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2016 DIGILAW 1420 (RAJ)

Genda Singh v. Rajnish Kumar Kachhava

2016-10-03

ALOK SHARMA

body2016
ORDER : Alok Sharma, J. 1. This civil misc. appeal has been filed under Section 299 of the Indian Succession Act against the judgment dated 26.10.2010 passed by District Judge Ajmer (hereinafter 'the trial court') in contentious civil suit No. 57/07 arising out of Civil Misc. Probate Petition No. 21/2004, whereby the trial court has dismissed the application for grant of probate. I have heard Mr. M.M. Ranjan Senior Counsel assisted by Mr. Rajat Ranjan for the appellant and Mr. Resham Bhargava for the respondent No. 1. 2. The case of the appellant before the Trial Court was that his brother Prem Chand had executed a will on 14.08.2003 in his favour, had thereafter expired on 23.08.2003 and the said will be probated. Following public notice on the application aforesaid, objection was submitted by the son of Prem Chand, one Rajneesh Kumar Kachhawah. Objections by other defendants was also filed. In view of the challenge to the will, the probate proceedings were converted to a contentious suit registered as civil suit No. 57/07. The plaintiff examined himself and two other witnesses, one Natwar Singh and one Manish, the purported attesting witnesses. The objector examined himself as PW 1 Rajneesh Kumar Kachhawah and three other witnesses Ramesh Chand Sharma, Ramesh Kachhawaha and Kailash Kachhawaha as PW-2, 3 & 4. The plaintiff relied on and exhibited 74 documents and objector relied on and exhibited 19 documents. 3. The trial court then on consideration of the evidence dismissed the application for grant of probate. It was held that large number of litigations were pending between the deceased Prem Chand and Genda Singh and in that background execution of a will in favour of Genda Singh was not only most improbable, extremely unlikely and an evident suspicious circumstance. In reaching the said conclusion reliance was placed on the case of Shri Abhey Chand & Ors. v. Smt. Bimla Devi & Ors., reported in 2006(4) Civil Court Cases 117 (P&H). It was further held by the trial court that even otherwise the will dated 14.08.2003 was vitiated by other suspicion circumstances inasmuch as the deceased Prem Chand had two living sons included defendant No. 1 Rajneesh Kumar Kachhawah and Avnish Kumar Kachhawah making it was extremely unlikely that Premchand would have deprived them of their rights of inheritance in the absence any recorded and proved justifiable circumstance. For this proposition the trial court relied upon the judgment of this Court in the case of Hazari Ram v. Smt. Manna Devi & Ors., reported in 2010 (1) Rajasthan Judicial Times 26. The trial court also found in-correct the recitals in the will which by themselves were another strong circumstance of the potential falsity of the will. For this proposition the trial court relied upon the judgment of the M.P. High Court in the case of Kishan Singh Ahluwalia v. Smt. Sheela Saxena & Ors., AIR 2001 M.P. 250 . The trial court also found that executing the will in favour of Genda Singh on the birthday of his son Lalit was another suspicious circumstance as were it so, the will would have been executed in favour of Lalit and not Genda Singh. Finally the trial court also held that from the evidence before it the attesting witnesses Manish and Natwar Singh had not categorically stated that the executant of the will, Prem Chand had signed the will in their presence. On the aforesaid grounds, the trial court dismissed the application filed by Genda Singh seeking probate of the will dated 14.08.2003. 4. Mr. M.M. Ranjan, Senior Counsel appearing with Mr. Rajat Ranjan submitted that the conclusions of the trial court are perverse to the evidence on record and that the execution of will was proved by the attesting witness. So done, speculation on the alleged suspicious circumstances was unwarranted and the facts on record were insufficient for the dismissal of the application for probate of Premchand's will dated 14.08.2003. 5. Mr. Resham Bhargava appearing for the respondent No. 1 has supported the judgment of the trial court. 6. Having considered the submissions of Mr. M.M. Ranjan and Mr. Resham Bhargava and having perused the impugned judgment passed by the trial court, I am of the considered view that the impugned judgment dated 26.10.2010 is liable to be upheld. Ascertaining the last testamentary disposition of the testator is a heavy obligation on the court when a will is surrounded by suspicious circumstances, its proof even ceases to be a simple lis between the parties contesting an application seeking probate of a will. Then the proceedings before the Court transcend the limits of adversarial litigation and become a matter of the Court's conscience. Then the proceedings before the Court transcend the limits of adversarial litigation and become a matter of the Court's conscience. The burden lies on the propounder of the will to remove/explain all suspicious circumstances afflicting a will and prove its authenticity. The multiple facts and circumstances brought it on record by the defendants on the basis of their oral and documentary evidence without an iota of doubt created extremely strong suspicion as to the authenticity of will dated 14.08.2003 propounded by the respondent-Genda Singh. It was established from the evidence before the trial court that the deceased Prem Chand and the respondent Genda Singh, no doubt brothers, were engaged in long drawn litigations and had no love lost. Further Premchand had two living sons, his natural heirs with whom he had no recorded disagreement rendering his disinheriting them most unlikely. Further evidence of the alleged attesting witnesses to the will dated 14.08.2003 did not categorically state that they had seen Premchand sign the will or seen each other attest it. Also the purported occasion for the execution of the will dated 14.08.2003 in favour of Gendasingh being the birthday of his son Lalit was most unnatural. All these suspicious circumstances qua the will dated 14.08.2003 were the burden of Genda Singh to discharge and dislodge. It has been held in a catena of cases by the Apex Court beginning with AIR 1959 SC 443 , H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., through AIR 2007 SC 2219 , Apoline D'Souza v. John D'Souza, that clearing/explaining/removing of suspicious circumstances in the execution of a will propounded is the burden of the one propounding the will. And where the aforesaid burden is not discharged on the requisite standard of proof such will cannot be probated. I am of the considered view that the appellant Genda Singh was woefully unable to clear out and satisfactorily explain the multiple suspicious circumstance referred to above brought before the trial court on the basis of evidence both oral and documentary. The burden of the appellant Genda Singh which the law afflicts on the preponderance of a will seeking probate, was not discharged at all, what beyond reasonable doubt, as the standard of proof in such cases is as held by the Apex Court in the case of Kartar Kaur and Anr. v. Milkho & Ors., 1996 11 Supreme Court Cases 626. v. Milkho & Ors., 1996 11 Supreme Court Cases 626. Consequently, the judgment dated 26.10.2010 passed by the trial court is liable to be upheld and the appeal deserves to be dismissed. Dismissed.