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2005 DIGILAW 2391 (RAJ)

Rukmani Devi v. Savitri

2005-09-08

AJAY RASTOGI, V.K.BALI

body2005
Judgment V.K. Bali, J.-Challenge in the present appeal filed under Section 18 of the Rajasthan High Court Ordinance, 1949 is to the order passed by the learned Single Judge dated 04.04.1988 by which, the appeal preferred by the appellant Smt. Rukmani Devi against the order dated 17.08.1979 passed by the District Judge in the matter of grant of probate was dismissed. 2. Brief facts of the case reveal that respondents Smt. Savitri Devi and her daughter Usha Kumari, filed an application for obtaining probate with regard to Will stated to have been executed by Sajjanlal, who died on 24.06.1972. He is said to have left the Will in favour of respondents named above, which was registered on 23.06.1972. It has been the case of the respondents that even prior in point of time, Sajjanlal had executed another Will as well, but since the same was not notarized and was not registered, in order to avoid complications, second Will was executed and registered. Schedule of the properties was also filed alongwith the application seeking probate of the Will. 3. The matter was contested by appellant Smt. Rukmani Devi, who is stated to be wife of Mohanlal Agrawal, elder brother of Sajjanlal, who executed the Will. It was her case that Smt. Savitri Devi was not legally wedded wife of Sajjanlal and only a maid servant, who was cooking meals for Sajjanlal and besides this, there was no other relations of Sajjanlal. She further stated that the respondents had no relationship of any type with Sajjanlal. It was also pleaded that she had a son namely; Ramesh in whose favour Sajjanlal had executed his last Will on 02.02.1967, but unfortunately he expired and she is the sole surviver in line of succession for succeeding the property of Sajjanlal. 4. On the pleadings of the parties, the trial Judge framed all important issue with regard to validity of Will dated 22.06.1972 registered on 23.06.1972. Based upon evidence led by the parties, a firm finding of fact came to be recorded that Sajjanlal had indeed executed a valid Will in favour of his wife and daughter. It was also found as a fact that respondents herein were wife and daughter of Sajjanlal and further that the Will was genuine document and there were no suspicious circumstances dis-entitling respondents herein for grant of probate dated 22.06.1972. 5. It was also found as a fact that respondents herein were wife and daughter of Sajjanlal and further that the Will was genuine document and there were no suspicious circumstances dis-entitling respondents herein for grant of probate dated 22.06.1972. 5. The learned trial Judge, as mentioned above, granted probate to respondents, vide order dated 17.08.1979, which has been affirmed by the learned Single Judge of this Court on 04.04.1988. 6. Dr. P.C. Jain, learned Counsel appearing for the appellant has simply repeated and reiterated the arguments that were raised before the learned Single Judge like non-execution of the Will and respondents being not related with Sajjanlal and has not raised any new points. When confronted with the position that both the contentions, as noted above, pertain to findings of fact and it will not be possible for this Court in second appeal to disturb such findings, particularly when the same are based upon correct appreciation of evidence, learned Counsel had almost nothing to urge but to still persist with the plea that the Will was executed in a hospital ward where the deceased was transferred on 21.06.1972 but no record of the ward has been brought on records of the case even though the appellant had moved an application praying for summoning the same in his endeavour to show that the condition of the patient was serious and in those circumstances, he could not be reasonable expected to give free and voluntary consent and therefore, the Will is required to be rejected. This aspect of the case too has been dealt with by the learned Single Judge. It has been observed that on 212.1978 an application was moved on behalf of the appellant that the entire record of the hospital had not been received and that record after transferring the patient in isolation ward on 23.06.1972 had not been received. On 23.03.1979, the hospital authorities had asked for one months time to produce the record but the Court refused to issue fresh process for summoning record. However, the record which has been transmitted by the hospital earlier was the total record of the hospital and no effort was made to go through the same before moving the application for record of the Isolation Ward. It was mentioned in the records received from the hospital that the patient was removed at the residence before he died on 24.06.1972. Dr. It was mentioned in the records received from the hospital that the patient was removed at the residence before he died on 24.06.1972. Dr. Ashok Jain had categorically stated that the doctor in whose treatment the patient was, used to see patients in the Isolation Ward also and there was no separate Incharge of the Isolation Ward at that point of time. About the record of Isolation Ward, no question was asked from Dr. Jain. Most of the record was by now in half torn condition but it was in the handwriting of Dr. Ashok Jain, who had verified the Will. Record had also revealed that the patient was in Dr. S.R. Mehtas unit and was also examined by Dr. K.C. Gangwal during his last days. On 19.06.1972, it was borne out from the record that the ulcer of the patient had burst and the treatment given to the patient upto 23.06.1972 is also mentioned in the bed head ticket. Learned Single Judge further observed that judicial notice of the fact could be taken that the record upto handing over of the patient to Savitri Devi had been summoned and nothing remained to be called. From the records available, nothing at all could be pointed out by the learned Counsel for the appellant which may even remotely suggest that Sajjanlal was either not in his senses at the time of execution of the Will or was influenced by anyone in bequeathing his property to his wife and daughter. 7. Learned Single Judge threadbare discussed evidence of each and every witness examined on behalf of the parties, took into consideration the so called suspicious circumstances and as mentioned above, returned findings that the Will was proved to have been duly executed without there being any suspicious circumstance and further that Smt. Savitri Devi and Usha Kumari were wife and daughter of Sajjan Lal. No law point least a substantial one is involved in the present appeal. Findings on facts on the two crucial issues i.e., due execution of Will and relationship of Smt. Savitri Devi and Usha Kumari and there being no suspicious circumstances attending the Will have been correctly arrived at after taking into consideration the entire evidence led by the parties. There is absolutely no scope for interference in the findings of fact on the two crucial questions as mentioned above. There is absolutely no scope for interference in the findings of fact on the two crucial questions as mentioned above. The present appeal is totally bereft of any merits and the same is thus dismissed leaving, however the parties to bear their own costs.