JUDGMENT
Sunil Ambwani, J.
1. The Testamentary Case No. 14 of 2005 was converted into Testamentary Suit No. 12 of 2006. It was decided ex-parte on 14.11.2005 granting ‘Letters of Administration’ to the plaintiff-Munni Lal Chaurasia of the estate of his brother late Chunni Lal Chaurasia with the will dated 21.12.2004 attached. The order was recalled on 27.4.2006 on the application of defendants.
2. Late Chunni Lal Chaurasia, son of late Shri Pancham Lal Chaurasia, R/o House No. 163/328 Mohalla Malakpura District Mahoba, died an unnatural death. He was a victim of crime and was murdered in his house at Mahoba on 15.1.2005. Shri Munni Lal Chaurasia his real younger brother, resident of 332 Nai Basti Kydganj, Post Office Sadar, District Allahabad, filed this testamentary suit alleging that his deceased brother had executed a notarial will dated 21.12.2004 in his favour. The wife of the deceased had predeceased him on 6.9.2004. They had no issue. The deceased was the eldest amongst the four brothers. He loved and showered affection on the applicant as his son. Since the very beginning when their father died, the deceased took care of the plaintiff and got him married. The plaintiff was studied at Allahabad and served as a lecturer in Girls High School & College, Allahabad and was living at Allahabad. The deceased visited plaintiff very frequently. The plaintiff also visited Mahoba where the deceased was living, very often, and used to look after his brother; bhabhi and their properties.
3. The plaintiff alleged that he took care of the deceased, whenever he fell ill and was regularly checked up by the doctors at Allahabad. The deceased was very pleased with the plaintiff. The will was witnessed by Shri Vinay Kumar Verma and Ghanshyam Ji, who have filed their affidavits and have thereafter appeared as witnesses to prove the will, which was the last will of the deceased.
4. Notices were sent to Shri Dharamdas Chaurasia and Shri Shaym Lal Chaurasia, the other two brothers of the deceased. They filed their objections which were treated as written statement in the suit. In their objections dated 27.5.2006 and 31.7.2006, they have denied the plaint allegations of love and affection between the plaintiff and the deceased. It is stated that the plaintiff was permanently residing at Allahabad and that he rarely visited Mahoba. He had no interest at Malioba. He was not at all associated with the deceased and that the deceased never visited the plaintiff at Allahabad. The deceased always lived at Mahoba with his wife and was always treated by the doctors at Mahoba. The alleged will was never executed by the deceased. The witnesses of the will were very closely associated with the plaintiff and that their affidavits are false. The deceased never made any request to the Cooperative Bank to make the plaintiff as his co-account holder and it appears that he has manipulated the letter of request by the deceased. It is further alleged in para 14 to 15, 20 and 23 that the plaintiff shifted to Allahabad long ago, and is residing at Allahabad with his family. He had no agricultural property or any other interest at Mahoba and so he rarely visited Mahoba. The deceased had great love and affection for his brothers Shri Shyam Lal Chaurasia and his family and Dharam Das Chaurasia-defendants. The deceased was very much pleased with Shri Shyam Lal Chaurasia due to services rendered by him and had great love and affection for him. The deceased had openly stated in the presence of the family members that he will give his property to the objector Shyam Lal Chaurasia. The deceased was residing with the plaintiff, who was looking after him during his illness. The plaintiff was in a dominating position and misused his position to obtain unfair advantage for himself by fabricating the will. The consent was caused by coercion, undue influence, misrepresentation and by playing fraud on the deceased.
5. With the consent of parties following issues were framed on 24.8.2006:
(i) Does the applicant Munni Lal Chaurasia prove the due execution and attestation of a will dated 21.12.2005 executed by late Sri Chunni Lal Chaurasia (the deceased) in his free and disposing mind?
(ii) The relief to which the application is entitled.
