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2014 DIGILAW 753 (PNJ)

Vishavjit Singh v. State of Punjab

2014-04-26

KULDIP SINGH, SATISH KUMAR MITTAL

body2014
JUDGMENT Kuldip Singh, J. 1. This order will dispose of Letters Patent Appeal No. 300 of 1986, filed by Vishavjit Singh, adopted son of late Kanwarni Surjit Kaur against the order of learned Single Judge dated 6.3.1986 passed in Probate Case No. 4 of 1979, whereby the learned Single Judge allowed the petition of the State of Punjab and granted letters of administration to the State of Punjab regarding the property of Smt. Parbati Kaur, widow of late Arjan Singh of Kapurthala, on the basis of Will dated 21.7.1956, executed by Smt. Parbati Kaur. The undisputed facts of the case as extracted from the order of learned Single Judge are that Smt. Parbati Kaur widow of late Arjan Singh of Kapurthala executed a Will dated 21.7.1956 at Indore, bequeathing all her property for the benefit of general public in favour of Randhir Jagatjit Hospital, Kapurthala, a Government Hospital, (hereinafter referred to as 'the Hospital') and appointed Jagan Nath Paul of Jalandhar as sole executor of the Will. She died at Indore on 15.8.1956. Jagan Nath Paul refused to act as executor on account of his age. Consequently, a petition has been filed by the State through the Chief Medical Officer, Kapurthala for grant of Letters of Administration on the basis of the Will. 2. The petition has been contested by Vishavjit Singh (respondent No. 1) Sehdev Singh (respondent No. 2) and Atam Dev (respondent No. 3). Vishavjit Singh, in his written statement, pleaded that Smt. Parbati Kaur did not execute any Will in favour of the Hospital as alleged. She was not of sound and disposing mind on the date when the Will was alleged to have been executed by her. The Will is also invalid as she was limited owner of the property and could not dispose it of by a Will. Consequently, the petitioner is not entitled to get Letters of Administration. Respondents No. 2 and 3 pleaded that the petition has been filed by an unauthorised person on behalf of the State, that the petitioner has no right to file a petition for Letters of Administration in the presence of the executor named in the Will, that the petition is not properly verified and that the petition is bad for misjoinder of parties as respondent No. 1 has no right or interest in the property. It is further pleaded that the petition is not within limitation and that it is not maintainable as they are in possession of the property of the deceased. They also pleaded that the deceased did not execute any valid Will. From the pleadings, following issues were framed:-- "1. Whether the application has been filed by an unauthorized person? 2. Whether Sh. Jagan Nath Paul has refused to act as an executor, if so, its effect? 3. Whether the deceased has executed any valid Will in favour of the applicant? 4. Whether the application is properly verified, if not so, to what effect? 5. Whether the application is bad for misjoinder of parties? 6. Whether the application is within limitation? 7. Whether the respondents No. 1 and 2 are in possession of the property in dispute, if so, its effect?" 3. The learned Single Judge decided issue No. 1 in favour of the petitioner holding that petition has been filed by an authorized person. Issue No. 2 was also decided in favour of State of Punjab and so was issue No. 3. Issues No. 4, 5 and 7 were not pressed and were decided against the respondents, whereas issue No. 6 was decided in favour of State of Punjab. Consequently, the petition was allowed, as stated above. 4. Aggrieved by the said order, Vishavjit Singh (respondent) has filed the present Letters Patent Appeal. 5. We have heard learned senior counsel for the appellant Shri Ashwani Kumar Chopra, learned Additional Advocate General for State of Punjab and have also carefully gone through the file. 6. The perusal of file shows that the original petition was filed on 13.8.1970 and it was signed by Deputy Commissioner, Kapurthala, through Government Pleader, Kapurthala and it was presented to the Court by the Government Pleader, Kapurthala. Later on, the petition was amended and it was filed by the Chief Medical Officer, Kapurthala, through the Government Pleader. The learned senior counsel for the appellant has vehemently argued that in this case, the petition was filed by an unauthorised person. As per the Will, the beneficiary was the Hospital and, therefore, only the Hospital could file the petition. In this regard, it has been argued that the learned Single Judge has wrongly relied upon Rule 1of Order 3 of the Code of Civil Procedure, 1908 (in short 'CPC') and Order 27 Rule 2 of the CPC. As per the Will, the beneficiary was the Hospital and, therefore, only the Hospital could file the petition. In this regard, it has been argued that the learned Single Judge has wrongly relied upon Rule 1of Order 3 of the Code of Civil Procedure, 1908 (in short 'CPC') and Order 27 Rule 2 of the CPC. It has been argued that the Government Pleader is not an authorised agent to file the petition. Nor the Chief Medical Officer is a recognized agent to sign the pleadings. It has been argued that as provided in Order 27 Rule 2, only authorised agent can sign the pleadings and file the application. 7. This contention has been vehemently opposed by the learned Additional Advocate General for the State of Punjab, who has argued that this contention is misconceived. It has been argued that under Section 79 of the CPC, only the State is competent to sue or be sued in such cases. Admittedly, in this case the Jagatjit Hospital, Kapurthala is a Government hospital. The Hospital is not the juristic person. In the case of any institution of the Government being sued, it can sue or be sued in the name of the State, which in the present case is the State of Punjab. The learned Additional Advocate General further argued that under Order 3 Rule 1, the Government Pleader can sign the pleadings. He has also referred to the definition of Government Pleader given in Section 2 sub-section (7) of the CPC. He has argued that the Chief Medical Officer is a public officer as defined in Section 2 sub-section (17) of the CPC. He has also invited the attention of the Court towards Notification No. 1073-J-37/13015, dated 1.4.1937, wherein all the Deputy Commissioners by virtue of their office have been authorised to act for the Government in