Honourable Mr. Justice Shailesh Kumar Sinha
1. This appeal is directed against the judgement and decree dated 12.05.2005, passed by VIIth Additional District and Sessions Judge, Rohtas Sasaram in Title Suit No. 17 of 1990, dismissing the suit for grant of probate with respect to the unregistered will dated 15.10.1984 in favour of the plaintiff - Appellant. The plaintiff, being aggrieved preferred the present appeal. Shortly stated the plaintiff''s case is that one Balbhadra Rai and Ram Naresh Rai were own brothers. Balbhadra Rai had two sons namely, Sitaram Rai and Ganesh Rai. Sitaram Rai had two wives namely, Apnano Kuer and Mostt. Tapeshra Kuer. Sitaram Rai died on 24.12.1984 just after two months of the execution of the will. Later on, his two widows, namely, Apnano Kuer and Mostt. Tapeshra Kuer died on 22.07.1987 and 24.01.1998 respectively. The further case of the plaintiff is that Sitaram Rai (testator) was living separately with his two widows and a daughter namely, Ramawati Devi in the same village namely, Gori with the plaintiff who used to look after him (testator) and his property and as such, being pleased with his services, the said Sitaram Rai executed the will in question. It is also the case of the plaintiff that the widow Apnano Kuer executed a deed of gift in favour of the plaintiff on 20.02.1987.
2. On the other hand, the defendant''s case is that Sitaram Rai (testator) was living with his widows and daughter having a cordial relation between them and as such there could no reasonable cause for executing any will in favour of the plaintiff, a nephew of Sitaram Rai. The defendant on coming to know that the aforesaid gift allegedly executed by Apnano Kuer and challenged the same vide Title Suit No. 82 of 1987. The said will dated 20.02.1987 was declared as forged and fabricated by the trial court, however, on appeal it was reversed by the appellate court vide Title Appeal No. 54 of 1991/14 of 2004. The matter is now pending in a second appeal before this court. The further case of the defendant is that on receiving the summons of the aforesaid title suit, plaintiff brought on record the forged and fabricated the aforesaid plain will dated 15.10.1984 and filed an application for grant of the probate of the aforesaid will which was not a genuine and this is the second attempt after the alleged gift dated 20.02.1987 to grab the property of Sitaram Rai (testator) somehow or the other and to deprive the widows and his daughter of their legitimate claim under the Hindu Succession Act.
3. The admitted Genealogical Table of the family is reproduced below :-
4. The plaintiff in order to establish the genuineness of the will adduced the oral evidences of the two attesting witnesses and the scribe of the will. Apart from the above witnesses, Chowkidar receipts and other similar documents were brought on record which have been proved by the respective witnesses in order to prove genuineness of the signature of the testator on the will. Opinion of the handwriting expert was also brought on the record and the signature of the testator on the will was confirmed by the concerned handwriting expert. The defendant in turn has also adduced oral evidence as also the opinion of its own handwriting expert to prove that the will in question is not genuine and the said Sitaram Rai (testator) had never executed any will as claimed by the plaintiff since the signature over the will is forged and fabricated.
5. The court below thoroughly considered all the oral evidences adduced on behalf of the plaintiff to substantiate the genuineness of the will and also the counter evidence adduced on behalf of the defendants, concluded that the will is not genuine and the same is seriously suspicious in absence of any cogent evidence brought on the record justifying the execution of the will in favour of the plaintiff ignoring the Class - I heirs remaining alive and also the evidence of important witness like the attesting witness and also the Scribe. The court below besides the oral evidence also perused and appreciated the signature of the testator with his admitted signature available on the record vide Exhibit -6 series as also the contradictory reports of the handwriting experts vide Exhibits 2 and 2A. The Trial Court on comparing the signature of the testator appearing on the will with the admitted signatures on the registered sale deeds Exhibit - 6 series found that signatures differed materially in the manner of its writing. The will was held to be not genuine suffering from serious suspicion with respect to its execution, the suit was accordingly, dismissed.
