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2003 DIGILAW 1362 (RAJ)

Mahaveer Prasad v. Kanta Devi

2003-09-25

BHAGWATI PRASAD

body2003
JUDGMENT 1. - This appeal is filed by appellant Mahaveer Prasad being aggrieved by the decision of the trial Court dated 24.5.1997 whereby application of the appellant for grant of succession certificate under section 372 of the Indian Succession Act, 1925 (for short the Act') was dismissed. According to the applicant, he was adopted by late Shri Kanhaiya Lal on 29.10.1962. A deed of adoption was also executed on 30.10.1962. In the deed of execution for adoption wife of late Shri Kanhaiya Lal Smt. Sohan Bai also signed. Shri Kanhaiya Lal died on 6.1.1992. He had left behind him wife, respondent No. 1 Smt. Sohan Bai, respondent No. 2 Smt. Kanta Devi daughter. who was represented by Smt. Sohan Bai, because of her being deaf and dumb. Smt. Sohan Bai had represented Kanta Devi, as natural guardian. Respondent No. 3 Shri Chhabi Lal is son of Amba Lal Jain, brother of late Shri Kanhaiya Lal Respondent No. 4 is Smt. Shankutala Bai d/o Shri Amba Lal Jain and w/o Satya Prakash being sister of Chhabi Lal. Respondents No. 5 and 6 are the grand daughters of late Shri Kanhaiya Lal being the daughters of Smt. Kanta Bai. 2. Applicant Mahaveer Prasad submitted that the deceased had executed a will on 15.11.1978 and in terms of this will, applicant was designed as the sole successor of the deceased. On the strength of such a will, the applicant had claimed that Oriental Bank of Commerce, a tenant in the house Jain Rashmi Bhawan pays rent to the tune of Rs.1,320/- p.m. Another tenant is Eastern Roadways, who pays a sum of Rs.440/- p.m. and Rs.6,660/- are lying in the Savings Banks Account of the deceased. Thus, an application was made that for the Savings Bank-account of the deceased. Thus, an application was made that for the Savings Bank Account and rent of Eastern Roadways, succession certificate be issued in favour of the applicant. 3. The application for issuance of succession certificate was supported by respondents No. 1 and 2 being wife and daughter of the deceased Shri Kanhaiya Lal. Respondent No. 3 Chhabi Lal and respondent No. 4 Shakuntala Bai had filed objections for grant of the succession certificate. They have not disputed the adoption but stated that the will dated 15.11.1978 is a fabrication. Respondent No. 3 Chhabi Lal and respondent No. 4 Shakuntala Bai had filed objections for grant of the succession certificate. They have not disputed the adoption but stated that the will dated 15.11.1978 is a fabrication. In fact, a will was executed by the deceased on 23.12.1974, which was the last will of the deceased and in terms of this will, the property was appropriated in terms of a map annexed with the will. In this map, property shown in green colour was assigned to Chhabi Lal, property shown in red colour was assigned to Shakuntala Bai. In terms of such assignment, the rent paid by Eastern Road-ways comes in the share of Chhabi Lal and Shakuntala Bai and they are entitled to share the rent paid by Eastern Roadways. It has been prayed by these objectors that the will being fabricated, proceedings should be taken in relation to this will under section 190 Cr.PC. Respondent No. 5 Smt. Vijay Laxmi has also said that the will dated 15.11.1978 is fabricated. She has also asserted that the will dated 23.12.1974 was the last will. She has said that in the will dated 23.12.1974. she also was assigned some part of the rent to be received from the Oriental Bank of Commerce because in that property, she also has been given a share. Respondent No. 6 Smt. Kanchan Devi has admitted that the applicant was adopted by the deceased but the last will of the deceased was executed on 23.12.1974 and in that will, she was assigned some part of the premises rented out of the Oriental Bank of Commerce, therefore, she is also entitled to receive share in that. 4. On the pleadings of the parties three issues were framed. Issue No. 2 was deleted on 10.2.1996. At the trial, witnesses were examined by parties to support their case. Documentary evidence was also tendered in evidence. 5. On behalf of the applicant, the appellant examined himself as AW-1, Mr. P.S. Mamlik AW2, Mohan Lal AW3, and Mangi Lal AW4. In defence, the defendants have examined DW 1 Achyut as expert, NAW2 Smt. Shakuntala, NAW3 Vijay Laxmi, NAW4 Chhabi Lal, NAW5 Ashok Kumar, NAW6 Kamal Lal and NAW7 Satya Prakash. 6. 5. On behalf of the applicant, the appellant examined himself as AW-1, Mr. P.S. Mamlik AW2, Mohan Lal AW3, and Mangi Lal AW4. In defence, the defendants have examined DW 1 Achyut as expert, NAW2 Smt. Shakuntala, NAW3 Vijay Laxmi, NAW4 Chhabi Lal, NAW5 Ashok Kumar, NAW6 Kamal Lal and NAW7 Satya Prakash. 6. The trial Court after consideration of the material on record and after examining the testimony of the witnesses, came to the conclusion that the applicant had persuaded the deceased by deceit to sign on two blank papers and thereafter got the will typed on these papers. Thus, has held that the will s a fabrication. Issue No. 3 has been decided in favour of the respondent objectors. It has also been held that the will dated 23.12.1974 was the genuine will and, therefore, they are entitled to receive the succession certificate. 