V.N. Sinha, J.
1. Petitioner-plaintiff initially filed Testamentary Case No. 01 of 1993 praying inter alia to grant probate of the last Will and testament of late Tetar Devi, which is dated 15.7.1990 who left for her heavenly abode on 25.5.1992. Perusal of the Will dated 15.7.1990 indicates that four sons of late Jagannath Prasad including the three petitioners-plaintiffs and opposite party-defendant-1st set were the beneficiaries and executors appointed under the Will dated 15.7.1990 and the subject-matter of the Will is a house situate in Boring Road, Patna and five Bighas and odd land and 1/3rd share in the residential house at village Sundari, P.S. Barhariya, District Siwan. The 4th son of late Jagannath Prasad, Maheshwar Prasad Verma did not join the Probate Petition, accordingly, he was impleaded as Opposite Party-defendant-1st set and the surviving uncle of the petitioners-plaintiffs Sri Ram Bilas Prasad Verma was impleaded as Opposite Party-defendant-2nd set. Perusal of the petition further indicates that Sri Nag Narayan Lal had three sons, namely, Bishwanath Prasad, Jagannath Prasad and Ram Bilash Prasad Verma. They were employed in different Government Departments. Bishwanath Prasad, husband of late Tetar Devi superannuated as an Assistant Engineer while serving in the Public Works Department of the State Government some times in the year 1958, whereafter he purchased 3 kathas 12 dhurs of land in the name of his wife Smt. Tetar Devi at Boring Road, Patna in the year 1959 from his own funds and thereafter took loan of Rs. 8,000/- in the name of his wife from the Housing Department of the State Government which was sanctioned under Letter No. 6433 dated 10.12.1959 and constructed a house which was completed in the year 1962 whereafter the house was named as Anand Bhawan. Having raised the aforesaid Anand Bhawan, Bishwanath Prasad and his wife Smt. Tetar Devi both lived peacefully in the said house along with the other members of the family including the petitioners/opposite parties as both had no surviving issue. Sri Bishwanath Prasad died on 01.5.1985 leaving behind his wife Smt. Tetar Devi and other members of his family including the petitioners-plaintiffs and the opposite parties-defendants. After the death of her husband, Smt. Tetar Devi continued to live in the said Anand Bhawan along with other members of her family including the petitioners-plaintiffs and the opposite parties-defendants. As she had grown old, for better management of her properties and finance, she executed a Power of Attorney dated 4.6.1990 in favour of petitioner-plaintiff No. 3 as also opened a joint bank account with him in the State Bank of India, Boring Road Branch, Patna. Later, she executed Will dated 15.7.1990 bequeathing her aforesaid house, namely, Anand Bhawan and agricultural lands as also her 1/3rd share in the ancestral house at village Sunderi in favour of petitioners-plaintiffs and Opposite Party-defendant-1st set. The said Will was executed in presence of witnesses Sri Madan Mohan, Advocate, High Court, Patna and Sri Kanhaiya Prasad, a family friend and both the witnesses also signed over the Will as attesting witnesses. Later, she left for her heavenly abode on 25.5.1992 at 5.30 P.M. in the Indira Gandhi Institute of Cardiology (P.M.C.H.), Patna, whereafter the present petition was filed on 18.1.1993, praying inter alia to grant probate of the aforesaid Will and last Testament dated 15.7.1990 of late Tetar Devi.
2. This Court, under orders dated 19.7.1996 directed publication of general citation in two newspapers. 'Times of India' and 'Aryavarta', both Patna Edition as also further directed for issue of special citation through registered cost to the near relatives Opposite Parties-defendant 1st and 2nd set, in response whereto general citations were published on 30.7.1996 and the near relatives appeared through Vakalatnama and filed their caveat/objection. This Court, taking note of the caveat/objection of Maheshwar Prasad Verma, full brother of the petitioners-plaintiffs, under orders dated 6.9.1996 allowed the proceeding to be converted into a suit.
3. Opposite Party-defendant-1st set pleaded that the Will dated 15.7.1990, said to have been executed by late Tetar Devi, wife of Bishwanath Prasad, is a forged and fabricated document, which has been prepared by Narmdeshwar Prasad in collusion with his brother Prem Kumar, petitioners-plaintiffs No. 2 and 3. Further case of Opposite Party-defendant-1st set is that it was he who was managing the properties and bank account of his uncle Bishwanath Prasad and aunt Smt. Tetar Devi who bequeathed her properties in his favour by an oral will made in presence of some of the witnesses.
4. Opposite Party/defendant-2nd set, Ajay Kumar Verma, son of Ram Bilash Prasad Verma filed written statement disputing the claim that the house-in-question, Anand Bhawan was the personal property of Bishwanath Prasad and his wife Smt. Tetar Devi, as according to him, while purchasing the land and raising the house, Anand Bhawan, major contribution including the loan of Rs. 8,000/- obtained from the Housing Department of the State Government was arranged by Bishwanath Prasad in the name of Smt. Tetar Devi but other members of the family also had given their contributions for purchasing the land and raising the house which was evaluated by the Income-tax authorities worth Rs. 33,000/- in the year 1962-63 and the house all along remained a joint family property in which he along with other members of the family are even presently living. It was further stated that the Will dated 15.7.1990 is a forged and fabricated document as the same has been obtained by practicing fraud as the signature was obtained from his aunt Smt. Tetar Devi for taking steps in connection with case No. 802(M)/90, Balmohar Jalan and Ors. v. Brajnandan Sahay and Ors. in which all family members including the defendants were impleaded as parties.
5. Having considered the aforesaid case of the parties, under orders dated 3.1.1997 this Court framed the following issues:
(1). Whether the frame of the suit is in order?
