- (1.) Both the cases are connected and they arise out of the same judgment. The appellants in RSA No. 2037 of 1980 are the contesting defendants in the suit. The appellant in RSA No. 1791 of 1980 is the plaintiff in the suit for recovery of possession. The suit was in respect of the estate of Hiri son of Bhondu. The aforesaid Bhondu had a brother by name Makhan. Makhan's son was Ram Het. Ram Het had three sons. The plaintiff was the surviving son of Ram Het. The suit was filed on the basis that on Hiri's death issueless and in unmarried status, the plaintiff was the nearest heir. The defendants were strangers to the family but claimed the property as having been bequeathed under a Will said to have been executed by Hiri on 23.10.1967. It was claimed by the defendant that on the death of Hiri on 10.03.1976, the property had come to them as beneficiaries under the Will and the plaintiff cannot succeed to the estate. At the time of trial, the Court found that the properties were ancestral and Hiri could not have validly bequeathed the property by means of a Will. The trial Court found that the Will had been established through the witnesses DW-2, DW-3 and through the Scribe DW-4 but he found the Will to be at par with a gift and if the gift of joint family property was void in law, so too was the will bequeathed in respect of joint family property impermissible and void. The trial Court, however, still rejected the plaintiffs claim for the property on the ground that the property was in the hands of the 5th defendant, who was the father of the beneficiaries under the Will and the Court found that the property could not have been recovered from a tenant without putting an end to the tenancy.
(2.) In the appeal filed to the Appellate Court, the whole issue of the Will relating to execution and attestation itself was not reopened by the Appellate Court but he took up the examination only for consideration of the validity of the Will on the grounds that (i) the property was ancestral and therefore, could not have been the subject to bequest; (ii) the reasons set out for making the bequest namely of the support which the beneficiaries were said to be rendering to the executant and not been proved; (iii) they were not themselves relatives; (iv) the reasons for discarding the relatives namely the plaintiffs were not set out in the Will. For all these reasons, the Court found that the plaintiff cannot be non-suited only on the ground that there had been a Will executed in favour of the defendants. He affirmed again the finding of the trial Court that relief of recovery of possession could not have been granted to the plaintiff in view of the fact that the property was in the hands of the tenant.
(3.) In the second appeal before this Court, the points for consideration are whether the Will could be said to be not true to deny to the defendant a right to retain the property as beneficiaries; and the validity of bequest in respect of ancestral property. The trial Court has considered the evidence of DW-2 and DW-3 who had spoken about all facts of execution of the Will. DW-4 who was a professional scribe, claimed that he did not know the executant but still the evidence was found on record by the trial Court as sufficient to hold that the Will had been duly executed and attested as per law. However, on a legal inference made on the fact of the Will being in respect of the ancestral property, the Court held that it was not valid. The appellate Court did not upset the findings relating to the execution of the Will or the attestation. On the other hand, it referred to the 4 features, which I have already outlined above. A Will that defies from the normal line of succession would require a proper proof since the instrument speaks from the grave and it could never be supported by the executant himself, for, by the very nature of things the executant could never be alive when a person propounds the same. That the burden of proof is clearly on the defendant cannot be in any way doubted. But a Will cannot be discredited only by the fact that it makes a deviation from the normal line of succession. The Will itself is intended to deviate from such succession, for if the property were to go only by the rules of succession, there is no need for execution of a will itself. Again there could be very special circumstances as to why a person chooses to make a deviation from the choice of relatives to make strangers to the family as beneficiaries. It is essentially one of question of fact and if there was evidence to the effect that the beneficiaries were actually living with the deceased and they were looking after the lands till the executant died, that circumstances itself ought to be found as sufficient. There was a sure opportunity for the plaintiff to elicit appropriate answers from the witnesses as to how the deceased could never have intended to disinherit the plaintiff. In fact nothing substantial was brought out in the cross-examination of the witnesses and the counsel himself admits that the cross-examination could not make a dent on the version of the witnesses DW-1 to DW-4. I cannot again take an argument of the learned counsel, Sh. Amit Jain that the witnesses were not residents of the same village. One of them was a Nambardar and therefore, a respectables persons though not of the same village. There had been also nothing seriously doubted about the identity of the person to point out to the Scribe's evidence alone as one, who had not known the deceased earlier. When DW-2 and DW-3 as spoken about their acquaintance and knowledge of the deceased and his voluntary execution in sound disposing state of mind it ought to have therefore concluded the issue as regards the genuineness and the attestation as regards the will. In this case again, it must be noticed that the Will had been executed on 23.10.1967 and the executant had died nearly nine year later. There was no other instrument, which was propounded by any one else to take away the effect of the Will that had been made in the year 1976. When the trial Court also found that there was adequate evidence to support the execution and attestation. I will find no reason to take a different view to hold that the Will was not proved for the only reason that the witnesses did not belong to the same village or that the beneficiaries were strangers to the family. I will, uphold therefore the valid execution and attestation.;