Punjab-Haryana High Court
State Of Punjab vs Vishwajit Singh And Ors. on 6 March, 1986
Equivalent citations: AIR1987P&H126, AIR 1987 PUNJAB AND HARYANA 126
JUDGMENT
1. Briefly the case of the petitioner is that Smt. Parbati Kaur widow of late Arjan Singh of Kapurthala executed a will dt. 21st July, 1956 at Indore bequeathing all her property for the benefit of general public in favour of Randhir Jagatjit Hospital, Kapurthala (hereinafter referred to as 'the Hospital') and appointed Jagan Nath Paul of Jalandhar as the sole executor of the will. She died at Indore on l5th Aug. 1956. Jagan Nath Paul refused to act as executor on account of his age. Consequently a petition has been filed by the State through the Chief Medical Officer, Kapurthala for grant of Letters of Administration on the basis of the will.
2. The petition has been contested by Vishwajit Singh respondent No. 1, Sehdev Singh respondent No. 2 and Atam Dev Singh respondent No. 3. Vishwajit Singh, in his written statement, pleaded that Smt. Parbati Kaur did not execute any will in favour of the Hospital as alleged. She was not of sound and disposing mind on the date when the will is alleged to have been executed by her. The will is also invalid as she was limited owner of the property and could not dispose it of by a will. Consequently the petitioner is not entitled to get Letters of Administration. Respondents Nos. 2 and 3 pleaded that the petition has been filed by an unauthorised person on behalf of the State, that the petitioner has no right to file a petition for Letters of Administration in the presence of the executor named in the will, that the petition is not properly verified and that the petition is bad for misjoinder of parties as respondent No. 1 has no right or interest in the property. It is further pleaded that the petition is not within limitation and that it is not maintainable as they are in possession of the property of the deceased. They also pleaded that the deceased did not execute any valid will.
3. On the pleadings of the parties the following issues were framed by the District Judge. Kapurthala where the petition was filed:
1. Whether the application has been filed by an unauthorised person?
2. Whether Sh. Jagan Nath Paul has refused to act as an executor, if so, its effect?
3. Whether the deceased has executed any valid will in favour of the applicant?
4. Whether the application is properly verified, if not so, to what effect?
5. Whether the application is bad for misjoinder of parties?
6. Whether the application is within limitation?
7. Whether the respondents Nos. 1 and 2 are in possession of the property in dispute, if so, its effect?
4. Sehdev Singh died during the pendency of the proceedings. Later the petition was transferred to this Court.
Issue No. 15. The petition for probate was filed on 13th Aug. 1970. It was signed by the Deputy Commissioner, Kapurthala and the Government Pleader, Kapurthala and presented by the Government Pleader, Kapurthala. Later the petition was amended an filed by, the Government Pleader, Kapurthala. O. 27, R. 2 of the Civil P.C. relates to the persons authorised to act for Government. It reads as follows:
"Persons being ex-officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government."
Under the said rule notification No. 22963 (Judicial) dt. 10th Dec. 1917, was issued by the Punjab Government providing that all Government Pleaders under the abovesaid rule were authorised to act for the Government in respect of all judicial proceedings in the Courts within the civil districts for which they were appointed. From a reading of the rule and the notification it is clear that the Government Pleaders are entitled to act on behalf of the Government in the judicial proceedings in the districts in which they are appointed as such. R. 1 of O. 3 says that any application or act in or to any Court required or authorised by law to be made or done by a party in such Court may be made or done by the party in person or by his recognised agent or by a Pleader on his behalf. Thus the Government Pleaders are recognised agents within the meaning of the said rule and are entitled to institute and defend proceedings on behalf of the Government. After taking into consideration the aforesaid circumstances, I am of the view that the petition has been filed by an authorised person. The issue is consequently decided against the respondents.
Issue No. 26. The first question to be determined is whether Jagan Nath Paul refused to act as an executor. Hari Chand (R.W. 4) has deposed that Jagan Nath Paul refused to act as executor. This fact has also been admitted by Jagan Nath Paul in his letter dt. 1st Sept. 1961, Exhibit R. 6, addressed to the Assistant Collector, State Duty, where in he said to on account of old age and ill health he was not in a position to act as sole executor. In view of the aforesaid evidence Mr. Kaushal has fairly conceded that Jagan Nath Paul refused to act as an executor. Now it to be seen what is the effect of his refusal. S. 232f the Succession Act provides that when the deceased has appointed an executor who refuses to act, a universal or residuary legatee may be admitted to prove the will and Letters of Administration with the will annexed will be granted to him for the estate. Universal legatee has not been defined in the Act. However, in Black's Law Dictionary, Fourth Edition 'universal legacy' has been defined as a testamentary disposition by which the testator gives to one or move persons, the whole of the property which he leaves at his decease. It emerges from the definition that a universal legatee is a person to whom the testator bequeathes whole of his property. Through the present will the testatrix bequeathed whole of her property in favour of the Punjab State. Therefore, I am of the opinion that it is entitled to make the present petition for Letters of Administration.
