Patna High Court
Harihar Prasad Sao vs Bhagwan Das And Ors. on 11 November, 1970
Equivalent citations: AIR1972PAT146, AIR 1972 PATNA 146
JUDGMENT B.D. Singh, J.
1. This appeal & directed against the judgment and decree passed by the Judicial Commissioner of Chotanagpur, Ranchi, refusing to grant probate to the appellant, on his application dated the 31st July. 1963, under Section 276 of the Indian Succession Act, 1922 in respect of the will executed on the 28th July, 1956, by Mukhlal Sao, one of the sons of Fulchand Sao, in favour of the appellant.
2. In order to appreciate the point which has been urged on behalf of the contesting respondent (respondent No. 4), it will be convenient to note below the genealogical table of the family of the appellant and the respondent: (See genealogical table on next page) According to the appellant, Mukhlal Sao, after duly executing the said will, died on the 24th October, 1956, at his residence at Upper Bazar. Ranchi, leaving behind respondents Nos. 1. 2, 3, 4 and 5 as his other near relations, and in the said will, Mukhlal had bequeathed his entire property in favour of the appellant. On behalf of Baijnath Sao (respondent No. 4) who is the main contestant caveat and written statement against the grant of probate of the will were filed in the Court below. It was stated, inter alia, therein that Mukhlal had not executed the will; due to old age and illness it was not possible for him to execute any will nor he had any disposing mind. On the alleged date of execution of the will. Mukhlal was completely in the clutches of the appellant. Even if the will was executed by Mukhlal, he did not execute the same of his own free-will but due to undue influence, fraud and coercion exercised by the appellant. It was further stated therein that respondent No. 4 was the nearest and the sole heir of Mukhlal being his nati (daughter's son) and was entitled to succeed to all the properties left by Mukhlal Sao, under the existing law.
FULCHAMD SAO
________________________________|______________________________
| | | |
Kariman Sao Punai Sao Sibrat Sao MukhUl Sao Bamla Sao
| | | |
| | | W.
Guru Pd. Sao Maribar Pd Sao | (Testator)
| (Applicant | |
| Appellant.) | Daughter
| |
____|______________________ (Mt.Biranchi
| | | |
Lakahman Sao Bhagwan Das | Baijnath Sao
=Lakshmi Devi D 1-R 1 | (D4-R4)
D 5-R 5 |
|
____________________________________
| |
Ramdas Sao Ramlata Sao
|
Sachchita Pd-Sao Kameshwar Pd.
(D2-R2) (D 3 R 3)
Sachchita (respondent No, 2) and Kameshwar (Respondent No. 3) also filed a written objection, objecting to the grant of probate to the appellant. They also stated therein, mainly, that Mukhlal never , executed any will nor was there any occasion to execute the same, Mukhlal was mostly living with the objectors and their father in village Khuduwan in the district of Gava. Mukhlal was happy with the objectors; Punai Sao was the Karta of the joint family and after his death his son Harihar (appellant) looked after the family affairs as Karta of the joint family. Mukhlal was an old man and was always suffering from ailments of old age. Therefore, the appellant might have procured the alleged will by fraud, misrepresentation and deceit in order to lay false claim to the share of Mukhlal in the joint family property. It was further stated therein that the objectors demanded partition of the joint family property but in order to avoid partition the appellant falsely fabricated the will.
3. Another written statement was filed on behalf of Bhagwan Das (respondent No. 1) supporting the case of the appellant. He stated in his written statement that Mukhlal executed the will in his presence and it was duly signed by Mukhlal and attested by the witnesses in accordance with law and the respondent had no objection to the grant of probate of the will to the appellant.
4. On the pleadings of the parties, the following three issues were framed by the Court below:
1. Is the application maintainable?
2. Is the will genuine and valid, or Improperly procured?
3. Is the applicant entitled to grant of probate or letters of administration?
5. On behalf of the appellant, five witnesses including himself were examined. On his behalf, the will was filed. On behalf of respondent No. 4, two witnesses were examined and a postcard, dated the 27th July, 1956 (Exhibit A), alleged to have been written by Mukhlal Sao to Ganga Prasad Baijnath Prasad was also filed.
