- (1.) THESE two appeals under sec. 299 of the Indian Succession Act, 1925 read with sec. 96, Code of Civil Procedure, are directed against the order of the District Judge, Jodhpur, in civil miscellaneous case No. 5-A of 1958 granting probate to respondent No. 1 Girdhari Singh. One of the appeals is by Mst. Kamla and the other is by Shivsingh, both of whom had opposed the grant of probate to the respondent No. 1 Girdhari Singh.
(2.) THE facts leading to these appeals may be briefly stated as follows : Mst. Shivi the deceased who will hereinafter be referred to as testatrix, made a will on 1. 3. 1957 at Jodhpur bequeathing all her property to Girdhari Singh respondent No. 1. THE will began with the recital of old age of the testatrix and of uncertainty of her future life and indicated the testatrix's desire to create a will in order to avoid future disputes about her property. Next, she proceeded to state in the will that she had no son but had one daughter who had been missing for years. She further stated that her daughter had given birth to a son named Mohan who had been murdered by his father. Thus, she had no living descendant. THE will then referred to earlier wills. THE recital shows that initially she had executed a will in favour of her grand son Mohan. It was then recited that Mohan and Mohan's father had beaten her and behaved cruely with her and instituted cases against her. Having been annoyed with their behaviour she had cancelled the will made in favour of Mohan and executed another will in favour of her brother Shivnarain. It was further stated that this will was got registered in the office of Sub-Registrar. , Jodhpur. It was then recited that after this will Shivnarain and his wife also commenced behaving improperly with her. Shivnarain refused to render any service to her and look after her. She then started living with Girdhari Singh respondent No. 1, who is the son in law of her sister. THE will then further proceeded to say that Girdhari Singh had been rendering service to her and had been providing food and cloth to her. She expressed her great satisfaction over the treatment she received at Girdhari Singh's hands and this induced her to bequeath the entire property to Girdhari Singh. This will was scribed by Shri Kishan Chandra Gaur, Advocate, and was attested by Manohar Benugopal Besrurkar, Divisional Engineer, Northern Railway Jodhpur, A. S. Sancheti, Divisional Accounts Officer, Northern Railway, Jodhpur, and U. S. Gupta, Assistant Engineer, Northern Railway, Jodhpur. Mst. Shivi according to the respondent Girdhari Singh died on 2. 3. 1957 at Jodhpur. Girdhari Singh filed an application in District Court for granting the probate of the will in his favour mentioning 2nd March, 1957, as the date of the death of Mst. Shivi and claiming probate in his favour. Objections were filed by three persons, namely, (1) Shivsingh son, inlaw of Mst. Shivi. (2) Shivnarain, brother of Mst. Shivi. (3) Mst. Kamla, widow of Mohan, Mst. Shivi's daughter's son. Initially in his written statement the objector Shivsingh admitted the fact of Mst. Shivi having died on 2. 3. 1957. However, Shiv Singh denied that Mst. Shivi had executed any will. He further alleged that Mst. Shivi was not competent to execute a will because the house alleged to have been bequeathed, belonged to him. He further stated that the house in dispute had been constructed with the help of the sale proceeds of a house which had been gifted to him, and had been in his possession. Mst. Kamla in opposing the grant took the following pleas - (1) That she is legitimate heir of Mst. Shivi. (2) That she had been in possession of the house alleged to have been bequeathed since the life time of Mst. Shivi. She further unambiguously stated that Mst. Shivi had willed away or gifted the property to her husband Mohan and rent notes in respect of the portion of the house had been executed in Mohan's name. She admitted that at the time of Mst. Shivi's death she was at the house of Girdhari Singh but stated that she had gone there temporarily in connection with the marriage of Girdhari Singh's daughters. She also stated that Mst. Shivi died between 1st and 2nd March on account of shock caused because of the murder of Mohan. She also denied that Mst. Shivi had executed any will and pleaded that Mst. Shivi was not in a fit state to execute the will. According to her, she was very old, say 70 or 75 years, and was a patient of asthma, and after Mohan's death she could not speak or hear. She definitely stated that the will has been forged and the respondent had succeeded in getting the will attested by officers of the Railway by flattery. Shivnarain opposed the grant of the probate on grounds with which we are not concerned in these appeals. The trial judge framed the following points - (1) Whether Mst. Shivi executed a will on 1. 