Issue No. 3.
7. Before dealing with the evidence of the parties it is appropriate to see the standard of evidence required to prove a will. It is well settled that a will is to be proved like.any other document. The test to be applied is the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills; one cannot insist on proof with mathematical certainty. S. 63 of the Succession Act requires a will to be attested by at least two witnesses. Therefore, it cannot be used as evidence unless at least one attesting witness has been called for purpose of proving its execution, if there is one alive and subject to the process of the Court and capable of giving evidence. Where the execution of the will is surrounded by suspicious circumstances the suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind land memory at the time when the will was made or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of the suspicious circumstances makes the initial onus heavier and therefore in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. In connection with the execution of the will which is surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. The test emphasises that in determining the question as to whether the instrument produced before the Court is the last will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the will has been validly executed by the testator. Normally the onus which lies on the propounder can be taken to be discharged on proof of essential facts which go into the making of the will. (See AIR 1959 SC 443 and AIR 1977 SC 74).
8. The evidence has to be examined in view of the above observations. The attesting witnesses of the will are Yog Raj (AW 1) and Dr. Mohd. Iftikhar Ali (AW 4). The will was authenticated by Shri Durga Shanker Panna Lal Vohra, Additional District Magistrate, Indore. The will is a typed document. However, the name of the scribe is not known and consequently he has not been produced. Yog Raj was the stenographer and Personal Secretary to Col. Dina Nath, the real brother of the testatrix, Smt. Parbati Kaur. She was then residing with Col. Dina Nath. He, before the merger of Indore, was the Prime Minister of that State. At the time of the execution of the will Col. Dina Nath was working as the Adviser to the Up Raj Pramukh, Madhya Bharat, who was the ruler of the State of Indore. Earlier he had served as Education Minister in the Patiala State. Yog Raj had worked with Col. Dina Nath for 18/20 years at different places as Steno-cum-personal Assistant. He deposed that Smt. Parbati Kaur was living with Col. Dina Nath in those days. Earlier she used to visit and stay with him for about six months in a year. For the remaining period she would stay in Kapurthala in her house. Her husband, late Shri Arjan Singh who belonged to princely family of Kapurthala, died long back in China. She knew Urdu a little and she would also sign in Urdu. He had seen her writing several times and he could identify her signatures. The will (Exhibit A. 1) was read over to her and the contents thereof were explained to her in vernacular. After admitting the same, she signed the will in his presence and he and Dr. Ali attested the same in her presence. She was in sound and disposing mind and in full senses at that time. She bequeathed her entire property at Kapurthala as well as other movable and immovable property to Government for utilising the same for the purpose of charity. The Additional District Magistrate, Indore was called in Yashwant Niwas Palace for authentication of the will and he authenticated the same in his presence as well as in the presence of Dr. Ali. He further said that Dr. Ali used to give her injections for sometime for her ailments.
9. Dr. Ali (AW 4) was examined twice by the Court. The present petition was filed before the District Judge, Kapurthala who recorded the statements of Yog Raj (AW 1) and Shri Durga Shanker Panna Lal Vohra (AW 2). He appointed Shri Darshan Singh Josh, Advocate, for recording the statement of Dr. Ali on commission who did so on 22nd December, 1978. Later it was discovered that the properties were situated in different States and their value was more than Rs. 10,000/-. Consequently the case was ordered to be transferred to this Court vide order dt. 22nd Feb. 1979 by A. S. Bains, J., as under S. 273 of the Succession Act only this Court was entitled to grant Letters of Administration. On transfer Harbans Lal, J. before whom the 'case was listed, ordered that the statements of Yog Raj (AW 1) and Shri Vohra (AW 2) need not be recorded afresh. However, the statement of Dr. Ali be recorded afresh as his statement had not been recorded completely. Consequently Shri Ashok Aggarwal, Advocate, was appointed as a Commissioner for that purpose and he recorded his on 16th Aug. 1980. When Dr. Ali was examined earlier, he supported the petitioner fully and deposed that the testatrix was known to him three years prior to the execution of the will. He was a family doctor of Smt. Parbati Kaur. He knew Yog Raj who was steno to Col. Dina Nath. The will was read over to the testatrix in her language. Having heard and admitting it to be correct, she put her signatures in Urdu in his presence. He attested the will in English and certified thereon that she put her signatures on the will in his presence and at that time she was in perfect mental condition. Yog Raj also put his signatures on the will. The will was prepared on 21st July, 1956. In order to get it authenticated Shri Vohra was called at Yashwant Niwas on 23rd July, 1956. Shrimati Parbati Kaur was not in a position to move about easily. At the time of attestation he was present and he identified the testatrix in the presence of Shri Vohra and verified that she was of sound mind. Shri Vohra explained the will to her in Hindi and she put her signatures in his presence. In the margin of the will he (the witness) also put his signatures again. Shri Vohra recorded certificate of attestation on the will. She executed the will of her own accord and free-will and no pressure was put on her. She breathed her last at Jashwant Niwas. When he was examined again on 16th Aug. 1980, he took a complete somersault and denied the aforesaid facts. He stated that the testatrix did not append her signatures in his presence. He also denied other material facts except the fact that she was in sound disposing mind at the time of the execution of the will and that he had signed the will twice; once as an attesting witness and then at the time of authentication. When he was confronted with the parts of his earlier statement, he said that his statement had been incorrectly recorded. Each page of his statement bore his signatures. When he was asked as to how he signed each page when he did not admit the correctness of the statement, be said that the first page was got signed from him in his house immediately after recording the statement. The other pages were got signed from him subsequently. He, however, admitted that Smt. Parbati Kaur was not a pardahnashin lady.