(2). Whether the Will in question is the genuine Will executed by Tetar Devi in a sound state of mind?
(3). Whether the plaintiff is entitled to grant of Probate?
(4). Whether the defendant, has locus standi to challenge the grant of Probate ?
6. In support of its case, petitioners-plaintiffs examined six witnesses, namely, the three plaintiffs as P.W.-1, 3 and 2 respectively, two attesting witnesses, namely, Sri Madan Mohan, Advocate as P.W.-4 and Sri Kanhaiya Prasad as P.W.-5 and one independent witness, namely, Shiv Kumar Singh, the Clerk of Sri Madan Mohan was also examined as P.W.-6, Maheshwar Prasad Verma, Opposite Party-Defendant 1st set examined four witnesses, namely, himself as D.W.-1, Atul Kumar Verma, his son as D.W.-2 and Narendra Kumar Sinha and Krishna Kumar Sinha, his two nephews, as D.W.-3 and 4. Defendant- 2nd set, Ram Bilas Prasad Verma and his son Ajay Kumar Verma examined themselves as D.W.-1 an 2 but D.W.2, Ajay Kumar Verma never made himself available for cross-examination.
7. P.W.-1 Bisheshwar Prasad Verma is petitioner-plaintiff No. 1. He has stated that the Will dated 15.7.1990 has been duly executed by his own aunt Tetar Devi in a sound state of body and mind with full understanding and without any pressure and the same is the last Will executed by her bequeathing her entire properties to him and his other three brothers who were named executors in the said Will and thereafter he proved the Will and the signature of the testatrix which were marked as Exhibit-1 and 2. He thereafter stated that before executing the Will Tetar Devi had also executed a Power of Attorney on 4.6.1990 in favour of Prem Kumar in presence of all the four brothers, Bisheshwar Prasad Verma, Narmdeshwar Prasad Verma, Maheshwar Prasad Verma and Prem Kumar and two other independent witnesses, namely, Jay Nandan Prasad and Kanhaiya Prasad. In the cross-examination nothing substantial has been taken from this witness (P.W.-1) so far it relates to the execution of the Will dated 15.7.1990 (Exhibit-1) by the testatrix as also about the state of her mind and body except that the witness has admitted that at times his aunt, the testatrix Tetar Devi used to hand over cheques to his other brother Maheshwar Prasad Verma, Defendant-1st set as also the fact that Sri Madan Babu, Advocate, the attesting witness is distantly related to Sri K.K. Sinha who happens to be the father-in-law of his daughter.
8. P.W.2, Prem Kumar is plaintiff No. 3. He also stated that the Will dated 15.7.1990 was duly executed by Tetar Devi in sound state of body and mind at the residence of Madan Babu, Advocate whereunder she bequeathed her entire properties including her residential house at Patna in favour of his three brothers, namely, Bisheshwar Prasad Verma, Maheshwar Prasad Verma, Narmdeshwar Prasad Verma besides himself. He further stated that at the time of execution of the will, contents of the Will was read over and explained to her by Madan Babu, Advocate and having understood the contents she put her signature over the Will dated 15.7.1990, whereafter she asked Madan Babu and Kanhaiya Babu to out their signature as attesting witnesses and as per her wish the two attesting witnesses signed over the same. He identified the signature of Sri Madan Babu and Sri Kanhaiya Babu which were marked as Exhibits 6 and 7 respectively. He further stated that Tetar Devi died on 25.5.1992 and before executing the Will. (Exhibit-1) Tetar Devi had also executed Power of Attorney in his favour, draft whereof was prepared by Sri D.P. Sinha, Advocate and the contents of the Power of Attorney were also read over and explained to Tetar Devi, who out her signature after understanding the contents of the Power of Attorney dated 4.6.1990 which is marked as Exhibit-8 in presence of his three brothers and himself. He further stated that in connection with the Power of Attorney she had sworn an affidavit on 4.6.1990 itself before the Notary Public. He further stated that in terms of the Power of Attorney he operated the bank account and looked after the properties of Tetar Devi who used to live with him and his three brothers. He further stated that all the four brothers have been appointed executors in the Will and thereafter stated that prior to execution of the Will, the draft was prepared on 8.7.1990 by Sri Madan Babu, Advocate at the instance of Tetar Devi whereafter the draft was given to Sri Shiv Prasad, the clerk of Madan Babu for being typed and Tetar Devi was asked to come on 12.7.1990 on which date Tetar Devi went to Madan Babu when the draft was again read out and explained to her then she again asked Madan Babu to make further amendment in the draft which was, accordingly, amended and revised in the handwriting of Madan Babu at this instance of Tetar Devi, which draft is marked as Exhibit-9 and then the revised draft, Exhibit-9 was again handed over to the clerk, Shiv Prasad Singh for being typed and then Tetar Devi was asked to come again on 15.7.1990 on which date Tetar Devi again went to Sri Madan Babu at his residence and being satisfied with the draft of the will. Exhibit- 1 she put her signature on the same. He further stated that he has filed a pass-book in the joint name of Tetar Devi and himself maintained in the State Bank of India, Boring Road, Patna, which is exhibit-E and then stated that Tetar Devi was being treated by Dr. Tara Chand Lakhmani as and when required, one of whose prescription is marked as Exhibit-F. He categorically denied the suggestion that signature of Tetar Devi over the Will, Exhibit-1 was obtained by misrepresentation. In the cross-examination nothing substantial has been taken from this witness (P.W.-2) so far it relates to the execution of the Will dated 15.7.1990 (Exhibit-1) by the testatrix as also about her state of mind and body including capacity to execute, except that Sri Madan Mohan Prasad, Advocate, the attesting witness over the Will is the brother-in-law of the Samdhi of his younger brother.
