors., reported in (2005) 1 SCC 40.

12. Mr. P. K. Basu, learned counsel appearing for respondent Nos. 2 and 3, supports the stand of the appellant and submits that the Will in question was validly executed by the testator and the learned Trial Court was not justified in dismissing the probate suit.

13. I have heard the learned counsel for the parties and have perused the records of the case, including the evidence adduced before the learned Trial Court.

14. Since the present appeal arises under Section 299 of the Succession Act, it would be apposite to reproduce the said provision:

                   “299. Appeals from orders of District Judge.— Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 applicable to appeals.”

15. A plain reading of Section 299 of the Succession Act makes it clear that an appeal from an order of the District Judge in a probate proceeding is to be considered in accordance with the provisions of the Code of Civil Procedure applicable to appeals. The present appeal, therefore, partakes the character of a first appeal, in which this Court is entitled to re-appreciate both facts and law.

16. The Apex Court in Laliteshwar Prasad Singh & Ors. -Vs- S.P. Srivastava (Dead) Through Legal Representatives reported in (2017) 2 SCC 415, has reiterated that a first appellate Court, being the final Court on facts, is required to consider the evidence on record and record reasons on the points arising for determination. It is, therefore, necessary for this Court to independently evaluate the evidence brought on record.

17. Upon consideration of the pleadings, evidence and the grounds urged in appeal, the following points arise for determination in the present appeal:

                   (i) Whether the appellant has proved the due execution and attestation of the Will dated 07.03.2011 in accordance with Section 63 of the Succession Act and Section 68 of the Indian Evidence Act?

                   (ii) Whether the learned Trial Court was justified in holding that the Will had not been proved in accordance with law and in dismissing the probate suit?

                   (iii) Whether the impugned judgment and decree call for interference by this Court?

18. Before adverting to the evidence on record, it is necessary to notice the scope of enquiry in a probate proceeding. The jurisdiction of the probate court is limited to examining whether the document propounded is the last Will and testament of the testator, whether it was duly executed and attested in accordance with law, and whether at the time of execution the testator was in a sound disposing state of mind. Questions relating to title to the properties covered by the Will do not ordinarily fall for adjudication in such proceedings. In this regard, reference may be made to the decision of the Apex Court in Ishwardeo Narain Singh vs Sm. Kamta Devi & Ors., reported in AIR 1954 SC 280.

19. Section 63 of the Succession Act prescribes the mode of execution of an unprivileged Will. Clause (c) thereof provides that the Will shall be attested by two or more witnesses, each of whom has either seen the testator sign or affix his mark to the Will, or has received from the testator a personal acknowledgment of such signature or mark, and each of such witnesses must sign the Will in the presence of the testator.

20. Section 68 of the Indian Evidence Act provides that a document required by law to be attested shall not be used in evidence unless at least one attesting witness has been called for the purpose of proving its execution, if such witness is alive and capable of giving evidence.

21. The legal position is thus well settled that in order to prove a Will, the propounder must establish that the testator signed or affixed his mark to the Will; that such signature or mark was intended to give effect to the writing as a Will; that the Will was attested by at least two witnesses in the manner contemplated under Section 63(c) of the Succession Act; and that at least one attesting witness has been examined to prove such execution in terms of Section 68 of the Evidence Act. At the same time, if suspicious circumstances are alleged, the propounder must dispel such suspicious circumstances by satisfactory evidence.

22. In Daulat Ram (supra), the Apex Court held that in order to assess whether a Will has been validly executed and is genuine, the propounder has to show that the Will was signed by the testator, that he had signed the testament of his own free will, that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions, and that the Will was duly attested in the manner known to law. It was further held that once these elements are established, the burden resting on the propounder stands discharged, subject, however, to removal of any suspicious circumstances if such circumstances exist.

23. Keeping the aforesaid legal position in mind, the evidence on record may now be examined.

24. PW-1, namely, the appellant herself, deposed that during the lifetime of her father, late Manik Kalita, he executed a registered Will on 07.03.2011 which was registered on 08.03.2011 before the Sub-Registrar, Rangia in the presence of the witnesses, namely, Smti. Jnanshree Kalita, Nirendra Kumar Nath and Omar Faruk. She further deposed that the said Will represented the last testamentary disposition of her father and that the properties described in the schedule were bequeathed in her favour. She proved the original Will as Exhibit-1 and also identified the signatures/thumb impression appearing thereon.