respect of judicial proceedings, in which Punjab Government is concerned. Further reference has been made to Punjab Government Notification No. 22963-Judicial, dated 10.12.1917, whereby all the Government Pleaders are ex-officio authorised to act for the Government in respect of all judicial proceedings in the Courts within the civil districts, for which they are appointed. Further reference has been made to Punjab Government Notification No. 22963-Judicial, dated 10.12.1917, whereby all the Government Pleaders are ex-officio authorised to act for the Government in respect of all judicial proceedings in the Courts within the civil districts, for which they are appointed. The learned Additional Advocate General has further referred to Government Notification dated 1073-J-37/13017/H/Judicial, dated 1.4.1937, which is reproduced as under:-- "Verification and signing of pleadings - In supersession of Punjab Government notification No. 19798-Judicial, dated the 4th July, 1934, and in accordance with the provisions of Order XXVII, Rule 1, of the First Schedule of the Code of Civil Procedure, 1908, it is hereby ordered that in all suits by or against the Punjab Government Plaints or written statements on behalf of the Punjab Government, shall be signed and verified by the Deputy Commissioner for the time being of the district in which the cause of action in whole or in part arises or by any department concerned who is acquainted with the facts." 8. It has been argued that, vide Notification dated 1.4.1937, any department, which is acquainted with the facts of the case was also authorised to sign the suits by or against the Punjab Government plaint or written statement on behalf of Punjab Government and can verify the same. 9. After considering the facts and circumstances of the case, we are of the view that initially the Deputy Commissioner of the district was competent and duly authorised to act on behalf of the State in view of the provisions of Code of Civil Procedure referred above. Subsequently, when the petition was amended, the Chief Medical Officer was also competent to sign and verify the pleadings. Moreover, the petition was forwarded to the Court by the Government Pleader, who is otherwise authorised to act on behalf of the State. Leaving aside the legal provisions, it is otherwise the duty of every public servant, much less, the head of the department of the district to protect the interest of the Government. For this purpose, he has got the implied authority to protect the interest of the State. In this way otherwise also, the Deputy Commissioner being the head of the district and the Chief Medical Officer being the head of health department of the district had the implied authority to protect the interest of Government, unless their authority is repudiated by the Government. In this way otherwise also, the Deputy Commissioner being the head of the district and the Chief Medical Officer being the head of health department of the district had the implied authority to protect the interest of Government, unless their authority is repudiated by the Government. In the present case, the Punjab State till date has affirmed the action of the Deputy Commissioner and the Chief Medical Officer, therefore, their authority was never repudiated by the State Government. It being so, the Deputy Commissioner and later on, Chief Medical Officer were competent to file the present petition on behalf of the State of Punjab. The petition is maintainable in the name of State of Punjab as provided in Section 79 of CPC. Hence, the findings of learned Single Judge on issue No. 1 are affirmed. 10. There is not much dispute between the parties that Jagan Nath Paul, who was appointed as an executor under the Will, had refused to act, vide letter dated 1.9.1961 (Ex. R6), addressed to the Assistant Collector, Estate Duty on account of his old age and III health. In this case, the Hospital, which is the hospital of the Government under the health department is the beneficiary. Therefore, on the failure of the executor appointed under the Will, the State of Punjab being the universal legatee could come forward to file the petition. The findings on issue No. 2 are accordingly affirmed. 11. The learned senior counsel for the appellant has first addressed the arguments on issue No. 6, pertaining to the limitation, as according to him, this issue goes to the root of the case. Article 137 of the Limitation Act, 1963, as given in Schedule-I, Part-II, provides as under:-- “PART II-OTHER APPLICATIONS 137. Any other Three years When the right to Application for which apply accrues. no period of limitation is provided elsewhere in this division.” 12. The learned Single Judge has taken the view that Article 137 of the Limitation Act is not applicable to the application for probate/Letters of Administration based on Will. Any other Three years When the right to Application for which apply accrues. no period of limitation is provided elsewhere in this division.” 12. The learned Single Judge has taken the view that Article 137 of the Limitation Act is not applicable to the application for probate/Letters of Administration based on Will. The learned senior counsel for the appellant has relied upon the authority Kunvarjeet Singh Khandpur v. Kiran-deep Kaur and others, 2009 (1) R.C.R. (Civil) 806: 2008(3) Recent Apex Judgments (R.A.J.) 211: (2008) 8 Supreme Court Cases 463 and has pressed that as held by the Hon'ble Apex Court, Article 137 of the Limitation Act, 1963, is applicable to probate and Letters of Administration. In this regard, reliance has been made to the following observations made in para-15 of the judgment:-- "15. Similarly reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani. Para 16 reads as follows: (AIR p. 270) "16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus - "(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; (b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (c) such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years form the date of he deceased's death; (e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion; (f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates". Conclusion (b) is not correct while the conclusion (c) is the correct position of law." 13. Conclusion (b) is not correct while the conclusion (c) is the correct position of law." 13. In the later case, Krishan Kumar Sharma v. Rajesh Kumar Sharma, 2009(2) R.C.R. (Civil) 807: 