3. 1967 corresponding to Falgud Badi 30 Smt. 2013 & bequeathed her entire property to Girdhari Singh? (2) Whether Mst. Shivi had already gifted her entire property vide gift deed dated 9. 10. 36 and 3. 10. 43 in favour of the objectors and therefore the will in favour of Girdhari Singh was ineffective? N. P. (3) Relief? At a later stage Shivi Singh presented an application on 23. 7. 1960 to amend the paragraph of the objection relating to the date of death of Mst. Shivi. He contended that when Mst. Shivi died he was in jail and could not have personal knowledge of the date of the death. Later, on receipt of the death certificate from the Municipal Board he came to know that Mst. Shivi died on February 28, 1957. He, therefore, sought permission to amend the earlier reply. The application was allowed and on 27. 5. 1960 an additional issue was framed to the following effect : "whether Mst. Shivi died on 28th February, 1957?'; The applicant led evidence in the first instance and examined himself as AW/3 and produced Manohar Benugopal Basrurkar AW/1 and Ummed Singh AW/2 and Kishanchandra Gaur AW/4. Kishanchandra Gaur AW/4 is an Advocate who prepared a draft of the will and scribed the will under instructions from Mst. Shivi. Manohar Benugopal Basrurkar AW/1 and Ummed Singh AW/2 are the attesting witnesses. They also state to have attested the will at the instance of Mst. Shivi and both of them state that she was in a sound disposing mind. Girdhari Singh is the applicant who also supports his case. Non-applicant Shivsingh examined himself and produced Raghunath N. A. W. /2, Prabhusingh N. A. W. /3 and Ramkaran N. A. W. /4. The non-applicant Shivsingh stated that the will relied upon by the applicant is a forged one and the alleged signatures on Ex. 1 Cl to Dl, C2 to D2 and C to D are not the signatures of Mst. Shivi. He also stated that Mst. Shivi had gifted the entire property in in his favour. The deed of gift. , however. , was stolen from his house. He wanted to lead secondary evidence to prove the gift deed and took sometime and his statement was kept reserved but at a later stage he submitted no application for permission to lead secondary evidence and consequently, the evidence was not allowed. He further deposed that Mst. Shivi actually died on 28. 2. 57 and not on 1. 3. 57 and relied upon Ex. A, a certificate which he obtained from the Jodhpur Municipality. Raghunath N. A. W. 2- Prabhusingh N. A. W. 3 and Ramkaran N. A. W. 4 also stated that Mst. Shivi died on 28. 2. 57. Mst. Kamla examined herself as N. A. W. 1 and examined another Raghunathsingh N. A. W. 2, Narsingh N. A. W. 3, Lakhptram N. A. W. 4 and Bhimraj N. A. W. 5. It may also be mentioned that at Mst. Kamla's instance the photo copies of the signatures of Mst. Shivi on the will and on some admitted documents were sent to Diwan K. S. Puri, hand-writing expert for his opinion, as Mst. Kamla wanted to produce him. Diwan K. S. Puri sent a report which did not support the non-applicant-ujardars. Consequently, at a later stage the non-petitioner did not choose to examine Diwan K. S. Puri. The substance of the evidence of Mst. Kamla, and the witnesses Raghunathsingh and Narsingh in that Mst. Shivi had gone to reside with Girdharisingh a few days before the execution of the will in connection with the marriage ceremony of Girdharisingh's daughter and that she was very old and feeble. That after the murder of Mst. Kamla's husband Mohan, she became unconscious and remained unconscious till 18. 2. 1957 when she died. Lakhpatraj N. A. W. 3 states that in civil suit No. 70 of 1956 between Mohanlal and Mst. Shivi pending in the court of Civil Judge, Jodhpur, Mohanlal and Mst. Shivi entered into a compromise which is Ex. A-3. This compromise is dated 20. 2. 1957. He proved Mst. Shivi's signatures on the compromise. In cross-examination he admitted that although Mst. Shivi was old yet her mental condition was good. Evidence of Bhimraj is of the same nature as that of Lakhpatraj. In rebuttal Girdhari examined himself again and produced AW/6 Pyarenath. The District Judge held that due execution and attestation of the will had been proved. Referring to the ujardars' case regarding suspicious circumstances, the learned Judge observed that "the alleged circumstances regarding the execution of the will do not appear to me to be sufficient to brush aside the statement of the scribe and the attesting witnesses. ''he also held that Mst. Shivi died on 1. 