9. P.W.-3, Narmdeshwar Prasad is plaintiff No. 2. He has stated that Tetar Devi had executed a will dated 15.7.1990 bequeathing her properties to himself and his three brothers, he further stated that she has executed the Will in sound state of body and mind and the contents of the Will was scribed by Sri Madan Babu, Advocate at his house in presence of the four brothers and attesting witness Kanhaiya Prasad as also in presence of the clerk of Madan Babu. He further stated that the contents of the Will was read over and explained to Tetar Devi, who put her signature only after understanding its contents. The draft of Power of Attorney was made by Sri D.P. Sinha, Advocate who also had read over and explained the contents of Power of Attorney in Hindi to Tetar Devi, who put her signature over the same after properly understanding the contents. It is also stated that Tetar Devi requested the four brothers to put their signatures on the Power of Attorney and as per her request the four brothers out their signatures on the Power of Attorney executed by Tetar Devi. He further stated that Defendant No. 1, Maheshwar Prasad Verma never looked after the properties of Tetar Devi nor Tetar Devi ever bequeathed her entire properties in favour of Maheshwar Prasad Verma orally. P.W.-3 also categorically denied the suggestion that Tetar Devi was not in a sound state of mind at the time of execution of the Will dated 15.7.1990 or any pressure or coercion was made/applied for obtaining her signature over the will dated 15.7.1990. In the cross-examination nothing substantial has been taken from this witness (P.W.-3) so far it relates to the execution of the Will dated 15.7.1990 (Exhibit-1) by the testatrix as also about the state of her mind and body at the time of execution of Will.
10. P.W.-4, Sri Madan Mohan is a practising Advocate of the High Court and is not only an attesting witness over the Will-in-question but is also said to have prepared the draft of the Will as per the instruction of the testatrix. He has categorically stated that he had read over and explained the contents of the Will to the testatrix who put her signature after fully understanding the contents of the Will on every page of the Will which has been marked as Exhibit-2 and Exhibit-10 series. Having put her signature on the Will, the testatrix requested him (Madan Babu) and Sri Kanhaiya Babu to become attesting witness and as per her instruction he along with Sri Kanhaiya Babu signed over the Will as attesting witness and their signatures have been marked as Exhibits-6 and 7. He has further categorically stated that at the time of putting her signature the testatrix was in a sound state of body and mind. He further claims to have stated that the draft of the will was prepared by him at the instance of the testatrix, which was taken for typing by his clerk and after the draft will was typed, its contents were read over and explained to the testatrix who suggested certain amendments which were also inserted by him in the draft of the Will in his own pen. At the time of reading over of the drafts, the testatrix was in a sound state of mind. He categorically denied the suggestion that the testatrix was not in a sound state of mind at the time of execution of the Will and that without fully understanding the contents and implications of the Will, she had put her signature over the Will. In the cross-examination, he has explained his relationship with the testatrix that she happens to be the aunt of the Samdhi of his brother-in-law and further clarified that before preparing the draft of the Will he had never interacted with her nor had appeared on her behalf in any litigation between her and Balmohar Jalan. He further clarified that he had explained the contents of the Will to the testatrix on two occasions and the other attesting witness on the Will Sri Kanhaiya Babu is not his relation.
11. P.W.-5, Kanhaiya Prasad is the other attesting witness over the Will. He has stated that he knew Bisheshwar Prasad Verma, Maheshwar Prasad Verma, Narmdeshwar Prasad Verma and Prem Kumar, the full brothers and their aunt Tetar Devi, who executed a Will in favour of the four brothers on 15.7.1990 in the house of Sri Madan Mohan, Advocate. She put her signature over the Will after the contents of the Will was explained to her. The witness identified the signature of the testatrix over the Will which was marked as Exhibit-2 and 10 series. The witness further stated that testatrix after putting her signature over the Will requested him and Sri Madan Mohan to put their signature over the Will as attesting witnesses and, accordingly, he out his signature which has been marked as Exhibit-7. Sri Madan Mohan also put his signature in his presence. He further stated that at the time of putting her signature over the Will, Tetar Devi was in a sound state of mind. He has denied the suggestion that her mental condition at the time of execution of the Will was not sound and that she signed the document without understanding its contents. The witness further stated about the execution of the deed of Power of Attorney in favour of Prem Kumar on 4.6.1990 and proved the signature of Tetar Devi over the Power of Attorney, Exhibit-8. He further stated that Tetar Devi, after cutting her signature on the Power of Attorney, requested him to put his signature and he also put his signature over the Power of Attorney, which is marked as Exhibit 3/D. In the cross-examination nothing substantial has been taken from this witness (P.W.-5) as regards the genuineness and execution of the Will dated 15.7.1990 (Exhibit-1) and the mental/physical capacity of the testatrix to execute the Will.
12. P.W.-6, Shiv Kumar Singh is the clerk of Sri Madan Mohan, Advocate, whose services were taken by the testatrix in getting the draft and the final copy of the Will typed. He has stated the name of the typist who typed the draft and the final copy of the Will. He has categorically stated that the draft was corrected once and thereafter final copy of the Will was typed and then executed. On the date of execution one Engineer Saheb was waiting in the chambers of Sri Madan Mohan from before. In the cross-examination, nothing substantial has been taken from this witness so as to impeach the mental and physical capacity of the testatrix about the execution of the Will.
