SMT. DEOKALI

NAND KISHORE AND ORS.

APRIL 24, 1996

IN.P. SINGH AND SUHAS C. SEN, JJ.]

Will-Validity of-Alleged suspicious circumstances in execution of will-Found not correct by Trial Court as well as the first Appellate Cow1-High Court affirmed the decree of cow1s below-Appeal before Supreme Court-Held as the case was decided basically on facts there was no reason to intelfere with the judgment of High Court.

The appellant's father executed a Will on 2.5.1972 whereunder he bequeathed his entire moveable and immovable property in favour of his D three grandsons-sons of the elder sister of appellant. The appellant filed a suit challenging the validity of the Will contending that (i) first page of the Will, which was written in two pages, did not bear signatures of the testator and the witnesses; (ii) first page of the Will was written on a stamp paper while the second page was written on a plain paper; (iii) writer of

E the will did not come forward to give evidence; (iv) will executed on 2.5.72 was produced for the first time in 1975; (v) will was proved on evidence of witnesses who were close relatives of the respondents; and (vi) murder of testator by the relatives of the respondents after some days of the execution of the Will was very suspicious.

F The Trial Court and First Appellate Court dismissed the suit holding that (i) the signatures of the testator and the witnesses were genuine;

(ii) there was nothing unusual in signing only the second page of the Will or even in writing the Will on two pages, one stamped and the other unstamped; (iii) having regard to the fact that the witnesses had signed G the Will and some of the persons in whose presence the Will was written had given testimony, the failure of the "riter to justify the Will was not relevant; and (iv) making only the relatives as witnesses to the Will was also not an unnatural practice. The High Court affirmed the judgment and decree passed by the courts below. Hence this appeal.

H Dismissing the appeal, this Court 684

DEOKALI v. NAND KISHORE [SEN. J.] 685

HELD : The High Court has not committed any error in coming to A its decision. The case was decided basically on facts. There is no reason to interfere with the judgment of the High Court. [688-F-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 367 of 1991.

From the Judgment and Order dated 21.8.89 of the Madhya Pradesh High Court in S.A. No. 35 of 1983.

Pramod Swarup for the Appellant.

S.S. Khanduja, Y.P. Dhingra and Baldev Krishan Satija for the C Respondents.

The Judgment of the Court was delivered :

SEN, J. : The validity of a Will executed by one Shivnarayan is under challenge in this case. Shivnarayan's wife had predeceased him. He had D two daughters Ramkali aod Deokali. Ramkali had six daughters and three sons - Nand Kishore, Santosh and Prakash. Santosh and Prakash were minors at the time of execution of the Will. By the will Shivnarayan gave all his properties to the three sons of his elder daughter Ramkali. The Will was executed on 2.5.1972. Shortly thereafter, sometime in May, 1972, E Shivnarayan was shot dead. Banwari Lal, the husband of Deokali and his brother Rudra were charged with murder. Banwari Lal was acquitted by the court but his brother Rudra was, convicted and sentenced to rigorous imprisonment for life by the Sessions court. It appears from the facts recorded by the court of Additional District Judge and also the High Court that Ramkali after her marriage started living with her father Shivnarayan F along with her husband Balaprasad. Alf her children were born in the house of Shivnaraya. Shivnarayan had also made arrangements for getting one son and one daughter of Ramkali married. Ramkali and her husband used to look after Shivnarayan in his old age.

Deokali, the younger daughter after her marriage used to live with G her husband Banwari Lal in the husband's house. Banwari Lal and Deokali quarreled with Shivnarayan at the time .of the marriage of Ramkali's daughter and demanded half share pf the property of Shivnarayan. The people of the village assembled but Shivoarayan refused to give any share of his property to them. He said that he had kept Ramkali in his house and H

A that Ramkali and her children had looked after him. He was not satisfied with the conduct of Deokali and her husband and he will not give any share of his properties tu them.

Be that as it may, Shivnarayan was murdered shortly after the execution of the Will. There were disputes about the properties left behind by Shivnarayan.

In the Will which was produced in the court, Shivnarayan had stated:

"After marrying my elder daughter Ramkali I immediately in the same year (about 25 years ago) kept her with me along with her husband my son-in-law lo serve me. After this I have married my younger daughter in a prosperous (well-to-do) house.

The elder daughter Ramkali has got 3 sons and 5 daughters.

