Appeal from Original Decree No. 127 of 1974 Against the judgment and decree, dated14.12.1973, passed by Sri M.S. Verma, Ist Additional District Judge, Saran at Chapra in the Probate Suit No. 19 of 1967/15 of 1969. SARJUG SINGH, son of Nirekhan Singh, deceased, resident of village- Pojhi Bujrug, Pergana- Goa, P.S- Marhowrah, District- Saran-----Appellant Versus 1. Lachhmi Narain Singh, son of Inner Singh, deceased 2. Ramjatan Singh, son of Baramhdeo Singh, deceased R-4(a) Sheo Balak R-4(b) Ram Pukar Singh, both sons of deceased Ram Kripal Singh R-5(b) Sanehi Devi, D/o deceased Sionandan Singh R-5(c) Gautam Devi, D/o deceased Sionandan Singh R-6 Rameshrey Rai, son of Chirkut Rai R-7(a) Rashid Mian, son of deceased Julfikar Mian R-7(b) Sahid Mian, son of deceased Julfikar Mian R-7(c) Rafik Mian, son of deceased Julfikar Mian R-7(d) Suleman Mian, son of deceased Julfikar Mian R-8(a) Ram Babu Manjhi R-8(b) Anendra Manjhi, both grand sons of deceased R-9 Deo Saran Singh, son of Sakhi Chand Singh All of village- Pojhi, Police Station- Marhowrah, District- Saran ----- Respondents For the Appellants :- Mr. Mathura Ray, Mr. Prabhat Kumar (Ray), Advocates For the Respondents:- Mr. Rameshwar Nath Rai, Senior Advocate Mr. Ali Muzaffar, Prabhakar Nath Rai, Advocates P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. This appeal arises out of a probate case. By the impugned judgment and decree, the Trial Court has held that the applicant is not entitled to get the will probated and as such the application has been rejected on the ground that the will had been cancelled by the testator. 2. The short facts are that late 2 Rajendra Singh had executed a will on 14.9.1960 in favour of the applicant Sarjug Singh. The executant died on 21.8.1963 leaving behind Sarjug Singh applicant, her sister Dular Kuer wife of Thakur Prasad Singh since deceased and a nephew Yugal Kishore Singh also son of Thakur Prasad Singh. The applicant was resident of village Pojhi Bujrug within the district of Saran. The applicant‟s case is that the testator‟s wife died along ago. 3. An objection was filed on behalf of one Most. Shyam Sundar Kuer @ Raj Bansi Kuer and Khedaran Kuer wife of Jamadar Singh. The Opposite Party No. 1 namely Raj Bansi Kuer @ Shyam Sundar Kuer claimed that she was the second wife and widow of late Rajendra Singh and opposite party no. 2 in the Court below claimed that she is the widow of Jamadar Singh who was the son of late Jag Jitan Singh (brother of Rajendra Singh). It is the objector‟s case that the will was revoked and cancelled by a registered deed dated 2.2.1963 and that the Raj Banshi Kuer was in possession of all the assets belonging to late Rajendra Singh. It is also her case that she has jointly sold along with 3 Khedaran Kuer several plots of lands. Some of the purchasers also appeared in the Court below to object to the grant of letters of administration. The purchasers have supported the case of the objectors in toto. 4. The execution of the will has not been challenged except to say that it was obtained under coercion and pressure whereas the applicant has challenged the revocation of the will dated 2.2.1963 on the ground that the testator was not in a position to execute the cancellation deed. For the purpose of substantiating the case, the applicant has led evidence and referred to the circumstances under which the cancellation was made. Therefore, the decision of this case is based on the evidence led by the parties, with respect to deed cancelling the will Exhibit C. 5. The Trial Court has come to a finding that the deed of cancellation was a genuine document for the reason that there is no evidence to show that Rajendra Singh was unable to execute a deed at the time of cancellation of the will. The Trial Court has also held on the basis of certain sale deeds that Shyam Sunder 4 Kuer was dealing with the lands, by virtue of being heir of Rajendra Singh, which would show that the will under probate had been cancelled. 6. In order to grant letter of administration in favour of the applicant, the issue which arise in this case are (1) whether the testator Rajendra Singh physically and mentally well enough to execute the deed cancelling the will. For this purpose the Court will also have to examine whether the thumb impression of Rajendra Singh on the document dated 2.2.1963 is genuine. 7. The applicants have examined several witnesses to prove their case. A.W. 1 has stated that late Rajendra Singh had suffered a paralytic attack and he was bed ridden and was thus not in a position to move out of his house, as at that time as he was about 70 years of age. P.W. 2 has produced a deed of gift in favour of Yugal Kishore Singh his nephew which has been marked as Ext. 1 with objection. His evidence with respect to the date of gift has been believed by the Court on the ground that this witness has stated that he had no concern with the execution of the gift and because this witness is related to Yugal 5 Kishore Singh. I agree with the Court below regarding the finding with respect to this witness as it is not relevant in the facts of the present case. A.W. 3 scribed the will since there is no challenge with regard to the genuineness of the