6. The learned Judicial Commissioner after considering the evidence on record on issue No. 2, found that the will was not genuine and it was improperly procured by the appellant at his house at Ranchi from Mukhlal who was aged 80 years and was completely under the control of the appellant. He further held that the document did not contain all the immoveable properties of the testator. In view of his finding on issue No. 2, he decided issues Nos. 1 and 3 also against the appellant, holding that he was not entitled to the grant of a probate or letters of administration on the strength of the propounded will.
7. Mr. L. K. Chaudhari, learned Counsel appearing on behalf of the appellant, has challenged the above findings of the learned Judicial Commissioner. He submitted that the learned Judicial Commissioner erred in appreciating the evidence on record and also erred in not marking the will as an exhibit. Accordingly an application was filed on behalf of the appellant in this Court, under Section 151, Code of Civil Procedure, praying therein to Summon Raja Lal Pandey, who was one of the attesting witnesses and was also examined as A. W. 1 in the Court below, in order to get the will marked as an exhibit. By order dated the 6th July, 1970, the witness was directed to be summoned as prayed for by the appellant in his application. The witness stated in the Court below as follows:
"I knew Mukhlal and the petitioner. Mukhlal executed a will in my presence in favour of petitioner. The scribe was Jagarnath Munshi. The scribing was done in my presence. He signed the will. This is his signature. He read out the contents to the executant who signed and I also signed as a witness in his presence..........,.".
Even then the will was not marked as an exhibit. It was in this circumstance, and to meet the ends of justice, that the prayer of the appellant was allowed and the witness was summoned. The witness was examined in this court on the 15th September, 1970, and he reiterated that he knew about the execution of the will and that he was a witness to it. He stated that Mukhlal Sao executed the will. The original will was shown to the witness and he said that that was the particular will. He stated that the signatures on the margin of the document were made by Mukhlal Sao. He identified his two signatures on the first page of the will which were marked as Exhibits 2 and 2 (a). He identified also his another signature appearing on the margin of the second page of the will which was marked as Exhibit 2 (b) in this Court. He also stated that the will was scribed and executed in his presence and the contents thereof were read over to Mukhlal. Accordingly, the will itself was marked as Exhibit 3 in this Court. The signature of this witness, who signed as an attesting witness, on the will had already been marked as Exhibit 1 in the Court below.
8. Now, I propose to consider the evidence on record in order to find out whether the will is genuine and duly executed by Mukhlal out of his own freewill and volition. A. W. 1 is a resident of village Chata, P. S. Ballia, district Ballia, and was on the relevant date residing in Upper Bazar in the town of Ranchi. Apart from proving the will, he stated that it was duly executed and attested. He stated that Deoki Nandan Sao (A. W. 2) and Girdhari Lal Sao were also attesting witnesses on the will. He further stated that the testator was of sound mind and body when he executed the will. In cross-examination, he stated that Mukhlal was 80 years of age at the time of execution of the will.
9. Deoki Nandan Sao (A. W. 2), the other attesting witness and resident of village Panda Dih, P. S. Sona Natu, district Ranchi, stated that he knew Mukhlal, who lived in village Panda Dih had come to Ranchi for the treatment of his wife. She died at Ranchi. The deponent said that he had attended her sradh. He further stated that Mukhlal executed the will a day after the Sradh in his presence. The witness also proved his signature on the will which was marked as Exhibit 1 (a) by the Court below. He also stated that Jagarnath Lal was the scribe of the will, who read out the will to Mukhlal. Mukhlal then asked the witness to attest it and he did it accordingly. He also reiterated that Mukhlal was of sound mind. One Dudheshwar Prasad, resident of Upper Bazar, Ranchi, was ano-
ther witness who was examined on behalf of the appellant as A. M. 3. He deposed that he knew Mukhlal as well as the petitioner-appellant. Mukhlal's wife was at Ranchi before her death. He stated that Mukhlal was of sound mind and body when he executed the will. To a suggestion made in cross-examination, he stated that it was not a fact that they had forged the will in order to devoid (sic) the Nati's share.
