AJAY KUMAR SINGH Vs. GODAWARI DEVI

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against the judgment passed by 2nd. Additional District and Sessions Judge, Saran at Chapra, in Probate case no. 18 of 1985. The caveators of the aforesaid case have filed this appeal.

(2.) THE case of the respondent, Godavari Devi, in the lower court was that there was one Satya Narain Singh, who had no issue and, therefore, he executed a registered deed of will (Ext. 2) on 17.9.77 in favour of herself (Godavari Devi) the wife of grandson of Fufa (sister 'shusband) of testator Satya Narain Singh. Subsequently, Godavari Devi filed the aforesaid probate case and after hearing both the parties and on the basis of evidence led by them, the trial court granted probate in favour of Godavari Devi. The objection of caveators was mainly confined to the fact that Godavari Devi was not proved to be related to Satya Narain Singh and the caveator Smt. Kanti Devi, wife of Ajay Kumar Singh was a close relation of Satya Narain Singh, her husband being agnate of the testator. All the attesting witnesses of the deed of will were of different villages, other than Kudurbadha where Satya Narain Singh lived. The propounder Godavari Devi, was also of a different village, namely, Kharika. Moreover, applicants ' witnesses were not competent witnesses under Section 50 of the Evidence Act to speak about the relationship of Satya Narain Singh with Godavari Devi. Simply by making a bald statement that Godavari Devi was the wife of grandson of the Fufa of Satya Narain Singh, the relationship between the testator and the propounder was not established. Besides the aforesaid facts, another circumstance was raised that testator executed a deed of gift (Ext.B) on 30.10.85 wherein he had spoken of the fraudulent execution of the deed of will. In such a circumstance, the will, in question, stood revoked. Hence, no probate can be granted on this will. It was further submitted that the will, in question, must be free from all suspicions in order to grant a probate in favour of the propounder. It was submitted by the appellants ' lawyer that the propounder had failed to remove all suspicions and misgivings surrounding the concerned will. However, I find that the trial court discussed the oral as also documentary evidence and found that the deed of will was genuine and it was executed when the testator was in sound mental and physical health and there was no fraud or undue influence exerted upon the testator by propounder or her husband or anybody else. All the attesting witnesses were examined in the trial court except the identifier of the L.T.I. of Satya Narain Singh and the plea was taken that Brij Bihari Singh who was the identifier, was in Assam and, therefore, he was not available for evidence. The court accepted this explanation and held that non -examination of Brij Bihari Singh did not affect the genuineness of the will in so far as its execution was admitted by the recitals of deed of gift (Ext.B) filed by the respondents themselves. In this connection, I find that, of course, the deed of gift dated 30.10.85 itself contained a recital that the deed of will allegedly executed by Satya Narain Singh was under cloud because of its surreptitious execution. From this recital, it is apparent that the donees of the deed of gift and the donor himself were aware of the existence of a deed of will. When the knowledge of this existence of a deed of will came to the mind of the donor Satya Narain Singh or his donees (appellants) has not been stated in the deed of gift. So, it is apparent that all these persons had knowledge that there was deed of will in existence. The deed of will is a registered one and it is dated 7.9.77. The deed of gift was executed in the year 1985 much after the deed of will and, hence, non -examination of Brij Bihari Singh, identifier, was not material. Moreover, experts were examined to compare the L.T.I. on the deed of will and on the deed of gift and both tallied with each other. So also, non -examination of Brij Bihari Singh was not fatal. All the attesting witnesses were examined and supported the execution of the deed of will by Satya Narain Singh and scribe was also examined. Simply because the attesting witnesses and scribe belonged to a different village, it will not render the deed of will invalid or forged. The best evidence regarding the relationship of testator and preponder will be the will itself and, therefore, non -examination of such witnesses as would be described as competent under Section 50 of the Evidence Act may not create doubt about the relationship of the propounder with the testator. This circumstance would also dispel suspicion regarding the genuineness of the deed of will. There