Allahabad High Court
Chhotey Lal And Ors. vs Ram Naresh Singh And Ors. on 18 December, 2017
Equivalent citations: AIR 2018 (NOC) 621 (ALL), 2018 (3) ALJ 371
Author: Mahendra Dayal
Bench: Mahendra Dayal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED Case :- FIRST APPEAL FROM ORDER No. - 1097 of 2015 Appellant :- Chhotey Lal And Ors. Respondent :- Ram Naresh Singh And Ors. Counsel for Appellant :- A.P.Singh Gaur,Ankit Srivastava,Pramod Kumar Khare,Prashant Singh Gaur Counsel for Respondent :- Kripa Shankar Rai,Mr. Sidharth Dhaon,Smt. Pramila D. Misra,Virendra Misra,Vishwajeet Rai ALONGWITH Case :- FIRST APPEAL FROM ORDER No. - 86 of 2016 Appellant :- Molhey Prasad And Ors. Respondent :- Ram Naresh Singh And Ors. Counsel for Appellant :- Kripa Shankar Rai,Ashok Pratap Singh Gaur,Prashant Singh Gaur,Up1975964,Vishwajeet Rai Counsel for Respondent :- Prashant Singh Gaur,Virendra Mishra * * * * * Hon'ble Mahendra Dayal,J.
Both the aforesaid first appeals from order have been filed against the same Judgment and order dated 21.12.2015 passed by the Additional District Judge, Court No.1, Lucknow in Miscellaneous Case No.512 of 1995 whereby the Letter of Administration in respect of the Will dated 02.01.1995 executed by Late Smt. Maiki, was issued to the respondent Ram Naresh Singh. The controversy involved in both the appeals is simillar, therefore, both the appeals are being decided together by a common judgment.
The brief facts of the case are that Late Smt. Maiki, widow of Chheda was the owner and bhumidhar of the land in dispute. It is an admitted fact between the parties that she was issue less and her husband Chheda had predeceased her. The application for grant of Letter of Administration under Section 278 of the Indian Succession Act was filed by the respondent Ram Naresh Singh with the averments that Smt. Maiki executed a Will of her movable and immovable propterty including the agricultural land in his favour of Ram Naresh Singh. It was also said that Sita Ram and Rama had signed the Will as attesting witnesses. Smt. Maiki died on 05.01.1995. When the application for grant of Letter of Administration was filed by Ram Naresh Singh, the court examined both the attesting witnesses and after satisfying itself that the Will was a genuine document, decided the case in favour of Ram Naresh Singh by the order dated 06.01.1997 and Letter of Administration was issued in favour of Ram Naresh Singh. After about four months, the appellant Chhotey Lal filed an application for revocation of Letter of Administration as well as for recall of the order dated 06.01.1997. The appellant in F.A.F.O.No.86 of 2016, namely, Master and Jangali also applied for revocation of the Letter of Administration. According to them, a registered Will was executed by Smt. Maiki in their favour on 01.02.1988. The father of the appellant in F.A.F.O.No.86 of 2016, namely, Nattha also filed an application for the same relief but subsequently the same was withdrawn.
The learned court below by its order dated 16.11.2013 allowed both the applications for revocation of Letter of Administration and recalled the order dated 06.01.1997. The Miscellaneous Case No.512 of 1999 was restored for decision afresh. An appeal was preferred before this Court by Ram Naresh Singh against the order dated 16.11.2013, but the same was dismissed with direction to the court below to conclude the proceedings within six months. Feeling aggrieved by the dismissal of appeal, Ram Naresh Singh preferred special appeal also before the Hon'ble Supreme Court, which was dismissed on 03.12.2014 as not maintainable.
After the case was reopened, one set of objection was filed by Chhotey Lal, Master and Jangali who are appellants in F.A.F.O.No.1097 of 2015. The second set of objection was filed by Molhey Prasad, Raja Ram and Rajesh Prasad who are appellants in F.A.F.O.No.86 of 2016. Chhotey Lal claimed interest on the basis of a Will, alleged to have been executed by Smt. Maiki, whereas Master and Jangali claimed their right on the strength of a Will dated 01.02.1988 allegedly executed by Smt. Maiki. The second set of objection was filed and the objectors in which their claimed their interest in the property in question, on the basis of succession.