2009(2) Recent Apex Judgments (R.A.J.) 128 : (2009)11 Supreme Court Cases 537, the Hon'ble Apex Court approved the observations made in Kunvarjeet Singh Khandpur's case (supra) and remanded the case to consider the matter afresh in view of what has been stated in Kunvarjeet Singh Khandpur's case (supra). Now, when the observations made in the Kunvarjeet Singh Khandpur's case (supra) are examined, it would come out that though admittedly it was held that Article 137 of the Limitation Act, 1963, will apply to the proceedings under the probate and letters of administration, but the crucial point will remain as to from which date the period of limitation will start? As per the said Article, the period of limitation starts from which date the right to sue accrues. Therefore, it will be a question of fact in each case as to when the right to sue accrues? Clause (c) in the Kunvarjeet Singh Khandpur's case (supra) ruled above need to be emphasized. Letter of administration is the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right, which can be exercised any time after the death of the deceased so long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. 14. In view of the above settled legal position, the facts of the present case are to be examined. Admittedly, in the present case, the Will was executed on 21.7.1956. Smt. Parbati Kaur testatrix died on 15.8.1956. It has been stated in the statement of Vishavjit Singh (present appellant), who was examined as RW-3 that Col. Dina Nath wanted to negotiate with them regarding the property of Sardarni Arjan Singh (Smt. Parbati Kaur) after her death. He (Col. Dina Nath) asked his (appellant's) mother and uncle Shri Sehdev Singh that they should share property half and half. His mother and uncle did not agree. Thereafter, Col. Dina Nath produced the Will in the year 1962. Therefore, as per the statement of Vishavjit Singh himself, the Will surfaced in the year 1962. The Will was in possession of Col. Dina Nath) asked his (appellant's) mother and uncle Shri Sehdev Singh that they should share property half and half. His mother and uncle did not agree. Thereafter, Col. Dina Nath produced the Will in the year 1962. Therefore, as per the statement of Vishavjit Singh himself, the Will surfaced in the year 1962. The Will was in possession of Col. Dina Nath, who was the real brother of Smt. Parbati Kaur (testatrix). The Hospital, which is a Government institution, was the beneficiary. Therefore, it was only after the litigation started that the Government came to know that it has got the property by way of Will. It is not disputed that initially the mutation was sanctioned in favour of legal heirs in the year 1964. The Will was ignored. It was thereafter that the State of Punjab started contesting the succession before the revenue authorities. It is not disputed that the order of Assistant Collector 1st Grade, Phagwara, is dated 26.10.1964, wherein the Will was ignored. The matter was thereafter taken to the Court of Commissioner, Jalandhar Division, Jalandhar, where also the State of Punjab did not find any favour. Then, it is stated that the revision against the said order was decided on 10.2.1972. In the meanwhile, it comes out that the first application for grant of letters of administration was filed on 17.3.1966. It was withdrawn on 18.6.1968 with permission to file a fresh one on the same cause of action. The order was passed with the consent of opposite counsel and the copy of the order is on file. The petition was filed by the Deputy Commissioner through the Government Pleader. Thereafter, the second application was filed on 13.8.1970 by the Chief Medical Officer, Kapurthala, through the Government Pleader. Therefore, it is clear that when the State of Punjab came to now about its right in the property through the disputed Will, it started contesting the proceedings before the revenue authorities. The Commissioner did not grant any relief to the State in the year 1970. For the first time, Assistant Controller 1st Grade, Phagwara, ignored the Will on 26.10.1964. The State of Punjab, in addition to approaching the Commissioner, Jalandhar Division, Jalandhar, against the said order, also filed an application for probate before the learned District Judge, Kapurthala, on 17.3.1966. The Commissioner did not grant any relief to the State in the year 1970. For the first time, Assistant Controller 1st Grade, Phagwara, ignored the Will on 26.10.1964. The State of Punjab, in addition to approaching the Commissioner, Jalandhar Division, Jalandhar, against the said order, also filed an application for probate before the learned District Judge, Kapurthala, on 17.3.1966. The Commissioner, Jalandhar Division, Jalandhar, also did not grant any relief to the State of Punjab on 20.10.1969. The Financial Commissioner, Revenue, Punjab, after considering the facts of the case, dismissed the revision petition, vide order dated 10.2.1972. Therefore, we are of the considered view that the cause of action arose to the State of Punjab when the revenue authorities refused to act on the Will and refused to mutate the property of late Smt. Parbati Kaur in favour of State of Punjab. Therefore, after applying Article 137 of the Limitation Act, 1963, we are of the view that in the present case, the cause of action accrued to the State of Punjab on 26.10.1964 and then on 20.10.1969 and 10.2.1972, when the revenue authorities refused to act on the Will and, therefore, the present petition is within limitation. 15. Now coming to the finding recorded on issue No. 3, it is to be pointed out that during the arguments, the original Will, which was in sealed cover, was called for and the Registrar of this Court opened the sealed cover in the presence of the learned counsel for both the parties. The original Will was examined and photocopies of thereof were placed on the paper books as well as supplied to both the counsels. The examination of the original Will shows that Smt. Parbati Kaur, aged about 75 years, widow of late Sardar Arjan Singh, resident of Kapurthala, presently residing at "Yeshwant Niwas", Indore, bequeathed her property mentioned in the Will in favour of Jagatjit Hospital, Kapurthala, for the benefit of general public of Kapurthala. The Will is attested by Yog Raj (AW1) as well as Dr. Mohd. Iftikhar Ali (AW4). Dr. Mohd. Iftikhar Ali not only signed the Will, but recorded in his own hand 'certified that Sardarni Parbati Kaur signed this Will in my presence and she is in perfect mental condition'. Dr. Mohd. Iftikhar Ali also appended his signatures with date as 21.7.1956. Mohd. Iftikhar Ali (AW4). Dr. Mohd. Iftikhar Ali not only signed the Will, but recorded in his own hand 'certified that Sardarni Parbati Kaur signed this Will in my presence and she is in perfect mental condition'. Dr. Mohd. Iftikhar Ali also appended his signatures with date as 21.7.1956. Then, it further comes out that on 23.7.1956, the authentication of the Will was made by Additional District Magistrate, Indore, Shri Durga Shankar Panna Lal Vohra (hereinafter referred to as D.P. Vohra). On the left hand margin, there are signatures of Dr. Mohd. Iftikhar Ali and that of Smt. Parbati Kaur (testatrix). 