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Smt. Ramniwasi Vs. Madanlal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 109 of 1970
Judge
Reported inAIR1973Raj295; 1973()WLN65
ActsSuccession Act, 1925 - Sections 63; Evidence Act - Sections 68
AppellantSmt. Ramniwasi
RespondentMadanlal
Appellant Advocate Roshanal, Adv.
Respondent Advocate Sumer Chand, Adv.
DispositionAppeal allowed
Cases ReferredGaindi Lal v. Bhura Mal
Excerpt:
succession act, 1925 - section 299--will--proof of--propounder to remove all suspicions--court reluctant to treat document as last will unless onus discharged.;the test to be applied regarding the proof of the will, will be the usual test of the satisfaction of the court as a prudent person in such matters. there is, however, one special requirement in relation to wills, that it shall be the duty of the propounder to remove all suspicions about the execution or disposing state of mind of the testator.;the presence of such suspicious circumstances naturally tends to make the initial onus on the propounder to prove the will very heavy; and, unless it is satisfactorily discharged, the court shall be reluctant to treat the document as the last will of the testator.;(b) will - satisfaction of.....kan singh, j.1. the appeal before me is by a caveator under section 299 of the indian succession act, 1925 read with section 96, civil p. c. and is directed against the judgment of the learned district judge. jodhpur, dated 29-9-1970 granting letters of administration with a copy of the wills annexed regarding the estate of one smt. ramkanwari deceased in favour of the respondent madanlal.2. smt. ramkanwari was a widow having no children and was aged about 80 at the time of her death on 30-12-1963. she became a widow at an early age. she had two houses, which she inherited from her husband, situated in what is known as peepliwali gali, jodhpur. they are said to be worth rs. 6,000/-. she also had household effects worth rs. 200/- or so. also she had an account with one sunderdas.....
Judgment:

Kan Singh, J.

1. The appeal before me is by a caveator under Section 299 of the Indian Succession Act, 1925 read with Section 96, Civil P. C. and is directed against the judgment of the learned District Judge. Jodhpur, dated 29-9-1970 granting letters of administration with a copy of the wills annexed regarding the estate of one Smt. Ramkanwari deceased in favour of the respondent Madanlal.

2. Smt. Ramkanwari was a widow having no children and was aged about 80 at the time of her death on 30-12-1963. She became a widow at an early age. She had two houses, which she inherited from her husband, situated in what is known as Peepliwali Gali, Jodhpur. They are said to be worth Rs. 6,000/-. She also had household effects worth Rs. 200/- or so. Also she had an account with one Sunderdas Kanhaiyalal. Rs. 1126/- were in deposit with Sunderdas Kanhaiyalal in the name of the deceased. She had to pay Rs. 380/- to one Narayandas. On an application by one Anant Ram the Collector of Jodhpur took proceedings in escheat in respect of the property left by deceased Ramkanwari as it was given out that Smt. Ramkanwari had died heirless. Madanlal contested the escheat proceedings and came forward with two documents alleged to be executed by the deceased in his favour and they purported to be the wills made by Ramkanwari during her lifetime. The Collector appointed a receiver for the property of Ramkanwari and eventually directed Madanlal to obtain letters of administration or probate in respect of the wills propounded by him. It is in these circumstances that Madanlal made the application for grant of letters of administration with a copy of the wills annexed in the Court of the District Judge, Jodhpur.

3. The near relations of the deceased were the sons and daughters of her brothers and one Chhaganlal who was the son of the sister of Ramkanwari's husband.

