KAPUR, J. - (1.) THIS Civil Misc. Appeal relates to grant of probate to a will executed on 6. 9. 1969 by Ayodhya Bai. The appellants were petitioners before the District Judge, Ajmer and their application for grant of probate of the will was rejected mainly on the ground that several suspicious circumstances surrounded the alleged will. The objector respondents are adopted son of Ayodhya Bai and his natural father, who is also the brother-in-law of deceased Ayodhya Bai.
(2.) THERE were three brothers Bai Kishan, Ram Kishan and Gopi Kishan. Bai Kishan died at the very early age leaving behind his widow Ayodhya. They had no child hence in 1964 Ayodhya Bai adopted Praveen Kumar son of her husband's brother Gopi Kishan. Ayodhya Bai devoted her time by staying at Pushkar, Ajmer and Indore while Praveen Kumar stayed at Ajmer. The appellant No. 1, who is the brother of Ayodhya Bai is living at" Indore and Ayodhya Bai used to stay with him while at Indore. Ayodhya Bai died on 14. 4. 1979 at Pushkar at the age of approximately 60 years. She was living there all alone and none of the relation; were by her side when she died. The last rites were performed by Praveen Kumar and on 13th day a list of articles were prepared which were found in the house of deceased Ayodhya Bai at Pushkar. Besides the articles of every day use in this list Ex. A. l, it is mentioned that there was a clock, spectacles, religious books and other papers. Two silver bangles, three copies of a will dated 27. 03. 1969 and three copies of a will dated 6. 08. 1969. This list has been signed by both the appellants, respondents and a couple of other persons. It is the will dated 6. 08. 1969 for which the appellants applied for grant of probate. In this will Ayodhya Bai has narrated that there has been a partition and one Kothi at Madar-ka-naka, Ajmer and one house Nohra Choti Basti, Pushkar have fall to her share in partition while one shop in Nala Bazar, Ajmer, one Haveli at Ajmer and open plots at Ajmer are her stridhan Dhan property. She has bequeath all this property alongwith her movable and cash to Geeta Press, Gorakhpur and has also appointed two executors of the will who are the appellants Shyam Das and Dhan Singh. It is also written in this will that the property may be given to Geeta Press or it may be used for any other religious or social purposes as may be decided by the executors. The objectors in their reply denied this will and stated that Praveen Kumar was the son of the deceased Ayodhya Bai and was in lawful possession of all the properties. His marriage was also performed by Ayodhya Bai and it was alleged that the petitioner Shyam Das was in invited to the deceased and he had made all attempts to gain dishonest and unfair advantages in the matter. He contested the execution of the will and pleaded that it was not a genuine document. On the pleadings of the parties the following issues were framed : - (i) Whether the will dated 6. 9. 1969 was duly executed by Smt. Ayodhya Bai ? (ii) To what relief. The appellants examined P. W. 1 Shymadas, P. W. 2 Arun Kumar, attesting witnesses and P. W. 3 Ashok Kumar, who is another attesting witness to the will. For the objectors, Praveen Kumar himself appeared in the witness box and examined D. W. 2 Gopi Kishan and D. W. 3 Rameshwar Lal. Before coming to the conclusion which have been arrived by the learned District Judge, Ajmer the evidence in the case may be briefly looked into. On the day the will was executed namely, 6. 9. 1969, Ayodhya Bai was at Indore where she had gone in connection with the marriage of her niece. According to him, Ayodhya Bai had a draft of the will with her and she wanted to execute the same after making certain corrections. Then according to her instructions, Arun Kumar got the will typed and thereafter it was approved by Ayodhya Bai which was readover in presence of all and on her acceptance she signed the will and thereafter Ashok Kumar and Arun Kumar signed it at her request. He has specicifcally stated that they attested her signature in presence of the witness and the witnesses have signed in presence of the testator. P. W. 2 Arun Kumar and P. W. 3 Ashok Kumar have deposed about the execution of the will and attestation by them. The defence witnesses have denied the execution of the will by Ayodhya Bai and also deposed that the appellant Shyamdas did not disclose about the will in question soonafter the death of Ayodhya Bai and also stated that the same has been fabricated at a later stage. They have deposed