The respondent Ram Naresh Singh who had prayed for issuance of Letter of Administration, produced four witnesses including himself. The other witnesses were Mewal Lal Yadav, Shatrughan and Smt. Meera Singh. The appellants of F.A.F.O.No.86 of 2016 produced as many as eight witnesses. The appellant of F.A.F.O.No.1097 of 2015 produced Chhotey Lal, Master and O.P.Gupta as their witnesses.
The learned court below after evaluation of documentary as well as oral evidence produced by the parties, came to the conclusion that the respondent Ram Naresh Singh had succeeded to prove due execution of Will dated 02.01.1995 beyond doubt and accordingly passed the impugned order issuing Letter of Administration in his favour.
In order to decide the controversy in both the appeals, this Court has framed two points of determination which are as under:-
1. That the respondent no.1 has failed to prove the fact that the execution of the Will propounded by him was free Will and the understanding as well as its attestation.
2. That the Will set up by the respondent no.1 was surrounded with doubt and uncertainty particularly on account of admission that Smt. Maiki was blind, illiterate and was of extreme old age and the Court defied the law declared by the Hon'ble Supreme Court on several occasions.
It needs mention here that after the recall of the earlier order dated 06.01.1997, the attesting witnesses of the Will, namely, Rama and Sita Ram died. In order to prove the execution of Will and the mental condition and capacity of Smt. Maiki for executing the Will, Ram Naresh Singh has filed his own affidavit and proved that on 02.01.1995, Smt. Maiki was in fit mental condition and was competent to execute the Will. The affidavit of Smt. Meera Singh, who was present at the time of execution of the Will was also filed to prove that the Will was read over before the testator who put her thumb impression on the Will in presence of two witnesses after fully understanding the contents of the Will. Thereafter the witnesses also put their signatures in her presence and in the presence of each other. Apart from this, the affidavit of Mewa Lal Yadav and Shatrughan were also filed who proved the signatures of attesting witnesses, namely, Sita Ram and Rama who died during pendency of the case.
I have heard Sri P.K.Khare and Sri A.P.Singh Gaur learned counsel appearing for the appellants in F.A.F.O.No.1097 of 2015, Sri K.S.Rai learned counsel appearing for the appelant in F.A.F.O.No.86 of 2016 and Sri Siddharth Dhaon as well as Sri Virendra Mishra learned counsel appearing for the respondent Ram Naresh Singh and also perused the record.
The parties have also relied upon several decisions of the Hon'ble Supreme Court as well as of this Court, which will be referred in this judgment as and when the same are required to be mentioned.
It has been argued on behalf of the appellants that there is no doubt with regard to the fact that Smt. Maiki was issue less and her husband had predeceased her. The status of Smt. Maiki was that of Sirdar and, therefore, she was not competent to transfer the land either by way of Will or by any other means. The alleged Will executed in favour of Ram Naresh Singh, is dated 02.01.1995 and just after three days i.e. on 05.01.1995 Smt. Maiki died. It is established beyond doubt from the evidence on record that Smt. Maiki was almost blind and was confined to bed. She was, in fact, not in a position to understand as to what she was doing. The Will dated 02.01.1995 is an unregistered Will and it was executed in such circumstances that it required a higher degree of proof. Where a document is registered, there is a general presumption that the same has been executed and registered in accordance with law, unless the presumption is rebutted by placing reliable and cogent evidence but where the document is unregistered and creates suspicion on the face of it, the propounderof the Will is required to prove its due execution and in such cases the duty of the court also increases so as to satisfy itself that the Will is not surrounded by any suspicious circumstances and has been executed by the executant out of his or her freewill and also that the executor was in free mental condition at the time of execution of Will. The court is also under obligation to see that no undue influence has been applied to the executor before the execution of the Will. After the court is fully satisfied that the Will was a genuine document and was duly executed, the court grants probate or Letter of Administration as the case may be. It has also been pointed out by the learned counsel for the appellant that Ram Naresh Singh in whose favour the alleged unregistered Will was executed by Smt. Maiki, is not related to her. The recital in the Will is that Ram Naresh Singh was the brother-in-law in terms of the village relationship. Thus, execution of a Will in favour of a stranger debarring near relatives further creates doubt and suspicion. According to the learned counsel for the appellants, neither the respondent Ram Naresh Singh could prove due execution of Will nor the court examined the circumstances under which the Will was executed.