will the evidence of this witness is relevant only for the purpose to show that a will was executed in favour of the applicant which is also not in doubt. A.W. 4 is a co-villager. He has supported the fact that late Rajendra Singh suffered an attack of paralysis a year before he died. The date of death of late Rajendra Singh which is 21.8.1963 is not in dispute. According to this witness late Rajendra Singh was incapable of moving and he was nursed by Saryug Singh and his sister. The evidence of this witness is relevant inasmuch he has stated that Shyam Sundar Kuer was not the wife of late Rajendra Singh. This witness further states in his cross examination that late Rajendra Singh died in his house and could not move out of his house after his paralytic attack. This aspect is supported by several other witnesses including A.W. 6. Most of the evidence produced on behalf of the appellant is with 6 respect to the execution of the will and the fact that late Rajendra Singh was suffering from paralysis and was not in a position to execute the deed of cancellation. A.W. 6 has also proved the will which is marked as Ext. 2 whereas A.W. 7 is the applicants himself. He has stated that a partition suit has been filed by Janardan Singh‟s widow. In the partition suit it has been stated that late Rajendra Singh had one brother Jeetan Singh. Jeetan Singh had two sons Amir and Janardan. Khedaran Kuer is the widow of Janardan and she has claimed partition. The applicant has also stated that after the death of late Rajendra Singh, Khedaran Kuer and Raj Banshi Kuer have executed several Kewalas. He has supported the fact that he was the person who performed the „Shraadh‟ of late Rajendra Singh and that late Rajendra Singh was suffering from paralysis and he was never married to Raj Banshi Kuer rather Raj Banshi Kuer after the death of her husband was living with one Binda Singh. It has further been stated by him that late Rajendra Singh did not die in Patna Medical College Hospital on 21.8.1963. In fact nothing has been elicited in the cross examination of this witness which would 7 demolish the appellant‟s case. This witness has also categorically stated that in the partition suit Raj Banshi Kuer has not applied to be substituted in place of late Rajendra Singh which actually goes to show that she has not made a claim that she was the wife of late Rajendra Singh. A.W. 8 is the son of Sarjug Singh and he has supported the case of his father and also supports the fact that late Rajendra Singh was suffering from paralysis and was not in a position to move from his house to execute a deed of cancellation. 8. I have discussed the evidence led by the appellant (applicant) in some detail for the reasons that the evidence is of such a nature which cannot be disbelieved as they are no inconsistencies in the evidence led by the appellant with respect to the execution of the will or with respect to the claim of the applicant that late Rajendra Singh was not physically capable of moving out of his house one year prior to his death. Applicant‟s evidence is also clear regarding the fact that Raj Banshi Kunwar was not the wife of late Rajendra Singh. 9. The evidence of the applicant has to 8 be examined vis a vis the evidence led by the objectors. On behalf of the objectors, 13 witnesses have been examined in order to show that the will has been revoked by a registered deed Ext. C and also to prove that late Rajendra Singh was physically and mentally incapable of executing the cancellation of the will in favour of Sarjug Singh. D.W. 1 is the deed writer of a sale deed executed by Raj Banshi Kuer after the death of her husband. D.W. 4 is the stamp vendor who also does the work of scribing deeds and he was the person who was present when the deed of cancellation was executed. He has proved the deed of cancellation and his evidence is important as according to him no one else was present when the deed of cancellation was executed. This fact has been stated by him at two places in the cross examination. There was a suggestion on behalf of the applicant that he was accused in a case of forgery however, this witness has stated that he was acquitted in that case. D.W. 5 had scribed of the deed of cancellation. This witness has stated that he was not acquainted with late Rajendra Singh. The O.W. 9, O.W. 10 and O.W. 11 the purchasers from 9 Raj Banshi Kuer whereas O.W. 12 has proved a sale deed executed by Khedaran Kuer in favour of Janardan Singh which is Ext. A 15. O.W. 13 is an interested witness who has stated that he got a money decree passed against late Rajendra Singh and he got the decree executed against Shyam Sundar Kuer whom he describes as the wife of late Rajendra Singh. 