13. Defendant- 1st set have examined four witnesses. D.W.1, Maheshwar Prasad Verma is Defendant No. 1, 1st set. He has stated that his uncle Bishwanath Prasad and aunt Tetar Devi had no living issue and they used to live with them since 1944. His uncle died on 1.5.1985 and he performed his Shradh ceremony and after the Shradh ceremony, his aunt Tetar Devi orally gave him the house-in-question, Anand Bhawan, which is double storeyed in which he resides with his family members. He accepts that his aunt had earlier executed a Power of Attorney, Exhibit-3 in favour of petitioner-Plaintiff No. 3, Prem Kumar for contesting the litigation with Balmohar Jalan, who has land on the southern side of their house in which he (Balmohar Jalan) had constructed building. In the said Power of Attorney, she put her signature in presence of all the four brothers. It is further stated by him that his aunt (testatrix) never disclosed that she had executed the Will for which this Probate case has been filed. He thereafter stated that his aunt was physically unable to move and she never went to the house of Sri Madan Babu, Advocate as she was not in a position to go. He admitted that his aunt knew Hindi but it was more convenient for her to read and write in Kaithi. After looking at the signature on the disputed Will, he disputed the signature of the testatrix over the Will, marked Exhibit-2 and 10 series. He admitted that all his brothers are residing in the house which is the subject-matter of the Will. He further stated that after filing of this case he came to know that the front portion on the ground Floor of the house-in-question has been given to prem Kumar the rear portion to Narmadeshwer Prasad Verma, the front portion on the first floor to Bisheshwar Prasad Verma and the rear portion to him and the portion which has been shown in the deed and has been given to him is incomplete. He further asserts that the Will is forged. In the cross-examination he has accented the fact that the bank account was in the name of Tetar Devi and Prem Kumar and that the same is not in his name and Prem Kumar used to withdraw money from the said account. He further admits that Tetar Devi was a woman with understanding. He even admits the execution of Power of Attorney dated 4.6.1990. Exhibit-8 by Tetar Devi in favour of Prem Kumar and his signature over the same, Exhibit-3/a.
14. D.W.-2, Atul Kumar Verma is the son of D.W.1 Maheshwar Prasad Verma and has supported the evidence rendered by his father.
15. D.W.-3, Narendra Kumar Sinha and D.W.4. Krishna Kumar Sinha are the sons of the brother-in-law (wife's brother) of Maheshwar Prasad Verma, Defendant No. 1, 1st set. They have stated that their Fufa Maheshwar Prasad Verma used to tell them that his aunt Tetar Devi shall bequeath all her properties to him and they have no personal knowledge of any will executed by her-in favour of all the four sons of Late Jagannath Prasad.
16. Defendant-2nd set have examined two witnesses, namely. D.W.1 Ram Bilash Prasad Verma and his son D.W.-2 Ajay Kumar Verma, who was not made available for cross-examination. In the circumstances, the evidence of D.W.-2 shall not be considered.
17. D.W.1-2nd set, Ram Bilash Prasad Verma has stated that he was an employee of the State Government and retired as Additional Collector in the year 1972. He had three brothers, namely, Jagarnath Prasad, Vishwanath Prasad and himself. Vishwanath Prasad was ten years older than him. Jagarnath Prasad and Vishwanath Prasad died long ago. Name of the widow of Vishwanath Prasad was Tetar Devi and Vishwanath Prasad and Tetar Devi died issueless. D.W.1-2nd set has further stated that at the time when Vishwanath Prasad purchased the property in Patna, the family was joint and continues to be so. Vishwanath Prasad purchased the land at Patna in the name of his wife Smt. Tetar Devi. At the time of purchase of land at Patna Vishwanath Prasad was working as Overseer in the P.W.D. In the house constructed by Vishwanath Prasad, other family members used to reside with him. Vishwanath Prasad and his wife used to look after his family and family of all the brothers nicely. Vishwanath Prasad and his wife Tetar Devi had no particular affection for any family member of any brother and they used to treat them equally. They were distressed by the fact that they had no issue and they used to look after each and every member of the family with equal love and affection. He further stated that he does not know as to whether Bishwanath Prasad and Tetar Devi used to say that they will distribute the property amongst all the family members. D.W.1-2nd set also stated that during the life time of Bishwanath Prasad and Tetar Devi, the Question of transferring the property to any other brother or their children did not arise. Neither Bishwanath Prasad nor Tetar Devi ever executed any Will during their life time. He further states that since after construction of the house, he along with his family members staged there till about 1983. D.W.1-2nd set further stated that he does not know that any Will was executed by Tetar Devi in favour of Prem Kumar and others and he could know about the same when the notice was published in the newspaper that a case has been filed in the High Court. In the year 1992 Tetar Devi was aged about 82-83 years and was not in a position to move as some problem had arisen in her legs. Tetar Devi was not a literate lady. The children of all the brothers of Tetar Devi's husband used to look after her. Even today one of his sons Ajoy Kumar Verma stays in the Anand Bhawan. His son used to reside in the house during the life time of Vishwanath Prasad and Tetar Devi and still he is living there. He further stated that he cannot say as to whether the Will executed by Tetar Devi is correct or incorrect. He thereafter also submitted that he constructed a hall in his house at Patna in the name of his brother Vishwanath Prasad and he had also established a school in his village-Sundari in his name and a market complex has also been made after his name. In the cross-examination, he has admitted that he does not know as to whether the house was constructed from the account of the joint family. He further admits that his son Ajay Kumar Verma has no concern with the house-in-question as he had purchased a flat. He further admits that in the disputed house, all the four sons of Jagannath Prasad are residing with their family members.
