Madhya Pradesh High Court
Nathasingh Ratansingh Raghuvanshi vs Jagannathsingh Maharajsingh ... on 25 March, 1991
Equivalent citations: 1994(0)MPLJ209
ORDER T.N. Singh, J.
1. This common 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 5-10-1958 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 Willin 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 5-10-1958 and 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 (re-registered 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 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 that 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 - Suryanarayanamurthi 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 circumstance as invalidates the Will.
4A. In the instant case, P. W. 1, Ramratan, has deposed as an attesting witness of the will, Ex. P/1, and has proved his signature. He has also proved the signature of the executant, Maharaj Singh and the other attesting witnesses Prithvi Singh and Yad Mohammad. He stated that Natthulal Choubey had written the Will, but he did not prove the scribe's signature. Natthulal was not examined because he was said to be dead. In cross-examination, he admitted that though Maharaj Singh was not ill, but he was weak due to old age and that at the time of execution of the Will, he was aged around 50 to 55. His house was at a distance of 1 1/2 to 2 furlongs from Maharaj Singh's house. He saw Yad Mohammad, Diwan Singh, Prithvi Singh, Jagannath Singh (respondents) and also Natthan Singh and Amar Singh (propounders), sitting at his house when he went there on being summoned by Maharaj Singh. Maharaj Singh was dictating and Natthulal was writing when he went there. He did not remember if Natthulal's pen was used by Maharaj Singh in signing the document. Maharaj Singh retired as a Patwari, but he did not know his educational qualifications. Maharaj Singh married first a girl from Lukwasa village and from that marriage, a daughter was born. Thereafter, Maharaj Singh contracted a Natra marriage with Suraj Bai and through her, Jagannath Singh (respondent) was born, during the life time of Maharaj Singh's first wife. Till Maharaj Singh's death, Suraj Bai lived with him and Jagannnath Singh also. After Maharaj Singh's death, he did not have any occasion to go to his village and, therefore, he could not say if the cultivable land and house of Maharaj Singh at village Shadora were in Jagannath Singh's possession. He also stated that at the time of the Will's execution, Maharaj Singh had spoken of the registered Will which he had executed in Jagannath Singh's favour. He admitted also that in his presence, Maharaj Singh did not speak of that Will being cancelled. He deposed further that Jagannath Singh's signature was also obtained on the document, but he would like to look at the Will to confirm that. Looking at the Will, he stated that different inks were used in writing the contents and in signing the document by witnesses, but he could not give satisfactory explanation for that. About the dates, he said that those were put at the same time contemporaneously. He denied any knowledge of any dispute between Maharaj Singh and Amar Singh for the last 10/12 years. He did not know who kept the Will after it was written, but he had seen the Will only in the Court. He admitted that he had no personal knowledge of death of Natthulal choubey.
5. P. W. 2, Yad Mohammad also proved his signature and attestation of the Will (Ex. P/1) and he too spoke of the presence of Jagannath Singh, Amar Singh and Natthan Singh and attesting witnesses when the transaction took place. He stated that after the Will was written, it was handed over to Jagannath Singh, but he did not remember if at that time, the document was stamped or not. Indeed, in cross-examination he stated that only a copy of the document was given to Jagannath Singh and yet, he did not remember if any carbon was used when the document was written. He denied that there was any civil litigation between Maharaj Singh on one side and Natthan Singh and Amar Singh on the other. He did not remember if he was witness in any of the cases between them. He admitted that there was a decree passed against him, but that was not in connection with Maharaj Singh's house. He deposed that Maharaj Singh spoke that Ex. P/1 was written of cancellation of disposition of 135 bighas of land made in Jagannath Singh's favour. After Maharaj Singh contracted Natra marriage with Jagannath's mother, she continued to live with him till his death, in his house. After Maharaj Singh's death, Jagannath Singh is possessing that house and also the entire lands of Maharaj Singh. During Maharaj Singh's life-time also, Jagannath Singh lived with him. The first wife of Maharaj Singh had died 10 to 12 years ago. His evidence was recorded on 10-9-1975.
6. Diwan Singh (P. W. 2) is another attesting witness whose version is that after Natthulal Choubey had written the Will, he had read over that to Maharaj Singh and witnesses present there. Thereafter, all of them had signed. Natthulal lived within 100 paces of Maharaj Singh's house. He lived in Umri and that was 6 miles away. Witness Ramratan lived at a distance of 4 to 5 furlongs and Yad Mohammad at a distance of 1/2 furlong. He had come to the village on the preceding day. Ratan Singh, Amar Singh and Maharaj Singh lived in the same locality and Maharaj Singh sent for the witnesses and the scribe. He denied the suggestion that he had any quarrel with Maharaj Singh and he was deceased's debtor. At para 4 of his evidence, he stated, looking at Ex. P/1, that the signature A to A was not of Maharaj Singh. Later, he added, his eyesight was weak. However, he had given his age as 56 years only. He admitted that Natthan Singh, Amar Singh and Maharaj Singh were not on good terms and they were involved in litigation. However, he stated also that for ending the litigation, Ex. P/1 was executed.
