- (1.)THIS is a special appeal under sec. 18 of the Rajasthan High Court Ordinance, 1949 against an order of a learned single Judge of this Court dated 24th July, 1961.
(2.)THE material facts giving rise to this appeal are these: One Smt. Gopi Davi, widow of Master Ganga Chandra Purohit is alleged to have made a will Ex. F. 1 on 5th June, 1956 in favour of Udainarain, who died during the pendency of this appeal and is represented by his sons and widow, the present respondents in this appeal. Smt. Gopi Devi died on 7th June, 1956 leaving behind some movable and immovable properties which she bequeathed to Udai Narain by the aforesaid will. THE appellant Surajnarain is a near relative of Smt. Gopi Devi and at this stage it is the admitted case of the parties that Suraj Narain would have inherited the property of Smt. Gopi Devi in the absence of the alleged will.
Udainarain filed an application on 3rd September, 1957 in the Court of District Judge, Jaipur for grant of probate or letters of administration with the will annexed in respect of the estate of deceased Smt. Gopi Devi on the basis of the alleged will in his favour dated 5-6-1956. The appellant Surajnarain resisted the application submitted by Udainarain for grant of probate, and in the objections filed by Surajnarain he contested the alleged execution of the will by Smt. Gopi Devi and further pleaded that the deceased Smt. Gopi Devi had been lying in an unconscious state since seven days before her death and she never executed the alleged will in a sound disposing mind. In short his plea was that the will produced by Udainarain was a forged one and therefore the application filed by him for grant of probate on the basis of this will should be dismissed. The learned District Judge. , Jaipur held an enquiry into the question whether the will in question was duly executed by Smt. Gopi Devi in favour of the applicant Udai Narain and whether at the time of alleged execution of the will she was of a sound mind. Udainarain preduced five witnesses in support of his case including himself and the appellant examined seven witnesses in rebuttal. The learned District Judge, Jaipur came to the conclusion that the execution of the will was duly proved and that the testatrix was of a sound disposing mind at the time of executing the will. In this view of the matter the learned District Judge allowed the application of Udainarain and ordered that a probate may be granted to him on the will in question.

Aggrieved by the judgment of the learned District Judge, Jaipur City, Surajnarain filed an appeal before this Court which was heard by the learned single Judge, who agreed with the view taken by the trial court and dismissed the appeal filed by Surajnarain with this slight modification that Letters of Administration with the will annexed may be granted to Udainarain instead of a probate. In these circumstances the objector Surajnarain has filed this special appeal.

A preliminary objection was raised by the learned counsel for the respondents that this appeal involves findings of fact which cannot be interfered with in a special appeal. Mr. Agarwal, learned counsel for the appellant, has placed reliance on a Bench decision of this Court in order to meet this preliminary objection. In Messrs. Hagami Lal Ram Prasad vs. Bhuralal (1), it was observed that: - "in the absence of any such limitation in sec. 18 (1) of the Rajasthan High Court Ordinance, it cannot be argued on the analogy of sec. 100 of the Civil Procedure Code that the High Court would not be entitled to examine on appeal the findings of fact arrived at by the Judge against whose judgment, the appeal is directed It would not be inappropriate if in an appeal against the judgment of a single Judge the High Court goes into facts and, where necesary, even interfers with findings based on them. Of course, in doing so, the Court will always keep in view the salutary principle that ordinarily it should not interfere with findings of fact, unless the findings are manifestly erroneous and against the weight of evidence on record. " This was also the view which was adopted in a Full Bench decision of the Calcutta High Court in Upendra Nath Bose vs. Bindeshri Prosad (2), wherein it was held that in a Letters Patent Appeal it would be open to the Court of Appeal to consider all the points that are necessary to be investigated for the determination of the question of correctness of the decree under appeal and that such consideration would not be limited to any particular question of fact or law, although the learned Judges added the rider that on a question of fact they would be extremely slow to interfere where there had been concurrent decision of the court of appeal on such a question. The same view was taken in Kishan Singh vs. Tara (3 ).

We have, therefore, gone through the entire evidence on record with a view to find out whether a case for interference has been made out in this special appeal?

In this state of evidence produced by the applicant Udainarain, we are disposed to hold that no fault can be found with the finding of the learned single Judge that the execution of the will by Smt. Gopi Devi while she was in a sound disposing mind is amply proved.

On the view which we have taken of the evidence produced by the applicant Udainarain it is hardly necessary to discuss at length the evidence of the witnesses produced by the appellant Surajnarain.

Shri Agarwal, learned counsel for the appellant, has argued that the onus lay heavily upon the propounder of the will to show that the testatrix was a free and voluntary agent capable of understanding the nature of the disposition and was a willing party capable of exercising her judgment in the matter of disposition, that she was making, and in this connection he has referred to Surendra Nath Lahiri vs. Jnanendra Nath Lahiri (4) and Surendra Krishna Mandal vs. Kanee Dassee (5 ). Mr. Jain learned counsel for the respondents has not controverted the proposition of law laid down in these two authorities cited by Mr. Agar-wal. But his contention is that the burden of proof which lay on the applicant Udainarain, who propounded the will has been fully discharged and no case has been made out by the appellant for interfering with the concurrent judgments of the learned single Judge and on findings of fact arrived at by them. Suffice it to say, that we have referred to the evidence produced by the parties in some detail in the earlier part of this judgment and are of opinion that no just exception can be taken by the learned single Judge both on the question of the execution of the will as well as on the question of sound disposition of the mind of the testatrix at the time of the execution of the will.

This appeal has therefore no force and is hereby dismissed with costs. .

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