25. PW-1 further deposed that the testator had bequeathed his property in her favour in consideration of the care and service rendered by her to him in his old age and out of love and affection towards her. She stated that the testator had come to live with her as respondent Nos. 1 and 2 did not look after him properly. She also proved the land documents relating to the scheduled property as well as the death certificate of the testator.

26. It appears from the cross-examination of PW-1 that she denied the suggestion that her father had been secretly taken away by her or that he was not in a position to move without assistance. She also stated that, except Nirendra Kumar Nath, the other two attesting witnesses had accompanied her father to the office of the Sub-Registrar on 08.03.2011 and that she and her elder sister had taken him there. She further stated that it was her father who had expressed his intention to execute the Will.

27. PW-2, Omar Faruk, is one of the attesting witnesses to the Will. His evidence assumes significance for the purpose of Section 68 of the Evidence Act. He deposed that during the lifetime of the testator Manik Kalita, the latter executed the registered Will dated 07.03.2011, which was registered on 08.03.2011 before the Sub-Registrar, Rangia in the presence of the witnesses, including himself. He proved the original registered Will and identified his signature thereon as well as the signatures/thumb impression of the testator.

28. In cross-examination, PW-2 denied the suggestion that the testator did not come to the office of the Sub-Registrar on the date of registration or that he was bedridden and did not visit the said office.

29. PW-3, Krishna Kanta Mahanta, though not an attesting witness to the Will, supported the case of the appellant and deposed that the testator had executed the registered Will in the presence of witnesses and had bequeathed his properties in favour of the appellant. In cross-examination, he denied the suggestion that the testator was not in a position to sign at the time of execution of the Will.

30. On the other hand, DW-1, respondent No. 1, deposed that the appellant had taken away his father and taking advantage of his old age, managed to get the Will executed. He further deposed that when he found his father missing, he lodged an FIR and later found him in the house of his sister (appellant).

31. However, in his cross-examination, DW-1 admitted that after his father had gone missing, he was later found at the house of his elder sister (respondent No. 3) at Karaibari village, whereafter the matter was informed to the police. The testimony of DW- 1, therefore, does not support the plea that the testator was wholly immobile or incapable of movement. On the contrary, it indicates that after leaving the house of respondent No. 1, the testator had moved elsewhere and was staying away from him. Significantly, the testator was found not in the house of the appellant, but in the house of respondent No. 3. This circumstance also probabilises the appellant’s case that the testator had left the house of respondent No. 1 and was thereafter residing away from him.

32. DW-2, Samiran Deka, a neighbour of respondent No. 1, deposed that the testator was old, unwell and bedridden and that he had been secretly taken away by the appellant. However, DW-2 was neither an attesting witness to the Will nor a person connected with its execution or registration. His evidence is, therefore, only of a general nature and cannot by itself dislodge the evidence of the attesting witness or the surrounding circumstances appearing from the record.

33. It is true that the probate petition was accompanied by declarations of two attesting witnesses in terms of Section 281 of the Succession Act. However, such declarations, by themselves, do not constitute substantive evidence of due execution and attestation of the Will unless the makers thereof enter the witness box or the contents thereof are otherwise proved in accordance with law. Therefore, the said declarations cannot, by themselves, be treated as independent proof of execution of the Will.

34. At the same time, it is relevant to note that one of the attesting witnesses to the Will, namely, Omar Faruk, who had also furnished a declaration in terms of Section 281 of the Succession Act, entered the witness box as PW-2 and deposed in support of the execution of the Will. Therefore, while the declaration by itself is not substantive evidence, the fact remains that the said attesting witness was examined before the Court and the due execution of the Will has to be assessed on the basis of his testimony read with the other evidence on record.

35. The issue as to proof of the Will must, therefore, be determined primarily on the basis of the oral and documentary evidence legally adduced during trial, particularly the testimony of PW-2 as an attesting witness, read with the evidence of PW-1 and the attendant circumstances brought on record.

36. On an overall appreciation of the evidence of PW-1 and PW-2, this Court finds that the Will in question has been proved in accordance with law. PW-2 is one of the attesting witnesses to the Will. His testimony clearly establishes that the testator executed the Will and that the Will was registered before the Sub-Registrar, Rangia in the presence of the witnesses, including himself. He identified the Will, his signature thereon and the signatures/thumb impression of the testator. Nothing substantial could be elicited in his cross-examination to discredit his testimony.