7. During the course of hearing, it was also proposed that the expert opinion regarding the signatures of Shri Kanhaiya Lal be got examined from Forensic Science Laboratory of the State. The report of the Forensic Science Laboratory has been received and it has been opined that the signature on the will dated 15.11.1978 is similar with the admitted signature of Shri Kanhaiya Lal. Thus, the opinion of the Forensic Science Laboratory was in consonance with the opinion of the expert produced by the objectors DW1 Achyut as far as the signature of late Shri Kanhaiya Lal Is concerned. 8. The learned counsel for the appellant assailing the judgment of the trial Court, submitted that the trial Court has erred in dealing the questions, which were relevant for deciding the dispute in between the parties so much so that issue No.2, which reads as under was deleted by a detailed order dated 19.2.1996: " D;k LoxhZ; Jh dUgS;kyky us fnukad 23-12-1974 dks viuk olh;rukek fu"ikfnr djkdj iath;d] mn;iqj ds ;gka fMiksftV djk;k Fkk vkSj ;gh olh;rukek LoxhZ; Jh dUgS;kyky dk vafre ,oa oS/k olh;rukek gS\ " 9. This issue was relating to the will dated 23.12.1974. This issue was not tried and deleted. There was no scope for any succession certificate being issued to the objectors on the strength of will dated 23.12.1974. This issue was relating to the will dated 23.12.1974. This issue was not tried and deleted. There was no scope for any succession certificate being issued to the objectors on the strength of will dated 23.12.1974. The 25 issue in this regard having been deleted, the trial Court could not have passed any order in this regard and having made such an order, the trial Court has erred in granting the succession certificate in favour of the objectors respondents No. 3, 4, 5 and 6. 10. There are four documents signed by the deceased: (i) adoption deed dated 1110.1962 Ex.1 (ii) first will a registered document dated 1.11.1962, (iii) second will unregistered document dated 23.12.1974 Ex.D/1, and (iv) third will an unregistered dated 15.11.1978 Ex.2. In terms of the expert opinion available on record, the signatures on the documents are of late Shri Kanhaiya Lal. Such opinion available is admissible under section 45 of the Evidence Act. 11. Challenging the findings of the learned trial Court that Ex.2 is not a properly executed document, the learned counsel for the appellant stressed that this finding is based on improper appreciation of documents on record. The learned counsel has submitted that Ex.2 will dated 15.11.1978 is written on a stamp paper at page , which bears the signature of the testator. Regarding this document, stand of the objectors was that the signatures are forged whereas the expert NAW 1 Achyut has opined that the signatures are of the deceased. Thus, the expert produced by objectors being an expert of the handwriting has opined in favour of the appellant that the signatures belong to the deceased. But in his opinion, he has further said that due to different spacings at two pages, the will is a forgery. 12. Under Section 45 of the Evidence Act, the opinion of the expert is addressable on the subject of which he claims to be the expert. That evidence of the expert NAW1 produced by the appellant regarding hand writing is in favour of the appellant. Other part of the evidence that due to spacings. the will Ex.2 is a forgery, is the opinion, which is beyond the competence of this witness. Thus, under section 45 of the Evidence Act, the same is not admissible. The trial Court has fallen in error in relying on the testimony of this witness. 13. Other part of the evidence that due to spacings. the will Ex.2 is a forgery, is the opinion, which is beyond the competence of this witness. Thus, under section 45 of the Evidence Act, the same is not admissible. The trial Court has fallen in error in relying on the testimony of this witness. 13. To substantiate his opinion that the will is a forgery, this witness has referred in this regard illustration (c) of Section 45 of the Evidence Act, which reads as under: "The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant." 14. Thus, on the strength of the evidence of NAW1, it could not have been held that on account of the spacings, the will is a forgery. 15. Another aspect which has prominently come to the fore in this case is about the attestation of the will. The will is alleged to have been attested by two witnesses, one Shri Mangi Lal and another by Shri Kanhaiya Lal. Regarding attestation by Shri Kanhaiya Lal Kunawat, NAW7 Satya Prakash a relative of Shri Kanhaiya Lal has stated that the signatures are not of Shri Kanhaiya Lal. NAW-6 Kemal Lal has also disputed the signatures of Kanhaiya zo Lal. The trial Court has found that the evidence produced on behalf of the applicant of Mohan Lal and Mangi Lal is not trustworthy. Both these witnesses and the appellant were in tile employment of the appellant, therefore, they are not independent witnesses. Son of the attesting witness Kanhaiya Lal, who was residing at Udaipur, was not produced and in turn, Mangi Lal, who was an employee of the applicant, has been produced. 