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2007 Supreme(All) 1103
IN THE HIGH COURT OF ALLAHABAD
SUNIL AMBWANI, J.
NAND KISHORE - Appellant
Versus
MUNNI DEVI - Respondents
Testamentary Suit 14 Of 1999
Decided On : 04/20/2007
A.N.MISHRA, R.N.Kesari
The burden of proof in establishing the authenticity of a will lies with the propounder, and any suspicious circumstances must be completely removed before the document is accepted as the last will of the testator.
Headnote:
Forgery - Testamentary Case - Evidence Act, Section 67, 68, Indian Succession Act, Sections 59, 63 - The court found that the will was a forged and fabricated document manufactured to exclude the deceased's sisters and their sons from inheriting the properties. The plaintiff failed to remove the suspicion with any cogent and satisfactory evidence.
Fact of the Case:
The late Nand Kishore Bajpai filed a Testamentary Case for letters of Administration of his father's estate and credit. The deceased's daughter contested, stating that the deceased died intestate and denying the execution of the alleged will.
Finding of the Court:
The court found that the will was a forged and fabricated document manufactured to exclude the deceased's sisters and their sons from inheriting the properties. The plaintiff failed to remove the suspicion with any cogent and satisfactory evidence.
Issues: The issues were whether the will was executed by the deceased with a sound and disposing mind and whether the deceased was a permanent resident of Allahabad.
Ratio Decidendi: The court applied the principles of the Evidence Act and Indian Succession Act to determine the authenticity of the will. It found that the plaintiff failed to discharge the heavy burden of suspicious circumstances surrounding the will and to satisfy the court's conscience.
Final Decision: The court dismissed the testamentary suit with costs.
( 2 ) ON the contest put by the defendant, the Testamentary Case was converted to Testamentary Suit No. 14 of 1999.
( 3 ) DURING the pendency of the suit, Shri nand Kishore Bajpai-the applicant died on 2-2-2006. Shri Nand Kishore Bajpai (since deceased) was substituted through his heirs:-
1. Shri Ashok Bajpai (son) 2. Smt. Gayatri devi (wife) 3. Smt. Anita Misra (daughter) 4. Smt. Meera Dixit (daughter) 5. Smt. Suman tiwari (daughter)
( 4 ) I have heard Shri A. N. Misra, learned counsel for plaintiffs and Shri R. N. Kesari, learned counsel for respondents. Both the parties have filed their pleadings and led evidence both documentary and oral in the suit and made final submissions on 26-3-2007.
( 5 ) ACCORDING to the plaintiff, late Shri Shiv kumar Bajpai (the deceased) son of late Shri bandideen, was resident of 312 Shahganj allahabad. He died on 27-11-1997 at his home 15-64 Bajpai Niwas Bombay. He had his fixed place of abode at 312, Shahganj, allahabad. He had left behind the applicant as his only son and two daughters Smt. Munni Devi wife of Shri Ram Manohar tripathi, resident of 560/561 Mill Road kurla, Mumbai-70 and Smt. Leelawati wife of Shri Vikram Dutt Shukla, resident of Old palghar, Post Office Palghar, District Thana. During his lifetime, the deceased, out of his love and affection, executed a registered will on 13-2-1991 bequeathing his entire properties to the applicant. No one else has applied before this Court or any other Court for grant of letters of Administration and that the applicant has truly and correctly set forth the assets of the deceased in the affidavit of valuation, valued at rs. 12,35,000/- and will pay ad valorem court fees when letters are granted to him. The schedule initially described five properties including two houses at Allahabad; two houses at Mumbai and one tabela used as cattle shed including open land. By an amendment dated 7-10-1999, the plaintiff added in the schedule the properties, namely a Flour Mill in Municipal House No. 477 wazira Daruwalachal, New Mill Road, Kurla; a Flour Mill Municipal House No. 485-A shumawala Chamar Bara Krishna Chauk new Mill Road Kurla; a Flour Mill Shed No. B-24 Shop No. 2 Atma Ram Takla Chal dabholkar Alda Jiya Mata Najar, Dr. Ambedkar Road, Kala Chauk, Mumbai 33 and a Flour Mill, Ram Chandra Hiraji makhawa Chal Pika No. 1, City Survey No. 189/2-A, Dookan No. 1, Thane, maharashtra and valued at Rs. 15,000/-each.
( 6 ) IN the written statement Smt. Munni devi, the daughter of the deceased, stated that the alleged will is absolutely false. The deceased resided at Kurla Mumbai and had maximum love and affection for her, such that even after her marriage she and her husband continued to stay with her father at Mumbai. In 1963 after the marriage of her brother Shri Nand Kishor Bajpai, she shifted to the adjacent premises, which she continued to occupy till date. Her father never mentioned of the execution of will in favour of her brother. The deceased accompanied her husband to his ancestral house at Rae Bareli to attend the marriage of their son Mr. Anurag Tripathi fixed on 7-2-1991 and returned on the day of reception of her son at Mumbai. The will does not disclose anything about the various properties at mumbai. It is absolutely vague in the description and that the applicant taking advantage of certain words which vaguely refer to the proportion at Mumbai