6. Both the parties led documentary and oral evidence.
7. The plaintiff filed the receipts issued by Jan Sahkari Avas Samiti Ltd Allahabad dated 31.5.1984; receipt of Rs. 2000/- tor allotment of land in favour of Chunni Lal Chaurasia through Munni Lal Chaurasia dated 31.5.1984; receipt of Rs. 3000/- deposited by late Chunni Lal Chaurasia, address shown 332, Nai Basti Kydganj, Allahabad dated 28.10.1984; Letter from Sahkari Samiti addressed to Chunni Lal Chaurasia, 332 Nai Basti Kydganj, Allahabad dated 18.10.1984; Letter from Sahkari Samiti addressed to late Chunni Lal Chaurasia, 332 Nai Basti Kydganj, Allahabad dated 28.12.1984; Letter from Sahkari Samiti, addressed to late Chunni Lal Chaurasia, C/o Munni Lal Chaurasiya, 332 Nai Basti Kydganj, Allahabad dated 16.12.1986; Envelop (UPC) address late Chunni Lal Chaurasiya, 332, Kydganj, Nai Basti, Allahabad; Envelop (UPC) address late Chunni Lal Chaurasia, c/o Munni Lal Chaurasia, 332, Kydganj, Nai Basti, Allahabad; Post Card address at 332 Nai Basti, Kydganj, Allahabad: Post card address at 332 Nai Basti Kydganj, Allahabad dated 19.10.1987: Pass Book Hamirpur Zila Sahkari Bank Ltd, Mahoba, saving A/C joint A/c of late Chunni Lal Chaurasia and Munni Lal Chaurasia; Photographs of late Chunni Lal Chaurasia and mother of the applicant at Allahabad, 332 Kydganj, Nai Basti, Allahabad; Prescription of Ganga Nursing Home Allahabad of the wife of late Chunni Lal Chaurasia dated 28.4.1996; Prescription of Ganga Deep dated 31.10.2004; Medicare Services Pvt Ltd Dr. O.P. Gupta dated 10.11.2004 of late Chunni Lal Chaurasia dated 22.12.2004; Prescription of Ganga Deep Medicare Services Pvt. Ltd Dr. O.P. Gupta of Late Chunni Lal Chaurasia dated 25.4.2005; Blood Report of Late Chunni Lal Chaurasia at Dr. Veenu Saxena dated 21.12.2004; blood report of late Chunni Lal Chaurasia at Dr. Veenu Saxena dated 2.4.2003; notice for the prescribed authority under regulated area Mahoba. Copy to applicant Munni Lal Chaurasia holding as in possession owner the property dated 23.6.2005; Reply of notice by the applicant dated 24.6.2005; notice by prescribed authority under Regulated Area Mahoba to the applicant dated 24.6.2005; Reply of the notice by the applicant dated 28.6.2005; Notice by prescribed authority under regulated area Mahoba to the applicant dated 24.6.2005; Reply of the notice by the applicant dated 28.6.2005; Application by applicant praying for the giving the map passed by regulated area dated 29.6.2005; Receipt of return of money of golden chain which was under pledge dated 20.4.2005; Affidavit of late Chunni Lal Chaurasia before the Branch Manager for adding the name of applicant for operating locker dated 22.9.2004; Invitation Card for last rites of late Chunni Lal Chaurasia by the applicant; Deposit receipt of Gun of late Chunni Lal Chaurasia by Munni Lal Chaurasia dated 14.4.2005; Receipt of payment of House Tax by applicant; Photographs of marriage of applicant showing late Chunni Lal Chaurasia and during death of wife of late Chunni Lal Chaurasia.
8. The defendants have filed the diary of the year 1975 of Shri Shyam Lai; certified copy of the Khatauni of 1910F to 1415F relating to plot No. 00132; objection filed by Shyam Lal Chaurasia son of late Pancham Lal on 10.8.2005 before the Sadar Lekhpala against the mutation application field by the applicant Chuni Lal Chaurasia for mutation of his name over the properties of the deceased Munni Lal Chaurasia, on the basis of an unregistered will; Water Tax receipt dated 31.3.2005 of house No. 11 situated in Mohalla Malakpura, district Mahoba (Old No. 209); Water Tax receipt dated 29.3.2006 of house No. 11 situated in Mohalla Malakpura, district Mahoba (old No. 209); Form for obtaining telephone connection; Voter List 2005 of ward No. 20 Qasba Thai District Mahoba of house No. 163; Voter List 2000 of Ward No. 22 Qasba Thai, District Mahoba of the house of the defendant No. 2; House Tax receipt dated 18.9.1996 of house No. 11 (old No. 209); certified copy of the house tax assessment register of the year 2000 in respect of house No. 11 (old No. 209): Certified copy of the house tax assessment register of the year 2000 in respect of house No. 209; revenue receipt of 1962; Revenue receipt of 1963; Revenue receipt of 1966; a photostate copy of the affidavit dated 4.12.1999 of late Chunni Lal Chaurasia filed before the Chairman/Secretary of Mahoba Urban Cooperative Bank Ltd, Mahoba, standing as guarantor for the payment of the loan advanced by Mahoba Urban Cooperative Bank Ltd, Mahoba to Jageshwar Lal Chaurasia, son of Shyam Lal Chaurasia; a photstate copy of the affidavit dated 11.12.1999 of late Chunni Lal Chaurasia, filed before the Chairman/Secretary of Urban Co-operative Bank Ltd, Mahoba standing as guarantor for the payment of the another loan advanced by Mahoba Urban Cooperative Bank Ltd, Mahoba to Jageshwar Lal Chaurasia son of Shyam Lal Chaurasia; Identity card of Munni Lal Chaurasia, issued by the University of Allahabad; Money order of Rs. 150/- of the year 1975; certificate dated 28.9.2005, issued by the Supply Inspector in respect of ration card No. 015892; A true copy of the questionaire issued by manager, Hamirpur District Cooperative Bank Ltd dated 6.4.2004 certifying that Chunni Lal Chaurasia had invested an amount of Rs. 55000/- jointly in the name of his wife Beni Bai and his niece Km. Shobha Kanta, daughter and younger brother of Shyam Lal Chaurasia, in fixed deposit on 20.6.1998; Agreement dated 29.1.1972 of the deceased Chunni Lal Chaurasia made in favour of his wife Smt. Leelawati; A true copy of the certificate dated certifying that new house number of house No. 209 since the year 2001, is house No. 11.