16. Few facts need to be noticed before proceeding with the discussion on merits. The petition was initially filed before the learned District Judge, Kapurthala and later on transferred to this Court as the value of the property was beyond his pecuniary jurisdiction. Before the learned District Judge, Kapurthala, Yog Raj (AW1) and D.P. Vohra (AW2) were examined. Dr. Mohd. Iftikhar Ali (AW4) was also examined on commission and his statement was recorded by Darshan Singh Josh, Advocate on 22.12.1978. Later on, when the matter came up before this Court, it was ordered that the statements of Yog Raj and D.P. Vohra need not be recorded afresh. However, the statement of Dr. Mohd. Iftikhar Ali was ordered to be recorded afresh as his complete statement was not recorded earlier. Consequently, Shri Ashok Aggarwal, Advocate, was appointed as Commissioner and he recorded the statement of Dr. Mohd. Iftikhar Ali on 16.8.1980. It is further added that on the Will, there is no mention about the identity/name of scribe of the Will. Yog Raj was admittedly working as Stenographer and Personal Secretary to Col. Dina Nath, who was the real brother of Smt. Parbati Kaur (testatrix). Parbati Kaur was then residing with his brother Col. Dina Nath. Before the merger of Indore, Col. Dina Nath was the Prime Minister of the State. At the time of execution of the Will, Col. Dina Nath was working as Advisor to the Deputy Raj Pramukh, Madhya Bharat, who was the ruler of the State of Indore. Earlier, he had also served as Education Minister in the Patiala State. Yog Raj was working with Col. Dina Nath for 18/20 years at different places as Steno-cum-Personal Assistant. 17. Yog Raj, while appearing as AW 1, supported the Will. Earlier, he had also served as Education Minister in the Patiala State. Yog Raj was working with Col. Dina Nath for 18/20 years at different places as Steno-cum-Personal Assistant. 17. Yog Raj, while appearing as AW 1, supported the Will. He stated that Smt. Parbati Kaur was living with Col. Dina Nath at the time of execution of Will. Earlier, she used to visit and stay with Col. Dina Nath for about six months in a year. For the remaining period, she stayed in her house at Kapurthala. Her husband late Shri Arjan Singh, who belonged to princely family of Kapurthala, died long back in China. He further deposed that Smt. Parbati Kaur knew Urdu a little. He had seen her signing and writing several times and could identify her signatures. Regarding the Will, he stated that the Will was read over to her (testatrix) in vernacular and after admitting the Will, she (testatrix) signed the same in his presence and in the presence of Dr. Mohd. Iftikhar Ali. She was in sound and disposing mind and in full senses at that time. He himself and Dr. Mohd. Iftikhar Ali attested the Will in the presence of testatrix. Through the Will, Smt. Parbati Kaur bequeathed the entire property at Kapurthala as well as other movable and immovable property to Government for utilizing the same for the benefit of general public. He further proved the authentication of the Will by Additional District Magistrate, Indore on 23.7.1956. He stated that the Additional District Magistrate was called to Yeshwant Niwas Palace for authentication of the Will and he authenticated the Will in his presence as well as in the presence of Dr. Mohd. Iftikhar Ali. He further stated that Dr. Mohd. Iftikhar Ali used to give her injections for some ailments. 18. D.P. Vohra (AW2), the then Additional District Magistrate, Indore, who was working as an advocate at the time of recording of evidence, testified that at the time of authentication of the Will, he was working as Additional District Magistrate, Indore and was competent to authenticate the Will. Will (Ex. A1) was presented to him on 23.7.1956 for authentication when he visited Yeshwant Niwas, Indore at about 7:00 PM. The Will was explained to Smt. Parbati Kaur (testatrix), who was then residing at Yeshwant Niwas, Indore. Will (Ex. A1) was presented to him on 23.7.1956 for authentication when he visited Yeshwant Niwas, Indore at about 7:00 PM. The Will was explained to Smt. Parbati Kaur (testatrix), who was then residing at Yeshwant Niwas, Indore. He had also explained to the testatrix that he is a Magistrate and has come to authenticate the Will. Dr. Mohd. Iftikhar Ali, who was personally known to him, certified that the testatrix was in the perfect mental condition to execute the Will. The Will was read over to the testatrix, who stated before him (D.P. Vohra) that out of her own free will, she has executed the Will and appended her signatures thereon. The testatrix was in sound disposing mind at that time. Due to old age, she was incapable of walking, but she was in sound disposing mind. He also proved the signatures of Smt. Parbati Kaur at mark 'A' in the Will. He also proved the signatures of Dr. Mohd. Iftikhar Ali at Mark 'B' and stated that he had authenticated the Will. The presentation and authentication part is reproduced below (translated in English):-- "PRESENTATION "It has been presented today the 23rd July, 1956 for authentication. We arrived at Yashwant Niwas, Mukh Ganj, Indore at about 7 p.m. for registration. I have explained to Smt. Parvati Kaur widow of late Sardar Arjan Singh, the testatrix, originally resident of Kapurthala at present Yashwant Niwas Palace, Mukh Ganj, Indore, that I am a Magistrate and have come for the purpose of authentication. Dr. Mohammad Iftikar (has stated) that the testatrix is in a state of sound intellect. Dr. Iftikhar Ali has identified the testatrix to my satisfaction. AUTHENTICATION All the contents of the will have been read over and explained to the testatrix in Hindi. Each