Judgment:
R.S. Garg, J.
1. This miscellaneous appeal under Section 299 of the Indian Succession Act has been filed by some objectors against the order dated 4-7-1986 passed in Probate Case No. 4 of 1983 by the learned Additional Judge, Mhow to the Court of District Judge, Indore, rejecting the objections filed by the objectors and granting the probate certificate on the application of respondent No. 1 filed under S. 276 of the Indian Succession Act.
2. The respondent No. 1 filed an application under Section 276 of the Act alleging therein that deceased Dujaia, who was the real elder brother of respondent No. 1, executed a will on 20th April, 1976 in favour of the respondent No. 1 whereunder the properties were bequeathed in favour of the respondent No. 1. It was further averred that Dujaia having expired on 5-6-1976, the respondent No. 1 has succeeded to the property. According to the respondent No. 1 the properties described in the Will would be succeeded by him which include moveables and immoveables. The application was filed in the year 1977 and a public notice was issued in daily newspaper 'Swadesh'. As no objections were received, by order dated 12-8-1977 granting the application of respondent No. 1 a probate certificate was issued in his favour. But later on certain objections were filed onwhich M.J.C. No. 94 of 1977 was registered and in view of the final order passed in M.J.C. No. 94 of 1977 the probate proceedings were reopened. The objectors filed their objections against the grant of the certificate alleging therein that the alleged Will is sham, bogus and is a result of forgery; it has not been signed or executed by deceased Dujaix, but in fact the respondent No. 1, to grab the property of deceased Dujaia and mar upon the rights of the other successors has concocted the said Will. They also submitted that the alleged Will in that does not fall within the definition of the last testamentary disposition of the deceased but in fact is declaration of the rights so also is a partition deed. As the same is not on proper stamps it is inadmissible in evidence.
3. Contending further it was submitted that the deceased was residing with objector Chhotelal who not only maintained him, got his eyes operated and spent a sum of Rs. 2000/- on the last rituals of deceased Dujain. It was also submitted that after marrying a Christian girl the respondent No. 1 has ceased to be a Hindu and is professing Christianity. According to the objectors the deceased in his last days became a drunkard, suffered with bad vision and his mental condition also deteriorated. Various other legal objections were raised and it was submitted that the will was not properly attested and the application under Section 276 was not in accordance with Sections 279 and 281 of the Act.
4. The trial court recorded the statements of the witnesses, received the documents in evidence, and after hearing the parties by its impugned judgment dated 4-7-1988, rejecting the objections held that the document in fact is a Will and is not a document under which rights were declared. It also found that the execution and attestation of the will was properly and legally proved, the Will is not invalid though it relates to the Joint family property and the deceased was not in a good condition of disposition when he executed the will. Accordingly rejecting the objections it ordered grant of probate certificate with costs.
5. Shri B. K. Joshi appearing for the appellants contended that the order passed by the trial Court is patently illegal and deserves to be set aside. He submitted that (a) the document is not a Will, (b) execution and attestation of the will is not legally proved, (c) the Will is shrouded with clouds of doubtful circumstances, (d) a Will in relation to the joint family property could not be executed, (e) there was a very short time gap between the execution of the alleged Will and the death which shows that the deceased was not in a fit mental condition, (f) the respondent No. 1 after marrying a Christian girl has ceased to be a Hindu and is professing Christianity, therefore, he is not entitled to any relief, and lastly (g) the probate application was not in accordance with the provisions of Section 279/281 of the Indian Succession Act. He, therefore, submitted that the order passed by the court below be set aside and the application filed by the respondent for grant of probate certificate be rejected.