It has also been argued by the learned counsel for the appellants that for an application under Section 278 of the Indian Succession Act for grant of Letter of Administration, there is a prescribed procedure and the law requires certain details to be incorporated in such application. One of the most important ingredients of such application is that the near relatives must be disclosed in the application but the application moved by the respondent Ram Naresh Singh, does not contain such details. When the court considers an application for grant of probate or Letter of Administration, it is obligatory on the part of the court to satisfy itself that the application has been properly made by the applicant and the execution of Will has been duly proved by the applicant. In the present case, the application filed by the respondent Ram Naresh Singh was itself not maintainable for want of necessary important informations, but the learned court below without satisfying itself about the maintainability of the application, granted Letter of Administration in a routine manner.
The learned counsel for the appellants has relied upon several decisions of the Hon'ble Supreme Court to show the requirement of law for proving execution of the Will. In a case reported in 1958 AIR (SC), page 443, H. Venkatachala Iyengar Vs. B.N.Thimmajamma, the Hon'ble Supreme Court has observed that it is the duty of the propounder of the Will to prove its due execution and remove the suspicious circumstances from the mind of the court by placing cogent and satisfactory evidence. This is one important feature which distinguishes Will from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world, cannot say whether it is his Will or not and this aspect introduces an element of solemnity in the decision on the question as to whether the document propounded is proved to be the last Will and testament of the testator. In dealing with such matters, the court will start the same enquiry as in the case of proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free Will.
In another case reported in 1977 AIR (SC), page 74, Jaswant Kaur Vs. Amtrit Kaur and others, the Hon'ble Supreme Court has held that it is impossible to reach a satisfaction regarding genuineness of a Will, unless the party which sets up of the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the Will. According to the learned counsel for the appellants, the cases in which the execution of Will is surrounded by suspicious circumstances, it stands on a different footing. Where the signature of the testator is shaky and he or she had been unfair and unjust in disposition of property and the propounder himself took a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances, raise suspicions about the execution of the Will. The suspicion cannot be removed by the mere assertion that the Will bears the signature of the testator or that the testator was in sound and disposing state of mind and memory. The presence of suspicious circumstances makes the initial onus heavier and therefore, in such cases, the propounder must remove all legitimate suspicion before the document can be accepted as the last Will. Several other decisions have been cited by the learned counsel for the appellants but in all those decisions similar observations have been made by the Hon'ble Supreme Court that where a Will appears to be suspicious, the court should be more conscious and the propounder of the Will is required to prove the execution of Will and also remove the suspicious circumstances, so as to make the court believe, that the Will was the last Will executed by the testator.
It has been next argued by the learned counsel for the appellant that there are contradictory evidence with regard to the execution of Will. At one point of time, the respondent Ram Naresh Singh says that he was not present when the Will was executed and at another point of time, he stated that he was present when the Will was executed. Smt. Meera Singh is the wife of Ram Naresh Singh and she has stated on oath that the Will was executed in her presence. Thus, she was very much knowing that the Will was being executed in favour of her husband. The executor of the Will Smt. Maiki was not able to see and was almost blind since much before her death and the alleged Will has been executed just three days prior to her death and that too in favour of a person, who was not even distantly related to her. This itself makes the entire Will doubtful. The respondent has not been able to prove the due execution of Will and remove the circumstances which make the Will suspicious. It is not disputed that the two marginal witnesses of the Will were no more when the case was decided after remand. Even the scribe was not alive. Under the provisions of the Indian Evidence Act, the Will can be proved by examining at least one of the marginal witnesses but in case none of the marginal witnesses are available, the same may be proved by the evidence of those persons who recognize the signatures of the attesting witnesses. The respondent of this case, instead of producing the family members of the deceased marginal witnesses to prove their signatures, examined two strangers to prove the signatures of the marginal witnesses. No reason has been shown as to why the family members of the marginal witnesses, who would have been the best witnesses to recognize their signatures, were not produced and instead such persons were called upon to prove their signatures, who were strangers.
