JUDGMENT Sunil Ambwani, J.
1. The Testamentary Suit No. 5 of 1995 is filed by the Administrator General U.P. and Testamentary Suit No. 9 of 1998 by Shri Prabir Kumar Dutta, both for Letters of Administration of the estate and credits of Smt. Bimala Neogi D/o Late Dr. Brindaban Chandra Sur, resident of 410, Mumfordganj, Allahabad, died on 02.2.1994 at Allahabad.
2. In Testamentary Suit No. 5 of 1995 filed by the Administrator General, U.P. it is alleged that Smt. Bimla Neogi, a widow died issueless leaving behind her brother Shri S.C. Sur and two nephews Shri Ratan Sur and Shri Asim Sur, residents of 48, P.K. Ganguly Road, Post Office, Bali, Howrah. Notices were issued to them. They have not contested the suit. Smt. Bimla Neogi (the deceased) executed a will on 29.4.1992, registered by Sub-Registrar, Chail, Allahabad on the same date, on commission, at her residence, and is witnessed by Mrs. Bulbul Dey and Deepa Dutt Roy, both of whom have died. She bequeathed her properties for charity and appointed Shri Shanker Singh Chaudhary as the executor and trustee in the will to set up an old age home in her house.
3. The deceased Smt. Bimla Neogi was head of the department, Fine Arts, Allahabad University. Shri Shanker Singh Choudhery, a neighbour had retired as District Magistrate. Due to his advancing age and preoccupation Shri Shanker Singh Choudhery executed a letter of renunciation of executorship of the will under Section 230 of the Indian Succession Act, 1925 in favour of the Administrator General, U.P.
4. In Testamentary Suit No. 9 of 1998 Shri Prabir Kumar Dutta, son of S.K. Dutta, a Physiotherapist attending Smt. Bimla Neogi after she suffered a stroke of paralysis claims that she had named him as a legatee in the will dated 17.11.1989. Shri Prabir Kumar Dutta, has set up another will dated 25.1.1993 attested by Smt. Bulbul Dey and Shri P.N. Chaterjee. Shri P.N. Chaterjee was examined on commission on 31.10.1999 by Shri P.K. Ganguly, Advocate vide his report (A-107).
5. A third Testamentary Suit No. 12 of 1998 was filed by Shri Satish Chandra Jaiswal, who died during the pendency of the suit. By order dated 09.5.2000 the testamentary suit No. 12 of 1998 was decided giving right to the heirs of Shri Satish Chandra Jaiswal claiming properties of Smt. Bimla Neogi through will, to be impleaded as caveators in Testamentary Suit No. 5 of 1995 and Testamentary Suit No. 9 of 1998. The heirs of Shri Satish Chandra Jaiswal, however, did not filed caveat or sought impleadment in the pending testamentary suits
6. The issues were framed on 21.8.1995:
(1) Whether the alleged Will dated 29.4.1992 was duly and validly executed by the testatrix?
(2) Whether the alleged Will dated 29.4.1992 was executed under undue influence of Shankar Singh as alleged in paragraph '16' of the counter affidavit/written statement?
(3) Whether the alleged Will dated 12.1.1993 was genuinely and validly executed by the deceased testatrix and is the last Will of the deceased?
(4) Whether the alleged Will dated 12.1.1993 is a forged document as alleged?
(5) Whether the deceased executed the Will dated 17.11.1989 in favour of Pravir Kumar Datta?
(6) Whether the petition for grant of Letters of Administration is legally not maintainable?
(7) To what relief if any, is the plaintiff entitled.
7. Issue No. 6 was amended on 13.3.1996 as follows:
Whether the petition for the grant of Letters of Administration is not maintainable as pleaded in paragraph Nos. 10 and 11 of the written statement?