6. Replying the above arguments it was submitted by Shri N.K. Maheshwari counsel for the respondent No. 1 that the document if read as a whole, then in fact it would show the intention of the deceased. Stray sentences cannot be read out of context. The document is to be read as a whole and only from a complete and dispassionate reading it is to be found as to whether the document is a Will or not. He submitted that the document is a Will and, therefore, there was nothing wrong with the order of the trial Court. It was further submitted that the execution and attestation of the Will have been properly proved and there are no doubtful circumstances creating a cloud over the genuineness of the Will. Relying upon Section 30 of the Hindu Succession Act it was submitted that a Hindu governed by Mitakshara Law can execute a Will even in relation to the joint family property in which he has a share. According to him the Will was executed on 20th April, 1976 and the deceased died on 5th June, 1976. Therefore, it cannot be assumed that there was a short time between the execution and the death. It was further contended that even if the respondent No. 1 professes Christianity as a religion then too it would not come in his way because thelaw does not lay down any prohibition that a will by Hindu cannot be executed in favour of a Christian though according to him there is nothing on the record to come to a positive finding that the respondent No. 1 has ceased to be a Hindu. Lastly it was submitted that the non-verification of the application in accordance with the provisions of Indian Succession Act would merely be an irregularity and would not come in the way of the Court in dispensing justice and deciding the rights of the parties in issue.
7. 'Will' has been defined in Section 2(h) of the Indian Succession Act, 1925. According to the definition, 'Will' means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. To ascertain as to whether the document in dispute i.e. Ex. D/2 dated 20th April, 1976 is a Will or not the Court is called upon to see whether there is a legal declaration of the intention of a testator with respect to his property which he desires to be carried out into effect after his death. A perusal of Ex. P2 would show that the deceased in the very first paragraph has said that as he is a widower and issueless and has grown old there is no certainty of his life, he wanted to make the necessary arrangements about his personal and ancestral properties during his life time. The last lines of the paragraph 2 clearly recites that for those reasons he was executing the Will. The title of the document is 'Wasiyatnama'. In paragraph 4 the executant has again stated that after his death the property be divided in four parts and the share which would come to the deceased be given to the respondent No. 1. From this recital a legal declaration of the intention can certainly be spelled out that the deceased wanted that his property be dealt with in a particular manner after his death. On page 4 he has again stated that the document executed on 20th April, 1976 was the first and last will executed by the deceased. The last paragraph of the document again reads that the Will was written under his directions and the same was read over to him. After understanding the Will the deceased was giving the rights under the Will to the respondent No. 1.
8. The Will further recites that it was executed and attested in presence of the witnesses. There are certainly certain recitals which say that the deceased was executing Ex. P-2 as per the directions of the mother of the deceased. From these recitals, the counsel for the appellants wanted to make out the case that as the mother of the deceased was of the opinion that the property should be partitioned in a particular manner, therefore, the document would only be a document which is declaring the rights of the parties or in the alternative it is a document of partition. I am unable to accept this argument. A complete reading of the document Ex. P-2 would show that the deceased executed the Will and the reason for the execution was the directions issued by the mother. If the mother had given certain directions to a son who later on translates the intentions of the mother into the action which relate to the personal property of the deceased and the family property without affecting the rights of the other parties which they have in the ancestral property, then certainly the document would not come out of the mischief of Section 2(xh). Rejecting the objection I hold that the document Ex. P-2 in fact is a Will as it relates to the testamentary disposition of the deceased.
9. The respondent No. 1 has examined his ownself as P.W. 1 and has further examined P.W. 2 Gordhan and P.W. 3 Badrinarayan Tiwari to prove the execution and attestation of the Will. The respondent No. 1 has stated that the document was executed on 20th April, 76 and it was drafted by Shri B. N. Tiwari, Advocate, Mhow. Shri B. A. Tiwari (P.W. 3) on this aspect of the matter has supported the respondent No. 1. According to P.W. 1 Surendrakumar, after the Will was drafted by Shri Tiwari, Advocate, it was brought home on which the deceased. Dujain had put his signatures in presence of Gordhan and Vinayak Rao. According to him the other brothers (the objectors) were also present. The Will was read over and in presence of everybody Dujaix had executed the Will. He has further proved the signatures of the deceased on each and every page of the Will. He has also stated that Vinayak Rao and Gordhan had also put their signatures aswitnesses on the Will. He has further testified that Shri Tiwari, Advocate has put his signatures as D to D on the Wilt. According to him the deceased was having a good health and was in a sound mental condition. He has the disposing capacity. No pressure was exerted on him and the Will was the last Will of the deceased. He has denied that the Will was result of forgery.
