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2025 DIGILAW 571 (MP)

Naresh Singh v. Public At Large

2025-09-03

HIRDESH

body2025
ORDER 1. By way of instant misc. appeal under Order 43 rule 1 of CPC, appellants have challenged the order dated 23.11.2021 passed by 6th Additional District Judge, Bhind in Misc.Civil Case No.34 of 2016, whereby the application filed by appellants under section 276 of the Indian Succession Act for probate of ''Will'' in regard to movable and immovable properties of deceased Bitta Bai, has been rejected. 2. Necessary facts for disposal of present appeal, in short, are that as per averments of appellants, they are the nephews of deceased- Bitta Bai, who was a Teacher in Government High School, Kanawar and had passed away on 19.11.2008. Within a year of her marriage, Jahan Singh, husband of Bitta Bai, had also passed away and she was living in her birthplace Kanawar Village since she had no children, where she was posted as a Teacher and lived with their father - Munshi Singh, for the rest of her life and after death of their father Munshi Singh, she lived with them. It was further alleged that she had brought up them and they considered her as their aunt as well as mother and used to serve and flatter her. She had appointed them as nominees in the nomination form of all her FDRs, bank accounts, all the money received from School and in her old age, she had transferred all her movable and immovable property to them and executed a ''Will'', dated 21.5.2008 in their favour, which was duly registered by the Notary. It was further alleged that they are the sole heirs of their aunt- deceased Bitta Bai and they are entitled to receive gratuity, insurance fund and the amounts deposited in FDRs in official record as well as family pension. Therefore, they submitted application under section 276 of the Indian Succession Act, seeking probate of ''Will'' in regard to movable and immovable properties of deceased Bitta Bai. 3. Respondents Nos.1 to 6 filed their reply and denied the averments of appellants that deceased Bitta Bai was sister-in-law (bhavi) of respondent No.2 Brajraj Singh and elder sister-in-law of respondent No.7 Pushpa Devi and aunt (tai) of remaining respondents No.3 to 6. Bitta Bai had given the entire land of her husband's share in 1/2- 1/2 parts to respondent No.2 Brajraj Singh, Pushpa Devi and her sons during her lifetime. Bitta Bai had given the entire land of her husband's share in 1/2- 1/2 parts to respondent No.2 Brajraj Singh, Pushpa Devi and her sons during her lifetime. During her job, deceased Bitta Bai used to stay permanently in their house and work by residing in separate rented house. Deceased has neither brought up the appellants nor has executed any ''Will'' in favour of appellants. The ''Will'' presented by appellants is not signed by deceased herself, but by some other person because the signatures in the ''Will'' do not match with the signatures of deceased in the official records. It is further pleaded that the deceased has not appointed the appellants as her nominees. Appellants have got their names registered in the ''Will'' by means of collusion. The agricultural land of Jahan Singh, the husband of deceased, has been transferred to the names of respondents No.2 to 7 and they are the closest heirs of the deceased and therefore, they are entitled to receive her gratuity, insurance fund and the amounts deposited in the FDRs in the official records. The appellants have filed the application for probate of ''Will'' on baseless facts and, hence, prayed for its rejection. 4. On behalf of appellants, appellant- Naresh Singh examined himself as AW-1 and Bhikam Singh as AW-2 and Rambabu as AW-3 and in support of application, evidence/documents were produced before the Court below whereas, on behalf of respondents, Brajraj Singh examined himself as NAW1 and Kaptan Singh Tomar as NAW-2 and affidavit of Ramsahay under Order 18 rule 4 of CPC was filed. 5. The Court below framed issues first; as to whether deceased Bitta Bai had executed a ''Will'' dated 21st May, 2008 in favour of the appellants in regard to all movable and immovable properties of deceased Bitta Bai and secondly, as to whether the appellants are entitled to obtain a probate of ''Will'' or not ? 6. After hearing Counsel for both the parties and material as well as evidence available therein, the Court below rejected the application of the appellants filed under Section 276 of the Indian Successions Act, vide impugned order. Hence, this appeal. 7. Being dissatisfied with the impugned order, it is contended on behalf of appellants that the Court below has rejected the application of appellants without proper appreciation of evidence available on record. Hence, this appeal. 7. Being dissatisfied with the impugned order, it is contended on behalf of appellants that the Court below has rejected the application of appellants without proper appreciation of evidence available on record. Only by interpreting evidence of Ram Babu (AW-1) and Naresh (AW-1), the Court below has rejected the application. It is further contended that Jahan Singh, the husband of deceased Bitta Bai was expired within one year from the date of her marriage and thereafter, for more than three decades, deceased Bitta Bai was residing with the present appellants and except present appellants, there was no other legal heir, thus, the deceased Bitta Bai had executed a ''Will'' in their favour. The ''Will'' was executed by using undue influence and in love and affection. Hence, prayed for setting aside the impugned order. 