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Smt. Rajeshwari Rani Pathak Vs. Smt. Nirja Guleri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtPunjab and Haryana High Court
Decided On
Case NumberProbate Case No. 5 of 1974
Judge
Reported inAIR1977P& H123
ActsSuccession Act, 1925 - Sections 59, 63 and 276
AppellantSmt. Rajeshwari Rani Pathak
RespondentSmt. Nirja Guleri and ors.
Appellant Advocate K.L. Kapur and; S.K. Aggl, Advs.
Respondent Advocate B.P. Singh,; Ram Lal Aggl and; P.K. Palli, Advs.
DispositionPetition allowed
Cases ReferredMotibai Hormusjee v. Jamsetjee Hormus
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....orderharbans lal, j. 1. this is a petition under section 276 read with sections 273 and 300, indian succession act, (hereinafter called the act) for the grant of probate of the will dated january 12, 1974, exhibit p-a, executed by shridhar sharma guleri, (hereinafter called the testator), in favour of shrimati rajeshwari rani pathak, the petitioner (hereinafter called the executrix). the testator died on february 22, 1974, at simla when he was working as joint agricultural commissioner at simla under the himachal pra-desh government. the present petition was filed on july 16, 1974.2. the testator was a lecturer in government college at solan. he passed the i. p. s. examination in the year 1963 and was subsequently selected in the indian administrative service (i. a s.). after getting his.....
Judgment:
ORDER

Harbans Lal, J.

1. This is a petition under Section 276 read with Sections 273 and 300, Indian Succession Act, (hereinafter called the Act) for the grant of probate of the will dated January 12, 1974, Exhibit P-A, executed by Shridhar Sharma Guleri, (hereinafter called the testator), in favour of Shrimati Rajeshwari Rani Pathak, the petitioner (hereinafter called the executrix). The testator died on February 22, 1974, at Simla when he was working as Joint Agricultural Commissioner at Simla under the Himachal Pra-desh Government. The present petition was filed on July 16, 1974.

2. The testator was a Lecturer in Government College at Solan. He passed the I. P. S. Examination in the year 1963 and was subsequently selected in the Indian Administrative Service (I. A S.). After getting his training, he was appointed as Sub-Divisional Magistrate, at Kan-gra, in the year 1966-67. In July, 1967, he was appointed as Deputy Commis-sioner, (Rehabilitation) Talwara. After working as Deputy Development Commissioner at Simla up to April, 1970, he was transferred as Deputy Commissioner, Bilaspur and he served as such up to April, 1971. He went on deputation as Under-Secretary (Finance), Government of India, from where he was transferred to Simla under the Himachal Pra-desh Government in February, 1973. There, he worked in various capacities up to February 22, 1974, when he met his tragic end in mysterious circumstances. At the time of his death only he was in the house and his dead body was found partly burnt. He was married to Shri-mati Nirja Guleri on March 10, 1966 (hereinafter called the objector). The marriage was solemnised at Dehra Dun. From the wedlock, two sons were born. Shri Shre Guleri was born on November 23, 1968 and Shri Kant Guleri was born on January 3, 1971.

3. The father of the testator died on July 24, 1967. His mother died on January 1, 1974, at Aimer, at the house of his brother Dr. S. K. Sharma, Professor and Head of Pharmacology Department, Medical College, Ajmer. Kirya ceremony of the testator's mother was held on January 11, 1974 and the will, in dispute, Ex. P-A, was executed the next day, that is, Jan. 12, 1974. The body of the said will is typed. It is signed by the testator and is attested by two witnesses, namely, Dr. K. S. Yadav, Lecturer, in Medicine J. L. N. Medical College, Ajmer and Dr. S. V. Malvea, Reader and Head of Anaesthesio-logy Department, J. L. N. Medical College, Aimer. Its execution is proved by both the witnesses, that is, Dr. Malvea, as P. W. 3 and Dr. Yadav, as P. W. 4. Both of them have expressly stated that the will was signed by the testator in their presence and that they also affixed their signatures on the will in the presence of the testator. It is stated in the will that the testator was at Ajmer to attend the last rites of his mother. The entire property, the details of which however, are not given in the will, was bequeathed in favour of Shrimati Raje-shwari Rani Pathak who, according to her own statement, is the real sister of the testator's mother, which is not denied by the other side. According to the averments in the will, the executrix had brought up the testator since the age of five years. She was made the owner of the entire property of the testator and was authorised to take possession of the same. She was also appointed as executrix of the property to provide for his two minor sons, namely, Shri Shre Guleri and Shri Kant Guleri, Shrimati Nirja Guleri, the wife of the testator, was disinherited and the averment hi this regard is to the following effect :

'As regards Smt. Nirja, though she was married to me, but has deserted me and I do not give her anything out of my property as she is already given all the ornaments, jewellery and household goods with Rs. 50,000/- cash and has, therefore, given up her claims, if any, over my property.'

Towards the end of the contents of the will, it is specifically mentioned that the will is 'drafted and typed by self.' The details of the property, both movable and immovable, belonging to the testator, are given in Annexure 'B', annexed to the petition which is valued at Rupees 3,20,000/-. In the list of heirs, attached to the petition, besides the names of the widow of the testator and the two minor sons, mentioned above, are also included the names of Dr. S. K. Sharma as brother of the testator and Shri S. S. Pathak, as natural brother of the testator, but adopted by his maternal grandfather.

Objections have been filed in the form of written statement by Shrimati Nirja Guleri, the widow of the testator on her own behalf and as mother and natural guardian of two minor sons. The objections raised, inter alia, are,--

1. The testator was only 34 years of age at the time of his death. He died in tragic and accidental circumstances while on active duty. There was no reason, nor any occasion for him to execute any will;

2. The propounder, the petitioner, and the two brothers of the testator, have deprived the objectors of their just claims over the property;

3. The document, Exhibit P-A, is not a willl. It is designed and manufactured only as an arrangement and provision for the guardianship of the infants. The same is forged and fabricated and has been contrived with the design to benefit the two brothers of the testator, using the propounder in name only as a duct Eor the ultimate conveyance and pillaging of the properties of the testator.

4. The alleged will is unofficious, improbable, unnatural, artificial and unfair transaction. Its recitals are cryptic and laconic.

5. The recitals in the alleged will that Shrimati Nirja Guleri had deserted the testator and that she had already been given the ornaments, jewellery and household goods with Rs. 50,000/- cash and had, therefore, given up her claim, are senseless and false. The testator did not know, nor did he typewrite himself nor he was in any way familiar with drafting a solemn document like a will.

6. The will was not signed by the testator in the presence of the alleged attesting witnesses. The same has not been executed or attested as a will, legally.

7. The testator was addicted to alcohol and had become schizophrenic under the influence of alcohol and was not an agent of his free will and understanding. The same is not the result of the testator's free will and mind.

8. The said will is vitiated by fraud and undue influence.

9. The properties alleged to belong to the testator, in fact, belong to the joint family consisting of the testator and the objectors. The testator could dispose of only his right, title and interest in the joint family property.

4. Besides the oral evidence adduced by both the parties, a large number of letters written by the testator and the objector, and other relations on both eides, have been produced on the record.