Shaturgan Pandey (A. W. 4), resident of village Paliwan ke Baraon, P. S. Dehri, District Shahabad, who was following the profession of Ja imanika at Ranchi, stated that he knew Mukhlal Sao. The wife of Mukhlal died at Ranchi 8 or 9 years prior to the year of his deposition. Mukhlal did her cremation. He was the priest. Mukhlal was of sound mind and body when he did the cremation. The witness stated that he met Mukhlal a few days after the cremation, when the latter told him that he had gifted all his properties to his nephew. The last witness is A. W. 5, appellant Harihar Sao himself. He has given the family genealogy which has already been tabulated above. It may be noted here that the family genealogy is not challenged in this case by the contesting respondents A. W. 5 stated that his father lived at Ranchi. Mukhlal's wife died at Ranchi where she had gone for treatment. She died 8 or 9 years back. Mukhlal was of sound mind and body. He performed the sradh of his wife. Mukhlal executed the will in his presence and signed it in his own pen. After the death of Mukhlal, the witness took out the will from the box of Mukhlal and filed it. He denied the suggestion that the same was forged and fabricated.
10. Learned Counsel submitted that even if the evidence of Harihar Sao was ignored as being of a highly interested person, there was no reason for the Court below to disbelieve the evidence of other witnesses. He also referred to the will (Exhibit 3). The name of the claimant mentioned in the will is that of appellant Harihar Prasad Sao son of Punai Sao deceased. The details of the property mentioned therein are 'all kinds of ancestral properties' standing in the name of the executant situated in village Panda Dih, Perg. Baranda, P. S. Sona Hatu in the district of Ranchi. The recital in the will which is relevant for the purposes of this appeal is as follows:
"I, the executant, have grown Quite old. I cannot look after my properties personally, and I, the executant, at present, live with the claimant. The claimant looks after my affairs as well as the household (works) of me the executant. I, the executant, am very much pleased with this kind of behaviour of the claimant and I believe that he will look after me, the executant, till my life, and will continue to maintain me in similar manner. Therefore, I, the executant, execute the will in the name of the claimant in respect of all kinds of ancestral properties standing in my name. This is the last will of me, the executant Prior to this, I have not executed any kind of will in favour of any body. Now it is desired that the claimant should look after all kinds of ancestral properties standing in the name of me, the executant, and will attend to all kinds of work and necessity of me, the executant, from time to time, and the claimant will meet all the expenses, etc., over the household (works) or illness of me, the executant. Therefore, on this date, I, the executant, without any pressure, influence and instigation and of my own accord, execute this will, so that it may be of use when required."
Learned counsel urged that from the will itself it is clear why Mukhlal had executed it in favour of the appellant He submitted that there was no reason for the Court below in refusing to grant the probate or the letters of administration, on the strength of the will, to the appellant.
11. On the other hand, Mr. A. N. Chatterjee, learned Counsel appearing on behalf of the contesting respondents, supporting the judgment and decree of the Court below, urged that there were various suspicious circumstances, which clearly' indicated that the will was not executed by Mukhlal and that it was a forged will. According to him, the first circumstance was that the will was unnatural, because the executant had cut off Baiinath Sao (respondent No. 4) who is his Nati, being his only daughter's son. He referred to the genealogical table noted above in order to show that by the will he had not only cut off his own Nati but also the other sons of his nephews without any rhyme or reason. He drew my attention to the Schedule to Section 8 of the Hindu Succession Act, 1956.
