ORDER
J.N. Sarma, J.
1. This is an appeal under Section 299 of the Indian Succession Act. It has been filed against the judgment dated 23-6-1997 passed by the learned Additional District Judge. Nagaon in Title Suit No. 19/1995.
2. It is alleged that a ‘will’ was left by one Suryamal Hazarika and the beneficiary of that ‘will’ was the present appellant Rabindra Nath Hazarika. He filed an application before the learned District Judge at Nagaon for grant of Letters of Administration and in that case he did not make the heirs of late Suryamal Hazarika, party and accordingly the Letters of Administration was issued ex parte. Thereafter, the daughter of late Suryamal Hazarika filed an application for revocation of Letters of Administration issued by the Court that has registered as Misc (J) case No. 92 of 1992, that was allowed and the Letters of Administration which was granted earlier was revoked.
Thereafter the present application was proceeded before the learned District Judge at Nagaon for grant of Letters of Administration. In this application in Paragraph 2 a statement was made that no other class I legal heir of the testator is living now, though at that point of time the daughter was living. But in view of the earlier revocation of the Letters of Administration, the Court received objection from the daughter and the daughter appeared and contested this will and the matter was registered as a Suit i.e. T.S. 19/1995.
3. It is the case of the propounder that Suryamal Hazarika executed a ‘will’ and that was registered before the Sub-Registrar, Hojai. The date of execution of the alleged ‘will’ is 15-2-62. By that ‘will’ all the properties of Suryamal Hazarika was given to the present Propounder. Sri Suryamal Hazarika died in April, 1971 and the application for Letters of Administration was filed in June, 1992 i.e. after 21 years of the death of the testator. In the objection filed by the daughter it is stated that the ‘will’ is not genuine. It was not executed and attested and there is no reason as to why the only daughter should be disinherited. It was her further case that she along with her husband looked after her father, at the time of death she was present and she and her other relatives performed the ‘Sradha’ ceremony. The Propounder was a Railway employee and he was never living with the deceased. In the year 1962 the Propounder was not at his village home at Kaki. On this background it was prayed that the application for Letters of Administration may be dismissed.
4. Before the trial Court the following witnesses were examined.
P.W, 1 Rabindranath Hazarika the Propounder of the ‘will’ P.W. 2 is Deb Kanta Sarma who is a Deed Writer at Hojai Sub-Registrar’s office since 1947. He identified the signatures of the scribe of the alleged ‘will’ as the Scribe was dead in the meantime. P.W. 3 is Bangshidhar Saikia. He was examined on commission. He is one of the attesting witness of the ‘will’. D.W. 1 is Phulti Bania the daughter of the testator. D.W. 2 is Jiban Hazarika. He is the nephew of Suryama Hazarika and the brother of the Propounder of the ‘will,’. The ‘will’ was exhibited as Ext. 1. The learned Judge On consideration of the materials on record came to the following findings :–
i) There is only thumb impression of the testator in the will. There is no scope for verification as to the genuineness of this thumb impression as no other such impression of the testator is available for comparison. That step was to be taken by the propounder, because onus lies with him to show that the disputed thumb impression was that of the testator…………… ………….
So, due and proper execution of the Will cannot be said to be there.
ii) The execution of the ‘will’ has not been properly proved.
iii) There is improbability factor as both the scribe and one of the attesting witness have already expired and nobody can examine them. The petitioner is to blame himself as there was delay caused by the petitioner. He came to the finding that due attestation was not proved.
On consideration of the other materials on record, the learned Judge came to the finding that the suspicious circumstances were not explained and/or removed. Having arrived at this finding the application for grant of Letters of Administration was rejected. Hence, this appeal.
5. I have heard Mr. B.K. Goswami, learned Senior counsel assisted by Ms. T. Goswami for the appellant and Mr. D.R. Bora, learned counsel for the Respondent assisted by Mr. T. Mahanta.
6. Before we proceed further let us take up the preliminary objection raised by Mr. Bora. That is with regard to limitation. He submits that an application for grant of Letters of Administration is governed by Article 137 of the Limitation Act and in support of this contention Sri Bora relies on AIR 1987 P and H 122 where a single Judge of the Punjab and Haryana High Court in relying on an observation made in AIR 1977 SC (sic) held that in an application for grant of letters of administration Article 137 shall apply. In this, case the Punjab and Haryana High Court relied on AIR 1977 SC 282, Kerala SE Board v. T. P. K. K. Amsom and Besom wherein the Supreme Court pointed out that Article 137 applies to any petition or application filed under any Act. This decision of the learned single Judge is against the preponderance of judicial opinion of different High Courts.