5. The testator by the aforesaid will, Exhibit P-A, disinherited his wife completely from his property and made the petitioner the sole owner after his death who was also made the executrix to provide for his two minor sons. In normal circumstances, a husband is expected to prefer his wife and children over other heirs. Secondly, the will was executed when the testator was 34/36 years of age and was not in anticipation of his death as he, was maintaining a good health. This document was also not found from the house at Simla where he was living and was found dead. Thus, on the face of it, and in the absence of other circumstances, it can be said that the will is clothed with suspicious circumstances. In such circumstances, what are the duties of a .propounder before the will is held to be valid and what is the responsibility of an objector, the alleged heir, have to be kept in view. Their Lordships of the Supreme Court in a number of cases relating to probate or actions under the wills had the occasion to consider similar questions and have laid down the law. It has been held that whereas the signatures of the testator have to be proved according to Sections 67 and 68 of the Evidence Act read with Sections 59 and 63 of the Indian Succession Act. there is one important feature which distinguishes wills from other documents. Unlike other documents, the will speaks from the death of the testator. Therefore, in the absence of the testator, the question whether it is his will or not has an added element of solemnity for its decision. The propounder is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signatures to the document of his own free will. When the evidence in this respect is disinterested and satisfactory, the finding in favour of the propounder is justified to be given.

In H. Venkatachala Iyengar v. B. N, Thimmajamma, AIR 1959 SC 443, in paragraph 20, at page 452, their Lordships enumerated a number of suspicious circumstances which may surround a will, as follows :

'There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the resuit of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the oaveators; but, even with-out such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.'

However, the following guidelines have also been laid down as to how the matter is to be disposed of in case of these suspicious circumstances :

'It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Paroq in Harmes v. Hinkson, 50 Cal V/N 895 = AIR 1946 PC 156, 'where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth.' It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilent, cautious and circumspect.'

The above principles of law were reiterated in Rani Purnima Debi v. Kumar Khagendra Ngrayan Deb, AIR 1962 SC 567, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 and Ramchandra Rambux v. Champabai, AIR 1965 SC 354. Thus, the evidence produced and relied upon by both the sides and the contentions raised by the learned counsel for the parties, have to be assessed, appreciated and analysed in the light of the principles of law laid down in the above-mentioned decisions.

6. According to the learned counsel for the petitioner, the objector, Shri-mati Nirja Guleri, by her attitude and conduct had lost the confidence of the testator and the relations between the testator and her were deeply estranged and far from cordial at the time when the will, in dispute, was executed. In support of this contention, reliance has been placed on the following circumstances :

1. In April. 1970, Shrimati Nirja Guleri, the objector, wrote an inland letter in her own hand to one Shri S. R. Singh, Allahabad, from a perusal of which it is clear that she was in love with him and was fed up with her husband, namely, the testator. An extract of that letter is as under :

'I am absolutely disgusted with my life and regret time and again why this blunder I committed. What a nice and wonderful time we spent together in college. I wish we should have spent our whole life like that. How wounderful it was such a smooth life. No squabbles ever. But now there is nothing in my life but bitterness and misery.' In this letter, she also requested her paramour to come to Simla so that she could accompany him. The same has been produced in evidence as Exhibit P-O. This letter was not posted and fell into the hands of the testator. On seeing this letter, as expected, the testator was full of resentment and addressed, on June 10, 1970, a letter to his father-in-law in which a copy of this letter was also sent. A copy of that letter is Exhibit P-D. Relevant extract from that letter (Exhibit P-D) is reproduced below:

'Her behaviour has become extremely rude in the last few days. In the last fortnight, she has not only taken every opportunity to insult me, but has told me that she cannot and will not live with me any more and would run away and leave a really good impression about me in the district. Her intention and purpose is very clear from the letter.' A similar letter was addressed to some other relations of Shrimati Nirja Guleri, the objector;

2. Shrimati Nirja Guleri, the objector, addressed one letter in about May, 1970, to her mother from Bilaspur where the testator was posted and a copy of the same in Ex. P-Q. In this letter, she indicated that she was in 'worst dilemma of her life which course to take.' From, its perusal it appears that she put the following four conditions to her husband for patching up the quarrel. She wrote,--

'(i) I want my jewellery put in a locker;

(ii) Bank balance transferred back in my name;

(iii) Nothing to do with his family; and

(iv) No restriction on my movements.'

3. As a reaction to the above mentioned conduct of Shrimati Nirja Guleri, the testator changed the nomination regarding his family pension and death-cum-retirement gratuity from his wife in favour of his younger son on August 7, 1970. Necessary nominations are marked D and E and are proved by Shri Vijay Chand Sud, Accounts Officer, Accountant General's Office, Himachal Pradesh;

4. It is admitted ease of the parties that the testator had been given Rupees 50,000/- in cash in dowry in addition to the jewellery to his wife. This amount had been deposited in the Bank in his own name. Shrimati Nirja Guleri was very much insistent for getting this amount deposited in her name. It is admitted that this amount was transferred from the account of the testator to the account of Shrimati Nirja Guleri, on December 1, 1972. It is also admitted that the jewellery and ornaments were also given to Shrimati Nirja Guleri on her demand.

5. From April, 1971 to February, 1973, the testator was posted at Delhi where he and his wife were living together. In February, 1973, he was transferred to Himachal Pradesh Government. All the household goods belonging to the testator were, however, managed to be sent by truck by Shrimati Niria Guleri to the house of her parents at Dehra Dun on February 25, 1973. against the wishes of the testator. The testator had taken a life policy for Rs 50,000/- which was issued on April 14, 1972, with the date of commencement as January 20, 1972. In this policy, nomination was in favour of his wife, Shrimati Nirja Guleri. As a reaction to the removal of the household goods to Dehra Dun. this nomination was got changed by the testator on February 27, 1973, from the name of his wife, in favour of his brother. Dr. S. K. Sharma. This is proved from the statement of Shri S. F. Mehta, P. W 1, Assistant Administrative Officer, Legal and Mortgage Department, Life Insurance Corporation of India, Chandigarh. Necessary certificate endorsing this change is marked, Exhibit P-AE.

6. On May 21, 1973, was fixed the marriage of Mr. Ajai Singh, the brother-in-law of the testator, but the testator was not invited to this marriage. He wrote one letter to his mother-in-law, I Shrimati Chandravati Singh, a copy of which is Exhibit P-R, in which he conveyed his resentment that he had not been invited to the aforesaid marriage and also referred to the factum that his wife had taken the jewellery and the cash from him. He expressed his anguish in the following words:

'However, Nirja has with your kind persuation received every penny of money that she could receive.' In the same letter he expressed himself as under :

'It is extremely unusual that the parents of a daughter should be selfish to the extent of taking back the jewellery and all other articles including money that they had given at the time of the marriage. I am not aware of the fact if such is the rule or custom prevailing in Bihar ... ... ... Nothing is left here now on which she could have rightful claim since your parents are legal experts. They should be able to convince you that the idea of sending me to asylum with which your kind husband and your daughter were pleased to threaten me could not be possible ... ... ... ... Everything which I have passed on to her which is lying now at Dehra Dun (the entire household goods) many of them being mine for which vouchers are. available with me and the jewellery and money has been passed on also against proper receipts. Apparently it appears that we have reached the end in spite of my best efforts. It is impossible for any woman to treat me like a puppet ... ... ... ... ... I wish to earnestly request you to end this problem once for all. I shall be deeply honoured to receive a decisive and clear reply very early.' This Exhibit bears the signature of the testator. It does not bear any date, but seems to have been written after February 25, 1973, when the household goods of the testator had been removed by his wife to Dehra Dun. 7. On May 24, 1973, by means of an affidavit, Exhibit P-L. tine testator abandoned his rights in the landed property situated in villages Saproon and Padhana in District Solan, Himachal Pradesh, in favour of the two minor sons of his brother Shri Sharangdhar Pathak.