The respondent Ram Naresh Singh has clearly admitted in his cross-examination that Smt. Maiki was almost blind. He has also admitted that he was Thakur by caste. When asked about the execution of Will, he stated that since he was doing continuous service and was living with Smt. Maiki, therefore, being pleased by his services, Smt. Maiki executed the Will in his favour. In his affidavit dated 11.05.2015, he has clearly stated on oath that he was not present when the Will was prepared and was executed. However, he admitted the presence of his wife at that time. He has also admitted in his cross-examination that one of the relatives of Smt. Maiki, namely, Santu was alive. His brother Kanhai was also alive but when the application for grant of Letter of Administration was filed, it was mentioned that the deceased did not leave any near relative. This was willfully done so that nobody may come forward to file objection against the application. The learned counsel for the appellants has referred to the statements of Mewa Lal, Shatrughan and Smt. Meera Singh to show contradictions in their statements.
It is next argued by the learned counsel for the appellants that the Will in question reveals that the Will has been executed in respect of several pieces of land. The first land mentioned in para-2 of the Will is land Khasara No.1463 measuring one Bigha and six Biswa. This land according to the Will was vested with Shankarji Bhagwan and the responsibility for management of the temple was given to the respondent Ram Naresh Singh. The other land bequeathed by way of Will are mentioned at the bottom of the document. The numbers which are mentioned therein are 547, 711, 731, 74 Sa and 1144. These lands were given to Ram Naresh Singh as exclusive owner thereof. The learned counsel submits that one of the land is wrongly mentioned in the Will as 74 Sa which does not belong to Smt. Maiki. The Khasara number of the land is 747. This clearly indicates that this Will was prepared keeping in view the Khatauni of the Fasli year 1401 to 1406 in which the Khasara number of the land was mentioned as 74 Sa and the status of the land holder was that of Sirdar. When the application for grant of Letter of Administration was filed, the same numbers were mentioned. However, when the Letter of Administration was granted, the learned court below in order to give extra benefit to the respondent, replaced the number 74 Sa by 747 which the court could not do because a Letter of Administration can be granted only in respect of the property mentioned in the Will and not otherwise. The executor of the Will passed away without executing any subsequent Will for correction of the number and therefore the court could not have granted Letter of Administration in respect of a different land. For this reason also the order impugned in this appeal is bad in law. It has also been argued that land number 1463 which was vested in Shankarji Bhagwan, was already sold by Smt. Maiki through her attorney and therefore the same property could not have been disposed by her through the Will. This is also one of the reasons which create doubt as to the execution of Will by Smt. Maiki.
It has also been argued by the learned counsel for the appellants that the respondent Ram Naresh Singh initiated the proceedings under Section 278 of the Indian Succession Act, but before the proceedings were initiated, the respondent Ram Naresh Singh had applied for mutation of his name but the pendency of mutation proceedings was not disclosed when the application under Section 278 was filed. The learned court below while passing the impugned judgment and order, has referred to a regular suit filed by the respondent Ram Naresh Singh for permanent injunction in respect of plot no.1463 and this suit was dismissed on 08.05.2006 by the court of Civil Judge (Junior Division). The appeal filed against the aforesaid judgment was also dismissed by the Additional District Judge, Lucknow. The respondent preferred a second appeal before this Court which was also dismissed for want of prosecution. The respondent Ram Naresh Singh had also filed a mutation application but got the same dismissed in default and these facts were knowingly suppressed when the application for grant of Letter of Administration was filed. When the aforesaid regular suit for permanent injunction was filed by the respondent in respect of Khasara plot no.1463, he specifically stated that he was present when the Will was executed but completely changed his stand, when he filed the application for grant of Letter of Administration. He has also clearly stated during cross-examination in the aforesaid regular suit that the temple of Shankarji is constructed on Khasara land no.747. All these facts clearly indicate that the respondent Ram Naresh Singh wanted to usurp the property of a widow who was issue less and her husband had predeceased.