10. Shri Vohra (AW 2) stated that on 24th July, 1956, he was posted as Additional District Magistrate, Indore. According to the rules in force in Indore State at that time he was competent to authenticate the wills. The will, Exhibit A. l, was presented to him on 23rd July, 1956 for authentication. He went to Jashwant Niwas, Indore where the testatrix was residing for authentication of the will. He read over the will and explained the contents in Hindi to her. Thereafter the testatrix admitted the contents and appended her signatures thereon. She was in sound disposing mind at that time. Dr. Ali was personally known to him and he certified that she was mentally in a fit condition to execute the will. Dr. Ali also signed in the margin of the will, Exhibit A. 1, in his presence. The will was authenticated on the evening of 23rd July, 1956 and was entered in the register for authentication on 24th July, 1956 where it was entered at serial No. 848. After making an entry in the register, the will was returned to the testatrix.
11. Mr. Mann has vehemently urged that the execution of the will has been proved from the statement of Yog Raj (AW 1) and the former statement of Dr. Ali. Further the will was authenticated on 23rd July, 1956. Shri Vohra, who authenticated the will in her presence, had explained its contents to her. He thus also becomes an attesting witness of the will. According to him, even if the statement of Dr. Ali is not taken into consideration, the will stands fully proved from the statements of Yog Raj and Shri Vohra.
12. On the other hand, Mr. Kaushal has urged that the statement of Dr. Ali cannot be read as a substantive evidence as it was ordered to be recorded by the Court which had no jurisdiction to decide the case and that the respondents were not given adequate opportunity to cross-examine him. In his later statement Dr. Ali did not prove the execution of the will as required by S. 63 of the Succession Act. In fact Dr. Ali's earlier statement in view of the above circumstance could not be utilised even for contradicting him at the time of recording his statement subsequently. Yog Raj's statement is also falsified by the subsequent statement of Dr. Ali. Yog Raj, after proving the execution of the will, stated that he was present at the time of its authentication but his presence at that time does not stand proved. In case he was present, that fact would have been noted by Shri Vohra and he would have been asked to sign the will at the time of authentication. His presence is also not admitted by Shri Vohar,. It shows that Yog Raj was not making a correct statement and, therefore, no reliance should be placed on it. Regarding Shri Vohra he has argued that he had stated that whole of the endorsement was in his hand by Shri B. L. Sanothia's (RW 6) has stated that part of the endorsement was in his hand. Shri Sanothia's statement falsifies Shri Vohra. Thus no reliance can be placed on his statement too.
13. In view of the abovesaid arguments, firstly, it is to be seen whether the first statement of Dr. Ali can be read as a substantive evidence and if not, what value can be attached to it. His statement, as already mentioned above, was recorded by the order of the District Judge, Kapurthala who had no jurisdiction to try the petition. The petition was subsequently withdrawn to this Court vide order dt. 22nd Feb. 1979. Sub-section (2) of S. 24 of the Civil-P.C. provides that where any suit or proceeding has been withdrawn the Court may retry or proceed from the point at which it was withdrawn. In view of the aforesaid provision this Court could determine as to whether it would proceed from the stage at which it was withdrawn or it had to retry the case. Harbans Lal, J. while deciding the matter, held that the evidence recorded by the District Judge except the statement of Dr. Ali be read into evidence. For recording the statement of Mr. Ali a fresh commission was appointed. It is near from the order that.the statement of Dr. Ali which was record by the order of the District Judge was not to be treated as a substantive evidence. In the circumstances it cannot be held that his statement can be read as a substantive evidence.
