JUDGMENT Sunil Ambwani, J.
1. Smt. Anara Devi, wife of Shri Triloki Nath, resident of Village and Post Nadula, Pargana Mali, Tehsil Handiya, Distt. Allahabad, filed this testamentary case No. 40 of 2002 under Section 273 read with Section 278 of the Indian Succession Act for grant of Letters of Administration of the estate of late Shri Hira Lal (hereinafter called as the deceased) with his will dated 18.10.2002 attached. The deceased was the uncle of her husband and died as a bachelor on 19.10.2002, a day after execution of the will in her favour.
2. The notices were issued to the Administrator General, U.P., Board of Revenue and next of kin mentioned in para 6 of the application, namely her husband Shri Triloki Nath, Tirath, Kallu and Lalji all son of late Sukhraj, the brother of the deceased and Shri Jawahir, the third brother of the deceased. A caveat was filed by Shri Ali Hasan, Advocate on behalf of the opposite parties on which the Testamentary Case was converted into Testamentary Suit No. 9 of 2005.
3. The caveator-objectors contested the suit on the pleading that the applicant Anara Devi's husband Shri Triloki Nath is very clever and cunning man. Late Shri Hira Lal-the deceased did not execute any will. The testament alleged to be the will in favour of his wife is a forged document. Late Shri Hira Lal died on 19.10.2002. He was ill and was not in his senses a day before on 18.10.2002 to execute the will. Shri Triloki Nath has manufactured the will with the intention of grabbing the share of opposite party Nos. 2 to 5, which they inherited on the death of the deceased. The alleged will does not give any reason to disinherit opposite party Nos. 2 to 5. Shri Hira Lal was living with opposite party Nos. 2 to 5. He never lived with Smt. Anara Devi and her husband Shri Triloki Nalh. The last rites of the deceased was performed from the joint house of the opposite parties and that all last ceremonies were performed by the caveator-opposite parties. The applicant or her husband Shri Triloki Nath did not perform any cremony. The total area of the house as well as the details of the movable properties, cash and ornaments have not been given in the 'schedule' appended to the testamentary case. The will is forged and manufactured and that Smt. Anara Devi is not entitled to any relief. With the consent of the parties following issues wee framed to be decided between the parties on 4.4.2006:
(1) Whether the plaintiff proves the will dated 18.10.2002 as deceased Shri Hira Lal executed in his sound and disposing mind?
(2) to What relief the plaintiff is entitled?
4. The parties have filed their documents and led oral evidence. The plaintiff filed a copy of the medical prescription dated 9.10.2002 (paper No. A-8/15); affidavit of Shri Prakash Chandra Pathak (paper No. A-8/16); affidavit of Shri Shyam Sunder, son of Triloki Nath (paper No. A-8/17); affidavit of Shri Ram Raj Pal (paper No. A-8/18); affidavit of Shri Ram Sajivan (paper No. A-8/J9); and affidavit of Rakesh Dubey (paper No. A-8/20). The plaintiff examined herself as PW-1: Shri Ram Akbal, the attesting witness of the will as PW-2; Shri Ram Sajivan, the other attesting witness as PW-3; and Shri Om Prakash, Advocate, the scribe of the will as PW-4.
5. The defendants on the other hand examined Shri Jawahar Lal as DW-1; Shri Kallu, nephew of the deceased as DW-2; Shri Satya Narain Yadav son of Shri Jawahar Lal Yadav as DW-3; Shri Tirath Raj Yadav son of Shri Sukhraj Yadav as DW-4; Shri Dincsh Piatap Singh as DW 5; and Sliri Ram l.akhan as DW-6.