16. The learned counsel for the appellant has assailed the finding of the trial Court on the ground that Mohan Lal one of the attestators has been produced in evidence. He has supported the case of the applicant. He has claimed that the signature is of the attestator and there is nothing in his statement, which discredits his statement.. Merely because, about some dates, this witness had fumbled, it cannot be said that his attestation is of no worth. There stand every probability of adding of memory. He has supported the case of the applicant. He has claimed that the signature is of the attestator and there is nothing in his statement, which discredits his statement.. Merely because, about some dates, this witness had fumbled, it cannot be said that his attestation is of no worth. There stand every probability of adding of memory. He has admitted his signature on the will and an attestator cannot do anything more than that. 17. As regards the testimony of Kanhaiya Lal Kunawat, the expert witness of the appellant has only pointed out dissimilarities. When there is positive evidence on record to show that the signatures were of Kanhaiya Lal then the expert opinion should give way to the positive evidence. The same having been deposed on behalf of the applicant by AW3 and AW4. Discarding them on such ground, which is not known to the standards of appreciation of evidence would not be a proper exercise of jurisdiction. 18. The learned counsel for the appellant has further submitted that NAW6 Kamal Lal was produced by the objectors to establish that the signatures of Kanhaiya Lal are not his signatures and Kanhaiya Lal as fumbled in his testimony. He cannot be considered to be a witness in terms of Section 47 of the Evidence Act. Similarly, NAW7 Satya Prakash cannot be a witness of worth. 19. The learned counsel for the appellant has strenuously contended that the case of the applicant has been supported by respondent No.1 wife of the deceased in her written submission. She is the most important person and can be considered to be the one having the most specific knowledge about the last intention of the deceased, being wife. She was the one who had adopted the applicant along with the deceased. Adoption in itself was the mode of assignment of property to the adoptee son. Thus, not only the fact of adoption by the deceased but the fact of support by the mother also leans in favour of the applicant that the will was a genuine one and he is entitled to get the succession certificate. 20. Per contra, the learned counsel for the respondents submitted that while examining the validity of a will, the Court is required to look into whether there are suspicious circumstances. In the instant case. suspicious circumstances exist in abundance. 20. Per contra, the learned counsel for the respondents submitted that while examining the validity of a will, the Court is required to look into whether there are suspicious circumstances. In the instant case. suspicious circumstances exist in abundance. The same have not been repelled by the propounder for obtaining succession certificate. In this relation, the learned counsel for the respondents has relied on a Supreme Court decision in to Gurdial Kaur & Ors. v. Kartar Kaur & Ors., JT 1998(3) SC 37 . He has deleaned on the following observations of the Hon'ble Court. "Court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstance. the obligation is cast on the propounder of the will to dispel suspicious circumstance." 21. Suspicious circumstance obtaining in Ex.2 as pointed out by the learned counsel for the respondents can be seen from the following factors. The, stamp papers on which the will was alleged to have been typed was ply chased on 5.10.1977 yet the date of the will is said to be 15.11.1978. Th, re is no explanation as to why this delay had occasioned. Further the learned counsel for the respondents pointed out that who was the purchase of the stamp paper, has not been established. No person has been produced to establish that this stamp paper was purchased by him for being used for the purpose of a will to be executed by Kanhaiya Lal. Thus, the most important witness who could say something about the desire of the testator that he wanted to execute the will has not produced. He could have conclusively established that the stamp was purchased at the instance of testator. Further the case of the learned counsel for the respondents is that who was the scribe of the will, has also not been established. The typist who typed the will, has not been produced. He could have deposed as to who asked him to type and could establish at whose instance the will was made. Further the case of the learned counsel for the respondents is that who was the scribe of the will, has also not been established. The typist who typed the will, has not been produced. He could have deposed as to who asked him to type and could establish at whose instance the will was made. Thus, typist having been withheld, a very important piece of evidence has not been produced. 