3. 1957 and not on 28. 2. 57 and emphasised in this connection the admissions made by the ujardars in their initial written statements. He discussed at length Ex. A in the light of the copies of the Municipal records Ex. 4 and Ex. 5 and did not place much reliance upon Ex. A and preferred the statements of the applicant's witnesses that Mst. Shivi was alive on 1. 3. 1957 and executed the will. Referring to the use of the word "rajinama" in the end of the will, the learned Judge held that this expression was inadvertently used. On these findings, he allowed the application and granted probate to the applicant and dismissed all the three objections. Shivnarain remained content with the order and filed no appeal. Shivsingh and Mst. Kamla have filed the present appeals. I have heard Mr. Desai for Mst. Kamla and Mr. Narpatsingh for Shivsingh, and Mr. A. L. Chopra for Girdharisingh respondent. The learned counsel for the appellants contended that there are a number of suspicious circumstances surrounding the execution of the will and the respondent has failed to clear the doubts and to satisfy the judicial conscience of the Court. These circumstances were enumerated as follows - (1) That by the will in question Mst. Shivi bequeathed all her property to Girdharisingh who is a distant relation and ignored the claims of Mst. Kamla her grand son's widow, Shivsingh her son-in-law, and Shivnarain, her brother. The will should therefore, be treated as unnatural. (2) That Girdharisingh accompanied Mst. Shivi when she approached Mr. Gaur for the first time to ask him to prepare a will and that subsequently it was Girdharisingh who supplied the stamps. That Mohanlal died sometime after Mst. Shivi instructed Mr. Kishan Chandra Gaur to prepare the will and that the fact stands recited in the will. Consequently, it should be held that Girdhari Singh must have instructed Mr. Gaur to prepare the will. (3) That Mst. Shivi was an old and a feeble lady and had been under the treatment of a Doctor. The Doctor has not been examined. She died soon after the will in any case. This also constitutes a suspicious circumstance. (4) That the will contains incorrect recitals namely, (1) that the relations between Mst. Shivi and Shivnarain were not satisfactory, (2) that Girdharisingh had been maintaining and looking after Mst. Shivi. (5) That in the last four lines of the will the word "rajinama" has been used. There are also certain English words used in the will. It was hinted that Mst. Shivi might have probably signed the will treating it to be a "rajinama". The learned counsel for the respondent in answer contended that the will has been prepared and scribed by an Advocate under instructions from Mst. Shivi and it is attested by responsible officers of the Railway Department. That nothing has been brought out in their cross-examination to discredit them. He also contended that in view of the relations between Shivsingh and Mohanlal with Mst. Shivi she had no soft corner for them. She had executed a will in their favour but had revoked it. Similarly, the fact that she left Shivnarain's house and began to live with Girdharisingh shows that her relations with Sivnarain were also not very happy. In these circumstances, the will could not be treated as unnatural. He contended that it has been proved on record that the will was prepared by Mr. Gaur under instructions from Mst. Shivi and that no suspicious circumstances existed in the facts and the circumstances of the case. At any rate, the respondent has proved the due execution and attestation of the will and dispelled all doubts on account of any circumstances relied upon by the objector. At the outset it will be proper to consider the legal position regarding the mode of proof of the will, the bearing of any alleged circumstances on the nature of burden upon the propounder of the will and the manner in which this burden is to be legally discharged. A number of English and Indian cases came up for consideration in this behalf. The earliest case to be referred is the English case Barry v. Butlin (1 ). In that case Lord Baron Parke laid down two leading rules regarding the proof of wills, in the following passage which has become classic and has been quoted in various cases. "these rules are two : the first, the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a benefit, that is, a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. " Rule