14. Even if Dr. Ali's statement cannot be treated as a substantive evidence it can be used for the purpose of contradicting him under S. 145, for impeaching his credit under S. 155 and for corroborating him under S. 157 of the Evidence Act. In this regard reference may be made to Major Som Nath v. Union of India, AIR 1971 SC 1910, wherein it was observed that an earlier statement of a witness can be used in cross-examination for contradicting him under S. 145 of the Evidence Act. When the witness is contradicted by his previous statement in such manner, then that part of the statement which had been put to the witness would be considered along with the evidence to assess the worth of the witness in determining his veracity. Similar observations were made in Kanu Ambu Vish v. State of Maharashtra, AIR 1971 SC 2256. It was observed there that where a witness is confronted by his previous statement and is given an opportunity to explain that part of the statement which is put to him does not constitute substantive evidence. It is also well settled that whole of the statement of the witness who has been allowed to be cross-examined by the party who called him need not be thrown away. A part of the same can be held to be creditworthy if his credit has not been completely shaken by the Court. The following observations of the Supreme Court in this regard may be read with advantage:
"It may be pointed out that any statement made in the Panchnama cannot be used in evidence except for the purposes of contradicting the witness whose statement is contained in Panchnama but if it is intended to contradict him by the writing, his attention must before the writing can be proved, be called to those parts of it which are to be used for contradicting him. This is what is required under S. 145 of the Evidence Act but even where a witness is confronted by his previous statement and given an opportunity to explain, that part of the statement that is put to him does not constitute substantive evidence. We think the High Court was not justified in its comment on the appreciation of the evidence of these by the learned Special Judge even though it observed that the better course would have been to seek permission to cross examine Panch Harishchandra."
Similarly in Karuppanna Thevar v. State of Tamil Nadu, AIR 1976 SC 980, it was observed that a hostile witness may not be rejected outright but the Court has at least to be aware that prima facie a witness who makes different statements at different times has no regard for truth. The Court should therefore be slow to act on the, testimony of such a witness and look for corroboration to his evidence. It is also well-settled that if a statement of a witness is rejected by the Court, it cannot be made a basis for judging the veracity of other witness by the yardstick of that unreliable evidence (see Ravinder Singh v. State of Haryana, AIR 1975 SC 856).
15. Faced with this situation Mr. Kaushal has argued that the former statement of Dr. Ali was recorded by the order of the Court which had no jurisdiction. Therefore it could not be used even for the purpose of contradiction or corroboration or shaking his credit. I am not impressed with this argument. The statement of a person does not cease to be his statement merely because it was written in the aforementioned circumstances. Even if the Court had not passed the order for recording the statement and the statement would have been recorded, such a statement could be made use of for the purposes of Ss. 145, 155 and 157 of the Evidence Act. Consequently I reject the submission of Mr. Kaushal.
16. We have now to examine the statement of Dr. Ali taking into consideration the above observations. The statement given by Dr. Ali when he was examined on 22nd Dec. 1978 has been reproduced above. When he was examined on 16th Aug. 1980 he deposed that the signatures of Smt. Parbati Kaur were not appended in his presence and Yog Raj did not sign in his presence. When the will was being executed, Shri Vohra was also present who authenticated the will in his presence. He could not see whether Shri Vohra signed the will in his presence or not. When he was confronted with the part of his earlier statement he said that that statement was incorrectly recorded. He went to the extent of saying that his signatures on the earlier statement were appended by him at two different times which fact cannot be accepted. Shri Darshan Singh Josh, Advocate, who was appointed commission, stated that he recorded the statement of Dr. Ali correctly and read over the same to him and he signed it after admitting its correctness. Each page of the statement was signed by him. Shri K. L. Kapur who represented respondent No. 1 and Shri Gur Rattan Pal Singh who appeared on behalf of L.Rs of Sohan Singh deceased, respondent No. 5, did not cross examine the witness, with regard to the aforesaid fact. It is well settled that if a witness is not cross-examined with regard to a particular fact, it is assumed that that fact is admitted by the other party as correct. Moreover, the signatures on various pages of the statement appear to have been appended with the same pen and under the signatures Dr. Ali has given the same date. Therefore, it cannot be said that the statement of Dr. Ali which was read over to him was incorrectly recorded by Shri Darshan Singh Josh. The witness, it appears, discarding all moral values made a different statement on the latter occasion for reasons best known to him. He is, to my mind, an unreliable person and no credence can be placed on his testimony.
