P.K. Jain, J.
1. This appeal Is directed against the judgment and order dated 28.2.1986 in Civil Misc. Case No. 122 of 1980 passed by the then First Additional District Judge, Moradabad, rejecting the application of the appellant for issue of probate and letters of administration.
2. The appellant had filed an application for grant of probate and letters of administration on the basis of Will dated 20.6.1976 alleged to have been executed by his brother Raj Kumar Singh in his favour and in favour of opposite parties Kallu Singh (father of the executant of the Will) Shyam Kumar Singh, Virendra Singh (brothers of the executant) and one Smt. Brahaspati Devi excluding respondent No. 5 Smt. Sushila Deviwife of the executant. It was alleged in the application that the deceased was married to Smt. Sushilla Devi in the year 1954 at Moradabad. The parties belonged to Scheduled Tribes called Bhantu. At the time of marriage as well as at the time of death. Raj Kumar Singh was employed with the Railway department. At the time of his death, he was posted as Shed Man (Assistant Foreman), Northern Railway at Najibabad, district Bijnor. He had developed disease of bone tuberculosis and in June. 1976, his condition deteriorated. On 20.6.1976 Raj Kumar Singh became seriously ill and as such he went to Rampur along with Smt. Brahaspati Devi wife of one Jorawar Singh the applicant. He was then posted as Social Welfare Officer at Rampur. The deceased reached Rampur by train at about 1.00 p.m. and expressed his desire for executing a will in favour of the applicant and his other brothers and also in favour of Smt. Brahaspati Devi who was wife of cousin of the applicant. It was alleged that Smt. Brahaspati Devi had rendered sufficient service to the deceased Raj Kumar Singh during his illness. Pursuant to the request of Raj Kumar Singh the applicant called Sri M. K. Saxena Advocate at his residence along with a scribe of the Will. Sri M. K. Saxena, Advocate drafted the will and thereafter it was read over to Raj Kumar Singh who approved the same. Thereafter it was copied out on a stout paper by scribe Sri Shyam Bharosey Lal. Witnesses Chintamani and Banshidhar who were posted as Central Excise Inspector and Plant Protection Officer were called and then Will was again read over to Raj Kumar Singh who signed it in the presence of the aforesaid attesting witnesses. It was also stated that both the witnesses thereafter signed the aforesaid Will in the presence of Raj Kumar Singh. Thereafter Raj Kumar Singh returned to Moradabad along with Smt, Brahaspati Devi by Roadways Bus at 3.00 p.m, and on the next day i.e., on 21.6.1976 he got himself admitted at Railway Hospital, Moradabad at 10.00 a.m. He was treated there for 8 or 9 days whereafter he was referred toRailway Hospital, Delhi and from there he was sent to All India Institute of Medical Sciences, New Delhi for treatment. Raj Kumar Singh died on 14.7.1977 while he was admitted at All India Institute of Medical Sciences, New Delhi. The Will dated 20.6.1976 executed by Raj Kumar Singh was presented for registration by the applicant before the Sub-Registrar, Rampur on 1.9.1977. Thereafter an application for grant of probate and letters of administration was moved before the District Judge, Rampur on 14.11.1977. The District Judge, Rampur granted probate Certificate in Civil Misc. Case No. 59 of 1977. However, after issue of the probate and letters of administration, Smt. Sushila Devi filed an application under Section 263 of the Indian Succession Act praying for annulment and cancellation of the probate and letters, of administration. That application under Section 263 of the Indian Succession Act was allowed by the District Judge, Rampur on 5.12.1980 and the probate granted in favour of the applicant was annulled on ground that the Court at Rampur had no territorial jurisdiction. It was also stated by the applicant in his application filed before the District Judge, Moradabad that Raj Kurnar Singh died on 14.7.1977 and after his death, the dead body was brought from there to Moradabad at the house of Kallu Singh who lived in Moradabad and the dead body was cremated at Moradabad. The deceased had a G.P.F, account and was also entitled to bonus and gratuity from Northern Railway, Moradabad. Total sum payable on the death of the deceased was Rs. 19,791.00. It was further alleged in the application that Smt. Sushila Devi married wife of Raj Kumar Singh had deserted him for more than 12 years prior to the death of Raj Kumar Singh. According to the custom prevailing in the Bhantu community, any woman who deserts her husband for more than 12 years or lives an immoral life shall be deemed to have automatically divorced her husband and. therefore, Smt. Sushila Devi stood divorced Raj Kumar Singh andthere was no relationship of husband and wife subsisting between Raj Kumar Singh and Smt. Sushila Devi at the time of death of Raj Kumar Singh. She was, therefore, not entitled to succeed to the assets of the deceased.
