Hari Shankar Prasad, J.
1. This appeal is directed against the judgment and order dated 2nd September, 1995 passed by District Judge, Sahebganj in Probate Case No. 2 of 1986/Title Suit No. 16A of 1989 whereby and whereunder the learned Court below granted probate in favour of petitioner-respondent. The appellant was objector-defendant in the aforesaid probate case cum title suit and respondent in this appeal is petitioner-plantiff.
2. The fact of the case in brief is that petitioner-respondent filed a petition for grant of probate under Section 276 of the Indian Succession Act, stating therein that one Sabitri Sahuain, widow of late Baijnath Sah died issueless on 29.4.1985 and before her death she executed a Will in favour of the petitioner-respondent. It is stated that at the time of execution of the Will she was of sound mind and possessed a good health and executed the Will on 14.3.1985 out of her free Will in presence of witnesses. It is submitted that original Will was unfortunately misplaced but the certified copy of that Will is available. It is stated that petitioner-respondent is the maternal uncle's son of the testator and the properties mentioned in the said Will have been bequeathed in the name of the petitioner-respondent. Schedule A contains the description of the properties, which have been given by Will and the amount of liability and other lawful deduction of the said testator is given in Schedule B and, therefore, a paper was made by the petitioner-respondent for grant of probate in his favour.
3. General as well as special notices were issued and the objector Mahabir Sah appeared and filed objection stating therein that the petitioner for grant of probate filed by the petitioner- respondent, on the basis of registered Will, is forged and fabricated one. It is further stated that petitioner-respondent was never in possession and on the other hand he is in possession over the suit property and after death of the testator, the name of this objector has been mutated and he is paying the rent. It is further stated that Sabitri Sahuain was ill and had paralytic attack in or about the month of 1984 and she remained confined to bed and no question of executing any Will on 14.3.1985 arose. The objector was looking after Sabitri Sahuain as he is the nephew and she gave her property to him by way of Danpatra and after her death he inherited her entire properties and not the petitioner-respondent, as claimed. After the death of Sabitri Sahuain, the Unchal Adhikari, after thorough enquiry, allowed mutation case in favour of the objector by his order dated 2.9.1985 passed in Mutation Case No. 312/-85-86, 315/10-85-86 and 316/1085-86 and objector is in possession of the properties and the petitioner-respondent was never in possession. Hence in the facts and circumstances the petition for grant of probate is fit to be rejected.
4. On the pleadings of the parties, the learned District Judge framed the following issues for determination in the suit.
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff got any cause of action for the suit?
(iii) Is the Will under the suit genuine or it is a forged and fabricated?
(iv) Is the objector Mahabir Sah in any way related to the deceased Savitri Devi as alleged in the genealogy?
(v) To what relief or reliefs the plaintiffs is entitled?
5. All the issues were decided in favour of the plaintiff.
6. The petitioner-respondent filed a petition for grant of probate in his favour on the ground that he happens to be the maternal uncle's son of Sabitri Sahuain and she had executed the deed of Will in his favour on 14.3.1985 in presence of witnesses. Since Will was misplaced, he obtained certified copy of the Will and filed the probate case for grant of probate. On the other hand, the appellant-objector claims himself to be the nephew of Sabitri Sahuain and he has contended that the registered Will is forged one because he was looking after Sabitri Sahuain and in the month of December, 1984 she had a paralytic attack and she confined herself to the bed and she was not in a position to move here and there and, therefore, no question of executing any Will on 14.3.1985 arose. He further claimed that Sabitri Sahuain gave entire property to him by way of Danpatra and after her death he inherited the entire properties and after her death his name was mutated as he was in possession over the property.
7. Now two points arise for determination in this appeal. (I) whether Sabitri Sahuain executed the registered Will or not and if she executed the registered Will whether she was in a fit state of mind and (2) whether objector is a nephew of Sabitri Sahuain and she gave her property to objector by Danpatra. The learned Court below, while deciding issue No. 3, came to a finding after oral and documentary evidence that Will is not forged and fabricated one and is a genuine one. In this connection petitioner-respondent has examined five witnesses and on behalf of objector seven witnesses have been examined.