10. He also asserts that he got the delivery of possession as a result of the said execution. He denies that the entire transaction was fraudulently executed. In his cross examination he has also stated that he has purchased some lands from Shyam Sundar Kuer and Khedaran Kuer for Rs. 2,000/-. Banshi Lal Singh has proved Ext. A16 which is sale deed executed by Yugal Kishore Singh in favour of Laxmi Narayan Singh. The aforesaid witnesses are formal witness to prove the sale deeds executed by Raj Banshi Kuer and Khedaran Kuer after the death of late Rajendra Singh. These witnesses have not led evidence with respect to the issues in this case. 11. The witnesses that are important for deciding the issues in this case are O.W. 2, 10 O.W. 4, O.W. 5, O.W. 7 and O.W. 8. O.W. 2 has stated that late Rajendra Singh had got a paralytic attack 10 years prior to his death and was mentally and physically fit. According to this witness late Rajendra Singh was treated at Patna and after his return he developed an abyss in his back. This witness has also stated that late Rajendra Singh had been treated at Patna on two occasions. Firstly, when he got a paralytic attack 10 years back and secondly in the year 1963. On the second occasion Yugal Kishore supposedly took care of late Rajendra Singh when he went to Patna for treatment. The evidence of this witness becomes unbelievable because of the fact that he claims that Sarjug Singh had taken possession of half of his sikmidar lands and later had executed a kewala in his favour. This witness has also produced the voters list Ext. E. Therefore, this witness is a highly interested and does not have a good relationship with Saryug Singh thus the evidence of this witness is unreliable. O.W. 7 is the plough man of late Rajendra Singh and claims that he worked with him for 20 years. He has also stated that Shyam Sundar Kuer lived with late Rajendra Singh. In 11 the cross examination, this witness has not been able to say the number of plots owned by late Rajendra Singh or give the boundaries or area of the lands of late Rajendra Singh. In his cross examination he states that Shyam Sundar Kuer was Awadhiya by caste and further states that he has not concerned with her. It has further been stated that Dularo Kuer, sister of late Rajendra Singh and Yugal Kishore nephew were not in the house when Rajendra Singh died. The evidence of this witness indicates that in fact he is a tutored witness inasmuch that he has no idea or indication regarding the lands belonging to late Rajendra Singh considering that he claims to be the plough man of late Rajendra Singh. It also appears from his evidence that late Rajendra Singh died in his house and not at Patna as claimed by the opposite party. O.W. 8 Laxmi Narayan Singh is the only witness who has stated in Court that Raj Bansi Kuer and late Rajendra Singh were married about 20 years ago. This part of the evidence does not help the objector, because if it was true, there was no occasion for Rajendra Singh to execute the will in favour of Sarjug Singh, as it cannot be believed that he 12 would deprive his wife and not make arrangements for her maintenance. This witness does not disclose the source from which he learnt about the fact that Shyam Sundar Kuer @ Raj Banshi Kuer was married to late Rajendra Singh. In order to establish a relationship between two parties the witness making such statement should have some special source of knowledge and a bald statement which is not supported by any circumstances cannot be believed. This witness also happens to be a scribe of the sale deed executed by Raj Banshi Kuer and Khedaran Kuer between 1964 to 1966 strangely he also admits that the consideration money was never paid in his presence or in the presence of the Sub-Registrar leading this Court to doubt the validity of the transactions. In the facts stated aforesaid this Court cannot place much reliance on the evidence of this witness. 12. Jagarnath Prasad Mishra O.W. 4 is the attesting witness to the deed of cancellation and Sashi Nath Mishra O.W. 5 has scribed the deed of cancellation. The Court below finds that the evidence of O.W. 4 and O.W. 5 is sufficient to show that the deed of cancellation is a genuine 13 document. I may also state that O.W. 4 was involved in a case of forgery from which he has been exonerated. The counsel for the appellant laid great emphasis on this fact, however, it is the totally of the circumstances which have to be considered. Both have said Rajendra Singh was mentally and physically fit. Having said so there is no proper explanation as to why Rajendra Singh gave his L.T.I on the document when he was physically fit. Moreover, according to O.W. 4, the executant had come all alone to execute the deed of cancellation, which is not natural in view of the fact that it is admitted on behalf of the witnesses that Rajendra Singh was not keeping well. 13. Much emphasis has been placed on the evidence of O.W. 3. According to the hand writing expert the L.T.I. on the deed of cancellation is genuine. The opinion of the hand writing expert has been challenged on the ground that the thumb impressions ought to have been photographed and enlarged before O.W. 3 would have given his opinion as that is the procedure adopted for examining ridges and markings on the thumb. Besides which the argument has been made 14 on behalf of the appellant that the L.T.I. was taken on a piece of paper and some other person was produced in the Sub-Registry Officer impersonating himself to be Rajendra Singh. The basis for making such a submission is that since it was admitted in evidence that Rajendra Singh went alone to the Registry Officer there was no one who actually could identify Rajendra Singh. O.W. 4 has specifically stated that he belongs to a different police station and he cannot say the age of the executant. Therefore, the Court feels that the entire manner and the circumstances under which the document was executed is suspicious and the transaction becomes doubtful. 