22. Applicant has claimed that the will was given to him by his mother, wife of late Shri Kanhaiya Lal after the death of Shri Kanhaiya Lal. She has not come in evidence. Had there been substance in the claim of Mahaveer Prasad, she would have definitely come in the witness box to support the applicant. The learned counsel for the defence has further assailed that the attesting witness Mangi Lal AW3 has fumbled about the date of execution of the will. He has also failed to give correctly the mode of writing the date. The as date is handwritten and not typed as has been claimed by this witness. This witness has also stated that the testator had said that he had committed the mistake in 1974, which he wanted to correct but such is not the ground given in the will. In the will, it has been stated that due to change of heart, he is executing a new will. 23. The learned counsel for the appellant has further submitted that the will becomes suspicious because mother of the applicant i.e. wife of the deceased testator and the deaf and dumb daughter, who were the natural heirs, have been disinherited. It has further been submitted by the learned counsel for the respondents that an amount of Rs.47,686.50 mentioned in D/1 has been taken away by the appellant. Therefore, he is a dishonest person. The learned counsel for the respondents has also submitted that there is a factual mistake in Ex.2. The first will was executed on 30.10.1962 whereas it has been described in Ex.2 to have been executed on 1.11.1962. Had it been written at the instance of Kanhaiya Lal. such mistakes would not have come. 24. 'Witness Mohan Lal has denied his signatures on Ex.D/1, which shows that he is not an independent witness. It has further been urged that if the propounder of will takes much part in execution then it becomes a suspicious circumstance. 25. Had it been written at the instance of Kanhaiya Lal. such mistakes would not have come. 24. 'Witness Mohan Lal has denied his signatures on Ex.D/1, which shows that he is not an independent witness. It has further been urged that if the propounder of will takes much part in execution then it becomes a suspicious circumstance. 25. It is important to note that the earlier documents executed by Kanhaiya Lal were scribed by the registered writers but the alleged will executed in 1978, which is the subject matter of this controversy a registered petition writer has not scribed it. Thus, 1978 will appears to be a definite forgery. The erasers and corrections have not been mentioned at the bottom of the documents which a will writer mentions when he writes a will. Thus, also this document becomes suspicious. The expert though has admitted that signatures on Ex.2 are of the testator but this is a forged document because the first page is typed in double space and the second page is in single space. This shows that it was done to accommodate the space available on the paper. It is also important to note that in this document at page No. 1 the date was blank and had been filled in by hand. Thus, this is a suspicious and unnatural document. The appellant has failed to explain as to why there is different spacing in typing on both the pages. The suspicion could be removed by producing cogent evidence but such witnesses have been withheld. 26. It has further been submitted on behalf of the respondents that in the will testator's signatures are important. But if there is attestation, then presence of the attestator and genuineness of the signature of attestator is also a factor which has to be established. According to the trial Court, Mohan Lal has not been held to be reliable witness because he has given contradictory statements at many places in his evidence, most important being the date of execution of the will. The other attestator of the will is Kanhaiya Lal Kunawat, who having expired could not be produced. Witnesses have been produced on behalf of the defendants, who have said that the alleged signatures are not signatures of Shri Kanhaiya Lal Kunawat. Therefore, the trial Court has held that these are forged signatures. The other attestator of the will is Kanhaiya Lal Kunawat, who having expired could not be produced. Witnesses have been produced on behalf of the defendants, who have said that the alleged signatures are not signatures of Shri Kanhaiya Lal Kunawat. Therefore, the trial Court has held that these are forged signatures. AW4 Mangi Lal is nephew of the second attestator, who has been produced to prove the signatures of Kanhaiya Lal Kunawat but his son has not been produced to prove his signature by propounder and the defendants have produced NAW7 Satya Prakash a close relative of the testator. He has said that the signatures are not of Kanhaiya Lal Kunawat although NAW6 has said that Kanhaiya Lal Kunawat has not signed and at some places those signatures are different. He knows the signatures of Shri Kanhaiya Lal Kunawat because he has worked with him. 27. According to the learned counsel, both the attesting witnesses have found to have not attested the will. Thus, the case set up by the propounder so of the will becomes unworthy of credit. The propounder of the will was required to prove that at the time the will was written, testator was fit, he understood what he is writing and such writing was intended by him. When all these factors are proved, then a will can be considered to be a genuine will. 28. In the instant case, according to the evidence available on record, Kanhaiya Lal had, earlier executed a will in favour of the entire family. It cannot be said that he intended to exclude all other persons with whom the position, a natural suspicion arises against the execution of the will It has further been submitted on behalf of the respondents that Ex.D1 will executed on 23.12.1974 was a duly executed and registered will. It was a genuine document filed by the executant before the competent authority. This will having been admitted by both the parties no suspicion can be said to arise to about this will. 29. It has also been submitted on behalf of the respondents that it is wrong that 1978 will has not been claimed to be a forgery. Witnesses Chhabi Lal and Shakuntala have specifically submitted in para No. 3 of the reply that 1978 will is not genuine and that is why the original was got produced. 