SUSHILA DEVI Vs. PANDIR KRISHNA KUMAR MISSIR

JUDGEMENT

(1.) In this appeal by certificate the sole question that arises for decision is whether the will said to have been executed by Mahamahopadhya Shyamnarain Chaturvedi (who will be hereinafter referred to as the testator) on November 25, 1945 is genuine. The testator died on February 26, 1946. Some of the beneficiaries under the will including the first respondent to this appeal sought to probate the said will before the court of District Judge, Saran. Before the learned District Judge, two questions arose for decision viz. (1) whether the will propounded is genuine and (2) whether the testator was in a sound and disposing state of mind at the time he is alleged to have executed the will. The trial court held that the will was not proved to be genuine. But as to the mental condition of the testator at about the time of the execution of the will, it rejected the contention of the objectors and came to the conclusion that he was in a sound disposing state of mind. The applicants took up the matter in appeal to the High Court of Patna. In the High Court the finding of the trial court that the testator was in a sound disposing state of mind at about the time of the execution of the will was not challenged by the contesting respondents. The only question that was put in issue before the High Court was as regards the genuineness of the will.

(2.) Now coming to the genuinetress of the will propounded, it was not denied that the signature found on the said will is that of the testator. The case put forward on behalf of the objectors was that one of the beneficiaries under the will namely Govindmani Tripathi who was living with the testator, used to take signatures of the deceased on blank papers for the purpose of certain litigations and the will put forward must have been written up in one of those papers.

(3.) The will was attested by as many as six persons, out of them four have been examined in court. The trial court did not accept the testimany of these witnesses. It further opined that the will is an unnatural will inasmuch as under that will no property was bequeathed to the appellant whereas substantial bequests have been made to Kamla Prasad mani Tripathi the first son-in-law of the deceased as well as to Govindmani Tripathi son of the aforesaid Kamla Prasadmani Tripathi. Some bequests have also been made in favour of some of the collaterals of the deceased but no bequest whatsoever was made to the appellant. The trial court concluded from that circumstance coupled with the circumstances that the will was written on an inferior type of paper, the writing of the will in some places is close and several of the witnesses who attested the will were chance witnesses that the genuineness of the will has not been satisfactorily proved. In appeal the High Court did not agree with the trial court that the evidence adduced in support of the execution of the will is not reliable. It opined that the witnesses who spoke to the execution of the will are respectable witnesses and that there are no reasons to disbelieve their testimony. It was unable to agree with the trial court that they were chance witness. It did not agree with the trail court that because the will was written on an inferior paper, its genuinetress is open to doubt. It also disagreed with the trial court that writing of the will gave rise to any suspicion as regards its genuineness. While coming to the aforementioned conclusion, it did bear in mind the fact that a court of appeal must be slow to upset a finding of fact reached by the trial court but yet it was of the opinion that the conclusion reached by the trail court were basically erroneous and further the learned trial Judge who decided the matter in the trial court did not have the benefit of seeing most of the witness examined in the case as they were examined before his predecesor. The High Court did attach significance to the circumstance that no bequest under the will had been made to the appellant though the testator loved her as much as his elder daughter Monorama. But on the basis of the evidence on record, it opined that the testator was treating Govindmani Tripathi as his Putrika Putra and in fact he was thinking of bequeathing all his properties to him. The High Court also relied on the evidence adduced in the case that the testator must have paid some cash to the appellant before the execution of the will and further he must have thought that there was no need to make any bequest in her favour as her husband, a Muktyar was reasonably well placed in life whereas his first son-in-law Kamla Prasadmani Tripathi and his son Govindmani Tripathi were dependent on him for their livelihood.