item was read over to her whereupon the testatrix has executed it by putting her signatures of her own accord and free-will. The testatrix is capable of hearing, speaking, understanding and thinking. She has answered to my questions. She is unable to walk due to physical weakness and old age, but she is capable of making decision and repudiation regarding her property. She has expressed cancellation of her previous Will No. 647 dated 22.5.53 by execution this Will. The previous will has been presented in original whereon I having made an endorsement regarding (cancellation) obtained the signatures of the testatrix. She has expressed cancellation of her previous Will No. 647 dated 22.5.53 by execution this Will. The previous will has been presented in original whereon I having made an endorsement regarding (cancellation) obtained the signatures of the testatrix. Note : The entire proceedings have taken place in my presence and under my directions and I have fully satisfied myself. It has been authenticated today, the 23rd July, 1956 at 7:10 p.m. Sd/- Addl. District Magistrate, Indore." 19. The authentication shows that it was certified by Additional District Magistrate in the presence of doctor recording the factum that testatrix is capable of hearing, speaking, understanding and thinking. She also expressed the cancellation of previous Will No. 647 dated 22.5.1953. It is to be noted that through the disputed Will, the testatrix had also cancelled her previous Will and cancellation of the previous Will dated 22.5.1953 was also stated by her at the time of authentication. 20. Now, coming to the statement of Dr. Mohd. Iftikhar Ali, it comes out that when he was examined on commission on the orders of learned District Judge, Kapurthala, his complete statement could not be recorded as he was not cross examined by the opposite party for one or the other reason. Shri Darshan Singh Josh, Advocate, had examined him on Commission. Shri Darshan Singh Josh, Advocate, appeared as AW3. He proved that statement Ex. A2 was recorded by him on commission and that after admitting it to be correct, Dr. Mohd. Iftikhar Ali signed the same. He stated that he recorded the same in Punjabi as it was the language of the Court and Vishavjit Singh (respondent) had also desired that it should be recorded in Punjabi. He prepared the report and submitted the same to District Judge, which is Ex. A3. However, when Dr. Mohd. Iftikhar Ali was examined by Shri Ashok Aggarwal, Advocate, as Local Commissioner on the orders of High Court, Dr. Mohd. Iftikhar Ali took U-turn. Though he admitted his signatures on the Will, but he stated that Smt. Parbati Kaur did not sign in his presence. He stated that they all were sitting in a big hall and Smt. Parbati Kaur was sitting in the adjacent room when the papers were brought and he signed it as attesting witness. He also refused to identify the signatures of Yog Raj on the Will. He stated that they all were sitting in a big hall and Smt. Parbati Kaur was sitting in the adjacent room when the papers were brought and he signed it as attesting witness. He also refused to identify the signatures of Yog Raj on the Will. He stated that Shri D.S. Josh, Advocate, Local Commissioner had obtained his signatures on first page in his house and thereafter, he had gone out with his younger brother for a drive when the Local Commissioner accompanied by some others stopped him on the road side and asked him to sign other pages of the statement as he had earlier forgotten to get them signed. He also stated that Shri D.P. Vohra did not sign in his presence. He was confronted with his previous statement wherein he had affirmed the due execution of the Will by Smt. Parbati Kaur. 21. The learned senior counsel for the appellant has vehemently argued that Dr. Mohd. Iftikhar Ali could not be confronted with his previous statement and it has been erroneously held by the learned Single Judge that he could be contradicted by the previous statement under Sections145, 155 and 157 of the Indian Evidence Act. It has been argued that Dr. Mohd. Iftikhar Ali did not know Punjabi and that in this regard, the application/objections were filed before the Court. We are of the view that the cross examination of Dr. Mohd. Iftikhar Ali shows that he claimed that he cannot read Punjabi, but admitted that he can understand the essence of Punjabi and not the exact meaning of every word. He never raised any objection at the time of recording of his statement that he cannot understand Punjabi. He signed his statement. Dr. Mohd. Iftikhar Ali belong to medical profession and is an educated person and it is not possible that somebody will record his statement and get it signed from him as claimed by him by getting one page signed at his home and the other pages by stopping him in the way. Therefore, we are of the view that the previous statement of Dr. Mohd. Iftikhar Ali recorded by the Local Commissioner could be used for contradiction and impeaching his credit as witness. We are of the view that Dr. Mohd. Therefore, we are of the view that the previous statement of Dr. Mohd. Iftikhar Ali recorded by the Local Commissioner could be used for contradiction and impeaching his credit as witness. We are of the view that Dr. Mohd. Iftikhar Ali had attested the Will as a witness, though later on, he turned dishonest and denied the proper execution of the Will. 22. Another fact which need to be noticed is that in the present case, the Will is dated 21.7.1956. The witnesses were first examined before the learned District Judge in the year 1978 i.e. after 22 years. Dr. Mohd. Iftikhar Ali was examined for the second time later on in the year 1980 i.e. after 24 years. In this case, the beneficiary is State of Punjab and it being the State will not go after the witnesses to influence them. However, in this case, huge property is involved, which will go to the appellant and other legal heirs of Smt. Parbati Kaur being Class-II heirs, if Will is ignored. Therefore, the time gap of 22 to 24 years would provide sufficient time to Class-II heirs of Smt. Parbati Kaur to influence the witnesses, so as to get huge property by wind fall. The evidence of the witnesses is to be examined in the above noted background. Therefore, minor discrepancies can be attributed to the forgetfulness after the lapse of 22 years and are to be ignored. 