7. Appellant Natthan Singh examined himself as P. W. 4 and proved the documents he had filed in support of his case. He stated that he was on good terms with Maharaj Singh and he had filed cases against him because after Jagannath Singh's birth, Maharaj Singh had not given any share in the property to him and his brother Amar Singh. They were claiming their shares. He admitted that till Maharaj Singh's death which took place after a month of execution of the Will, some of the cases which he had filed against Maharaj Singh were continuing. Between his death and execution by him of the Will in respect of the pending cases, no Rajinama was filed. He deposed that till Maharaj Singh had executed the earlier Will in Jagannath Singh's favour, they had good relations; and that after the Will was registered, Maharaj Singh informed him of that fact. The registration formalities of that which were completed at Maharaj Singh's house because he was ill at that time. He admitted that Jagannath's mother and Mahraj Singh lived as husband and wife and they lived together for 15 to 20 years. Jagannath Singh, his mother and Maharaj Singh lived together and after latter's death, the mother and son had continued to live together in the same house and Jagannath Singh was cultivating Maharaj Singh's land. He admitted that till the Will was executed, litigation between him and Maharaj Singh had continued for the preceding 10 to 12 years. So much so that Maharaj Singh had also filed against him several civil and criminal cases. He admitted also that the attesting witness Diwan Singh was also witness for him in those litigations. He found witness Yad Mohammad, Prithvi Singh and Ramratan already present at Maharaj Singh's place when he went there and did not remember what Maharaj Singh spoke then about the transaction. Two documents were written of which one copy was given to him and another to Jagannath Singh. No carbon was used. He did not know if the same pen was used by Maharaj Singh and the witnesses. He was confronted with the different inks used in the writing and the signature and also in the dates in the documents. He did not remember if he was told by Maharaj Singh at the time of writing the Will that Jagannath Singh was given his share and the remaining land was given to him. One house and some land, Maharaj Singh told him, were given to him.
8. What intrinsic evidence the document Ex. P/1 itself yields also deserves to be examined. It is a longish document, in three pages. It is stated in the document that the executant's married wife died long back and through her, he had one daughter only who had been given in marriage. He had another wife Suraj Bai and through her, he had a son and three daughters of whom two were given in marriage and the third one was a minor. His son Jagnnath Singh was married. He had in his possession ancestral movable and immovable property which had been partitioned. He had executed also a Will in 1958 in favour of his wife and son Jagannath Singh. In respect" of that property, family dispute and litigation had continued for a long time. Therefore, he was executing the Will to protect the interest of Natthan Singh and Amar Singh, sons of his brother Ratan Singh. He cancelled the earlier Will executed in 1958 in Jagannath's favour and made disposition afresh of the property in the manner indicated therein. He gave Jagannath Singh the old residential house and 135 bighas of land which he got registered in his name along with the movables. He gave Natthan Singh and Amar Singh under Ex. P/1 lands in village Shadora and one house. He stated that to avoid the future litigation and to prevent the family property being ruined, the Will was executed. The Will had to take effect after his death and he mentioned that one copy of the Will and also the right of Jagannath Singh will remain with him.
9. Looking at the document, attention is immediately arrested by certain peculiar features which cannot be ignored. Different ink is used by the writer in the body of the document and the date which appears under the writer's signature is in different ink. The date which is put at the end of the contents is also in different ink and it appears, blank space was kept for filling up the date. Both dates appear to be interpolations. Four persons signed the document as attesting witnesses. The disputed signature of Maharaj Singh is inscribed partly on a Revenue Stamp. It is normally expected that to bind Jagannath Singh, his signature was necessary and that would have been obtained. But that was not done. If really any copy was given to Jagannath Singh, even then his signature would have been obtained. Indeed, witnesses deposing for Natthan Singh all gave evidence that Jagannath Singh was present when the Will was written. The legal colour which the transaction was given was of family settlement. Indeed specific averment was made in the document that the property in possession of the executant was joint property and Natthan Singh and Amar Singh had share in that property. To avoid the possible problems from Jagannath Singh, his possession was maintained in the house in which he lived as also in the land which was registered in his name. Nothing at all in the document inspires confidence - the object, writing, signature, date give it cumulatively a dubious character.