9. The plaintiff examined himself as PW-I: Vinay Kumar Verma-attesting witness to the will dated 21.12.2004 as PW-2: Shri Rameshwar Prasad Bhargavaa neighbour of the plaintiff as PW-3 and Shri Mangal Singh Chaurasia resident of village of the deceased at District Mahoba as PW-4.
10. The defendant-Shyam Lal Chaurasia examined himself as DW-1; Smt Sheela Devi as DW-2; Shri Dharam Das Chaurasia as DW-3 and Shri Krishna Chandra Chaurasia, resident of village of the deceased at Mahoba as DW-4. All the witnesses were subjected to the cross examination.
ISSUE No. l
11. The deceased was real elder brother of the plaintiff and died as victim of crime. He was murdered on the night of 14/15.1.2005 at his residenc at Malakpura district Mahoba. His wife predeceased him on 6.9.2004 without leaving any issue. The plaintiff has set up a notarial will dated 21.12.2004 by which the deceased bequeathed his entire properties detailed in the will including his house, Kisan Vikas Patras: the amount in the account of District Cooperative Bank and his agricultural holdings which also included the agricultural holdings inherent by his wife from his father-in-law late Basant Lal Chaurasia. The will declares the plaintiff to be the only legatee of his entire properties including the houses, agricultural land, Kisan Vikas Patra; NSC, bank accounts and the properties inherited by his wife to the plaintiff. The will gives details of the account numbers, plot numbers and house numbers and their khasra and khatauni numbers; the kisan vikas patra and NSC numbers. The document is notorised through Shri Vidya Sagar Gupta, Notary No. 404 dated 21.12.2004 at 01.12 PM in the court compound at Allahabad and was witnessed by Shri Vinay Kumar Verma, Advocate, Civil Court, Allahabad. It is signed by the deceased on both the sides of the will. The defendants have not denied the signatures of the deceased on the will.
12. The will is sought to be proved by Shri Vinay Kumar Verma aged about 57 years, son of late Shri Uma Nath Verma, attesting witness and scribe of the will. In his affidavit filed in examination-in-chief he has stated that the will was written under the direction and full attention and knowledge of the deceased. He was in his disposing mind at that time and had executed the will without undue influence and coercion by any one. The will was read over and explained to late Chunni Lal Chaurasia and after his full attention and satisfaction late Shri Chunni Lal Chaurasia made his signatures on two pages of the will in presence of the deponent and other witnesses Ghanshyam Ji. When the deponent signed the will late Shri Chunni Lal Chaurasia and Shri Ghanshyam Ji were present and when it was examined and signed by the deceased both he and late Chunni Lal Chaurasia were present. When the will was executed by late Chunni Lal Chaurasia and signed by the witnesses, the papers were presented before the notary Shri Vidya Sagar Gupta, who attested in their presence. Shri Rameshwar Prasad Bhargava PW-3 lived as tenant in a part of the house in which plaintiff lives and stated that he is acquainted with the plaintiff for last 25 years. His elder brother late Chunni Lal Chaurasia used to come several times in a year along with his wife. After his wife died he was alone. The plaintiff used to visit his elder brother at Mahoba in all his vacations and festivals. Late Shri Chunni Lal Chaurasia always treated plaintiff with love and affection and that plaintiff treated him like a father. Shri Mangal Singh Chaurasia PW-4 is resident of Malakpura District Mahoba. He stated that the father of the plaintiff died in his younger age. The plaintiff was looked after, educated and married by late Chunni Lal Chaurasia. Both had great affection towards each other. Shri Chunni Lal Chaurasia was not keeping good terms with his other brothers Shri Dharamdas and Shyam Lal Chaurasia and that they were doing agricultural separately. The plaintiff used to visit Mahoba in all vacations and that his brother late Chunni Lal also used to visit Allahabad along with his wife and used to live for several times. The plaintiff used to look after his elder brother and had expressed a desire that the plaintiff should be his successor of the properties.