23. The pedigree table as admitted during arguments showing the relations of Smt. Parbati Kaur with other legal heirs is produced as under:-- "See Table on bottom page Learned senior counsel for the appellant has argued that the impugned Will (Ex. A1) cannot be relied upon. It is surrounded by suspicious circumstances and not proved in accordance with law. The authentication does not bear the signatures of the testatrix. It has been argued that respondents have also led evidence to show that the Will does not bear signatures of Smt. Parbati Kaur. Therefore, it has been requested that the Will should be discarded." 24. It has been argued that Smt. Parbati Kaur used to sign as Sardarni Arjan Kaur. For this purpose, reliance has been placed on the statement of Hari Chand Sabharwal (RW4), who produced some letters purportedly signed by the testatrix as Sardarni Arjan Kaur. The said letters were discarded by the learned Single Judge. It has been argued that Smt. Parbati Kaur used to sign as Sardarni Arjan Kaur. For this purpose, reliance has been placed on the statement of Hari Chand Sabharwal (RW4), who produced some letters purportedly signed by the testatrix as Sardarni Arjan Kaur. The said letters were discarded by the learned Single Judge. We are of the view that many times, ladies address them by suffixing the name of their husband. However, when a solemn document is to be executed, they mention their real name. It is not disputed that the real name of the testatrix was Smt. Parbati Kaur and when she was executing the Will regarding her entire property, she would sign in her real name. 25. Learned senior counsel for the appellant has also relied upon the statement of Shri B.L. Sanothia, Advocate, who was then working as a Clerk of the Additional District Magistrate and stated to have accompanied Shri D.P. Vohra, Additional District Magistrate at the time of authentication of the Will. Shri B.L. Sanothia, Advocate, the then Clerk of Additional District Magistrate, Indore, tried to put forward a different story. He stated that endorsement was written by him at Yeshwant Niwas Palace, Indore on 23.7.1956. Col. Dina Nath, Ex. Prime Minister, Indore, came to the chamber of Shri Vohra, ADM, who called him and directed him to write an application on a stamp paper of the value of Rs. 2/-, which was blank at that time. Said application is in his own hand excluding signatures of Mrs. K. Bhagat. Mr. Vohra had with him the blank stamp paper referred above and the Will (Ex. A1). Mr. Vohra directed him that the Will should be authenticated and he should accompany him as commission. At the same time, Mr. Vohra asked Ex. Prime Minister Col. Dina Nath to come after office hours and to take him along to Yeshwant Niwas Palace for the purpose of authentication of the Will. Col. Dina Nath took both of them i.e. Shri Vohra and the witness in his car. They reached the palace at 6:45 PM. He (witness) and Mr. Vohra were present and none else was present there. Mr. Vohra asked him (witness) to make the endorsement marked 'X' to 'X-1' on the Will (Ex. A1). The writing below X-1 in the form of note is in the handwriting of Mr. Vohra. They reached the palace at 6:45 PM. He (witness) and Mr. Vohra were present and none else was present there. Mr. Vohra asked him (witness) to make the endorsement marked 'X' to 'X-1' on the Will (Ex. A1). The writing below X-1 in the form of note is in the handwriting of Mr. Vohra. The witness further stated that he did not write the complete endorsement since he objected that the testatrix of the Will, who was mentioned in the Will to be a lady Sardarni Parbati Kaur was not present. He had asked that she should personally appear before them. At this, Mr. Vohra became angry and took the document Ex. A1 from him and wrote the note portion X-1 in his own hand. Despite his request, the lady did not appear. No witness put signature in their presence. Smt. Parbati Kaur also did not put any signature in their presence. In this way, Mr. B.L. Sanothia has been put forward to puncture the case of the petitioners regarding due authentication of the Will. 26. After examining the Will, we are of the view that Mr. B.L. Sanothia, who was then a Clerk of Additional District Magistrate and later on became an advocate and was examined on 1.2.1985 i.e. 29 years after the said authentication, is not a reliable witness. We have examined the original Will. It shows that Mr. B.L. Sanothia only recorded the authentication and thereafter, the Additional District Magistrate gave the note that the entire proceedings have taken place in his presence and under his direction and that he has fully satisfied himself. Therefore, he signed in token of authentication. The signatures of the testatrix and that of Dr. Mohd. Iftikhar Ali were obtained on the left margin of the Will. When the huge property is at stake and contest is between the State and the private persons, it is always possible for private person to win over one or the other witness. Mr. B.L. Sanothia was a clerk at that time and a person of stature of Additional District Magistrate will not behave in a way, as claimed by Shri. B.L. Sanothia. Mr. D.P. Vohra, ADM, has fully proved the authentication. His statement is trustworthy and has to be believed. 27. Learned senior counsel for the appellant has further argued that in this case, due execution of the Will is not proved. Mr. D.P. Vohra, ADM, has fully proved the authentication. His statement is trustworthy and has to be believed. 27. Learned senior counsel for the appellant has further argued that in this case, due execution of the Will is not proved. He has argued that both the attesting witnesses, namely, Yog Raj and Dr. Mohd. Iftikhar Ali did not attest the Will in the presence of Smt. Parbati Kaur and they also did not sign in the presence of each other. For this purpose, he has placed reliance upon the statement of Dr. Mohd. Iftikhar Ali recorded on commission by Shri Ashok Aggarwal, Advocate. The comments on the value of statement of Dr. Mohd. Iftikhar Ali have already been made above. He is not a trustworthy person and his statement demolishing the due execution of the Will and putting forward a different story, which is in complete contradiction to his earlier statement made before the local commissioner, cannot be believed. It is proved that Dr. Mohd. Iftikhar Ali had attested the Will as a witness. Section 63 of the Indian Succession Act, 1925, lays down the manner of execution of unprivileged Will, which reads as under:-- "Section 