In AIR 1959 Calcutta 81 (Kalinath Chatterjee v. Nagendra Nath Chatterjee) a Division Bench of the Calcutta High Court pointed out relying on (1894) ILR 17 Mad 379 (Gnanamuthu Upadesi v. Vana Koilpillai Nadan) that application for probate or Letters of Administration are not governed by law of limitation. That also is the decision in AIR 1937 Calcutta 595, (Durgapada Bera v. Atul Chandra Bera) where it was held by a Division Bench of the Calcutta High Court as follows :–
“Long delay in making an application for probate, or for Letters of Administration with the Will annexed, is no doubt a circumstance which may be properly taken into account in determining the question of the genuine ness of the will, but that is about the only purpose for which it is relevant in such a proceeding. Probate or Letters of Administration have been granted even many years after the death of the testator.”
That aspect of the matter regarding suspicious circumstances we will consider at a later point of time. In AIR 1983 Allahabad 386 (Smt. Leela Karwal v. Karwal) the same view was taken. It was pointed out by the Allahabad High Court that though there is no limitation the delay in filing petition for grant of Letters of Administration is a matter to be considered while adjudicating upon validity of Will, but mere delay cannot be a ground for holding it to be not maintainable. The same is the view expressed by the Madras High Court which has been relied on in AIR 1959 Calcutta 81 (supra). So, I accept the decision of Calcutta, Madras arid Allahabad High Courts to be the correct proposition of law. I do not agree with the decision of the Punjab and Haryana High Court. So, this preliminary objection regarding limitation raised by Mr. Bora shall fall through.
7. Next let us taken up the arguments advanced by Mr. Goswami. Mr. Goswami submits that execution and attestation of the will have been proved and there was no suspicious circumstance worth the name and even if there was anything that has been removed/explained. On the other hand, Mr. Bora relying on (1996) 11 SCC 626 (Kartar Kaur v. Milkho) submits that when genuineness of the Will is challenged, the burden is on the propounder to prove the genuineness beyond reasonable doubt and in Paragraph 16 the Supreme Court pointed out as follows :–
“In Jaswant Kaur v. Amrit Kaur this Court held that” in cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple is between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court’s conscience and then the true question which for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.”
Paragraph 16 is a quotation of the Supreme Court from its earlier judgment in (1997) 1 SCC 369 (sic). That was a case by a larger Bench and that was followed, (1996) 11 SCC 626 is a quorum of two Judges but (1977) 1 SCC (sic) is a quorum of three Judges. He submits that in this particular case the evidence which was adduced that did not satisfy this test which was laid down by the Apex Court.
8. Before we go to the decisions cited by Mr. Goswami, let us have a look at the evidence in order to find out whether the execution and attestation have been proved. It is not necessary to recite the decisions with regard to execution and attestation as by now the law is crystal clear. Even as pointed out by the Apex Court in the case of Rani Purnima Devi. AIR 1962 SC 567 Registration of a Will is not sufficient to establish genuine execution and attestation. Let us first take up the evidence of PW1. It must be borne in mind that PW 1 is the pro-pounder of the Will and took an active part in the execution of the Will. He is a man who did not live with his uncle. There is evidence that even he did not attend the Sradha ceremony of his uncle and he by the strength of the Will shall get the entire property denying the right to real daughter and depriving the old aged mother who was alive at that point of time. It appears that he did not go to Kaki from 1952 to 1962. The wife of the uncle died in 1956. Even at the time of death of the wife of testator he did not go to Kaki. He further admits that he went to Kaki for the first time and got the Will executed. He did not say anything with regard to execution and attestation of the Will, he only stated that his uncle executed the Will and it was attested by witnesses. He further stated that in 1989 he constructed a RCC house on the land of his uncle and he said that the daughter and the son in law were living separately. The suggestion which was given that he manufactured the Will to grab the property of his uncle was denied by him. P.W. 2 is a Deed writer at Hojai and he only identified the signatures Ext.1 (1) Ext. 1 (2) and Ext. 1 (3) of Rabi Ram Baruah the scribe and he claimed that he was familiar with the hand writing of that man as they worked together. But the person died about 19 yeas ago i.e. sometime in 1972 and this Will was written in the year 1962 and the identification of the signatures of the scribe by this witness in 1955 (sic) does not inspire confidence. Rather, he appears to be a man who did not adhere to truth as he was not adhere to in a position to say what other work was done by this scribe on that particular date, but he claims to remember vividly with regard to this Will. He even gave the time of the writing of the Will though he deposed about 36 years back. So, this evidence is to be thrown out. PW 3 is Bangshidhar Saikia. He was aged about 91 years and ailing at the time of deposition as such he was examined on commission and he is the attesting witness to the Will. From the perusal of the original Will it will be seen that he also was the identifier of Suryamal Hazarika. This is evident from the attestation made at the back of the Will by the Sub Registrar, but he deposed as follows :–
“In the Sub-Registrar’s office the Hakim himself called Suryamal and no other person identified him”. There is further evidence that he did not identify Suryamal. The Tarani took the thumb impression at his table thumb impressions were not taken at the Registration office. Rabindra was serving in the Railway at Mariani. Rabindra Nath was not living with him. He was called from Mariani by Suryamal. “So, this witness belied the document itself as from the perusal of the document it will appear that he identified the person. So, when he can forget regarding identification of this man as deposed by him no reliance can be placed with regard to his deposition with regard to attestation. Further, it is no where said that he attested the document after thumb impression was put by the testator. So, the testimony of PW 3 regarding attestation is to be discarded as was done by the learned Addl. District Judge. So, I agree with the finding of the learned Judge that there was no due execution and attestation of the Will.