6. The plaintiff alleges that Late Gopi had four sons namely Vire; Sukhraj; Hira Lal and Jawahir. Jawahir is still alive. Triloki Nath, the husband of the plaintiff is son of Vire, whereas Tirath; Kallu and Lalji defendants No. I, 2 and 3 are sons of late Sukhraj. Hira Lal, the testator, the third brother did not marry. Jawahir is the youngest brother of the deceased. In the 'will' Hira Lal stated that he was 70 year's old and was suffering from tuberculosis. He was unmarried and has started feeling that he can die anytime. He had three real brothers namely Vire; Sukhraj and Jawahir. Vire and Sukhraj have died. Jawahir is alive. After the death of his father, all of them are living separately. He is living with his real nephew Triloki Nath in a house in which he and Triloki Nath have half shares each. The other brothers have no concern with the house. Smt. Anara Devi-wife of Triloki Nath and her children took care of him and looked after his treatment. The other brothers and their wives do not look after him. The deceased was happy and satisfied with the services of Smt. Anara Devi and desired that during his life time he should return the services to his daughter-in-law Smt. Anara Devi, and thus in his sound disposing mind and without any coercion, he has voluntarily executed the will in presence of the witnesses. He desires that after his death, all his movable and immovable properties be inherited by his daughter-in-law Smt. Anara Devi, who will get her name mutated on these properties. He will continue to be the owner of all his movable and immovable properties till he is alive and after his death Smt. Anara Devi will be the owner of these properties. The will was witnessed by Shri Ram Akbal son of Shri Amrit Lal resident of Village and Post Nedula Tehsil Handia, and Shri Ram Sajiwan son of Shri Ram Kishore resident of the same village. The will is in the hand writing of Shri Om Prakash, Advocate, who has also witnessed the photographs of late Hira Lal.
7. Shri Om Prakash, Advocate appeared as PW-4 and stated that he was called to write the will by Shri Shyam Sundar son of Smt. Anara Devi. He reached there in the morning at 09.00-10.00 AM. Shri Hira Lal was sitting on a cot. He wanted a will to be written as he was keeping ill, and wanted to give his entire movable and immovable properties to his daughter-in-law Smt. Anara Devi. He wrote the will, which was read out to the deceased; the deceased signed it and thereafter he signed the will. At the time when the will was written Smt. Anara Devi; Shyam Sundar; Ram Sajiwan and Ram Akbal were present. Shri Hira Lal was in good health and was in his senses. The will was written on a stamp paper. On being asked the deceased had told him that he had passed Class-5, and was patient of tuberculosis. In his examination the witness identified paper-3/18 to be the same will, which was written by him on 18.10.2002 and which bears his signatures. In the cross-examination the witness stated that he is practising Advocate on both civil and criminal sides in Civil Court. Allahabad. He is resident of village Nawali. Late Hira Lal has house in village Nedula at a distance of 20-22 Kms from his house. He lives at Allahabad in a rented house and attends the Courts regularly. He was called by Shri Shyam Sundar to write the will. Shyam Sundar told him that his 'Baba' was ill and wanted to execute the will. On that day he did not have any case in the Civil Court. He went to the house of Hira Lal after 1-2 hours on the request of Shri Shyam Sundar. He went to village Nedula from Allahabad by train which left Allahabad at 06.00 A.M. He alighted at Bariaram Railway Station at 08.30 AM. The village Nedula is about 4 KM from the station. From the railway station, he went by bicycle to village Nedula. When he reached there at about 09.00 AM, he found that Hira Lal was sitting on a cot. Smt. Anara Devi, Shyam Sundar, Ram Sajiwan and Ram Akbal were present there. He had taken stamp paper with him. He did not know as to when Hira Lal died.
8. The attesting witnesses Ram Akbal and Ram Sajiwan examined themselves as PW-2 and PW-3. They have both deposed that Hira Lal died suddenly on 19.10.2002 in the morning at about 7-8 AM. He was 70 years old. He had written a will on 18.10.2002 in respect of his movable and immovable properties in favour of Smt. Anara Devi. They are witnesses of the will. 'Hie will was written by Shri Om Prakash, Advocate at about 09.10 AM on 18.10.2002. It was read out to the deceased, who signed it in their presence and thereafter they signed on the will in his presence. At that time Smt. Anara Devi, Shyam Sundar and they were present. They also deposed that after the death of Gopi, his sons had separated. Vire; Sukhraj and Hira Lal had died. Initially Vire and Hira Lal live together and thereafter Hira Lal lived with Shri Triloki Nath, son of Vire in the same house. After the death of Hira Lal, Smt. Anara Devi and his sons had performed his last rites. In the cross-examination they answered the questions of the counsel of defendants with confidence. They stated that Triloki's sons used to serve in Mumbai and the agriculture of the deceased was looked after by Hira Lal. Sons of Sukh Raj were also working in Mumbai. Hira Lal had a Kholi in Mumbai. He used to go for treatment to Mumbai. There was dispute regarding the Kholi at Mumbai. Hira Lal had purchased it on his own and wanted to give it to Smt. Anara's sons. The Kholi is presented occupied by sons of Triloki.