14. After discussing the evidence led by both the parties it is apparent that the objectors have not been able to show that the cancellation deed was executed by late Rajendra Singh. The story that Rajendra Singh had died at Patna remains unsupported and the death certificate produced on behalf of the opposite parties has not been proved. Moreover, the issue whether Rajendra Singh died in Patna or died at his village home is not of much important as far as the cancellation deed is concerned. 15 15. The Court below has relied on the documentary evidence produced on behalf of the objectors. Exhibit E the voter list has been produced by D.W. 8. On perusal of Exhibit E it appears that Rajbansi Kuer has been described as the wife of Indrajit Singh. There is no evidence on the record to indicate that Rajendra Singh and Indrajit Singh were one and the same person. Therefore, Exhibit E cannot consider as a document which could help the objector. It is also relevant to point out that the Court below has observed that the Court cannot give a finding in this Suit as to whether Shyam Sundar Kuer is the wife of Rajendra Singh. If this issue is not to be decided, then the objection filed by Shyam Sundar Kuer as wife of Rajendra Singh would not be maintainable as she would then be treated as a stranger to the family. Surprisingly, co- objector Khaderan the sister-in-law of Rajendra Singh has not examined herself as a witness, to substantiate her objection. 16. Much emphasis has been placed on the Ext. F the Death Certificate granted by the Patna Medical College. This document shows that one Rajendra Singh had died on 21.8.1963 at Patna 16 Medical College & Hospital. The certificate does not mention the father‟s name of the deceased which is surprising in view of the fact that there can be several persons by the name of Rajendra Singh. The document has not been proved. The certificate indicates that the address is “C/o Jwala Prasad Overseer, Kadam Kuan, Patna”. Jwala Prasad has not been examined to prove the facts or the certificate. 17. The Court below has relied on the order sheet of T.S. No. 162 of 1962 Ext. H. The T.S. No. 162 of 1962 has been filed by Khaderan Kuar (sister-in-law, Rajendra Singh‟s brother‟s wife) for partition. Khaderan Kuer has substituted Shyam Sundar Kuer as heir of defendant no. 1, and has issued notice to defendant no. 1. This suit and issues raised therein will be decided on its own merit. The claimant is not party in the suit and on the basis of the aforesaid application filed on behalf of Khaderan Kuer, the co-objector, no adverse inference can be drawn regarding the merits of the present case, and this Court cannot rely on this document to say that the deed of cancellation is a genuine document. Finally the 17 issue whether Rajendra Singh had remarried and had a wife by the name of Shyam Sunder Kuer will have to have to be adjudicated in the aforesaid Title Suit. This Court has gone into this issue only because the Trial Court without actually giving finding on the issue has decided. This case presuming that Shyam Sunder was the wife of Rajendra Singh without proper and sufficient evidence on this issue. 18. The original cancellation deed was not filed on behalf of the respondents, an explanation has been offered by submitting the original deed was with the Yugal Kishore Singh, who is residing at Kadam Kuan, Patna. The most striking feature in this case is that Yugal Kishore Singh has not been examined to substantiate any part of the case. Rather, no steps were taken for producing of original deed of cancellation. Section 61 of the Indian Evidence Act provides that the contents may be proved by primary or by secondary evidence. Section 62 provides that the Primary evidence means the document itself produced for the inspection of the Court. 19. In this case, certified copy of the 18 deed of cancellation was produced by the defendant respondents which bring it in the category of secondary evidence. Section 65 of the Evidence Act reads as follows: Cases in which secondary evidence relating to documents may be given- Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (a) When the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; 19 (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence; (g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 20. Halsbury (4th Addition) Vol. 17 Para. 138 page 102 observes as follows: “Secondary evidence of the contents of private documents is inadmissible if primary evidence is available. Before secondary evidence is tendered it is, therefore, usually necessary to account for the absence of the original document and for this purpose proof that primary evidence is not available may be required.” 21. The appellant can only be granted a letter of administration if he is able to show 20 that Ext. C the deed cancelling the will has not been duly executed by Rajendra Singh. It,