FIRST APPEAL No. 570 OF 1997 Against the judgment/order dated 30.09.1997 passed by Sri R.K.Rateria, 3rd Additional District Judge, Patna in Title Suit No.6 of 1993/Probate Case No.42 of 1989. ARJUN RAI ………. Plaintiff-Appellant Versus RAJENDRA YADAV ……… Defendant-Respondent ******** For the Appellant : Mr. Nand Kishore Prasad, Advocate Mr. Rajendra Kishore Prasad, Advocate For the Respondent : Mr. Ganpati Trivedi, Advocate Mr. R.K.Sinha No.2, Advocate Mr. Madan Mohan, Advocate Dated : 2nd day of May, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T This First Appeal has been filed by the plaintiff-appellant against the judgment dated 30.09.1997 passed by Sri R.K.Rateria, the learned 3rd Additional District Judge, Patna in title suit no.6 of 1993/probate case no.42 of 1989 dismissing the plaintiff’s suit for grant of probate. (2) The plaintiff-appellant filed the said probate case no.42 of 1989 for the grant of probate in respect of a Will said to have been executed by one Lakhpatia Devi on 24.11.1987. The defendant- Mungeshwar Sahoo, J. 2 respondent filed objection, therefore, according to provision as contained in Section 295 of the Indian Succession Act, the probate case was converted to regular suit and it was renumbered as title suit no.6 of 1993. (3) The plaintiff-appellant’s case in short is that Lakhpatia Devi died on 5th July, 1988. She had executed her last Will on 24.11.1987 and the plaintiff was appointed executor on the said Will. The property described in the Will was possessed by Lakhpatia Devi. (4) The defendant-respondent’s case is that the testator, Lakhpatia Devi is mother of this objector and grandmother of the plaintiff. She was not keeping sound health and was not capable of executing any deed, much less alleged deed of Will, out of her own discretion and free consent. She was very weak physically and mentally. The alleged Will is forged and fabricated. The brother of this defendant namely Baldeo Prasad who is father of the plaintiff is a very shrewd man and taking advantage of old age of Lakhpatia Devi created the forged Will in the name of his son, Arjun Rai, the plaintiff. The Registry office, Patna City is situated closely to the residence of Lakhpatia Devi but because the Will is forged, Baldeo Prasad could not get it registered. (5) After trial, the learned Court below found that Baldeo Prasad and his family used to do milk business and P.W.2 has come up to help his friend, the plaintiff. P.W.3 is highly interested with the plaintiff and it appears that he is a “Court Bird” and is not telling truth. Ultimately, the learned Court below came to the conclusion that the defendant-respondent, Rajendra Prasad used to live with Lakhpatia in the house. There are series of suspicious circumstances and the plaintiff has 3 not explained satisfactorily. The plaintiff failed to prove that Lakhpatia executed the Will on 24.11.1987. On these findings, the learned Court below dismissed the suit. (6) The learned counsel for the appellant submitted that the plaintiff adduced oral evidences which are sufficient to establish that Lakhpatia Devi out of her free Will and because of love and affection, executed the Will on 23.11.1987 and it was signed on 24.11.1987. The attesting witnesses have deposed before the Court below and the suspicious circumstances alleged by the learned Court below are not at all suspicious circumstances and, therefore, the learned Court below has wrongly dismissed the plaintiff’s suit. The Will was taken out from the box in presence of many persons and, therefore, it cannot be said that the Will is forged and fabricated document. On these grounds, the learned counsel submitted that the impugned judgment is liable to be set aside and the plaintiff’s suit be decreed and probate may be granted. (7) Mr. Trivedi, the learned counsel appearing on behalf of the defendant-respondent submitted that there are many suspicious circumstances which the plaintiff has not explained at all. The witnesses have stated that the Will was written on 23.11.1987. In the Will itself, the scribe has mentioned that it was written on 23.11.1987 and handed over to Lakhpatia Devi. There is no explanation as to why the same was not read over and explained to her and as to why she did not put her L.T.I. on 23.11.1987 instead of the deed was read over and explained to her and the witnesses put signature on 24.11.1987. This is one of the suspicious circumstances. According to the plaintiff, the Will was found from the box of Lakhpatia Devi in presence of many villagers but not a 4 single villager has been examined. P.W.2 and P.W.3 are highly interested and related person. There is no reason as to why the mother will deprive her son from inheritance by executing Will. This is another suspicious circumstance. The learned counsel further submitted that the Registry office was very near to her residence but the Will was not registered. This is another suspicious circumstance. Likewise, the learned Court below has considered various other suspicious circumstances and, therefore, rightly dismissed the suit. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost. (8) In view of the above contentions of the parties, the points arise for consideration is as to “whether the Will is genuine, valid and signed by the testatrix and the testatrix was in a sound disposing state of mind or the Will is forged and fabricated” or “whether the plaintiff is entitled for the grant of probate with respect to the said Will” and “whether the impugned judgment is sustainable in the eye of law?” (9) The parties have adduced oral as well as documentary evidences in proof of their cases. P.W.1 is the plaintiff himself. He has stated that the Will was recovered from a box after funeral ceremony of Lakhpatia Devi, his grandmother. Lakhpatia Devi was used to sell milk and she was not ill and her mental condition was not bad. In presence of 100-200 persons who attended “shradh”, the box was opened. The defendant objector, Rajendra Prasad was not present at that time. His father is brother of objector. There is a partition suit being partition suit no.27 of 1989 pending between his father and the objector. Admittedly, 5 the plaintiff is not a witness in the Will. He is a beneficiary and propounder of the Will. (10) P.W.2 is one of the attesting witnesses. He has stated that on the instruction of Lakhpatia Devi, he signed the Will. Lakhpatia Devi was identified by Suraj Singh and one Maulvi Saheb. The document i.e. the Will which has been marked as Exhibit-3 was written from before by the scribe but the scribe signed in presence of this witness. The scribe read over to the testatrix and then she put her thumb impression on the Will. At the time of execution of the document, Lakhpatia Devi was in sound mind and good health. She was doing milk business and the plaintiff was residing with her. From perusal of the cross-examination, it appears that this witness has stated that when he went to purchase milk from Lakhpatia Devi, she told him to come on the next day and stated that she had executed Will in favour of her grandson. The witness went and came again on next day and then in presence of this witness, scribe read over the Will. This witness has admitted that he is friend of plaintiff, Arjun Rai. The learned counsel for the appellant submitted that there is no reason to disbelieve this witness. From perusal of the evidence of this witness, it appears that this witness was going only to purchase milk. There is no reason as to why Lakhpatia Devi called him on the next day for witnessing the alleged Will particularly when the said Will had already been written on previous day i.e. on 23.11.1987. (11) P.W.3, the another attesting witness has stated that he is distantly related with Lakhpatia Devi. He has stated that the scribe wrote the Will on 23.11.1987 and on 24.11.1987, the scribe read over and on that day, Lakhpatia put her thumb impression on every page of 6 the document. The other witnesses signed in presence of this witness. On his evidence, the Will has been marked as Exhibit-3. He has further stated that at the time of execution of Will, Lakhpatia was of sound mind and health. It appears that this witness resides in a village which is 28 miles away from Khaje Kallan where Lakhpatia was residing. Why and under what circumstances this witness was called by Lakhpatia Devi for the attestation of the Will is another suspicious circumstance. He has admitted that he is distantly related. He resides 28 miles away. Why he is deposing in favour of the plaintiff is evident from his evidence in the cross-examination that the plaintiff has been married in the village of this witness. Further, in his cross-examination, he has stated that he stayed in the house of Lakhpatia in the night. Lakhpatia had gone to call the scribe and at that time this witness remained alone in the house. She also called the attesting witnesses. At paragraph 25, he has admitted that plaintiff’s wife is the sister of this witness in relation. Therefore, this witness is also highly interested person and there is no mention as to why he should have been called by Lakhpatia Devi on the day when the Will was scribed and also he stayed in the night only to attest the Will on the next day. These are the oral evidences. Therefore, there is no evidence in support of the fact that the Will is taken out from the box in presence of 100-200 persons after funeral ceremony. None of them have been examined. The two witnesses said to be attesting witnesses are highly interested and their evidences are shaky and surrounded by suspicious circumstances. (12) On the other hand, the defendant-respondent who was examined as D.W.1 has stated that the Will is forged and fabricated and Lakhpatia Devi was not doing milk business. This witness has produced 7 the original registered sale deed which is in the name of Lakhpatia Devi. Lakhpatia Devi had purchased the property described in Will through this registered sale deed which has been marked as Exhibit-A. Had the testatrix any intention to bequest the property in favour of the plaintiff the title deed would not have been in possession of the defendant- respondent. He has clearly stated that he is residing in the house with Lakhpatia Devi, his mother. There is no reliable evidence that Lakhpatia Devi had strained relation with her son, the defendant-respondent. We have seen the evidence of plaintiff who has been examined as P.W.1 who has stated that at the time of “shradh” when 100-200 people were present, the defendant was not present there and at that time, the Will was found in a box. This story appears to be doubtful. The son will not be present in “shradh” appears to be not reliable because there is no explanation given by the plaintiff as to where the defendant had gone. On the contrary, according to the D.W.1, the defendant himself, he was residing with Lakhpatia Devi in the same house. (13) From perusal of Exhibit-3, the Will, it appears that no reason has been assigned as to why the defendant has been deprived from the general inheritance. No doubt, this is not a strong suspicious circumstance but there appears some doubt, because the defendant is producing the title deed before the Court and admittedly, he was residing with his mother, Lakhpatia Devi in the same house. In the Will, there is no statement that Lakhpatia Devi had strained relation with the defendant. Admittedly, there is partition suit pending between father of the plaintiff and this defendant, wherein this property is also involved. This probate case has been filed after institution of the partition suit. From perusal of Exhibit-B which is the written statement of the plaintiff 8 of this case filed in the partition suit along with his father and others who were defendant in partition suit, it appears that they have admitted that after the death of her husband, Lakhpatia was not keeping good health. (14) From the discussion of the evidences, it appears that there are many suspicious circumstances as stated above such as: (i) There is no explanation as to why the Will was scribed on 23.11.1987 but it was signed and attested on 24.11.1987 although, the witnesses have stated that the Will was scribed in their presence on 23.11.1987. Why it was not attested and signed on 23.11.1987? (ii) Both the attesting witnesses are highly interested. No independent witnesses have been examined in support of the execution of Will, why? (iii) One of the attesting witnesses came from 28 miles away. Whether he came by chance and remained in the night or he was called on that particular day? (iv) P.W.2 who is purchaser of milk although came on 23.11.1987 but he did not sign as attesting witness rather he was called on the next day for attesting the Will, why? (v) Though the Registry office was very near but why the Will was not registered? (vi) In Exhibit-B i.e. the written statement, the plaintiff herein admitted that at the time of death, Lakhpatia Devi disclosed before the Mohalla people that she had executed the Will in favour of the plaintiff with respect to her house. If that be so, why none of the Mohalla people have been examined in support of this fact? 9 (vii) According to the plaintiff, the Will was taken out from the box in presence of 100-200 people. None of them have been examined as witness, why? (viii) According to the plaintiff’s witness while drafting the Will, the title deed was given to the scribe. How the title deed was produced from the custody of defendant? (ix) Why the plaintiff was not possessing the title deed? (x) There is no explanation in the Will, Exhibit-3 as to why the defendant has been deprived of his inheritance. There is no mention that there was strained relation between Lakhpatia Devi and the defendant-respondent. The probate case was filed after filing of partition suit by the defendant- respondent. In the present application, there is no mention that at the time of death, Lakhpatia discloses before Mohalla people that she had executed the Will in favour of the plaintiff rather it is the case that when the Will was found in the box, the plaintiff came to know the execution of the Will. In the written statement, Exhibit-B, the plaintiff admitted that Lakhpatia Devi was always ill after death of her husband. (15) In A.I.R. 1959 Supreme Court 443(H. Venkatachala Iyengar vs. B.N. Thimmajamma), the Hon’ble Supreme Court has held that: “There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. 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 created 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 10 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 such cases the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.” (16) In A.I.R. 1990 Supreme Court 1742(Ram Piari v. Bhagwant), the Hon’ble Apex Court at paragraph 4 has held as follows (the relevant portion is quoted here-in-below): “Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property or agricultural holdings from going out of family is wellknown. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. Although this Court does not normally interfere with findings of fact recorded by Courts below, but if the finding is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136.” (17) In the present case at our hand, the defendant-respondent is the son of Lakhpatia Devi and is a class I heir. The plaintiff is not in 11 equal degree with the defendant-respondent but no reason has been assigned as to why the defendant-respondent has been precluded from inheritance. (18) Considering the above facts and circumstances of the case, I find that the plaintiff has failed to explain the above suspicious circumstances which are strong enough against the plaintiff which clearly indicates that the Will itself is doubtful. I, therefore, confirmed the finding of the learned Court below on this point. Accordingly, I find no reason to interfere with the impugned judgment. (19) In the result, this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 2nd May, 2011 Saurabh/A.F.R.