In the said Schedule, under the heading Class I, occurs 'son of a predeceased daughter'. It was only in Class II, under Item IV, that the brother's son comes in. In that way under the law of inheritance, according to learned Counsel, the position of respondent No. 4 occurs much earlier than the appellant, who is the nephew of Mukhlal, Besides, Mukhlal was very much attached with respondent No. 4 and there was good relationship between them. Hence, there was no reason, why Mukhlal would completely cut off his Nati (respondent No, 4) from the alleged will. He referred to a post card (Exhibit A), dated the 27th July, 1956, written by Mukhlal to Baiinath (respondent No. 4) and Ganga Prasad- Since much argument has been advanced by learned Counsel for the parties over Exhibit A, it will be convenient to quote its relevant English rendering which reads thus:
"Blessings to Babu Ganga Prasad and Baijnath Prasad by Mukhlal Sah from Kanchi. Welfare of both the parties, is always desired, so that, we may be happy. No letter conveying news of yours has been received for some days back. Hence please write a letter. You should know that I had previously sent a letter. I had written therein that you would send Baijnath when I call him. Accordingly, I am writing this letter that now I am feeling much trouble and hence you should send Baijnath as soon as you go through, this letter. If his wife does not want to live there, he should bring her also with him. Now readiness and firmness is required. The land at Khuduwa has not been transferred as yet the document of Pandadih is not available as yet. On the same being available. I will execute a registered document (in respect of the property) including some land at Pandadih. Possibly. I will soon transfer the property at Ranchi also. Now, there is no hope of my life. My legs have swollen. The son of Gurua, who was kept for rendering services to me, has also fled away. Now the work will have to be done forcibly. Hence, come soon after seeing this letter. Now the Government has acquired everything at Pandadih and only zirat interest has been left. For that too, rent will be assessed since Sambat 2013 you should know this. Send reply to this letter. You will have to do what I ask.
You people have no care, except likhaparhi (execution of documents). Now who else is to look after me except you people. Come as soon as you see the letter. What happened to the case of you people? Was it decided ex parte or otherwise? Why you delay in replying to letters?"
Learned Counsel submitted that Exhibit A clearly shows that there was good relationship between Mukhlal and respondent No. 4. Besides, if the alleged will was executed on the 28th July, 1955, it was highly unnatural for Mukhlal to have written a post card on 27-7-1956 to respondent No. 4 in the way in which it was written. In the post card Mukhlal has said that the land at Khuduwa had not yet been transferred.
The document of Panda Dih was not available till the time he wrote the post card. He further mentioned therein that he would soon transfer the properties at Ranchi. He also mentioned in the post card that the Government had acquired everything at Panda Dih and only the zirat interest had been left out According to learned Counsel, all these indicated that the said will had not been executed by Mukhlal.
12. The said post card was proved by respondent No. 4, who was examined as O. W. 2. Learned Counsel for the appellant has referred to the statement made by O. W. 2 in his cross-examination regarding the said post card. He stated that he had no paper In the writing of his Nana except the said letter. His father knew his Nana's hand-writing and nobody else. Nobody of Ranchi knew the hand-writing of his Nana. He further stated that he had Other letters from his Nana but they had been misplaced. Lastly, he stated on this point that he never saw him writing. Learned Counsel for the appellant, therefore, contended that he was not a competent witness to have proved the said post card. Even assuming that he was a competent witness to prove the post card (Exhibit A) in my opinion, nothing of importance turns upon the contents of the post card in favour of respondent No. 4. In Exhibit A, Mukhlal had also made a complaint against Baijnath Prasad and Ganga Prasad, that they did not bestow any care on Mukhlal but they were anxious for execution of documents. It is also mentioned therein that there was no hope of his life and his legs were swollen.
The son of Gurua who was kept for rendering service to him had fled away. In the will (Exhibit 3) it was clearly mentioned that Harihar Prasad, who is the claimant, looked after his affairs as well as the household works of the executant. He was very much pleased with that kind of behaviour of Harihar and the executant believed that Harihar would look after him till his life and would continue to maintain him in similar manner. Therefore, in my view, there is explanation in the will itself as to why he had cut off his other relations.
