JUDGMENT Sunil Ambwani, J.
1. The plaintiffs claim to be sons of late Shri Jawahir Singh son of late Shri Nageshwar Prasad Singh (hereinafter referred to as the deceased), resident of Maniyar, Pargana Kharid, District Ballia. They have prayed for grant of 'Letters of Administration' under Section 278 of the Indian Succession Act, 1925, with Will dated 17.1.1991 attached, executed by the deceased before the Sub-Registrar, Ballia, and registered on me same day, bequeathing his entire movable and immovable properties to the plaintiffs.
2. The Will, proceeds with the statement that the deceased is old and weak and is unable to look after the agriculture farm, the related affairs and travel. He has six daughters and five sons. All his daughters are married in prosperous families where they are happy; that he wants to make an arrangement of his movable and immovable properties, and is thus making bequest in favour of his five sons, with the condition that he will be the owner of all his movable and immovable properties during his lifetime, and that after his death his five sons will be the owners and will be entitled to get their names mutated and to pay land revenue and other dues; and further that the deceased has not made any other Will registered or unregistered in favour of any other person. The Will was written by Shri Paras Nath Yadav, ' Vasikanavis' Ballia on 17.1.1991, and is witnessed by Shri Paras Muni Pandey son of late Shri Mahendra Pandey and Shri Krishna Chandra Dubey, Advocate, Civil Court, Ballia.
3. The affidavit of valuation discloses that the deceased has left behind agricultural land in large holdings in six Mauzas namely Maniyar Khas, Dhanauti, Navat No. 1, Chaturpur and Tiyara Maniyar Tukada Doyam in the District of Ballia with valuation of Rs. 2 lacs out of which Rs. 10,000/- is sought to be deducted as debts towards the amount spent on funeral expenses.
4. The six daughters namely Smt. Shyam Kumari Singh wife of Girish Narayan Singh; Smt. Pratibha Singh wife of Vindhyachal Singh; Smt. Mridula Singh wife of Babban Singh; Smt. Manju Singh wife of L.N. Singh; Smt. Meena Singh wife of Brijendra Singh, and Smt. Neelam Singh wife of Santosh Kumar Singh have filed their caveat. In their written statement filed on 7.10.1994 they have stated that the deceased died at Shiv Prasad Gupta Hospital at Varanasi on 15.7.1993. He did not execute any such Will dated 17.1.1991. The alleged Will is bogus and is a manufactured document. The deceased had only six daughters, who are the defendants in the suit. He had no male issue. The plaintiffs are not the sons of the deceased and are not entitled to inherit his properties. The deceased also inherited the properties of Smt. Sarva Mangala Kunwar, his brother's wife, on which Shri Kamlesh Kumar Singh and Vijay Kumar Singh got their names entered fraudulently. The parties are contesting mutation case in the Court of Tehsildar Bansdih, Ballia, and that the plaintiffs have applied for declaration in the Court of Munsif East in case No. 299 of 1990, and in the Court of Civil Judge Ballia in case No. 175 of 1993 that they are the heirs of the deceased on the basis of the same Will. The filing of suits has been deliberately withheld from the Court, calling for their prosecution for perjury. Shri Arun Kumar, the plaintiff No. 1 is an employee of Murali Manohar Inter College, Maniyar. He has committed forgery in the records, which calls for summoning his service book. The plaintiffs have not disclosed the entire assets of the deceased and that the properties situated at Village Letraha and another properties have been left out. The valuation of the properties is not less than Rs. 20 lacs.
5. Caveats have also been filed by Shri Vijai Kumar Singh, Kamlesh Kumar Singh and Smt. Pushpa Singh.
6. The following issues were struck between the parties on 14.2.1995 and thereafter on 27.3.1995:
(1) Whether the present Testamentary Suit is maintainable in view of the allegations made in paragraphs 14, 15 and 16 of the written statement (A-10) filed on behalf of the daughters of the deceased?
(2) Whether the caveats (A-18 and A-19) filed on behalf of Vijai Kumar Singh and Kamlesh Kumar Singh and the caveat (A-21) filed on behalf of Smt. Pushpa Singh are liable to be discharged in view of the objections taken by the daughters of the deceased in their objections (A-22) filed on 30.1.1995 and the objections filed on behalf of the petitioner (A-23)?
