Milap Chandra Jain, J. - (1.) This appeal has been filed under section 299, Indian Succession Act, 1925 (hereinafter to be called 'the Act') against the judgment of the learned District Judge, Merta dated June 29, 1982 by which he has dismissed the petition moved under Section 278 of the Act for the grant of letters of administration with the will left by the deceased Mst. Gulab. The facts of the case giving rise to this appeal maybe summarised thus. On August 28, 1970, the petitioner appellant moved a petition under Section 278 of the Act with the averments that Mst. Gulab widow of Mohan Lal Jain, resident of Nawa, was living with him since long, she died in Nawa on June 13, 1970 leaving him and his brothers Mahavir and Fateh Chand as her collaterals, Fateh Chand and Mahaveer are living separately from him since long, he looked after and served Mst. Gulab, she executed a will on June 7,1970 in his favour in respect of all her properties, the will was scribed by Chaturbhuj AW 2 and has been attested by Bal Chand AW 7, Chouthmal Jain AW 8, Shafi Mohd. AW 4 and Ganesh Kumar AW 3. It has further been averred that she has left a house situated in Nawa City consisting of one room and kitchen of value of Rs. 500/-, an amount of Rs. 2,200/-, payable by Kaluram given to him as loan and a Fixed Deposit of Rs. 3,400/- in the State Bank of Bikaner and Jaipur, Nawa, gold and silver ornaments of about Rs. 900/- and cash of Rs. 419/-. It is also stated that according to her wishes, he has spent Rs. 2,000/- in performing her last rites. Usual notices and proclamation were issued. Shri Nath Raj Singhvi Advocate filed his power for and on behalf of Mahavir Prasad and Fatch Chand. Fatch Chand filed his reply admitting that he was one of her collaterals, she died on June 13, 1970, she was living in the ancestral house, she obtained a Fixed Deposit Receipt from the State Bank of Bikaner and Jaipur, Nawa for Rs. 3,400/- in her and his names. The remaining allegations of the petition were denied. It has further been averred that the relations between the petitioner and Mst. Gulab were strained, there was no question of leaving a will in his favour, it has been forged, it was not disclosed by the petitioner in his statement recorded in the escheat proceeding by the Tehsildar, Nawa, the alleged will has not been attested by any of his local relations or neighbours, the properties left by her have been under- valued, he (non-petitioner) was looking after her and got her treatment done by doctor and vaidhya. After framing necessary issues and recording the evidence of the parties, the learned District Judge held that the will has been forged and has accordingly dismissed the petition by his judgment under challenge. It has been contended by the learned counsel for the appellant that the learned District Judge has not properly appreciated the evidence on record, his judgment is based on surmises and conjectures, he has rejected the appellant's evidence on flimsy and untenable grounds and the appellant offered good reason for not disclosing about the will Ex. I in his statement Ex. A/1 recorded by the Tehsildar, Nawa in the escheat proceeding. He further contended that the learned District Judge has seriously erred in placing reliance upon the testimony of the Hand Writing Expert Sri Krishna Charan who was biased in favour of the respondent who called and paid him. He also contended that the learned District Judge ignored the various admissions made by the opposite party-respondent in his statement. He lastly contended that the will was duly proved and there was no suspicious circumstance attending it. The learned counsel for the respondent duly supported the judgment under appeal. Before enumerating important facts and circumstances appearing on record creating great suspicion in the genuineness of the will, it would be better to quote the following observations of their lordships of the Supreme Court made in Kalyan Singh v. Chhoti, AIR 1990 SC 396 :- "A Will is one of the most solemn document known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would also be open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the Party." It has been observed in Rain Pyari v. Bhagwant, AIR 1990 SC 1742 at page 1743 para 2 , as under : "Mere execution of will, thus, by producing Scribe or attesting witnesses or proving the genuineness of the testator's thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Court's conscience is satisfied not only on execution but about its authenticity." The following facts and circumstances deserve to be noticed here : 1. It is the admitted case of the appellant that escheat proceeding under the Rajasthan Escheat Regulation Act took place before the Tehsildar, Nawa and he gave statements Ex. A/1 before him. The notice, paper no. C46/2, was issued to the petitioner- appellant by the Tehsildar, Nawa in this proceeding. It runs as under : The petitioner admitted in his cross-examination that the will was executed by Mst. Gulab in his presence and he found it in her papers after 4-5 days of her death. Her death took place on June 13,1970. According to him, he was in possession of the will Ex. 1 when he received the said notice dated June 26, 1970 from the Tehsildar, Nawa. He admits that the Tehsildar, Nawa recorded his statement Ex. A/1 on June 26, 1970 and he did not mention about the will Ex. 1 in this statement. His explanation is that no question was put about the will by the Tehsildar and as such he did not disclose about it. It is clearly mentioned in the said notice, quoted above, that he has taken the possession of the movable and immovable properties of Late Gulab after her death and he was required to produce oral and documentary evidence on July 4, 1970 regarding his claim over these properties. It is not in dispute that the will Ex. l was not produced on July 4, 1970. No explanation could be offered by the learned counsel for the appellant as to why it was not produced on this date before the Tehsildar, Nawa. His said explanation for not mentioning about the Will Ex.1 in his statement Ex. A/1 is not at all satisfactory. The basis of his claim over the properties left by Mst. Gulab was the will Ex.l. If the will Ex.1 would have actually existed on the date of his appearance before the Tehsildar, Nawa, he would have definitely filed it and would have disclosed about it in his statement Ex. A/1. The non-filing of the will Ex.l and its conspicuous omission in the statement Ex. A/1 cast a serious doubt about the very existence of the will by that date and so its genuineness.
(2.) Admittedly, on August 1, 1960, Mst. Gulab obtained a Fixed Deposit Receipt for Rs. 3,400/- from the State Bank of Bikaner and Jaipur, Nawa in the joint name of herself and Fateh Chand respondent. If Mst. Gulab would have been living with the appellant and he was looking after her, she would have taken the appellant to the Bank and obtained Fixed Deposit Receipt in the joint name of the appellant instead of the respondent Fateh Chand. Admittedly, she did not take steps for the substitution of the name of the appellant Parasmal in place of the respondent Fateh Chand in the said Fixed Deposit Receipt. No. explanation could be offered by the learned counsel for the appellant as to why the deceased Mst. Gulab did so.
(3.) The appellant admits in his cross-examination that there are about 67 families of the community of the deceased Gulab in the town of Nawa. No, member of her community has attested the will Ex. 1. He further admits that her relation Balchand AW 7 was a resident of Jobner and he was a chance witness. The other witnesses i.e. Ganesh Kumar AW 3 and Shafi Mohd. AW 4, belong to other community. They were also chance witnesses.;