is another circumstance which would also indicate that the deed of will was genuine. The circumstance is that the appellants carried Satya Narain Singh to Marhawrah for execution of a deed of gift on 30.10.85 when, admittedly, the registration office for village Kudarbadha was Chapra. On the same date on which the deed of gift was executed, O.P.W.12 Daroga Singh executed a sale -deed in favour of Satya Narain Singh (Ext.D) for showing jurisdiction of the property under the deed of gift under the Marhawrah sub -registry office. However, O.P.W.12 was examined and he said that in the deed of gift plot no. 2396 was wrongly mentioned and, as a matter of fact, he wanted to sell plot no. 2696. So, admittedly plot sold by Ext. D did not belong to Daroga Singh, O.P.W. 12. Daroga Singh further admitted that he did not execute any corrigendum regarding the wrong entry of plot in the gift deed. This witness on behalf of the appellant also failed to give the khata no. of plot no. 2396, he sold. So, it is apparent that the deed of gift which was allegedly got executed by the appellant from Satya Narain Singh was executed at a place which had no jurisdiction to execute the deed of gift and, therefore, the deed of gift was not executed in hurry or with ulterior motive. Therefore, all the contents of the deed of gift relating to alleged intention of the donor Satya Narain Singh to revoke his earlier will would be viewed with suspicion and, so, his recitals in the deed of gift would not amount to revocation of the deed of will which was executed by him earlier. This circumstance would also give the genuineness of the deed of will because the appellant wanted to render it invalid and towards this end, they tried to obtain a deed of gift from Satya Narain Singh. Making certain recitals therein will not amount to revocation of the deed of will. This will be a circumstance adding further feather to the genuineness of the deed of will. This is further explained by the fact that the date of death of Satya Narain Singh given by the appellant is 1.11.85, whereas admittedly the deed of gift was executed on 30.10.85. According to the respondents of this appeal, Satya Narain Singh died on 30.10.85 itself and in this connection a document was produced. Whatever may be the actual date of death of Satya Narain Singh, it is apparent that Satya Narain Singh died two days after the alleged execution of the deed of gift and certain prescriptions regarding the treatment given to Satya Narain Singh by the doctors were produced by the appellant in order to show that he was ailing and treatment was being provided by the appellant to him. It is further the evidence of the appellant that Satya Narain Singh was carried to Marhawrah in a car to execute deed of gift. This circumstance will further add to the allegation of the respondents that deed of gift was shrouded in mystery and its execution was obtained by fraud and undue influence practised and exerted upon Satya Narain Singh. The very fact that Satya Narain Singh died two days after the execution of the deed of gift would also lend credence to the allegation of the respondents that the deed of gift was obtained with fraud and undue influence. The aforesaid circumstances will further indicate that there was, of course, a deed of will executed by Satya Narain Singh in favour of the respondents and, therefore, the appellants were in hurry and were anxious to get the deed of will revoked by hook or by crook and they were very much aware of the the genuineness of the deed of will. Before parting with the judgment, I must not fail to refer to the contention of the appellant that the preponder of the deed of will in the evidence in court admitted that she did not know anybody except Brij Bihari Singh of village Kudarbadha and she was also unable to give the name of neighbours of Satya Narain Singh. So, it was submitted that the propounder of the will was not serving Satya Narain Singh and hence the motive for execution of the deed of gift was not proved. In this connection, I am of the opinion that the propounder must not necessarily serve the testator by remaining with him throughout the year or throughout with him. Even after occasional visits by propounder and rendering services to the testator by offering financial help and affection may spur the testator to dispose of property in the manner he pleased to devolve after his death. Godavari Devi has stated in her evidence that whenever she used to go out to other places, she used to leave one person to look after the testator. Moreover, Godavari Devi being female is not supposed to know all the neighbours of the testator even though she would be on visiting terms with him.

(3.) IN the result, this appeal is dismissed.