10. On these material aspects he is supported by P.W. 2 Gordhan. According to Gordhan, the Will was executed and attested at the residential house of Dujaix. The same was read over to Dujai who after hearing the same had put his signatures on the document. The signatures A to A an each page were put in his presence. He has further stated that after the Will was executed by Dujai, attesting witness Vinayak Rao had put his signatures on the said document as B to B and he himself put the signatures as C to C. He has further stated that Shri B. N. Tiwari had put the signatures as D to D. According to this witness the physical and mental condition of the deceased was good.
11. Shri B. N. Tiwari (P.W. 3) corroborating these two witnesses has clearly stated that Ex. P-2 was signed by the deceased and Shri Tiwari has proved the signatures on the said document. According to his statement Vinayak Rao and Gordhan had put the signatures as attesting witnesses and he himself had put the signatures on the document at D to D. According to him the document was read over to the deceased and the witnesses and the deceased accepted it. In the cross-examination of P.W. 1 Surendrakumar it was suggested that Ex. P-2 was a forged document. The suggestion obviously was denied. It was further suggested to the witness that as he has married a Christian girl and has ceased to be a Hindu deceased Dujain was annoyed, therefore, he would not have executed a Will in favour of respondent No. 1. The suggestion was again denied. He has again denied the fact that at the time of execution of the Will Hemraj, and Chhotelal were not present. This witness has further stated in the cross-examination that the deceased was not a drunkard and was not residing with Chhotelal. According to him the deceased was having a good health and a sum of Rs. 500 -- Rs. 700required in the last rituals of the deceased was spent by the members of the family. Nothing material could be brought out in the cross-examination of this witness.
12. In cross-examination of P.W. 2 Gordhanlal it was suggested to him that the respondent No. 1 has converted to Christianity to which the witness denied as having no knowledge. In the cross-examination in paragraph 9 the witness has clearly stated that he was called at the residence of Dujain and after he reached there the Advocate came along with the document. According to this witness the brother's and sisters of the deceased were present on the spot. The counsel stated that their signatures be taken, but he did not know as to whether the signatures were taken or not. According to him the document was brought by the Advocate. From the cross-examination of this witness one positive fact emerges that the deceased had given certain instructions to the Advocate and after this witness reached the residence of the deceased, the Advocate came there and also brought the alleged Will. Under these circumstances even from the statement of this witness it is clear that the respondent No. 1 Surendrakumar was not possessed of the document but in fact it was brought by the Advocate who had drafted the same under the instructions of the deceased.
13. It was suggested to P.W. 3 Badrinarayan Tiwari, Advocate that the deceased was wearing either spects or green cloth on his eyes. The suggestion was negatived by the Advocate. It was also suggested to him that the respondent No. I was professing Christianity and in very plain words negativing the suggestion P.W. 3 Shri B. N. Tiwari stated that respondent No. 1 continues to be a Hindu. No suggestion has been made in the cross-examination that the document was got typed under the instructions of someone else. It was also not suggested to the witness that the respondent No. 1 had exercised some pressure on the free Will of the deceased. From the statement of these three witnesses it is thus clear that the Will Ex. P-2 was drafted by P.W. 3 Shri B. N. Tiwari, Advocate under the instructions of deceased Dujain, it wassigned in presence of the witnesses and P.W. 3 Shri B.N. Tiwari by the deceased Dujaix and the two witnesses also signed in presence of each other and in presence of deceased Dujain. So also it is clear that all the above three signed in presence of P.W. 3 Shri B. N. Tiwari. As such execution and attestation in my opinion is proved as required under the law.
14. The appellants-objectors challenging the signatures on the document have examined D.W. 4 Achut Narayan Ganorkar, a Handwriting Expert. According to the opinion of the witness the signatures on Ex. P.-2 were the outcome of some forgery. The signatures on the document Ex. P-2 were not written by the writer of the standard signatures. The detailed cross-examination of this witness was to the effect that the witness is not properly educated nor has the experience for examining the Hindi letters and words. This witness has clearly admitted that he has not taken any education in relation to the Hindi script, but he has developed the signs in his experience. In paragraph 13 this witness has clearly stated that on a good surface the writing would be better in comparison to the bad surface which would produce a bad writing. He has admitted that the writing from different pen would be different and there would also be a difference in the shading. According to this witness the location of the letters and words would be changed. The witness was asked about the change in the style of writing of a man after the lapse of three years to which the witness has said that he was unable to answer because he was not in a position to say as to what would be the change in the style of writing in a gap of three years. His opinion was an opinion of an Expert. He has not stated that the signatures on Ex. P-2 suffer with the shivering or has a pause for creation of the words to bring them in similarity with the real signatures.