3. Smt. Sushila Devi alone contested the claim of the applicant Raj Kumar Singh. She alleged that the applicant had no right to file the present application for grant of probate and letters of administration. Raj Kumar Singh became seriously ill at Najibabad on 20.6.1976. Dr. S. N. Agarwal who was then posted as Assistant Medical Officer at Railway Hospital, Najibabad attended him and advised him that he be taken to Railway Hospital, Moradabad for further treatment. On the same day, he prepared sick report and issued Railway pass to Raj Kumar Singh and one attendant for traveling in First Class. On 21.6.1976 Raj Kumar Singh travelled by morning train from Najibabad to Moradabad. On arrival at Moradabad, he got himself admitted on the same day in the Railway Hospital. Moradabad at 10.00 a.m. It was specifically stated that Raj Kumar Singh did not go to Rampur on 20.6.1976 and never executed the alleged Will in favour of the applicant and remaining opposite parties. The allegations of desertion were denied and it was specifically stated that she is married wife of Raj Kumar Singh and after the death of Raj Kumar Singh, she was leading a widow's life. She also denied the existence of any custom as alleged by the applicant. As regards Smt. Brahaspati Devi opposite party No. 4 she specifically denied that she is kept wife of Raj Kumar Singh and had been residing with him as his wife. It was stated that she was employed as Maid servant at Railway Hospital, Moradabad and the allegation that she was kept wife of Raj Kumar Singh has been made just to deprive of the objector from succeeding to the assets of the deceased Raj Kumar Singh.
4. The appellant in support of his claim before the District Judge examined himself as A.P.W. 1. Dr.Jaswanl Singh, as A.P.W. 2, Sri Banshidhar as A.P.W. 3 and Sri Chintamani as A.P.W. 4. Smt. Sushila Devi examined Dr. S. N. Agarwal as O.P.W. 1. Jai Kumar as O.P.W. 2. Mulayam Singh as O.P.W. 3 and herself as O.P.W. 4. Besides this, the parties have also relied upon certain documents.
5. The learned Additional District Judge on consideration of the material produced before him rejected the application for probate and letters of administrations. While rejecting the said application moved by the appellant, the trial court observed that heavy burden lies on the petitioner to establish that the Will was executed at Rampur and that at the time of the execution of the Will, deceased Raj Kumar Singh had a sound disposing state of mind. On consideration of the material, the learned Additional District Judge narrated a number of circumstances and held that the Will in question was not executed by the deceased and that he was of the opinion that in the present case due execution of the Will is not at all established. Surrounding circumstances of the Will raise grave doubts regarding the manner In which the Will was executed.
6. Aggrieved by the judgment and order of the learned Additional District Judge, the appellant has filed the present appeal.
7. Sri P. K. Tripathi, brief holder for Sri S. D. Pathak, learned counsel for the appellant and Sri A. N. Bhargava, learned counsel appearing for the respondent No. 5 Smt. Sushila Devi have been heard at length. No one has appeared for the remaining respondents even though they were sufficiently served.
8. It is submitted by Sri Tripathi that the finding of the learned Additional District Judge was based upon conjectures and surmises. The appellant had examined the applicant in whose presence the Will was executed by the deceased, Dr, Jaswant Singh who had treated the deceased in Moradabad Railway Hospital from 21.6.1976 till he remained in Moradabad Railway Hospital, who has also stated thatprior to 30.6.1976 the deceased was under his treatment at Najibabad where he used to go to attend the deceased. It is further submitted that the attesting witnesses Chintamani and Banshidhar have also been examined who have proved due execution of the Will. It is also pointed out that in the Will itself there is specific mention that Smt. Sushila Devi had deserted the deceased for more than 12 years prior to execution of the Will and that Smt. Brahaspati Devi had been attending the deceased. These facts narrated in the Will itself proved that the Will was executed by the deceased on his own free Will and in sound state of mind and further that respondent Smt. Sushila Devi had deserted the deceased for more than 12 years prior to the execution of the Will. It is submitted that the Court below has wrongly rejected the application. For the respondent it is submitted that the Court below has described various circumstances which prove that the Will was never executed at Rampur as alleged by the appellant. The Court below has specifically held that the deceased was not in a position to go to Rampur on 20.6.1976 nor he had actually gone to Rampur. Therefore, the Will could not have been executed in the manner as alleged by the appellant. It Is further pointed out that the Court below has described a number of circumstances showing that the deceased was not in fit mental state and therefore, the finding of fact arrived at by the Court below is sufficiently supported by the material on record.