(3) Whether the alleged Will dated 17.1.1991 as propounded by the plaintiffs was a genuine and validly executed Will of the deceased testator Jawahir Singh?
(4) Whether the alleged Will dated 17.1.1991 is shrouded with mysterious and suspicious circumstances.
(5) Whether the alleged Will dated 17.1.1991 is a forged and manufactured document as alleged by the defendants?
(6) Whether the plaintiffs are the sons of the deceased Jawahir Singh who had left behind him only six daughters and no male issue as alleged by the defendants?
(7) Whether this Court has no jurisdiction to entertain this petition in view of Section 57 read with Section 300 of the Indian Succession Act?
(8) Whether the Suit as framed is not maintainable?
(9) Whether the written statements filed by the defendant IInd set Kamlesh Kumar Singh and the defendant IIIrd set Smt. Pushpa Singh have not been properly verified? If so, its effect.
(10) Whether the deceased Jawahir Singh executed any Will dated 29.6.1993 in favour of Smt. Pushpa Singh, wife of Vijai Kumar Singh? If so, its effect.
(11) Whether Vijai Kumar Singh and Kamlesh Kumar Singh are the only surviving male next of kin of the deceased Jawahir Singh? If so, its effect.
(12) Whether the entire estate and property of the deceased have not been disclosed in the plaint and correct valuation of the properties mentioned has not been given? If so, its effect.
(13) To what relief, if any, is the plaintiffs entitled?
7. The documents filed by the plaintiffs include original Will (A-52), certificate by Pathologist, District Hospital, Ballia dated 29.10.1994 of donation of 300 ml. blood voluntarily (A-53); certified copy of the application No. 271 of 1992 in the Court of Tehsildar, Bansdih, Ballia under Section 34 of the Land Revenue Act claiming to be adopted daughter of Sarv Mangla Kunwar, challenging the Will alleged to be executed by Sarv Mangla Kunwar in favour of Kamlesh Kumar Singh and Vijai Singh (A-54); certified copy of the application filed by Smt. Shyam Kumari and others for substitution dated 13.1.1994 (A-55); transfer certificate of Shri Arun Kumar Singh by Principal of Sri Satyanarayan Sanskrit Vidyalaya (A-56); transfer certificates of Shri Arun Kumar Singh of Maniyar Inter College, Maniyar, Ballia (A-56); order of the Prescribed Authority, Bansdih in case No. 165 under Section 10(2) of the Ceiling Act dated 13.9.1977 (A-57); affidavit of Santosh Singh in case No. 299 of 1990 (A-58); certified copy of memo of appeal under Section 210 Land Revenue Act in the Court of Sub-Division Magistrate, Bansdih (A-59); application for information in the Court of Civil Judge, Ballia (A-60); application of Arun Kumar Singh in the Court of Munsif East, Ballia in case No. 299 of 1990 (A-61); order dated 9,2.1994 in case No. 299 of 1990, Yogendra v. Jawahir (A-62); affidavit of Shri Santosh Kumar Singh in case No. 299 of 1990, Yogendra v. Jawahir (A-63); application in Arun Kumar Singh v. Smt. Pushpa Devi under Section 201 of the Land Revenue Act, case No. 394 (A-64); receipt of deposit of rifle by Shri Ashok Kumar Singh in Vivek Shastragar, Varanasi dated 16.7.1993 (A-65); certificate of Ballia Kshetriya Gramin Bank dated 7.12.1993 of deposit of Rs. 21030/-by Shri Arun Kumar Singh son of Jawahir Singh (A-66); Sugar Cane Weighment Ticket (A-67/1-6) by Ashok Singh; receipt of house tax Municipality, Ballia of Rs. 360/- by Tax Collector dated 7.2.1990 of house No. 120 issued to Tami Devi Jaiya Jawahir Singh (A-68); receipt of intimation of death of Jawahir Singh from Shiv Prasad Gupta Hospital issued to Ashok Singh (A-69); objections by Kamlesh to application dated 29.7.1993 before SJM, Bansdih in proceedings under Section 34 of the Land Revenue Act (A-70); certificate of the death of Smt. Ram Kumari Devi @ Sarv Mangla Kunwar dated 21,3.1982 without leaving any issue and that Shri Jawahir Singh is her only heir (A-71); certified copy of advertisement in mutation case (A-72); certified copy of report under Section 34 in case No. 1107 Mauja, Navat No. 1, Pargana Kharid, Pushpa v. Jawahir (A-73); copy of khasra of Non Z.A. Harpur, Ballia, 1400 Fasli within order of mutation (A-74); certified copy of statement of Shri Krishna Chandra Dubey and Paras Muni Pandey in case No. 1507 under Section 34 of L.R. Act dated 11.10.1993 (A-75); Copy of settlement dated 30.9.1990 (A-76); certified copy of order dated 16.11.1994 in writ petition No. 9788 of 1981, Shivpal Bahadur Singh v. The Deputy Director of Consolidation, Ballia (A-77); certified copy of registered gift deed by Jawahir Singh in favour of Tami Devi dated 30.7.1985 of the land in village Harpur, Pargana and District Ballia with two court fees (plot No. 203/1 area 4.5 dismals) (A-78).