13. The cross examination of all the plaintiffs witnesses has not brought about any contradiction in their statements. They struck to their statement and could not be shaken up. In the cross examination of the plaintiff as propounder of the will by Shri Bal Krishna Narain, Advocate for the defendant it was stated by him that he took B.Sc. and LLB degree from the University of Allahabad. When he was studying law, he was serving as Lecturer in Dr. K.B. Jaiswal Inter College and then as Lecturer in Maths in Girl High School upto year 2000. His brother used to visit him for his treatment since 1992. He was suffering from diabetes. He used to come at Allahabad on 16.12.2004. Shri Bal Chandra is his nephew. He had gone to Vindhyachal on 16.12.2004. When his brother had come to Allahabad, his brother had brought some documents along with him. Before the witness came to Allahabad, his brother visited Shri Vinay Kumar Verma, Advocate. The deceased had known Shri Vinay Kumar Verma through Dr. Maya Devi Srivastava, the ‘Mohboli’ sister of the witness. The deceased visited Dr. Maya Devi Srivastava very often. He had met Shri Vinay Kumar Verma, Advocate at their place. He was in good health when he came to Allahabad. He went for a check up. The situation at Mahoba was not good after the death of the wife of the deceased and as such the witness did not go to Mahoba that year. On being asked as to what was wrong, the witness stated that the wife of the deceased used to look after the affairs of the house and after her death, the house was not in order. The witness denied that the deceased had married some lady called Leelawati during the life time of his wife. The deceased was murdered 21 days after execution of the will. In the investigation, the police did not ask him about the execution of the will. The other relatives were told about the will. The witness however did not disclose it to his brothers. He did not find it necessary to inform the police about the execution of the will.
14. The plaintiff further stated in the cross-examination that the deceased was an educated person. He had read the draft of the will which was typed by the typist at Kutchery. The draft was prepared at Kutchery and was thereafter typed. It was signed by the deceased on the table of their Advocate. The will was prepared on the instructions of the deceased. When the deceased had gone to Kutchery, he was carrying a bag. There was ‘bahi khata’, ‘khasra’ and ‘khatauni’ in the bag. At the time of execution of the will, the deceased was in good health and was keeping good memory. The numbers of the Kisan Vikas Patras were written by reference to the documents in his bag. The will was signed by the deceased. He had seen his brother putting signature on the will. After his brother, Shri Vinay Kumar Verma signed on the will and then Shri Ghanshyam Ji had signed. The will was attested by the notary. The plaintiff did not remember whether the deceased had signed on the register maintained by the notary. The witness denied that the deceased had signed some blank papers in the office of Shri Nawal Kishore Saxena, Advocate for filing substitution application to implead his wife in an old consolidation case in which the deceased’s wife was involved. He had never visited Shri Nawal Kishore Saxena along with his brother and denied that he went back to the office oi’ the counsel to bring back the blank papers. He also denied that the will was forged on one of these papers.
15. The witness stated that he had some dispute with his other brothers with regard to land for which there was some ‘marpeet’ in the family as the other brothers did not obey the elder brother. The dispute was with regard to three bighas of land of their mother which the other brothers wanted to keep. The land was situated at Kusmaria. The witness explained as to why the name of his guardian in his photo identity card of the University of Allahabad prepared in 1971 gives the name of Shri Dharam Das. He had given the address as Shri Dharam Das was living where her mother was living and that post used to get lost on the other address. The witness then stated that after the death of his father, his elder brother lived with their mother. Dharam Das and Shyam Lal Chaurasia separated thereafter. The deceased used to live separately from the other two brothers and that Shri Chunni Lal Chaurasia-the deceased provided for expenses of his studies at Allahabad.
16. The plaintiff explained that since there was no time, the will was not registered and then stated that he never forged of getting the will registered. He could not explain as to why the will was executed at Allahabad and not at Mahoba. The witness denied the knowledge of any fixed deposits in the name of his wife and niece Sobha Chaurasia. After he lost his job, he did not have any other livelihood except the teaching. When his brother (the deceased) was murdered, he was at Allahabad. He received information about the murder from Shri Dinesh, his brother-in-law. The deceased had entered his name in the joint operation of account of bank lockers on 22.9.2004, when the witness had gone to Mahoba. The account was opened after the 13th day ceremony of the wife of the deceased. The witness stated that his two brothers did not attend funeral of their mother. They also did not attend the funeral of the deceased’s wife. After the business of growing pan had come to an end, the deceased was doing a very small business of money lending of just Rs. 14000-15000/-. The witness denied that he has brought any lady by the name of Leelawati to Allahabad.