15. The learned trial Court, after considering the evidence of the Handwriting Expert has come to the conclusion that the evidence of the Expert is merely a suggestive piece of evidence and is not absolutely positive. In my opinion the observations made by the learned trial Court are absolutely justified. After all it is for a Court of law to compare the signaturesand come to a positive finding. The Expert's evidence may or may not be relied upon, but in a case where the positive ocular testimony proves a particular fact which stands unshattered in the cross-examination then such Expert's evidence would not take place of the positive proof and, therefore, the Court will have to come to its own conclusion as to whether reliance is to be placed on the positive ocular testimony or the Expert's evidence which is based on the comparison of the disputed signatures with the standard signatures. It is undisputed that the standard signatures which were provided to the witness were beyond a period of three years. According to the objectors the deceased suffered bad vision and had to undergo an operation. According to them he was growing old and was weak. If a witness who has suffered in his health and had to undergo an operation within that period of three years then obviously some change here or there would not make the ocular testimony unreliable. In the instant case I am of the opinion that the testimony of P.W. 1 Surendrakumar, P.W. 2 Gordhan and P.W. 3 Shri B. N. Tiwari, Advocate, outweighs and overweighs the opinion of the Expert. The trial Court was justified in holding that the Will was signed and executed by the deceased Dujain. I also, while confirming the findings recorded by the trial Court hold that Ex. P-2 Will was signed and executed by deceased Dujain and was signed by the witnesses in presence of the deceased.
16. Shri B. K. Joshi relying upon a judgment of this Court in matter of Vashudeo v. Smt. Suman, (1993 (2) MPJR 264) submitted that the Will has not been properly attested. The attestation has to be in accordance with Section 63 of the Indian Succession Act and also in accordance with Section 68 of the Evidence Act. In the instant case the Will has been attested by two independent witnesses. According to Section 3 of the Transfer of Property Act the word 'attested' in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in presence and by the direction of the executant, or has received from the executant a personalacknowledgment of his signature or mark, or of the signature of such other person and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. According to Section 63 of the Act-- (a) the testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction, (b) the signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will, (c) The Will shall 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 acknowledgment of his signature or mark, or of the signature of such other person and each of the witnesses shall sign the Will in the presence of the testator, but 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.
17. It would be clear from Ex. P-2 that the document is signed by deceased Dujain, it has been witnessed by two witnesses and thereafter Shri B. N. Tiwari has also put his signature on the document. From the evidence of P.W. 1 Surendrakumar, P.W. 2 Gordhan and P.W. 3 Shri B. N. Tiwari it is clear that after the deceased has put the signatures and executed the Will in presence of the witnesses, the other two witnesses had put their signatures as attesting witnesses in presence of the deceased. It is further to be seen that Shri B. N. Tiwari P.W. 3 has put his signatures after seeing that the executant and the other two witnesses have put their signatures on the Will in presence of each other. Accordingly it is clear that the document was not only properly executed and attested by the executant and witnesses, but in fact the evidence on record shows that it was really executed and attested. The challenge, thrown by the counsel for the appellant has to be accordingly rejected.
18. It was thereafter contended that the Will is shrouded under the doubt of circumstances. According to Shri B. R. Joshi there are a serious doubts regarding the validity and the circumstances in which the Will was executed. According to him the clouds which cover the Will do not make it to be the last free will of the deceased and there is no silver lining in these dark clouds. Shri Maheshwari contended that there is nothing on the record to show or suggest that the Will was not the last and free Will of the deceased. From the evidence on record it does not appear that any pressure was exerted or fraud was played on the deceased by the beneficiary P.W. 1 Surendrakumar. No doubt it is true that the burden is on the propounder to prove due and valid execution of the Will. The propounder is required to show by satisfactory evidence that the Will was signed by the testator and at the relevant point of time the testator was in a sound and disposing state of mind, that he understood the nature and effect of the disposition when he put his signature to the document out of his own free Will. When such Clinching evidence is adduced in support of the Will and the witnesses are uninterested and satisfactory the Court would be justified in making the finding in favour of the propounder. If such evidence is brought on the record which is clinching and proved the execution and attestation to be genuine and valid then certainly the burden would shift on the objectors. The propounder of the Will is required to remove the suspicion from the mind of the Court, by positive, cogent and satisfactory evidence. In any case these principles are to be applied in view of the facts of the case.