The learned counsel Sri K.S.Rai who filed F.A.F.O.No.86 of 2016, has argued that the respondent Ram Naresh Singh was examined after the remand of the case and in his statement, he stated on oath that when the Will was executed by Smt. Maiki, he was not present. He also admitted that at the time of execution of Will, his wife Smt. Meera Singh and two witnesses, namely, Rama and Sita Ram were present. However, the evidence of other witnesses clearly reveal that some other persons were also present at that time. This creates a doubt as to the reliability of the statement of these witnesses. The respondent has also admitted during his cross-examination that he was living with Smt. Maiki since two or three years before her death. He also stated that the temple of Shankarji was standing on Khasara land no.747. However, he admitted that in the Will dated 02.01.1995, it was mentioned that the temple of Shankarji was constructed on Khasara land no.1463. The other witnesses one of which is Mewa Lal Yadav has stated on oath that Rama was also present when the Will was executed. According to him, the Will was executed at about 10.00 in the morning. However, he could not disclose as to how many persons were present at that time. This witness has clearly admitted in his cross-examination that the Will was not prepared in his presence. Similarly, Shatrughan who was examined to prove the signatures of the witnesses, had said that he was not present when the Will was prepared. He also did not know as to whether the respondent Ram Naresh Singh was living with Smt. Maiki or not.
The witnesses produced by the appellants in defence were Molhey Prasad, Rajesh Prasad, Raja Ram, Rajendra and Chhotey Lal. These witnesses had proved that Molhey Prasad, Rajesh Prasad and Rajendra were near relatives and family members of Smt. Maiki. Chhotey Lal also stated that he was having a joint account alongwith Smt. Maiki in State Bank of India. He also stated that he had produced the pass-book in the court showing joint Bank account of Smt. Maiki and himself. The Khatauni of Smt. Maiki does not contain plot no.747. The number as mentioned in the Khatauni is 74-Sa. In fact, land Khasara no.747 is a grove having mango trees, but the description of this property is missing in the Will deed of Smt. Maiki. The Khasara land no.747 was of Smt. Maiki but this number is missing from the Will and also from the application for grant of Letter of Administration. This again indicates that the respondent Ram Naresh Singh did not know the correct number, of which Smt. Maiki was the owner. The respondent in his application knowingly did not disclose any pedigree otherwise it would have come in the knowledge of the court that the near relatives of Smt. Maiki were alive. The appellants Molhey Prasad, Raja Ram and Rajesh Prasad claimed the property left by Smt. Maiki on the basis of succession.
The interest of the appellants in both the appeals is common, so far as it relates to the disputed Will executed by Smt. Maiki in favour of Ram Naresh Singh but with regard to the claim in the property, their interest is clashing. Chhotey Lal had been claiming the property on the basis of a Will but the Will was never brought on record. The appellant Chhotey Lal has sold a part of the property during pending of the proceedings and received a handsome amount towards advance of the sale consideration. According to the appellants Molhey Prasad and others, the deceased Smt. Maiki did not execute any Will and they were the owners of the property on the basis of succession. The appellants Chhotey Lal, Master and Jangli claimed the property on the basis of a Will executed by Smt. Maiki on 01.02.1988 which was also registered but the said Will could not be proved.
With the aforesaid arguments, it has been submitted by the learned counsel for the appellants Molhey Prasad and others that they were the real owners of the property left by Smt. Maiki having inherited the same by way of succession and the Will allegedly executed by Smt. Maiki in favour of the respondent Ram Naresh Singh was a forged document. The learned court below has recorded an erroneous finding that the Will executed by Smt. Maiki in favour of respondent was a genuine document. The Letter of Administration could not have been granted in favour of the respondent because the alleged Will dated 02.01.1995 was not proved as required under the law. The Will was surrounded by suspicious circumstances and was apparently a doubtful document. The respondent who claimed to be the owner on the basis of the Will, could not remove the doubt but the learned court below committed mistake in granting Letter of Administration to the respondent.