8. After his transfer from Delhi to Simla, the testator joined at Simla in May, 1973, but his wife did not accompany him. Sometime in June. 1973, Shrimati Nirja Guleri, went to the testator at Simla and remained there with him for a day or two. During her stay there, something was administered by her to the testator as a result of which the started vomiting for two days continuously and he suspected that poison had been given to him. Regarding this unfortunate incident, the testator wrote a letter, Exhibit P-K, to his elder brother, on July 14, addressed as Rajabhai. In this letter, the reference to the aforesaid incident was to the following effect :

'I believe on 7th July, perhaps, there was an attempt to give me something; perhaps something poisonous by Nirja who came here for one day. The only result was that I was vomiting for two days continuously with a gap of every five minutes. Lost my speech virtually. Could not get up. Was wabbling on my feet and was in a state of delirium.' 9. The last letter written by the testator before the execution of the will is dated December 19, 1973, Exhibit R-33, to his brother-in-law Ajai Singh. In this letter also, the testator expressed his regret that he had not been invited by Shri Ajai Singh on his marriage. The last paragraph of this letter is quite eloquent of the strained relations between the testator and his wife. It is to the following effect :

'I have also written to Nirja today. She should receive the letter the same time as you. Its contents are only advising and requesting her to come here immediately which is her true home. I am sure, you will also endeavour to persuade her to follow the right path which otherwise is rather harmful for everyone and especially the children. After all, stalemate does not really last. It has lasted more than enough. We have to reach somewhere.' 10. The mother of the testator died on January 1, 1974, at the residence of his brother, Dr. S. K. Sharma, at Ajmer. Though Shrimati Nirja had been informed telegraphically about this death, yet she did not go there except on January 11. 1974, when Kirya rites were performed. She went there with her father and came back the same day in spite of persuasion by the testator to stay. Although Shrimati Nirja, in her statement stated that she had stayed there (at Ajmer) for three days, but it is clear from the postcard, Exhibit P-U, which has been produced, in original, and was written by the testator to Shri Gora Lal, on January 13, 1974, that is, the next day, after the execution of the will, Exhibit P-A, that she had come back from Ajmer on January 11, 1974, itself. A perusal of this letter shows that Shrimati Nirja had gone to Ajmer with her father at about 2 O'Clock on January 11, 1974, and went back the same night.

11. The conduct of Shrimati Nirja in not going to Ajmer even on the death of her mother-in-law before Kirya ceremony and not even staying there for more than half a day, proved last straw on the camel's back and the testator decided to execute the will and did execute the will, Exhibit P-A, the next day, that is on January 12, 1974, at Ajmer at the residence of his brother disinheriting his wife, Shrimati Nirja Guleri, and bequeathed the entire property in favour of the petitioner with direction to her to provide for his two minor sons.

According to the learned counsel, for the petitioner, in the background of the above mentioned circumstances, the testator was fully and entirely justified in coming to the conclusion that he had been 'deserted' by his wife, the objector, and that she had lost all claims to his property by getting the cash and jewellery from him given by her parents at the time of the marriage and in addition, the entire household goods belonging to him. tt was further contended that the testator though had been transferred to Simla from Delhi and joined his duties in May, 1973, yet his wife did not go and live with him till his death on February 22, 1974, at Simla, except for one day in May, 1973, for three days in June, 1973 and two or three days in July, 1973, in spite of repeated persuasions. Nor did she send the two sons to Simla though the testator was throughout yearning for their company and had also arranged for their admission in the Public School at Simla.

7. In reply, quite elaborate arguments have been addressed by the learned counsel for Shrimati Nirja Guleri, the objector.

8. Regarding letter, Exhibit P-O, (hereinafter called the love letter), written in April, 1970, by Shrimati Nirja to her lover and intercepted by the testator, it has been contended by the learned counsel for Shrimati Nirja that the same was, in fact, a fake letter intended to fall in the hands of the testator to give shock treatment to him as he was indulging in excessive drinking of alcohol as a result of which his health was deteriorating and Shrimati Nirja found no way out to stop him from this evil habit. No doubt, this explanation has been given by Shrimati Nirja in her statement. In support of this plea it was contended that another letter had been written by her to her mother in which the entire background leading to the writing of the love letter was given. No such letter is on the record. On the other hand, there are two letters, Exhibits PAB, written by her to her mother and PAC, written by her to her mother and brothers, a perusal of which shows that she was disgusted with the life at the house of her in-laws and the attitude of the mother-in-law and her sister. It also shows that she was not satisfied with the attitude of her husband, but in these letters, there is absolutely no reference to the effect that the love letter had been written for the purpose of giving shock treatment to her husband.

I was taken through a number of letters written by Shrimati Nirja to her mother from time to time after her marriage. Reference may be made to letters, Exhibit R-40, written in December, 1966, Exhibit R-42, dated February 7, 1967, Exhibit R-50, dated January 6, 19,67, Exhibit R-45, dated March 7, 1967, Exhibit R-52, written to her father, besides letters Exhibits PAB and PAC, written in 1970, to her mother after the love letter. From a perusal of the same, a clear impression is left on the mind that Shrimati Nirja felt that she was not being given proper treatment by the mother-in-law and her sister, that she was being denied the use of jewellery and that she was not allowed to move out of the house. In some letters, she had addressed them as 'these dirty ladies'; 'dirty-in-laws'; and 'these nagging ladies', but from these letters, it is not possible to draw the conclusion that the testator was indulging in excessive alcohol and on account of the same, Shrimati Nirja was feeling worried or harassed. On the ether hand, the letter, Exhibit PY, dated September 3, 1970, written by the testator to his brother, letter Exhibit PJ, dated March 3, 1972, and letter, Exhibit PZ, dated September 15, 1972, written by him to the petitioner show that the testator was not satisfied with the conduct of his wife. In the letter, Exhibit PZ, he expressed himself as under:

'I have kept my word and given the break. Of course, I shall not forget the drama which Nirja played. She will certainly regret it rather badly this time.'

In letter, Exhibit PJ, his reaction towards his wife is in the following words :

'But too much bitterness has suddenly come up as if it needed just a spark to kindle. She spoke A few things about you which were intolerable and vulgar..... In the meantime I shall settle her really properly or well.'

9. According to the learned counsel for the objector, after interception of the love letter, the parents of the objector had come to Bilaspur where the testator was posted and reconciliation between him and his wife, the objector, was brought about and that if the love letter were a reality, his attitude towards her would not be as it wes subsequent to the reconciliation. In support of this contention, reliance has been placed on two telegrams, Exhibit R-17 and Exhibit R-18, sent by him to his wife at Patna Exhibit R-17, is dated December 14, 1970, in which the testator asked his wife to meet him at Delhi on December 18, 1970 (positively) and in the telegram, Exhibit R-18, dated December 19, 1970, he again asked her to come by air and meet him on 23. According to the learned counsel, a new plot was purchased at Green Park, New Delhi, in the name of the Hindu undivided family in September, 1973. From this, an inference is sought to be drawn that the Hindu undivided family included the wife and unless the incident relating to the love letter had not been found by the testator to be in fact nonexistent the said purchase would not have been made by him. Reliance in this behalf has been placed on the statements of Mr. Vinod Lal and Kanwar Shamsher Singh, who were both I.A.S. Officers and intimate colleagues of the testator. A perusal of these statements does show that the testator was all the time, till his death anxious to have company of his wife and children. It is further contended that after the reconciliation between them as a result of inter' vention of the parents of Shrimati Nirja, the objector, sometimes in June or July, 1970, there is absolutely no reference to this incident in any of the letters written by the testator till his death which have been produced in evidence on both sides.