9. Before adverting to the rival contentions In the light of the evidence on record, it would be proper to point out that the established legal position with regard to the will is that the will, before being acted upon, should be proved by trustworthy and impeachable evidence to establish genuineness and authenticity of the will. The factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the profounder. In order to judge the credibility of the witnesses and to disengage truth from falsehood, theCourt is not confined only to their testimony and demeanor. It would be open to the Court to consider circumstances brought out in evidence or which appear from the nature and contents of the document itself. Besides this, the propounder of the will is required to dispel the surrounding circumstances and improbabilities of the case. The expression 'proved' is defined In Section 3 of the Indian Evidence Act which provides that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The expression 'proved' thus seems properly to mean anything which serves either Immediately or mediately to convince the mind of truth or falsehood of a fact or proposition, and the proof of matters of fact in general. A fact in issue can be said to have been proved in a civil case, if after weighing the various probabilities a preponderance in favour of the existence of the fact in issue is found. In judging whether a fact is proved or not proved, the Court is entitled to take into consideration not only the statements of the witnesses but also the surrounding circumstances and the probabilities of the case.
10. It was held by the Supreme Court in Gum v. Atma Singh, 1992 (2) SCO 507, that the onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however, there were suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind, and unfair and unjust disposal of property or the propounder himself taking a leading part in making the will under which he receives a substantial benefit. Inthat case, the lower appellate court has noticed a number of circumstances some of which were that:
(i) the will mentioned that the testator was ill for a long time and was seriously ill at the time of execution of will
(ii) The testator stated that he did not have any sister which was not correct.
(iii) The sole legatee had been wrongly described as the real brother of the testator.
(iv) No reason given in the will why the appellant who was the natural heir of the testator was being Ignored.
(v) Although literate the will bore his thumb Impression.
(vi) An unregistered document will was.
(vii) Within 8 days of execution of will the testator died.
The Court had found that these suspicious circumstances were not removed by propounder of the will and, therefore, its genuineness was not established. Such will cannot be acted upon.
11. In the instant case, there is no doubt that the execution of the will is sought to be proved in the manner provided by Section 68 of the Indian Evidence Act which 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 capable of giving evidence in the instant case, the propounder of the will, viz., the appellant and the two attesting witnesses A.P.W. 3 Banshldhar and Chintamani as A.P.W. 4 have been examined who have categorically stated that the testator had executed the will in their presence. The Court has still to see whether the witnesses are reliable and, therefore, their evidence is worthy of credence before it could be held that the will is proved by theirevidence. Besides this, the propounder is required to dispel the suspicious circumstances so as to hold the will a genuine document before it could be acted upon.
12. In the present case, as already pointed out above, the learned Additional District Judge has held that on consideration of the material, he was of the view that the will in question was not executed by the deceased and that due execution of the will is not at all established. While coming to the aforesaid finding, the trial court had considered a number of circumstances which may be enumerated below :
(i) that the will was scribed afterwards on a folded paper which probably bore signatures of Raj Kumar from before.
(ii) The name of the father ofSmt. Sushila Devi legallywedded wife of the deceasedwas wrongly stated to beRishal Singh whereas actuallyshe is daughter of KalluSingh.
(iii) The residence of the father ofSmt. Sushila Devi waswrongly shown asMuzaffarpur Bihar althoughthe evidence is that at thetime when the will wasscribed her father wasresiding in Muzaffarnagarwhich lies in Uttar Pradesh.
(iv) It was incorrectly stated that in the will that out of the assets left by the deceased first expenses incurred in cremation and the amount required for making repayment of the loan taken by the deceased shall be taken out whereas there was no material showing that the deceased was indebted to anybody.
(v) That the testator was seriously ill inasmuch as he was not in a position to move.
(vi) It was not possible for him to have gone to Rampur for a few hours just for the purpose of execution of the will.
(vii) According to the propounder the will was executed at Rampur on 20.6.1976 whereas the material on record proves beyond doubt that the testator had not visited Rampur on the said date.
(viii) That there was no impediment for testator Raj Kumar Singh to have executed the will at Najibabad during his illness or at Moradabad after being admitted at Railway Hospital, Moradabad.