The learned counsel for the respondent no.1 has argued that admittedly Smt. Maiki was the owner and Bhumidhar of the property in dispute. It is also not disputed that she died issue less and her husband had died much before her death. Smt. Maiki in order to dispose of her property, executed the Will on 02.01.1995 in respect of her all movable and immovable property including the agricultural land. The will was executed in favour of the respondent Ram Naresh Singh and two witnesses, namely, Sita Ram and Rama signed the Will as marginal witnesses. It is also not disputed between the parties that after the remand of the matter, the case was reopened but before that, both the marginal witnesses were dead. Even the writer of the Will had died when the case was reopened. It has been argued that the respondent in order to prove the physical health, mental condition and capacity of Smt. Maiki for executing the Will, filed his own affidavit and proved that on 02.01.1995, she was physically fit, mentally alert and was competent to execute the Will. The Will cannot be doubted merely on the ground that she was not able to see and was almost blind. It is established from the evidence that the Will was prepared on her instructions and after the Will was prepared, the same was read over and explained and only after satisfying herself, she put her thumb impression in presence of the witnesses. When the application for grant of Letter of Administration was filed, both the marginal witnesses were alive. Although the execution of the Will could be proved by examining any one of the two marginal witnesses as required under the Evidence Act, but in order to satisfy the court that the Will was a genuine document, both the marginal witnesses were produced who stated on oath that the Will was prepared in their presence and on the instruction of Smt. Maiki and after being fully satisfied that the Will contains the same recital which she wanted, she put her thumb impression and after that they also signed the Will. The learned court below had initially granted the Letter of Administration but since the present appellants were not party at that moment of time and they were claiming themselves to be the owner of the land, the Letter of Administration was cancelled on their application and the matter was reopened, but the statement of both the marginal witnesses is still on record. They were not available for cross-examination after reopening of the case because of death, but their statement on oath cannot be ignored and has to be taken into account. However, in order to further prove their signatures, two witnesses, namely, Shatrughan and Mewa Lal Yadav were produced who recognized the signatures of both the witnesses. The objection raised by the appellants that instead of the family members of the marginal witnesses, these two stranger have been produced, has no substance because any one who recognizes the signatures of the marginal witnesses, could have proved their signatures. It is no where provided in the Evidence Act that only the family members of the marginal witnesses, could prove their signatures. Both these witnesses have been cross-examined in detail. Although there are minor contradictions in their statement but such minor contradictions are bound to happen because their statements were recorded after a long gap. These minor contradictions do not raise a doubt with regard to their reliability but indicate that they have spoken the truth.
The learned counsel for the respondent has referred to the statement of the witnesses and the statement of Smt. Meera Singh who was also present at that time to show that from their statements, it is proved beyond doubt that the Will was executed by Smt. Maiki in her sound state of mind and without any undue influence. She was competent to execute the Will and was also mentally and physically fit and alert. She was also able to understand as to what she was doing. This is clear from the statement of the witnesses. There is nothing in the cross-examination of the witnesses so as to suggest that they could not identify the signatures of the attesting witnesses on the Will.
It has also been submitted by the respondent that even if it is assumed that Molhey Prasad and others were distantly related to Smt. Maiki and had a share in the property, by the execution of Will, Smt. Maiki did not give any share to them and gave the entire property to the respondent. The reason for giving the property to the respondent is clearly mentioned in the Will itself. Although the respondent was not a close relative of Smt. Maiki but since he was living with her and was also providing his service, the executor Smt. Maiki in consideration of the services rendered by him and being pleased by his behaviour, decided to give her entire property to the respondent. The respondent has, therefore, removed all the suspicious circumstances and has successfully proved due execution of the Will dated 02.01.1995. The appellants, who claimed the property on the basis of Will executed in the year 1988, could not bring that Will on record and also could not prove the same, therefore, merely by pleading that there was some Will of 1988, it cannot be held that Smt. Maiki executed any Will in the year 1988.
The learned counsel for the respondent has referred to the statement of Molhey Prasad and Rajesh Prasad to show that when they were cross-examined, they only stated that since the Will dated 02.01.1995 was not executed in their presence that is why they say that it was a forged document. This part of the statement of the appellants, does not disprove the Will dated 02.01.1995 which has otherwise been proved according to law. Thus, from the pleading and the evidence of the appellants, it is proved beyond doubt that their claim was false for want of any evidence to the effect that Smt. Maiki executed any Will in favour of Chhotey Lal. So far as the claim of Master and Jangali is concerned, they also could not show as to how they succeeded and had any share in the property left by Smt. Maiki.