37. The evidence of PW-1 also supports the case of the appellant as regards the circumstances in which the Will came to be executed and registered. Though PW-1 is not an attesting witness and cannot by herself prove the attestation of the Will, her evidence is nevertheless relevant to the surrounding facts, including the fact that the testator had gone to the office of the Sub-Registrar and that the Will was executed and registered in the presence of the attesting witnesses.

38. The learned Trial Court discarded the Will on the ground that neither PW-1 nor PW-2 had expressly stated, in so many words, that the testator signed the Will in the presence of the attesting witnesses and that the attesting witnesses signed the Will in the presence of the testator. In the considered opinion of this Court, the learned Trial Court adopted an unduly hyper-technical approach in appreciating the evidence on record.

39. The evidence of an attesting witness is not to be read in a truncated or pedantic manner. What is required is that the evidence, read as a whole, must satisfy the essential ingredients of Section 63(c) of the Succession Act and Section 68 of the Evidence Act. The testimony of PW-2, when read in its entirety, unmistakably indicates that the testator executed the Will in the presence of the witnesses and that PW-2 was one of the attesting witnesses thereto. He has also proved the Will in original and identified the signatures/thumb impression appearing thereon. In the facts of the present case, the evidence of PW-2, read with the testimony of PW-1 and the attendant circumstances, is sufficient to hold that the due execution and attestation of the Will stood proved.

40. It is also relevant that the Will in question is a registered Will. It is settled that registration by itself does not dispense with proof of execution in the manner required by law. At the same time, registration remains a relevant circumstance while appreciating the genuineness of the document and the surrounding circumstances attending its execution. In the present case, the registration of the Will, coupled with the evidence of PW-2 and the absence of any cogent evidence of suspicious circumstances, lends assurance to the case of the appellant.

In this regard, reference may be made to the decision of the Apex Court in the case of Metpalli Lasum Bai (Since Dead) & Ors -Vs- Metapalli Muthaih (D) by Lrs. reported in (2025) SCC OnLine SC 1488, wherein the Apex Court emphasized that a registered document always carries a presumption of its genuineness. Relevant paragraph of the aforesaid judgment reads as under:

                   “9. The Will is a registered document. The defendant-Muthaiah in his evidence, admitted the signatures as appearing on the said Will (Ext -A1) to be that of his father, e, M Rajanna The Will distributed the properties in defined proportions between the plaintiff-Lasum Bai, defendant-Muthaiah and Rajamma (widowed daughter of M Rajanna) There is ample material on record to establish that M Rajanna anticipated that the relations between plaintiff-Lasum Bai and defendant-Muthaiah were not congenial and that is why, in order to avoid future conflicts, he divided his properties by way of a family settlement and bequeathed a share thereof to plaintiff-Lasum Bai, while leaving the major share to his son ie, the defendant-Muthaiah The distribution of the properties, as per the family settlement (regarding which oral evidence was led), and the registered Will is almost in the same proportions. The Will, is a registered document and thus there is a presumption regarding genuineness thereof The trial Court accepted the execution of the Will based on the evidence led before it As the Will is a registered document, the burden would lie on the party who disputed its existence thereof, who would be defendant-Muthaiah in this case, to establish that it was not executed in the manner as alleged or that there were suspicious circumstances which made the same doubtful However, the defendant-Muthaiah in his evidence, admitted the signatures as appearing on the registered Will to be those of his father, M. Rajanna. He also admitted the fact that the plaintiff-Lasum Bai was in possession of 6 acres and 16 guntas of land, which fell into her share as per the Will In this background, the trial Court was right in holding that M Rajanna made a fair distribution of his tangible assets amongst his legal heirs by executing the Will dated 24th July, 1974 and so also the oral family settlement We are of the view that the evidence available on record fortifies the existence and persuasive nature of the oral family settlement which is countenanced by the factum of the possession of the suit schedule properties including the disputed property, which was admittedly with the plaintiff-Lasum Bai and subsequently the purchaser i.e, Janardhan Reddy”

41. There is another aspect of the matter which also deserves notice. The evidence on record indicates that the testator was earlier residing with respondent No. 1 and his wife. However, it appears that owing to ill-treatment at the hands of respondent No. 1, the testator left that house and was subsequently found in the house of his elder daughter. Thereafter, from around the year 2009, he started residing with the appellant in her rented house.