13. The second suspicious circumstance urged by Mr. Chatterjee was that Mukhlal was aged 80 years at the time of the execution of the alleged will. Besides, just before the execution of the will by him. his wife had died. In that situation, it is not expected that he would be possessed of disposing mind. The signatures of Mukhlal on the will (particularly Exhibit 2) clearly indicate that his hands were shaking and he was too old to execute such a will. In order to substantiate his contention, learned Counsel relied on the decision of the Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma. (AIR 1959 SC 443) and made particular reference to the observations made by their Lordships in para 20 (at p. 452) which reads thus:
"There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free-will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged. Courts would be reluctant to treat the document as the last will of the testator- It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free-will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
14. Learned Counsel also referred to the case of Rani Purnima Devi v. Khagendra Narayan Deb. (AIR 1962 SC 567) where the testator did not make proper provision for his wife and sister dependant upon him and the pro-pounder got the sole benefit under the will subject to maintenance of the testator's wife and sister. It was held therein that that was one of the suspicious circumstances.
15. In my view, their Lordships of the Supreme Court have not laid down any hard and fast or inflexible rule as to what would be the suspicious circumstance. Even in AIR 1959 SC 443 (supra), their Lordships at page 459 pointed out that what circumstances would be regarded as suspicious cannot be precisely denned or exhaustively enumerated. That inevitably would be a question of fact in each case. In Sashi Kumar v. Subodh Kumar, (AIR 1964 SC 529), their Lordships, following the principle laid down in AIR 1959 SC 443 (supra) and AIR 1962 SC 567 (supra), held that if the propounder succeeds in removing the suspicious circumstances, the Court would grant probate even if the will might be unnatural "and might cut off whole or in part near relations.
In the case which their Lordships were considering, the testator was aged 93 years when he executed the will. The testator suffered from a serious illness in July 1943 and at that time his life was despaired of. It was after recovery from a serious illness that the will in dispute was alleged to have been signed by him on August 29, 1943. Even in that case their Lordships held, on a review of the entire evidence, that due execution and attestations of the will in dispute had been proved as alleged by the propounders and they were entitled to the grant of probate. The fact that Mukhlal, the testator in the instant case, was aged about 80 years at the time of the execution of the will (Exhibit B) and that his signature on the will was shaky due to old age or due to certain disease from which he suffered would not by themselves be enough to hold that those were suspicious circumstances. If the will is otherwise valid and if the pro-pounder is able to dispel the suspicious circumstances, there is no reason why a probate or letters of administration annexed to the will should not be granted to him. Besides, in Exhibit 3 itself there is sufficient explanation as to why the testator cut off other relations and bequeathed his entire property in favour of the appellant.
16. The third suspicious circumstance advocated on behalf of respondent No. 4 is that, in the instant case, the appellant had taken active interest in the execution of the will. In order to support his contention, learned counsel referred to the case reported in AIR 1962 SC 567 (supra) wherein it was observed that where a propounder himself had taken a prominent part in the execution of the will which conferred on him substantial benefit, that was to be treated as a suspicious circumstance attending the execution of the will, and the propounder would be required to remove the doubts by clear and satisfactory evidence. Learned Counsel also placed before me the decision in the case of Gorantla Thataiah v. Thotakura Venkata Subbaiah (AIR 1963 SC 1332). In that case there was admitted evidence that the prounder took a prominent part in summoning the attesting witnesses and the scribe and in procuring the writing materials for the execution of the will. Learned Counsel referred to the evidence of A. W. 1 who stated that Harihar, amongst others, was present at the time of the execution of the will.
He also drew my attention to the evidence of O. W. 1 Jagarnath Bhagat, scribe of the will. Jagarnath Bhagat stated that the will was scribed by him at the instance of Harihar. Harihar, amongst others, was present at the time of the alleged execution of the will. After the deponent scribed the will, Harihar took it away from Mm and thereafter the scribe went home. Learned Counsel submitted that the evidence of O. W. 1 is enough to show that the propounder of the will took prominent part in the execution of the will. In my view, the evidence of O. W. 1 is not worthy of reliance, for the reasons to be discussed hereinafter. He also placed before me the evidence of A. W. 5 the appellant himself, on this point. A. W. 5 stated in his evidence that Mukhlal signed in his own pen. Learned Counsel submitted that it clearly indicates that Harihar (appellant) was present at the tune of the execution of the will. In my judgment. the mere presence of the propounder at the time of the execution of the will is not enough to show that he had taken prominent part in the execution of the will.