4. One brother of deceased Ramkanwari was Hari Ram. He had two sons Madanlal and Banshilal. Madanlal was the propounder of the wills. The other brother of the deceased Ramkanwari was Jai NaramHe had four sons Jehroji, Moolchand, Neimchand and Daulal and three daughters Smt Joghiya, Smt. Indria and Smt. Ramniwasi. Notices were issued by the learned District Judge to these nine relatives of the deceased and one of them Smt. Ramniwasi, the appellant here, lodged a caveat. Anant Ram on whose information the escheat proceedings were started by the Collector, Jodhpur, had filed a caveat earlier to Smt Ramniwasi filing the caveat, but Anant Ram's caveat was dismissed on the ground that he had no locus standi. The two wills (one of them was taken to be a codicil) were Ex. 1 and Ex. 2 and were said to be executed on 28-12-1963 by the deceased Ramkanwari in favour of Madanlal at his house. According to Madanlal, Ramkanwari had become unwell some 10 days prior to her death though she was still able to move about in the house as she was not so ill as to prevent her altogether from moving about. Madanlal proceeded to say that Ramkanwari had affection for him and he had been serving her and also maintaining her, Ramkanwari had stayed at his house for the last 10 days preceding her death and she expired at about 10 p. m. or so on the night between 30-12-1963 and 31-12-1963.

5. According to the caveator, both the wills were forged by Madanlal and his associates after the death of Ramkanwari, She proceeded to say that she was a tenant of Ramkanwari in one of her two houses in Peepli-Wali Gali and Ramkanwari was bale and hearty and had been staying at her own house till her death at about 2 or 2.30 p.m. on 30-12-1963. According to her, Ramkanwari bad even gone to cast her vote in the Municipal elections that had taken place that day, but soon after her return she died at her house in Peepli-Wali Gali. When word was sent about her death to her relatives Madanlal accompanied by his mother and a few others came to the house of Ramkanwari and removed her dead body to his own house which was at a distance of about 200 yards from the house of Ramkanwari. She further stated that Ramkanwari and Madanlal were not on speaking terms and there was hardly any question of Madanlal maintaining Ramkanwari or serving her. She even went to the length of alleging that before her death Ramkanwari had declared several times that her nephew Madanlal should not be allowed to touch her dead body. The deceased was troubled by Madanlal or his family and, therefore, she was enraged with him and thus there was no love lost between the two. Consequently, according to Ramniwasi the deceased would not and did not write any will in favour of Madanlal. Further, according to her, Ramkanwari was purchasing her own ration on the basis of her ration card and had all along been living in her own house and it was Ramniwasi herself who was at times serving the deceased; she being her anut ('Bhuwa').

6. Upon the pleadings the learned District Judge framed the following issues:--

'1. Whether the deceased Ramkanwari executed the alleged will and codicil on 21-12-1963? If so whether the will and the codicil are valid?

2. Whether the petitioner has under-Valued the properties of the deceased?

3. Whether the alleged codicil is a will? If so what is its effect?

4. Relief.'

7. Madanlal examined himself and produced three other witnesses namely, P. W. 2 Madanlal son of Daulal, P. W. 3 Govindsingh and P. W. 4 Banshilal for proving the execution of the two documents Ex. 1 and Ex. 2. Ramniwasi examined herself and produced 12 other witnesses. Besides that she produced copies of the relevant entries of the register of the stamp-vendor from whom the stamps had been purchased. Besides that she produced the entries from the ration register.

8. The learned District Judge reminded himself of the principles that should guide a Court in examining the evidence in proof of a will. He referred to:--

1. H. Venkatachala Jyengar v. B. N. Thimmajamma, AIR 1959 SC 443;

2. Ramchandra v. Cham Bai, AIR 1965 SC 354;

3. Gorantla Thataiah v. Thotakura Venkata Subbaiah, AIR 1968 SC 1332;

4. Vellaswamy Servai v. Sivaraman Servai, AIR 1930 PC 24 and

5. Gaindi Lal v. Bhura Mal, ILR (1953) Raj 41.

and observed that if the evidence in proof of a will excites suspicion in the mind of the Court as to its genuineness, then it is for the propounder of the will to remove the suspicion and he is to establish affirmatively that the testator knew and approved of the contents of the will. If propounder fails to remove the suspicion then the Court ought not to pronounce that the document expresses the true will of the deceased.