8. The defendants have filed certified copy of affidavit filed by Shri Jawahar Singh in the High Court (A-35); certified copy of the order passed by the High Court in Substitution Application (A-36); certified copy of the objections filed by Shri Kamlesh Kumar Singh in case No. 175 of 1993 and Vijai Kumar Singh in the Court of Civil Judge, Ballia (A-37); certified copy of the statement of Arun Kumar Singh in O.S. No. 299 of 1990 in the Court of Munsif East Ballia (A-38); copy of the Will of Jawahir Singh dated 28.6.1993 bequeathing one half share to Kamlesh Kumar, Vijai Kumar sons of Narendra Bahadur Singh and Sunita Singh and Priyanka Singh daughters of Narendra Bahadur Singh and remaining one half to his six daughters namely Smt. Shyam Kumari and others, and stating that he has no sons certified by Tehsildar Bansdih, Ballia (A-39); statement of Pushpa Singh before Tehsildar Bansdih, Ballia in case No. 1160 of 1994 (A-40); certified copy of the order of Tehsildar, Bansdih, Ballia in case No. 249, Jawahir v. Kamlesh dated 11.6.1993 (A-41); order of Tehsildar Ballia dated 7.5.1995 in case No. 249, copy of applications for information (A-44 and A-45).
9. Shri Arun Kumar Singh, the plaintiff examined himself as PW-1; Shri Krishna Chandra Dubey and Shri Paras Muni Pandey, the witnesses to the Will as PW-2 and PW-3; and Shri Kamal Dev Singh as PW-4. The Defendants examined Girish Narayan Singh husband of Shyam Kumari daughter of Jawahir Singh as DW-1, and Smt. Shyam Kumari, defendant No. 1 and the daughter of the deceased as DW-2. The defendant second set Smt. Pushpa Singh has not examined any witnesses.
10. I have heard Shri Sudhakar Pandey for the plaintiffs, Shri Dhruv Narayan for Smt. Shyam Kumar & others, the defendants first set; and Shri J. Nagar for Smt. Pushpa Singh, defendants second set, who have not led any evidence in suit.
11. The paragraphs 14, 15 and 16 of the written statement (paper No. A-10) refer to the proceedings initiated by the plaintiffs in the Court of Munsif East (Civil Judge) Ballia in case No. 299 of 1990 and case No. 175 of 1993 respectively for declaring themselves as heirs of the deceased. The caveators allege that the proceedings of these cases have been deliberately concealed by the plaintiffs from the Court. In paragraph 15 it is stated that the proceedings are also pending in the Court of Tehsildar Bansdih, Ballia and the plaintiff has led evidence in the said Court on the basis of the same Will dated 17.1.1991. In paragraph 16 it is stated that this suit is liable to be stayed under Section 10 of the Code of Civil Procedure.