In the case reported in AIR 1968 SC 1332 (supra), it may be noticed that the propounder had taken very active part in summoning the attesting witnesses and the scribe and in procuring the writing materials for the execution of the will and, therefore, their Lordships of the Supreme Court had taken that circumstance along with the other suspicious circumstances into consideration and held that the propounder failed to dispel the suspicious circumstances. The facts of that case, therefore, were different from those of the instant case, where, as mentioned earlier, the reliable evidence is that the propounder was merely present at the time of the execution of the will. In Harmes v. Hinkson, (AIR 1946 PC 156) it was observed that it was legitimate to urge upon a man whose condition was precarious the desirability of making a will and the person doing so cannot be said to have exercised undue influence.
In Naresh Charan Das Gupta v. Paresh Charan Das Gupta, (AIR 1955 SC 363), their Lordships held fat page 366) that it was open to a person to plead his case before a testator and to persuade him to make a disposition in his favour; and if the testator retained his mental capacity and there was no element of fraud or coercion, the will cannot be attacked on the ground of undue influence.
17. The fourth circumstance highlighted against the appellant is that the scribe of the will does not support the case of the appellant at all. As mentioned, earlier, he was examined on behalf of the respondents as O. W. 1. The trial Court while dismissing the application of the appellant has, mainly, relied on the evidence of this witness. In addition to his statement which has already been noted, he also stated in his evidence that he could not say if Mukhlal was present or not as he did not know him. Nobody attested the deed in the presence of the deponent In cross-examination he admitted that he had signed the will both as a scribe as well as witness. From Ex. 3 also it is clear that he had signed both as a scribe and as a witness. He further stated that he did not ask Harihar as to why he was called, as he did not know the man (Makhlal), nor did he enquire from Harihar about the identity of the executant. He also said that he told Harihar that without consulting the executant he would not scribe the deed. He admitted in cross-examination that he was the clerk of Raghunath Babu pleader. He was given, one rupee only as the scribing fee.
From the statement made by him in cross-examination, it appears that the witness was hostile to the appellant and was deliberately telling lies. He being a pleader's clerk, it was expected that he would not sign at least as a witness in the absence of the executant Mukhlal. In cross-examination he stated that in the past he had signed his name as scribe on Pattas and also as a witness. He knew that witnesses sign on the Pattas after the signature of the executant is taken on it. He was, therefore, an experienced person and knew how witnesses attest the signature of an executant. In the circumstances, it was only natural that he would enquire from Harihar as to who was the executant and could not have scribed the will without his instructions. Both A. W. 1 and A. W. 2 have stated in their evidence that Jagarnath had scribed the will in their presence as well as in the presence of Mukhlal to whom he also read out the will. There is apparently no reason to disbelieve A. W. 1 and A. W. 2 on this point. It is also highly improbable that the scribe (O. W. 1) would charge only one rupee as his fee for scribing the will. In my judgment, therefore, the evidence of the scribe (O. W. 1) is not worthy of any reliance.
18. The fifth suspicious circumstance which learned Counsel urged before me against the case of the appellant is to be gathered from Exhibit 3 itself. Under the heading details of property is mentioned "all kinds of ancestral properties standing in the name of the executant, situated in village Panda Dih, Perg. Baranda, P. S. Sona Hatu, in the district of Ranchi," whereas in the body of the document it is mentioned that the executant had executed the will in respect of "all kinds of ancestral properties standing in his name". Learned Counsel submitted that from the heading it is clear that he was making a will only in regard to the ancestral properties in village Panda Dih, whereas in the body of the will he had bequeathed all kinds of ancestral properties standing in his name in various other villages as well.
According to learned Counsel, therefore, it was not Mukhlal who had given instructions to the scribe in respect of the properties for which he wanted to execute the will. If Mukhlal himself would have given instructions, such a mistake would not have occurred. In my view, there is no merit in this contention, because this sort of mistake could still have been committed even if instructions had been given to him by some other person, viz., the appellant. Moreover, assuming that the appellant had given instructions, it is highly improbable that he would have done so, since he was directly interested in the will, and could have been more careful, so that no mistake might creep in it. Besides, it is well established that the heading or the marginal notes of a document do not control the statements made in the body of the document. If there is a conflict between the head-note and the statement in the body of the deed, it is the latter that prevails. It is always the later recital in a deed which prevails over an earlier recital.