9. Smt. Anara Devi examined herself as PW-1. She stated that Vir and Hira Lal lived together in a house in which Hira Lal had half share. Vir died about 15-16 years after the brothers started living separately. She was looking after him. Hira Lal was the eldest in the house. Triloki Nath was serving in Mumbai and as such she was looking after Hira Lal. The deceased was suffered from tuberculosis. She was used to spend money on him and that at Mumbai her husband used to look alter his treatment on 9.10.2002. She had taken Hira Lal to Dr. Shailesh Dwivedi for examining Hira Lal at Allahabad. She used to purchase medicines for him. The deceased had expressed a desire to write a will in her favour and asked her to arrange for stamp paper. Her sons Shyam Sundar purchased stamp paper from Tehsil Phoolpur and arranged for Slid Om Prakash, Advocate practising at Allahabad. The Advocate came at about 09.10 AM on 18.10.2002 and wrote a will which was read out to the deceased and after the deceased signed on his request, it was signed by Shri Ram Akbal and Shri Ram Sajiwan. She and her son Shyam Sundar was looking after the deceased. The deceased used to call her whenever he wanted to go to toilet. The deceased could sit on the cot and had taken meals on the previous day. They had arranged for a Jeep of Shri Prakash Chandra Pathak to take the dead body to Allahabad for last rites and that her eldest son Shyam Sundar had performed the fire ceremony. The 13th day ceremony and Karamkand was performed by her through Shri Rakesh Dube Mahapatra. She spent all the money on these ceremonies.
10. In her cross examination, she was firm and stood by whatever she had said in her affidavit. Answering the questions, she stated that no one else was looking after the deceased. There was no fight between the deceased and his other brothers. The deceased used to live at Mumbai. He had a Kholi in Mumbai. Hira Lal had given everything to her and that she should not leave the Kholi which is in her possession. Tirath, Kallu and Lalji are living in Mumbai but they are not living in the Kholi of Hira Lal. She did not know the name of the diseases with which he was suffering. Earlier he was suffering from sugar and then tuberculosis. The deceased was ill for about 2-3 years before his death. He could not have foreseen his death. He could eat and walk. The will was executed in her favour in presence of Akbal Bhaiya, Ram Sajiwan, Ram Sunder and Wakil Sahab.
11. PW-5 Shyam Sundar is son of Smt. A nam Devi, lie deposed that Hira Lal was 70 years old and had desired about 15-16 days back to write a will in favour of his mother and to bring stamp paper and arrange for an Advocate who had called by him and came to their house at about 09.10 AM on 18.10.2002. He had written the will and read it out to Hira I.al. The will was thereafter signed by the deceased and witnessed by Ram Akbal and Ram Sajiwan. In the cross-examination he stood by his statement that he had purchased stamp paper and called the Advocate who reached in the morning at about 9-10 AM when Ram Sajiwan and Ram Akbal were present. The deceased died on 19.10.2002. He was not serious. He could get up from the bed. It is correct to say that Hira Lal was keeping good relations with his brothers and there was no quarrel among themselves.
12. Coming to the defence witnesses I find that Jawahar Lal, DW-1 stated that Veere died about 8-9 years ago. When his father died, all the brothers were living together. He is illiterate and has come to Allahabad for the first time. He has put his thumb impression on the affidavit filed as examination-in-chief. In his cross-examination he stated that Anara Devi is the wife of Triloki. The brothers were living together, when Anara Devi married Triloki Nath. After about 10 years the brothers separated. At present he is living in his own house, which is not fully constructed. Triloki used to live separately in his house. Hira Lal had also constructed his own house. Hira Lal was sufferring from sugar disease. On the death of one of his brother he came back from Bombay and started living in the village. Hira Lal had studied upto Class-2. Hira Lal used to live at Bikrauli in Bombay. He had got a kholi constructed in Bombay. All the brothers got a kholi constructed at Bombay. The witness used to work in a factory and was doing 'lohe ki dhalai'. He left bombay about 18-19 years back. He does not remember the number of kholi in which he lived. Hira Lal used to go alone for his treatment. He used to take medicines, which were purchased on the advice of the doctors. The witness did not remember the name of the doctor, who used to live in the village. The witness stated that he brought him to Allahabad. When Hira Lal died, he and his nephews were with him. The entire family looked after him and used to spend money on his medicines. The other brothers did not make any contribution. The witness admitted that Hira Lal used to live with Anara Devi but that all of them used to contribute for his living. The house was constructed jointly. Hira Lal used to take his food cooked in the kitchen of Anara Devi. Shri Hira Lal was the 'Malik' of the family. He used to advice everyone regarding agriculture and had his own bank account. He had about 20-25 biswa land in the village.
