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2016 DIGILAW 923 (RAJ)

Virendra Kumar v. Narendra Kumar

2016-07-04

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. 1. This appeal has been filed by the appellants Virendra Kumar and Trilochan Kumar aggrieved against the judgment dated 17.5.2008 passed by the Additional District Judge, Raisinghnagar (Sriganganagar), whereby the application for grant of probate filed by the respondent-Narendra Kumar has been accepted and the counter-claim filed by them has been rejected. 2. Respondent Narendra Kumar filed proceedings under Section 372 of the Indian Succession Act, 1925 in relation to a Will dated 21.2.1997 executed by Tola Ram (his father). In the petition, Narendra Kumar impleaded appellants Virendra Kumar and Trilochan Kumar along with sister - Vinod @ Neelam Rani as respondents. 3. After notices were issued, the appellants appeared and opposed the grant of probate to the respondent No. 1 and filed a counter-claim with the averments that the Will dated 21.2.1997 was revoked by Tola Ram and another Will dated 23.12.1999 was executed by him in their favour and, therefore, instead of grant of probate of Will dated 21.2.1997 to the respondent No. 1, probate of Will dated 23.12.1999 be granted in their favour. 4. On the pleadings, the Trial Court framed five issues. On behalf of the respondent Narendra Kumar, 5 witnesses were examined including attesting witnesses i.e. Pawan S/o Om Prakash and Pawan S/o Satyanarayan Sharma. On behalf of the appellants, 2 witnesses i.e. Virendra Kumar, appellant No. 1 and one attesting witness Indra Mohan were examined. 5. The Trial Court after hearing the parties, came to the conclusion that the execution of Will dated 21.2.1997, which was registered also; was duly proved by the respondent Narendra Kumar and while dealing with the issues pertaining to Will dated 23.12.1999, it came to the conclusion that as the Will is not a registered Will, the earlier Will, which was registered cannot be cancelled by the said Will and further came to the conclusion that the appellants herein have failed to prove due execution of the Will dated 23.12.1999 on account of contradictions, which were noticed in the statements and, consequently, granted probate of the Will dated 21.2.1997 in favour of the respondent Narendra Kumar. 6. It is submitted by learned Counsel for the appellants that the Trial Court committed error in coming to the conclusion that the Will dated 23.12.1999 propounded by the appellants was not duly executed. 6. It is submitted by learned Counsel for the appellants that the Trial Court committed error in coming to the conclusion that the Will dated 23.12.1999 propounded by the appellants was not duly executed. It was submitted that the conclusion reached by the Trial Court regarding the fact that as the earlier Will dated 21.2.1997 was registered, the same could only be cancelled by a registered instrument has no basis in law and, therefore, on the said count alone, the judgment impugned deserves to be set aside. It was submitted that the Trial Court has, based on minor contradictions, sought to disbelieve the execution of the Will dated 23.12.1999, which contradictions are meaningless and in view of the execution proved by the appellants, the judgment impugned deserves to be set aside and the counter-claim filed by the appellants deserves to be accepted. 7. With reference to the cited judgment in the judgment impugned, it was submitted that the said judgments are not applicable and have been wrongly relied on against the appellants. 8. Learned Counsel for the respondent Narendra Kumar duly supported the judgment impugned. It was submitted that a bare look at the statement of alleged attesting witness itself would show that the Will is not properly proved and is a concocted document. The contradiction, which are sought to be contended as minor by the appellants, in fact proves that the document is a made up document and is not the Will of Tola Ram as claimed by the appellants. Learned Counsel further submitted that though the finding of the Trial Court that a registered Will can only be cancelled by a registered instrument may not be sound, however, this fact cannot be ignored that the Will executed in favour of the respondent Narendra Kumar was duly registered and has been properly proved by way of production of all the relevant witnesses including both the attesting witnesses. It was further submitted that the appellants have not accounted for the absence of other attesting witness Harcharan Singh S/o. Gurdev Singh and in absence 'thereof, the appellants have failed to dispel the suspicious circumstances, which surround the present Will and, therefore, the judgment passed by the Trial Court does not call for any interference. 