6. Mr. K.N. Choubey, learned Senior Counsel appearing for the appellant submits that the will in question was a genuine will executed by the testator who was living with the plaintiff in the same village Gori. The plaintiff used to look after the testator and his property and as such, it was nothing uncommon if the will in question is executed in favour of the plaintiff. The attesting witnesses Rameshwar Pandey (P.W.1) and Suresh Choubey (P.W.2) in their evidence duly supported the execution of the will which was scribed by Kameshwar Prasad Sinha (P.W.7). It is further submitted that the Court below placed undue importance with respect to the total area of the land/property for which the will was executed. It is further contended that the Court below failed to appreciate the oral as also the documentary evidence adduced on behalf of the plaintiff to justify the execution of the will and its genuiness. With regard to the execution of the will in favour of the plaintiff who is the nephew, it is submitted that the testator long back had executed certain properties to his widow Apnano Kuer vide gift deed dated 28.02.1962 (Exhibit - 9). Later, Apnano Kuer had also given certain property to her daughter Ramavati Devi as per the gift vide Exhibit -9/1 and as such, execution of the will in question cannot be held to be improbable and no element of doubt could be attributed on execution of will in question. Besides the above, it is submitted that in the aforesaid Title Suit No. 82 of 1987, the evidence of Tapeshra Kuer the other widow of the testator supports the execution of the will. Learned counsel for the appellant accordingly, submits that the judgement and decree under appeal deserves to be set aside and the plaintiff be granted probate of the will dated 15.10.1984 (Exhibit - I).
7. Mr. Dhrub Narayan, learned Senior counsel appearing for the defendant, on the other hand, submits that the Court below carefully perused and appreciated the evidence of all the plaintiff''s witnesses and the documents brought on the record in order to justify the execution of the will and its genuineness. The Court while appreciating the evidences categorically found that the evidences of the attesting witnesses as also the Scribe that the witnesses were not sure as to the nature of documents on which they were signing on the documents. The Scribe, namely, Kameshwar Prasad Sinha (P.W.-7) was equally not sure as to what did he write whether a document of gift or will as such, Trial Court rightly did not find their evidence worth reliable in order to consider the claim of genuineness of the will. With respect to the signature of the testator on the will, it was equally found that the same differs materially in signatures on the will with the admitted signatures of the testator on the sale deed. The signatures over the admitted sale deed are free from any doubt whereas the signature on the will in question was having serious vibrations. The opinion of the two handwriting experts were contradictory. The handwriting expert on behalf of the plaintiff claimed the signature over the will and the admitted signature on the sale deeds were of the testator whereas the handwriting expert of the defendant categorically stated that the signature over the will differs materially from the admitted signatures. The Trial Court in the above circumstances itself perused The signatures of the testator over the will and his available admitted signatures on the record and found that the signature of the testator over the will differs materially from the admitted signature since the signature over the will have vibrations whereas the admitted signature on the sale deed appears to have been signed in a normal way. In other words, it is submitted that the execution of the will, the signature of the testator as also the contradictory measurement of land mentioned in the will as also in absence of any property remaining with the testator, the execution of the deed of gift by the widow Apnano Kuer in favour of the plaintiff was enough to conclude that the forged and fabricated will in question was brought into existence and sought to be probated on receiving the summons of the suit vide Title Suit No. 82 of 1987 challenged the alleged gift dated 20.02.1987 executed by Apnano Kuer in favour of the plaintiff. It was accordingly submitted that the judgement and decree under appeal being absolutely correct on facts and law, deserves to be upheld and the appeal be dismissed.