12. The District Court and High Court have, under Section 300 of the Succession Act, 1925, concurrent jurisdiction for grant of Letters of Administration and probate. Section 266 of the Indian Succession Act, 1925 gives powers to the District Judge to grant probate and Letters of Administration and all matters connected therewith, and as by law vested in him in relation to any civil suit or proceedings pending in his Court. Where, however, the validity of the Will is in dispute, it can be adjudicated only in a testamentary Court i.e. either the District Judge under Section 270 of the Succession Act, 1925 if the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Judge. The validity of the Will cannot be considered by any other Court. The Civil Court other than District Judge have not been given authority to issue Letters of Administration or probate for execution of the Will. The pendency of the proceedings in O.S. No. 299 of 1990 pending in the Court of Munsif (East) (Civil Judge) Ballia and in case No. 175 of 1993, therefore, do not affect the jurisdiction of this Court to decide the issue of validity and due execution of the Will.
13. In Chiranji Lal Sri Lal Goenka v. Jasjit Singh (1993) 2 SCC 507 the Supreme Court held that the Civil Court in original side of Arbitrator, even on consent of parties has no jurisdiction to adjudicate upon proof or validity of Will propounded by the executor. The scheme of Succession Act, 1925 provides that the grant of probate by a Court of competent jurisdiction is in the nature of a proceeding in rem. The probate Court has exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition or to grant or refuse the same. It has to preserve the original Will produced before it. The probate Court does not decide the existence of or the question of title of the property. The grant of probate is subject to appeal if any, or revocation if made in terms of the provisions of Succession Act. The judgment not only bind the parties but also the entire world. The issue Nos. 1, 7 and 8 are as such decided in favour of the plaintiffs and against the defendants.
14. The cavcators Shri Vijai Kumar Singh and Kamlesh Kumar Singh (A-18 and A-19) and the caveator Smt. Pushpa Singh wife of Shri Vijai Kumar Singh (A-21) have relied on the Will dated 29.6.1993 alleged to be executed by Shri Jawahir Singh (the deceased). They have challenged the Will set up by the plaintiff and have referred to the Will dated 20.3.1982 executed by Smt. Sarv Mangala Kunwar wife of late Shri Hari Singh brother of the deceased, in favour of Shri Kamlesh Kumar Singh, Vijai Kumar Singh and Shri Rajesh Kumar Singh. Shri Rajesh Kumar Singh died in a car accident. Their names were mutated in the revenue records by order of Tehsildar Bansdeeh dated 9.6.1992. It is alleged that the deceased had only six daughters and no male issue. The Will dated 29.6.1993 executed by Jawahir Singh is the last testament voluntarily executed by him and duly attested by two witnesses namely Shri Shailendra Kumar Singh and Shri Balbhadra Tiwari. Smt. Pushpa Singh is wife of Vijai Kumar Singh and has also relied upon the Will dated 20.3.1982 left by Smt. Sarv Mangala Kunwar. She has denied the execution of the Will dated 17.1.1991 set up by the plaintiffs and has also relied upon the Will dated 29.6.1993 executed by the deceased in favour of Shri Kamlesh Kumar Singh and Vijai Kumar Singh and his six daughters. Shri Kamlesh Kumar Singh and Shri Vijai Kumar Singh have also filed objections/ counter affidavits (A-23).
15. The objectors/ caveators have not led evidence. They have not proved the execution of Will dated 20.3.1982 by Smt. Sarv Mangla Kunwar and the Will dated 29.6.1993 executed by the deceased. Their caveats, as such, are liable to be discharged. The issue Nos. 2, 9, 10 and 11 are thus decided against the caveators and in favour of the plaintiffs.