8. In Testamentary Suit No. 5 of 1995 Shri J. Nagar, the Administrator General submits that both the witnesses to the will namely Smt. Bulbul Dey and Deepa Dutt Roy have expired. Shri Yogesh Kumar Goel (PW-2), the scribe proved the will under Section 69 of the Evidence Act. Shri Yogesh Kumar Goyal son of Shri Satya Prakash Goyal resident of 533, Mamfodganj, Allahabad (PW-2) is an Advocate practicing in Civil Court since 1976. He deposed that he had drafted the will dated 29.4.1992 on the instructions of Smt. Bimla Neogi. It was typed by Shri Shambhu Nath, a typist of Civil Court, Allahabad. Smt. Bimla Neogi signed on the will in her own handwriting in roman characters. It was, thereafter, signed by Smt. Bulbul Dey and Smt. Deepa Dutt Roy in the presence of Smt. Bimla Neogi and in the presence of each other. The will was made by her, in sound and disposing mind and presented by the deceased before the Sub-Registrar. In the cross-examination he stated that Smt. Bimla Neogi had herself came to him and on her instructions he had prepared the will. He has not filed the notes. She was an educated lady and had read the will. It was not read over to her. She first read the draft, which was typed and thereafter, signed on it. The will was registered before the Registrar at the Collectorate. She had come on her own. No one had brought her to the Collectorate. The witness knew her as she was residing in same locality in which the witness was living. He did not know whether she had suffered an attack of paralysis in 1991 and did not remember whether she had signed with the left or right hand. He was present, when the will was registered.
9. The letter of renunciation has been proved by Shri Rakesh Kumar Pandey (PW-1), the retired Office Superintendent in the office of the Administrator General. He was posted in the office in 1994. He deposed that Shri Shanker Singh came to the office of the Administrator General on 23.3.1994 and gave a letter stating that due to his old age and preoccupation he is unable to perform his duties to fulfill the wishes of the deceased as envisaged in her will dated 29.4.1992. He had requested the Administrator General to apply for probate and handed over the copy of the will to the then Administrator General Shri N.C. Rajvanshi. In the cross-examination Shri Rakesh Kumar Pandey read and proved paper No. A-7/1 and stated that it is the same will, which was brought by Shri Shanker Singh to Shri N.C. Rajvanshi, the Administrator General and A-9/1 is the same application on which Shri Shanker Singh had signed. He had gone to make inquiries in the matter and had seen Shri Shanker Singh reading and writing. He sat with him for about one or two hours. Shri N.C. Rajvanshi, the then Administrator General reported the matter to Shri Alok Ranjan, IAS, the then District Magistrate on 24.2.1994 (paper No. A-10), who then wrote to the Senior Superintendent of Police, Allahabad on 28.2.1994 (paper No. A-11), to protect the property by posting a police force and also inform the then City Magistrate Allahabad. The execution of will of Late Smt. Bimla Neogi dated 29.4.1992 in favour of Shri Shanker Singh, the executor, and letter of renunciation executed by Shri Shanker Singh in favour of the Administrator General is proved on record. The plaintiff did not lead reliable evidence to prove the alleged fact of undue influence by Shri Shankar Singh on the deceased.
10. Shri P.K. Mukherjee, learned Counsel for Shri Prabir Kumar Dutta, the plaintiff in the connected Testamentary Suit No. 9 of 1998, submits that the deceased was an issueless widow. There was no one to look after her. Shri Prabir Kumar Dutta and her father Shri S.K. Dutta were looking after the deceased. She executed a registered will in favour of Shri Prabir Kumar Dutta on 12.1.1993. She had suffered slip disk in 1969 and was treated by Dr. B.K. Dutta on PG Hospital, Calcutta, where she met with Ex-General Shri A.K. Gupta, AMC Surgical, Superintendent of PG Hospital. Shir A.K. Gupta gave her the address of Dr. S.K. Dutta-Gupta a Physiotherapist working in Moti Lal Nehru Medical College and practicing as Physiotherapist at Allahabad after his retirement. Dr. S.K. Dutta treated her for several months and developed relations with her as her elder sister.
