KOCHHAR, J. - (1.) IN this appeal under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 21. 09. 1981, passed by the learned Additional District Judge No. 1, Jaipur City, Jaipur, in Civil Suit No. 42/79 (97/75), the only question raised and which requires decision is as to whether the appellant-plaintiff had been able to prove that the document (Ex. 1) was executed by Sardar Shri Gurudutt Singh (Shri Singh) and was his last will and testament.
(2.) THE brief facts giving rise to the controversy are as under : - Shri Singh was the owner of the property in dispute. He had one son, Laxminarain, who was married to one Gopi Bai. Laxminarain died during the lifetime of Shri Singh, and after the death of her husband, Gopi Bai adopted Gopal Singh, the respondent No. 2, who married the plaintiff-appellant Gattu Devi alias Laxmi Devi, during the lifetime of Shri Singh. Shri Singh died on 19. 12. 1947. Shri Singh's widow, Gulab Bai, his daughter-in-law Gopi Bai, and the defendant- respondent Gopal Singh mortgaged the property in dispute in favour of Bhanwari Devi (the late mother of Ladu Narain, the respon-dent-defendant No. 1) for taking a loan of Rs. 7,999/- which was repayable with interest at the rate of Rs. V- per month. Gulab Bai died after some time of the execution of the mortgage-deed in the year 1952 itself. Gopi Bai died in the year 1964, and as such, Gopal Singh remained the sole natural heir of Shri Singh and inherited his property. Thereafter, on 13. 08. 1964, i. e. , after the death of Gopi Bai, the defendant-respondent Ladu Narain filed a suit for realisation of the mortgage-money. In the suit, a preliminary decree for Rs. 30,722. 26 was passed on 27. 08. 1965, in favour of Ladu Narain, the defendant-respondent No. 1. The said decree was challenged by the defendant-respondent No. 2 by filing an appeal in this Court, and during the pendency of the appeal, since the amount in question had not been repaid by the respondent No. 2, the respondent No. 2, put the decree to execution, and in execution thereof, the property in dispute was put to auction on 23. 01. 1967, and the bid of the respondent No. 1 being the highest, was accepted. The respondent No. 2 raised various objections before the executing court, who, after deciding the objections, confirmed the sale in favour of the respondent Ladu Narain, on 18. 02. 1970. This order as also challenged by the respondent No. 2 by filing an appeal in this Court. The appeal filed against the preliminary decree and also against the order of confirmation of sale, were heard together and were disposed of on 25. 03. 1971, and the decretal amount was reduced from Rs. 30,722. 26 to Rs. 19,878. 36. The order dated 18. 02. 1970, passed by the learned executing court, confirming the sale, was thus set aside, and the learned executing court was directed to decide the objections of the judgment-debtor, on merits. The respondent No. 2 did not even pay the reduced decretal amount, and after considering his objections, the learned executing court, dismissed them vide order dated 20. 03. 1970. The appeal filed by the respondent No. 2 was dismissed by this Court on 27. 10. 1972, and the sale by auction in favour of the respondent No. 1 thus stood confirmed. On 16. 11. 1972, the plaintiff-appellant Gattu Devi filed a suit impleading the respondent Ladu Narain as the defendant No. 1, and her husband as the defendant No. 2, with the allegations that since the defendant No. 2, had indulged in gambling etc, and had not mended his ways inspite of the warnings by Shri Singh, Shri Singh was annoyed with him, and that Shri Singh had great love and affection for the plaintiff-appellant and as such, on 21. 04. 1946, had executed a will (Ex. 1), bequeathing the property in dispute in her favour, and that on the death of Shri Singh on 19. 12. 1947, she became the sole owner in possession of the property in dispute and that neither Gulab Bai, nor Gopi Bai, nor the defendant Gopal Singh acquired any right therein, and as such, the mortgage-deed, executed in favour of the defendant No. l, was of no effect as against the plaintiff-appellant. It was alleged that one Parvati Devi had been working as a maid-servant in the house of Shri Singh and had sisterly relation with Gopi Bai and she had also the confidence of Shri Singh, and that after executing the will (Ex. 1), Shri Singh had handed it over to Parvati Devi. It was further alleged that Parvati Devi died in Samvat 2029 (1972), and on the Deewali-Day after her death, i. e. , on 1. 11. 1972, one Lallulal, a relation of Parvati Devi, who had found the will (Ex. 1) in her papers, had informed the plaintiff about the execution of the will in her favour. It was pleaded that the fact about the execution of the will, was not told to the plaintiff-appellant by either Gulab Bai, or Gopi Bai or by her husband, the defendant No. 2 Gopal Singh, as the said will was against their interest, and she even did not know whether they knew this fact. The plaintiff thus sought a degree for declaration that the decree for realisation of the amount, obtained by the defendant No. 1, against the defendant No. 2, was binding on the plaintiff, as the defendant No. 2 or Gulab Bai or Gopi Bai had no right in the property in dispute and the mortgage-deed executed by them, did not affect the rights of the plaintiff in the property in dispute, and as such, the proceedings regarding the sale of the property, were also ineffective as against the plaintiff, who