8. AW 1 is Tapan Kumar Saha. He is petitioner himself and has come to depose that deceased Sabitri Sahuain was daughter of his Fua Jasoda Sahini and she is sister of his father. He says that he looked after Sabitri Devi so long as she remained alive. Her lands were situated in Nageshwar Bag. Gunihari, Tintalya or Kasimganj and before her death she executed a Will with respect to the lands of the three places measuring 6 Bighas, 6 Kathas and 19-1/2 Dhurs by a Will in his favour out of her free Will and without any persuasion. He further says in para 2 that she went to Rajmahal Registry and executed the Will. Uma Shankar Mandal scribed the Will at the instance of Sabitri Devi in his presence on 14.3.1985 and after scribing the deed he read it over and explained to Sabitri Devi and she gave her LTI on every page and witnesses Nirmal Babu Singh, Sachidanand Agrawal and Ranjit Kumar Singh put their signatures on the deed (Ext. 1 with objection). He denied that she was lying ill and was not in a position to move. He claims that he is in possession over the land and still he is enjoying the possession. He says that 1-1/2 month after execution of Will she died and objector is none of the deceased. He says that mutation in the name of objector is wrong and he denies that he is not in possession of the land. He denies that objector and others looked after Sabitri Sahuain, He also denied the photo taken of Sabitri with objector.
9. AW 2 has come to say that Sabitri Sahuain died issuless and she kept her maternal uncle's son in her house and he looked after her and his name is Tapan Sah, who is petitioner. He also says that from the childhood this petitioner looked after Sabitri Sahuain. He corroborates the facts that Sabitri Sahuain executed a Will out of her free Will in favour of petitioner and he was also present there and two witnesses were also there. He also corroborates the fact that Uma Shankar ascribed the Will at the instance of Sabitri Devi and he read over and explained to her, who after that gave LTI on every page of the Will. He has identified the signatures of witnesses marked as Exts. 2 to 2/2. He has admitted that objector resides with his family and children in her house Mahua Bazar and this petitioner also resides in front of that house. He has denied that Sabitri was suffering from paralytic attack and was unable to move. Petitioner, as stated by this witness, performed all rights.
10. AW 3 is Uma Shankar Mandal. He is scribe of the Will. He has stated that Sabitri Sahuain and Tapan Sah had gone to registry office and at her instance he executed a Will in favour of petitioner Tapan Sah and he read over and explained to her and thereafter she gave her LTI on every page of the Will and he and witnesses also signed. He has stated that Sabitri had herself brought stamp paper after purchase. He is unable to say whether Sabitri was suffering from some diseases.
11. AW 4 is Subal Mandal. He has also supported the case of the petitioner-respondent. He says that Sabitri had no issue and she died issuless and she executed a deed of Will with respect to the properties lying in three places in favour of petitioner. He says that deed was registered in his presence and the deed was executed in registry office., He also stated that petitioner is maternal uncle's son of Sabitri and she allowed him to stay in her house.
12. On the other hand, OPW 1 is objector himself. He has stated the same thing, which he has stated in objection petition. He claimed that deceased Sabitri Sahuain is his aunt and he resided in the house of his aunt. He says that Sabitri was not well because she had suffered paralytic attack. He said that Sabitri Sahuain was examined by Dr. R.P. Thakur. He said that his son gave mukhagni to Sabitri Sahuain on her death. He has given names of Pandit and barber, who had participated in Sharad function. Deceased had executed Will in favour of mother and before her death her mother returned back the property to her daughter and original deed was lost. It is incorrect that applicant gave mukhagni to deceased Sabitri Sahuain and that he was in possession over the land. This witness further says that when Sabitri died he was not there and he came ten days after her death. He says that the petitioner set up another lady and got the deed executed in his favour. This witness is nephew of Sabitri Sahuain. He has proved the prescription of the doctor (Ext. A). He has asserted that his younger son performed the last rite of Sabitri and he performed her Sharad. He says that Mathura was Pandit and Baldeo was barber and he claims the lands to be in his possession and he pays the rent. He admits that the petitioner is maternal brother of Sabitri. He further admits that in one portion of the house of Sabitri this petitioner resides but he does not cultivate the lands. He further says that mutation was done in his name. He says that he is not in possession of Danpatra. He says that Danpatra was registered. 13. OPW 2 is the wife of objector Mahabir Sah. She claims that she lives in the house of deceased Sabitri and her marriage was performed by Sabitri Sahuain. Sabitri executed a Danpatra in favour of her husband. She suffered paralytic attack and was unable to speak. She has denied that any document was executed in favour of petitioner. She claims to be in possession over the suit land.
14. OPW 3 is Kamla Devi. She is a vegetable seller. She has come to say that she lives behind the house of deceased Sabitri and Sabitri sustained paralytic attack and died. She says that Sabitri was unable to move from one or two years before her death. She Mahabir, Sah and others looked after her. She says that she heard from neighbours that Will has been executed in favour of petitioner. She also learnt from someone that one lady was set up and execution of the Will was done. She admits that petitioner was living in the house of deceased Sabitri Sahuain.
