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1992 JLJ 299
Dr. T.N. Singh, J.
Nathan Singh v. Jagannath Singh
Misc. Appeal No. 118 of 1985; against the order passed by Shri S.K. Jain, Additional Judge to the Court of District Judge, Ashok nagar, Guna, in Case No. 1 and 2 of 1982; Decided on 25.3.1991.
Law indeed is well-settled that "party propounding a will has to satisfy the conscience of the Court that the instrument propounded is the last will of a free and capable testator and secondly that if a party writes or prepares a will under which it takes a benefit that is a circumstance that ought generally to excite the suspicion of the Court".
As to the suspicious circumstances, the Apex Court has observed that the same may be as to the genuineness of the signature of the testator"s the condition of the testator‘s mind, the dispositions made in the will being unnatural, improbable or unfair or other indication in the will to show that the testator‘s mind was not free. The Court is duty-bound to consider the entire evidence in the case as to due execution and attestation and see also if there was any other suspicious circumstances as invalidates the will. AIR 1977 SC 74, AIR 1947 PC 169 and AIR 1964 SC 529 relied on. 1974 JLJ 653 and 1986 (I) MPWN 21 distinguished. [Para 4
(2) Will -- document full of peculiar features -- different ink used but not explained -- averments unnatural -- beneficiary under previous will alleged to be present but his signatures not obtained -- such will is not genuine. AIR 1959 SC 443 distinguished. [Paras 8 to 11
(3) Evidence Act, 1872 -- Ss. 45 and 73 and 156 -- evidence of handwriting expert -- is opinion evidence -- corroboration from direct or circumstantial evidence must be insisted upon -- Court may also exercise its jurisdiction under section 73 -- opinion evidence is not clinching -- evidence of attesting witnesses unreliable -- scribe not examined – document cannot be held to have been proved only on proof of signatures. AIR 1967 SC 450, AIR 1967SC 778, AIR 1967 SC 1326 and AIR 1963 SC 1728 followed. [Para 12
(4) Evidence Act, 1872 -- S. 68 -- registered will duly proved by scribe and attesting witnesses according to law -- will is proved when execution has been -admitted. AIR 1962 SC 567 distinguished. [Paras 15 & 17
(5) Evidence Act, 1872 -- Ss. 50 and 60 -- relationship of husband and wife and their son -- may be proved by evidence -- presumption is also in favour of marriage and against concubineness. AIR 1928 PC 276 and AIR 1959 SC 914. [Para 16
(6) Marriage -- contracted prior to Hindu Marriage Act -- is valid -polygamy was permissible -- Natra Marriage is also permissible being a form of widow remarriage. AIR 1946 Nag. 232 and 1961 JLJ 1126 relied on. [Para 16
(7) Will -- propounder is duty bound to prove the will be allaying all suspicion. 1990 JLJ 224 relied on. [Para 18
(8) Will -- testator‘s confinement in hospital does not prevent the execution of a will - when it is registered no doctor‘s certificate of physical fitness is necessary. 1988 (II) MPWN 19 relied on. [Para 18
¼1½ foy && dk lcwr && foy izfrikfnr djus okyk i{kdkj && mls U;k;ky; dks U;k;ky; dh var‘psruk dk lek/kku djuk gksrk gS fd izfrikfnr fy[kr Lora= ,ao leFkZ olh;rdrkZ dh vafre foy gS && izfriknd }kjk foy ds v/khu Qk;nk fy;k tkuk && ,slh ifjfLFkfr gS tks lk/kkj.kr% U;k;ky; dk lansg iznhIr djrh gSA