On the other hand, reliance has been placed on a number of letters written by both the testator and Shrimati Nirja, to show that the love letter had in fact been written, but incidentally intercepted by the testator and that the story of shock treatment put forth by Shrimati Nirja. the objector, was only an afterthought. In the letter, Exhibit PV, written in June, 1970, by the testator to his brother, he wrote about his wife,--

'I am absolutely lost. As it appears, it shall not end in a comedy. I am still doing my best if she could possibly improve..... She is becoming more andmore impossible everyday.'

Letter, Exhibit PM, was written by Shri-mati Nirja to her husband in which she requested him to give her a chance to improve herself and assured him that she loved him alone and nobody else. In another letter, Exhibit PG, dated July 29, 1970, she wrote to him as under:

'Will you ever forgive me for my wrongful attitude.'

In another letter, Exhibit PN, dated July 2. 1970, she again requested him for forgiveness. On July 29, 1970, she wrote the letter. Exhibit PF, to her mother-in-law expressed herself as follows:

'I am ashamed at my deed. You all will hardly forgive me. But it is my duty to conduct myself in accordance with you all.'

From the letter, Exhibit PJ, dated March 3. 1972, by the testator to the petitioner, and from letter, Exhibit PZ, dated September 15, 1&72, by the testator to the petitioner a clear impression is left that the testator was not satisfied with the attitude of his wife, the objector, though there is no direct reference to the incident relating to love letter. In the letter, Exhibit PK, dated July 14, 1973, written by the testator to his brother, the latter mentioned an incident on June 7, 1973, when Shrimati Nirja was with him for one day only. He suspected that poison had been administered by her to him which resulted in his continuous vomiting for two days and he remained in a state of delirium. On the side of the objector, reliance was also placed on letters. Exhibits R-3, dated February 5, 1974, written by the testator to Shrimati Nirja, and R-4, of the date, written by him to his brother-in-law to show that he was all the time anxious that she should come and live with him. Reliance was also placed on one incident namely, the testator was admitted to Dr. Sen's Nursing Home, at Delhi, that as a result of a fall he sustained injury and that the same had been caused because he had taken to excessive drinking. In the history-sheet, recorded in the said Nursing Home, it was described that he was a chronic alcoholic.

On the other hand, it was contended by the learned counsel for the petitioner that the testator had sustained injury at the hands of Shrimati Nirja's brothers.

From a perusal of letters whether written by Shrimati Nirja or the testator to each other or to their relations, it is not possible to come to the conclusion that the love letter had, in fact, been intended for being intercepted by the testator and that its purpose was to give a shock treatment to him to dissuade him from his habit of excessive drinking. It is true that the subsequent conduct of the testator, as disclosed in his letters, does show that the deep bitterness caused by the love letter had gone from the mind of the testator in course of time and further that in spite of exposure of her love affair with another person from the love letter, the testator had reconciled himself and was desirous of, rather anxious to, live with Shrimati Nirja and his children. It was after this letter that the second child was born out of their wedlock on January 3, 1971, but from this attitude of the testator to yearn for the company of his wife, it is not possible to conclude that the relations between the testator and Shrimati Nirja had become absolutely cordial. The letter, Exhibit R-33, dated December 19, 1973, written by the testator to his brother-in-law, which is the latest letter on the record written by him before the execution of the will, clearly shows his sentiments, that is, his anxiety that Shrimati Nirja should live with him amicably and also his sense of frustration and disappointment with her attitude that she was perpetuating the stalemate and was not coming to the right path.

10. The writing of letter, Exhibit PQ, by Shrimati Nirja to her mother in May, 1970, in which she had made four demands, is not denied by the learned counsel for the objector. It is admitted that jewellery and an amount of Rupees 50,000 given to her in dowry were returned to her. It is also admitted that on the transfer of the testator from Delhi to Simla in February, 1973, his household goods lying at Delhi had been removed by Shrimati Nirja in a truck to Dehradun. According to Shrimati Nirja, her brother and mother, who have appeared in the witness box, these goods had been removed to Dehra Dun because the testator apprehended that if those were removed to the house of his parents at Patiala, the same may not be pilfered and accommodation at Simla was not available. This version is, on the face of it. incredible. Throughout the testator held his mother and the petitioner in high esteem. There is no document on the record to show that he suspected them in any way. Rather his immediate reaction to the removal of household goods on 25th February, 1973, in changing the nominee in his life policy for Rs. 50,000 from his wife to his brother only two days after, clearly proves beyond any doubt that the household goods had been removed to Dehra Dun by Shrimati Nirja without his consent. Change in the nomination regarding pension and gratuity of the testator from his wife in favour of his younger son, in August, 1970, is not denied.

11. It is, however, denied by the learned counsel for Shrimati Nirja, the objector, that on the occasion of the marriage of her brother, Shri Ajai Singh, on May 21, 1973, the testator was not invited. According to the statement of Shri Ajai Singh, R.W. 3, he had extended the invitation to the testator personally when the latter was at Delhi before his marriage. Exhibit PR, is a copy of the letter written by the testator to his mother-in-law, Shrimati Chandravati Singh, R.W. 5, in May, 1973, in which the testator wrote that the letter containing the invitation to participate in the marriage of his brother-in-law had been addressed not to him, but to his brother. The receipt of that letter is denied by Shrimati Chandravati Singh, R.W. 5. Exhibit PR, is a typed carbon copy of the said letter and bears the signature of the testator. According to the learned counsel for the objector, the signature of the testator on the copy of Exhibit PR, is not admitted by either Shrimati Nirja or her brother or her mother, all of whom have appeared in the witness box. Attempt was made to show that the said letter was not received, from the various contents of the letter, especially the reference that there was an idea of sending the testator to an asylum. However, even if it is held that this letter was not written by the testator, the fact that he was not invited to the marriage of his brother-in-law is amply proved from the letter, Ex. R-33, dated December 19, 1973, written by the testator to his brother-in-law on whose marriage he was not invited. The testator had not been extended the invitation for the marriage as a brother-in-law, but only an indifferent card had been sent to him which is referred to in the letter, Exhibit PR. From the letter, Exhibit R-33, no doubt is left that the testator had a strong reaction that he had not been invited to the marriage of his brother-in-law. The marriage was to take place on May 21, 1973 and three days after, that is, on May 24, 1973, by means of an affidavit, Exhibit PL, the testator abandoned his rights in the landed property in two villages in District Solan, Himachal Pradesh, in favour of the two minor sons of his brother. This conduct of the testator is no less a pointer that he was getting disgusted with the attitude of his wife, her relations and each incident of indifference and lack of warmth on the part of the latter drifted him away from his wife.

According to the learned counsel for the objector, the letter, Exhibit R-33, is not admissible in evidence as Shri Ajai Singh, when he appeared in the witness box as R.W. 3, was not confronted with the same. However, the learned counsel for the petitioner, urged that the letter, Exhibit R-33, though produced by the objector earlier, was kept along with other letters in a sealed cover which had not been opened by the time when Shri Ajai Singh, R.W. 3, was examined on the side of the objector. In the list of documents, there is a reference at serial No. 34 to one letter written by the testator to Shri Ajai Singh, but the contents of the same are not indicated or disclosed in the list. It was also contended that in the examination-in-chief of Shrimati Chandravati Singh, R.W. 5, letters, Exhibits R-14 to R-30 were proved by her but not letter, Exhibit R-33 and that as soon as the sealed cover was opened in the Court, Shrimati Chandravati Singh, R.W. 5, was confronted with this letter and she had not denied the receipt of this letter. According to the learned counsel for the objector, the letter, Exhibit R-33, is not admissible under Section 145 of the Evidence Act and for this purpose, reliance has been placed on jagrani Koer v. Kuar Durga Prasad, (1913-14) 41 Ind App 76 (PC). I am afraid, this contention is entirely miconceived. Under Section 145, Evidence Act, a witness for the purpose of contradiction, has to be confronted with his previous statement. The letter, Exhibit R-33, is not a statement by the witness who, according to the learned counsel, should have been confronted with the same. Rather this is a letter written by the testator to Shri Ajai Singh, R.W. 3. The ratio of the decision in Jagrani Koer's case (supra), is not at all applicable to the facts of the present case. In the said case, one of the attesting witnesses of the will was alleged to be present at a meeting at another place at the time when the will was attested by him, but he was not confronted with the said evidence, nor given the opportunity to explain the same.

