Sheogobind Singh v. Rajeshwari Kuer — 1962 DIGILAW 81 (PAT)

Judgment U.N.Sinha, J. 1. This appeal has been preferred by the appellants whose application for letters of administration of a will, dated 21-2-54 has been dismissed by the learned Additional District Judge of Shahabad. On 15-2-55, the appellants had filed a petition for grant of a probate of the will of one Komal Singh, dated 21-2-54, Komal Singh having died on 20-6-54. The objector to this application was one Mosammat Rajeshwari Kuer, who has described herself as the widow of Komal Singh deceased. Ultimately, by an order dated 14-9-59, the applicants for probate were permitted to amend their petition, describing it as a petition for probate or letters of Administration. 2. On objection having been filed by Mosammat Rajeshwari Kuer, the case was numbered as Title Suit No. 9 of 1955 __________ 1 of 1959. The facts are these. According to the two plaintiffs, Komal Singh was their maternal uncle and he had executed the will in question on 21-2-54 with respect to the properties mentioned therein. It was alleged that Komal Singh was then in a sound state of body and mind and that he had executed the will after being fully aware of its contents. The will was duly attested by witnesses and, therefore, the plaintiffs are entitled to probate or letters of Administration in respect of the will. 3. The case of Mosammat Rajeshwari Kuer was as follows. It was alleged that she was the widow ot Komal Singh and one Chandra Singh was the adopted son of Komal Singh. It was alleged that the plaintiffs were not the bhaginas of Komal Singh. According to her case, the will in question was a forged and fabricated document and it was not properly executed or attested. It was contended that there were circumstances to show that no will could have been executed by Komal Singh in. favour of the petitioners. According to Mosammat Rajeshwari Kuer, Komal Singh had no property left with him at the time of his death and, therefore, there was nothing to administer. 4. On the allegations of the parties, the following three issues were framed by the learned trial judge, viz.; 1. Was the will duly executed and was the testator (Komal Singh) of sound mind at the time he executed the will? 2. Is the will a valid and genuine document? 3. 4. On the allegations of the parties, the following three issues were framed by the learned trial judge, viz.; 1. Was the will duly executed and was the testator (Komal Singh) of sound mind at the time he executed the will? 2. Is the will a valid and genuine document? 3. Are the plaintiffs entitled to any probate of the will or letters of Administration? 5. With respect to issue No. 1, it was not disputed on behalf of Mossammat Rajeshwari Kuer, that, Komal Singh was of sound mind at the time of the execution of the alleged will on the 21st February 1954. This issue has, therefore, been answered in favour of the appellants. Issue No. 2 has been answered in the negative, the learned judge having held that the appellants had failed to prove that the will in question was a genuine document and that it had been executed by Komal Singh, issue No. 3 has, therefore, been decided against the appellants. 6. Learned counsel for the appellants has submitted that the learned Judge was in error in holding that the appellants had not been able to prove that the will in question was a genuine document and that it had been duly executed by Komal Singh. It is urged that the evidence of the witnesses examined on behalf of the appellants to prove due execution of the will should have been accepted, as there is no reason to hold that these witnesses have come forward to give false testimony in the case. Learned counsel has urged that, as a matter of fact, the evidence of P. Ws. 1,2 and 3, who are the material witnesses in this case, have really been rejected by the learned Judge, on what he has stated as circumstances, going to prove that it was unlikely that Komal Singh would have executed a will in favour of the appellants. According to learned Counsel, if there is nothing against the evidence of the relevant witnesses to reject their testimony, investigation into circumstances, to arrive at the genuineness or otherwise of a will, is foreign to the scope before the court and the learned trial judge has committed an error in placing reliance whatsoever on mere circumstances, for a conclusion adverse to the appellants. Reliance has been placed by learned counsel in this context to the case of Ishwardeo Narain Singh v. Smt. Kamta Devi, AIR 1954 SC 280 . 7. On the other hand, learned counsel for the respondent has submitted that the learned judge has rightly rejected the testimony of the appellants witnesses and that circumstances dealt with by him in paragraphs 7 to 15 of his judgment, for his conclusion to the effect. That the will could not have been a genuine document, executed by Komal Singh. In this context, learned counsel for the respondent has relied upon the decision in the case of Mt. Ramanandi Kuer V/s. Mt. Kalawati Kuer AIR 1928 PC 2. 8. Before I consider the contentions raised by the learned counsel for the parties with respect to the so-called circumstances dealt with by the learned Judge, will deal with the evidence of the relevant witnesses, examined by the parties. (After discussing the evidence His Lordship proceeded). It appears to me that the evidence of P. Ws. 1, 2, 3 and 6 prove fully that Komal Singh had executed the will in question and that the will is a valid and genuine document. 9. Then there remains the evidence of the two hand writing experts examined by the respective parties. The expert examined on behalf of the appellants is Nasrat Hussain (P.W. 5) and the expert examined on behalf of the respondent is Bishwanath Ojha (D.W. 9). The opinion of these two experts happen to be diametrically opposite to each other. According to P. W. 5, the will in question was executed by Komal Singh and, according to D. W. 9, the will in question could not have been executed by Komal Singh. The learned trial judge has held that the opinion given by P. W. 5 is not based on sufficient materials and that the opinion given by D. W. 9 is more convincing. The learned Judge has also, upon a comparison made by himself come to the conclusion that the letters of the signature of Komal Singh in the will are somewhat different in character from the letters of the signature in some other admitted document. The learned Judge has also, upon a comparison made by himself come to the conclusion that the letters of the signature of Komal Singh in the will are somewhat different in character from the letters of the signature in some other admitted document. After a comparison of the evidence of P.W. 5 and D.W. 9, it appears to me that in view of the diametrically opposite