19. In the instant case as I have already held that the Will was prepared under the instructions of the deceased, it was drafted by a lawyer, it was brought by the lawyer at the residence of the deceased in presence of the witnesses and after the signatures of the deceased the attesting witnesses had put their signatures on the document which were again certified by the Advocate then it cannot be said that the Will was shrouded with suspicious circumstances or is clouded. In the present case it is to be seen that the Will wasexecuted on 20th April, 1976 and the deceased died on 5-6-1976. The gap was almost of forty-five days. Nothing has been brought on the record to show or suggest that on the date of the execution of the Will the deceased was not in a fit mental condition of disposition. On the other hand it is clear from the record that the deceased after understanding the contents of the document has put his signatures. I hold that the Will is genuine and is not shrouded with suspicious circumstances. I further hold that the deceased understood the nature and effect of the disposition when he had put his signatures to the document out of his own free Will. This contention of the learned counsel for the appellant deserves to be rejected.
20. It was next contended that the deceased under the law could not execute the Will in relation to the joint family property. Relying upon Section 30 of the Hindu Succession Act, 1956 it was contended by Shri N. K. Maheshwari that the objection deserves to be rejected. Section 30 of the Hindu Succession Act reads as under:
'30. Testamentary succession.-- Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, (39 of 1925), or any other law for the time being in force and applicable to Hindus.
Explanation.-- The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member'of a Tarwad, Tavazhi, Illom, Kutumba or Kavaru shall, notwithstanding anything contained in this Act, or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Section.'
This matter clearly lays down that any Hindu may dispose of by Will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925. The Explanation clarify that the interest of a male Hindu in a Mitaksharacoparcenary property shall be deemed to be property capable of being disposed of by him or by her within the meaning of this section, the Explanation clearly states that the interest of a male Hindu in Mitakshara coparcenary property shall notwithstanding anything contained in this Act (Hindu Succession Act) or any other law for the time being in force be deemed to be property capable of being disposed of by him or by her within the meaning of Section 30. Now if according to Section 30 and its Explanation the interest in a Mitakshara coparcenary property is to be deemed to be property capable of being disposed of by him, then this objection that the Will in relation to the joint family property could not be executed has to be rejected.
21. The disability of a coparcener in disposing of his undivided interest in the property by Will or other testamentary document under the old Hindu Law is removed by Section 30. According to Section 4 any custom inconsistent with any provision of this enactment is abrogated. In the expression 'any other law for the time being in force', the 'law' will include any statutory law or textual law or customary law. It would, therefore, follow that if there was any prohibition under the old Hindu Law the same stands removed after coming into force of Section 30 of the Hindu Succession Act.
22. Relying upon 1992 (1) MPWN 161 (sic) (Guro (Smt.) v. Shri Atma Singh) it was submitted that if the testator dies within a very short period of the execution of the Will then it has to be assumed that the deceased was not in a fit mental condition. In the said case the deceased died within 8 days of the execution of the Will and the circumstances brought on the record showed that the deceased was not in a fit physical and mental condition. In the instant case there is nothing on the record to show that the deceased was suffering with such ailment which could affect his mental condition. On the other hand from the statement of P.W. 2 Gordhan and P.W. 3 Shri B. N. Tiwari, Advocate, it is clear that the deceased was in a fit mental condition andwas understanding the nature and effect of the disposition when he had put his signature to the document. In the said case various circumstances were found by the appellate Court and relying upon those circumstances certain orders were passed. Those findings of facts recorded by the first appellate Court were reversed by the High Court in second appeal. Reversing those findings the Supreme Court observed that the findings were based on evidence and the said findings could not be set aside. In the instant case in my opinion the findings arrived at by the trial Court are perfectly justified and legal.