9. The learned Judge then proceeded to examine the evidence. He held that it had been established by the evidence of Madanlal and his witnesses that Smt. Ramkanwari used to live with the propounder during her lifetime and that no other relations of her looked after her comforts. In reaching this conclusion, the learned Judge relied on the evidence of P. W. 3 Govind Singh in particular. He also relied on the statement of the propounder Madanlal. The learned Judge further held that the will had been executed by the deceased Smt. Ramkanwari. In this regard the learned Judge accepted the evidence of the scribe Madanlal (P. W. 2) and that of P. W. 4 Banshilal, brother of the propounder Madanlal. The learned Judge further found support from the circumstance that the other persons related to Smt. Ram-kanwari, namely, Banshilal, Jabroji, Moolchand, Nemichand, Daulal, Mst. Joghiya, Mst. Indria and Chhaganlal had not come forward to file any caveat against Madanlal's claim for grant of letters of administration in respect of the estate of the deceased on the basis of the will and the codicil although notices were given to them. The learned Judge observed that if Ramkanwari had not made a will of her entire estate in favour of Madanlal petitioner these persons and his own brother Banshilal would have surely come forward to contest the claim of the petitioner for grant of letters of administration in respect of Ramkanwari's estate because under the law they were also entitled to succeed to her properties. The learned District Judge did not place reliance on the statement of Smt. Ram Niwasi and her witnesses that Ramkanwari died at her own house and that her dead body was taken away by Madanlal propounder in tonga to his own house. Further the learned Judge observed that the witnesses of the caveator, namely, Ramchand, both Ramdayal and Anantram were related to one Anantram son of Laxminarayan goldsmith, who was the person at whose instance the escheat proceedings were launched before the Collector. The learned Judge, therefore, did not accept their statements as correct. About the statement of Shri Surat Raj (D. W. 2), the learned Judge observed that it was of no help to the caveator. The learned Judge observed that Shri Surat Raj. Advocate, had met the deceased about three days prior to 30th December, 1963, while he was canvassing for his election as a member of the Municipal Board, but Shri Surat Raj had not seen Smt. Ramkanwari casting her vote on that day, that is, 30th December, 1963. Further the learned Judge observed that Shri Surat Raj had learnt of the death of Mst. Ramkanwari from one Sukhraj and Anantram. Having considered the evidence of the cavcator the learned Judge observed:--

'From a careful scrutiny of the entire evidence led by Mst. Ram Niwasi I am not convinced that there are such circumstances as may excite the suspicion of the court relating to the execution of the will or codicil.'

10. As the statements of two of the defence witnesses require particular notice I may pause to say as to how the learned District Judge has viewed them. One was Mangilal (D. W. 13). The witness stated that Smt. Ramkanwari had her own ration card and she used to purchase her ration on the basis of that ration card from the shop of the witness. The witness further stated that the deceased Ramkanwari was living in her own House No. 15 in the Pipli-Wali Gali. The deceased had last purchased her ration on 20-12-63, that is, exactly 10 days before her death. Regarding his testimony the learned Judge observed:--

'It is possible that Mst. Ramkanwari lived with the petitioner and got her rationcard prepared in the ward in which her house was situated. Over and above all it is not established by the evidence of Mangilal that after 20-12-1963 she lived in her house and died there.'

11. Another important witness was Mohanraj (D. W. 7). He was a stamp-vendor from whom certain stamps ostensibly for writing out a will or wills and an agreement, were purchased. He stated that three stamps one of Rs. 3/-, one of Rs. 1.50 and one of Re. 0.50 were sold by him to the propounder Madanlal in the name of Ramkanwari widow of Nainuram on 28-12-63. At first the witness wrote the name of Madanlal propounder as the purchaser, but then Madanlal asked him to write the name of Ghanshyam son of Daulal instead and get Ghanshyam's signature against the entry in the register. The witness proceeded to say that on that very day two more stamps of the value of Rs. 1.50 each and two of the value of Re. 0.50 each were purchased in the name of Ramkanwari deceased by one Satyanarayan son of Daulal. The witness, however, expresed his inability to say definitely that propounder Madanlal had really come to him for the purchasing of the stamps in the company of other persons. Regarding the testimony of this witness the learned District Judge observed:--