8. Considering the rival submissions of the parties as also the evidences on the record, it would appear that the primary controversy is with respect to the genuineness of the will. The plaintiff-Appellant herein on the basis of the evidence on the record claimed to have substantiated the genuineness of the will whereas the defendant vehemently opposed the claim of the plaintiff. From the evidence on the record, it would appear that besides proving Chowkidari receipts in addition to other documents in order to justify the possession over the land under the appeal, the plaintiff adduced the evidence of the attesting witnesses Rameshwar Pandey (P.W.1), Suresh Choubey (P.W.2) as also the evidence of Kameshwar Prasad Sinha (P.W.7). The Sada will dated 15.10.1984 was sought to be proved as genuine on the basis of the evidences of the above witnesses. Besides the opinion of the handwriting expert, the claim of the plaintiff that Sitaram Rai was living with plaintiff separately from two widows namely, Apnano Kuer and Tapeshra Kuer as well as his daughter Ramawati Devi could not be appreciated as the plaintiff had admittedly sold all his property in the village Gori. The plaintiff''s witnesses stated that the will was executed at the Varanda of the house of Sitaram Rai. The pertinent question is where Sitaram Rai was living; whether in his house or with the plaintiff and where the two widows and the daughter were living. On the question of the execution of the will, it is also not clear the place where the will was executed; whether in the house of Sitaram Rai at Gori or at Sasaram Town. On perusal of the endorsement of Scribe, namely, Kameshwar Prasad Sinha (P.W.7) on the will, it would appear that the will was executed at Sasaram whereas attesting witness PW1 and PW2 claimed that it was executed in village Gori. The question is whose evidence is to be accepted; whether of the attesting witnesses or of the Scribe. Besides, the Scribe was equally not sure what nature of document he scribed; whether will or a gift, and what he explained to the testator with respect to the contents of the documents; whether it was the will or gift. The will in question being Sada of course, it can be executed, however, the same needs to be considered in light of the evidences and surrounding circumstances leading to the execution of the will in order to hold its genuineness. The genuine will must be executed under normal prevailing circumstances leaving no manner of doubt in its execution. In the instant case, the justification for executing the will in favour of the plaintiff ignoring the rightful claim of the widow and his daughter under the normal law of succession entitling them to succeed to the estate of Sitaram Rai in absence of any evidence on the record that the testator was living away from his widow and even though there is nothing on the record to suggest that the testator has any cause to live separately and that too which is the place of the testator was living at the time of execution of the will. Even though the area of land mentioned in the will as also the evidence of Ramadhar Singh (P.W.4) materially differs, at least what are the details of the plot irrespective of the fact that whether it is 10 Bighas or 6.5 Bighas, as mentioned in the will as also about 18 Bighas as stated by P.W.4, the identity of the land under the will suffers from vagueness. This apart, a question arise as to what is the reason of leaving half page blank on the first and last page as also at various places where the value of the property was to be mentioned. Nothing has been explained, creating serious doubt that if so required something more could be mentioned in the document. On the question of signatures, I have also looked into the signatures of Sitaram Rai on the will in question with the admitted signature on the sale deed dated 12.07.1980 and 15.10.1980 vide Exhibit 6 and 6/1 respectively. It appears that variations in the signatures could not be held to be within the normal acceptable range. The signature of the testator on the will appears either not written by him or he was asked to put his signature before the document in written. As regards the possession, the Widow Mostt. Tapeshra Kuer and the daughter Ramawati Devi categorically stated that they are living in the same house of Sitaram Rai. As against this on behalf of the plaintiff no evidence is brought on the record to show as to where they were living. In other words, all the relevant circumstances leading to the execution of the will and the very fact of his execution are not suggestive in favour of the genuineness of the will.
9. On perusal of the judgement and decree, I find that the Court below has meticulously considered and appreciated in its correct perspective all the evidences adduced on behalf of the respective parties on the record including the signature of the Sitaram Rai on the will in question and rightly concluded that the will is not genuine. I do not find any valid ground to disagree with the findings and conclusions of the court below. In the result, for the reasons and discussions made above, I do not find any merit in this appeal, the same is accordingly dismissed with cost of Rs. 5000/- (five thousand) only.