9. I have considered the submissions made by learned Counsel for the parties and have perused the material available on record. 10. 9. I have considered the submissions made by learned Counsel for the parties and have perused the material available on record. 10. It is well settled that the proceedings for probate are required to be conducted in a manner, where the propounder of the Will is required to prove : (i) that the Will executed was the last Will of the executant, and (ii) that the Will is not surrounded by suspicious circumstance and in case such circumstance exists the burden lay on the propounder to dispel the said circumstances. The caveator is only required to question the grant of probate, the burden lies on the propounder to prove the said aspects as noticed hereinbefore. 11. In the present case there are two conflicting Wills, the first Will dated 21.2.1997 has been executed qua the plot situated at Mandi Gharsana, Tehsil Gharsana admeasuring 60 X 120 feet, which has been bequeathed by the executant of the Will Tola Ram in favour of his son Narendra Kumar, The Will (Exhibit-1) has been duly registered and there are two attesting witnesses to the said Will i.e. Pawan Kumar S/o Om Prakash and Pawan Kumar S/o Satyanarayan Sharma. Before the Trial Court on behalf of Narendra Kumar, 5 witnesses were examined. While AW-1 Narendra Kumar, is the proponent, AW-2 Ramchandra Batra, is the Scribe vthZuohl of the Will, AW-3 Pawan Kumar S/o Om Prakash and AW-5 Pawan Kumar S/o Satyanarayan Sharma are the attesting witnesses, AW-4 Jagdish Rai is the person, who identified Tola Ram before the Sub-Registrar. 12. The statements of the four witnesses AW-2 to AW-5 clearly proved the execution of the Will by Tola Ram and further the fact that the same was got registered with the Sub-Registrar, further adds credence to the said Will. The execution of the Will dated 21.2.1997 in favour of the Narendra Kumar also stands fully fortified on account of the narration in the subsequent alleged Will dated 23.12.1999 about execution of the prior Will in favour of the Narendra Kumar, on which document the appellants have built up their case. 13. Learned Counsel for the appellants failed to point out any apparent suspicious circumstance in so far as the Will produced by the respondent Narendra Kumar is concerned so as to create a doubt about the execution of the said registered Will by Tola Ram. 14. 13. Learned Counsel for the appellants failed to point out any apparent suspicious circumstance in so far as the Will produced by the respondent Narendra Kumar is concerned so as to create a doubt about the execution of the said registered Will by Tola Ram. 14. However, in view of the fact that the appellants have set up Will dated 23.12,1999, if the said Will is proved and is held to be the last Will of deceased Tola Ram, despite the finding that the Will dated 21.2.1997 was executed by Tola Ram and was a registered instrument, the same would not confer any right on Narendra Kumar to seek grant of probate of the Will in his favour. 15. The Will dated 23.12.1999 (Ex.A-1) has been said to have been executed by Tola Ram, which is attested by 2 witnesses Harcharan Singh and Indra Mohan. The Will appears to have been attested by one Devraj, Advocate St Notary, Hanumangarh on 23.12.1999. The said Will, also deals with the same piece of land regarding which the Will dated 21.2.1997 was executed by Tola Ram and in the present Will, the same was bequeathed to the appellants. A reference was also made that prior Will has been executed in favour of Narendra Kumar, which be treated as cancelled. 16. For proving the said Will as already noticed hereinbefore, the appellants examined Virendra Kumar as NAW-1, who is beneficiary of the Will and Indra Mohan - NAW-2, who is said to be the attesting witness. The attesting witness admits to have worked on the shop of Virendra Kumar from before 15 years, however, stated that for last 3-4 years, he was not working with him. The witness indicated that the signatures were made at Hanumangarh Town at the place of Advocate Devraj, who was sitting next to him in the Court. He also claimed that he had signed on 3 pages, did not remember as to how many signatures he had made on each page, however, claims all the 3 pages were written. The statement of the said witness, if read with the document (Ex.A-1), it is apparent that the document is only a 2 page document and has signatures of Indra Mohan on 2 pages only and, therefore, apparently his emphatic statement about signatures on 3 pages, appears to be wholly incorrect. The statement of the said witness, if read with the document (Ex.A-1), it is apparent that the document is only a 2 page document and has signatures of Indra Mohan on 2 pages only and, therefore, apparently his emphatic statement about signatures on 3 pages, appears to be wholly incorrect. The further contention that signatures were made at Hanumangarh Town though the same were made at Advocate Devraj's place also creates doubt, inasmuch as, in the attestation by Advocate Devraj, it has been clearly indicated that he was stationed at Hanumangarh and not at Hanumangarh Town. 17. It is specifically submitted by learned Counsel for the respondent that the phrase Hanumangarh Town is always used in contra distinction to Hanumangarh/Hanumangarh Junction and, therefore, the statement of Indra Mohan on account of his failure to give correct pages, signatures and place does not inspire the required confidence of an attesting witness. 18. Besides the above, the appellants have failed to account for the non-production of other attesting witness Harcharan Singh. Though for proving the Will production of one attesting witness is sufficient, the non-accounting for absence of Harcharan Singh also raises doubt. The best witness in the. present case would have been Devraj, the Advocate & Notary, Hanumangarh in whose office/presence, the document is said to have been drafted, executed and attested by him, however, neither the said Devraj, Advocate has been produced nor any explanation is forthcoming for non-production of said important witness. 19. In the above circumstances, wherein the appellants have failed to produce one of the attesting witness Harcharan Singh, Devraj, Advocate, who was instrumental in execution of the Will (Ex.A-1) and even the Scribe, who has prepared the said document, as Indra Mohan has stated that Devraj, Advocate did not dictate the Will and he did not know as to the person typing was a Munshi or Scribe Vth Zuohl The non-production of above important witnesses and failure to account for their absence, naturally results in failure on part of the appellants in dispelling the suspicious circumstances surrounding the Will specially on account of existence of a prior Will dated 21.2.1997. 20. 20. Though plea was raised that the deceased Tola Ram used to stay with the appellants, no evidence whatsoever in this regard has been produced, which further adds to failure on part of the appellants in supporting explanation for Tola Ram allegedly cancelling the prior Will dated 21.2.1997 and executing the fresh Will dated 23.12.1999 in favour of the appellants. 21. In view of the above state of evidence and the facts and circumstances noticed hereinbefore, it is apparent that while respondent Narendra Kumar has established the execution of the Will dated 21.2.1997, the appellants have failed to prove the execution of the Will dated 23.12.1999. 22. So far as the emphasis laid by the Trial Court regarding the Will dated 21.2.1997 being registered and the Will dated 23.12.1999 being un-registered is concerned, the Trial Court gave undue weightage to the said aspect, inasmuch as, the fact that a Will has been got registered is only one of the facts in the execution of the Will and irrespective of its registration, the same has to be proved like any other Will in view of the proviso to Section 68 of the Evidence Act, 1872. Further the finding recorded by the Trial Court regarding the necessity of cancellation of a registered Will only by way of a registered Will also has no warrant in law, inasmuch as Will is not required to be compulsorily registered under Section 17 of the Registration Act, 1908. 23. Further the Trial Court also was not justified in reaching to the conclusion regarding the necessity of the subsequent Will being registered based on judgments in the case of Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors. AIR 1977 SC 74 and C.G. David Tharakan v. Dr. Mrs. Lily Jacob AIR 1993 Kerala 9, which cases do not deal with said aspect. 24. In view of the findings recorded by this Court regarding the Will dated 23.12.1999 (Ex.-A/1), the ultimate finding of the Trial Court regarding the issues involved in the proceedings does not call for any interference. 25. In view of the above discussion, there is no substance in the appeal, the same is, therefore, dismissed. No order as to costs.