I. S. ISRANI, J. - (1.) THIS appeal under Section 384 of Indian Succession Act 1925, read with Section 96 C. P. C. and Order 41 Rule 1 C. P. C. has been filed against the judgment and decree of learned District Judge, Jaipur City, dated 28th March, 1979, in Civil Miscellaneous Case No. 18 of 1976, by which the petition of the appellant for grant of probate of the Will of deceased Virendra Singh was dismissed.
(2.) THE appellant petitioner filed petition for grant of probate regarding Will of Virendra Singh his elder brother. Testator expired in Jaipur on June 12, 1974. According to the averments made in the petition, deceased executed a Will in favour of the petitioner on May 25, 1974, which is said to be his last Will and the petitioner is the sole legatee named therein. THE deceased-testa tor, at the time of his death left movable and immovable properties detailed in Annexure A enclosed with the petition, situated in Jaipur and That. THE properties include a three storeyed Haveli in Jaipur and some agricultural land in village That A caveat was filed by widow and children of the testator. THE material averments made in the petition were denied by the caveaters in their written objections. According to the caveaters, the Will propounded by the petitioner is not a genuine or real Will of deceased testator, and is purely a fabricated and forged document. After recording evidence of both the parties and hearing arguments the trial court dismissed the application of petitioner and held that the Will Ex. 1 does not appear to be real and genuine document and was not executed by the testator Virendra Singh. The contention of learned counsel Mrs. Shashi Jain appearing for the appellant is that the Will Ex. 1 is a genuine document and the trial court has grossely erred in disbelieving the same. It is stated that the testator was exclusive owner of the property and had full authority to give away the property by the Will to whomever he thought fit and the Will was executed in favour of the appellant who is his real younger brother. It is pointed out that the Will is duly attested by P. W. 2 Manhar Kunwar and Ishwar Chand as is requirement of the law. Manhar Kunwar P. W. 2 has been examined in court in support of the will, while P. W. 3 Lalchand, Advocate, who is scribe of the Will has also been produced in Court. It is, therefore, contended that from evidence of these two witnesses, the Will is fully proved and there is no cause of any suspicion regarding the same. It is also contended that the testator has given out reasons for not giving the property to his wife as he suspected her character and therefore, was not keen to give any of the property mentioned in the Will but he gave to her sufficient agricultural land earlier, which he thought was enough to look after needs of his wife and children, It is also pointed out that one of the daughters of deceased testator was got married two days after his death by Amba Kunwar D. W. 1 wife of the testator, which clearly shows that the testator had no good relations with his wife, otherwise she could not have got her daughter married after two days of death of her husband. It is also pointed out that the caveaters have produced certain diaries, which are written in the hand of the testator. It is common ground that the testator wrote daily diary, in which he recorded events of the day. The learned counsel contends that merely because there is no mention of the Will in the diaries, it cannot be held that the Will is a forged document. It has been explained by P. W. 1 Mahendra Singh and other witnesses that no mention of Will was made in the diary nor the same was got registered because the testator desired that the execution of Will may be kept as a secret so that his wife does not raise any hue and cry. It is, therefore, contended that no adverse influence of any suspicion can be drawn regarding genuineness of the Will on these grounds. It is also pointed out that merely because hand-writing expert D. W. 4 Krishan Charan has opined that the signature on the Will is not that of the testator, which he compared with admitted speciman signatures of testator, it cannot be held that the Will is not genuine because opinion of an hand-writing expert is not conclusive proof of the matter, on which such opinion is given. It is further contended by the learned counsel that the trial court has seriously erred in holding that the execution of Will is also suspicious because the witnesses had come from distance of one or two miles because scribe Lal Chand Advocate, who drafted the Will had come from out-side Jaipur, to do this job. It is also submitted that from the evidence of various witnesses, it is fully proved that the deceased testator was in sound health and full possession of state of mind and knew what Will he was executing and therefore, there can be no ground for suspicion regarding the Will, merely because, he was not well since some time. It is also pointed out that no reliance can be placed on statement of D. W. 1 Amba Kunwar, wife of the deceased testator, who in her pleadings has stated that the testator sufferred from disease of leprosy but when her statement was recorded in Court, she has denied the same and has stated that she had not instructed to