19. The sixth circumstance advocated by learned Counsel against the genuineness of the will is that the ink used by the scribe was different from the ink used by the testator on Exhibit 3. He referred to the evidence of A. W. 1, who stated in cross-examination that the Munshi (scribe) had pen and ink with him. He did not recollect if all of them including the testator signed with the same ink and pen. Learned Counsel also referred to the evidence of A. W. 2 who deposed in cross-examination that he could not say if he signed the will with fountain pen or an ink pen (pen-holder). He also could not say whether the scribe had scribed with pen or fountain pen. He referred to Exhibit 3 to show that Mukhlal's signature appeared to be in different ink from that used by the scribe and the other witnesses. In order to find support to his contention on this point, he referred to the decision reported in AIR 1962 SC 567 (supra) where their Lord-Ships (at page 570) observed:
"Lastly, the High Court has noticed that the signature of the testator is not in the same ink and may not be with the same pen with which the body of the will is written. The difference In ink may not ordinarily be a matter for serious suspicion: even so it has to be explained in the peculiar circumstances of this, case when blank papers containing the testator's signatures were available".
In my view, the above observation does not support the contention advanced by learned Counsel as the facts which their Lordships were considering were different from those in the instant case. Their Lordships themselves have observed that the difference in ink might not ordinarily be a matter for serious suspicion; even so it had to be explained in the peculiar circumstances of that case, when blank papers containing the testator's signatures were available.
20. The seventh suspicious circumstance urged by learned Counsel is the long delay made by the appellant in filing his probate application, which was filed on the 31st of July, 1963, Learned Counsel pointed out that the will was dated the 28th of July, 1955 and the testator died on the 24th of October, 1956. It was about seven years after the death of the testator that the application for grant of probate was filed by the appellant. That, according to learned Counsel, showed that the appellant had forged the will and had taken time in order to create evidence In his favour. In my view, there is no material on the record to show that the will was forged. On the other hand, the two attesting witnesses (A. W. 1 and A, W. 2) have clearly stated that it was Mukhlal who signed the will in their presence after it was duly read over to him by the scribe: and thereafter they attested the signatures of Mukhlal. These two witnesses are independent persons and they are not in any way Inimical to the contesting respondents.
21. Lastly, Mr. Chattenee commented upon the evidence of the attesting witnesses A. W. 1 and A. W. 2 and submitted that their evidence should not be relied upon in so far the due execution and attestation of the Will were concerned. He referred to the evidence of A. W. 1 in cross-examination where he stated that he could not say if Mukhlal was fit to do any work at the time. Learned Counsel submitted that from the above it can be easily inferred that Mukhlal was not possessed of disposing mind and was not in a position to execute the will at the time he did it. In my opinion, it is difficult to draw such an inference from the above statement of the witness, because he clearly stated in his examination-in-chief that the testator was of sound mind and body when he executed the Will. By the impugned statement, he simply meant that he could not say whether the testator was fit to do any manual work or not, i.e., whether he was physically fit or not. The other comment made against this witness is that he stated in his cross-examination that the will was executed on the Kotha of the petitioner (Appellant).
He further stated that the Will was not scribed when he went to the Kotha. On the basis of this statement, learned Counsel sought to argue that the statement of the witness in his examination-in-chief that the Will was scribed in his presence is belied. In my view, what the witness stated in his cross examination meant that before he went to the Kotha, the Will had not been scribed; in other words, it was scribed after he went to the Kotha. Still another comment against this witness was made on his statement in cross-examination that he could not say who had signed on the first page of the Will which had been marked 'X' for identification. It may be noted that one of the signatures of Mukhlal on the first page was marked 'X' for identification by the Court below. When this witness was examined in this Court, he also identified the said signature of Mukhlal and the same was marked Exhibit 2 in this Court. Learned Counsel, therefore, submitted that there is a contradiction on this point in the evidence of the witness given before the Court below and that given by him in this Court. In my view, the above statement cannot be considered to be a contradiction of any major importance. I am of opinion that the witness had stood the test of cross-examination and there is nothing to discredit the testimony of this witness.