10. If the Will had been really executed, to settle family dispute in respect to family property, it is not understood Why it was stated that the Will shall take effect after executant's death and why nothing was said in respect of the pending litigation which admittedly continued till the executant's death. That fact must be regarded as a pre-eminently suspicious circumstance in the context of the fact that the scribe was not examined and the attesting witnesses are not reliable. Their evidence, I have discussed above and I have no hesitation to accept the view of the trial Court in regard to their lack of, reliability and credibility. It is not necessary to refer to large number of documents proved in the case by parties in respect to litigation between late Maharaj Singh and appellant Natthan Singh and his party. It is surprising, however, that as late as 12-8-1968, as per Ex. P/1, the strife continued and a criminal case was filed on that date by Maharaj Singh against Amar Singh implicating Natthan Singh also in that case. The parties appear to be at daggers drawn on that date. Suddenly, within a month, everything cooled down if the case set up by Natthasn Singh is believed and the Will dated 19-9-1968 is accepted as true and genuine Will. However, nothing has come in evidence about the change in climate.
11. In this connection, I would like to recall that in Shashi Kumar (supra), the Court made it clear that even in the case of an Expert's evidence as to handwriting, which is opinion evidence. Before it is accepted, corroboration for that by direct or circumstantial evidence must be insisted upon. The High Court was faulted by their Lordships for first considering the evidence of the Expert holding that in that case direct testimony of the attesting witnesses as to the execution of the Will and absence of any suspicious circumstances had to be accorded with due primacy. In the instant case, as observed, I found it impossible to believe the attesting witnesses and in my opinion, the suspicious circumstances noted above are not satisfactorily explained by Natthan Singh to discharge his burden. The propounder Natthan Singh had taken under the alleged Will substantial benefit and it was his duty to explain that in his favour the testator had freely and willingly made the disposition under the Will. Because of continuing enmity between the alleged executant and the propounder till within a month of the alleged execution, the burden on the propunder became heavy for explaining the change in circumstances.
12. As law is settled, I have accordingly refrained from examining the conflicting opinion of the two handwriting experts myself in detail and I have discharged my own duty contemplated under Section 73, Evidence Act. As held in Fakhruddin, AIR 1967 SC 1326, the Court may accept the Expert's opinion when it is satisfied itself by examining the disputed writing for preferring to accept opinion of any particular Expert when more than one are examined. As held in Srichand's case, AIR 1967 SC 450, examination of handwriting expert is not clinching and his non-examination is not fatal. See also, in this connection, State of Gujarat v. Vinaya Chandra, AIR 1967 SC 778 and Ishwari Prasad v. Mohammad Isa, AIR 1963 SC 1728. It is necessary, however, to add that it is not only the signature that has to be proved and which can be proved by handwriting expert's opinion (whether satisfactorily or not is another question), but the requirement is that due execution of the document has to be proved. For that, therefore, the testator being dead, reliance had to be placed mainly on the evidence of attesting witnesses and the scribe. In the instant case, reliable evidence as to execution, in my opinion, is lacking as scribe is not examined and attesting witnesses are found to be unreliable. Besides, as noted earlier, the alleged execution is surrounded by suspicious circumstances of serious nature. Mere proof of signature, therefore, by P. W. 5 the Expert examined by appellant, carries him nowhere. I am not inclined to accept his evidence as clinching.
13. For all the reasons aforesaid, I have no hesitation to hold that the Will dated 19-9-1968 propounded by Natthan Singh in Probate Case No. 1 of 1982 has not been proved to be a genuine Will and much less, therefore, the last Will of deceased Maharaj Singh. Accordingly, I affirm the finding and conclusion of the trial Court dismissing Natthan Singh's application. His appeal (M.A. No. 118 of 1985), assailing the finding and conclusion in that regard of the trial Court accordingly fails and is dismissed.
14. In so far as the other appeal is concerned, the short question is, if the Will dated 5-10-1958 propounded by Jagannath Singh was a valid Will. Because, about its due execution, there is no scope for any dispute. That was a registered Will and execution of that Will Natthan Singh admitted and for cancellation of that Will, he propounded the counter-Will dated 19-9-1968. Two contentions are urged to challenge that Will's validity. Both, in my view, are hopelessly meritless.