23. It was thereafter contended that after marrying a Christian girl respondent No. 1 Surendrakuraar, the propounder of the Will, is professing Christianity, therefore, he is not entitled to the probate as claimed by him. I am unable to agree to this argument. The law is very clear in relation to the Will. Will is a last testamentary disposition of a person who holds the property or has right in the property. Either the Hindu Succession Act or the Indian Succession Act does not put any embargo on the power and authority of the executant that a Will cannot be executed in favour of a person who is professing another religion. If this argument of the learned counsel for the appellants is accepted it would create chaotic conditions. Then, a person who is the owner of the property would not be in a position to transfer it after his death under awill.
24. According to Section 2(h) of the Indian Succession Act the 'Will' means the legal declaration of the intention of a testator. It does not restrict the right or authority of the deceased. Even otherwise the evidence on record does not show that P.W. 1 Surendra-kumar after marrying a Christian girl has started professing Christianity. D.W. 1 Chhotelal has merely said that Surendra-kumar has converted to Christianity. Hedoes not give any details. In paragraph 13 he has clearly stated that as Surendrakumar has married a Christian girl, therefore, in his opinion he professes Christianity. This evidence is not sufficient to prove that Surendrakumar has converted to Christianity. D.W.2 Babulal while stating in examination-in-chief that Surendrakumar is a Christian, in paragraph 8 of the cross-examination has said that he heard that Surendrakumar is professing Christianity. This evidence is again insufficient to prove the allegations made by the witness. It is, therefore, to be held that firstly the witnesses have failed to prove that after marrying a Christian girl P.W. 1 Surendrakumar, the propounder of the Will is professing Christianity or has converted himself or has ceased to Be a Hindu. So also even if for some reason it is to be held that he has converted into a Christian then too the question is of the right of a Hindu for execution of the Will. Here the Will is executed by Dujain who admittedly was a Hindu and there is no law which forbids a Hindu from executing a Will in favour of man belonging to some other religion. This argument raised by the learned counsel for the appellant has no merit and has to be rejected.
24A. Relying on Section 279 it was contended that it was imperative on the propounder of the Will who was seeking a probate to make a positive statement in the petition that to the best of his belief no application has been made for the probate of the same Will or for letters of administration of the same estate. According to the counsel for the appellant if these statements are not made then in view of the mandatory provisions of Section 279 of the petition for grant of probate filed under Section 276 is liable to be rejected. Section 279 of the Indian Succession Act reads as under:
(1) Every person applying to any of the Courts mentioned in the proviso to Section 273 for probate of a Will or letters of administration of an estate intended to have effect throughout India, shall state in his petition, in addition to the matters respectively required by Section 276 and Section 278, thatto the best of his belief no application has been made to any other Court for a probate of the same Will or for letters of administration of the same estate, intended to have such effect at least aforesaid, or, where any such application has been made, the Court to which it was made, the person or persons by whom it was made and the proceedings (if any) had thereon.
(2) The Court to which any such application is made under the proviso to Section 273 may, if it thinks fit, reject the same.'
The intention of this section is that the applicant must not only disclose all the previous proceedings in respect of any testamentary document of the testator for which the applicant has himself initiated the proceedings but the Court is to be well informed beforehand that the particular document on which reliance has been placed was never a subject-matter of a judicial scrutiny of some Court. So also it is to be brought to the notice of the Court that the matter in relation to the same estate or property was never adjudicated upon under some testamentary disposition.'
24B. True it is that in the instant case this particular statement is not made in the petition. But to my mind it would not be a cause for dismissing the petition. The intention of the Legislature behind Section 279 is only to apprise the Court that a particular document on the strength of which a probate is sought was never the subject-matter of a judicial scrutiny in a given case. Even after the document is rejected by one Court the propounder may file application before some other Court. To avoid such an eventuality Section 279 is brought in the Statute Book. In my opinion it is not mandatory but it merely directs for the convenience of the Court that a party should make such statement in the petition that the said document was never the subject-matter of some earlier proceedings in relation to the grant of probate nor the property which is sought to be claimed under the said document was subject-matter of some other proceedings, in relation to succession. Itwould be seen further that in the instant case though there were no statements made by the propounder of the Will that no application has been made to any other Court for probate of the same Will of the same estate, but the evidence on record does show that there was no other application. It is not the case of the appellants that the said Will was subject-matter of some probate proceedings or were used for obtaining the letters of administration before some competent Court in relation to the same estate. In absence of such allegations or proof on the part of the appellants objectors it cannot be held that absence of these pleadings would come in the way of the propounder of the Will and non-observance of Section 279 would be fatal to the very maintainability of the petition. In my opinion as observed above the intention of the Legislature is to avoid the double trial in relation to the same issue.