The learned counsel for the respondent submits that the argument made on behalf of the appellants that Smt. Maiki was incompetent to execute the Will because she was only Sirdar and had no title, has no substance because under the provisions of Section 131-B of UPZA & LR Act Smt. Maiki became Bhumidhar by operation of law. She was, therefore, fully competent to dispose of her property in any manner. So far as the plot number of one land is concerned, the same was wrongly mentioned as 74-Sa instead of 747. This mistake has already been rectified by the judicial order passed by the SDM, Sadar, Lucknow on 22.10.2011. Now the correction has been made in the revenue record. The certified copy of the said order alongwith corrected Khatauni is on the record and it has also been clarified by categorical statement that correct Khasara number is 747 and not 74 Sa. The appellants have not been able to show that 74-Sa and 747 are two different properties. Thus, the appellants cannot take any advantage of this anamoly.
The judgment and order impugned in this appeal clearly reveals that the application for grant of Letter of Administration has been allowed as prayed and it is directed that the Letter of Administration be issued in respect of the property which are mentioned in the Will. There is, thus, no substance in the argument of the learned counsel for the appellants that the learned court below by giving extra benefit to the respondent, has passed an order for grant of Letter of Administration in respect of such plots of land, which were not mentioned in the Will.
In order to appreciate the controversy between the parties with regard to the Will in question, let us examine various provisions of the Indian Succession Act. Section 59 of the Indian Succession Act provides, that every person of sound mind not being a minor may dispose of his property by way of Will. It has further been clarified that a married woman may also dispose of by Will any property which she could transfer by her own act during her life. It is also provided that the persons who are deaf, dumb or blind are not incapacitated for making a Will if they are able to know what they do by it. Thus, there is no restriction of execution of a Will by a blind person, provided, of course, that he is able to know what he is doing.
Section 63 of the Act provides the manner in which the Will is to be executed. According to this provision, the Will is to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will, or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark. It is further provided that it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. A bare reading of Section 63 of the Act makes it clear that no particular form of attestation is necessary. It is also not necessary that both the witnesses should remain present at the same time. The learned counsel for the appellants has questioned the validity of the Will on this ground also that the attestation of the Will has not been made according to law. In view of the provision of Section 63 of the Succession Act, the argument made on behalf of the appellants in this regard, has no substance.
Section 68 of the Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and is capable of giving evidence. The Will undoubtedly requires attestation by two witnesses but as per Section 68, the execution of Will can be proved by calling at least one attesting witness, if he is alive. It is not disputed that before the earlier order for grant of Letter of Administration was cancelled, both the attesting witnesses of the Will were alive and both of them appeared before the Court and proved the execution of Will in accordance with law. However, the appellants were not party at that time, therefore, they could not cross-examine those witnesses. When the case proceeded after remand, the execution of Will was proved by calling upon two such persons who recognized the signatures of attesting witnesses of the Will. This is provided in Section 69 of the Act, according to which, if no attesting witnesse can be found or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of attesting witness at least is in his handwriting and that the signature of the person accepting document is in the handwriting of that person. Thus, the legal requirement for a valid Will is that it must be in writing. Secondly, it must be duly signed by the testator and should be attested by two witnesses and each of such witness must see that testator to sign or affix his/her mark to the Will.
The propounder of the Will, therefore, has to show that the testator has signed the Will in the presence of two witnesses out of her own free will without any undue influence and at the relevant time, he or she was in sound disposing his mental state and was in a position to understand the effect of disposition. Once the propounder is able to prove these conditions, the burden to prove the Will is discharged. The onus now shifts upon the other side to disprove the Will. In the present case, the respondent being the propounder of the Will, has adduced his own evidence, the evidence of his wife Smt. Meera Singh and the evidence of two witnesses, namely, Mewa Lal and Shatrughan who recognized the signatures of marginal witnesses Rama and Ram Shankar. Thus, according to the respondent, all the legal requirements were fulfilled by the respondent and he removed all the suspicious circumstances as indicated by the appellants. The idea behind execution of a Will is to interfere with the normal line of succession. Whenever a Will is executed, the natural heirs are debarred. This itself cannot be a ground to raise a doubt with regard to due execution of a Will because a legal heir shall inherit the property in accordance with the law of succession after the death of land holder, but if the land holder executes the Will during his or her life time, it would disturb the line of succession and give the property to such person who will not inheri in the ordinary line of succession. Thus, whenever a Will is executed, it excludes the person who would otherwise be inheriting the property in normal course of succession. In the present case, there is no natural heir of Smt. Maiki. The appellants who have now come forward to claim the property of Smt. Maiki by way of succession, have not been able to prove as to how they inherited the property of Smt. Maiki.