17. We are now left with the statements of Yog Raj (AW 1) and Shri Vohra (AW 2). Yog Raj fully supports the petitioner and from his statement the execution of the will by Smt. Parbati Kaur is fully established. The relevant part of the statement has already been reproduced above. He was intimately connected with the family of Col. Dina Nath and his presence at the time of the execution of the will is established beyond doubt. Mr. Kaushal has argued that no reliance should be placed on his statement, as he deposed that he was present at the time of authentication of the will as well, but that fact is not admitted by Shri Vohra. According to him, if he tells lie on one material fact, he cannot be held to be a truthful witness. I do not find any substance in this submission. As already mentioned, he was Personal Assistant of Col. Dina Nath and it is possible that he was present at the time of the authentication, but his presence was not recorded in the endorsement made by Shri Vohra at the time of authentication. Shri Vohra did not categorically deny Yog Raj's presence at the time of authentication. On the other hand he deposed that he did not remember whether Yog Raj was present at that time or not. In the circumstances, his presence at that time cannot be ruled out.
18. The relevant part of Shri Vohra's statement has, also been reproduced above. It may again be highlighted that he authenticated the will. At the time of authentication he read over the will and explained the contents in Hindi to the testatrix. Thereafter she appended her signatures thereon and he also signed in her presence. Shri Vohra also stated that she was of sound and disposing mind at the time of the execution of the will. In the aforesaid circumstances, he can also be treated as an attesting witness of the will, as he complied with all the formalities mentioned in S. 63 of the Succession Act. In this regard, reference may be made to a decision of this Court in Labh Singh v. Piara Singh (deceased by L.Rs.), AIR I984 Punj & Har 270. In that case, the will was got registered by the testator. The Sub-Registrar testified that he had read over the will to the testator who admitted having executed the same. The endorsement was then thumb-marked by the testator and signed by the Sub-Registrar. It was observed by the learned Judge that it would be reasonable to gather from the circumstances that the Sub-Registrar had not merely registered the will formally but had appended his attestation for the purpose of attesting the fact that the testator had personally acknowledged his thumb impression on the document. Since the testator affirmed the contents of the will and put his thumb impression on the endorsement in the presence of the Sub-Registrar, therefore, the Sub-Registrar could also be considered to be an attesting witness of the will. I am in respectful agreement with the above observations. Next Mr. Kaushal has challenged the correctness of the statement of Shri Vohra. He submits that Shri Vohra said that the entire authentication was in his hand, but Shri Sanothia, who was an assistant in his office and who accompanied him, said that part of the endorsement was in his handwriting.. He drew my attention to the statement of Shri Sanothia wherein he said that on 23rd July, 1956, Col. Dina Nath had come to the Chamber of Shri Vohra, A.D.M., who called him and told him that the will of Smt. Parvati Kaur had to be authenticated and that he should accompany him as a commission. Col Dina Nath took both of them in his car to his residence. He and Shri Vohra were present in the palace room where the will was authenticated. Shri Vohra asked him to make the endorsement on the will. The writing below the endorsement in the form of a note was in the handwriting of Shri Vohra. He did not write complete endorsement, since he objected that the testatrix was not present and he asked that she should personally appear before them. At that Shri Vohra became angry and took the will from him and wrote the note in his own hand. No witness appeared before them and put his signature in their presence. Even the testatrix did not put her signatures in their presence. Shri Vohra appeared in the witness-box. No such question was put to him in cross-examination. In case the will was authenticated in that way, Shri Vohra should have been cross examined. Moreover, the statement of Shri Sanothia is against the endorsement made at the time of authentication of the will. The authentication is in Hindi and its English translation reads as follows:--
"It has been presented today, the 23rd July, 1956 for authentication. We arrived at Yashwant Niwas, Mukoh Ganj (Indore) at about 7 P.M. for registration. I have explained to Smt. Parvati Kaur, the testatrix, resident of.... (illegible), originally resident of Kapurthala, at present Yashwant Niwas Palace, Mukoh Ganj, Indore, that I am a Magistrate and have come for the purpose of authentication. Dr. Mohammad Iftikhar Ali (has stated) that the testatrix is in a state of sound intellect. Dr. Iftikhar Ali has identified the testatrix to my satisfaction.
Authentication All the contents of the will have been read over and explained to the testatrix in Hindi. Each item was read over to her whereupon the testatrix has executed it by putting her signatures of her own accord and free-will. The testatrix is capable of hearing, speaking, understanding and thinking. She has answered to my questions. She is unable to walk due to physical weakness and old age but she is capable of making decision and repudiation regarding her property. She has expressed cancellation of her previous will No. 647 dt. 22-5-53 by executing this will. The previous will has been presented in original whereon I having made an endorsement regarding (cancellation) obtained the signatures of the testatrix.
Note:--The entire proceedings have taken place in my presence and under my directions and I have fully satisfied myself.