12. The administration of poison by Shrimati Nirja to the testator as referred to in his letter, dated July 7, 1973, Exhibit PK, to his brother is also challenged. According to the learned counsel if this were a fact, that would have resulted in a final break between the testator and his wife and there was no reason for the testator to write to her a number of letters showing his anxiety for her to come to him and to live with him. It is further contended that this fact had been mentioned in the letter only to please his parents and his brother. This contention cannot be sustained as it is based on conjecture and speculation. It is not explainable as to what necessitated the testator to concoct such a fantastic story to placate his parents. It only shows that the testator was getting further and further away from his wife on account of her conduct or the conduct of her relations at various points of time and the fact that in spite of such ugly incidents, the testator still had not given her up as an absolutely lost case, only shows that in his heart of hearts the testator felt that his wife might Improve. This attitude is apparent from the letter, Exhibit R-33, dated December 19, 1973, written to his brother-in-law in which he clearly requested him to persuade Shrimati Nirja to improve her behaviour and to come on the right path, as the stalemate, according to him, did not persist throughout life.

13. The writing of the postcard, Exhibit PU, by the testator to his friend, Shri Gora Lal, on January 13, 1974, that is, two days after the Kirya rites of the testator's mother is not disputed. From this, it is clear that Shrimati Nirja had igone for the Kirya rites of her mother-in-law on January 11, 1974 and had returned after a few hours. In the face of this letter, the version of the objector or other witnesses produced on her behalf that Shrimati Nirja had stayed at Ajmer with her husband for three days after the Kirya rites, can be hardly believed.

14. The circumstances and incidents beginning from the love letter, written in April, 1970, to January 12, 1974, when the alleged will, Exhibit PA, was executed, as discussed above, provide sufficient material to have a peep into the mental working of the testator at the time when the will Exhibit PA, was executed. Keeping all this into view, the conclusion of the testator as expressed in the will to the effect that Shrimati Nirja had deserted him and his decision consequently to disinherit her from his property cannot be held to be in any way unnatural or improbable. As is apparent from further contents of the will, the decision of the testator to deprive his wife of inheritance was also influenced by another factor that she had got all the jewellery and the cash of Rs. 50,000 which had been given as dowry at the time of the marriage as well as the household goods which had been taken away by her in February, 1973. It was contended by the learned counsel for the objector that the expression in the will that Shrimati Nirja had 'given up her claim, if any, over my property', is false and shows that the will could not be executed by the testator. In my opinion, this contention does not bear scrutiny. The expression that Shrimati Nirja had given up her claim has to be interpreted in the light of the other parts of the will. In fact, the testator appeared to convey that on account of her having taken ornaments, jewellery, household goods and cash, she had lost all claim to his property,

15. Signature of the testator on the will, Exhibit PA, is admitted. The will is attested by Dr. S, V. Malvea, P.W. 3, Head of the Department of Anaesthesio-logy, J. L. N. Medical College, Ajmer and Dr. M. S. Yadav, P.W. 4, Consultant Physician, at Ajmer. Both of them have expressly stated that they affixed their signatures in the presence of the testator who also put his signature in the pre-eence of these two witnesses. Their attestation is challenged on the ground that both the witnesses were friends of the brother of the testator who was living at Ajmer and secondly that both the witnesses were not able to state in detail the contents of the will, in the witness box. On the basis of & statement made by Shri Vinod Lal, an I.A.S. Officer, who was examined on commission, it was contended that the testator used to pass on blank papers with his signatures thereon to the petitioner as she used to go to Solan and Jaipur in connection with the management of his propertiea

The case of the petitioner, in reply to this contention, is that the petitioner did not require any such blank papers with the signatures of the testator as she had been appointed as his attorney by a registered power of attorney, Exhibit PAJ, which was executed by the testator and registered before the Sub-Registrar at Dharamsala. Shrimati Chandravati Singh, R.W. 5 and Shrimati Nirja, the objector, as R.W. 6, in their statements have denied the signature of the testator on this registered power of attorney. I am afraid, the statements of these witnesses to this effect cannot be believed. At the time the said deed was executed and registered, the testator was working as Deputy Commissioner and it is not possible to believe that the Sub-Registrar registered the said document in the absence of the testator. Rather, it shows to what length Shrimati Nirja and her mother can go in their anxiety to contradict the plea of the petitioner. In my opinion, the testator had executed the registered power of attorney Exhibit PAJ, in favour of the petitioner and this being the position, it was not necessary for the testator to put his signature on a blank paper which could have been used by the petitioner in regard to the management of his properties. Thus, the theory advanced by the learned counsel for the objector regarding the testator's signatures on blank papers has no force and cannot be relied upon. Both the attesting witnesses are men of status and the fact that they were friends of the brother of the testator does not in any manner weaken their testimony. Both of them have frankly conceded in their statements that they came to know of the testator because of the testator's brother and there is nothing unnatural in their being associated as attesting witnesses to the will. It is true that these witnesses could not give out the details of the will in their testimony. They came in the witness box a long time after the execution of the will. Besides, in the matter of wills, the attesting witnesses are not expected to be very meticulous in the minute details of the will. The only requirement of law is that the attesting witnesses and the testator should affix their signatures and attest the document in the presence of each other, and the witnesses should be sure that the will had been executed by the testator voluntarily and with a free disposing mind. These essential ingredients have been fully proved from the statements of these witnessee.

16. It was then contended that a perusal of the will, Exhibit PA, shows that no vacant space was left at the top of the page where the typing of the body of the will was commenced. I have perused the original will carefully. Though space on the top has not been left, sufficient vacant space has been left on the left side and the space between the sentences from top to bottom is quite uniform. From the manner of typing of the body of the will from top to bottom or the attestation of the witnesses or the signature of the testator, there is no scope to find out any suspicious circumstance. On one side of the will, there is signature and seal of the Oath Commissioner. Much capital was sought to be made from the fact that the Oath Commissioner has not been produced in evidence. However, this contention has no substance. It was not at all necessary to produce the Oath Commissioner when the two attesting witnesses have been produced.

17. It has been contended that there is no circumstances on the record to justify the execution of the will by the testator at the young age of 34-36 years especially when he was not in anticipation of death. It was also canvassed that the preparation of the will is shrouded in mystery and it has not been explained as to where the draft of the will has gone. None of these contentions has any substance. As explained above, since April, 1970, the testator had been faced with a number of incidents like the taking away of jewellery, ornaments and cash, forcible removal of household goods, the suspected administration of poison by Shrimati Nirja to him, constant pin-pricks and also the persistence of Shrimati Nirja to refuse to come to Simla and live with the testator. Lastly, her conduct in not going to Ajmer and not attending on her mother-in-law during her illness and not even caring to participate in the rites associated with the death of an ancestor of the family and then going on the occasion of the Kirya rites only for a few hours were quite too strong provocations for the testator to take a decision to execute the will. It is clear from the will itself that the document had been drafted and typed by the testator himself. It is not a case of an illiterate testator for whom the draft may have been prepared by some other person or the attesting witnesses or any beneficiary. In such circumstances, the preservation of the draft of the will or its loss may be taken to be a relevant circumstance which may have some bearing to assess the genuineness of the will. In the present case, the testator was no other than a highly placed I.A.S. Officer in full possession of his mental capacity and there was nothing strange if he drafted the will himself nor was it necessary to keep the draft with him.