Every circumstance under which a Will is executed, cannot be regarded as suspicious circumstances. A circumstance would be suspicious only if it is not normal or is not normally expected in a normal situation or from a normal person. A Will is a document and unless it is established that it was executed by fraud or by a person who was not in a fit disposing mind, it cannot be thrown away only on suspicion. It is a normal tendency of every one to execute a Will at that stage of time when he thinks that he is not likely to survive for more time and therefore if the maker of the Will dies after few days of the execution of Will, the Will cannot be disbelieved on this ground alone.
The Hon'ble Supreme Court in a case reported in 1957 A.L.J. page 667, Januava Dasi Vs. Hari Dasi has held that Will is as Solemn document and unless it is established that it was executed by fraud or by a person who was not in a fit disposing mind, it cannot be thrown out merely on suspicion. In this case, the Hon'ble Supreme Court has gone to the extent of observing that even if a wife has been deprived in the Will, it will not be a suspicious circumstance. This alone cannot raise a presumption against the Will. In a later decision reported in 1995 SCC page 459, Ravindra Nath Mukherjee Vs. Panchanan Banerjee, it has been held by the Hon'ble Supreme Court that the object of making a Will is to exclude the person who would otherwise be inherited the property in normal course of succession. The whole idea for execution of Will is to interfere with the normal line of succession. In a decision reported in 2010 LCD, page 703 Narendra Gopal Vidyarthi Vs. Rajat Vidhyarthi, it has been held that it is one of the cardinal principles of construction of Will that to the extent that it is legallyl possible effect would be given to every disposition contained in the Will unless the law prevents the effect being given to it. The Will should be constructed by the court in placing itself on the chair of the testator. The endeavour of the court should be to give effect to his intention.
It has also been submitted on behalf of the respondent that in the proceedings for grant of probate or for the Letter of Administration with a Will, the court exercising testamentary jurisdiction is not concerned with the title of the property. The court in such proceedings has to examine only the genuineness of the Will and due execution of the same. In determining whether probate should be granted, the court determines only the genuineness and due execution of the Will. Determination of the title in these proceedings is alien. It is also not the scope of such proceedings to examine as to whether a particular Will is good or bad . In a latest decision of this Court reported in 2017 (9) Allahabad Daily Judgment, page 578, State of U.P. Vs. Dr. Ashok Tahiliani and other, a Division Bench of this Court has examined the similar controversy and has relied upon various judgments of Hon'ble Apex Court. In one of such judgments reported in 1993 SCC page 507, it has been observed by the Hon'ble Apex Court that the Succession Act is a self contained Code, in so far as the question of making an application for probate or an appeal carried against the decision of the probate court. The grant of Letter of Administration with a copy of Will establishes as to the appointment of the executor and the valid execution of the Will. The court does not decide any question of title or of the existence of the property itself. In another decision relied upon by the Division Bench reported in 2003 SCC, page 3015, the Hon'ble Apex Court has held that a testamentary court is only concerned with finding out whether or not the testator executed the testamentary instrument out of his free will. It is a settled law that grant of probate or Letter of Administration does not confer title to the property.
In view of the aforesaid judgments and pronouncements of the Hon'ble Apex Court, it is clear that the learned court below while granting Letter of Administration to the respondent, has not dealt with the question of title which is still open to challenge by the person claiming title as to whether the executor Smt. Maiki was having any right to transfer the property by way of a Will because such question was not to be looked into by the testamentary court.
In view of the discussions made herein above and the law discussed in this judgment, I am of the view that the order passed by the court below granting Letter of Administration to the respondent Ram Naresh Singh, does not suffer from any illegality or infirmity. The learned court below after satisfying itself that the Will has been executed by Smt. Maiki and the execution thereof has been proved according to law, has passed the order for grant of Letter of Administration to the respondent.
The point of determination framed by this Court, are accordingly decided against the appellants.
In the result, I find no merit in both the first appeals from order, which are dismissed.
No order as to cost.
December 18, 2017 ank