It has been authenticated today, the 23rd July, 1956 at 7.10 p.m. Sd/-
Md. Iftikhar Ali Addl. District 23-7-56 Magistrate Indore."
Sd/-
Sardarni Parvati Kaur From the reading of the endorsement and the note and after seeing the handwriting of the aforesaid writings, it is clear that the endorsement had been made by some person other than Shri Vohra in his presence. It does not appear correct that the note was given by Shri Vohra because he became angry with the person who wrote the endorsement. The endorsement is complete in itself and necessity of the note seemed to have arisen as the endorsement was not recorded by Shri Vohra himself. No question was put to Shri Vohra by the respondents as to who accompanied him when he went for authentication and who recorded the endorsement. If the question had been put to him by them, he would have made the things clear. It was also not pleaded in the written statement by the respondents. It is further relevant to mention that Shri Vohra deposed that the will was entered in the register for authentication in his office on 24th July, 1956, at serial No. 848. It is thus evident that the procedure of authentication at that time in the State was similar to that of registration. Shri Vohra is a highly respectable witness and his statement finds corroboration from the endorsement on the will. Therefore, his statement cannot be discarded on the ground that Shri Sanothia had made a contradictory statement. Even if it may be assumed that the endorsement was made by Shri Sanothia, the version given by him that the testatrix was not present at the time of authentication does not inspire confidence. Is the endorsement, firstly-it is stated that it was explained to Smt. Parbati Kaur that Shri Vohra had come for the purposes of authentication and then it is said that the will was explained to her. From the language used in this part of the endorsement, it is clear that Smt. Parbati Kaur was present when Shri Vohra reached Yashwant Niwas for authentication of the will. The statement of Shri Sanothia that she was not present at the place where he and Shri Vohra were sitting and that she was sitting in an adjoining room is palpably false. thus his statement cannot be accepted.
19. Mr. Mr. Kuashal has further argued that the statement of Shri Vohra is untrustworthy as he stated that the will was returned on 24th July, 1956 where as the will was returned to Kale Khan, an orderly of Col. Dina Nath, on 23rd July, 1956, In order to support his statement of Shri Sanothia and the application dated 23rd July, 1956 purported to be signed by Mrs. K. Bhagat and alleged to have been written by Shri Sanothia. Shri Sanothia's statement, as already observed, is not worthy of credence. It may further be mentioned that there is discrepancy in his statement in this regard. First he said that the will was handed over to Col. Dina Nath when they were leaving the palace. At a later stage he said that it was returned by him to Kale Khan in original who signed in his presence in token of having received the same. Thus no reliance can be placed on his statement. The document referred to by Mr. Kaushal has not been formally proved. It is true that Kale Khan has acknowledged to have received the will but there is no date given by him on which he received it. At the top of the document the serial number at which the will was entered in the register and the date of entry is 848/247-1956. The same number and the date are mentioned at the top of the will. Thus it is clear that the will was returned after it had been entered in the register wherein such documents are entered. It could not be prior to 24th July, 1956. Consequently I do not find any substance in this submission of the learned counsel.
20. Mr. Kaushal has next contended that Hari Chand Sabharwal (RW 4), a Keranda of the testatrix, has stated that she used to sign as Sardarni Arjan Singh and not as Sardarni Parbati Kaur. He submits that the circumstance that she signed as Sardarni Parbati Kaur is a suspicious circumstance. I do not find any substance in this submission. It is true that Hari Chand Sabharwal has produced letters, Exhibits R. 4 and R. S, which are purported to have been signed by the testatrix as Sarderni Arjan Singh but he could not tell by whom the letters had been written. He further stated that he had no other letter except those two letters. Though he had been receiving various letters from her yet he has not been able to give the reason as to why he maintained only two letters. It appears that he has withheld other letters and produced only the two letters bearing the signatures as Sardarni Arjan Singh. It also appears that at some place she was signing as Sardarni Arjan Singh while at the other as Sardarni Parbati Kaur. It is evident from the statement of Shri B. S. Shergill, Income Tax Officer. he says that some arrears were shown in the name of Smt. Parbati Kaur, widow of late S. Arjan Singh. She also signed as Sardarni Parbati Kaur on the documents dt. 6-12-1954. Therefore, the will cannot be rejected on this ground.