mention in the pleadings that the testator was suffering from disease of leprosy. Shri B. P. Agrawal learned counsel appearing for the respondents asserts that the trial court has rightly rejected the Will and held it to be not a genuine document. A very important fact that can not be ignored according to the counsel is that the propounder of the Will P. W. 1 Mahendra Singh was himself present in the house at the time when the Will was executed. This itself causes great suspicion on the genuineness of the document. Allegations against the character of wife of the testator D W. 1 Amba Kunwar have been made in the Will but no evidence whatsoever had been produced to prove the same. It is contended that admittedly the testator and his wife and children lived together in the same house till he was alive. It is natural to expect that if the husband has any doubt in character of his wife, it is expected that he may not like to allow his wife to live alongwith him in the same house and also look afier the children. It is pointed out that not a single witness of locality or any relations have been produced to prove this allegation and none of the witnesses produced on behalf of the appellant supported this allegation. Apart from this it is also alleged by the appellant that there were quarrels between the testator and his wife and on many occasions people from neighbourhood were also present on some of such occasions. It is also pointed out that not a single witness has been produced from the neighbourhood or from any-where-else to prove even this allegation. It is further submitted that ail the bills of the medicines were with wife of the testator which goes to show that the allegation of the appellant that she did not serve her husband during his illness for a period of few years before he died is also incorrect. If it were so, there could not be any bills of medicines with wife of the testator, ft is also asserted that the deceased wrote daily diaries in which even minor events of the day were recorded by him in his own hand. All these diaries were in possession of the wife of the testator, who has produced them in the Court. It is, therefore, contended that there was no reason why testator should not have mentioned this important event in the diary which he wrote regularly. It is contended that the assertion of the appellant that the registration of the Will was also not done to keep the execution of Will a secret; cannot be taken to-be correct. On the contrary when it was clearly known to the testator that a Will as is said to have been executed by him is bound to create quarrels between wife of the testator and appellant Mahendra Singh, it was natural to have expected him to get the same registered to avoid any litigation and complications after his death. The learned counsel has also pointed out some contradictions between various statements of the witnesses of appellant regarding execution of Will etc. It is asserted by the learned counsel for the respondent that as per Hindu religion and custom when the marriage of daughters is fixed-up and certain ceremonies are performed, the matriage cannot be postponed, even if the death of any family members occurs on the day of marriage itself. It is pointed out that it is common ground that the marriage had been arranged by the deceased testator himself during his life time and he himself had made all the arrangements for the same. D. W. 3 Heti Singh has stated in his statement in Court that the testator had asked him to perform duties of 'kanyadan' in event of his death and had further instructed that appellant Mahendra should not be permitted to perform this duty. It is, therefore, submitted that evidently deceased testator had no cordial relations with appellant and it cannot be expected that the testator could have executed the Will and given away all his property to the appellant at the cost of his wife and minor children. It is also pointed out that the respondents have produced D. W. 2 Manmohan and D. W. 3 Hetisingh, who are fully conversent with the signatures and hand-writing of the testator and have deposed in Court that the signature on Will Ex. 1 is not that of the testator. Apart from this even though the respondents had denied the genuineness of the Will, the appellant did not think it proper to get the signatures on the Will examined by any hand-writing expert. However, it is respondents who got the same examined from D. W. 4 Krishan Charan an hand-writing expert who has given his opinion in detail and has opined that the signature on Ex. 1 Will, is not genuine and therefore, the trial court rightly rejected the Will and held it to be not a genuine document. It is further contended that even if no evidence was produced by the respondents, the burden of proving the genuineness of the Will lies squarely on the shoulders of the propounder of the Will, the appellant Mahendra Singh. It is submitted that because there is a minor contradiction between the statement of D. W. 1 Amba Kunwar regarding the testator not having disease of leprosy and the pleadings in which it has been stated that deceased testator was suffering from disease of leprosy, it cannot be held that the alleged Will is a genuine document. It is also asserted that only on