15. Learned Counsel for the opposite parties-defendant 1st & 2nd set have opposed the prayer with reference to the evidence led by the Parties but before going to the evidence of the parties, he has invited my attention to paragraph 2 of the verification of the plaint made by petitioner-plaintiff No. 1. Bisheshwar Prasad Verma where he has stated that the statements made in paragraphs 5, 7 and 8 of the plaint are believed to be true on the basis of the information derived from attesting witnesses. Perusal of Paragraphs 5, 7 and 8 of the plaint indicates that thereunder statement was made that plaintiff learnt about the execution of the Will dated 15.7.1990 by the testatrix in sound disposition of mind, health and body from the attesting witnesses and with reference to the said statement it is submitted that as petitioners-plaintiffs have learnt about execution of the Will by the testatrix in a sound disposition of mind, health and body from the attesting witnesses they had no personal knowledge of the execution of the Will by the testatrix in sound disposition of mind, health and body, which they proclaim to have while examining themselves as a witness in the proceeding. In the circumstances, according to the defendant-2nd set without making such amendment in the plaint or the verification portion of the plaint they should not be allowed to take such stand and evidence to that effect should be ignored.
19. It is further submitted on behalf of Defendant 1st & 2nd set that the subject matter of the Will is joint family property of late Nag Narayan Lal and as per the provisions of the Hindu Succession Act, 1956, joint family property cannot be the subject-matter of a Will.
20. It is further submitted on their behalf that the circumstances, noted below shall ipso facto establish that the Will dated 15.7.1990. Exhibit-1 is not a genuine document:
(1). that the Will-in-question is written/typed in six pages in English language giving detailed description of the land over which the building-in-question has been raised as also giving the details of the portions of the building given to each of the four executors/beneficiaries. Giving of such detailed description about the land and the portions earmarked to the four beneficiaries is not possible by an illiterate lady who was only capable of putting her signature. It is also submitted that the value of the bequeathed property as shown in the plaint is more than two lacs ninety five thousand but actual valuation of the bequeathed property is more than Rs. 20 lacs. As the Will dated 15.7.1990, Exhibit-1 is not registered, this Court should be cautious while considering the question of grant of Probate. It is also submitted that the signature of the typist being not there on the will dated 15.7.1990, Exhibit-1, it is very difficult for any prudent person to verify the genuineness of such Will as without the name of the typist it cannot be ascertained as to who actually typed the same. It is further submitted that the will was executed on 15.7.1990, which was a Sunday, as such, the execution becomes doubtful as no family members, neighbours or independent witnesses were examined to establish that Tetar Devi had actually gone on 15.7.1990 out of her house for execution of the Will. Failure to examine the rickshaw pullar, who took her to the house of Sri Madan Mohan, Advocate on 15.7.1990 for the execution of the Will makes the entire story doubtful. Learned Counsel for the defendants further counted out that one of the executors/beneficiaries of the Will dated 15.7.1990, Exhibit-1, namely, Maheshwar Prasad Verma, defendant-1st set, having categorically asserted that the Will dated 15.7.1990, Exhibit-1 is forged and fabricated document, this Court should rely over his assertion, especially when the day on which the Will is said to have been executed was Sunday and none of the independent persons have ever seen the testatrix moving out of the house. Learned Counsel for the defendant-2nd set has further doubted the genuineness of the Will dated 15.7.1990. Exhibit-1 on the around that the draft of the Will was prepared on 12.7.1990 and the Will was executed on 15.7.1990. In this connection, he refers to the discrepancy in the evidence of P.W.-1, 2, 4 and 6 on the point of presence of all the four brothers at the time of execution of the Will. Learned Counsel for the defendant-2nd set has further assailed stipulation made in the Will dated 15.7.1990, Exhibit-1 that it was the pious wish of the husband of the testatrix as also the testatrix to bequeath their properties in favour of the petitioners-plaintiffs but in Court, P.W.-3, Narmdeshwar Prasad made categorical statement that he is not aware if any such intention was expressed by his deceased uncle late Bishwanath Prasad. It is further submitted by learned Counsel for the defendant-2nd set that in the proceedings which was initiated at the instance of Balmohar Jalan bearing case No. 802(M)/90, testatrix, the petitioners-plaintiffs, defendants and other heirs and legal representatives of late Nag Narayan Lal were noticed, which is a circumstance to establish that the house-in-question is a joint family property. Learned Counsel for the defendant-2nd set further submitted that the attesting witnesses over the Will are interested witnesses. In this connection, he referred to the evidence of P.W.-1, 2, 3, and 4. He further submitted that the evidence of the petitioners-plaintiffs' witnesses is such that they are even denying the admitted fact, such as, their appearance in the Court proceeding in Balmohar Jalan case along with the defendants which circumstance should be taken to discredit their evidence in its entirety. According to learned Counsel for the defendants, failure of the petitioner-plaintiff to indicate the age of the testatrix Tetar Devi in the plaint at the time of execution of the Will, should be a circumstance to ignore the Will dated 15.7.1990, Exhibit-1. Learned Counsel for the opposite party-defendant-2nd set has further referred to the evidence of Prem Kumar, P.W.-2, Narmdeshwar Prasad, P.W.-3 and Bisheshwar Prasad Verma, P.W.-1 to indicate that there is considerable contradiction about existence of the landed property in the name of the testatrix in Village Sundari and in the circumstances, in appreciation of such contradiction even the evidence as regards the existence of the house property in her name at Boring Road, Patna should not be relied upon.