13. Shri Kallu Ram Yadav, DW-2 son of Shri Sukhraj Yadav stated that the brothers used to live together. He used to drive auto rickshaw in Mumbai. He did not get any room constructed in the house on his own. The room was got constructed by Hira Lal in Mumbai in Bikrauli, Surya Nagar was numbered as Room No. 5. He lives at the same place, where Triloki Nath used to live. When Hira Lal died, all the brothers were living together. They also used to eat together. Hira Lal was sufferring from sugar disease and asthma. He retired from Bombay and came back to the village, where he started sufferring from these diseases. The witness used to contribute money towards expenses and did not remember the name of the doctor, who was consulted. He used to got to purchase medicines at Janta Bazar, Janghai. The witness denied that Hira Lal used to live only with Anara Devi and used to eat with her. He had food with every one. Whenever the doctor prescribed he used to got to the market to purchase the medicines and has all the prescriptions with him.
14. Shri Satya Narain Yadav, DW-3, son of Shri Jawahar Lal Yadav states that he drives auto rickshaw in Mumbai for last seven years. Hira Lal died in the morning between 2 Vi -3 a.m. on 19.10.2002. He was stiffening from tuberculosis and sugar. He used to take medicines as they were prescribed. The witness was unable to tell the name of the doctor and stated that each of the three brothers built separate house about 7-8 years ago. Hira Lal purchased a kholi in Mumbai. All the four brothers used to live in the Kholi-Room No. 5, situate in 'Yadav Chal Committee', Ambewari, Suryanagar, Bikrauli, Mumbai. Hira Lal left Mumbai about 13 years ago. At present Shyam Sunder, the son of Anara Devi is residing in the Kholi alone. His mother, wife and younger brother visited Mumbai at times and resided in the quarter. Hira Lal has 27 biswa 5 dhurs of land in village Chauhan Ka Poora (Sherpur). Hira Lal was Mukhiya of the family. The witness was present, when Hira Lal died. Hira Lal was taken for cremation on a jeep, which was hired for the said purpose. He is not in a position to give the name of the owner of the jeep. His father had lit the funeral pyre. The witness was not aware of the name of the pandit, who performed the last rites. The distance between his house and the house of Hira Lal was about 2 1/2-3 tit. Hira Lal got the house constructed from his own funds.
15. Shri Tirath Raj Yadav, DW-4 son of Sukh Raj Yadav gave almost the same statement. There was no variance worth mentioning in the judgment except that he stated that Hira lal was not unconscious, when he died.
16. Shri Dinesh Pratap Singh, DW-5 is son of Shri Yadvendra Pratap Singh and stated to be adopted son of Ram Nath Singh. He knew Gopi and stated that Hira Lal did not marry. After the death of Gopi, Hira Lal started living separately. He was educated upto Class-2 and was ill sufferring from sugar and T.B. He was ill for about 3-4 years and died on 19.10.2002. He could not give the name of the doctor but stated that he purchased medicines from the market. When he visited Hira Lal on 18th October in the morning he was unconscious but was not being treated. Hira Lal used to live with Anara Devi but used to cook separately. He had constructed a room at Mumbai. He denied that only Smt. Anara Devi used to serve Hira Lal and that Smt. Anara Devi alone used to take care of the treatment of Hira Lal.
17. Shri Ram Lakhan, DW-6 son of late Kalu stated that he knows all the brothers. Hira Lal was unmarried. He was sufferring from fever and asthma. He was ill for about a year before his death and about one week before his death he developed serious condition. He was treated at Janghai and Nedula by doctors. He was present, when Hira Lal died. The whole village was present and that immediately on the death of Hira Lal every one came to know in the village that he had died. His house is situate at a distance of one bigha from the house of Anara Devi. He denied that Hira Lal and Anara Devi used to take food together. Triloki Nath and Hira Lal used to live together.
18. The law relating to proof of due execution of the will by the propounder, where the will is attacked 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 he 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 he 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 5V and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propouncler 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 for 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 propouncler'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.