8. Placing reliance on the decision of Hon'ble apex Court in the case of Uma Devi Nambiar & Others v. TC Sidhan (Dead) (2004) 2 SCC 321 , on the other hand, learned Counsel for respondents No.2 to 7, opposed the contentions of appellants. It is submitted that there were so many contradictions and omissions in the evidence of Ram Babu (AW-3) and Naresh (AW-1). Although Ram Babu (AW-1) in his affidavit stated that deceased Bitta Bai had executed a ''Will'' in his presence, but in his examination, this witness deposed that the deceased was his real sister and he does not know which movable and immovable properties were bequeathed, who typed the Will Ex.P8, whether the writer/testator of ''Will'' signed it or not, who registered the ''Will'', who stamped it, who signed the ''Will'' first and who signed it last. Evidence of Naresh (AW-1) shows that writer/testator of ''Will'' was not in perfect health at the time of its execution. The Court below after going through the contradictory evidence of these witnesses, has rightly rejected the application of appellants. No interference is warranted. Hence, prayed for dismissal of this appeal. 9. Heard learned Counsel for the parties. 10. Perused the impugned order and documents available on record. 11. Before discussing the matter, it would be relevant to discuss the law relating to execution and proof of ''Will'' under the Indian Succession Act and the Indian Evidence Act. Section 63 of the Indian Succession Act, 1925 reads as under:- 63. 9. Heard learned Counsel for the parties. 10. Perused the impugned order and documents available on record. 11. Before discussing the matter, it would be relevant to discuss the law relating to execution and proof of ''Will'' under the Indian Succession Act and the Indian Evidence Act. Section 63 of the Indian Succession Act, 1925 reads as under:- 63. Execution of unprivileged wills.—Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[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. (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 of 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. Section 68 of the Evidence Act reads as under:- 68. Section 68 of the Evidence Act reads as under:- 68. Proof of execution of document required by law to be attested.––If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] 12. As per mandate of clause(c), a ''Will''; is required to be attested by two or more witnesses each of whom should have been the testator signed or put his/her mark on the ''Will'' or should have been some other person signed the ''Will'' in his/her presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his/her signature or mark, or of the signature of such other person. The ''Will'' must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the ''Will'' in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the ''Will'' simultaneously, that is at the same time, in the presence of each other and the testator. A ''Will'' is produced before the Probate Court after the testator who has departed from the World, cannot say that the ''Will'' is his own or it is not same. This factum introduces an element of solemnity to the decision on the question where the ''Will'' propounded is proved as the last ''Will'' or testament of the departed testator. The propounder to succeed and prove the ''Will'' is required to prove by satisfactory evidence. 13. On perusal of the record, it was found that respondent No.2- Brajraj Singh is the brother of Jahan Singh (husband of deceased Bitta Bai). The propounder to succeed and prove the ''Will'' is required to prove by satisfactory evidence. 13. On perusal of the record, it was found that respondent No.2- Brajraj Singh is the brother of Jahan Singh (husband of deceased Bitta Bai). Respondents No.3 to 6 are sons of Krishna Singh/brother of Jahan Singh (husband of deceased Bitta Bai). Respondent No.7- Smt. Puspa Devi is the wife of Krishna Singh. The appellants used to litigate over the land/property belonging to the husband of deceased Bitta Bai due to which, deceased Bitta Bai had made a ''Will'' of all movable and immovable properties acquired during her lifetime in favour of appellants, on the basis of which, appellants are claiming to obtain a probate of ''Will'' in regard to movable and immovable properties of deceased Bitta Bai. 14. Brajraj Singh (NAW-1) in his statement deposed that the husband of deceased- Jahan Singh died three-four years after marriage and he does not remember the year in which marriage of the deceased had taken place. Deceased Bitta Bai was an Assistant Teacher and lived in her birth place Village Kanawar during her service period and died in Kanawar Village. This witness further deposed that his father Bhole Singh Tomar had given share of Jahan Singh to deceased Bitta Bai by means of compromise and her name was transferred on the basis of decree. Further, this witness in Para 5 of his evidence admitted that on matching signatures, the signatures of ''Will'' were found to be correct and in the succession, it was ordered that there is a matter related to ''Will'' in which probate should be taken and the person is free to take action regarding probate. This witness in Para 7 of his statement also deposed that the deceased had demanded her share and his father Bhole Singh had accepted and had given her share and in Para 8 further deposed that they had a nominal dispute with deceased Bitta Bai. 15. Kaptan Singh (NAW-2) in Para 5 of his statement deposed that deceased Bitta Bai got her husband's share during the life of his father Bhola Singh, the case of which was going on in the Court and deceased Bitta Bai used to come to her village Kukthari, Tahsil Ambah two-four times a year at the time of harvesting the crops and return with her share. 