;g fof/k vo‘; gh lqLFkkfir gS fd **foy izfrikfnr djus okys i{kdkj dks U;k;ky; dh var‘psruk dk lek/kku djuk gksrk gS fd izfrikfnr fy[kr Lora= ,oa leFkZ olh;rdrkZ dh vafre foy gS rFkk nwljk ;g fd ;fn dksbZ i{kdkj ,slh foy fy[krk ;k rS;kj djrk gS ftlds v/khu og dksbZ Qk;nk ysrk gS] ,d ,slh ifjfLFkfr gS ftls lk/kkj.kr% U;k;ky; dk lansg iznhIr djuk pkfg,**A
lansgktud ifjfLFkfr;ksa ds laca/k esa mPpre U;k;ky; dks leqfDr dh gS fd og olh;rdrkZ ds gLrk{kj vlyh gksus] olh;rdrkZ ds fpr dh n‘kk] foy esa fd, x, O;;u vizk—frd] vlaHkkO; vFkk v_tq gksus ij vFkok foy esa dksbZ vU; min‘kZu ;g n‘kkZus ds fy, fd loh;rdrkZ Loar=fpÙk ugha Fkk] ds laca/k esa gks ldrh gSA U;k;ky; lE;d~ fu"iknu rFkk vuqizek.ku ds laca/k esa ekeysa ds laiw.kZ lk{; ij fopkj djus ds fy, rFkk foy dks vfof/kekU; djus okyh dksbZ lansgktud ifjfLFkfr] ;fn Fkh] mls ns[kus ds fy,] drZO;c) gSA , vkb vkj 1977 ,l lh 74] , vkb vkj 1947 ih lh 169 ,oa , vkb vkj 1964 ,l lh 529 voyafcrA 1947 ts ,y ts 653 rFkk 1986 ¼1½ e-iz- ohDyh uksV~l 21 izHksfnrA ¿ iSjk 4À
¼2½ foy && nLrkost vlkk/kkj.k y{k.kksa ls ifjiw.kZ && fHké L;kgh iz;qDr fdarq Li"Vh—r ugha && izdFku vizk—frd && iwoZ foy ds v/khu fgrkf/kdkjh dks mifLFkr gksuk vfHkdfFkr fdarq mlds gLrk{kj izkIr ugha fd, x, && ,slh foy vlyh ugha gSA , vkb vkj 1959 ,l lh 443 izHksfnrA ¿ iSjk 8 ls 11À
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 45] 73 ,oa 156 && gLrys[k fo‘ks"kK dk lk{; && jk; Lkk{; gS && izR;{k vFkok ikfjfLFkfrd lk{; }kjk laiqf"V dk vkxzg fd;k tkuk pkfg, && U;k;ky; /kkjk 73 ds v/khu viuh vf/kdkfjrk Hkh iz;qDr dj ldrk gS && jk; lk{; fu‘pk;d ugha gS && vuqizek.kd lkf{k;ksa dk lk{; vfo‘oluh; && fyfid dk ijh{k.k ugha fd;k x;k && nLrkost dsoy gLrk{kjksa ds lcwr ij lkfcr fd;k x;k vfHkfu/kkZfjr ugha fd;k tk ldrkA , vkb vkj 1967 ,l lh 450] , vkb vkj 1967 ,l lh 778] , vkb vkj 1967 ,l lh 1326 ,oa , vkb vkj 1963 ,l lh 1728 vuqlfjrA ¿ iSjk 12À
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 68 && jftLVªh—r foy fyfir rFkk vuqizek.kd lkf{k;ksa }kjk fof/k ds vuqlkj lE;d~ :i ls lkfcr && fu"iknu Lohdkj fd, tkus ij foy lkfcr gSA , vkb vkj 1962 ,l lh 567 izHksfnrA ¿ iSjk 15 ,oa 17À
¼5½ lk{; vf/kfu;e] 1872 && /kkjk 50 ,oa 60 && ifr&iRuh rFkk muds iq= dh ukrsnkjh Lkk{; }kjk lkfcr dh tk ldrh gS && mi/kkj.kk dh fookg ds i{k esa rFkk miiRuhRo ds fo#) gSA , vkb vkj 1928 ih lh 276 ,oa , vkb vkj 1959 ,l lh 914A ¿ iSjk 16À
¼6½ fookg && fagnw fookg vf/kfu;e ds igys fd;k x;k && fof/kekU; gS && cgqiRuhRo vuqKs; Fk && uk=k fookg Hkh fo/kok iqufoZokg dk ,d iz:i gksus ds dk.k vuqKs; gSA , vkb vkj 1946 ukxiqj 232 ,oa 1961 ts ,y ts 1126 voyafcrA ¿ iSjk 16À
¼7½ foy && izfriknd laiw.kZ lansgksa dks ‘kkar dj foy lkfcr djus ds fy, drZO;&c) gSA 1990 ts ,y ts 224 voyafcrA ¿ iSjk 18À
¼8½ foy && olh;rdrkZ ds vLirky esa ifjjks/k ls foy dk fu"iknu fuokfjr ugha gksxk && tc og jftLVªh—r gS rc MkDVj dk LokLF; izek.ki= vko‘;d ugha gSA 1988 ¼2½ e-iz- ohDyh uksV~l 19 voyafcrA ¿ iSjk 18À
Dr. T.N. Singh, J. -- 1. This ommon order disposes of two appeals preferred by the propounder of a will of deceased Maharaj Singh, said to be executed on 19.9.1968. He has preferred two separate appeals (namely, M.A. No. 118 of 1985 and M.A. No. 123 of 1985) because not only his will was not probated, his objection was rejected in regard to the will dated 5.10.58 propounded by respondent Jagannath Singh in respect to which the Court below has granted probate to the said respondent.