29. It has also been submitted on behalf of the respondents that it is wrong that 1978 will has not been claimed to be a forgery. Witnesses Chhabi Lal and Shakuntala have specifically submitted in para No. 3 of the reply that 1978 will is not genuine and that is why the original was got produced. It was produced in Court after the objectors made a prayer The respondents have also tried to clarify their position that it would not be correct to say that there was no cross examination regarding the typing anamoly of Ex.2. There was a pointed cross examination that whole of the document Ex.2 will was forged. The forgery lies exclusively in the perpetrator's knowledge and, therefore, 20 nothing can be said that these questions were not raised by the defendants. 30. The learned counsel for the respondents has further urged that the trial Court had the advantage of recording the evidence and, therefore, was better equipped to decide having noticed the witness deposing. The expert produced by the respondents has also supported the case of the defendants. Karnal Lal and Satya Prakash have said that signatures of Kanhaiya Lal Kunawat are not there and the trial Court has found that his signatures are forged. Thus, it cannot be said that the will was attested by two witnesses. In this background, the trial Court was right in not accepting the will to be a genuine one. 31. There had been a verification made on Ex.2 will, which is a circumstance which raises suspicion because such verification by the testators are generally not made. This verification only speaks of earlier existing signatures of the testator on paper which were required to be somehow established to be justified. Therefore, this verification has come into being. 32. The respondents have also submitted that Kanhaiya Lal used to sign as Kanhaiya Lal Jaisingoth but in this will he has described himself as Kanhaiya Lal Jain, which shows that the will has been prepared at the instance of such person who was not conscious of the specific caste of the deceased. Propounder being an adopted son has used the generic name. Propounder being an adopted son has used the generic name. property had been distributed in 1974 in all the blood relations and in 1')78 will, the widow and daughter had been left at the mercy of the propounder of the will Thus, it has been prayed that the appeal be 33. The learned counsel for the appellant had raised the argument that rice signatures of the testator are proved, the certificate be granted to the propounder of the will. The will being properly signed, cannot be disputed on the contingency of circumstance stressed by the respondent objectors and believed by the trial Court. Suspicion is such an element that is very difficult so to be replaced by reason. It was also pointed out by the learned counsel for the appellant that the expert NAW1 Achyut. who has been heavily relied upon by the trial Court to say that the will Ex.2 is a forgery, was not an expert for the opinion, which has been made the basis to hold the will as forgery. 34. Per contra, the respondents have urged that from the suspicious circumstances circling around the will, unless the suspicious circumstances are displaced, no action should be taken on the basis of such a will, which is being propounded. To establish their case, the respondents have relied on a Supreme Court decisions in H. Venkatachala lyengar v. B.N. Thimmajamma & Ors., AIR 1959 SC 443 wherein the Hon'ble Supreme Court has held as under: "It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on will, 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." 35. 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." 35. To support their case, the respondents have further urged that the Hon'ble Supreme Court in another case relying on H. Venkatachala Lyengar's case (supra) has held as to what should be that nature and standard of evidence required to prove a will. In the case of Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors., AIR 1977 SC 74 , the Hon'ble Supreme Court has held as under: "It is not as if the burden of proof varies 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 have easy access to competent legal advice. Normally therefore, a genuine will of a propertied man, well-positioned in society too, does not suffer from the loopholes and infirmities which may understandably be set testamentary instruments." 