18. It was also urged that, in fact, the testator did not know typewriting and as such, the will, Exhibit PA, which is typed, could not be executed by him as, according to the will, the same had been typed by the testator. In support of this contention reliance has been placed on the statement of Kanwar Shamsher Singh, I.A.S., posted as Director, Panchayati Raj, Government of Himachal Pradesh. He was examined on commission. He stated that he knew the testator quite well At first, the stated that to the best of his knowledge, the testator did not know typewriting, but subsequently improved and stated that he was positive that the testator did not know typewriting. This witness referred to an incident. When the witness and the testator were taking tea together in his office, some gentleman approached them for the sale of some typewriters. On that occasion, the testator disclosed that he did not know typewriting. This witness, in fact, stated,--

'When he asked Mr. Guleri, he also laughed away saying that of what use it would be to him as he did not know typewriting, about official demand, he told him to check up from his office.'

As against this, the learned counsel for the petitioner, has relied upon the statement of Shrimati Nirja, the wife of the testator, as R.W. 6, which is to the following effect:

'My husband did not know typewriting. I do not know on what typewriterhe used to get his letters typed. It is correct that he had been sending type-written letters to my father, mother andbrother also.'

After the interception of the love letters,Exhibit PO, the testator sent one letter,Exhibit PC, dated June 10, 1970, withits copies to a number of relations of hiswife, along with which a copy of theletter, Exhibit PO, was also sent Another letter, Exhibit PD, was sent to hisfather-in-law along with a copy of theletter, Exhibit PO. All these letters. Exhibits PC and PD and the copies of the letter, Exhibit PO, were admittedly typewritten. These letters are of such a personal nature that it is not possible to believe that the testator would get them typed from some other person. The only conclusion possible is that the testator typed all the letters himself. In the presence of this documentary evidence, no credence can be placed on the casual statement of Kanwar Shamsher Singh. It is just possible that the testator may have stated to the sales agent in a non-serious manner that he did not know typewriting, in order to put him off. The sales agent, in fact, must have gone to Kanwar Shamsher Singh, for the sale of typewriters because the talk took place in his office.

19. The learned counsel for the objector tried to derive support from a number of decisions for the proposition that the draft of a will has a material bearing on the proof of its genuineness and that in its absence, presumption should be drawn against the validity of the will. In none of the judgments cited it has been laid down as an absolute principle of law that if the draft of a will is not produced, it must foe held to be fictitious and not genuine.

20. In H. Venkatachala Iyengar's case (AIR 1959 SC 443) (supra), the facts proved or admitted were that the testatrix was an old woman of 64 years and was suffering from a serious ailment before the execution of the will. A draft had been prepared by the father of the beneficiaries who had taken active part in the execution of the will. It was urged that the draft had been prepared in accordance with the instructions given by the testatrix about one year before the execution of the will. This draft had not been produced in evidence. It was in these circumstances that their Lordships of the Supreme Court held,--

'Then it would be necessary to enquire whether the draft which the appellant prepared was consistent with the instructions alleged to have been given by the testatrix. The draft, however, has not been produced in the case on the plea that it had been destroyed; nor is it specifically stated by the appellant that this draft was read out fully to the testatrix before he dictated the contents of the will to the scribe. Thus, even the interested testimony of the appellant does not show that he obtained approval of the drafts from the testatrix after reading it out fully to her clause by clause. It is common ground that Mandya where the testatrix was lying ill is a place where the assistance of local lawyers would have been easily available; and in ordinary course, the testatrix would have talked to Kalbagal and the appellant and they would have secured the assistance of the lawyers for drafting the will, but that is not what the appellant did. He went to Mysore and if his evidence is to be .believed, he prepared the draft without any legal assistance. Having regard to the nature of the recitals contained in the will it is not easy to accept this part of the appellant's case. Besides, as we have already indicated, we find great difficulty in believing that the elaborate recitals could have been the result of the instructions given by the testatrix herself.'

21. In Rash Mohini Dasi v. Umesh Chunder Biswas, (1897-98) 25 Ind App 109 (PC), the testator had suffered a paralytic stroke before the execution of the will and the draft of the will had been prepared by the manager who did not produce the draft in evidence. As a result of the assessment of the evidence on record, the Privy Council agreed with the conclusions of the High Court and came to the conclusion that there was no satisfactory evidence to show that the testator had understood the business in which the manager had engaged him and that the previous or the independent intention of the testator to make the will had not been proved. Thus, it may be seen that in both the above-mentioned cases, the draft of the will had been prepared by a third person and the will had been prepared from such a draft. The physical condition of the testator was not normal. It was in the peculiar circumsitances of each case that the non-production of the draft was held to be a material circumstance in conjunction with the other circumstances in arriving at the conclusion that the will was not genuine and the last will of the testator.

22. In support of the contention that the will Exhibit PA, was written after the death of the Testator, on a blank paper with his signature, reliance has been placed on Rani Purnima Debi's case (AIR 1962 SC 567) (supra). I am afraid, the facts in that case were quite different and that decision renders no help to the contention. According to the facts proved, relations between the testator, his wife, sister and daughter were very good, but the daughter had been completely disinherited and the wife and sister had not been provided adequately. It was also found that the signature of the testator did not appear to be his usual signature and further, his signature was not in the same ink in which the body of the will had been written. It was also held proved that the testator used to sign blank papers for use in his cases in Courts and used to send the same to his lawyer through his servants. In the case in hand, none of these ingredients can be held to be proved.

23. In Ramchandra Rambux's case (AIR 1965 SC 354) (supra), the will was inscribed on a flimsy paper. The language used was high-flown Urdu. Jt was alleged that the body of the will had been dictated by the testator in that language, but the will did not contain the signature of the testator in that language, namely, in Urdu, but in Modi script. It was also found that as the body of the will proceeded further down, more and more words seemed to be crammed in each line and the spacing between two lines tended to decrease, even though there appeared to have been plenty of room for the signature of the testator to be scribed lower down on the paper. It was in these circumstances that the conclusion was arrived at that the signature of the testator was already there before the will was scribed.

24. Reference was also made by the learned counsel for the objector to Ajit Chandra Majumdar v. Akhil Chandra Majumdar, AIR 1960 Cal 551, and Subodh Kumar Banerjee's case (AIR 1964 SC 529) (supra) for the proposition that the fact that the will is not a holograph but typed, is a suspicious circumstance. I have carefully perused both these decisions. It is not possible to draw the conclusion that the will being typewritten will be a suspicious circumstance. It is correct that in both these decisions it was held to be a re-assuring circumstance that the will had been written by the testator in his own hand. This fact only lent strength to the conclusion that the testator was in a free disposing mind and freely understood the nature of the disposition.

25. In Subodh Kumar Banerjee's case (AIR 1964 SC 529) (supra), another circumstance that the will contained the reasons for depriving some heirs, was taken to be a material consideration to uphold the genuineness and validity of the will. In the present case also, the testator has given adequate and satisfactory reasons for disinheriting his wife.