17. Shri Shyam Lal Chaurasia DW-1 and Dharam Das Chaurasia DW-3 have given identical affidavits in their examination-in-chief, proving the contents of the written statement. They have deposed that the deceased always lived at Mahoba and rarely visited the plaintiff, who never looked after the deceased. He was always treated by doctors at Mahoba. The deceased was never pleased with the plaintiff and did not have any love and affection for him. He never executed any will in favour of the plaintiff. The alleged witnesses are closely associated to the plaintiff. The deceased never made any request to the Cooperative Bank to make the plaintiff as his co-account holder. The letter was manipulated. The will is a fake document. The plaintiff is not in possession of the any of the property of the deceased. The plaintiff shifted to Allahabad long ago and is living at Allahabad. He had no agricultural property or interest at Mahoba. The deceased was living at Mahoba and had great love and affection for his brothers Dharam Das and particularly Shyam Lal and his family. Km. Shobha daughter of Shri Shyam Lal was brought up by the deceased as her child. The deceased was old and was unable to care for his properties. His financial affairs were looked after by Shri Shyam Lal and Shri Dharam Das and had openly said in the presence of other family members that he will bequeath all his properties. The deceased was about 75 year’s old and was suffering from ailments. He had gone to Prayag to take a dip at Sangam. He had fallen ill and had stayed for about ten days with the plaintiff. He was not in a fit mental condition and was not well to make any will and to understand his affairs. The plaintiff took unfair advantage and manipulated the lake will which is not genuine. The will is not a registered document and has been obtained by deceitful means. The deceased had contacted second marriage with Smt. Leelawati and no issue was born to him from his first wife Smt. Beni Bai. On the date of his marriage with Smt. Leelawati on 29.1.1972 he had executed an agreement clearly stating that he will be responsible for maintaining Smt. Leelawati and that Smt. Leelawati will inherit half share in his property. The agreement is filed as paper-21. Smt. Leelawati Devi was with the deceased in the night of 14/15.1.2005 when the deceased was murdered. Smt. Leelawati was in the same house. Three day’s after the plaintiff had taken away Smt. Leelawati with him to Allahabad. After his 13,h day ceremony the plaintiff never disclosed to anyone in his stay of about 16 days at Mahoba that the deceased had executed any will. The plaintiff had reached Mahoba in, the evening on 15.1.2004 when the funeral byre was ready to lit. After the death of the wife of the deceased, the wife of the witness cooked for him. The deceased had brought up Km. Shobha as his own child from the age of five to 15 years and had also fixed an amount of Rs. 55,000/- jointly in the name of Km. Shobha and his wife Smt. Beni Bai. The expenses for her education was born by the deceased. The sons of Shyam Lal and Dharam Lal were also very close to the deceased. The omission for provision of maintenance for Leelawati proves that the will is forged and fabricated document. A complaint was lodged with CO. Mahoba against the plaintiff for kidnapping Smt. Leelawati. The plaintiff had good and cordial relations with his brothers. He got the sons of Shyam Lal Chaurasia admitted to class VI in Government Inter College in the year 1990. The third son of Shri Shyam Lal got admitted to Vandana Coaching Institute in the year 2004. The plaintiffs marriage was arranged by the deceased. The 13th day ceremony was performed jointly by plaintiff and other brothers. All the expenses of education of plaintiff upto post graduate were born by Shri Dharam Das Chaurasia and not by the deceased. The deceased, who had also stood throughout for the loans taken by Jageshwar son of Shri Shyam Lal and had mortgaged his house. In the cross examination Shyam Lal Chaurasia DW-1 stated that Dharam Das had left the house after his marriage. After the death of their father the deceased also left the house and started living at Bhoop Chandaka Bara-in a rented house. He constructed his house in 1984. Dharam Das did not get the house given to his father by their nana. He had purchased it for Rs. 1000/-. The plaintiff Munna Lal was serving in Allahabad upto 2002 when he lost his job. He was suspended in the year 2002. Their father used to cultivate pan lives. Their father gave 29 palies of Bareja to Chunni Lal and 23 palies to Dharam Das. Thereafter Dharam Das took 8 palies from Chunni Lal. At present the witness has 61 palies. In 1974 six bighas of land was purchased in Kusmaria. He had given half the money to the deceased for purchasing the land and the expenses of plaintiff’s education were born by Dharam Das. Shobha married on her own outside the caste in 2002. She had run away from the house. The witness denied that they used to beat Shobha on which she would go to their elder brother’s house. The deceased had met all the expenses of marriage of the plaintiff. The witness identified the photographs of marriage of plaintiff. He however could not explain as to why he did not attend the 13th day ceremony of wife of the deceased and suggested that the photographs in which he was present may have been separated. The plaintiff used to live with the deceased in the vacations at Mahoba and then go to his in-laws place. The deceased lived with the plaintiff at Allahabad as well as Shri Ashish son of the witness who lived at Allahabad. The witness stated that she used to look after his deceased brother and his agricultural land and provided money for his homoeopathic treatment at Mahoba and then stated that the deceased had deposited some money with him which he used to spend on him.