21. Having made the aforesaid submissions, learned Counsel for the opposite party-defendant-2nd set, with reference to the judgment of the Hon'ble Supreme Court in the case of Kalyan Singh v. Smt. Chhoti and Ors. reported in : AIR1990SC396 submitted that it is essential that trustworthy and impeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. In the present case evidence produced is such which should not be relied upon and the case be dismissed. In this connection, he further relied on the judgment of this Court in the case of Ram Lal Sah v. Birendra Kumar reported in 1986 (34) B.L.J.R. 764 and submitted that the circumstances which have been noticed and referred to above are suspicious circumstances, which should persuade this Court to dismiss this petition. In this connection, he further pointed out that the Court has to be very cautious when it is considering the Will executed by an illiterate or Pardanashin lady. In this connection, he referred to the judgment in the case of Abdur Rahman v. Ghuru Khan reported in A.I.R. 1944 Oudh 99, in the case of Mt. Farid-un-nisa v. Munshi Mukhtar Ahmad and Anr. reported in 1925 Privy Council 204 and with reference to the judgment of this Court in the case of Patai Dhorain and Ors. v. Digam Dhora and Ors. reported in : AIR1960Pat318 submitted that the onus is imposed on the party propounding the Will to establish that the same was executed in circumstances which is beyond reasonable doubt.
22. Learned Counsel for the petitioners-plaintiffs, with reference to the evidence as adduced on behalf of the petitioners-plaintiffs as also the defendant-1st set, submitted that execution of the deed of Power of Attorney in favour of Prem Kumar by the testatrix Tetar Devi dated 4.6.1990. Exhibit-8 is admitted by the three petitioners-plaintiffs as also by defendant- 1st set as the three petitioners-plaintiffs and defendant 1st set have also put their signature over the Power of Attorney dated 4.6.1990. Exhibit-8, paragraph 3 whereof recites as follows:
To act on my behalf in partitioning my properties between himself and his own brothers and dividing their shares by metes and bounds with my consent if I am alive and in case partition takes place after my demise to do all such acts on my behalf to bring out an effective partition of my properties amongst himself and his own brothers.
23. In order to give effect to the intention, which is contained in aforesaid paragraph 3 of the Power of Attorney dated 4.6.1990, Exhibit-8, the Will dated 15.7.1990, Exhibit-1 was executed by the testatrix for which, initial consultation was made between the testatrix and the draftsman of the Will Sri Madan Mohan P.W.-2 on 8.7.1990 on which dates after consultation the draftsman noted down the points which were to be incorporated in the proposed Will and thereafter asked the testatrix to come again on 12.07.1990 so that in the mean time the draft of the Will may be typed. On 12.7.1930, the testatrix again met the draftsman who explained the contents of the proposed Will to the testatrix whereafter the testatrix again proposed few other amendments in the draft which was duly incorporated in the draft itself by the draftsman in his own handwriting and the draft, on the instruction of the testatrix, was handed over to the clerk of the draftsman Sri Shiv Kumar Singh, P.W.-6 so as to get the same typed and the testatrix was again asked to come for execution of the Will on 15th of July, on which date she came to the draftsman who again explained the contents of the Will and after appreciating the contents, she put her signature on every page of the Will and thereafter requested the draftsman and Sri Kanhaiya Prasad to become a witness of the execution of the Will by putting their signature over the same. In compliance of the request of the testatrix, the two witnesses signed the will, which fact is duly corroborated from the oral evidence of the three petitioners-plaintiffs and two attesting witnesses as also the documentary evidence, Exhibit-8, Power of Attorney, Exhibit-9, draft of the Will and Exhibit-1, the actual Will dated 15.7.1990. In this connection, learned Counsel for the petitioners-plaintiffs has further referred to Section 64 of the Indian Succession Act, 1925 to submit that the Power of Attorney dated 4.6.1990. Exhibit-8, referred to in the Will dated 15.7.1990, Exhibit-1 shall be deemed to form a part of the Will as it is referred to in the Will.
24. With reference to the oral evidence adduced on behalf of the parties it has been contended that it is the admitted case of the parties that the testatrix was living in the same house with the petitioners-plaintiffs, defendant- 1st set and Ajay Kumar Verma and they all had cordial relationship with her, which fact is further established by the fact that Prem Kumar, petitioner-plaintiff No. 3 was even managing her bank account as also her properties, as is evident from the Power of Attorney, Exhibit-8 and the pass-book, Exhibit-E, proved by D.W.-1, Maheshwar Prasad Verma himself. As such, according to the petitioners-plaintiffs it should not be difficult for any prudent person to accept that Prem Kumar, petitioner-plaintiff No.-3 and his three brothers were having close relationship with the testatrix as their father Jagannath Prasad predeceased both Bishwanath Prasad and his wife Tetar Devi in the year 1969 itself whereas Ajay Kumar Verma remained under the care and protection of his father, who was well placed in life and retired as Additional Collector. With reference to the oral evidence of the three petitioners-plaintiffs, D.W.1, 1st set and 2nd set, it is further submitted that prior to 1992 the testatrix had no problem at all in the movement as according to D.W.-1, defendant-2nd set, Ram Bilash Prasad Verma himself she developed problem in her legs in the year 1992. In this connection, it was also submitted that even on the date of her death she was examined by her physician in the morning who found her to be mentally alert and in this connection reference was made to the prescription of Dr. Tara Chand Lakmani dated 21.5.1992, Exhibit-F. With reference to the evidence of the petitioners-plaintiffs and defendants of both sets, it is submitted that on the date of execution of the Will i.e. 15.7.1990 there was absolutely no difficulty in her movement and visiting the house of the Advocate Sri Marian Mohan for execution of the Will.