(ix) That the will was executed on 20.6.1976.
(x) It was not registered during the life time of the deceased even though there was no impediment for getting it registered when the deceased was stood alive.
13. Besides pointing out to the aforesaid circumstances, the Court has also after discussing of the evidence of attesting witnesses held that the evidence of these witnesses does not appear to be satisfactory.
14. Learned counsel for theappellant has vehemently argued that the law requires for proving a will at least one attesting witness should be examined whereas in the instant case, the propounder of the will examined himself as well as both the attesting witnesses who are uninterested respected persons being Government servants and therefore, their evidence should not have been discarded. The case of the propounder is that Raj Kumar Singh was living at Najibabad. It is undisputed that he was seriously ailing which fact has been admitted by the propounder of the will Jai Kumar Singh who has examined himself as A.P.W. 1. The said fact was also stated by A.P.W. 2 Dr. Jaswant Singh who has categorically stated during cross-examination that his condition was very serious and was advised to be admitted in Railway Hospital, Moradabad. It has been stated by this witness that he had last examined Raj Kumar Singh on 19.6.1976. This witness has also stated that Raj Kumar Singh was notable to move by himself and he could move with difficulty with the help of others. O.P.W. 1 Dr. S. N. Agarwal who was Senior Medical Officer at Railway Hospital, Najibabad. at the relevant time has categorically stated that the testator was in his treatment. He had examined him on 19,6.1976 and had advised him to go to Moradabad for better treatment. It is specifically stated by him in his deposition that his condition was very serious when he examined him on 19.6.1976. Besides this circumstance, the trial court has also taken into consideration the evidence of O.P.W. 1 Dr. S. N. Agarwal, as well as the evidence of Smt. Sushila Devi who have categorically stated that Raj Kumar Singh did not leave Najibabad on 20.6.1976. Being railway employee, he had obtained pass for traveling from Najibabad to Moradabad in the evening of 20.6.1976 and had travelled by train from Najibabad to Moradabad in the morning of 21.6.1976 and thereafter he got himself admitted at Railway Hospital. Moradabad. O.P.W. 1 Dr. S. N. Agarwal has on the basis of the various official records maintained by him proved the factum of issuance of the railway pass for Raj Kumar Singh with one attendant on 20.6.1976 and had produced the same original before the Court. It is undisputed that Raj Kumar Singh was admitted in Railway Hospital, Moradabad, on 21.6.1976 at 10.00 a.m. This fact is also proved by deposition of O.P.W. 2 Jai Kumar Singh who made statement on the basis of admission register of Railway Hospital, Moradabad. Besides this, the trial court has also taken into consideration the fact that Raj Kumar Singh according to the propounder of the will had travelled of his own on 20.6.1976 from Najibabad to Rampur. The purpose for visit was only to get the will executed and it transpires from the evidence of the propounder of the will that soon after the will was executed, the testator left the house of the propounder of the will and went to Moradabad. The trial court has observed in its judgment that Raj Kumar Singh was not capable of moving by himself and he could not have performed the journeyby bus from Rampur to Moradabad on 20.6.1976. There does not appear to be any infirmity in the finding of fact arrived at by the Court below. It may be pointed out here that even though the trial court has not taken into consideration the conduct of the propounder of the will throughout on 20.6.1976 but from perusal of his evidence, it would appear that the conduct of this witness was highly inconsistent with the factum or supposition that the testator had any love or affection for propounder of the will so as to come to his house from Najibabad in such a serious condition just to execute the will. In his examination-in-chief, Jai Kumar Singh the appellant has stated that Raj Kumar Singh came to Rampur from Moradabad on 20.6.1976. He does not say that he was accompanied by anybody. He has further stated that Raj Kumar had met him at his house at about 1.00 p.m, and had disclosed his desire to execute a will. Soon thereafter, he telephoned Sri M. K. Saxena Advocate and asked him to prepare a draft of the will. When the latter told that the will shall be scribed by the petition-writer, he sent somebody to call the petition-writer. Within half an hour, the latter as well as the petition-writer arrived at his house and thereafter the petition-writer prepared the draft of the will. It is stated by him by that at about 2.30 p.m., the draft was ready and thereafter the petition-writer scribed it on a stout paper. It is also stated by him that after the testator signed the will in presence of the attesting witnesses, the testator left his house at about 3.00 p.m. for Moradabad. During cross examination, the appellant has stated that