that there was no will in the papers found at the house of Ayodhya Bai but Shyam Dass had taken three copies of the will from Arun Kumar and he has forged them to enter in the list on the ground that decision about the same would be given by the court but they should be entered into the list prepared at that time. Praveen Kumar has stated that he was not prepared to sign the list Ex. A. l as the copies of the will had been also mentioned in it but at the instance of his brother and uncle he signed the list. Praveen Kumar got married in March, 1969 and after his marriage he never stayed at Pushkar with Ayodhya Bai. Praveen Kumar himself has not stated anything about the partition between his mother and him. D. W. 2 Gopi Kishan had stated that no will was found in the papers in the house of Ayodhya Bai at Pushkar but the will had been brought by Shyam Dass and at his instance this was entered into the list Ex. A. l. Both the witnesses have stated that Ayodhya Bai used to sign only as 'ayodhya' and did not aid 'bai' after her name. However, no letter written by her or any other document executed by her have been produced to establish this fact. The witnesses have also stated that Ayodhya Bai knew only to sign her name and could barely read. All of her working was looked after by D. W. 3 Rameshwar Lal. D. W. 3 Rameshwar Lal did not give any explanation about the recovery of three copies of will entered into the list Ex. A. l but he was asked about it in cross- examination and he has deposed that he signed the papers because no will was found in the house but Shyam Dass brought the will from his possession and in order to avoid the quarrel Uttam Chand and this witness decided to enter it in the list and that whatever dispute would be there between the parties it shall be settled in the court.
(3.) THE learned District Judge, Ajmer rejected the evidence of the appellants mainly on the suspicious circumstances surrounding the will. First of all it was signed by 'ayodhya Bai' and not 'ayodhya', no evidence about the partition prior to the execution of will, why property has been bequeathed to the Geeta Press, Gorakhpur when it could be given to any one in Pushkar itself, she was not literate person so as to approve the draft of the will, why young persons were made attesting witnesses to the will and why the will was not produced before 13th day after the death of Ayodhya Bai etc.- The learned counsel for the appellants has contended that the will dated 6. 09. 1969 was executed by Ayodhya Bai at Indore in the presence of two witnesses who attested the same in her presence and at her instance and the evidence in this respect is prefect hence, the execution of the will stands proved and it cannot be found to be suspicious only because the benefitiory is Geeta Press, Gorakhpur or because the original will was produced at a later date or it bears the signatures 'ayodhya Bai' and not 'ayodhya'. It is argued that even the testator can put his signature or thumb impression or any mark in order to show that the will has been executed by her, and if the signatures are proved as of the testator it would not make any difference as to actually what has been written by her in the signatures. According to him, when there is evidence that Ayodhya Bai signed the will then it would not make any difference that she has signed as 'ayodhya Bai'. It is contended that 5-6 copies of the will were typed and the original will was kept by the appellant Shyam Das while some copies of the same were taken by Ayodhya Bai with her and these were not the copies which were found in her belongings at Pushkar while the original was brought by appellant Shyam Dass from Indore lateron. According to him, the copies recovered from the Pushkar house of Ayodhya were entered into the list Ex. A. l and it is wrong to say that this entry was made without actually these documents being recovered from the house. Ex. A. 2 mentions from where each article has been recovered such as from the big box, from the small box, wide box etc. In the list it is mentioned that three copies of the will dated 6. 1. 69 were found in the wide box. Three copies of another will dated 27. 03. 1969 were also found at the same place. Hence, it is argued that soonafter the death the appellant Shyam Dass could not produce the original will as it was at Indore but the copies which were lying with Ayodhya were recovered from her house and the late production of the original will did not make the case of the appellants false. ;