'Apart from this, if his evidence is taken to be true it does not create any suspicion in the mind of the court relating to the execution of the wills because Madanlal petitioner in his cross-examination clearly stated that stamps were purchased by Satyanarain on 28-12-1963 at the instance of Mst. Ramkanwari who had given him 4 or 5 rupees for making such purchases. As stated earlier, Madanlal scribe clearly stated on oath that stamps were given by Mst. Ramkanwai to him for writing the wills. Bansilal also corroborated version of Madanlal petitioner on this point. His evidence is that Mst. Ramkanwari gave Rs. 5/- to Satyanarain for purchasing stamps and that Satyanarayan brought stamps at about 12 in the noon. Even if Madanlal petitioner accompanied Satyanarain to the Sstamp-vendor it is not suspicious circumstance because Mst. Ramkanwari being a woman was not expected to go to the stamp vendor for making purchases of the stamps and because the wills were written on the stamps purchased by Satyanarain son of Daulal as is evident from the notes of the stamp-vendor made in the two wills.'

12. As regards the state of mind of the testatrix and her health at the time of the execution of the alleged wills, the learned Judge observed that there was ample evidence on the record to show that the mental condition of the testatrix was good at the relevant time and that she had the mental capacity to realise the significance of her action. The learned Judge added that apart from theevidence of the petitioner and his witnesses, there was the evidence of Mst. Ram Niwasi herself that the physical condition of the deceased was not bad or weak at the time of hep death or prior to it. Consequently the learned District Judge had no hesitation in holding that Mst. Ramkanwari made the two wills in favour of the petitioner while she was in a fit disposing state of mind and that there was no circumstance to excite the suspicion of the court relating to the execution of the wills.

13. The other issues too were decided against the caveator.

14. In the result the learned District Judge granted the letters of administration with the wills annexed to the propounder.

15. In assailing the judgment of the learned District Judge, learned counsel for the appellant-caveator has contended that the learned Judge has not appreciated the evidence properly. He had discarded the evidence of the caveator without cogent reasons and had accepted the evidence of the propounder even though his witnesses were interested persons and further there were suspicious circumstances surrounding the execution of the will. In particular stress was laid on the circumstance that there were a number of stamps purchased for the writing out of the will and the propounder Madanlal had very much participated in the preparation of the will. Further the scribe Madanlal was under the influence of one Murliram, who was related to the propounder and then the only other attesting witness who was examined was none other than the real brother of the propounder. He is P. W. 4 Banshilal. Thus, argues learned counsel, the evidence led by the propounder not being of disinterested persons, should not have been accepted as sufficient. Apart from this learned counsel emphasised that the way in which the documents Ex. 1 and Ex. 2 had come into existence show manipulation on the part of those, who had participated in the preparation of the wills. Then learned counsel submitted that the contents of the will Ex. 1 were factually incorrect in that it had been wrongly mentioned therein that it was the propounder Madanlal, who alone was supporting the deceased and looking after her comforts. Then learned counsel laid weight on the circumstance that none of the thumb impressions of the deceased on any of the two wills Ex. 1 or Ex. 2, were clear. They were all blurred and indecipherable and that again created a strong suspicion about the genuineness of the wills.