2. Maharaj Singh's date of death is not disputed. What also was not disputed in his objection by the present appellant in the Court below is that respondent Jagannath Singh was son of deceased Maharaj Singh. In his objection filed in Probate Case No.2 of 1982, registered for probating the will propounded by respondent Jagannath Singh, the only objection made was that will dated 5.10.1958, executed by Maharaj Singh was not his last will and that on 18•.11.1956, the deceased had not executed any will. He also stated that on 19.9.1968, Maharaj Singh had executed a will in favour of the objectors Natthan Singh and Amar Singh who were cousin-brothers of the deceased. By the last will, earlier will dated 5.10.1958 was cancelled. Nobody was entitled to obtain any probate on the basis of the will dated 5.10.1958and that the objectors Natthan Singh and Amar Singh had filed an application for probate of the will dated 19.9.1968 which was pending disposal in Probate Case No.1 of 1969 (reregistered as Probate Case No.1 of 1982). Beyond that, nothing else was stated in the objection.
3. Respondent Jagannath Singh contested the execution of will dated 19.9.1968, propounded by appellant Natthan Singh. He claimed that the will was forged one. Accordingly, Handwriting Experts gave their opinion and evidence on the issue raised in that connection. For trial, both cases were consolidated and objector Jagannath Singh filed several documents during the course of trial of the cases to support his contention that the will was forged. True, besides proving as Ex. P/1, the alleged will dated 19.9.1968, some other documents also, applicant Natthan 'Singh proved in addition to proving Experts' opinion which Shri Banmali Dwivedi gave in support of his case. He gave his evidence as P. W. 5, while the Expert commissioned by objector Jagannath Singh Jai Prakash Verma deposed as D.W. 3. The will dated 5.10.1958 which objector Jagannath Singh propounded was. a registered will and. that was proved as Ex. P/2. That was not disputed, but the only contention pressed in regard to that will was that Maharaj Singh was not in a good health when he had executed that will.
4. Evidently, two main questions arise for decision in this appeal. Whether the will dated 19.9.1968 was forged will? Whether the will dated 5.10.1958 was a valid will ? However, I propose to deal first with the first question because I do not think if appellant's counsel's contention that the last will prevails can be subject of any serious controversy. Law indeed is well-settled that "party propounding a will has to satisfy the conscience of the Court that the instrument propounded is the last will of a free and capable testator and secondly that if a party writes or prepares a will under which it takes a benefit that is a circumstance that ought generally to excite the suspicion of the Court" (See Suryailarayana murthi v. Suramma, AIR 1947 PC 169). As to the suspicious circumstances, the Apex Court in Shashi Kumar v. Subodh Kumar (AIR 1964 SC 529),has observed that the same may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair or other indication in the will to show that the testator's mind was not free. The .Court is duty- bound to consider the entire evidence in the case as to due execution and attestation and see also if there was any other suspicious circumstances as invalidates the will.
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