15. OPW 4 is Gopal Chandra Saha. He has come to say that Sabitri was his eldest salt He says that Sabitri always remained ill and he further admits that Kuldip is son of objector and his son-in-law.
16. OPW 5 is Gopal Prasad Sah. He has come to say that Sabitri died as a result of paralytic attack and Sharad was performed by Mahabir and not by Tapan.
17. OPW 6 is Mathura Goswami. He is also a witness on the same point.
18. OPW 7 is Dr. R.P. Thakur, who had treated deceased Sabitri Devi and had prescribed some treatment.
19. Learned counsel for the appellant, while assailing the judgment of the learned Court below, submitted that Will is forged and fabricated one and no witness has been produced on behalf of the petitioner-respondent to say that Will is genuine and not forged one. It was also pointed out that DW No. 7, Dr. R.P. Thakur has come to say that he had examined Sabitri Sahuain and she was suffering from paralytic attack and, therefore, when a person suffers from paralytic attack, it is difficult for her or him to walk from the house to registry office or behave like a normal person because in evidence, it has come that she dictated Will to the scribe and also she brought stamp papers and, therefore, testator was so much active that she could do all things, although 1-1/2 months after execution of the Will she died and, therefore, it can be presumed that she had paralytic attack and could not survive any longer. It was also pointed out that, on the other hand, some witnesses have come from defendant's side to say that another lady was set up in place of Sabitri Sahuain, who executed deed of Will impersonating herself as Sabitri Sahuain. Learned counsel further assailed the judgment on the ground that Will has not been properly executed in the Court as not a single attesting witness has come to say that deed was executed in his presence and he signed as attesting witness and, therefore, Will, as per requirement of Section 63 of the Indian Succession Act, has not been stand proved and it cannot be said to be a genuine one. In this connection learned counsel for the appellant placed reliance upon AIR 1990 SC 396 and referred to para 20 of the judgment, which is quoted herein-below :
'20. It has been said almost too frequently to require repetition that a Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution of to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factom of execution and validity of the Will cannot be. determined merely by considering the evidence produced by the propounded In order to judge the credibility of witness and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
20. Learned counsel further submitted that onus is upon the propounder to prove that Will is genuine and not a forged one. in this connection he has placed reliance upon AIR 1959 SC 443 (V 46 C 56). The learned counsel further placed reliance upon 1983 NOC 170 (All) and submitted that to prove the execution of a Will, the examination of at least one attesting witness is necessary and without which execution of Will cannot be said to have been proved. It was also pointed out that when execution of Will is surrounded in suspicion, the propounder has to lead evidence and heavy onus lies upon him to prove the due execution of the Will. Reliance was also placed upon 1988 PLJR 36, wherein it has been held that propounder is required to prove not only the testamentary capacity and signatures of the testator as required by law but also required to remove the suspicious circumstances before the Will is given effect to.
21. On the other hand, learned counsel for the respondent submitted that due execution of Will has been proved by leading evidence and onus in this connection has properly been discharged by the petitioner-respondent. Against the plea of non-compliance of verification of petition for probate or letters of administration and non-compliance of Section 281, it was submitted that non-compliance cannot result in dismissal of application. In this connection, reliance was placed upon 1986 PLJR 725. The learned counsel further pointed out that fraud and coercion has been alleged on behalf of the objector-appellant and it is he, who has to prove the same. In this connection, learned counsel drew my attention to paras 16, 17 and 19 of the judgment, which are quoted herein-below :
'16. Mr. Majumdar had submitted that in the instant case the document has come from the custody of the respondent who undoubtedly is a major beneficiary as the properties conveyed by the Will would revert to him after the demise of the wife of the testator. The signature of the testator on the Will has been challenged as forged and dispositions made therein are unnatural, improbable and unfair. These, according to Mr. Majumdar, are suspicious circumstances, which if not removed, could cast serious doubt to the genuineness of the Will.