16. Learned counsel for the respondent contests the stand taken by the learned counsel for the appellant and has tried to support the judgment of the learned District Judge. Learned counsel pointed out that the view taken by the learned trial Judge regarding the credibility of the witnesses and the effect of the evidence shouldnot be lightly disregarded, as the learned Judge bad the advantage of seeing the witnesses and note their demeanour while recording their statements, whereas in appeal only the dead record of their statements was before the court. Learned counsel stressed the fact that Mst. Ramkanwari was a child widow and the will cannot be said to be an unnatural one when it was in favour of one of her own nephews, who was looking to her comforts. Apart from this learned counsel submitted that the very fact that more than one document were written out and they contain as many as five thumb marks, far from creating the suspicion against the genuineness of the will, made the execution of the will 'of the deceased probable, as a forger would do the minimum forgery if he had to forge anything and would not go out for more than one document embodying the will, and have five thumb marks on them. Then he urged that obsequies of the deceased were performed by the propounder Madanlal and if was he who incurred the expenses for the customary post-death feast in the community. This, submits learned counsel, he would not have done if there were no will in bis favour. Then the learned counsel laid stress on the circumstance that the mourning was held at the house of none other than Madanlal, where all people who were related and others from the community came for funeral and condolence. Then it was further noteworthy, according to learned counsel, that none of the other nephews or nieces of the deceased had come to oppose the grant of letters of the administration to Madanlal. As regards the thumb impressions, learned counsel pointed that they seem to have been taken from an ink-pad usually kept by the goldsmiths in connection with their business and as another kind of ink was used, clear impressions could not be caused on the two documents. As regards the evidence of the stamp-vendor, learned counsel submitted that Madanlal had not gone to purchase the stamps, but it seems that the stamp-vendor misunderstood the person, who had gone for purchasing the stamps while answering the query of the stamp-vendor as to in whose favour the document was to be written and then the stamp-vendor under the impression that the person who had come to purchase the stamps, was the person in whose favour the document was to be written, noted his name in the sales register, but as soon as this mistake was discovered, the person Ghanshyam gave his name and Madanlal's name was scored out and Ghanshyam's name was noted instead. Even so, those stamps were not used and immediately thereafter fresh stamps were purchased by one Satyanarayan. Thus, according to learned counsel, there was no suspicion in the matter of purchasing of stamps. As regards the evidence of Mangilal, the ration dealer, learned counsel submitted that it could very well be that on 20th December, 1963, the deceased went to purchase her ration, but that would not mean that she had not gone to live or was not living at the time of her death with her nephew Madanlal.

17. Now, no doubt the learned District Judge has extracted the principles that should govern the approach of a probate court in the matter of proof regarding the execution of a will correctly. In AIR 1959 SC 443 their Lordships of the Supreme Court pointed out that the party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act were relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting. Then further the evidence has to conform to the standard of Section 68 as if it is a document which was required by law to be attested. This section lays down that a document required by law to be attested, shall not be used as evidence until one attesting witness at least has been called for the purposes of proving its execution. These are the general provisions relating to the manner of proving a document.

18. Then so far as the wills were concerned Sections 59 and 63 of the Indian Succession Act were also relevant. Thus in the case of a will there are additional requirements. A will has to be proved in the first instance like any other document, but over and above it the special requirements of attestation prescribed by Section 63 of the Indian Succession Act, have to be proved., The test to be applied regarding the proof of the will, will be the usual test of the satisfaction of the Court as a prudent person in such matters. There is, however, one special requirement in relation to wills, that it shall be the duty of the propounder to remove all; suspicions about the execution or disposing state of mind of the testator. In certain events the legitimate doubt as to the mental capacity of the testator, may not be removed. Various circumstances are required to be considered, namely, dispositions made in the will appear to be improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions 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 on the propounder to prove the will very heavy; and, unless it is satisfactorily discharged, the Court shall be reluctant to treat the document as the last will of thetestator. Where a caveat is filed alleging certain facts in respect of the execution of the will propounded, such facts or pleas may have to be proved by the caveator, but, even without such facts or pleas the 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.

19. It was, inter alia, pointed out that where the propounder in execution of the wills is conferred substantial benefits under it and he participates in the preparation of the will, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.