36. On the strength of a case decided by the Hon'ble Supreme Court in the matter of Guro (Smt.) v. Atma Singh & Ors., (1992) 2 SCC 507 , the learned counsel for the respondents stressed that the will in question was not written by a regular deed writer. Such a will may be prepared at any time. There being suspicious circumstances existing, the initial onus was very heavy on the propounder. The same having not been discharged, the appellate Court while exercising the appellate jurisdiction should not interfere in the findings of fact. On the same line, the learned counsel for the appellant has relied on another Supreme Court case in the matter of Kalyan Singh v. Smt. Chhoti & Ors., AIR 1990 SC 396 and has submitted that when the legatee was the sole beneficiary in the will and no share was given to the wife of the testator, it raised a serious doubt of genuiness of the will. 37. In judging the genuineness of the will, the executor cannot be called to deny or accept the execution. What becomes important is that the propounder has to establish the same by trustworthy and unimpeachable evidence. 37. In judging the genuineness of the will, the executor cannot be called to deny or accept the execution. What becomes important is that the propounder has to establish the same by trustworthy and unimpeachable evidence. The learned counsel for the respondents has further stressed that the attestation has not been proved by satisfactory evidence. To support his argument, he has relied on a Supreme Court decision in N. Kamalarn (Dead) & Anr. v. Ayyasamy & Anr., 2001 WLC (SC) Civil 621 : (2001) 7 SCC 503 . In this connection, another Supreme Court decision in the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003(1) WLC (SC) Civil 421 : (2003) 2 SCC 91 has also been relied by the learned counsel. It has been held in this case that attestation by two witnesses is mandatory. 38. The learned counsel for the respondents has further submitted on the strength of a Supreme Court decision in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120 that unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or that there is a sufficient balance of improbability to displace his opinion as to where the credibility I lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. 39. To stress the question of suspicion, on the strength of the case decided in the matter of Gorantla Thataiah v. Thotakura Venkata Subbaiah & Ors., AIR 1968 SC 1332 , the learned counsel for the respondents has submitted that if a will is prepared under the circumstances which weigh suspicious, it is not to be acted : upon. The case should be judged in the circumstances of each case. 40. The learned counsel has further relied on a case decided by the Hon'ble Supreme Court in the matter of Santosh Hazari v. Purshottam Tiwari (deceased) by L.Rs. 2001 WLC (SC) Civil 186: (2001) 3 SCC 179 and stressed that when there is conflicting evidence, unless there are special features, the appellate Court should not interfere with the findings of the trial Judge. 2001 WLC (SC) Civil 186: (2001) 3 SCC 179 and stressed that when there is conflicting evidence, unless there are special features, the appellate Court should not interfere with the findings of the trial Judge. The Hon'ble Supreme Court observed as under: "The rule is that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate could (sic Court) should not interfere with the finding of the trial Judge on a question of fact." 41. A reference has also been made of a case decided by the Hon'ble Supreme Court in Rani Purnima Debi & Anr. v. Kumar Khagendra Narayan Deb & Anr., AIR 1962 SC 567 and stressed that in suspicious circumstances if a will is executed. the mere registration would not be sufficient to hold it admissible. 42. I have heard the learned counsel for the parties and have given my thoughtful consideration to the rival submissions. 43. The first point which is to be noticed in this case is that the respondent objectors have been granted succession certificate by the trial Court on the basis of a will executed in 1974. The issue relating to this will was deleted by a detailed order dated 19.2.1996. The trial was held to determine whether the propounder of the will of 1978 i.e. Ex.2, was entitled to grant of succession certificate or not. May be that the trial Court could examine the case of grant or not to grant the succession certificate to the respondent of the will. But when it had gone to grant the succession certificate to the respondents its treatment of the case requires a serious scrutiny. The issue relating to 1974 will was dropped. It shows that the trial Court was not conscious of the question which it had to answer at the trial. The trial having not been held on issue No.2, grant of succession certificate to the objectors cannot be held to be a proper exercise of jurisdiction in any manner. The issue relating to 1974 will was dropped. It shows that the trial Court was not conscious of the question which it had to answer at the trial. The trial having not been held on issue No.2, grant of succession certificate to the objectors cannot be held to be a proper exercise of jurisdiction in any manner. This also indicates that the learned trial Judge was not conscious and alive to the questions he had to address. The findings on grant of succession certificate to the respondents are thus findings without jurisdiction and are required to be set aside, 44. The above findings regarding improper exercise of jurisdiction by the trial Court on the question of grant of succession certificate to the respondent objectors demonstrates a serious lapse. It was improper exercise