11. The deceased had broken her right hand in the year 1972. Dr. S.K. Dutta again treated her for six months on the advise of Dr. U.S. Misra of MLN Medical College, Allahabad. She used to live alone and whenever she felt sick, she came to the house of Shri Prabir Kumar Dutta and was provided service of doctors. In 1988 she had a mild heart attack. She was taken by Dr. S.K. Dutta to Dr. R.K. Agrawal to perform ECG and was treated on his advise.
12. In may 1991 she had severe stroke due to high blood pressure and suffered paralysis of the right side of her body with a head injury. She was brought to the residence of Dr. S.K. Dutta and was thereafter hospitalized. She was also treated by Dr. Chauhan, Neuro Surgeon and Dr. A.N. Verma. Her scan and x-ray were done. She was semiconscious for 20 days and was then shifted to her house.
13. Shri P.K. Mukherji submits that the brother of the deceased Shri Subhash Chandra came to see her and arranged for fix deposits of Rs. 1,50,000/- for the deceased jointly, in the name of his wife, nephews and Dr. S.K. Dutta. He gave him the responsibility of looking after the deceased. When it became difficult to meet the expenses the deceased had kept some money in the joint account with Dr. S.K. Dutta. The deceased was very much attached to the family of Dr. S.K. Dutta and executed a registered will dated 17.11.1989 giving all her immovable and movable property to Shri Prabir Kumar Dutta. Shri Mukherjee submits as the deceased was alone in the house Shri Shankar Singh Chaudhary used to visit her and persuaded her to execute a will dated 29.4.1992 for which he has asked for a probate. There was no occasion to make the will dated 09.4.1992 in favour of Shri Shankar Singh Chaudhary. The deceased executed another will dated 12.1.1993 giving all her property in favour of Shri Prabir Kumar Gupta and cancelled the previous will in favour of Shri Shankar Singh Chaudhary dated 29.4.1992.
14. In T.S. No. 9 of 1998 Shri Prabir Kumar Dutta has applied for letters of administration on the basis of will dated 12.1.1993, by which she also revoked her earlier wills.
15. On an application filed by Shri P.K. Mukherji, Shri P.K. Ganguly was appointed as Advocate Commissioner by the Court for examining Shri P.N. Chaterji, the witness to the registered will dated 12.1.1993 executed by the deceased in favour of Shri Prabir Kumar Dutta. Shri P.K. Ganguly examined the witness on 31.10.1999 at his residence and submitted his report (Paper No. A-107). Shri J. Nagar cross-examined the witness at his residence on the same day.
16. Shri P.N. Chaterjee, aged 86 years son of late Shri N.C. Chaterji, resident of 66, New Katra, Allahabad, the only surviving attesting witness to the will dated 12.1.1993 stated that he was teacher in Allahabad University from 1948 to 1975 in the department of education. He knew Smt. Bimla Neogi very well. She was also a teacher in the University in Fine Arts. He could not say as to when she retired. After her retirement she shifted to her house in Mumfordganj, which is near to his house. She retired after him. He used to visit her almost everyday. She was ill in 1993. She had a stroke in 1991. Her right side was affected. She was able to walk and go upto toilet with the help of someone. She was in full senses. He knew Dr. S.K. Dutta very well. He was a Physiotherapist, as he had heard in the medical college. He used to take care of her and other things like banking, payment of electricity bills, house tax etc. He was visiting Smt. Bimla Neogi frequently. His son is Gopal (nick name). The witness did not remember his full name. He was also visiting Smt. Bimla Neogi. Mrs. Neogi visited Dr. Dutta at his house frequently. Mrs. Neogi fell ill in February, 1991 and Dr. Dutta was summoned, who took her to his house near Sohbatia Bagh, Railway over bridge. She stayed there for more than two months. The witness visited Mrs. Neogi at the house of Dr. S.K. Dutta.