The test in the case of there being suspicious circumstances is the test of satisfaction of judicial conscience. It only emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

20. Now the two versions one given by the propounder regarding the circumstances attending the execution of the will and the other given by caveator Smt. Ram Niwasi are diametrically opposed to each other. If one is true the other is necessarily false, that is if Smt. Ram Kanwari was hale and hearty living at her own house till midday of 30th December, 1963, and had never been to the house of propounder Madan Lal then the will cannot be a genuine document. Likewise if on the 28th of December, 1963, Smt. Ramkanwari was at the house of the propounder and had executed the will as alleged then the evidence led by the caveator cannot be true. In judging the two versions the court has necessarily to go by the rule of probabilities in such matters. I may confess straightway that the evidence led by the caveator does not sound convincing in many respects. If Ramkanwari were hale and hearty and all along living at her house and had not been to Madanlal's house what earthly reason could there be for such an almost persistent anxiety on the part of Madanlal to purchase the stamps for the will on the 28th December, 1963. Once the entry in the stamp-register was made in the name of Madanlal and then Madanlal's name had to be scored out and the stamps were issued to Ghanshyam. That too was not found to be useful and shortly thereafter two further stamps ostensibly for the wills were purchased by Satyanarayan. This is suggestive of the fact that all was not well with Mst. Ramkanwari and her death was expected in the near future. The learned District Judge has been at pains in dealing with the evidenceof the caveator. Of course as I have already observed the statement of the ration dealer and the stamp-vendor stand on a different footing and the circumstances furnished by their testimony will be dealt with hereinafter closely.

21. So far as the story of the deceased being enraged with Madanlal on account of Madanlal's father misappropriating the ornaments of the deceased and the deceased consequently declaring to one and all that Madanlal should not touch even the dead body of the deceased is concerned it is almost a cock and a bull story. A child widow who had grown to the age of 80 and had no other relation in her husband's family, would naturally be having affinity with the family of her own parents. I fail to see why the widow would go to the extent of pronouncing loudly that her nephew Madanlal should not touch even her dead body; should she die some day as the was bound to. Therefore, I am not at all impressed by this kind of testimony.

22. Nonetheless it has got to be examined whether the documents Ex. 1 and Ex. 2 have been proved according to law, that is whether it has been proved that the thumb impressions on the documents were those of late Ramkanwari and that she had executed the two documents when she was in a fit state of mind and able to comprehend what she was doing. It has also to be seen whether there were such suspicious circumstances surrounding the execution of the will or about the disposing state of mind of the testator as need be dispelled by the propounder so as to satisfy the judicial conscience.

23. I may first take up the evidence regarding the execution of the will Ex. 1. P. W. 1 Madanlal, the propounder, has stated that Mst. Ram Kanwari had died at his house. He was maintaining her and Smt. Ramkanwari had executed the two documents Ex. 1 and Ex. 2 in his favour. The two documents were scribed at the instance of late Smt. Ramkanwari and after the first one was read over to her, she put her thumb impression thereon. According to Murliram he had written the portion E to F about the thumb impression of the deceased at Y and the portion G to H about the thumb impression of the deceased at Z. Thereafter, after the attestation of Ex. 1, the document Ex. 2 was written. That too was read over to Smt. Ramkanwari. She admitted it to be correct and then put her thumb impression thereon. On Ex. 2 Govind Singh (P. W. 3) and one Ambalal put the attestations. He admitted that it was Murliram, who advised him that the wills be got written on stamp-papers and further that two wills be got executed, About the thumb impressions the witness stated that they were got with the ink from an ink-pad. He further admitted that in all five stamps were purchased, fourthrough Satya Narayan and one through Ghanshyam. One stamp was used in writing an agreement in favour of one Narayandas. The witness could not say from which stamp vendor Satyanarayan had purchased the stamps. He also denied that he had accompanied Ghanshyam when he went to purchase the stamps. P. W. 2 Madanlal was the scribe of the two documents Ex. 1 and Ex. 2. He stated that he had scribed Ex. 1 at the instance of the deceased, which was read over to her and the deceased having admitted it to be correct, appended her thumb mark on it. Thereafter the document was got attested and then the second document Ex. 2 was written out. Likewise, it was also read over to the deceased and she put her thumb mark on it and then got It attested from Ambalal and Govindsingh. The attestation was done in the presence of the deceased. P. W. 3 Govind Singh was an attesting witness in respect of Ex. 2. He stated that he had attested Ex. 2 at the instance of the deceased in her presence. He further stated that the deceased had put her thumb mark on Ex. 2 in his presence. There are two thumb marks on it. Regarding the first, the witness stated that it was already there, but the deceased admitted it to be her own and then after the attestation the second thumb mark was put by the deceased. P. W. 4 Banshilal is the brother of the propounder. He stated that the will Ex. 1 was written out at the instance of deceased Ram-kanwari. She had put her thumb mark, X and Y on it. He attested it at her instance and after the attestation the deceased had again put her thumb mark at Z on it. Further, according to the witness the deceased Ramkanwari was alright at the time and sitting on a cot. About Ex. 2 he stated that this was written in his presence and Smt. Ramkanwari had put her thumb mark on it and further got it attested by Ambalal.