19. These principles were reiterated in Rani Purnima Debi v. Kumar Khagendra Naravan Deb ; Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee ; Ramchandra Rambux v. Champabai ; Pushpavati v. Chandraja Kadamba ; Jaswant Kaur v. Amrit Kaur ; S. Sundaresa Pai v. Sumangala T. Pai ; Janki Naravan Bhoir v. Naravan Namdeo Kadam ; Pentakota Satyanaravana v. Pentakota Seetharatnam and Madhukar D. Shende v. Tarabai Aba Shedage .
20. While reiterating the principles of proof of will in H. Venkatachala Iyengar's case (1959), the Supreme Court held in Rani Purnima Debi (1962) that the propounder is required to satisfactorily explain suspicious circumstances before he can get Letters of Administration where the application for registration of will given by the agent of testator for registration on commission on which the Sub-Registrar send his clerk to execute on commission and there was nothing on record to show that the will was read over to the testator before he admitted execution, the broad statement of the clerk that he examined the testator, who admitted execution of the will was not sufficient to dispel serious suspicion attaching to due execution and attestation of the will. The registration of the will is not sufficient to remove the suspicions. The propounder was unable to dispel suspicious circumstances surrounding the execution and attestation of the will and was denied Letters of Administration.
21. In Shashi Kumar Banerjee (1964) the Supreme Court held that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there may be other indications in the will to show that the testator's mind was not free. In such case, 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. If the propounder himself takes part in the execution of the will which confers, a substantial benefit on him, that is also a circumstance to be taken into account.
22. In Ramchandra Rambux v. Champabai (1965) the Supreme Court held that in order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses.
23. In Jaswant Kaur v. Amrit Kaur (1977) it was held that burden of proof does not vary with the riches and social prestige of the testator, but habits of life are prone to vary with the means of the man and the privileged few who happen to occupy a high place in the social hierarchy has easy access to competent legal advice. The genuineness of a will, therefore, of a propertied man, well-positioned in society too, does not suffer from the loopholes and infirmities, which may understandably beset testamentary instrument.
24. 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.
25. In this case the will was executed by Hira Lal on 18.10.2002 a day before his death. All the witnesses have deposed that Hira Lal was ill suffering from diabetes and asthma. The defence witnesses, however, have not stated that he was unconscious or was not in a fit state of mind to execute the will. The plaintiffs witnesses have proved that he used to lie on the cot but could get up and go to toilet with the help of some one. All the plaintiffs and defendants' witnesses have admitted that Hira Lal used to live in the house of his brother Triloki Nath and that Anara Devi used to cook for him. Hira Lal was head of the family and after the death of his father Gopi he had constructed a house for himself with Triloki Nath. He served in Mumbai and constructed a kholi in which all the other brothers used to live. At present the Kholi is occupied by the son of Triloki Nath.
26. The witnesses for either sides could not give the name of doctor, who had treated Hira Lal. Everyone stated that Hira Lal used to purchase medicine from the market at Janghai. No one could give the name of the doctor, who treated him and that whenever he was seriously ill, some of them would go to the market to purchase medicine. Hira Lal had bank account and used to spend money for his treatment. The evidence on record proves that the testator was in sound and disposing mind a day before his death. He was not seriously ill that was capable of making a will to dispose of his properties. Smt. Anara Devi clearly stated that she was looking after Hira Lal, who was eldest in the house. He was sufferring from Tuberculosis. She used to spend money on him and that at Mumbai her husband used to look after his treatment. She had taken Hira Lal to Dr. Shailesh Dwivedi at Allahabad and used to purchase medicines for him. The deceased had expressed desire to write a will in her favour and asked her to arrange for stamp paper. Her son Shyam Sunder purchased a stamp paper from Tehsil Phoolpur and arranged for Shri Om Prakash, Advocate practicing at Allahabad. The Advocate arrived on 18.10.2002 at 9.10 a.m. and wrote a will, which was read out to the deceased and after the deceased signed, on his request it was signed by Shri Ram Akbal and Shri Ram Sajivan, the witnesses. Her eldest son Shyam Sunder had performed fire ceremony, and that the 13th day ceremony and Karmkand was performed by her through Shri Rakesh Dubey, the Mahapatra, and that she had spent all the money in ceremony. Shri Ram Akbal and Shri Ram Sajivan examined as PW-2 and PW-3 as attesting witnesses proved the execution of the will. They stated that will was written on 18.10.2002 in respect of movable and immovable properties in favour of Smt. Anara Devi. Shri Om Prakash, Advocate arrived at about 9.10 a.m. on 18.10.2002. The will was read out to the deceased, who signed it in their presence and thereafter they as attesting witnesses signed on the will in his presence. At that time Smt. Anara Devi and Shyam Sunder were present. In the cross-examination they answered all the questions of the counsel for the defendant with confidence.