became the owner of the property, and further prayed that by way of an injunction, the defendant-respondent No. 1 be restrained from taking the possession of the property in dispute in execution of the decree. The suit was contested by the respondent-defendant No. 1 on the ground inter alia, that the Exhibit-1 was not the will, executed by Shri Singh, and was a false document. It was pleaded that after the plaintiffs husband fought the litigation for so many years and ultimately failed, the suit had been filed by the plaintiff at his instant, to delay the execution of the decree, obtained by him, against the plaintiffs husband. Since the plaintiffs application for temporary injunction for restraining the defendant No. 1 from executing the decree during the pendency of the suit, was dismissed and in execution of the decree, the possession thereof was taken by the defendant No. 1 on 24. 02. 1973, the plaintiff amended her plaint, with a view to claim a decree for profession as well. The learned trial court, after framing the necessary issues, recorded the evidence, produced by the parties, and after hearing their learned counsel, dismissed the suit, holding that though the property in dispute was the sole property of Shri Singh, but Exhibit-1 could not be taken as the will, executed by Shri Singh. Feeling aggrieved, the plaintiff-appellant has approached this Court by filing this appeal. I have heard the learned counsel for the parties and have also perused the record of the case. Exhibit-1 is the will propounded by the appellant-plaintiff, and it purport to have been executed by Shri Singh on 21. 05. 1946, and attested on the same date, by Gendilal and Kale Khan witnesses. Both the above-said attesting witnesses of this document, are stated to have died. In order to prove that the will (Ex. 1) is written in the hand of Shri Singh and has been signed by him, the plaintiff-appellant has examined PW 2 Badri Narain, who is the adopted son of Gendilal, attesting witness, and PW 6 Ahmed Ali, besides PW 9 Kishan Chand, the handwriting expert. The will is written in Urdu Language, and the subject-matter thereof appears in portion C to D therein, and Shri Singh is shown to have signed at point 'x' in English as well as in Urdu. The portion A to B after mark 'x' shows that it contains the signatures and endorsement made by Gendilal, one of the attesting witnesses, and in portion E to F, there appears the thumb impression of Kale Khan, and the particulars, thereof have been written in this portion. According to PW 2, Badri Nerain, the portion C to D, containing the subject-matter of the will, is in the hand of Shri Singh, and the same is the position in regard to the writing in the portion E to F, and this document bears the signatures of Shri Singh at point 'x'. In his cross-examination, this witness stated that he had studied English upto the Metric standard, and was otherwise 'munshi-Fazal' in Parsian Language, and had finished his studies in the year 1933. In further cross-examination, he stated that he had never seen Shri Singh writing or signing. He could not even read the contents of the portion C to D or E to F, and even the signatures clearly showing the name of Shri Singh written in English. The cross-examination of this witness shows that he had no occasion to see Shri Singh writing or signing, and it appear that he had appeared in the Court and had identified the signatures and writing of Shri Singh in his examination-in-chief only with a view to oblige the appellant plaintiff.
(3.) PW 6 Ahmed Ali has deposed in his examination-in-chief that he had seen Shri Singh writing and signing on various occasions. He identified Shri Singh's writing in portion C to D in Urdu Language, in Exhibit-1, but, he did not know in whose hand was the writing in portion E to F. In his crossexamination, he stated that he could not read the contents of portion C to D in Exhibit- 1, and that he could not identify the signatures of Shri Singh in English Language. In further cross-examination, he stated that Shri Singh used to writ poems, and he had seen his writing in such poem of any poems only, but, could not give any particulars of any poem, written by Shri Singh Exhibit-1 is in Urdu Language, and is quite legible, and the statement in cross-examination of this witness that he could not read it, shows that he was not conversant with the language itself, and further that he too had appeared in the court, to oblige the appellant-plaintiff, without actually being in a position to identify the signatures and writing of Shri Singh. The other witness, who has deposed in regard to the signatures of Shri Singh on Exhibit-1, is PW 9 Kishan Chand, who examined the specimen signatures, produced by P. W. 7 Bhagwan Dass, the Public Relation Inspector of the Postal Department, Where, Shri Singh is stated to have been having his account. According to Kishan Chand PW 9, the signatures (Ex. 2) which were produced by the Public Relation Inspector, PW. 7 were of the same person, whose signatures appeared on the will (Ex. 1 ). In cross-examination, he admitted that he had not taken the enlarged photographs of signatures of Exhibit-2 and of the disputed signatures, and had not compared them. The respondent No. 1 examined Brij Bhushan Kashyap a handwriting expert. (DW 1) who, on the basis of the enlarged photographs, deposed that the signatures on the will were not of the same person, whose signatures appeared on Exhibit-2. ;