15. It was firstly contended that at the time of execution of the Will, Maharaj Singh was not keeping good health. The entire evidence of witnesses of Natthan Singh and even his own evidence, I have discussed in detail. The allegation was not only not made in the objection which Natthan Singh filed in Probate Case No. 2 of 1982, in evidence also, he failed to prove that at the time of execution of the Will dated 5-10-1958, Maharaj Singh was seriously ill. What is to be read in Natthan Singh's evidence is that sometime after execution and registration of the Will, Natthan Singh came to know about the transaction from deceased Maharaj Singh himself. He had no personal knowledge about its execution. Sundarlal, D. W. 1, aged 72 years, gave evidence as attesting witness of Will Ex. P/2, dated 5-10-1958: His evidence is that the alleged scribe of the alleged Will, Ex. P/1, Natthulal Choubey had litigation with late Maharaj Singh could not be demolished in cross-examination. True, he deposed that for about 15 days prior to the date of execution of Will, Maharaj Singh was having fever, but at the time of execution of the Will, no doctor or Vaidya was present. That the executant was not counting his last days and was not on the verge of collapsing is indeed established by the fact that he lived for several years after executing the Will, Ex. P/2. D. W. 2, Gendalal, was the Village Sarpanch and he had also attested the Will. He had identified the executant at the time of registration which was done at Maharaj Singh's house. He asserted that after the Will was written, it was read over to Maharaj Singh before he had affixed his signature to the document.
16. It is also contended that because Jagannath Singh was not the legitimate son, Maharaj Singh executed the second Will, Ex. P/1 in favour of his first nephews as they were his true and near relations. That contention also is fallacious. Evidence, as I have discussed, shows that Jagannath Singh's mother and Maharaj Singh lived as husband and wife though about ceremonies some dispute is raised. Indeed, it appears that Maharaj Singh had contracted marriage with Suraj Bai prior to Hindu Marriage Act when polygamy was permitted. Evidence of existence of relationship of one person to another is admissible under Sections 50 and 60 of the Evidence Act, as held in Dalgobind, AIR 1959 SC 914, and in the instant case that preponderates in respect of the fact that Suraj Bai and Mahraj Singh lived as husband and wife and Jagannath Singh was their son. Law is well-settled that presumption is in favour of marriage and legitimacy and against concubines. See, in this connection, Molapo v. Thabo, AIR 1928 PC 276. Natra is a form of widow remarriage and as held in Mahadeo v. Chandrahbagabai, 1946 NLJ 365 = AIR 1946 Nag. 232, that' it approved and valid form of marriage.
17. Case-law cited at the Bar by counsel has to be referred, to do justice to their labour. Appellants' counsel has cited Purnima Debi, AIR 1962 SC 567, to support his contention that mere registration of a Will will not, by itself, be sufficient to dispel any suspicion, but the fact in this case is that on evidence, no suspicion surrounding execution of Will, Ex. P/2, has been proved. His reliance on Vinay Chandra (supra) is obviously misconceived. Indeed, that decision, I have already examined above. H. Vinkatachala, AIR 1959 SC 443, is also cited by him. That lays down the law which I have duly applied that propounder must show by satisfactory evidence that the Will was signed by the testator and at the relevant time he was in a sound and disposing state of mind and he had put his signature on the document of his own free Will. Indeed, in my view, the decision discredits directly Ex. P/1 and supports my view that the "unnatural, improbable or unfair" disposition proposed in Ex. P/1 was a relevant piece of circumstance to discredit the document. Indeed, it has not been proved that the property was of joint family. Reliance on this Court's decision in Bhagwandas, 1974 MPLJ 455, would not also avail the appellant as on facts, suspicion of fraud in the execution of document cannot be ruled out, in regard to execution of Ex. P/1, Balpyasi, 1986 (I) MPWN 21, is on Section 45, Evidence Act on Expert's opinion and nothing has to be said in that regard as I have bypassed in this case those opinions.
18. On behalf of the respondents, Shri Chaturvedi has cited Jaswant Kaur, AIR 1977 SC 74, which reiterates the settled law. It states that propunder's duty to satisfy Court's "conscience" is heavy one and that is not discharged when cogent and convincing explanation of suspicious circumstances surrounding the making of a Will is not furnished. In Ramkishan v. Jankidevi, 1988 (II) MPWN 19, this Court has held that testator's confinement in hospital did not prevent his execution or registration of the Will and when such registration is done, certificate of physical fitness on test by doctor is not necessary. Om Prakash, 1990 JLJ 224, reiterates the settled law that propounder has to prove the Will by allaying all suspiction. Rewa Ram v. Ram Ratan, 1961 ILI 1126, is this Court's D. B. decision reiterating the settled law that long cohabitation raises a clear presumption of a valid marriage and of legitimacy of the offsprings.
19. Having dealt with the decisions cited on both sides, I entertain no doubt at all that the finding and conclusion which I have reached are not affected in any manner. Law cited fortifies the view I have taken in this matter. I accordingly hold that the trial Court has rightly granted probate to respondent Jagannath Singh on the Will (Ex. P/2) propounded by him having been found genuine and valid. I reiterate once again that the Court below also rightly refused to grant porbate to Natthan Singh as the Will, Ex. P/1, propounded by him has not been proved to be genuine.
20. In the result, both appeals fail and they are dismissed. However, there shall be no order as to costs.