KAMLA Vs. GIRDHARI

JUDGEMENT

(1.) THESE two appeals under sec. 299 of the Indian Succession Act, 1925 read with sec. 96, Code of Civil Procedure, are directed against the order of the District Judge, Jodhpur, in civil miscellaneous case No. 5-A of 1958 granting probate to respondent No. 1 Girdhari Singh. One of the appeals is by Mst. Kamla and the other is by Shivsingh, both of whom had opposed the grant of probate to the respondent No. 1 Girdhari Singh.

(2.) THE facts leading to these appeals may be briefly stated as follows : Mst. Shivi the deceased who will hereinafter be referred to as testatrix, made a will on 1. 3. 1957 at Jodhpur bequeathing all her property to Girdhari Singh respondent No. 1. THE will began with the recital of old age of the testatrix and of uncertainty of her future life and indicated the testatrix's desire to create a will in order to avoid future disputes about her property. Next, she proceeded to state in the will that she had no son but had one daughter who had been missing for years. She further stated that her daughter had given birth to a son named Mohan who had been murdered by his father. Thus, she had no living descendant. THE will then referred to earlier wills. THE recital shows that initially she had executed a will in favour of her grand son Mohan. It was then recited that Mohan and Mohan's father had beaten her and behaved cruely with her and instituted cases against her. Having been annoyed with their behaviour she had cancelled the will made in favour of Mohan and executed another will in favour of her brother Shivnarain. It was further stated that this will was got registered in the office of Sub-Registrar. , Jodhpur. It was then recited that after this will Shivnarain and his wife also commenced behaving improperly with her. Shivnarain refused to render any service to her and look after her. She then started living with Girdhari Singh respondent No. 1, who is the son in law of her sister. THE will then further proceeded to say that Girdhari Singh had been rendering service to her and had been providing food and cloth to her. She expressed her great satisfaction over the treatment she received at Girdhari Singh's hands and this induced her to bequeath the entire property to Girdhari Singh. This will was scribed by Shri Kishan Chandra Gaur, Advocate, and was attested by Manohar Benugopal Besrurkar, Divisional Engineer, Northern Railway Jodhpur, A. S. Sancheti, Divisional Accounts Officer, Northern Railway, Jodhpur, and U. S. Gupta, Assistant Engineer, Northern Railway, Jodhpur. Mst. Shivi according to the respondent Girdhari Singh died on 2. 3. 1957 at Jodhpur. Girdhari Singh filed an application in District Court for granting the probate of the will in his favour mentioning 2nd March, 1957, as the date of the death of Mst. Shivi and claiming probate in his favour. Objections were filed by three persons, namely, (1) Shivsingh son, inlaw of Mst. Shivi. (2) Shivnarain, brother of Mst. Shivi. (3) Mst. Kamla, widow of Mohan, Mst. Shivi's daughter's son. Initially in his written statement the objector Shivsingh admitted the fact of Mst. Shivi having died on 2. 3. 1957. However, Shiv Singh denied that Mst. Shivi had executed any will. He further alleged that Mst. Shivi was not competent to execute a will because the house alleged to have been bequeathed, belonged to him. He further stated that the house in dispute had been constructed with the help of the sale proceeds of a house which had been gifted to him, and had been in his possession. Mst. Kamla in opposing the grant took the following pleas - (1) That she is legitimate heir of Mst. Shivi. (2) That she had been in possession of the house alleged to have been bequeathed since the life time of Mst. Shivi. She further unambiguously stated that Mst. Shivi had willed away or gifted the property to her husband Mohan and rent notes in respect of the portion of the house had been executed in Mohan's name. She admitted that at the time of Mst. Shivi's death she was at the house of Girdhari Singh but stated that she had gone there temporarily in connection with the marriage of Girdhari Singh's daughters. She also stated that Mst. Shivi died between 1st and 2nd March on account of shock caused because of the murder of Mohan. She also denied that Mst. Shivi had executed any will and pleaded that Mst. Shivi was not in a fit state to execute the will. According to her, she was very old, say 70 or 75 years, and was a patient of asthma, and after Mohan's death she could not speak or hear. She definitely stated that the will has been forged and the respondent had succeeded in getting the will attested by officers of the Railway by flattery.

(3.) IN Gordhandas Nathalal Patel vs. Bal Suraj and others (7) a Division Bench of the Bombay High Court consisting of Macleod G. J. and Shah J. observed - "it is well settled now that it need not be proved that a testator, in order that his will may be found good by a court, was in a perfect state of health, or that his mind was so clear as to enable him to give complicated instructions. It is sufficient if it is proved that he was able to give the outlines of the manner in which his estate was to be disposed of, and was able, when the result of the lawyer's efforts was read out to him, to understand that his instructions in the main had been complied with. "