24C. It was then submitted that the application for probate was not verified by at least one of the witnesses to the Will in the manner or to the effect as given in Section 281. Relying upon 1993 (2) MPJR 264 (Vashudeo v. Smt. Suman) it was contended that non-observance of Section 281 is fatal to the maintainability of the petition and according to this judgment such petition is liable to be dismissed. I have given my anxious consideration to this judgment. In paragraph 7 of this judgment this Court after quoting Section 281 had held that the application (in that case) for grant of probate was, however, submitted in clear violation of this provision. According to the judgment the verification by witness was permitted by the Probate Court by order dated 21-6-80 and pursuant to this verification was done by Udaya (P.W. 2) on 21-8-80. Later, this was supplemented by Dinkar (P.W. 1) on 24-11-80. According to the Court the order-sheet, however, throws no light about latter part. After discussing this much in paragraph 7, the learned Judge did not proceed further on this aspect of the matter. This judgment is no authority on the point that non-observance of Section 281 is a lethal blow to the petition itself at its threshold.
25. On the other hand relying upon AIR 1923 Nag 41 (Ramasingha Rajput v. Murtibai) it was contended by the learned counsel for the respondent No. 1 that the provisions regarding verification by attesting witness is only directory. Considering this aspect the Court has observed as under:
'It is next contended that the petition was not verified by an attesting witness as required by Section 67 of the Probate and Administration Act. No authority is cited to show that the proceedings of the lower Court are invalidated by this omission. The section requires such verification if the witness is procurable. This shows that the provision is directory and not mandatory and the omission can be cured. If the matter had been pressed, the omission could have been supplied by taking the witness's attestation on the Will. I do not consider the omission a fatal one.'
26. Reliance was further placed by the counsel for the respondent on Nandkishore Rai v. Mst. Bhagi Kuer, AIR 1955 All 329 (sic) and it was contended that non-compliance with the provisions of Section 281 is not fatal. According to this judgment verification of a petition required under Section 281 is similar to verification required of pleadings including a plaint under Order 6, Rule 15, C.P.C. and has no greater effect or value. Omission to verify, or defective verification of a pleading is a mere irregularity within Section 99, C.P.C. and is never fatal. The provision of Section 281 of the Succession Act is less drastic than that of Order 6, Rule 15, C.P.C. and an omission to verify or defective verification of a petition for probate cannot have a more serious effect than that of a plaint. A pleading must be verified by a party or by some other person acquainted with the facts of the case a petition for a probate is, however, required to be verified by an attesting witness. A petitioner for probate has no legal authority over an attesting witness and cannot compel him to verify the petition. A petitioner may be bound to get thepetition verified, but an attesting witness is not bound to verify it at his instance and such a petitioner would be helpless if the latter for any reason refuses to verify it even though it contains nothing but the facts. Relying upon the judgment reported in AIR 1923 Nag 41 (supra) the Allahabad High Court finally held that the provisions in Section 281 is merely directory and not mandatory i.e. non-compliance with it was not intended to lead to the rejection of the petition. I am in respectful agreement on these two judgments.
27. In my opinion and as the matter was argued in detail it is necessary to add a few words. Section 281, prima facie, shows that where the application is for probate the petition shall also be verified by at least one of the witnesses to the Will and the manner in which this verification is to be made is given in Section 281. The intention of the Legislature behind enacting Section 281 is very clear. It is expected that forged Wills which have been attested by such persons who are not to be found may not be brought before the Court. The intention behind Section 281 is to be seen from its own language. According to Section 281 a petition should also be verified by at least one of the witnesses. The effect of non-observance of the conditions laid under Section 281 are not given under the Indian Succession Act. The use of the word 'shall under these circumstances would not mean mandatory resulting in the dismissal of the petition for grant of probate but in fact it only means that the petition should be verified by one witness if he is available. In the instant case the application filed under Section 276 has the signature of Gor-dhanlal (P.W. 2) on it. P.W. 2 Gordhanlal has put his signatures on the main petition as a witness though the words in which the verification is to be made are not to be found in the main petition. As observed above the requirement is of the signatures of an attesting witness. The form provided under Section 281 is directory is a guideline and does nowhere say that if the verification is not in accordance with Section 281 then the petition is liable to be rejected. In my opinion, the provision aboutverification of the petition is recommendatory and not mandatory and an omission to verify is not fatal to the probate proceedings. The contention of the learned counsel that absence of a verification in accordance with Section 281 would make the petition liable to be rejected is untenable and the same is rejected.