27. Smt. Anara Devi, the propounder had taken active part in the execution of the will. She has, however, removed all the suspicious circumstances and has proved the will to be duly executed by Shri Hira Lal. The deceased used to live with her and was looked after by her and that the will was executed and witnessed in his sound and disposing mind.
28. Shri M.P. Srivastava, learned Counsel argued the case on behalf of the defendant. He stressed upon the fact that the Advocate present in Allahabad District Court could not have reached the village at about 9-10 a.m. on 18.10.2002. It was suggested by him that there is some difference in the timings. Whereas some of the witnesses have stated that the Advocate came at about 9-10 a.m., the other witnesses said that he came at about 9.10 a.m. The Advocate in his statement gave a vague statement about the timing at which he left Allahabad. He could not have reached the village so early in the morning. Further Shri Srivastava submits that the fact that the deceased died the next day in the morning goes to show that the deceased was seriously ill and was confined to bed. Shri Srivastava suggested that the deceased was unconscious and could not have executed the will sufferring from serious illness. He further submits that Triloki Nath and Anara Devi are very cunning and have manipulated the will in their favour in unnatural circumstances.
29. I have gone through the statement of the witnesses and submissions of the counsel for the parties carefully. The deceased was eldest in the family and lived at Mumbai. He had settled almost all the brothers in some or other occupation at Mumbai. After the death of their father, they were living separately in the village. The deceased as a bachelor shared the house with Triloki Nath and his wife Anara Devi. Shri Triloki Nath had looked after him at Mumbai and that Anara Devi had taken care of him, cooked for him and was with him all throughout, when he was ill for about 3-4 years in the village. It was only Anara Devi, who could give the name of the doctor and boldly stated that she used to look after his treatment and medicines. She cooked for him and took care of all his needs. When he desired the Advocate was called from Allahabad. The train started from Allahabad at 6.00 a.m. The Advocate alighted from train at Baria Ram Railway Station at 8.30 a.m. from where he reached Nedula on bicycle. When he reached at the village at about 9.00 a.m. he found Hira Lal sitting on a cot. Smt. Anara Devi, her son Shyam Sunder and the witnesses were present. He had taken stamp paper with him and wrote the will, which was read out to Hira Lal and was signed by him and witnessed in his presence. The witnesses have also proved the will by stating that the will was read out to Hira Lal and that Hira Lal signed in their presence. Further that they signed in the presence of Hira Lal. The fact that the deceased died the next day in the morning could not have been known to any of the witnesses, who had proved the will. The natural death is always uncertain and cannot be foreseen. In the present case the death of Hira Lal on the next day is not a suspicious circumstance to create doubt over the execution of the will. Where the will is proved to be executed by the deceased in the sound and disposing mind and the witnesses have proved its due execution, the burden heavily shifts upon the defendants to establish that the will was not executed by the deceased.
30. The defence witnesses have not made any such statement that the deceased was not in his sound and disposing mind, a day before his death, when he executed the will. All they could say was that he was ill and was confined to the cot. All of them admitted that Anara Devi used to cook for the deceased and look after him for about 3-4 years before his death. They also admitted that Anara Devi used to look after him and that the deceased was living in his house jointly with Triloki Nath and his wife Anara Devi. The documentary evidence has no bearing on the due execution of the will.
31. The due execution of the will by the deceased in his sound and disposing mind is proved. The issue No. l as such is decided in favour of the plaintiff.
32. With the decision of issue No. 1 on the execution of the will in sound and disposing mind of the deceased in favour of the plaintiff, the plaintiff is entitled to the relief of grant of letters of administration in her favour of the estate of the deceased.
33. The suit is decreed. The letters of administration of the estate of Shri Hira Lal (the deceased) with his will dated 18.10.2002 attached are granted to the plaintiff-Smt. Anara Devi on her executing administration bond after payment of Court fees on the valuation described in the affidavit of valuation, to the satisfaction of the Registrar General of the Court.
The plaintiff will be entitled to the cost of the suit.