17. True the Will is not registered and it has been produced by the propounder. But according to the caveator's the testator was confined to bed for some kidney trouble over a year. The case, however, has been given up and they have adduced evidence only to show that Chandan Sah was an old man aged about 80 years and that he had suffered from prostate glands and was in serious condition during the period he was in Patna Medical College Hospital for his treatment, where he died. They have given up their case also about the forgery of the signature of the testator. The Will has recited in full about the condition of health of the testator. It Is written and ascribed by Parmeshwar Dayal and bears the signature of the testator and his thumb impression on different sheets. It also stands attested by more than two attesting witnesses. It is admitted that Parmeshwar Dayal had died before he could depose in the case. It is also admitted case of the parties that the testator was sufficiently old and was aged about 80 years at the time of his death. PW 3, who is an attesting witness, has deposed that the Will was ascribed by Parmeshwar Dayal as instructed by the testator, after it was ascribed, he fully understood its contents and signed the Will as dictated by him and also signed the pages of the Will. PWs 4, 5, 7 and 10 who are other attesting witnesses, have also said that Will was executed by the testator in sound state of mind and was a voluntary act free from any influence. Their evidence goes to show that there was neither any fraud nor any undue in-1 fluence. Although the caveator has alleged' that the testator's thumb impression was obtained on blank-sheets of paper while he was lying unconscious in the Patna Medical College Hospital where he was admitted for treatment, no evidence has been adduced on his behalf that the thumb impression was actually obtained in the P.M.C. II during the unconsciousness of the testator. Some hospital papers connected with the treatment of the testator during the relevant time have been proved by D.Ws 11, 12 and 13 Oral evidence of these witnesses is, however, of no avail to show that thumb impression of the testator was obtained on blank-sheets of papers.
19. I have already noticed that the case of fraud or forgery of the signature has been given up by the caveator. No case of undue influence has also been made out by him. To constitute undue influence as defined under Section 16 of the Indian Contract Act, some sort of coercion is necessary. Coercion is inferable from the acts of the beneficiaries. Influence of affection has always been recognized as the cause of dispositions by gifts and Wills. Mere desire of gratifying the wishes of others cannot be branded as undue influence. The caveator has brought the case only with the angle of demonstrating before the Court that the testator had chosen to stay with the propounder and that some litigations followed and there was dishonest appropriation of joint family properties by the propounder. The learned Additional District judge has gone into this aspect of the case in details. He has taken notice of the evidence in this regard and found that the caveator's acts subjected the testator to civil and criminal litigations along with the propounder. I am not dilating into the details of the evidence on this aspect of the case because I am satisfied that no genuine suspicious circumstances has been brought to my notice upon which I may doubt the genuineness of the Will.
22. From the evidence brought on record, it appears that a Will is said to have been executed by Sabitri Sahuain in favour of petitioner-respondent. The defendant-appellant has not challenged the signature bearing on the Will to be of another lady and this aspect has been left upon by the defendant-appellant. Thus, by not challenging the signature bearing on the Will said to be that of Sabitri Sahuain, the defendant-appellant has admitted that the signature on the Will is that of Sabitri Sahuain because when a lady has been set up in place of Sabitri Sahuain then her signature must differ from the signature of Sabitri Sahuain, but no steps on behalf of the defendant-appellant has been taken to get the signature bearing on Will verified by a handwriting expert and no such plea has been raised in the written statement. Some of the witnesses, appearing on behalf of the defendant- appellant, have admitted that Sabitri Sahuain has executed the Will. From the evidence led on behalf of the petitioner- respondent, it appears that Sabitri Sahuain was not suffering from any sort of diseases and she was able to move and evidence has been led to the effect that she walked to the registry office and there at her instance, deed was scribed and she brought the stamp paper etc. The evidence led on behalf of the defendant- appellant that she had a paralytic attack about the time but no evidence on this point save and except this, has come on record and this was for the defendant-appellant to prove that she had actually paralytic attack and she was unable to move and fraud etc. was committed in execution of the Will but defendant- appellant has failed to discharge that onus.
23. One the other hand, the plea that none of the attesting witness has been examined to prove the due execution of the Will but in this connection, it can be said that scribe can also be an attesting witness and scribe has been examined in this case as AW-2 and he has proved the due execution of the Will. AW 2 has also signed as a witness and, therefore, there is due execution of the deed. AW 3, Uma Shankar Mandal has also signed as a witness and, therefore, due execution of the Will has been proved by examining the attesting witnesses. It has also come in evidence that petitioner-respondent is son of maternal brother of the testator and, therefore, petitioner-respondent was related to her. Further there is no challenge that the lands in question did not belong to the testator because defendant-appellant has alleged to the effect that after her death he got the mutation done in respect of the lands in his name but so long she was alive, no mutation was done in the name of the defendant- appellant. Further he has alleged that Sabitri Sahuain had donated the land to him but, in this connection, no chit of paper has been brought on record.
24. Considering all the facts,' evidence and other things on record, I am of the view that judgment of the learned Court below does not require any interference and in the result, this appeal is dismissed.