No. 1 enunciated in the above case was adopted in Ram Gopal v. Alpna Kunwar (2) where the solemnity of the will was further emphasised in the following words. "a. will, said Lord Buckmaster, is one of the most solemn documents known to the law. By it a dead man entrusts to the living the carrying out of his wishes and as it is impossible that he can be called either to deny his signature or to explain the circumstances in which it was executed it is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law. " Elaborating and extending the scope of the rule two laid down by Baron Parke, Lindley and Davy L. JJ. in Tyrrell vs. Paiton (3) said that "the rule is not confined merely to a case in which the will is prepared by or on instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court. " This principle was consistently upheld in various cases of the Privy Council. It may be mentioned at this stage as pointed out by Jenkins C. J. & Woodrooffe J. in Jarat Kumari Dassi vs. Bisesessur Dutt (4) that the suspicion means "one inherent in the transaction itself, and not the doubt that may arise from a conflict of testimony which becomes apparent on an investigation of the transaction. " In H. Venkatachala Iyengar B. N. Thimmraj-amma and others (5) Gajendragadkar J, as he was then, indicated the nature of the circumstances which may be treated as suspicious surrounding execution of a will. The relevant observations may be usefully quoted here - "the alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt by the appearance of the signature, the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. " "in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. " It must be added that it is really difficult to define precisely and enumerate exhaustively the suspicious circumstances and they must depend necessarily upon the facts of each case. Now, the quantum of proof to be laid by a propounder to remove the will grounded on suspicion was considered in Harmes vs. Hinkson (6) and it was observed as follows - "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth. " Quoting the above observations, Gajendragadkar J. in H. Venkatachala Iyengar vs. B. N. Thimrr)ajamma (5) further added, "it would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect. " From the above review of the cases it is clear that the nature and extent of suspicion to be attached to the circumstances surrounding the execution of will, the quantum of proof to be led by the propounder to prove the due execution and attestation of will and to explain suspicious circumstances are in the very nature of things questions of facts which must be decided on the facts and circumstances of individual cases and the approach of the courts should be pragmatic and not doctrinaire and the attempt should be to ascertain the truth. The quantum of proof that can be expected cannot conform to scientific exactitude or mathematical precision and test to be applied should be the usual test of the satisfaction of the prudent man. ' It will be useful and convenient at this stage to notice also a few cases relied upon by the counsel for the respondent bearing upon - (a) illness of the testator as a ground of suspicion. (b) When will is prepared by an Advocate on instructions given by the testator.
(3.) IN Gordhandas Nathalal Patel vs. Bal Suraj and others (7) a Division Bench of the Bombay High Court consisting of Macleod G. J. and Shah J. observed - "it is well settled now that it need not be proved that a testator, in order that his will may be found good by a court, was in a perfect state of health, or that his mind was so clear as to enable him to give complicated instructions. It is sufficient if it is proved that he was able to give the outlines of the manner in which his estate was to be disposed of, and was able, when the result of the lawyer's efforts was read out to him, to understand that his instructions in the main had been complied with. " Reference may also be made to Sardindu Nath Rai Chaudhuri and others v. Sudhir Chandra Das and others (8 ). In that case the Bench took the view that ' where there is the testimony of a considerable body of trustworthy witnesses of good position and undoubted respectability who were able to observe facts and draw inference therefrom, who acted not in secrecy but with the utmost publicity in the midst of a large assembly and who had no intelligible motive to engage in a conspiracy for setting up a false testamentary instrument, the opinion of medical man as to what should have been the probable state of the testator should