one contradiction, the whole statement of D. W. 1 Amba Kunwar, wife of the testator cannot be ignored. I have heard learned both the counsel and gone through the judgment of the trial court and also the statement of the witnesses and documents on the record including Ex. 1 the Will, said to have been executed by the deceased testator. P. W. 1 Mahendra Singh the propounder of the Will in his statement has stated that the deceased testator was suffering from disease leprosy reaction since about three years before his death, therefore, his wife and children did not look after him and even refused to enter the room of the deceased testator. He further states that the deceased used to go to School and even till eight days before his death, he continued to go to his job and his physical and mental condition was quite good to understand the execution of the Will. His brother had no litigation for which P. W. 3 Lalchand Advocate, the scribe of the Will may have appeared. Lalchand lived in Beawer. Lalchand had come on May 25, 1974, on account of his cases, but he does not give the details of these cases or the Courts in which they were pending. He further says that when the Will was executed wife and children of the testator were in the house. The testator was annoyed with children also as his children were keen to make him eat some thing. The deceased told him that Manhar Kunwar P. W. 2, the one of the attesting witness of the Will was to come as he had gone in the morning to her School to ask her about this. Lalchand had not brought a draft of the Will but he wrote as was dictated by deceased testator. Twenty bighas land had been already given by the testator to his wife which is situated in a village in Kishan-garh. He is not in a position to explain why the deceased did not make any provision for studies or marriage etc. of the minor children. He further says that all had signed with the same pen with which the Will was written. He also says that the testator may have signed with his own pen. The scribe P. W. 3 Lalchand Advocate suggested to the deceased to get the Will registered. He does not know why the Will was not written by the testator himself in his hand who knew Hindi quite Well. He admits that the deceased testator regularly wrote daily diary since several years. He also states that at the time of disputes between the deceased testator and his wife on several occasions people from neighbourhood had collected, including Nar Singh Lal, his wife and shop-keepers etc. This had happened in the year 1973. The pie-paper on which the Will was written was in the file of Lalchand Advocate. He says that all the medical bills must be with the wife of the testator and he does not have any of the bills. The testator had got one of his daughters married earlier, and had fixed up and fully arranged for the marriage of another daughter which took place two days after his death. He admits that he had not seen Amba Kunwar wife of the deceased testator to have illicit relations with any person. He further says that he lived separately and since three years before his death the deceased testator messed with him. P. W. 2 Manhar Kunwar one of the attesting witness in her statement has stated that Mahendra Singh P. W. 1 and deceased testator lived together which is contrary to what P. W. 1 has himself stated. She further states in cross-examination that deceased testator had himself given the pie-paper to Lalchand Advocate for writing the Will, which is also contrary to what P. W. 1 states. The witness further says that she has been able to remember the date May 25, 1974, because the death of the testator took place on June 12, 1974. However, she is not able to give any other dates even regarding her work in School, where she serves as a teacher. She further states that the deceased testator sufferred from infectious disease but she also stated that he used to go to school also. This rather seems unnatural as a person who is suffering from infectious disease, cannot be permitted or will not go to school to teach the students. She also states that it is Mahendra Singh and his wife, who used to look after the testator. She further states that she and deceased Virendra Singh signed with the same pen with which the Will was written. She was shown the original Will and after seeing she admitted that the signature of deceased Virendra Singh was in a different ink. She further states that she had been suggesting to testator since about l-1/2 or 2 years to get his Will registered but the deceased did not agree and said that he does not want to make any propoganda about his Will. She also admits that the deceased wrote his diary regularly. P. W. 3 Lalchand Advocate is the scribe of the Will. In cross-examination, he states that on the day the Will was written by him, he came to Jaipur, in connection with five to six cases but could not give name of any case nor the court in which the same were pending. He states that deceased Virendra Singh had come to him on 25th morning at about 11 a. am. at Dhoola House, where he was staying and therefore, he went to the deceased at about 12 12. 