GAINDILAL Vs. BHURAMAL
LAWS(RAJ)-1952-10-19
HIGH COURT OF RAJASTHAN
Decided on October 23,1952

GAINDILAL Appellant
VERSUS
BHURAMAL Respondents


Referred Judgements :-

VELLASWAMY SERVAI VS. L SIVARAMAN SERVAI [REFERRED TO]



Cited Judgements :-

MAHENDRA SINGH VS. AMBA KUNWAR [LAWS(RAJ)-1987-12-21] [REFERRED TO]
VALLABH VS. GINNI DEVI [LAWS(RAJ)-2004-2-23] [REFERRED TO]


JUDGEMENT

Dave, J. - (1.)THE facts leading to this appeal are that one Jeewan Ram resident of Chowkri Purani Basti, Jaipur, died on the 29th August, 1947 leaving behind him two sons Bhuramal and Gaindilal. Gaindilal filed a suit against Bhuramal for the partition of property left behind by Jeewan Ram, in the court of the Civil Judge, Jaipur City. THEreafter on the 8th October, 1947 his elder brother Bhuramal filed an application for probate of a will alleged to have been executed by Jeewan Ram on the 16th August, 1947. Gaindilal entered a caveat and contested the application pleading ignorance of the said will and also on other grounds. THE District Judge, however, allowed Bhuramal's application and ordered probate of will of Jeewan Ram to be granted to him. It is against that order dated the 12th May, 1948 that Gaindilal has come to this Court.
(2.)IT is contended by the appellant's learned counsel that the alleged will purported to have been written by one Damodar Lal and is attested by four witnesses namely Gopi Nath, Shiv Narain, Mst. Goran and Ganga Ram, that the respondent had examined only Gopi Nath and Mst. Goran and refrained from producing the scribe and other two witnesses and that an adverse inference should be drawn against him from the non-production of all these three persons. IT is also argued that in the life time of the deceased, that the appellant has proved from the evidence of the respondent's own Advocate Mr. Bhagwan Dass that the deceased wanted to execute another will three or four days before his death, but it could not be executed because of some quarrel between the parties and that no reference was made to this will at that time. He proceeds to argue that there was no reason for Jeewan Ram to exclude the appellant's right of inheritance, that the deceased was not pleased with the appellant as mentioned in the will, but that it is definite from the respondent's own statement in cross-examination that there was civil and criminal litigation between him and the deceased, that even if the execution of the will be held to be proved, it was executed under very suspicious circumstances and, therefore, the learned District Judge should not have granted the probate.
We find from the decision given by the learned District Judge that the only point which has been examined and determined by him is that the will Ex. A was executed by the deceased Jeewan Ram and that it was his last will because the other will which he wanted to execute three or four days before his death could not be completed. In our opinion, it was not sufficient for the learned District Judge to determine that the will Ex. A was executed by Jeewan Ram. He should have also decided whether at the time when the will was executed, the testator had a sound disposing state of mind and whether the alleged will is the will of a free and capable testator and that he understood and approved the contents of the will.

In the case of Vellaswamy Servai and other vs. L. Sivaraman Servai (1) (A. I. R. 1930 P. C. , p. 24.), it was observed by their Lordships of the Privy Council that - "where the propounder of a will is the principal beneficiary under it and has taken a leading part in giving instructions for the execution of the will and procuring its registration and execution, the circumstances are such as would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great vigilance and scrutiny. The propounder is not entitled to probate unless the evidence removes such suspicion and clearly proves that the testator approved of the will. "

In the case of Sadachi Ammal and others vs. Rajathi Ammal and others, it was held following the above rule that - "it is well established that whenever a will is prepared and executed under circumstances which raise the suspicion of the Court, it lies on the propounder not merely to prove the execution of the will, in the sense that it was signed by the testator, but also to adduce evidence which removes such suspicion and to satisfy the court that the testator knew and approved of the contents of the will. "

In the case of Ganpatrao Khandero vs. Pasantrao, it was observed that - "if the person propounding the will takes appreciable benefit under it, that is an element of suspicion, of more or less weight according to the facts of each case, and the burden lies upon him to show that it is the will of the testator and no probate can issue unless the Court is satisfied that the person propounding the will has led sufficient evidence which on a close and careful examination removes that suspicion. "

In the present case it is clear that the respondent who wants to propound the will desires to take under it the entire property left by his father and seeks the total exclusion of the respondent's share and that by itself is an element of suspicion. Another element of suspicion is that in the will it is written that the testator was very much pleased with the respondent, and that he did not want to leave any property for the appellant because he was of bad character, he was convicted very often and the testator apprehended that he would ruin the property. In cross-examination, however, the respondent himself has admitted that his father had instituted a criminal case against him and that criminal case was continuing till his death, i. e. it was not withdrawn upto the time the will was executed. He has further admitted that there was also a civil case going on between him and the testator and under these circumstances, there is a very heavy duty on him to show that the testator was so well pleased with him and so angry with the appellant that he wanted to leave the entire property for the respondent & to deprive the appellant totally of his right. We think that the respondent remained contended with examining only two witnesses Mst. Goran and Gopi Nath because the trial court simply wanted him to prove if the will was executed by his father and the question of removing the suspicions did not arise in the mind of that court. In order to enable us to pronounce proper judgment in this appeal and determine whether Ex. A represents conscious and voluntary act of the testator we think that the scribe Damodar Lal and the other two witnesses Ganga Ram and Shiv Narain should also be examined. The file of the District Judge be sent to him with the directions that he should examine the above named three witnesses in the presence of the parties and return the file to this court with their statement. The process fee and expenses for calling the witnesses will be paid by the respondent. .



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