42. The evidence of PW-1 further shows that the appellant, who is unmarried, had been taking care of the testator during his old age while he was residing with her. The materials on record also indicate that respondent No. 1, despite being the son with whom the father had earlier resided, did not thereafter visit or take care of him. Significantly, the Will in question came to be executed in the year 2011, that is, after the testator had already been residing with the appellant for a considerable period of time. The testator thereafter survived for almost three years and passed away on 10.05.2014.

43. In the aforesaid backdrop, the bequest made by the testator in favour of the appellant cannot be said to be unnatural, improbable or attended by suspicious circumstances. On the contrary, the disposition appears to be wholly consistent with the surrounding facts brought on record, namely, that after leaving the house of the respondent No. 1, the testator had been residing with the appellant, who was looking after him in his old age.

44. It is also relevant to note that, apart from respondent No. 1, the other siblings did not raise any objection to the Will. More importantly, respondent No. 3, one of the daughters of the testator, not only did not dispute the Will but had also accompanied the testator to the office of the Sub-Registrar at the time of registration/execution of the Will and had signed the same as one of the attesting witnesses. This is a significant circumstance which lends assurance to the genuineness of the Will and to the case of the appellant.

45. The defence of respondent No. 1 is that the appellant had taken advantage of the old age and alleged ailment of the testator and procured the Will. However, apart from making such allegation, no cogent evidence was adduced to establish fraud, coercion, undue influence or want of testamentary capacity. DW-2 merely made a general statement that the testator was unwell and bedridden. That by itself is not sufficient to displace the evidence of the attesting witness, particularly when PW-2 has categorically stated that the testator had gone to the office of the Sub-Registrar and executed the Will there.

46. The evidence of DW-1 also does not advance the case of the objector. His own testimony discloses that after the testator had gone missing, he was found in the house of his sister (Respondent No. 3). This circumstance rather indicates that the testator was capable of movement and was not entirely under the control of respondent No. 1. There is no medical evidence whatsoever on record to establish that on the date of execution of the Will the testator lacked a sound disposing state of mind or was physically incapable of executing the Will.

47. In the aforesaid facts and circumstances, this Court is of the considered view that the appellant has succeeded in proving the due execution and attestation of the Will dated 07.03.2011 in accordance with Section 63 of the Succession Act and Section 68 of the Indian Evidence Act. The evidence on record also does not disclose any suspicious circumstance surrounding the execution of the Will. On the contrary, the materials on record show that the testator had been residing with the appellant since 2009, that she had been taking care of him in his old age, that respondent No. 1 had not been looking after him, and that respondent No. 3, one of the attesting witnesses, had accompanied the testator to the office of the Sub-Registrar at the time of execution/registration of the Will. The bequest in favour of the appellant, therefore, cannot be said to be unnatural or improbable.

48. Consequently, Point No. (i) is answered in favour of the appellant. Point Nos. (ii) and (iii) are also answered in favour of the appellant by holding that the learned Trial Court erred in dismissing the probate suit and that the impugned judgment and decree are liable to be set aside.

49. In view of the findings returned above, the impugned judgment dated 15.09.2023 and decree dated 03.10.2023 passed by the learned District Judge, Kamrup, Amingaon in Probate Title Suit No. 02/2018 are hereby set aside.

50. Accordingly, the application for probate stands allowed. It is hereby declared that the WILL executed on 07.03.2011 and registered on 08.03.2011 by the testator Manik Kalita is the genuine and last WILL of late Manik Kalita. The executor Smti. Hemlata Kalita is entitled to get Probate of the WILL executed on 07.03.2011 and registered on 08.03.2011, executed by the testator subject to payment of due Court fees on the properties mentioned in the WILL as per the present market value.

51. The applicant is directed to take steps for submitting an official valuation certificate for assessing the Court fees.

52. Registry to issue Probate Certificate accordingly in terms of the relevant Schedule of Indian Succession Act, 1925.

53. Send back the Trial Court records along with the original WILL to the Court of District Judge, Kamrup, Amingaon by way of special messenger.

54. The original WILL be kept in the safe custody of the CAO/Sheristader of the District Judge, Kamrup, Amingaon.