30 p. m. This also sounds rather strange that an Advocate, who have five or six cases pending in a Court on that day, for which he has come all the way from Beawer to attend the Court, was sitting in his house at 11 a. m. and came to write the Will at the house of deceased at 12. p. m. He further states that fee had suggested the deceased Virendra Singh to get the Will registered but he refused to do so as be thought his wife may cause any harm to his brother Mahendra Singh, the propounder of the Will. This is contrary to assertion of P. W. 1. who stated that this witness had not suggested the deceased to get the Will registered. He admits that he did not appear in any case on behalf of Virendra [singh in any court of law. He has explained the difference in the ink, the writing of the Will by stating that the flow of the ink in the pen became slow which he had corrected afterwards. He admits that propounder of the Will Mahendra Singh was present at the time of writing of Will, which after writing was given to him. He further states that Virendra Singh had not told him that he was annoyed with his children and had said that he had already given enough to his wife. He does not know how many of the children of the deceased were unmarried. P. W.-l has stated that deceased Virendra Singh and this witness P. W. 3 Lalchand were friends since last about 15 years. However, inspite of this the witness is not in a position to know which of the children of the deceased were unmarried. D W. 1 Amba Kunwar wife of the testator has stated that the propounder of the Will Mahendra Singh did not participate in the marriage of the daughter of deceased Virendra Singh which took place two days after his death She further state? that she has brought all the diaries written by deceased testator and produced six relevant diaries in Court It is common ground that there is no mention regarding execution of the Will in any diaries written by the deceased testator. When small events of each day are recorded in the diary, there is no reason why the testator should not have recorded this very important event by which he was, divesting his wife and children of all the property and giving the same to his brother. Evidently the brother Mahendra Singh was not on good terms with wife and children of the deceased as he did not even attend the. marriage of daughter of deceased which took place only two days after his death. When a person gives-away all his property to some-one-else in the family ignoring his own wife and children, it is expected as a prudent man he will take all precautions to see that no disputes arise on account of said Will after his death. For ensuring this, one of the most important step was to get the Will registered which, in any case will not make the Will known to public in general or even to his family members because in this particular case the deceased was in a position to move about and even attended the school where he was teaching. D. W. 1 Amba Kunwar, wife of the deceased has further stated that on May 25, 1974, the day on which the said Will Ex. 1 is said to have been executed, she was in the house and no Will was executed in her house on that day. She has further stated that she can recognize the writing and signature of her deceased husband and states that the signature on Will Ex. 1 is not that of her husband Virendra Singh. Ex. A 1 application addressed to principal of his school written and signed by deceased Virendra Singh has been produced. Ex. A 2 is acquaintance roll of permanent establishment, in which the deceased has signed on stamp at place A-B-C-B, while drawing his salary from the school. She has identified these signatures and admitted these signatures to be that of her deceased husband. She states that P. W. 1 Mahendra Singh brother of her deceased husband lived in the same house but did not work and her husband has no special affection or love for him. Regarding marriage of her daughter two days after the death of her husband, she stated in last few days the condition of her husband had worstened and he had told her that Heti Singh may be asked to perform the ceremony of 'kanyadan' at the time of marriage if he is not alive but had specifically told her that P. W. 1 Mahendra Singh should not be permitted to do so. When enquired about the illness from which deceased husband was suffering she denied that he was suffering from leprosy. However when confronted with the pleadings in which it was stated that deceased was suffering from leprosy, she stated that she had not given any such instructions for mentioning this in the pleadings. In any case this minor contradiction does not cause any suspicion on the statement of this witness as a whole statement inspires confidence regarding the matters stated by her and she has otherwise with stood the cross-examination quite well. She has denied that she did not have good relations with her husband and has asserted that she and children looked after deceased Virendra Singh till he was alive. She has further stated that when her husband gave her 24 bighas of land in village Kishangarh, at that time he had given land of Babahi and tube-well to Mahendra Singh also which he had sold away afterwards. She has denied that she had any illicit relations with any person. D. W. 2 Manmohan is a person who had learnt music from deceased Virendra Singh but thereafter also continued to