not outweigh and prevail over the testimony of such eye-witnesses. " The Privy Council in Judah vs. Isolyne Shrojbashini Bose and another (9) did not permit the illness of the testator to raise an inference about the lack of the testamentary capacity of the testator. Their Lordships observed - "it was all along a common ground that she was unwell when she executed the will but that is a long way from saying that she had no testamentary capacity. " Taking up the case where instructions were given by a testator to an Advocate or solicitor, I need only refer to V. E. De Souza and another vs. R. P. De Souza and others (10 ). In that case the learned Judge quoted the observations of Sir James Hannen in Parker vs. Felgate (11) as follows - "if a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus: 'i gave my solicitor instructions to prepare a will making it a certain disposition of my property; [ have no doubt that he has given effect to my instructions and I accept the document which is put before me as carrying it out. " The learned Judges also referred to the observations of the Privy Council in Perera v. Perara (12) to the effect that "the ruling of Sir James Hennen is good law and good sense". It is unnecessary to multiply authorities as the principles have been sufficiently brought out in the case already cited. 17. I now proceed to examine the merits of the case in the light of the principles discussed above. The first circumstance relied upon by the appellant is that the testator bequeathed the entire property in favour of Girdharisingh who is a distant relation being Mst. Shivi's sister's son-in-law, and she neglected the claim upon her of Shivsingh her son-in-law and Shivnarain, her brother and Mohanlal's widow Mst. Kamla and her child. This circumstance must be attributed in the light of other circumstances. The will recites that initially Mst. Shiva had executed a will in favour of Mohanlal, husband of Mst. Kamla and son of Shivsingh. She, however, revoked it at a later date on account of alleged misbehaviour of Mohanlal and Shivsingh and executed a will in favour of Shivnarain. There is evidence on record that there was criminal and civil litigation between Mohanlal and Mst. Shivi. Mst. Shivi came forward with an allegation of theft against Mohanlal. This was followed by a civil litigation. The civil litigation ended by a compromise dated 20. 2. 58. The terms of the campromise show that Mohanlal agreed to vacate the house and also to see that Shivsingh would also vacate the house and further gave an undertaking that if Shivsingh refuses to vacate, he would aid in securing the vacation of the house. It is also suggested that Shivsingh murdered Mohanlal having been annoyed with his compromise with Mst. Shivi. The relations between Mst, Kamla and Mst. Shivi were also not happy and according to some witnesses they were not on speaking terms. It is also admitted that from sometime before her death Mst. Shivi had been living with Girdharising, although the parties differ as to the precise length of time of Mst. Shivi's residence with Girdharisingh. It may be also mentioned that Mst. Shivi had after revoking the first will executed in favour of Mohanlal made another will in favour of Shivnarain and got it registered but thereafter she left Shivnarain's house and began to live with Girdharisingh and then revoked the will in favour of Shivnarin and executed yet another will in favour of Girdharisingh. Shivnarain although objected to the grant of probate to Girdhari Singh did not join serious controversy in the trial court nor has he filed an appeal challenging the will in favour of Girdharisingh. In these circumstances, it cannot be said that the will made by Mst. Shivi in favour of Girdharisingh is highly unnatural. The second circumstance relied upon is that Girdharisingh must be deemed to have given instructions to Shri Kishanchand Gaur for preparing the will. The learned counsel in this connection emphasised that Girdharisingh accompanied Mst. Shivi to Shri Kishanchand Gaur and at a later date supplied the stamps, and that the will contains recital of certain events which happened during the period between the date When Shri Kishan Chand Gaur was first contacted and the date when the will was executed. I am not prepared on these facts to hold that Girdhari Singh must have given instructions to Shri Kishan Chand Gaur. Shri Kishanchand Gaur has positively stated that he prepared the will under the instructions of Mst. Shivi. Nothing has been brought out in cross examination to discredit his statement. ;