2l. Mr. Kaushal then referred to the opinion of Shri Harkishan Lal Budhwar, Handwriting Expert. He compared the signature of the testatrix are the will with her signatures on the postcards, Exhibits R. 4 and R. 5, application Exhibit R. 8 and affidavit, Exhibit R. 9 and opined that both the signatures on the will were not of the same person who had signed the postcards, the application and the affidavit. Mr. Kaushal says that the opinion of the expert was in favour of the respondent and there are no grounds to discard his statement. I am not convinced with the submission. The reasons are that in cross-examination he admits that the science of identification of handwriting is not an exact science like the science of comparison of finger prints. He also admits that the best admitted signatures should be of the same period to which the disputed signatures relate. However, no attempt was made by the respondent to obtain the documents, which were signed by her at the time when the will was executed. She had accounts in the banks and he could get the cheques produced from the banks. Moreover, the documents, Exhibits R. 4, R. 5, R. 8 and R. 9, are signed as Sardarni Arjan Singh and not Sardarni Parbati Kaur. It may also be highlighted that there were documents dt. 6th Dec. 1954 on the record which were signed by the testatrix as Sardarni Parbati Kaur. There could be no doubt about the genuineness of those documents as they were attested by the Additional District Magistrate, Indore. However, the expert did not compare those signatures with the signatures on the will. When questioned as to why he did not compare the signatures on the will with those on the documents dt. 6th Dec. 1954, he said that the learned counsel for Vishwajit Singh has asked him to compare the signatures on the will only with the signatures on the Exhibits, R. 4, R. 5, R. 8 and R. 9. Before preparing the report he must have enquired from the respondent or his counsel whether the signatures of the testatrix as Sardarni Parbati Kaur existed on some documents or not. There was no ground for them not to disclose that her signatures as Sardarni Parbati Kaur existed on the documents dt. 6th Dec. 1954. Those documents are appended in the same file in which Exhibits R. 4, R. 5, R. 8 and R. 9 are appended. The file was got produced by the respondents and these documents are annexed therein immediately before Exhibits R. 8 and R. 9. While taking photographs of the aforesaid Exhibits, he must have also seen himself the documents dt. 6th Dec. 1954 but he knowingly did not compare the signatures on the will with those on the documents dt. 6th Dec. 1954. It is thus clear that he is not an independent witness and was determined to support the party on whose behalf he appeared. Therefore, no reliance can be placed on his statement.
22. The next contention of Mr. Kaushal is that the signatures of the testatrix are at the top of the second page, whereas the first page does not bear her signatures. According to him it was a suspicious circumstance. I do not find any substance in this submission as well. The body of the will ended on the first page and there was no space left at the bottom. Consequently the testatrix signed on second page. The signatures are not on a separate leaf but at the back of the same leaf on which the will was scribed. The signatures of the witnesses are below her signatures. It is also relevant to highlight that she again signed in the margin before Shri Vohra on the second page. Thus it cannot be said to be a suspicious circumstance.
23. It is next contended by Mr. Kaushal that the name of the typist who typed the will, has not been disclosed by the propounder. In the present case it was incumbent upon it to have produced him. It is true that the name of the typist has not been disclosed. However, the will cannot be rejected on this ground. The beneficiary in the present case is the State. No one on behalf of the State was present at the time of the execution of the will. It would not know who typed the will. As discussed above, its execution has been proved in accordance with law. Therefore it cannot be rejected on the ground that the scribe has not been produced.
24. Mr. Kaushal has then argued that the testatrix was of 75 years of age. She was bedridden, her eye-sight was weak and she was hard of hearing: Therefore, she was not in a position to execute the will during the period when it is alleged to have been executed. He further submits that there were no grounds for her to disinherit the nearest heirs. I am not impressed with this submission also. The testatrix had no child and her husband had died in or about 1936. After the death of her husband she was being looked after by Col. Dina Nath. She used to stay with him for a long period each year. Before her death, she lived with him for about 3 years. There was litigation between her and the nephew of her husband. It is relevant to mention that she even did not give property to her brother and his children who were so close to her. There is no evidence that the brothers of her husband had been looking after her. That goes a long way to show that the testatrix wanted that her property should be utilised for some charitable purposes. She, therefore, bequeathed the property in favour of Jagatjit Hospital, Kapurthala. Regarding her mental condition, even Dr. Ali admitted that she was of sound and disposing mind at the time when the will was executed by her. He was her physician for a long time. In addition there is statement of Shri Yog Raj and Shri Vohra. There is no reason to disbelieve them. Therefore, I do not find any substance in this submission also. For the aforesaid reasons I hold that the deceased executed a valid will in favour of the applicant.
Issue No. 625. Mr. Mann has submitted that no period of limitation is prescribed for an application for probate or Letters of Administration on the basis of a will and, therefore, such an application can be filed at any time. On the other hand, Mr. Kaushal has argued that Art. 137 of the Limitation Act prescribes a period of three years for all applications including an application for probate or Letters of Administration on the basis of a will. The present application was filed in Aug., 1970 whereas the testatrix died in Aug., 1956. Thus the application is clearly barred by limitation.