opinion given by these two experts it is not possible to prefer the opinion of one to the other. One opinion given by P. W. 5 is to the effect that, on a comparison of the signature of Komal Singh on the will and his signature on a registered mortgage bond dated the 23rd Feburary 1950, it appears that the formation of letter with their natural variation inter se, specially in letters da, ka, Ma, Sa, Ha, and ba are the same in both. D.W. 9, on the other hand, had also examined Komal Singhs signature on the will with the same mortgage bond and his opinion is to the effect that the signatures were not the products of the same hand. It appears to me that, on the facts of this case, it will not be safe to accept either the evidence of P.W. 5 or of D.W. 9 for coming to any conclusion with respect to the genuineness or otherwise of the signature of Komal Singh on the will in question. The learned trial judge has compared, as stated above, the signature on the disputed will with the signature on the unregistered memorandum of partition. But it must be remembered that the memorandum of partition was executed in the year 1950, whereas the will was executed in 1954, where Komal Singh was aged about 80 years. If, therefore, there is a slight variation between the signatures of the years 1950 and 1954, that cannot be a conclusive circumstance to hold that the will in question is not genuine and that four persons have falsely given evidence on oath that Komal Singh had in fact executed the will in their presence. The other witnesses examined on behalf of the defendant, have been examined on other points unconnected with the actual execution of the will. 10. The other witnesses examined on behalf of the defendant, have been examined on other points unconnected with the actual execution of the will. 10. Coming to the circumstances upon which reliance has been placed by the learned trial judge for his conclusion that the will could not have been a genuine document, it appears to me that these circumstances can be of no assistance in the present case. Their Lordships of the Supreme Court have laid down in Ishwardeo Narain Singhs case, AIR 1954 SC 280 , that the Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. It has been laid down that the question whether a particular bequest is good or bad is not within the purview of the Probate Court. If the evidence of P. Ws. 1, 2, 3 and 6 is accepted and if it is held that the evidence of P. W. 5 and D. W. 9 can be of no assistance in arriving at the genuineness or otherwise of the signature of Komal Singh on the will in question, then the circumstances considered by the learned trial judge cannot be of any consequence in a Court of Probate. The decision in Mt. Ramanandi Kuers case, AIR 1928 PC 2, relied upon by the learned counsel for the respondent, is quite distinguishable on its own facts. The circumstances considered by their Lordships of the Privy Council were not considered in the abstract, for coming to a conclusion that the will in question there could not have been a genuine document. The circumstances there were taken into consideration for a definite conclusion that the evidence adduced in support of the genuineness of the will was unacceptable. In Mt. Ramanandi Kuers case, AIR 1928 PC 2, two attesting witnesses had been examined to prove that the will was genuine, whereas two other attesting witnesses had admitted their signatures on the will, but had alleged that their signatures had been obtained by false representations as to the nature of the document. In Mt. Ramanandi Kuers case, AIR 1928 PC 2, two attesting witnesses had been examined to prove that the will was genuine, whereas two other attesting witnesses had admitted their signatures on the will, but had alleged that their signatures had been obtained by false representations as to the nature of the document. Then, in that case, there was the crucial point as to where the testator, Alak Prakash, was on the 2nd February 1913, the date of the alleged will, whether at Patna or in Bihar? The plaintiffs case was that on that date Alak Prakash was in Patna. The defendants case was that Alak Prakash had come to Patna not on the 2nd February but on the 4th or 5th of February. Their Lordships of the Privy Council held that Alak Prakash was in Patna on the 2nd February 1913 and not in Bihar. Under these circumstances, their Lordships of the Privy Council held that the will propounded in that case was a fabricated document. In the instant case, no circumstance considered by the learned trial judge can lead to the irresistible inference that Komal Singh had not executed the will in question on the 21st February 1954 in presence of P. Ws. 1, 2 and 3. All that can be said, as the learned trial judge has himself stated, is that under the circumstances considered by him, it was unlikely that Komal Singh would have executed the will, with respect to the properties in question, in view of some other documents brought on the record. But, as stated above, the Probate Court is not concerned with such circumstances. Whether Mosammat Rajeshwari Kuer was actually married to Komal Singh and whether Chandra Singh had been adopted by Komal Singh have no direct bearing on the genuineness of the will in question. The registered deed of gift (exhibit C) of the year 1930 and a sale deed (exhibit H/2) dated the 23rd April 1954 have also no material bearing on the question as to whether the will in question is genuine or not. In the court below, there was a controversy as to whether the deed of gift had been acted upon or not and as to whether the other document (exhibit H/2) was a forged document or not. These controversies cannot possibly be solved in the present proceeding. 11. In the court below, there was a controversy as to whether the deed of gift had been acted upon or not and as to whether the other document (exhibit H/2) was a forged document or not. These controversies cannot possibly be solved in the present proceeding. 11. In my opinion, upon a consideration of the relevant evidence adduced by the parties, it must be held that the will (Exihibit 2) dated the 21st February 1954 had been duly executed by Komal Singh in accordance with the provisions of law. The will must be taken to be genuine. The appellants are, therefore, entitled to a Letters of Administration with a copy of the will annexed. 12. In the result, the appeal succeeds, the judgment and order of the learned Additional District Judge is set aside and it is hereby ordered that a Letters of Administration will be issued to Sheogovind Singh and Sheopujan Singh, with a copy of the will dated the 21st February 1954 executed by Komal Singh annexed. Under the circumstances, there will be no order for costs of the appeal. The parties will bear their own costs through out.