Learned Counsel also referred to the evidence of A. W. 2 who stated in his cross-examination that he could not say whose signature it was which had been marked 'X' for identification in the Court below. It has, therefore, been submitted by learned Counsel that the witness has failed to identify the signature of Mukhlal which was marked 'X' for identification in the Court below. In my opinion, that cannot be a ground for disbelieving this witness. It may be recalled that on the first page of the Will there are two signatures of Mukhlal. Therefore, even if the signature which was marked 'X' for identification by the Court below be ignored, there still remains another signature of Mukhlal on the first page of the Will. No other comment has been made against this witness who is equally independent and also in no way inimical to the contesting respondents. There is, thus, no valid reason for disbelieving this witness.
22. As regards the evidence of A. W. 3, comment has been made by learned Counsel on his statement in cross-examination that Mukhlal looked after his properties himself. On this statement, it has been urged by learned Counsel that the recital in the Will (Exhibit 3) by the testator that Harihar had been looking after his affairs as well as the household works, is belied. In my view, the statement regarding looking after of the affairs is used in a relative term. If a statement is made that a person used to look after his affairs, it simply means broadly speaking. Even if Harihar was looking after the affairs of Mukhlal and consulting him with regard to it even then it can be said that Mukhlal was looking after his affairs. From that it can not be inferred that it was Mukhlal himself who was looking after the properties- In any view of the matter, the statement made by A. W. 3 and the recital in the Will do not show any material contradiction. Besides, the Will was executed by Mukhlal and the recitals therein were made by him, whereas A. W. 3, in his evidence, was giving his own opinion regarding the person who was looking after the properties of Mukhlal.
Hence, it was merely an opinion or an impression formed by A. W. 3. Nothing of major importance turns upon the above statement of A. W. 3. It may also be noted that in cross examination this witness stated in answer to the suggestion made on behalf of the contesting respondent that it was not a fact that they had forged the Will in order to devoid (sic) Nati's share. He had stated in his examination-in-chief that Mukhlal was of sound mind and body when he executed the Will. In my opinion, therefore, there is no reason to discredit this witness. In the case re-
ported in AIR 1959 SC 443 (Supra), their Lordships, at page 451, observed that as in the case of proof of other documents so in the case of proof of Wills, it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of satisfaction of the prudent mind In such matters. It may also be useful to quote a passage from the said judgment of their Lordships which occurs at page 452.
"It is obvious that for deciding material questions of fact which arise in applications for probate or in actions in wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the Will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind oi the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in 50 Cal WN 895 = (AIR 1946 PC 156) where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.' Considering the entire evidence on the record in the instant case. I am of the view that the propounder of the Will has been able to dispel all suspicious circumstances and has also been able to establish due execution and attestation of the Will.
23. If once due execution and attestation is established by the propounder, the onus to prove that the Will was executed under undue influence shifts on the person who alleges undue influence (vide AIR 1955 SC 363 Supra). In the instant case nothing on this point was suggested by the contesting respondents to A. W. 1 or to A. W. 2, even O. W. 2 (respondent No. 4) has not made out a case of undue influence or coercion in his evidence, in his evidence, he also did not establish that Mukhlal was of unsound mind and did not possess disposing ability. Therefore, after a careful consideration of all the facts and materials on the record as well as the argument advanced by learned Counsel on behalf of the parties, in my opinion, the judgment and decree of the Court below cannot be Sustained. Since no executor was appointed under the Will and since the entire property was bequeathed to the appellant, he is deemed to be a universal legatee and as such he is entitled to the grant of letters of administration with the Will annexed.
24. In the result, the judgment and decree of the Court below are set aside and the appeal is allowed with costs. Let a letters of administration with the will annexed be granted to Harihar Prasad Sao, the appellant.