The elder son whose name is Nand Kishore, after getting him educated got married by me. The younger son Santosh Kumar and the third son who is about 3 months old and who has nut been given any name as yet, both of them are minors. I am very much happy and glad with all of them i.e. by the Khushamad (Service) of the daughter and son-in-law and NATI (Grandsons), I have believed that in token of their service, I am writing this Will with full senses and in good health, in the presence of the Panches, whose signatures are given belo\v, in respect of my entire moveable and immoveable property, which includes houses and land in village Manwara and Pehra Haar whatever is there including all rights thereof in favour of all the three Natees (Grandsons), who are the sons of elder daughter Ramkali. If I will live alive fat-some more days, I myself will get Mutation recorded in the Go; t. If I die, then after my death they will be owners of my entire property like me. All the 3 brothers will get their respective names mutated in the land plot numbers. In the same way Will get their names recorded in the houses and Will take their possession, and the two brothers who are still minors, till they do not attain majority, their mother, Ramkali shall remain SARPRAST (Guardian) of their property (Share).

The younger daughter Deokali is prosperous in her house. Her husband and her father-in-law are persons having sufficient money

DEOKALI v. NANO KISH ORE [SEN.J.] 687

and they earn, they have no difficulty and' the elder daughter Ramkali has no other source of livelihood except me. From earlier time since when 1 had decided that I will give my properly Lo Ramkali only. So l am making owners the three sons of Ramkali of my entire properly in my full senses and sound health and do hereby execute this will in the presence of the Panches, so that in case of my death if any dispute by any one claiming himself my heir may arise in respect of my property then the Court should not take any cognizance of the same and the 3 sons of Ramkali may continue to enjoy the fruits of the property belonging to me.''

Sometime in 1977 Deokali filed a suit in the Court of Civil Judge; First Class, Chattarpur, for declaration that the Will in question was invalid and not properly executed. She prayed for declaration of cancellation of

the Will. The trial court, however, held that the Will was genuine and dismissed the suit. The first appeal being Civil Appeal No. 23A of 1982 preferred by Deokali against the judgment of the trial court was also dismissed by Additional Districl Judge, Chattarpur.

In the second appeal before the High Court, it was contended, that there \Vere at least six suspicious circumstances because of which the genuineness of the alleged Will should have been disbelieved. The six suspicious circun1stances were :

(l) The Will was written in two pages. The first page did not bear and signature of Shivnarayan nor of any one of witnesses.

(2) The first page of the Will was written on a stamped paper but

the second page was Vlnittr::n on a plain paper.

(3) The \Vriter of the Will did not come for\vard to give evidence.

( 4) The Will alleged to have been executed by Shivnarayan on 2.5.1972 was produced for the first time in 1975.

(5) The Will was allegedly proved on evidence of witnesses who were

close relations of the respondents.

(6) Murder of Shivnarayan by the relations of the respondents only

son1e clays ;:iJter the execution of the Will was very suspicious.

Both the trial court and the first appeal court found that the signatures of Shivnarayan and the witnesses were genuine. The signatures were on the second page only. All the three courts took the view that this was nut an unusual practice. So far as the Will having been written on two pages, one stamped and the other unstamped, the courts noted that the \Vitnesses were cxan1incd on this point. ()ne of the \vitnesses Baijianath had stated that when the Will was being written it could not be completed on the first page, therefore a second page which was not a stamped paper was used. Both the trial court and the first appeal court held that there was nothing unusual about this practice. In the second appeal this view was not disturbed. The court also took note of the fact that the witnesses had signed the Will and some of the persons in whose presence the Will was written had given testimony. Having regard to this fact, the failure of the writer to justify the Will did not make any difference. It has also been denied that the Will was produced for the first time in 1975. From paragraph 4 of the \Vritten statement, it appears that the existence of the Will was known to Deokali and her husband Banwari Lal in 1972 itself. It was also held that n1aking only the relatives as witnesses to the Will is also not an unnatural practice. Every person wants to make arrangement for disposition of his property with the knowledge of his relatives.

The High Court affirmed the judgment and decree passed by the Additional District Judge, Challarpur dated 24.12.1982 after considering all the arguments advanced by the appellants. The facts of the case and the evidence produced were gone into at great length by the Additional District Judge. On a review of the findings of fact and evidence brought on record, he affirmed the finding of the trial court. The High Court also examined the facts but declined lo interfere with the concurrent finding of the courts. What was alleged to be suspicious circumstances were also examined by the High Court. It does not appear that the High Court has committed any error in law in coming to its decision. The case was decided basically on facts. We see no reason to interfere \vith the judgment of the High Court. The appeal is dismissed. There will be no order as to costs.

T.N.A.

Appeal dismissed.