16. 16. Ram Babu Singh (AW-3) in his examination-in-chief deposed that when deceased Bitta Bai was alive, her father-in-law used to do farming regarding which, there was a dispute in the Tehsil and deceased Bitta Bai had made a ''Will'' dated 21.5.2008. He does not know which movable and immovable properties have been bequeathed. This witness in Para 08 of his examination deposed that another person who has passed away, had also signed the ''Will'' and he had signed the ''Will'' in his presence. This witness in Para 9 of his cross-examination deposed that he does not know, who had registered the ''Will'' and stamped it. The ''Will'' was read out to him and he signed it. In para 10 of his cross-examination, this witness admitted that deceased Bitta Bai had executed a ''Will'' regarding property of her in-laws. He cannot tell who signed the ''Will'' first and who signed the ''Will' last. This witness admitted that deceased Bitta Bai was the first person, who had signed the ''Will'' and the person, who signed the ''Will'' last, is now no more. This witness voluntarily admitted that deceased Bitta Devi singed the ''Will'' first and then ''Will'' was read out and then, everyone had signed it. He does not remember whether the writer/testator of ''Will'' signed it or not. 17. On going through the evidence of these witnesses and the provisions of section 63 of the Indian Succession Act and 68 of the Indian Evidence Act, it cannot be disbelieved that ''Will'' in question was not executed by the deceased only on the basis of evidence by which Ram Babu Singh (AW-3) had adduced that he was not in a position to identify the property and he is not able to explain that in respect of which property, the ''Will'' was executed. Brajraj Singh (NAW-1) in Para 5 of his evidence admitted that on matching signatures, the signatures of ''Will'' were found to be correct and in the succession, it was ordered that there is a matter related to ''Will'' in which probate should be taken and the person is free to take action regarding probate. 18. Kaptan Singh (NAW-2) in Para 5 of his statement also deposed that deceased Bitta Bai got her husband's share during the life of his father Bhola Singh. The evidence of appellants' witnesses have remained unrebutted. 18. Kaptan Singh (NAW-2) in Para 5 of his statement also deposed that deceased Bitta Bai got her husband's share during the life of his father Bhola Singh. The evidence of appellants' witnesses have remained unrebutted. There is no reason to doubt the testimonies of Ram Babu (AW-3) and Naresh (AW-1). Nothing has come on record which can show that the ''Will'' in question was executed under suspicious circumstances or the ''Will'' was not signed in the presence of attesting witnesses. Further, there is nothing on record to show that the testator/writer of ''Will'' was not having free sound-disposing mind at the time of execution of ''Will as there is no evidence produced on behalf of respondents therein regarding the mental illness of deceased Bitta Bai. In view of the above, this Court hold that the appellants have proved to the satisfaction of the Court that the ''Will'' dated 21.5.2008 is the last and final Will of testator Late Bitta Bai. It also stands proved that the ''Will'' has been duly executed by testator/writer of ''Will'' voluntarily and in sound mind before leaving the world. 19. In the present case, it is also necessary to mention here that the appellants in support of their evidence have produced service records, land records, bank documents etc. etc. before the Court below and all the documents show that deceased- Bitta Bai was a Government Teacher and appellants were appointed as nominees by the writer/testator of Willdeceased Bitta Bai and also show that deceased Bitta Bai had voluntarily without undue influence bequeathed her movable and immovable properties in favour of the appellants. Therefore, it is clearly proved that deceased Bitta Bai had executed a Will, dated 28th of May, 2008 in favour of the appellants. Thus, in the considered opinion of this Court, it appears to be no impeadment in grant of probate in line with the ''Will'' 20. In view of discussion herein-above, the appellants are entitled to grant of probate in line with the ''Will'' dated 21st of May, 2008 executed by deceased Bitta Bai. Accordingly, the impugned order dated 23.11.2021 passed by 6th Additional District Judge, Bhind in Misc. Civil Case No. 34 of 2016, is set aside and the application filed by the appellants under section 276 of Indian Succession Act deserved to be and is allowed. Accordingly, the impugned order dated 23.11.2021 passed by 6th Additional District Judge, Bhind in Misc. Civil Case No. 34 of 2016, is set aside and the application filed by the appellants under section 276 of Indian Succession Act deserved to be and is allowed. Accordingly, the Court below is directed to issue probate with duly authenticated copy of the ''Will'' in favour of appellants in the prescribed form in accordance with law upon furnishing of proper Court fees, administration bond and surety bond by the appellants.