25. As regards the mistake in Paragraph 2 of the verification of the plaint made by Sri Bisheshwar Prasad Verma, it is submitted with reference to the provisions contained in Section 280 and 281 of the Indian Succession Act, 1925 read with Order (VI) Rule 14 and 15 of the Code of Civil Procedure that the mistake in verification can always be corrected by the party, who has made such mistake as mistake committed while verifying the plaint should not be taken so seriously so as to defeat the cause itself and in any case oral evidence recorded in the Court shall always have precedence over the statements made in the verification. From the evidence of P.W.-1, Bisheshwar Prasad Verma it is evident that he was also present at the time of execution of the Will. In the circumstances, the statement made in paragraph 2 of the verification of the plaint should not be allowed to prevail over his evidence recorded in Court. In this connection, learned Counsel for the petitioners-plaintiffs relied on the judgment in the case of Kailash Singh v. Hiralal Dev reported in A.I.R. (1994) Gau. 12 and in the case of Wali Mohammad Khan v. Ishak Ali Khan and Ors. reported in A.I.R. (1931) Allahabad 507.
26. As regards proof of the Will, learned Counsel for the petitioners-plaintiffs referred to Section 63 of the Indian Succession Act, 1925 and submitted that if the propounder takes a prominent part in the execution of the Will which confers a substantial benefit on him then the propounder is required to remove the doubts by adducing clear and satisfactory evidence. He further submitted that once the propounder establishes that the Will was signed by the testatrix in a sound disposition of mind after the testatrix understood the nature and effect of the disposition and put his/her signature out of his/her free-will in presence of the witnesses thereafter the onus which rests on the propounder is discharged and the allegation of undue influence, fraud or coercion as made by the caveator the onus is on the caveator to prove the same. According to learned Counsel for the petitioners-plaintiffs the defendant-1st set claimed that Tetar Devi executed an oral Will in his favour, which goes to prove that Tetar Devi had capacity to execute the Will and there is no allegation of undue influence, fraud or coercion specifically pleaded by the caveators rather they have admitted the signature of Tetar Devi on the Will, which is alleged to have been obtained by Prem Kumar, one of the petitioners-plaintiffs, as Attorney of Tetar Devi by practising misrepresentation and obtaining signature on plain paper for making pairvi in the Balmohar Jalan case which signature was later used for execution of the Will. But no such evidence was placed on record by the caveators. Thus, according to learned Counsel for the petitioners-plaintiffs the caveators have miserably failed to prove or discharge their onus. It is further submitted that Maheshwar Parshad Verma, being an executor, having opposed the grant is not entitled rather precluded from the grant of Probate under the provisions of Section 230 of the Indian Succession Act, 1925. It is further submitted by learned Counsel for the plaintiff that this Court does not have any jurisdiction to consider the Question as to whether a particular bequest is good or bad as that is beyond the jurisdiction of the Probate Court. It is further submitted that Ajay Kumar Verma is a Class-2 Category-2(3) heir of the testatrix. In the circumstances, during the life time of his father Ram Bilas Prasad Verma, he was not entitled to challenge the grant of Probate. It is then submitted that execution of Will dated 15.7.1990, Exhibit-1 with respect to joint family property is also permissible in view of Section 30 of the Hindu Succession Act, 1956. In this connection, reference is made to the judgment of Hon'ble Supreme Court in the case of Sadhu Singh v. Gurdwara Sahib Narike and Ors. reported in : AIR2006SC3282 .
27. Having noted the submissions of the parties, before I take up issue Nos. 1, 2 and 3, I propose to consider issue No. 4- as to whether the defendants have locus standi to challenge the grant of Probate ?
28. Petitioners-PLAINTIFFS/beneficiaries and the opposite parties-defendants 1st and 2nd sets/caveators in the present suit are the grand son and son of late Nag Narayan Lal. In the circumstances, there is no difficulty in holding that this opposite parties-defendants/caveators have locus standi to challenge the grant of probate in favour of the petitioners-plaintiffs and appreciating such legal position the proceeding was converted into a suit under orders dated 6.9.1996 and issue No. 4 is decided in favour of the defendants/caveators.
29. Now, I proceed to consider issue Nos. 1, 2 and 3. It is evident from the oral evidence of P.Ws.-1, 2 and 3, the executors/beneficiaries under the Will, of P.Ws.- 4 and 5 the two attesting witnesses and P.W.-6, the independent witness that the testatrix Tetar Devi had come to the house of P.W.-4 on 8.7.1990 when she requested P.W.-4 to draft a Will bequeathing her entire properties in favour of her four nephews, petitioners-plaintiff Nos. 1, 2 and 3 and defendant-1st set, whereafter P.W.-4 noted down the points which she wanted to incorporate in the Will and requested her to come again on 12.7.1990 so that time in the meanwhile be utilized for drafting the proposed Will. It further appears from their evidence that on 12.7.1990 the testatrix again approached P.W.-4 when the draft of the proposed Will was made available to her and she was also explained the contents of the Will, whereupon the testatrix proposed certain amendments in the draft which was also incorporated in the draft in the handwriting of P.W.-4 and having incorporated the amendments as per the instructions of the testatrix the proposed draft-Exhibit-9 was handed over to the clerk of the draftsman, P.W.-6, with instructions to get the same typed and the testatrix was again requested to come again on 15.7.1990 for executing the Will on which date she again came to the house of P.W.-4 along with the executors/beneficiaries where another attesting witness, P.W.-5 was present from before and in presence of the beneficiaries, the two attesting witnesses and the clerk of the draftsman, P.W.-6, she (testatrix) was once again explained the contents of the Will and she, having fully understood the same, put her signature on each of the page of the Will, which has been marked as Exhibits-2 and 10 series and the Will has been marked as Exhibit-1. Having put her signature the testatrix requested the two attesting witnesses also to sign over the Will as attesting witnesses and as per her request the two attesting witnesses-P.Ws 4 and 5 signed the same as attesting witnesses whose signature has been marked as Exhibits-6 and 7.