28. After close of the case the learned counsel for the appellant placing reliance upon the judgment of (1990) 3 SCC 364 (Rampiari v. Bhagwant) submitted that suspicious circumstances must be ruled out by clear and cogent evidence. It was submitted that the testator must be in a testamentary capacity or have a disposing state of mind. The Supreme Court in the said judgment has said-
'Although freedom to bequeath one's property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposing state of mind what is required of pro-pounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims in him. Absence of it may not invalidate a will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was a voluntary act. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if Courts below.failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. Taking active interest by propounder in execution of Will raises another strong suspicion. Unless the propounder cleared the suspicion with clear and satisfactory evidence mere execution of Will, thus, by producing scribe or attesting witness or proving genuineness of testator's thumb impressions by themselveswas not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Court's conscience is satisfied not only on execution but about its authenticity.'
28A. One of the questions raised by the counsel for the appellant that as the pro-pounder of the Will has ceased to be a Hindu he is not entitled to rely upon the Will and the deceased could not bequeath the property to him, is clearly answered by this judgment when the Supreme Court says that the freedom to bequeath ones own property amongst Hindus is absolute both in extent and person, including rank stranger.
29. According to Supreme Court the testamentary capacity or a disposing state of mind must also be proved to be valid. In the instant case as I have already found above the testator was having a testamentary capacity and was having disposing state of mind. He knew what he was doing and therefore, on this ground the Will cannot be rejected. A perusal of the Will show that genuine and germane causes are given in the Will for denying benefit to the others who were otherwise entitled to the bounty of testator as they had some claim. According to the Supreme Court absence of the reasons may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of the testator, to enable the court to judge if the disposition was a voluntary act. In the instant case the reasons for denying the benefits are well described in the Will itself. The objectors have nowhere stated either in their reply or in the statements that the deceased prior to the execution of the Will or the death had assured them that he would bequeath the property to the objectors or would give some benefits to them. In absence of this evidence coupled with the fact that the reasons for denying the benefits are given in the Will it cannot be held that the Will is shrouded with suspicious circumstances. A propounder is required to clear the suspicion by, clear and satisfactory evidence. In the instantcase the propounder of the Will has not only proved merely the execution of the will or its attestation but has proved that the will was genuine, it was executed by the deceased and there was no circumstances creating a cloud on the genuineness of the Will. In my opinion this ground deserves to be rejected.
30. Lastly it was contended that on page 2 mention is made about a plot of land adjoining the ancestral house, but the deceased has even executed the Will in relation to it and has given absolute authority over this property to the respondent No, I. In my opinion, the recitals made in relation to this open plot of land do not make the respondent No. 1 absolute owner of this plot of land. The recitals are clear. They state that a dispute is pending in the Court of law and after the judgment is delivered in favour of the family then Surendra Kumar has to maintain the property. This does not mean that the deceased has given absolute right to the respondent No. 1. Obviously this disposition is to be read in conjunction with the disposition in relation to the other joint family properties. There are four brothers, each of whom has equal right in the property. If ultimately it is found that the property belongs to the joint family then each of the family member would have an equal share. The recital to my mind does not make the respondent No. 1 an absolute owner of the property. The later part just fill the description of the plot and its maintenance, states that the other moveable properties such as wearing apparels, utensils which belong to the family be partitioned in four shares and share of the deceased be also given to respondent No. 1 Behari (Surendrakumar). The first part and the last part of this paragraph would show that in fact the deceased was of the opinion that his share only should pass under the will to the respondent. Under these circumstances the contention of the learned counsel that the complete property has beengiven to the respondent No. 1 cannot be accepted. In my opinion the argument deserves to be rejected.
31. The appeal for the above reasonsdeserves to be and is accordingly dismissed. But, however, there shall be no order as to costs.