26. The learned counsel for the objector, has relied upon Lachman Utam-chand Kirpalani v. Meena, AIR 1964 SC 40 and Smt. Rohini Kumari v. Narendra Singh, (1972) 1 SCC 1 = (AIR 1972 SC 459) in support of his contention that the recital in the will, Exhibit PA, that Shrimati Nirja had deserted the testator was false and a wrong recital. In Lachman Utamchand Kirpalani's case (supra), 'desertion' was held to be as under:

'In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage.'

To somewhat similar effect is the term 'desertion' defined in Smt. Rohini Ku-mari's case (supra). It is clear from the letters, Exhibit R-33, dated December 19, 1973, Exhibits R-3 and R-4, dated February 5, 1974, and the telegram, Exhibit R-9, dated January 21, 1974, by the testator to his wife and his brother-in-law, that the relations between the testator and his wife had not come to a complete and irrevocable end so as to justify the conclusion that the testator had been deserted by his wife, as contended by the counsel. The above-mentioned letters are not denied by the petitioner. From these letters, there can be no doubt left that the testator even after the execution of the will, Exhibit PA, was anxious to have the company of his wife and continued to make requests to her and to her brother that she may come to him and live with him. In the above two decisions, the word 'desertion' was interpreted as defined in the Hindu Marriage Act or the Special Marriage Act, under which the relief had been sought by the parties and the question involved was whether the ingredients of desertion as defined in those Act, had been satisfied or not. In the present case, we are not faced with this situation. The only question which calls for determination in this case is whether the testator had any justification to have a feeling at the time of the execution of the will that he had been deserted by his wife so as to decide to disinherit her. The expression 'desertion' in the will to my mind cannot be held to have been used in the technical sense as denned in marriage laws. In view of the circumstances which had developed before the execution of the will, the testator was fully justified in exclaiming in the will, Exhibit PA, that he had been deserted by his wife.

27. It was urged by the learned coun-sel for the objector, that the testator after the death of his father and mother, had two brothers alive who were highly placed in life. If, Exhibit PA, were the last will of the testator, he would not have chosen the petitioner as the beneficiary and the executrix of the will as she was an old lady and only his mother's sister. The testator would have preferred to make one of his brothers or both of them beneficiaries and if he wanted his two sons to be provided for by the legatees, either of the two brothers could be a better choice even to act as guardians. These contentions are misconceived. It is clear from the recitals in the will, Exhibit PA, and also the evidence on the record that it was the petitioner who had brought up the testator from his childhood and the testator held her in high esteem. Even during his lifetime, the testator had executed the power of attorney, Exhibit PAJ, in favour of the petitioner. As is clear from the recitals in the will, the testator was also anxious that his two children should be brought up by the petitioner in the manner he himself had been brought up. Besides, both his brothers admittedly are living at places far off from the places where the properties are situated. In these circumstances, the mere appointment of the petitioner as beneficiary and executrix cannot be held to cast any suspicion on the genuineness of the will.

28. It was then contended by the learned counsel for the objector, that the following circumstances also have a material bearing to justify the inference that the will, Exhibit PA, was not executed by the testator:

(1) No evidence has been brought on the record to show as to what prompted the testator to execute the will at such a young age;

(2) There is no evidence to show as to how and in what manner the draft of the will was disposed of;

(3) The will, Exhibit PA, is quite short and the same could be very well written by the testator in this own hand. There was no necessity to type the same;

(4) There is no evidence to show that the petitioner had given his consent to act as executrix of the will; and

(5) There is no evidence to show how the will, Exhibit PA, was discovered and its execution was not disclosed for more than a month.

29. It is clear from the detailed discussion in the earlier part of this judgment that the relations between the testator end his wife became extremely estranged. Her attitude one day earlier to the execution of the will inasmuch as she went to Ajmer only for a few hours and came back, must have acted as a very strong and provocative circumstance to justify the decision of the testator to make a will. The mere fact that even after the execution of the will the testator continued to write to his wife and his brother-in-law that she should come to him, cannot be held to provide sufficient material to cast suspicion on the authenticity of the will. May be if Shrimati Nirja had improved in her behaviour and conduct towards her husband, the testator, might have changed his mind and had either revoked the will or made another will.

30. It is clear from the evidence of the attesting witnesses that the testator had asked the attesting witnesses to sign the will which had been typed. These witnesses possibly could not know as to what had the testator done with the draft of the will prepared by himself. No adverse inference can be drawn from the absence of any evidence about the draft of the will as it was not possible to adduce any evidence in the circumstances of this case.

31. According to the statement of the petitioner, the will, Exhibit PA, was found in the papers at the house of the brother of the testator at Ajmer. Her statement, in this regard, is to the following effect:

'The father-in-law of Shri S. K. Sharma sent a cheque of Rs. 101/- for Pugree. Since no Pugree ceremony in the actual sense was performed by us, I advised S. K. Sharma and his wife to return the cheque. I handed over the cheque to Mrs. S. K. Sharma and after some days, they left for Ajmer. I received a letter of Mrs. S. K. Sharma from Ajmer enquiring if the cheque was with me. I replied that the cheque had been handed over to her. During the search, for the said cheque, Mrs. S. K. Sharma, found the will executed by S. S. Guleri and told her husband about it Shri S. K. Sharma brought that will to me at Patiala. That will is, Exhibit P.A.'

The testator died on February 22, 1974, at Simla. According to the averments in paragraph 6 of the petition, the petitioner moved an application on or about March 27, 1974, in the Court of the Senior Subordinate Judge, Patiala, under Section 372, Indian Succession Act, and the present petition was filed on July 16, 1974. There is nothing unnatural that the will, Exhibit PA, was not found at the house of the testator at Simla where he was found dead in mysterious circumstances. The will was clearly executed at Ajmer as is clear from the document itself. Both the attesting witnesses also are the residents of Ajmer. It is quite probable and in the fitness of things that the testator did not like to keep the will in his own possession, but left the same in the house of his brother at Ajmer because once the testator had executed the will disinheriting his wife, it was natural for him to keep the will at a place where there was no apprehension of the will falling into the hands of his wife, nor was it expected of the testator to disclose the execution of the will to anyone else because he was still hoping against hope that his wife may come to the right path and begin to live with him and in that case, he may revoke the will and execute another will.

32. No suspicion can be held to emanate from the fact that the details of the property are not mentioned in the will, or the will being short was not written in hand, but typed. It is not essential to give details of the property in the testamentary document. In some circumstances, the fact that the will is in the handwriting of the testator may be a corroborative factor to be taken into consideration in arriving at the conclusion that the will is voluntary and the result of a free disposing mind. However, in the presence of the conclusion that a perusal of the will shows that the signature of the testator and the signatures of the attesting witnesses were affixed after the body of the will had been typewritten and not on a blank paper, the mere fact that the will was not hand written, but was typed, has no significance whatsoever and cannot be held to introduce any element of suspicion.

33. It has been strenuously urged that by the impugned will, the two sons of the testator have been virtually disinherited though the latter is proved to have anxiety and keen desire for their upbringing and education. It is admitted that both the sons at the time of the execution of the will were minors and of tender age and were in the custody of the wife who was being disinherited. The testator had full faith in the bona fides of the petitioner who had brought him up. It has been clearly provided in the will that the petitioner was appointed as executrix of his property to provide for his two sons. In view of the recitals in the deed, it cannot be said that the minor children have been excluded from inheritance. If the testator, in the peculiar circumstances, keeping in view his estranged relations with his wife in whose custody the children were living. provided for the children in the manner it has been done in the will, the recitals cannot be held to be unnatural or improbable or even unfair.