24. Now if we were to apply the standard of proving a document then it can certainly be said in the present case at their face value that the documents are proved by this evidence. Further it can be said that the testatrix could understand what she was doing. However, there are certain disturbing elements in the circumstances surrounding the execution of these documents, which create a strong suspicion in one's mind about the genuineness of the two documents. The first thing that is unusual to be noticed in this case, is as to why the testatrix would think of executing two wills by keeping designedly the first will vague in some respects and then supplementing it by another will at the same time. It is understandable that after executing a certain will and on account of lapse of time that testator may have second thoughts about his or her affairs and may think of modifying what had already been written. But one rarely comes across a case where the testator right from the beginning thinks of executing two wills,keeping one will deliberately vague or wanting in some respects and then designedly executing another will to make good the so-called deficiencies. This aspect of the matter struck me right from the very beginning and it had exercised me a good deal. Learned counsel for the respondent could not furnish any convincing explanation as to why this had been done.

25. Then if one turns to the testimony of the stamp-vendor as also to the entries made by him in his sales register, one comes across another curious feature. According to the stamp-vendor Mohanraj (D. W. 7) on 28-12-63 at serial No. 176, three stamps, one of denomination of Rs. 3/-, another of Rs. 1.50 and the third one of Re. 0.50 were purchased from him in the name of Smt. Ramkanwari widow of Nainuram per Madanlal son of Hariram. Then Madanlal got his own name scored out and the name of Ghanshyam was written instead. Then Ghanshyam signed the entry regarding the sale of the stamp. Then at serial No. 178 on the same date two stamps of Rs. 1.50 each and two stamps of Re. 0.50 denomination each for the purpose of two wills were again purchased in the name of Smt. Ramkanwari widow of Nainuram through one Satyanarayan son of Daulal. He further stated that two persons had come to him at the time of purchasing stamps. When Madanlal propounder was shown to the witness he stated that perhaps Madanlal was one of the persons who had come to him. In between the sale of stamps in the name of Smt. Ramkanwari, the same day on two occasions another person had purchased a stamp at serial No. 177. This shows thai there was some interval between the purchase of the two sets of stamps in the name of Smt. Ramkanwari. The witness was cross-examined. He stated that whatever Madanlal had spoken had been written by him in the register and when he asked him to put his signatures, he said to him that this should be done by Ghanshyam. It was then that he scored out the name of Madanlal putting the name of Ghanshyam instead. He further stated that he deposed all this on the basis of the entry in his register. This only means that the stamp vendor was able to recollect whatever he could on the basis of the entry he had made. The witness had further stated that on the second occasion Satyanarayan alone had come and that too he was saying on the basis of the entries in his register. Regarding the entry at serial No. 176 the witness stated that in the same column he had shown the purpose of the stamp as will as well as for an agreement, as desired by the purchaser. According to the witness, it is for the purchaser to state the purpose for the stamp and he as stamp vendor writes as is spoken to him. The witness admitted that he did not know the name of Madanlal and whatever he was saying was on the basis ofthe entries in his register. He did not even know his name as Madanlal or his residence.