of jurisdiction. The case law relied by the learned counsel for the respondent objectors that the first appellate Court should not interfere with the findings of fact as recorded by the trial Court, would not in any case be relevant in the instant case. The trial Court has proceeded to examine and pronounce its findings in the matter on such questions which were not required to be addressed. Thus, it has become necessary for this Court to examine the case in detail even to the extent of examining validity of the findings of 'fact. 45. The will Ex.2 as propounded by the.appellant was held to be signed by the testator. The expert witness produced by the respondents has not disputed the signatures. By agreement of the parties question of signatures of the testator on Ex.2 was referred to the Forensic Science Laboratory and the 'substance of the report shows that there are similarities. Thus, the signatures of the testator on Ex.2 is not a question of dispute in any manner. 46. The next question which is to be addressed is whether the will was typed at the instance of the testator or the same had been subsequently typed after obtaining the signatures of the deceased on blank papers. To hold that the will is a forgery, the trial Court has relied on the testimony of expert Achyut Narain NAW1. It has been held that in the opinion of the expert, the will was a forgery because of a subsequent act of typing on blank papers because spacing is separate on both pages. To hold that the will is a forgery, the trial Court has relied on the testimony of expert Achyut Narain NAW1. It has been held that in the opinion of the expert, the will was a forgery because of a subsequent act of typing on blank papers because spacing is separate on both pages. The reliance of the learned trial Court on the opinion of NAW-1 Achyut Narain on this subject is not supported by the provisions of Sec. of the Evidence Act. The expert witness has to give evidence on the subject for which he is an expert. Forgery by typing has so far not been included in the provisions of the Evidence Act and no expert evidence in this regard has been made admissible. In any case any scientific tests about typing has not been claimed to have been conducted. Apart from these drawbacks of law as they stand today, the expert was only a handwriting expert and regarding the mode of typing, his evidence could not be relied upon by the trial Court as an expert and mere opinion of a person on such a subject cannot be made the basis because such opinions of a person on such a subject cannot be made the basis because such opinions are unknown to law to be recognised. The opinion evidence of the witness who is an expert on a subject is only of some substance in Court. Thus, knowledge of the expert AVV1 Achyut to decide the question of genuineness of the will was a case, which does have the support of law. 47. The trial Court has further proceeded to discard the will on the as ground of suspicious circumstances. The circumstances being that the propounder alone has been granted the benefits in the will. The deceased had been maintaining the family of his brother. They having been granted substantial share in 1974 will be a registered will, scribed by a regular petition writer could not be easily discarded. The typist of the will has not been produced. The purchaser of the stamp papers has not come in the witness box, to show that the stamp was purchased at the instance of the testator. The testator having been sick from 1978 suffering from pleurisy was not in a fit state of mind to execute the will. The typist of the will has not been produced. The purchaser of the stamp papers has not come in the witness box, to show that the stamp was purchased at the instance of the testator. The testator having been sick from 1978 suffering from pleurisy was not in a fit state of mind to execute the will. Wife of the testator has not been produced to support the will. The aforesaid circumstances have been relied upon by the trial Court and have been stressed by the learned counsel for the objectors to claim that the will was a forgery. 48. If the aforesaid circumstances are examined in the background that propounder of will is the adopted son of the testator. Adoption has not been disputed. If no will was executed, then the adoption of the appellant would have made him the sole successor of the property of the deceased. Adoption part takes the character of birth in the family. Thus, in the earlier line of succession, appellant would have inherited the entire estate of the testator. But for the will of 1974 which have been referred in the case, was not executed. Thus, because of execution of wills in the natural line of succession property would not come in the share of the appellant. The natural heir by adoption would get his right frustrated because of execution of will. 49. When the appellant could have naturally succeeded as an adopted son, they why the testator considered it necessary to execute the will The respondent objectors have indicated that there was dispute between the testator and the appellant and, therefore, came the execution of the will of 1974. Generation of disputes is sequence of state of mind at a particular juncture. If the fact of execution of various documents is seen, then it cannot be disputed that the appellant had desired to have a son to perform religious rites in accordance with the Hindu Law. He had recognised the importance of a son in the family. When he adopted the appellant in the family, he had desired to give him the rights to perform all duties and obligations as a son. In Hindu Law duties and rights are coupled with the right to inheritance also. Thus, in the first instance when the appellant was adopted, the testator had desired to make him the sole successor. 