17. Shri P.N. Chaterjee further stated to Shri P.K. Ganguly, the Advocate Commissioner that he knew Mrs. Bulbul Day very well. She also resided in Mumfodganj. She died in February 1999. Smt. Bimla Neogi executed a will in favour of Gopal, the son of Shri S.K. Dutta. He was witness to the will. The will was executed in middle of January 1993. It was executed at her residence. The officer from Registry department had come to her house for registering the will. The witness was informed the day, the will was executed, to go to Mrs. Neogi's house for attesting the will. Shri Sanat Mukherji, Advocate informed him the previous day that his presence will be necessary for execution of the will. He reached therein the evening, where Mrs. Bulbul Day and Shri Sanat Mukherji were present. After some time the Sub-Registrar arrived with a peon and another gentleman, whom the witness did not know. The will was read out and explained to her. As far as the witness remember Shri Sanad Mukherji read out the will and explained it to her. The witness also heard the will. The property was given to Gopal son of Dr. Dutta. In the will the name of Gopal was not written but his good name was written, which the witness does not remember. The deceased did not consult him for execution of the will. In the discussion Mrs. Neogi wanted to give the house to her own brother residing at Calcutta but he refused, then the witness advised her to give it to Dr. Dutta, who was doing much for her. Dr. Dutta refused and then the witness advised her to give it to Dr. Dutta's son. The deceased signed the will and then her thumb impression was taken. Smt. Bimla Neogi signed the will by her left hand as her right side was paralysed. Mrs. Bulbul Day was first attesting witness and that he was the second attesting witness.
18. The witness then stated that his eyes fell totally for last one year. He walks on his own. He cannot read and write now. He signs the cheques. Smt. Bimal Neogi died in early February 1994. He did not go to the cremation and had heard that Gopal performed the last rites at the 'Ghat' and did 'Shradh Kriya Ceremony' at home. He was there.
19. In the short cross-examination by Shri J. Nagar the witness stated that Mrs. Neogi expressed her desire to execute the will for the first time about 2-3 years back and thereafter quite often. On a question whether Mrs. Neogi had executed any will in favour of Gopal earlier, the witness said that he does not know about it. The witness did not know as to who had drafted the will but knew that Shri Sanat Mukherji was helping her. He does not remember whether Shri Sanat Mukherji has himself drafted the will or some one else had drafted it. He remembered that Mrs. Neogi's brother lives in Howrah. The original will was not available at the time of execution of commission. The witness could not say whether the original will was there or not since he could not see. After cross examination the witness was called for re-examination. Shri P.K. Ganguly, Advocate tried to show to him a photocopy of the will to which the witness stated that he can feel the paper but cannot say what it is.
20. Dr. S.K. Dutta appeared as DW-2. In his affidavit he gave the same facts as are given in the written statement of her son Shri Prabir Kumar Dutta. In para 19 the witness stated that he used to spend approximately Rs. 1500/- per month for her treatment and other house expenses of Smt. Bimla Neogi. He proved the details of expenses filed on the list of document as paper No. A-65. He further stated that Rs. 1500/- was not sufficient as such he used to spend a lot on her. He had a joint account with Smt. Bimla Neogi. This money was also spent on her treatment. Shri Shankar Singh Chaudhary lived near the house of the deceased. He used to visit her after paralysis attack and started visiting her frequently. Shri Shankar Singh Choudhary had an evil eye over the property of Smt. Bimla Neogi and also on the interest of fix deposits. Shri Shankar Singh Chaudhary started harassing the lady servant Krishna engaged by him and looked after the deceased and ultimately turned her out and engaged another male servant Krishan and asked the witness to pay his salary. Krishan left the job within 6-7 months and ultimately lady servant Krishna was again engaged by him as lady servant to look after the lady. She also lived with her. The witness stated in para 25 of his affidavit filed as examination in chief that after the death of Smt. Bimla Neogi, Smt. Bulbul Day handed over to him a will dated 12.1.1993, which was duly executed by Smt. Bimla Neogi and was duly registered. She had executed the will out of love and affection in favour of his son Shri Prabir Kumar Dutta.
