PARAS MAL Vs. FATEH CHAND

JUDGEMENT

(1.) This appeal has been filed under section 299, Indian Succession Act, 1925 (hereinafter to be called 'the Act') against the judgment of the learned District Judge, Merta dated June 29, 1982 by which he has dismissed the petition moved under Sec. 278 of the Act for the grant of letters of administration with the will left by the deceased Mst. Gulab. The facts of the case giving rise to this appeal maybe summarised thus. On Aug. 28, 1970, the petitioner appellant moved a petition under Sec. 278 of the Act with the averments that Mst. Gulab widow of Mohan Lal Jain, resident of Nawa, was living with him since long, she died in Nawa on June 13, 1970 leaving him and his brothers Mahavir and Fateh Chand as her collaterals, Fateh Chand and Mahaveer are living separately from him since long, he looked after and served Mst. Gulab, she executed a will on June 7,1970 in his favour in respect of all her properties, the will was scribed by Chaturbhuj AW 2 and has been attested by Bal Chand AW 7, Chouthmal Jain AW 8, Shafi Mohd. AW 4 and Ganesh Kumar AW 3. It has further been averred that she has left a house situated in Nawa City consisting of one room and kitchen of value of Rs. 500.00, an amount of Rs. 2,200.00, payable by Kaluram given to him as loan and a Fixed Deposit of Rs. 3,400.00 in the State Bank of Bikaner and Jaipur, Nawa, gold and silver ornaments of about Rs. 900.00 and cash of Rs. 419.00. It is also stated that according to her wishes, he has spent Rs. 2,000.00 in performing her last rites. Usual notices and proclamation were issued. Shri Nath Raj Singhvi Advocate filed his power for and on behalf of Mahavir Prasad and Fatch Chand. Fatch Chand filed his reply admitting that he was one of her collaterals, she died on June 13, 1970, she was living in the ancestral house, she obtained a Fixed Deposit Receipt from the State Bank of Bikaner and Jaipur, Nawa for Rs. 3,400.00 in her and his names. The remaining allegations of the petition were denied. It has further been averred that the relations between the petitioner and Mst. Gulab were strained, there was no question of leaving a will in his favour, it has been forged, it was not disclosed by the petitioner in his statement recorded in the escheat proceeding by the Tehsildar, Nawa, the alleged will has not been attested by any of his local relations or neighbours, the properties left by her have been under- valued, he (non-petitioner) was looking after her and got her treatment done by doctor and vaidhya. After framing necessary issues and recording the evidence of the parties, the learned District Judge held that the will has been forged and has accordingly dismissed the petition by his judgment under challenge. It has been contended by the learned counsel for the appellant that the learned District Judge has not properly appreciated the evidence on record, his judgment is based on surmises and conjectures, he has rejected the appellant's evidence on flimsy and untenable grounds and the appellant offered good reason for not disclosing about the will Ex. I in his statement Ex. A/1 recorded by the Tehsildar, Nawa in the escheat proceeding. He further contended that the learned District Judge has seriously erred in placing reliance upon the testimony of the Hand Writing Expert Sri Krishna Charan who was biased in favour of the respondent who called and paid him. He also contended that the learned District Judge ignored the various admissions made by the opposite party-respondent in his statement. He lastly contended that the will was duly proved and there was no suspicious circumstance attending it. The learned counsel for the respondent duly supported the judgment under appeal. Before enumerating important facts and circumstances appearing on record creating great suspicion in the genuineness of the will, it would be better to quote the following observations of their lordships of the Supreme Court made in Kalyan Singh Vs. Chhoti, AIR 1990 SC 396 :-

(2.) Admittedly, on Aug. 1, 1960, Mst. Gulab obtained a Fixed Deposit Receipt for Rs. 3,400.00 from the State Bank of Bikaner and Jaipur, Nawa in the joint name of herself and Fateh Chand respondent. If Mst. Gulab would have been living with the appellant and he was looking after her, she would have taken the appellant to the Bank and obtained Fixed Deposit Receipt in the joint name of the appellant instead of the respondent Fateh Chand. Admittedly, she did not take steps for the substitution of the name of the appellant Parasmal in place of the respondent Fateh Chand in the said Fixed Deposit Receipt. No. explanation could be offered by the learned counsel for the appellant as to why the deceased Mst. Gulab did so.

(3.) The appellant admits in his cross-examination that there are about 67 families of the community of the deceased Gulab in the town of Nawa. No, member of her community has attested the will Ex. 1. He further admits that her relation Balchand AW 7 was a resident of Jobner and he was a chance witness. The other witnesses i.e. Ganesh Kumar AW 3 and Shafi Mohd. AW 4, belong to other community. They were also chance witnesses.