30. In view of the aforesaid oral/documentary evidence, I am of the view that the petitioners-plaintiffs/beneficiaries have discharged their onus that the Will, Exhibit-1 was executed by the testatrix in a sound state of body and mind in presence of two attesting witnesses. The said finding of mine is further corroborated if the contents of the Power of Attorney dated 4.5.1990, Exhibit-8 is closely perused. The testatrix executed Exhibit-8 in favour of one of the petitioner-plaintiff/beneficiary, Prem Kumar over which not only the three Petitioners-plaintiffs/beneficiaries but also defendant-1st set, Maheshwar Prasad Verma has put his signature and the execution of the Power of Attorney dated 4.6.1990, Exhibit-8 is admitted by defendant-1st set and in my opinion, the Will dated 15.7.1990, Exhibit-1 bequeathing the properties in favour of the three petitioners-plaintiffs and opposite party-defendant-1st set was executed by the testatrix only with a view to give effect to her intention as incorporated in paragraph-3 of Power of Attorney dated 4.6.1990, Exhibit-8, already extracted in paragraph-22 of this judgment.
31. The witnesses examined on behalf of Opposite parties-defendant-1st and 2nd set have not been able to rebut the onus and prove that the Will dated 15.7.1990, Exhibit-1 was executed on account of misrepresentation/fraud practised by the petitioners-plaintiffs on the testatrix as mere statement that the Will is forged or the signatures were obtained for making pairvi in the Balmohar Jalan case is not sufficient to establish fraud or misrepresentation. No evidence, whatsoever, has been adduced on behalf of the defendants that any fraud or misrepresentation was practised on the testatrix. The circumstances, such as, testatrix being an illiterate lady executing a deed of gift in six pages, that too in English language, giving details of the properties bequeathed, valuation whereof is more than Rs. 20 lacs, Rickshaw-pullar who took the testatrix to the house of Sri Madan Mohan, Advocate-P.W.-4 on three occasions i.e. on 8.7.1990, 12.7.1990 and 15.7.1990 in connection with execution of the Will dated 15.7.1990. Exhibit-1 having not been examined, Will having been executed on Sunday and testatrix having ill Health on account of advanced age was not capable of going to the house of Sri Madan Mohan, are not such circumstances which will persuade this Court to ignore the evidence of the petitioners-plaintiffs that she had actually gone to the house of Sri Madan Mohan, P.W.-4 on three occasions for preparing the draft/examination of the Will in a sound physical and mental health, which fact is even corroborated by the evidence of Sri Ram Bilas Prasad Verma, defendant-2nd set and the prescription of Dr. Tara Chand Lakhmani dated 21.5.1892. Exhibit-F as Sri Verma has categorically stated that the testatrix developed problem in her movement only in the year 1992, as such, there is no difficulty in concluding that she had no movement problem earlier on 15.7.1990 when she went to the house of P.W.-4 to execute the Will. The testatrix was maintaining a sound health in June/July, 1990 is further corroborated if one considers the factum of execution of Power of Attorney by her on 4.6.1990 for which execution she had gone to Sri D.P. Sinha, Advocate and the Notary Public Sri Y.P. Singh and thus if she was fit enough in June/July, 1990 to execute the Power of Attorney, Exhibit-8 then such execution, in the opinion of this Court, will go a long way to corroborate the execution of the Will dated 15.7.1990. Exhibit-1 subsequently, only with a view to give effect to paragraph-3 of the Power of Attorney dated 4.6.1990, Exhibit-8. So far mental alertness of the Testatrix is concerned, she has been certified to be mentally alert even four days prior to her death i.e. on 21.5.1992, by Or. Tara Chand Lakhmani, as would appear from his prescription dated 21.5.1992, Exhibit-F.
32. The submission of the learned Counsel for the defendant 1st/2nd set that the testatrix was not competent to execute the Will dated 15.7.1990, Exhibit-1 as the subject matter of the Will is a joint family property of late Nag Narayan Lal and in terms of the provisions contained in the Hindu Succession Act, 1956 she is not empowered to execute any Will in relation to the joint family property appears to be misconceived in view of the fact that after the death of her husband Bishwanath Prasad on 1.5.1985 the testatrix Tetar Devi, being the wife of Bishwanath Prasad inherited his interest in the joint family property and in the opinion of this Court she was competent to execute the Will in regard to the inherited interest in the joint family property.
33. The objection that the suit be dismissed in view of the contents of paragraph-2 of the verification appended with the Probate Petition that they learnt about the execution of the Will from the attesting witnesses is fit to be ignored in the light of the categorical evidence of the three petitioners-plaintiffs deposed in the Court that they were present at the time of execution of the Will dated 15.7.1990, Exhibit-1 by the testatrix at the house of P.W-4 Sri Madan Mohan, Advocate.
34. In view of my discussions above, I hold that Smt. Tatar Devi executed the Will dated 15.7.1990, Exhibit-1, which is her last Will and Testament executed in presence of two witnesses, namely, Sri Madan Mohan, Advocate and Sri Kanhaiya Prasad and the office is directed to issue Probate concerning the Will dated 15.7.1990, Exhibit-1 which Will have effect throughout India. Defendant-1st and 2nd set are, however, at liberty to file a suit for declaration that the properties bequeathed under Will dated 15.7.1990, Exhibit-1 are the joint family property of the erstwhile family of late Nag Narayan Lal.