21. In the cross-examination Dr. S.K. Dutta stated that Smt. Neogi suffered a stroke of paralysis in 1989. There was considerable improvement in her in 1991 and she was walking with support. The witness did not know as to when he came to know about the will dated 12.1.1993. The witness did not remember as to when Smt. Bulbul Dey expired.
22. Shri Vir Bhartiya, a practicing lawyer in District Court Allahabad since 1976 was examined as PW-3. He is scribe of the will dated 12.1.1993 and had brought the Sub-Registrar Allahabad for registration at her residence on 12.1.1993 when she was ill and bed ridden. The will was registered at his residence. Shri Sanat Kumar Mukherji, Advocate practicing in Labour Court, Allahabad asked him to prepare the will of Smt. Bimla Neogi about a week before the execution of the will. She gave him instruction to draft the will, which was shown to her two days before the execution and that he was accompanied by Shri Sanat Kumar Mukherji at her residence. She approved the draft. She was required to give two passport size photograph, which she gave to him. Thereafter the will was typed and then he moved the application before the Sub-Registrar, Allahabad for execution of will on commission. She gave him Rs. 2000/- towards expenses and his fees. Shri Sanat Kumar Mukherji was asked to furnish two witnesses. When he reached their house at 4.30 p.m. Shri S.K. Mukherji and two witnesses Mrs. Bulbul Day and Shri P.N. Chaterji were present. The will was read over by the Sub-Registrar Allahabad to the deceased, who then signed the will including the cuttings. She had signed the will with her left hand as her right hand was paralysed. He also wrote a note in the will in his hand writing, which was signed by the deceased. The will bears his signatures and the signatures of Smt. Bimla Neogi, which he identified as also the signature of Shri Shambhu Dayal, the typist.
23. In the cross-examination the witness stated that he knew the deceased for 15 days before the execution of the will. He did not know her from before and was introduced for the first time by Shri Sanad Kumar Mukherji, Advocate. Since he does not practice in the District Court, Shri Mukherji had asked him to get the will executed. He had taken him to the house on Smt. Bimla Neogi. He had given an application to the Registrar for execution on commission as the deceased could not easily walk. The Sub-Registrar had stated that in case there is any reference of power of attorney stamp duty shall be paid on which the reference of power of attorney in the will was excluded, which was signed by the deceased and a note to this effect was made in writing in his hand. He had seen the deceased reading and writing, when she gave instructions for execution of the will and had signed on the will. The right side of her body was paralysed. The deceased did not tell him that she had executed any will in favour of Shri Shankar Singh, which she has cancelled and only stated that she want to cancel the previous will and power of attorney.
24. The law relating to proof of due execution of the will by the propounder, where the will is challenged on the ground that the testator did not possess free and disposing mind, is fairly well settled. In H. Venkatachala Iyengar v. B.N. Thimmajamma , the Supreme Court laid down the principles of onus of proof of the will as follows:
The party propounding a will or otherwise asking a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by ' the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing statement of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law. Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience. The lest merely emphasizes that, in determining the question as o whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties.
It is no doubt true that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case.
25. These principles were reiterated in Rani Purnima Debi v. Kumar Khagendra Narayan Deb :
Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee ;
Ramchandra Rambux v. Champabai ; Pushpavati v. Chandraia Kadamba ;
Jaswant Kaur v. Amrit Kaur ; S. Sundaresa Pai v. Sumangala T. Pai ;
Janki Naravan Bhoir v. Naravan Namdeo Kadam ; Pentakota Satvanaravana v. Pentakota Seetharatnam.
and Madhukar D. Shende v. Tarabai Aba Shedage .