18. Dharam Das Chaurasia DW-3 stated that he is not educated. His affidavit was drafted by the advocate on his instructions. He could not say whether he was present when the affidavit was drafted and typed and then stated that he does not know what is written in his affidavit. He does not know much about it. He remembered that he has written in the affidavit that Shyam Lal’s son used to look after Chunni Lal and then stated that he also used to look after Chunni Lai. Chunni Lal separated before their father’s death. He started living in 1957-58 in a rental house and then constructed his own house in which he was murdered. The plaintiff studied at Allahabad. The witness does not know whether he had lost his job in the year 2002. The witness stated that he is living in the house given to his brother by his ‘Nana’. Shyam, Lal lives in his ancestral house. The witness stated that he is about 40-42 Bareja of land given to him by his father in the year 1974. 4 bighas of agricultural land was purchased out of his mother’s money. In 1974 some land was purchased in Kusmaria for which half the money was given by the mother and remaining half by Chunni Lai. Munni Lal did not own any house at Allahabad and lives on rent, lie has land at Mahoba on which he could construct the house. The plaintiff stated that whenever the deceased visited Allahabad, he used to visit Munni Lal. His son also used to assist the deceased. After the plaintiff lost his job, the deceased Chunni Lal used to make arrangement for his livelihood and got his name entered in the accounts.
19. Smt. Sheela Devi-DW-2 states herself to be real sister of Smt. Leelawati, daughter of Parmanand. She made an attempt to prove Paper-21 which is an agreement between the deceased Chunni Lal and Smt. Leelawati Devi that she will be entitled to half the property of the deceased. However, since her marriage she lived along with the first wife Smt. Beni Bai. When the deceased was murdered, she was in the same house. Three days after on the the 13th day ceremony, the plaintiff Munni Lal took away Smt. Leelawati to Allahabad on the pretext of helping her. She deposed that the relationship between brothers was very cordial and she had attended the last rites of Beni Bai which were also attended by her ‘Dewar’ Dharam Das, his sons and daughters and sons and daughters of Shyam Lal as well as plaintiff Munni Lal. The wife of Munni Lal Smt. Kranti did not stay with late Chunni Lal at any point of time. After her death Smt. Jamwati Devi wife of Shyam Lal used to cook for him. In the cross examination Shi la Devi-DW-2 stated that Leelawati-her sister was second wife of Chunni Lal. She visited Babu Lal Chaurasia who lives at Karahi Malehara Chhatarpur. Babu Lal Chaurasia is the first husband of Leelawati. She is mentally retarded. Leelawati left him and married Chunni Lai. Babu Lal is still alive. She has not divorced Babu Lal in any proceedings in court.
20. Shri Krishan Chandra Chaurasia-DW-4 slated in his affidavit that he knows all the family members. Their relations were extremely amicable and affectionate. Both Dharam Das and Shyam Lal had full respect for the deceased-Chunni Lal and his two wives. Chunni Lal had contacted second marriage with Leelawati on 29.1.1972 with the consent of his first wife. They were affectionate to Smt. Leelawati as she was mentally weak. The deceased had agreed to give half share of properties to Smt. Leelawati. On the night when the deceased was murdered Smt. Leelawati was in the same house. Dharam Das and Shyam Lal had made arrangements for performing last rites of the deceased. The plaintiff Munni Lal reached Mahoba in the evening of 15.1.2004 when the funeral pyre was ready to lit. The remaining part of his affidavit is the same as sworn by Shyam Lal and Dharam Das. In his cross examination he stated that he comes to Allahabad very often. Last time he came to Allahabad on 26.12.2007. He had not come on 26.1.2007. He has good relation with the deceased and denied that he has come to give the evidence because he teaches the children of Shri Shyam Lal and that he is teaching in the same school in which they are studying. He denied that the relationship of Munni Lal and Chunni Lal was not cordial and that they never visited Mahoba and stated that Munni Lal used to stay with all his brothers.