34. It was then contended that in the will, Exhibit PA, Shrimati 'Nirja' has been spelt as 'Nireja', though the testator in all his correspondence during his lifetime always spelt the name of his wife as Shrimati 'Nirja' and not as 'Nireja'. Reference in this regard has been made to the letters. Exhibits R-31, R-33, R-4, PQ, PK, PAE, PAG and PZ. There is no doubt that in all these letters the name of the wife has been written as 'Nirja' and in the will, it has been written as 'Niraja', that is, in the will, there is addition of the letter 'a' between the letters V and 'j' of 'Nirja'. This argument, on the face of it is ingenious, but is without substance. It is a matter of common knowledge that in the course of typing some mistakes with regard to spellings do creep ia Even after the typing of a document, one may not be able to find those mistakes even after the perusal of the same. In any case, it is too minor and insignificant e matter to have any bearing on the authenticity of the will,

35. It was further contended that though Mahesh put his signature and seal on the will as Oath Commissioner, but he has not been examined and, therefore, an adverse presumption should be drawn under Section 114, Evidence Act, to the effect that the said Mahesh had put in his signature before the signature of the testator was affixed. According to the learned counsel, it constitutes inherent infirmity and suspicion in the will. Reliance was placed on Surendra Krishna Mondal v. Rani Dassi, (1920) ILR 47 Cal 1043 = (AIR 1921 Cal 677) for the proposition that all the attesting witnesses must be examined in the case of a will. In the said case, only one attesting witness had been examined and other attesting witnesses had been left out. There was also the allegation of fraud in the matter of execution of the will. It was in these circumstances held that it is desirable that all the witnesses may be examined. The facts of the present case are quite different and distinguishable. Both the attesting witnesses of the will have been examined. The said Mahesh did not sign the will as an attesting witness. His signature is only as Oath Commissioner. In these circumstances, the objector is not entitled to the raising of any adverse presumption against the authenticity of the will from the fact that the Oath Commissioner has not been examined. According to the attesting witnesses, the Oath Commissioner was not present at the time the will was executed and attested. May be that after the completion of the will the testator got it attested from the Oath Commissioner, but thereby the Oath Commissioner did not 'become a witness to the execution of the will and it was not necessary to examine him. If the objector wanted to derive any benefit from the statement of said Mahesh, he could be produced by her in evidence in rebuttal.

36. The decision of their Lordships of the Supreme Court in Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346, relied upon by the learned counsel for the objector, I am afraid, has no bearing on the contention raised. Rather it may be of some help to the case of the petitioner. In that case, it was not proved satisfactorily from the evidence of the two witnesses who had attested the registered will that they had affixed their signatures in the presence of the testator or that the testator had signed in their presence. When the will was produced before the Sub-Registrar for registration, two other persons appended their signatures at the foot of the endorsement by the Sub-Registrar. It was contended that their signatures were enough to prove the due attestation of the will, though they had not been produced in evidence, it was held that the two witnesses who affixed their signatures before the Sub-Registrar after the completion of the will were not attesting witnesses and their signatures had nothing to do with the validity of the will. Similarly, the Oath Commissioner, in this case, cannot be held to be an attest ing witness of the will and, therefore, was not necessary to be examined.

37. So far as the contention of the learned counsel for the objector, regarding the taking of the consent of the executrix is concerned, it is true that the consent of the executrix was not taken at the time of the execution of the will, but the learned counsel has not been able to draw my attention to any provision of law whereunder the consent of an executrix or executor is essential to be taken before a valid will can be executed. The Privy Council decision in Bai Gungabai v. Bhugwandas Valji, (1904-5) 32 Ind App 142 (PC), relied upon by the learned counsel for the objector, renders no help to the proposition advanced by him. In that case, it was found as a fact that Jamsetji when asked to act as executor had declined to do so unless he was given remuneration and when enquiry was made he demanded the same et much higher scale. In these circumstances, it was held that the testator in determining to appoint him as executor must have expected and known that he would not act as executor unless he was allowed proper remuneration.

38. It was lastly contended by the learned counsel for the objector, that Dr. B. K. Shanna, the brother of the testator at whose house the will, Exhibit PA, was executed and his other brother in favour of whose sons the property in District Solan, Himachal Pradesh, had been abandoned by the testator, previous to the will, Exhibit PA, and to which there is a reference in the will, were necessary witnesses and they have not been produced. The learned counsel, therefore, wanted this Court to raise an adverse presumption against the petitioner as all suspicions with which the will was clothed had not been removed by the petitioner. This contention also has no substance. In the final analysis, it is the conscience of the Court that has to be satisfied and as such, the nature and quality of proof must be commensurate with the requirement to satisfy that con-science. The important question in each lease is: What is the suspicion which a reasonable man will entertain in the cir-cumstances of a case. In Surendra Pal v. Dr. (Mrs.) Saraswati Arora, AIR 1974 SC 1999, relied upon by the learned counsel for the petitioner, the testator had disinherited his sons and the children from the first wife and had executed a will exclusively in favour of the second wife.

It was proved on the record that the relations of the testator with his children from the first wife were not cordial, The will was held to be valid. Dealing with the nature and scope of enquiry as to whether the will iwas the. last will of the testator and the same had been executed with a free and disposing mind and as to how far it was the responsibility of the propounder to remove the suspicious circumstances, the entire case law on the subject was considered. Therein, the following principle of law as laid down in Motibai Hormusjee v. Jamsetjee Hormus-jee, AIR 1924 PC 26, was approved:

'A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing, the Court will not interfere with the exercise of his volition.'

It was further held,--

'It is not for us to fathom the motivations of a man. His actions and reactions are unpredictable as they depend upon so many circumstances. There is, however, always some dominant and impelling circumstance which motivates a man's action though in some cases even a trivial and trifling cause impels him to act in a particular way which a majority of others may not do. At times psychological factors and the frame of mind in which he is, may determine his action.'

39. In the present case, there is no evidence, even remotely, on the record to show that the testator at the time of the execution of the will was not in a fit state of mental or physical health to take an independent and voluntary decision to execute the will, Exhibit PA, or that the petitioner exercised any influence over him that the will may have been executed when the testator was not in a free disposing mind. That the will was made when the testator was quite young and could not anticipate his end so soon, is also no suspicious circumstance in the peculiar circumstances of this case. The constant and repeated acts of misconduct of his wife are likely to have prompted the testator to take the decision to execute the will and disinherit her. The genuineness of the will is in no way impeached or impaired from the fact that the testator ought to have given the entire property to his minor children. It is not for this Court to decide as to what would have been the ideal decision of the testator. Once the conclusion has been reached that the testator executed the will with full un- derstanding and comprehension and with deliberation, it is not for this Court to find fault with the nature of the disposition of property. If the testator had full right to alienate his property during his lifetime in any manner he liked, he could rightly dispose of the same by will.

40. From the above discussion, the following conclusions can be safely drawn:

1. The will, Exhibit PA, was executed by the testator of his own free will and the same was signed by him and attested by the two witnesses in each other's presence;

2. The testator executed the said will voluntarily having full comprehension of the disposition and at that time he was in a free disposing mind and did not suffer from any infirmity so as to cast any doubt that the will, Exhibit PA, was not genuine or voluntary; and

3. The relations between the testator and his wife, the objector, at the time of the execution of the will, Exhibit PA, were such that it cannot be concluded from the fact of her exclusion from inheritance that the will was in any way unnatural, improbable or unfair. Reasons for disinheriting the wife have been clearly mentioned in the will.

41. In view of the conclusions erriv-ed at above, the. probate of the will is granted in favour of the petitioner, in accordance with rules with regard to court-fee out of the estate of the deceased.


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