Raj Kumar Singh was elder to him by about one and a half year. He had not attended the marriage of Raj Kumar Singh. During cross examination, this witness has stated that Raj Kumar Singh went away from Rampur at about 3.00 p.m. He had not gone to the bus stand to see him off. Raj Kumar Singh had told him that he was going for admission at Railway Hospital. Moradabad. He has further stated that he did not know if Raj Kumar was admitted inMoradabad Hospital on 21.6.1976 ona reference made by Dr. Agarwal andhe had travelled from Najlbabad toMoradabad on a railway pass on21.6.1976. The entire conduct of JaiKumar Singh appellant thus clearlyshows that he had no love andaffection for testator of the will. Hedid not even accompany Raj KumarSingh to the bus stand when RajKumar Singh started for Moradabad.He does not say that he had evengone to Moradabad after Raj KumarSingh was admitted in MoradabadRailway Hospital Thesecircumstances and conduct of thepropounder of the will are highlyinconsistent with the desire of thetestator of the will of executing a willin favour of the appellant Jal KumarSingh. It has already been foundabove that the evidence on recordproves beyond doubt that Raj KumarSingh was neither in a position totravel by himself on 20.6.1976 nor didhe travel on the said date fromNajibabad to Moradabad on a railwaypass on 20.6.1976. Thus, a finding offact has been arrived at by the Courtbelow that Raj Kumar Singh nevervisited Rampur on 20.6.1976. Thisfinding of fact has been arrived at ona careful appraisal of evidence ofwitnesses, viz.. O.P.W. 1 Dr. S. N.Agarwal which is supported bydocumentary evidence and evidence ofSmt. Sushila Devi O.P.W. 4. Learnedcounsel for the appellant has notbeen able to point out any infirmity inthis finding of fact arrived at by theCourt below. Once it is found as afact that Raj Kumar Singh did notvisit Rampur on 20.6.1976. Thequestion of his having executed thewill at Rampur at the house ofpropounder of the will on 20.6.1976does not arise.
15. The Court below after discussing evidence of the attesting witnesses has held that these witnesses were not reliable and credible witnesses. I see no reason to disagree with the finding of fact arrived at by the Court below. Learned counsel for the appellant has not been able to point out any infirmity in this finding.
16. The other circumstances as pointed out above for holding that thewill was not genuine document and was not scribed at the dictation of Raj Kumar Singh are that in the will, the name of the father of Smt. Sushila Devi was stated to be Rishal Singh whereas the name of her father is Kallu Singh. The appellant in his deposition has stated that he had never met with father-in-law of Raj Kumar Singh but he knew his name. He has stated that the name of her father was Rishal Singh although he was also known by name of Kallu Singh. Further discrepancy in description of father-in-law of the deceased is that he is stated to be resident of Muzaffarpur, Bihar,whereas admittedly at the time of the execution of the will Kallu Singh was residing in Muzaffarnagar, State of U. P. The appellant has categorically stated in his cross-examination that at the time of the execution of the will. Smt. Sushila Devi was staying with her father Rishal Singh alias Kallu Singh in district Muzaffarnagar. He has also stated that he did not know as to which place Rishal Singh belonged. If Smt. Sushila Devi was residing with her father at Muzaffarnagar, this fact must have been known to Raj Kumar Singh and discrepancy with regard to the place of abode of Smt. Sushila Devi would not have been there in the impugned will. Admittedly the case of the propounder was that the wilt was written on the dictation of Raj Kumar Singh and final draft was read over to him before it could be signed. If the facts were so, Raj Kumar Singh would have certainly pointed out the error in describing the name of the father of Smt. Sushila Devi as well as her correct place of residence at the time of execution of the will. This having not been done, the irresistible conclusion is that the will was not written on the dictation of Raj Kumar Singh.
17. From the evidence, it is clear that the propounder of the will, viz., the present appellant had taken leading role in preparation as well as in execution of the will. There is no mention in the Will as to what were the debts of the executant of the will 'vhich were to be repaid before the remaining assets were to bebequeathed upon the beneficiary of the will. In cross-examination an attempt has been made to state that the deceased borrowed some amounts from his sister Premratt but there is no supporting evidence nor exact amount of such due is stated. These circumstances further create grave suspicion about the genuineness of the will which have not been dispelled by the appellant.
18. Having carefully considered the arguments advanced by the learned counsel for the parties as well as the material on record. 1 am of the view that there is no error In the findings of the Court below. The appeal, therefore, fails and the same is hereby dismissed with costs to respondent No. 5.