21. Shri Narendra Mohan, learned Counsel for plaintiff states that the plaintiff was brought up and his marriage was arranged by the deceased. The plaintiff had looked after the deceased and had taken care of his treatment. The deceased always lived with him at Allahabad and showed affection on him. The deceased was aware that the plaintiff does not have any property at Mahoba and is under financial strain. The deceased applied to the Branch Manager for adding his name for operating lockers on 22.9.2004. The deceased had come to Allahabad, when the plaintiff was visiting Vindhyachal. He had given instructions to his counsel to draft a will. Both of them had gone with the Fixed Deposit Receipts, National Savings Certificates to the Kutchery on 31.12.2004. The will was typed out and was read by the deceased. It was witnessed by Shri Vinay Kumar Verma, Advocate, Civil Court, Allahabad. The deceased had signed in presence of the witnesses and that the witnesses had also signed in presence of the deceased. Shri Vidya Sagar Gupta, Notary had notarized the will. The notaries are not very particular about putting the time and that registers are filled by them according to their convenience giving time whenever last affidavit was sworn. The fact, that notary had put 01.12 PM dated 21.12.2004 and his stamp, will not make any difference while comparing the time. When the deceased reached and got the will prepared in Civil Court at Allahabad, both Shri Vinay Kumar Verma, Advocate, Civil Court and the witnesses to the will were present. They have proved that the deceased had read over and signed the will in their presence and that they had also signed in presence of the deceased. The propounder did not take any extraordinary interest and has proved all the circumstances of due execution of the will by the deceased in his sound and disposing mind. There are no extraordinary of the will.
22. Shri Narendra Mohan further submits that all the brothers was keeping good and cordial relations. The deceased after death of his wife he was looked after by the plaintiff. The plaintiff visited the deceased in all his vacations and looked after him as his elder brother, who had taken care of his education and marriage and treated him like his son and other two brothers had sufficient properties and houses and that the eldest brother wanted to make adequate provisions for the plaintiff. One of the brother was living in the ancestral house and the other brother was given the residential house of their mother who had inherited it from her father. The will was executed in the natural circumstances in which the eldest brother wanted to make sufficient provisions for the plaintiff and his family. The will has been duly proved and that the plaintiff is entitled to the ‘Letters of Administration’ with will attached.
23. Shri Bal Krishna, learned Counsel for defendants, on the other hand, states that the propounder has not removed the suspicion in execution of the will. All the brothers had cordial relations. Smt. Leelawati the 2nd wife of the deceased lived with him. The plaintiff reached Mahoba to attend the last rites of his brother when the funeral pyre was about to be lit. The deceased had brought up Shobha daughter of Shyam Lal as his own daughter and was more affectionate towards her. The other two brothers and their families had looked after the deceased after the death of his wife. Smt. Leelawati was living with the deceased and was brought by the plaintiff at Allahabad. He was required to produce and examine her in evidence.
24. With regard to the will Shri Bal Krishna submits that the details of the plot numbers, Fix Deposit Receipts and NSC numbers given in the will shows that the will prepared with great care. The deceased could not have taken all the documents to Kutchery. They had reached Kutchery in the afternoon. It was highly, unlikely that the will was prepared and was notarised at Ok 12 PM. The witnesses were not known to the deceased. The deceased was murdered 13 days after the execution of the will, which is a circumstance not fully explained by the plaintiff. There was no reason to exclude the brothers and their families in the will.
25. The law relating to proof and due execution of the will by the propounder, where the will is attacked on the ground that the propounder took keen interest in the execution of the will and that the testator did not possess free and disposing mind, is fairly well settled. In H. Venkatachala Iyengar v. B.N. Thimmaiamma , the Supreme Court laid down the principles of onus of proof of the will as follows:
The party propounding a will or otherwise asking 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 are relevant for this purpose. Under Section 67, if a document is alleged to he signed by any person, the signature of the said person must he proved to he in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to he decided in the light of these provisions. It would prima facie be true to sax that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not: and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would he 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 statement of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law.
Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
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 max 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 result 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 he proved by the caveators: but, even without 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.
Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, 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. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience. The lest merely emphasizes that, in determining the question as o 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.
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 no doubt true that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he lias signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case.
26. These principles were reiterated in Rani Purnima Debi v. Kumar Khaeendra Naravan Deb ; Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee ; Ramchandra Rambux v. Champabai ; Pushnavati v. Chandraia Kadamba ; Jaswant Kaur v. Amrit Kaur ; S. Sundarcsa Pai v. Sumangala T. Pai ; Janki Naravan Bhoir v. Naravan Namdeo Kadam ; Pentakota Satyanaravana v. Pentakota Seetharatnam and Madhukar D. Shende v. Tarabai Aba Shedage .
27. While reiterating the principles of proof of will in H. Venkatachala Iyengar’s case (1959). the Supreme Court held in Rani Purnima Debi (1962) that the propounder is required to satisfactorily explain suspicious circumstances before he can get Letters of Administration where the application for registration of will given by the agent of testator for registration on commission on which the Sub-Registrar send his clerk to execute on commission and there was nothing on record to show that the will was read over to the testator before he admitted execution, the broad statement of the clerk that he examined the testator, who admitted execution of the will was not sufficient to dispel serious suspicion attaching to due execution and attestation of the will. The registration of the will is not sufficient to remove the suspicions. The propounder was unable to dispel suspicious circumstances surrounding the execution and attestation of the will and was denied Letters of Administration.