9. On this point Mr. Goswami places reliance on AIR 1955 SC 363 (Naresh Charan Das Gupta v. Paresh Charan Das Gupta) to urge that in order to decide the question of due execution and attestation of Will an over all view must be taken and no help can be taken from stray suspense in deposition here and there. This case instead of helping the appellant helps the respondent. That was a case where the Supreme Court found that there were valid reasons to disinherit near and dear one and that has been quoted in the Will itself. It reads like this “You broke our hearts for a woman who has no right to be in my house.” It was further found that the witness deposed regarding attestation. So, this case is of no help to the appellant. The next case relied on is AIR 1995 SC 2086 (Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar where the Supreme Court in Paragraph 15 has pointed out as follows :–
“There is also a large body of case law about what are suspicious circumstances surrounding the execution of a Will which require the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. A Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Hence, the person executing the document is not there to give testimony. The propounder, in the absence of any suspicious circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature of the testator. Some of the suspicious circumstances of which the Court has taken note are :–1) The propounder taking a prominent part in the execution of a Will which confers substantial, benefits on him; (2) Shaky signature; (3) A feeble mind which is likely to be influenced; (4) Unfair and unjust disposal of property. “So, unfair and unjust disposal of property Is also suspicious circumstances as held by the Supreme Court and the Supreme Court further pointed out that unfair and unjust disposal of the property must be explained as was done in the case of AIR 1955 SC 363 (supra). That is not there in the Will Ext. 1 there is not even a whisper as to why the only daughter was disinherited and why no provision was made for the old mother, Even in the evidence there is nothing that the daughter was disliked by the testator and that is why it was necessary to disinherither. In the same volume there is another decision at page 1684 (Rabindra Nath Mukherjee and Anr. v. Panchanana Banerjee (dead) by LRs.) where the Supreme Court pointed out that whenever there is a Will there is always possibility that somebody shall be disinherited but this itself is no ground to doubt the genuineness of the Will if the other circumstances are satisfied. But that circumstance must be explained which was not done in the instant case.
10. On the other hand, Mr. Bora, learned Advocate for the Respondent places reliance on the following decisions :
(i) AIR 1980 SC 1742 (Ram Piari v. Bhagawant) where the Supreme Court pointed out that mere execution of Will, by producing scribe or attesting witness or proving genuineness of testator’s thumb impressions by themselves was not sufficient to establish validity of Will, unless suspicious circumstances, usual or special, are ruled out and the Courts conscience is satisfied not only on execution but about its authenticity. See Kalyan Singh v. Smt. Chhoti, (1989) 4 JT 439 ; (AIR 1990 SC 396).
(ii) (2001)7 SCC 503 : (AIR 2001 SC 2802) N. Kamalam (dead) v. Ayyasamy where also the same law was laid down by the Apex Court by considering its earlier judgments. The Supreme Court pointed out that it is not expected that the proof should be with mathematical certainty, but on the circumstances the conscience of the Court must be satisfied. There must be explanation as to why the sons and daughters are being disinherited. If that is not there that itself will be suspicious circumstance and on that ground the prayer for the letters of Administration may be rejected. Further, it also must be established that the propounder did not take active part to grab the property by disinheriting real heirs. Here in this case the Will appears to be absolutely unnatural one.
11. Accordingly, there is no merit in this appeal and the same shall stand dismissed. The judgment and decree of the Court below shall stand affirmed.