26. In Madhukar D. Shende (2002) the Supreme Court quoted Baron Alderson in R. v. Hodge, 1838, 2 Lewis CC 227 "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." The conscience of the Court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. Conjecture or suspicion should not take the place of legal proof or permit them to demolish a fact otherwise proved by legal and convincing evidence.
27. Shri Prabir Kumar Dutta, the plaintiff, propounder and beneficiary of the will did not appear in the witness box. No reason is given by his counsel for not producing him for cross-examination. Shri Sanat Kumar Mukherji, an Advocate of the Labour Court and a practicing lawyer of this Court, had played the most important role in execution of the will dated 12.1.1993. Shri Sanat Kumar Mukherji, had introduced the deceased and had engaged the service of Shri Vir Bhartiya, Advocate (DW-3) for drafting and for bringing Sub-Registrar to her house. He also did not appear in the witness box to face the cross-examination.
28. Shri P.K. Mukherji, learned Counsel for the plaintiff Shri Prabir Kumar Dutta has relied upon the statement of Shri P.N. Chaterjee aged 86 years as the witness to the will. Shri P.N. Chaterjee clearly stated that he was unable to see as his eyes have fallen totally for last one year. He was not shown the original will to be proved by him. He clearly stated that he cannot see. He could only feel the photocopy of the will shown to him by Shri P.K. Ganguly.
29. The absence of the plaintiff Shri Prabir Kumar Dutta the propounder and Shri Sanat Kumar Mukherji, who had played a very important role in execution of the will creates a strong suspicion to disbelieve the due execution of the will dated 12.1.1993. Shri Sanat Kumar Mukherji had introduced the scribe Shri Vir Bhartiya to the deceased and had identified the deceased to the sub-registrar. He attends the High Court and is regularly practicing as a lawyer but did not choose to file an affidavit or to enter the witness box.
30. Dr. S.K. Dutta, the Physiotherapist was looking after the deceased after she suffered fracture in 1972, when she broke her right hand and then in 1982, when she broke her left hand while she was traveling in rickshaw and then again in 1991, when she suffered an attack of paralysis. He is stated to have taken her to his residence for about two months and got the CT Scan done at Kamla Nehru Hospital. He stated that she was unconscious for 20 days. She was regularly treated by Dr. S.N. Gupta and also shown to Dr. SPS Chauhan and when she improved and started talking, she was taken to her residence. Her brother residing at Calcutta was informed. He came to see her and deposited Rs. 1,50,000/- in a joint bank account. The interest of this fix deposit came to about Rs. 1500/- per month. Her brother Shri Subhash Chandra Sur authorized him to draw this amount and spent on her medical treatment and other house hold expenses and on servant. Dr. S.K. Dutta stated that this amount was not sufficient and as such he used to spent a lot of money on her. He had a joint account with the deceased and that the money was spent on her treatment.
31. Shri P.K. Mukherji, learned Counsel for the plaintiff Shri Prabir Kumar Dutta relied upon the bills of expenses and receipts given by the servant Kishan and Krishna and the account which Dr. S.K. Dutta used to keep for her from 1991 to March 1992. A reading of the accounts shows that Dr. S.K. Dutta, the Physiotherapist, used to charge the deceased every time he visited her. He also used to charge for the transportation to visit her house. These visits were charged at the rate of Rs. 100/- Rs. 110/- Rs. 120/- and sometimes Rs. 210/-. These were explained to be the professional charges of Dr. S.K. Dutta. These charges increased to Rs. 250/- and then to Rs. 300/- per day from the month of May 1993. It is rather surprising that a person, who treated the deceased as 'Didi' and found Rs. 1500/- as interest of Rs. 1,50,000/-kept by her brother for looking after her used to charge her heavily for his visits, and treated these visits to be professional visits and then claimed that expenses were insufficient for her treatment. The other documents are prescriptions of Dr. R.K. Agrawal, Dr. S.N. Gupta and diagnostic reports. A small exercise book of her expenses (A-80) of the month of May and June, appears to be maintained by her servant Kishan given the details of the expenses on her food, milk and vegetables. These are small expenses as compared to professional visits of Dr. S.K. Dutta. The x-ray report and MRI have also been filed to prove that she was suffering from paralysis.