50. When he adopted the appellant in the family, he had desired to give him the rights to perform all duties and obligations as a son. In Hindu Law duties and rights are coupled with the right to inheritance also. Thus, in the first instance when the appellant was adopted, the testator had desired to make him the sole successor. 50. In the aforesaid circumstances if certain disputes had arisen, then it cannot be said that those disputes were so strong or had the effect to dislodge the testator. He adopted the appellant to be demolished subsequently to the extent of extinction is not a very probable consequence. Thus, if ultimately he has considered it prudent and recognised the natural line of succession then the law laid down in the various Supreme Court decisions saying that when the natural line of succession is disturbed, the will should be seen with suspicion will come into play. Here by this will of 1978 i.e. Ex.2 natural line of succession has been restored. The contention that the will has the effect to exclude from the natural line of succession, then suspicion can be seen. A suspicion has to be such that it demonstrates a mishapping. The allegation of the suspicion alone cannot eradicate these jai bondage, which are recognised in Hindu Law. 51. The effect of will of 1978 has to be seen in the light that it only restores the status of the appellant. which was granted to him by the adoption deed dated 30.10.1962. The 1974 will is the demonstration of those factors, which were relevant for the testator while he was maintaining the 45 family of his brother and the members were children of his brother. The suspicious circumstances which the trial Court had recorded if placed as test for the case set up by respondent objectors it may result into finding against the because the 1974 will had the tendency of disturbing the natural line of six cession. 52. Be that as it may, suspicious circumstances in this case are in the nature of faults, which can be found if a critical examination is made of something. In this light, the argument of the appellant assumes importance wherein it has been contended that initially the respondents had only canvassed that the will is forgery because it is not signed by the testator. In this light, the argument of the appellant assumes importance wherein it has been contended that initially the respondents had only canvassed that the will is forgery because it is not signed by the testator. Later case has been developed on the strength of the case law and after the opinion of the expert has come. 53. The respondents have also disputed the attestation of the will. One of the witnesses himself has come to depose that he has signed it due to some fault in memory and fumbling it has been said on behalf of the respondents that he was not a truthful witnesses. May be that he has fumbled to as regards some facts which may give an impression that he is telling lie but then he had signed the document in 1978. He was examined in that Court after the death of the testator in 1993 more than a decade after. A person who is only an attesting witnesses, hardly has an interest in remembering the facts of a document, which he has only attested and does not have concern with anything shown in the document. Thus, his fault about the contents of the document cannot be of any consequence. If he admits that he has signed the document it is sufficient. On this ground, the trial Court had fallen in error in disbelieving the testimony of this witness. A will is only required to be attested by two witnesses. Kanhaiya Lal Kunawat now dead, it was very easy 20 to dispute his signature. Such dispute cannot take away the basic character of the will wherein the testator has signed. 54. In any case, it is a case where propounder of the will is the natural heir also. Those who claim that they had gained the property by the will of 1974 have till date not asked for any right through this will. They may object to 1978 will but then the propounder is the adopted son. Wife has submitted in writing that she supports the propounder. Thus, the trial Court could not have refused to grant succession certificate. 55. In the result, the appeal is allowed, the judgment of the trial Court is set aside. It is ordered that the appeal is liable to be allowed and the same is 30 allowed. Certificate of succession will be issued to the appellant as prayed for. Thus, the trial Court could not have refused to grant succession certificate. 55. In the result, the appeal is allowed, the judgment of the trial Court is set aside. It is ordered that the appeal is liable to be allowed and the same is 30 allowed. Certificate of succession will be issued to the appellant as prayed for. The trial Court will do the formality of issuing the certificate of succession. *******