26. Learned counsel for the respondent suggested that because the name of Madanlal was mentioned as the person in whose favour the document was to be written, the stamp vendor had on account of some misapprehension written out the name of Madanlal through whom the same was said to be purchased on the first occasion, but really Madanlal had not gone to the stamp-vendor. I have considered this possibility but then the suggestion cannot explain the entry about the 'Ikrarnama' just below the entry for the noting the purpose of the document as 'will' in the same column. 'Ikrarnama' was never to be written in favour of Madanlal, but it was to be for some one else. It is true the recollection of the stamp vendor is based on the entries that he had made, but there is no reason to doubt him when he stated that two persons had come to him on the first occasion and one Satyanarayan alone on the second occasion. Of the two who went first one would in all probability be Madanlal. The question here arises as to why right from the beginning so many stamps for the purpose of the will were being purchased. This circumstance is connected with the circumstances of the execution of the two wills. This was in itself out of the normal.

27. Then again one cannot lose sight of the fact that of the five thumb impressions on the two documents Ex. 1 and Ex. 2 none is clear enough to admit of identification or comparison. To start with on seeing the thumb marks with the help of a magnifying glass I could not say at least for four thumb impressions that they would be thumb impressions at all. The fifth one at Z in Ex. 1 did appear to be a thumb mark, but on a further examination with the help of an eye glass it appeared that marks X and Y could also be thumb marks. So could be the mark Y in Ex. 2. But about mark X in Ex. 2, I am still unsure. So these are the three circumstances, which have created a suspicion in my mind about the genuineness of the two documents. In spite of exercising myself I find that these suspicions have not been satisfactorily dispelled by the propounder.

28. Learned counsel for the appellant further stressed the circumstance that the contents of the documents Ex. 1 and Ex. 2 do not correspond to realities in that whereas Mst. Ramkanwari used to purchase her own ration, it has been written in the document that it was Madanlal, who was maintaining her. This is debatable. The widow could live with her nephew and while she would be living at his house, it is not unlikely that he would be looking after her and therefore Madanlal could claim that as the widow was boarding with him whenever she lived at his house he was maintaining her. Smt.Ramkanwari being an old widow, might go to her people for some time but at other times might live at her own house. The ration register shows only entries about the purchase of sugar, which appeared to be the commodity in short supply at that time, but I do not think that foodgrains were not freely available in those days and could not be purchased without a ration card. Any way I need not dwell on this circumstance much. As already observed, an old widow, who had no other near relations in her husband's family, would be having a natural affinity with her own nephews or nieces. The will in favour of propounder looked at from this angle cannot be characterised as an unnatural one.

29. Learned counsel for the respondent, as already observed, pointed out that the opinion of the learned trial Judge regarding the evidence should not be lightly disregarded. I have very much kept this consideration in view, but I find that the suspicious circumstances pointed out by me above have not received the attention of the learned District Judge. What the learned District Judge seems to have done is that after discarding the evidence of the caveator as unsatisfactory, he put his conclusion thus:

'From a careful scrutiny of the entire evidence led by Mst. Ram Niwasi I am not convinced that there are such circumstances as may excite the suspicion of the Court relating to the execution of the will or codicil.'(passage already quoted in the beginning).

This shows how the mind of the learned Judge was working. According to him as the evidence led by Smt. Ram Niwasi was not convincing, there were no circumstances as may excite the suspicion of the Court relating to the execution of the will or codicil. Suspicions are not excited or arise from what the caveator has proved or failed to prove. They arise here on account of the inherent circumstances brought in by the propounder himself and which exist in relation to the execution of the will. Therefore, on account of these suspicions I am not satisfied that Ex. 1 or Ex. 2 were the last wills of the deceased Smt. Ramkanwari. The propounder was, therefore, not entitled to have the letters of administration with the wills annexed.

30. In the result I allow this appeal, set aside the judgment of the learned District Judge, Jodhpur, and dismiss the respondent's application for grant of letters of administration with the wills annexed. The parties are, however, left to bear their own costs throughout.


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