28. In Shashi Kumar Banerjee (1964) the Supreme Court held that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there may be other indications in the will to show that the testator’s mind was not free. In such case, 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. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account.
29. In Ramchandra Rambux v. Chamnabai (1965) the Supreme Court held that in order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses.
30. In Jaswant Kaur v. Amrit Kaur (1977) it was held that burden of proof does not vary with the riches and social prestige of the testator, but habits of life are prone to vary with the means of the man and the privileged few who happen to occupy a high place in the social hierarchy has easy access to competent legal advice. The genuineness of a will, therefore, of a propertied man, well-positioned in society too, does not suffer from the loopholes and infirmities, which may understandably beset testamentary instrument.
31. In Madhukar D. Shende (2002) the Supreme Court quoted Baron Alderson in R. v. Hodge 1838, 2 Lewis CC 227 “The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.” The conscience of the Court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. Conjecture or suspicion should not take the place of legal proof or permit them to demolish a fact otherwise proved by legal and convincing evidence.
32. I have carefully considered the evidence led by the parties and arguments on the issue of due execution of the will by the deceased. The plaintiff has proved that after deceased had separated before their father’s death, the second brother Chunni Lal was living in the ancestral house and that Shri Dharam Das got the house of his “Nana”. Both his brothers had sufficient agricultural holdings for growing ‘pan’ which all acquired from the land after the death of their father. The deceased was the eldest brother and was obeyed by all the brothers. He had looked after by the plaintiff as his son and took care of all his expenses for his education at Allahabad since 1970. He was aware that the plaintiff had no house of his own and did not possess any property at Mahoba. The deceased arranged the marriage of the plaintiff and that both the deceased and the plaintiff visited each other very often. The plaintiff spent all his vacations looking alter his eldest brother at Mahoba. The plaintiff appears to have lost his job and had no income to support his family. After the death of his wife the deceased was looked after by the plaintiff who also took care of his treatment at Allahabad. In these circumstances it was not unlikely for the deceased as eldest brother to make some arrangements for plaintiff after his death. The plaintiff was acquainted with a lawyer, who he would meet whenever he visited plaintiff at Allahabad. He got a will prepared on his instruction in which details of his house, agricultural plots, bank accounts numbers and national savings certificates were given in detail and these documents could only be with the deceased and not with the plaintiff. The draft was typed and the final document was prepared and witnessed in Civil Court at Allahabad.
33. Shri Bal Krishna made great emphasis on the time of drafting and notorising the will. He states that when the deceased reached Kutchery it was late in the afternoon and as such the will could not have been notorised at 01.12 PM. This fact may not put the execution of the will in doubt as it is well known fact and the Court can take judicial notice of the fact that the notaries are not very particular about putting the time on the affidavits. They maintain a running register and put the date and time according to their convenience. The defendants did not make any application to summon the notary in the witness box or his register. The details of the certificates, plot numbers and another description of property given in the will, could only be given by the deceased. There is no suggestion that these documents were kept by the deceased with the plaintiff or that the plaintiff had any occasion to lay his hands on these documents to be brought to Allahabad for the purposes of preparation of the will. The defendants have not denied the signature of the deceased on the will.
34. The relationship of Smt. Leelawati with the deceased was not proved. A suggestion was given that she was mentally weak and had married the deceased under an agreement. These facts are very strange and have not been proved at all by the defendants with reliable evidence. Smt. Sheela Devi (DW-1) admitted that Smt. Leelawati is a married lady. The defendants have not proved that Smt. Leelawati was living with the deceased and that the plaintiff had brought her to Allahabad after the death of the deceased and that she is living with him.
35. The circumstances, in which the deceased died and the investigation by the police in which final report was submitted, have not been proved by the defendants to raise any suspicion on the will. The defendants did not deny that the plaintiff was not present at Mahoba when the deceased was done to death. The fact, that the plaintiff did not tell the police about the execution of the will, is not a suspicious circumstance which may go to raise any suspicion in the matter of the execution of the will. The will has been duly proved to be drafted and executed and signed by the deceased in accordance with the law. It was witnessed in accordance with Sections 67 and 68 of the Evidence Act and Section 63 of the Indian Succession Act by two witnesses who were present and signed in presence of the deceased who had also signed in presence of the witnesses. The plaintiff has proved the due execution of the will, witnessed and executed by the deceased in his sound and disposing mind. The issue No. 1 is decided in favour of plaintiff.
36. With the decision on the issue No. I in favour of plaintiff, he is entitled to the relief of grant of ‘Letters of Administration’ with will dated 21.12.2004 attached.
37. The suit is decreed with costs against the defendants.