visit him regularly. He has stated that deceased Virendra Singh did not suffer from leprosy but had skin eruptions which he used to bring to normal by pressure. He further states that during his illness and till his death he used to visit him and found his wife to be attending and looking after him. He also states that deceased Virendra Singh had good relations with his wife and he never saw any dispute arising between them. Virendra Singh also wrote place and set alongwith him at the time of writing, so he is acquainted with his writing. He has stated that the signature on Ex. P. 1 is not that of deceased Virendra Singh but the signatures on Ex. A. 1 or A 2 are that of deceased Virendra Singh. He states in cross-examination that he has brought a letter written to him by Virendra Singh in Court. He has further explained in cross-examination how Virendra Singh wrote while signing, on account of which he feels that the signature on Will Ex. 1 is not that of Virendra Singh. It is strange that from this witness a question was put in cross-examination that he had illicit relations with wife of Virendra Singh in reply to which he said that he treated her as his mother. It may be stated that when such important question as unchastity of wife of a deceased person is treated in this slifshod manner and even witnesses are asked to be having illicit relations with wife of deceased Virendra Singh, it shows careless and irresponsible manner in which this allegation has been made. D. W. 3 Heti Singh is the person, who performed the duty of 'kanyadan' at the time of marriage of daughter of Virendra Singh, which took place two days after his death. He has stated that deceased was attending school till he was alive. He has denied the allegation that on account of infectious disease of leprosy, deceased used to give out foul smell from his body on account of which his wife and children did not go to serve him. This position seems to be palpably false because if it were so the deceased could not have attended the school almost till his end came, which is admitted by both the parties. He has also denied that the wife of Virendra Singh had 'illicit relations with one Narendra Singh. He has expressed his ignorance regarding any Will that may have been executed by deceased Virendra Singh. The learned counsel for the appellant has placed reliance on Ishwardeo Narain Singh v. Kamta Devi (1), wherein it has been laid down by the Apex Court that the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution ,the testator had sound disposing mind, has to be considered by the Court. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.
(3.) IN the case of Nand Kumar Singh v Chander Kishore Saran (2), it was held that 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. In the case of Sita Ram v. R. D. Gupta (3), it was observed that a Will neither unnatural nor conferring any undue benefits on beneficiary, his participation in execution of will cannot throw doubt on its genuineness. It may be stated that in such cases each case has to be decided on its own facts and circumstances and merits. The broad principles laid down in the case of Ishwardeo Narain Singh (supra) will of course be applicable to every case In the case of Sita Ram (supra) it has been rightly observed that when the Will is neither unnatural nor it confers any undue benefits on propounder of Will, his participation in execution of the Will should not throw any doubt on its genuineness. However, in the present case the facts are absolutely different. Here is a propounder, who is only sole beneficiary and the whole property (movable and immovable) have been given to the propounder of the Will Mahendra Singh, ignoring the wife and even minor children of the testator in toto. It, therefore, cannot be said that this is not an unnatural act of the testator, who deliberately ignored his own family members and gave away every thing to the propounder, his brother. Mahendra Singh, as has come in evidence, was himself present at the time Will is said to have been written and the Will was immediately handed-over to him by the testator. It is also unnatural that when such a controversial Will was executed, the testator did not deem it proper to get the same registered, even though Lalchand Advocate, the scribe of the Will suggested to the testator to get the Will registered. Several contradictions in the evidence have been pointed out above, which I do not find necessary to repeat again. Learned counsel for the respondent has placed reliance on H. Venkata-chala Iyengar v B. N. Thimmajamma (4 ). in which the Apex Court has laid down thai onus of proof of the Will squarely lies on the propounder of the Will regarding nature and appreciation of the evidence and duty of the Court. With this regard has bee stated that unlike other documents the Will speaks from the death the testator, and so, when it is propounded or produced before a Court the testator who has already-departed the world cannot say whether it is his Will or no This, therefore, introduces an element of solemnity in the whole affair When propounder himself takes prominent part in the execution of the Will which confers substantial benefit on him, 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. ;