KEDARNATH Vs. SITARAM

JUDGEMENT

(1.) THIS is a special appeal against an order of a learned Single Judge of this court by which the appellant's application for grant of probate was dismissed.

(2.) THE material facts leading upto this appeal are these. One Maliram who is the alleged testator of the will Ex. P. 2 is said to have made it on the 11th October, 1944. THE will was registered on the 11th January, 1945. Maliram died on the 5th November, 1946. THE appellant before us is one of his two sons Kedar Nath, and the respondent Sitaram is the other son. Kedar Nath filed an application for probate in the court of the District judge, Jaipur, on the 28th April 1952. Sitaram resisted this application. His case was that his father Maliram had not executed any will at all and further that at the time he is alleged to have executed the will, he was so ill that he had no sound disposing mind. He also objected that the testator had no right to make a will in respect of the property in question; but with that aspect of the case, we are not concerned so far as these probate proceedings go. THE only issue which was framed by the trial court on the aforesaid pleadings was whether the deceased executed a valid will in favour of the applicant on the 11th October, 1944. That court, as a result of the consideration of the evidence led by both parties, came to the conclusion that it was not convinced that the will was executed by the deceased and signed by him while he had a sound disposing mind. THE trial court also held that the signature of the respondent Sitaram appeared to be fabricated. It was also persuaded to hold that the appellant Kedar Nath who was the legatee under the will had taken a prominent part in the execution of the will by his father and on this ground also the will was a very suspicious document. THE trial court, therefore, dismissed the application for probate with costs.

(3.) THIS brings us to the crux of the case, namely, whether the will in question ( Ex. P. 2 ) was properly attested. A free translation of the will in English has been given in the judgment of the learned Single Judge, and we do not consider it necessary to give it here in extenso, and we shall content ourselves by reproducing only such portion thereof as are material for the purposes of deciding the question of attestation. At the very beginning of the will, we find the following words : "i, Maliram, son of Gopinath, Khandelwal of Jaipur Chowkri Purani Basti Rasta Govindrajiyan, shop keeper of groceries in Kishenpol Bazar. " Then the testator goes on to mention that he has two sons Sitaram and Kedarnath,and that of these Kedar Nath had been brought up by Mst. Bhuri ( who was a sonless widow of Jagannath) since his childhood and that Kedarnath had been living in the house of Jagannath. It is further mentioned that a partition of the ancestral property had already been made between the testator and his other son Sitaram and that they were in possession of their respective shares ever since the partition had been made. Thereafter, the testator goes on to mention that he was an old man of 75 years and that Kedarnath had been serving him very well. He, therefore, desired that Kedarnath should have his share of the property after the death of himself and his wife. It was with this object that he (the testator) was making this will" toeing in sound mind and full senses". The will is dated the 11th October, 1944. Immediately thereafter there is the signature of the testator Maliram. Below the signature of Maliram, there is the signature of Badrinarain, and his endorsement is to the effect that he had signed the document at the instance of Mali Ram and Sita Ram. Just opposite the signature of Mali Ram, almost in the same line, appears the signature of Sitaram. As stated by the learned Single Judge, the signature of Sitaram is preceded by the word "d" which is an abbreviation of "dastkhat" or "signed by". Before the signature of Badrinarain however there appears the word 'g' which is an abbreviation of the word "gavah" or witness. According to the learned single Judge this "g" stands for witness but the same could not be true of the word "d" used by Sitaram. The learned Judge seems to have been greatly impressed by the circumstance that the word "g" was not used by Sitaram as a prefix to his signature but instead he had used the word "d" and that this indicates the difference in the respective capacities in which each of them signed the document. The other important circumstance to which it is necessary to draw attention in this connection is that Badrinarain in his endorsement had said that he was putting his signature at the instance of Maliram and Sitaram and this factor also seems to have influenced the learned single Judge very considerably in coming to the conclusion to which he did, namely, that Sita-Ram was not an attesting witness of this document. With all respect, the positive finding to which the learned single Judge has come in connection with the signature of the respondent Sitaram is not entirely consistent, inasmuch as at one place, his view appears to be that Sitaram had signed it as an executant while at another place he seems to have been of the opinion that he had signed the same in token of his consent thereto. But, in any case, this much is certain that the view of the learned single Judge was, in the light of the circumstances mentioned above, that Sitaram had not signed the document as an attesting witness. In coming to this conclusion, considerable reliance seems to have been placed on a decision of their Lordships of the Privy Council in Sarkar Barnard & Co. V. Alak Manjary Kauri (3 ). We have given our most careful consideration to this aspect of the case, and with all respect, we do not find ourselves in a position to concur in the finding arrived at by the learned Single Judge. We may point out at the outset that so far as Sitaram himself was concerned, he completely denied his signatures on the will Ex. P. 2. It has been held by the learned single Judge himself that this denial is absolutely false and we agree with this finding. For, there is the evidence of P. W. Basantilal and of P. W. Badrinarain, apart from that of P,w. 7 the appellant Kedarnath, that Sitaram was present at the time the will was signed by the deceased Maliram and that he had put his signatures on the same in their presence. We see no reason whatsoever to disbelieve the testimony of these witnesses, which has not been shaken in cross examination in any manner whatsoever. We may also draw attention to the fact that it was not the case of Sitaram that he had not signed the will as an attesting witness but in token of his having consented to it. There is nothing in the testimony of Sitaram himself or his witnesses to this effect. We may also point out that no cross examination was directed against the witnesses of the appellant Kedarnath to elicit this circumstance. We must have, therefore, very strong reasons to come to the conclusion that the will had been signed by Sitaram, either as an executant or as a consenting party thereto. We have looked minutely into the entire material on the record of this case in Order to see whether we can properly come to such a conclusion but have not been able to find anything in the evidence worth the name. Let us refer in this connection to the evidence of P. W. 2 Basantilal, the scribe. The evidence of this witness is that he had drawn up the will Ex. P. 2 in accordance with the instructions given to him by the deceased Maliram. His evidence further is that Maliram has put his signature on it in his presence and that Sitaram and Badrinarain had witnessed the same (Sitaram Badrinarayan AGAHI HAI ). The witness further amplified the aforesaid statement by saying that the marginal witness Sitaram was Maliram's eldest son. In the cross examination, the witness admitted that he did not know Sitaram, who was Maliram's son, at the time Sitaram witnessed the will. No question whatsoever was put to this witness on behalf of Sitaram that the signature put by the latter on the will was not as an attesting witness but by way of giving his consent to the will. We should have expected that some such question should have been put to the witness if the respondent's case at any time was that he had signed the will not as an attesting witness but in any other capacity.