63. Execution of unprivileged Wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, l[or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 28. The examination of Will shows that Dr. Mohd. Iftikhar Ali merely did not attested the Will. Being a doctor he was conscious about his duties. Before his signatures at Serial No. 2, he certified that Smt. Parbati Kaur has signed this Will in his presence and she is in perfect mental condition. This was not required to be written by a witness. However, since Dr. Mohd. Iftikhar Ali was a doctor, he also certified the perfect mental condition of the testatrix. The learned senior counsel for the appellant has referred to the statements of Yog Raj as well as Dr. Mohd. Iftikhar Ali to press that Smt. Parbati Kaur was not enjoying good health. She used to lie on a cot in the room and that the witnesses were sitting in the hall and that Dr. Mohd. Iftikhar Ali did not sign in the presence of Yog Raj. Yog Raj was Steno to Col. Dina Nath and, therefore, he was procured as a witness. 29. We are of the view that though Smt. Parbati Kaur was not enjoying good health, but it cannot be believed that the witnesses did not sign in her presence. Dr. Mohd. Iftikhar Ali used to administer medicines to the testatrix. Therefore, being a doctor, he will always attend such a patient in her room. Yog Raj was the Steno and a trusted member of staff of Col. Dina Nath. Therefore, a trusted member of the personal staff usually move even in the personal room of the occupants. Dr. Mohd. Iftikhar Ali used to administer medicines to the testatrix. Therefore, being a doctor, he will always attend such a patient in her room. Yog Raj was the Steno and a trusted member of staff of Col. Dina Nath. Therefore, a trusted member of the personal staff usually move even in the personal room of the occupants. Therefore, the statement of Yog Raj has to be believed that he and Dr. Mohd. Iftikhar Ali signed in the presence of Smt. Parbati Kaur as attesting witnesses. The statement of Mr. Vohra that he does not remember whether Mr. Yog Raj was present at the time of authentication of the Will, can be attributed to lapse of memory as the witness was examined after about 22 years. 30. Next question would arise as to whether Mr. D.P. Vohra can be treated as a attesting witness? We are of the view that in the present case, Mr. D.P. Vohra on authenticating the Will became an attesting witness. He came for authenticating the Will by visiting the residence of the testatrix. The testatrix signed in his presence. He received personal acknowledgment from the testatrix that she has executed the Will. It is not necessary that both the witnesses should be present at the same time. Dr. Mohd. Iftikhar Ali, one of the attesting witnesses, also signed at the time of authentication of the Will. Smt. Parbati Kaur was informed by Shri Vohra that he is a Magistrate. At the time of authentication, Smt. Parbati Kaur specifically stated that she cancels Will No. 647 dated 22.5.1953. This fact was within the exclusive knowledge of the testatrix and the said factum was also recorded in the authentication. Mr. Yog Raj has claimed that he was also present there. His statement cannot be brushed aside. Yog Raj was the Stenographer and was a member of the personal staff of Col. Dina Nath. Therefore, his presence at the time of authentication of the Will is most natural. Here, it is to be noted that in this case, Col. Dina Nath, the real brother of Smt. Parbati Kaur, is not the beneficiary. Rather, the Will is executed in favour of Jagatjit Hospital, Kapurthala, which is a Government hospital and from its nature, it was unable to influence the Will of Smt. Parbati Kaur. It appears that as Smt. Parbati Kaur used to remain ill. Dina Nath, the real brother of Smt. Parbati Kaur, is not the beneficiary. Rather, the Will is executed in favour of Jagatjit Hospital, Kapurthala, which is a Government hospital and from its nature, it was unable to influence the Will of Smt. Parbati Kaur. It appears that as Smt. Parbati Kaur used to remain ill. She had no Class-I heir and except her real brother Col. Dina Nath, no other Class-II legal heir was serving her. Therefore, she had the natural desire that the similarly situated patients should be benefited after utilizing her property through the said hospital. This makes the Will most natural and free from any undue influence or coercion. Had the Will been executed in favour of Col. Dina Nath, the position may have been different. The Will apparently expresses the true desire of the testatrix i.e. welfare of the sick and needy people. 31. Learned senior counsel for the appellant has vehemently argued that there are several suspicious circumstances, which make the Will doubtful. He has argued that the scribe of the Will is not known. Infact, the Will is typed and appears to have been typed by one of the personal staff of Col. Dina Nath. However, it was not enquired from any of the witnesses as to who had scribed it. In any case, if the name of the scribe was not enquired from any of the witnesses, it does not make the Will suspicious. 32. The second circumstance pointed out by the learned senior counsel for the appellant is that the signatures of Smt. Parbati Kaur are appearing on the second page on the top in Urdu. He has argued that already signed paper was used to prepare the Will. Regarding the signatures of testatrix on the margin of the authentication, it has been argued that her signatures are different from her signatures on the top of the second page and are forged. 