32. I asked Shri P.K. Mukherji and Shri Sinha, the counsels appearing for Shri Prabir Kumar Dutta, to make an attempt to sign with their left hand. Having signed on a piece of paper with left hand both the counsels agreed that the signatures in the hand with which the person does not usually write are grossly distorted and that both the words and lines are loose their shape. They agreed that it is difficult to sign with the hand which not used by the person for writing. On the date of signing on the will dated 12.1.1993 the deceased was suffering from paralytic stroke of her right side. It is stated by the witnesses that she had signed from her left hand. I find that the signatures of the deceased appended on the will dated 12.1.1993 alleged to be made before the registering officer and identified by late Smt. Bulbul Day and Shri P.N. Chaterji, who could not identify the document on account of his failing eyes, could not have been made by the deceased in the condition in which she was on that date, and further that the propounder has failed to explain the suspicious circumstances surrounding the will. Further I find that there is no evidence on record to show that the deceased was close to the plaintiff Shri Prabir Kumar Dutta nor there is any averment or evidence to prove that he used to look after her or was so attached to her that she would have left the entire property to him in exclusion of her brother and nephews. She was identified to the Registration Officer by Shri Vir Bhartiya, Advocate, who did not know her from before and relied upon the identification by Shri Sanat Kumar Mukherji, who is practicing Advocate of this Court but did not chose to appear in the witness box.
33. The will dated 12.1.1993 is shrouded by suspicious circumstances. Shri Prabir Kumar Dutta, the plaintiff in T.S. No. 9 of 1998 has not even made an attempt to remove these doubts over the due execution of the document.
34. The issue Nos. 1 and 2 as such are decided in favour of the Administrator General in T.S. No. 5 of 1995, who has proved the will dated 29.4.1992 in favour of Shri Shankar Singh, and the letter of renunciation executed by Shri Shankar Singh in favour of the Administrator General. Issue Nos. 3, 4 and 5 are decided against Shri Prabir Kumar Dutta, the plaintiff in T.S. Xo.9 of 1998.
35. Issue No. 6 is decided in favour of the Administrator General as he has proved the will dated 29.4.1992 in favour of Shri Shanker Singh through scribe Shri Yogesh Kumar Goyal under Section 69 of the Evidence Act as both the attesting witnesses have expired and has also proved the letter of renunciation by Shri Shanker Singh in favour of the Administrator General dated 24.2.1994, and the letter dated 28.2.1994 by which he had asked the then Administrator General to take possession. On issue No. 7 it is held that the. Administrator General is entitled to administration of the property by virtue of his office and by virtue of Section 30 of the Indian Succession Act.
36. The Testamentary Suit No. 9 of 1998 is dismissed and suit No. 5 of 1995 is decreed. The Administrator General shall pay the Court fees after it is worked out by the office to the satisfaction of the Registrar General.
37. The house is under Supurdagi of the Superintendent of Police and is under the management of the Station House Officer, Colonel Ganj vide Court's order dated 20.12.1996. The S.S.P., Allahabad is directed to hand over the vacant possession of the house to the Administrator General, U.P. at Allahabad within one month. The Administrator General shall carry out the wishes of the testator and create a trust to be named as 'Bimla Neogi Trust', a private charitable trust with power to appoint one or more trustees for old and disabled persons. The amount in the bank account and deposit in IFFCO shall be utilized for the purposes of carrying out the wishes of the testator strictly in accordance with her desire in the will. Shri Prabir Kumar Dutta will pay Rs. 20,000/- as costs and expenses of the proceedings to the Administrator General, U.P.