26. I have given my thoughtful consideration to the arguments of the learned I counsel. It is true that Art. 137 prescribes a I period of three years for all applications for; which no period of limitation is provided elsewhere, but it is not applicable to an application for probate or Letters of Administration on the basis of a will. The reason is that a duty is cast by the author of a will to administer his estate after his death and an application for probate or Letters of Administration on the basis of a will is made to seek permission of the Court to perform that duty. The right to apply continues till the duty is not performed. In this view I find support from the observations of a Division Bench of Madras High Court in Gnanamuthu Upadesi v. Vana Koilpillai Nadan, (1894) ILR 17 Mad 379. The following observations may be read with advantage:
"The reason for the exemption of applications for probate from the operation of the Limitation Act probably is that the application for probate is in the nature of an application for permission to perform a duty created by a will or for recognition as a testamentary trustee, and the right to apply continues so long as the object of the trust exists or any part of the trust if really created remains to be executed."
27. The above view was followed by the Division Benches of the Calcutta High Court and Patna High Court in Kalinath Chatterjee v. Nagendra Nath Chatterjee, AIR 1959 Cal 81 and Ramanand Thakur v. Parmanand Thakur, AIR 1982 Pat 87. Concurring with that view it was held in Kalinath's case (supra) that the right to apply for probate accrues from day to day so long as the will remains unprobated. The reason why the applications for probate are exempted from operation of the Limitation Act probably is that such an application is in the nature of an application for permission to perform a duty created by the will or for recognition as a testamentary trustee and the right to apply continues so long as the object or the trust exists or any part of the trust if really created remains to be executed. In Ramanand Thakur's case (supra), agreeing with the above view, it was observed:
".....the right to apply for a probate accures from day to day so long as the will remains unprobated. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the will remains unprobated and, therefore, for such an application there is no period of limitation and for taking this view we find full support from the Calcutta case which also finds support from the view taken by the Madras High Court in the case of Gnanamuthu Upadesi v. Vana Koilpillai Nadan, (1894) ILR 17 Mad 379. Therefore, while holding that the Art. 137 of the new Limitation Act applies to any petition or application filed under any Act, we do not feel any difficulty to come to the conclusion that so far as the application for grant of a Probate or Letters of Administration is concerned, they are not governed by any Article of the Limitation Act."
An application for Letters of Administration on the basis of the will stands on the same footing as an application for probate. The reason is that similar provisions have been made in the Succession Act for obtaining the probate and Letters of Administration on the basis of the will. The probate according to S. 222 can be given only to an executor and no one else. If the executor refuses to act or has died before he has proved the will, then an application for Letters of Administration on the basis of the will is maintainable. Under S. 232 such an application can be filed by a universal or a residuary legatee. The form of the application is prescribed in S. 276. The said section is also applicable in the case of an application for probate. Universal legatee, as already mentioned above, is a person to whom the testator bequeathes whole of his property. Residuary legatee, on the other hand, is a person to whom residue of the personal estate after the discharge of all debts, particular legacies, etc. is given by the testator. Therefore, they have a right to file an application for Letters of Administration on the basis of the will. However, different provisions have been made for obtaining the Letters of Administration of the estate of a deceased who dies intestate. Such any application is made under S. 218. The form of the application is prescribed in S. 278. Thus there are two sets of sections, one set governs an application for probate/Letters of Administration based on a will and the other set an application for Letters of Administration of the estate of a deceased who dies intestate. Therefore, the ratio in the abovesaid cases will apply to an application for Letters of Administration on the basis of a will.
28. The learned counsel for the respondent has placed reliance on re: Petition of Smt. Pushpa Kochhar and another, Probate No. 2 of 1984, decided on 7th Feb., 1985: (reported in AIR 1987 Punj & Har 122). In that case an application for Letters of Administration was filed regarding the estate of a deceased who had died intestate. The learned Judge held that Art. 137 of the Limitation Act was applicable to such applications. The above mentioned case were also cited before the learned Judge. While distinguishing those cases it was observed by him that an application for probate of the will stands altogether on a different footing than an application for Letters of Administration. It is thus clear that the learned Judge was making a distinction between an application for Letters of Administration with regard to the estate of a deceased who dies intestate and an application for probate. Mr. Kaushal cannot derive any benefit from the observations made therein. Consequently I am of the opinion that Art. 137 of the Limitation Act is not applicable to an application for probate/Letters of Administration based on a evil. For the aforesaid reasons the application is within limitation.
Issues Nos. 4, 5 and 729. These issues have not been pressed by Mr. Kaushal. Consequently they are decided against the respondents.
30. For the reasons given above, I accept the petition and grant Letters of Administration to the petitioner. No costs.
31. Order accordingly.