IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Miscellaneous Appellate Jurisdiction]
M.A. No. 146 of 2020
Phulai Devi @ Phulait Devi, W/o Sri Mahadeo Gope
…. .. … Appellant(s)
1.Smt. Runia Devi
7.The Villagers and Local Residents of Village- Mahugaon, P.O.- Murto, P.S.Bero,
District- Ranchi. .. … … Respondent(s)
CORAM :HON’BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) ………
For the Appellant(s) : Mr. Satish Kumar Keshri, Advocate.
For the Respondent(s) :
06 / 20.07.2021. Heard, learned counsel for the appellant- Mr. Satish Kumar Keshri.
2. Mr. Satish Kumar Keshri, learned counsel for the appellant has submitted that the appellant/defendant (Phulai Devi @ Phulait Devi) has preferred the instant Misc. Appeal against the order dated 17.12.2019 passed by learned Additional Judicial Commissioner-VIII, Ranchi, in Original Suit No.02/2019 (arising out of L.A. Case No.05/2017, corresponding to CNR JHRN01-001954-2017) whereby the learned Additional Judicial Commissioner has granted Letters of Administration to the estate of testator with a copy of registered Will dated 17.05.2013 annexed in favour of applicant, Smt. Runia Devi (Respondent No.1, herein).
3. Mr. Satish Kumar Keshri, learned counsel for the appellant has assailed the impugned order/judgment on the ground, that the contents of the Will should not be known to the beneficiary before death of the testator.
4. Mr. Satish Kumar Keshri, learned counsel for the appellant in support of his submission has relied upon Sub-section (h) of Section 2 of the Indian Succession Act, 1925, which may profitably be quoted hereunder :-
“(h) “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”
5. Learned counsel for the appellant has further submitted that contents of the Will was known to Applicant/ Respondent No.1 (Smt. Runia Devi) and in support of the same, he has relied upon the deposition of the applicant, Smt. Runia Devi to satisfy the same.
6. This Court has asked the learned counsel, whether he can furnish any authority on this point, otherwise this is not a legal question which has to be adjudicated by the court of Appeal, as no such issue was framed by the learned Trial Court nor the applicant, Smt. Runia Devi or appellant/defendant, Phulai Devi @ Phulait Devi has agitated this issue before the learned Trial Court, as such, in absence of any authority of law, this objection/ground taken by the appellant is hereby rejected.
7. Mr. Satish Kumar Keshri, learned counsel for the appellant has assailed the impugned order/judgment on the further ground, that Will has been obtained by using undue influence and fraud upon the testator.
8. Learned counsel for the appellant in support of his submission has relied upon Order VI, Rule 4 CPC which may profitably be quoted hereunder :-
“4.Particulars to be given where necessary :- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”
9. Learned counsel for the appellant in support of his submission has relied upon Section 16 sub- Section (1) of the Indian Succession Act, which may profitably be quoted hereunder :-
16.”Undue influence” defined -(1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.”
10. Mr. Satish Kumar Keshri, learned counsel for the appellant, in support of his submission has relied upon at Para-7 of the written statement and submitted that since the Testator was 91 years old and his mental condition was not fit, as such, he was under the clutches of applicant, Smt. Runia Devi and her husband, as such, there was undue influence and also in view of the judgment passed by the Apex Court in the case of Ladli Parshad Jaiswal vs. The Karnal Distillery Co. Ltd., Karnal and Ors., reported in AIR 1963 SC 1279, the impugned order/judgment is fit to be set aside.
11. This Court has perused the pleading of the defendant/appellant and found that no specific pleading has been made to show that how the Testator was under the undue influence of applicant- Smt. Runia Devi or her husband. The said judgment relied upon by the learned counsel for the appellant is not applicable in the facts and circumstances of the present case, as the defendant/appellant has not given any specific particulars of fraud or undue influence rather a vague statement has been made in the written statement, which has also not been corroborated by any specific particular showing undue influence during evidence. As such, this plea is also negated in view of the judgment passed by the Apex Court in the case of Lynette Fernandes vs. Gerties Mathias, reported in (2018) 1 SCC 271.
12. This Court has further examined the entire records including the Issue No.3- “Whether the Will is obtained by playing fraud or coercion?”
13. Paras 22 to 26 of the impugned order/judgment may profitably be quoted hereunder :-
“22.Exhibit-1 is the registered Will dated 17/05/2013. At pages No.5 & 6, Para-5 of the Will it is averred that :-
This Will has been prepared on my instructions by my lawyer, the contents of this Will have been read over and explained to me in Hindi by my lawyer before all persons present including the attesting witnesses. I am satisfied that the Will has been drawn exactly in accordance with my instructions. After fully understanding the same I am executing this Will freely, voluntarily without any force, fraud, undue influence, coercion whatsoever by or from any one whosoever and being in sound state of body and mind.
The first page, back page and page No.7 bear finger prints of all the fingers of the testator and remaining page of the Will bears the left thumb impression of the testator.
23.At page No.3 of the Will it is averred that :-
And whereas even at this old age none of my daughter except Smt. Runia Devi neither pay attention to me with even emotional support nor even pay any respect or regard towards me but still I have done all I could do for them according my resources and other prevailing factors. Only my daughter, Runia and her husband Bhushan Gope regularly keep touch with me and and they not only support me emotionally but sometimes with financially. Therefore I do not want any of my properties devolve upon any other person other than my daughter Smt. Runia Devi.
24. I have already discussed above that there are vital inconsistencies in the evidence of opposite parties No.1 to 4 and 6. The opposite parties as discussed above have taken different pleas on the issue of health condition of the testator which do not match with each other. No documentary evidence has been brought on record and proved by the aforesaid contesting opposite parties to the effect that mental condition of the testator was not sound at the time when he executed the Will. The opposite parties were having knowledge regarding the execution of Will in the year 2013 itself. It is pertinent to mention here that the said Will is a registered Will but the opposite parties did not take step for revocation of the Will during the life time of the testator. The evidence adduced by Ops. No.1 to 4 and 6 does not inspire confidence. Both the attesting witnesses are the co-villagers of the testator. Opposite parties have also admitted the fact that applicant Runia Devi and O.P. No.5 Keshri Devi were residing with the testator and still they are residing in his house situated at Village- Mahugaon, P.S. Bero. The Will reveals that the contents of the Will were read over and explained to the testator in Hindi by his lawyer before all persons present including the attesting witnesses. There appears to be no suspicious circumstances in the execution of the Will.
25. It is pertinent to mention here that O.P. No.5 has supported the case of the applicant Smt. Runia Devi.
26. From analysis of evidence adduced by the parties and having regard to the above discussions, I am of the view that the applicant has been able to prove the fact that the testator was mentally in sound state of mind at the time of execution of Will and the Will has not been obtained by playing fraud or coercion.”
14. From perusal of the finding recorded by the learned court below at Paras 22 to 26, it appears that the appellant/defendant has failed to bring on record any material to create any suspicion in the mind of the court, as such, considering the impugned judgment/order, this Court is not inclined to interfere with the same.
15. Accordingly, the instant Misc. Appeal stands dismissed.