33. After examining the original Will, we are of the view that in this case, the body of the Will was typed on the first page. Thereafter, no space was left. Then, on the reverse of the page (not the second leaf), the date was again typed and Smt. Parbati Kaur signed in Urdu. 33. After examining the original Will, we are of the view that in this case, the body of the Will was typed on the first page. Thereafter, no space was left. Then, on the reverse of the page (not the second leaf), the date was again typed and Smt. Parbati Kaur signed in Urdu. Thereafter, under the signatures, it is recorded that 'it is signed by Parbati Kaur as her last Will and testament in the presence of us and present at the same time, who in presence of the each other sign as witness hereto'. Name and description of the witnesses under it bear Sr. No. 1 and 2 and is signed by Yog Raj and Dr. Mohd. Iftikhar Ali and Dr. Mohd. Iftikhar Ali signed with his note regarding perfect mental condition of the testatrix. Therefore, it shows that the writing on the reverse of the first page was in continuation of first page, and, therefore, the signatures on the top of the reverse of the page are taken to be affixed after the completion of the body of the Will. Not only this, Smt. Parbati Kaur also signed the authentication on the left side margin on the reverse of the same page. Dr. Mohd. Iftikhar Ali also signed at the time of authentication on 23.7.1956. There also, the due execution of the Will was affirmed by the testatrix as well as Dr. Mohd. Iftikhar Ali. So far as the signatures on the authentication are concerned, there is no marked difference between signatures of Smt. Parbati Kaur on the Will and on the authentication. Some difference in the signatures of a normal man may come up due to the different posture of the person appending his signatures. However, the oral testimony proves beyond any reasonable doubt that Smt. Parbati Kaur signed the Will as well as the authentication. 34. The next suspicious circumstance pointed out by the learned senior counsel for the appellant is that it has been admitted by Yog Raj as well as Dr. Mohd. Iftikhar Ali that the testatrix was bed ridden and was not enjoying good health. Dr. Mohd. Iftikhar Ali has gone a step further by saying that testatrix used to case herself at the bed and was unable to move. We are of the view that Dr. Mohd. Mohd. Iftikhar Ali that the testatrix was bed ridden and was not enjoying good health. Dr. Mohd. Iftikhar Ali has gone a step further by saying that testatrix used to case herself at the bed and was unable to move. We are of the view that Dr. Mohd. Iftikhar Ali had given a note at the time of attestation of the Will that the testatrix is in perfect mental condition. Not only this, even Additional District Magistrate at the time of authentication recorded that testatrix is capable of hearing, speaking, understanding and thinking. She had answered his questions. She was unable to walk due to physical weakness and old age, but she was capable of making decisions and repudiation regarding her property. The fact that the testatrix specifically mentioned the number and date of the previous Will and cancelled it, goes to show that though she was having physical weakness, but she was mentally alert and was capable of making rational decisions. The contents of the Will also affirm that testatrix was mentally alert. As she herself was ill, physically weak and old, so she wanted that her entire property should be utilized for the welfare of the old, weak and sick persons. It was for this reason that she even did not give her property to her brother Col. Dina Nath, whose hospitality she was enjoying for most of the times; and rather bequeathed her entire property to Jagatjit Hospital Kapurthala, situated at her native place Kapurthala, though the Will was executed at Indore (now in MP). 35. Learned senior counsel for the appellant has further pointed out that the copy of the Will was not even in the record of the concerned department. We are of the view that at that time, the contents of the Will were copied in the relevant register. It was much later that the practice of obtaining one copy of the original was introduced. However, the fact remains that the record of the Will was found in the official record of the concerned department. Learned senior counsel for the appellant has pointed out that it is also suspicious circumstance that the custody of the Will after authentication is not established. We are of the view that Vishavjit Singh, while appearing at RW3, has himself admitted that Col. Dina Nath had produced the Will in the year 1962. Learned senior counsel for the appellant has pointed out that it is also suspicious circumstance that the custody of the Will after authentication is not established. We are of the view that Vishavjit Singh, while appearing at RW3, has himself admitted that Col. Dina Nath had produced the Will in the year 1962. It follows that the original Will remained in the custody of Col. Dina Nath. Therefore, this contention is also without any force. In any case, when the due execution of Will is established, the question as to in whose custody it remained before its production, becomes irrelevant. 36. In this case, the testatrix died 23 days after the execution of Will i.e. 15.8.1956. This fact itself is no ground to hold that the Will is fabricated and procured through undue influence as the mental capacity of the testatrix at the time of execution and authentication of the Will is proved to the satisfaction of this Court. 37. The basic test laid down by the various courts is that in treating the Will as proved, the conscious of the Court must be satisfied regarding its due execution. In Bharpur Singh and others v. Shamsher Singh, 2009 (1) R.C.R. (Civil) 826 : 2009(1) Recent Apex Judgments (R.A.J.) 502: 2009 (3) SCC 687 , the Hon'ble Apex Court has observed as under:-- "11. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator." 38. In the present case, due execution of Will has been proved. The testamentary and mental capacity of the testatrix to execute the Will is also proved. There are no allegations of coercion or undue influence. The beneficiary in this case is the Government hospital. In the present case, due execution of Will has been proved. The testamentary and mental capacity of the testatrix to execute the Will is also proved. There are no allegations of coercion or undue influence. The beneficiary in this case is the Government hospital. Therefore, in these circumstances, the conscious of the Court is satisfied that the testatrix executed a valid Will and the same represents her last desire i.e. welfare of the sick, infirm and weak person. Hence, the Will is held to be proved and is to be enforced. 39. From the foregoing discussion, we come to the conclusion that the suspicious circumstances, as claimed by the appellant, are ruled out. We agree with the view of the learned Single Judge that the due execution of Will is fully proved. The Will represents the true intention and desire of Smt. Parbati Kaur and has to be given effect to. Therefore, the findings of learned Single Judge on issue No. 3 are also affirmed. In view of the foregoing discussion, we do not find any merit in the present appeal and the same is accordingly dismissed with costs. Appeal dismissed.