16. The deceased Shri Jawahir Singh son of late Shri Nageshwat Prasad Singh was the owner and in possession of agricultural property in five Mauzas, which included the properties of his brother Hari Singh, who had no issue and which came to him by succession after the death of Smt. Saw Mangla Kunwar wife of Hari Singh. Shri Jawahir married Smt. Sita Devi and had six daughters from her. Smt. Sita Devi died in 1980. The deceased expired on 15.7.1993 in Shiv Prasad Gupta Hospital, Varanasi at the age of 70 years. The deceased was rich, influential and famous person of the town of Maniyar, District Ballia. He was Chairman of Zila Parishad, Ballia, Secretary of Gulab Devi Girls Degree College and Chairman of Murli Manohar Degree College. He was also the Chairman of Town Area, Maniyar for many years. The plaintiffs allege to be his sons from his second wife Smt. Tami Devi. This second marriage is in dispute between the parties. It is alleged by Smt. Shyam Kumari and her five sisters that the deceased never married Tami Devi and that the plaintiffs are not his sons. It is alleged that Smt. Tami Devi was a dancing girl belonging to a lower caste and was resident of Bhagwan Pur (the area inhabited by the families of dancing girls) at District Azamgarh. The defendants allege that Tami Devi never lived with the deceased and that the plaintiffs claiming to be her sons have manufactured a forged Will for claiming the properties of the deceased. The deceased was all along looked after by his daughters and died on 15.7.1993 at Varanasi in the hospital in the care of his daughters. Smt. Pushpa Singh was in litigation with the deceased. The last rites of the deceased were performed by his daughters at Maniyar, District Ball in.
17. Shri Arun Kumar Singh aged 36 years son of Late Shri Jawahir Singh was examined as PW-1 on 6.8.1996. He stated that he has five brothers and six sisters. All the sisters are married and living with their husbands. Their father used to live at Maniyar and also in Ballia city and that they used to look after the property of their father. He was married twice. The six daughters were from the first wife and five sons from the second wife. The Will dated 17.1.1991 executed by their father was registered. Their father died on 15.9.1993. They came to know about the Will after about seven days before the death. The original Will has been filed in the Court. The Will is witnessed by Shri Paras Mani Pandey and Shri Krishna Chandra Dubey, Advocate. Shri Paras Nath Yadav had scribed the Will. Late Smt. Mangala Kunwar was the wife of the eldest brother of their father. She died in 1992. Shri Kamlesh Kumar Singh, Shri Vijai Kumar Singh and Smt. Pushpa Singh wife of Shri Vijai Kumar Singh did not have relations with their father. Shri Vindhyachal Singh, Advocate is married to one of his sisters. Shri Arun Kumar Singh stated that his mother Smt. Tami Devi married Shri Jawahir Singh during the life time of Sita Devi. He was 19 years old at the time of death of Smt. Sita Devi, who died at Ballia. Shri Jawahir Singh was Kshatriya. He does not remember the Gotra of his father nor the Gotra of his mother but that she is also Kshatriya. She is resident of Bhagwanpur District Mau. At present his mother is 50 years old and that when his father died, he was 70 years old. The Will was executed in the office of Registrar, Ballia. His father had himself dictated the Will.
18. Shri Krishna Chandra Dubey, the attesting witness of the Will dated 17.1.1991 was examined as PW-2. He stated that he knew Shri Jawahir Singh since 1986. Shri Jawahir Singh was living in Maniyar Town Area and was temporarily residing at city Harpur and Ballia. He lived at a short distance after about 30 to 40 houses from the house of Shri Jawahir Singh. He is an Advocate and practicing at Civil Court at Ballia. Shri Jawahir Singh used to live with his wife Smt. Tami Devi and sons. The Will was written on 17.1.1991 at about 3.30 p.m. in his presence and in the presence of Paras Muni Pandey and other attesting witness Shri Santosh Kumar Singh in the Registrar Office at Ballia. Shri Jawahir Singh had dictated and that Shri Paras Nath Yadav had written the Will. Shri Jawahir Singh has signed the Will in his presence and, thereafter, in the Registrar Office in Civil Court at Ballia. At that time Tami Devi, Paras Muni Pandey and Santosh Kumar Singh were also present. Shri Jawahir Singh signed before the Asstt. Registrar. The Will was then signed by Paras Muni Pandey, Santosh Kumar Singh and the witness himself. The witness identified the document (A-52) as the same Will, which was signed by Shri Jawahir Singh before the Registrar and identified the signatures of Shri Jawahir Singh, Paras Muni Pandey and his own signatures.
19. Shri Krishna Chandra Dubey, PW-2 further stated that Shri Jawahir Singh had married twice. He had five sons and six daughters. Shri Jawahir Singh told him that he wants to execute a Will so that his daughters may not create any dispute. Shri Jawahir Singh was in good health when he had signed the Will. The Will was not signed under any coercion. His wife Tami Devi and sons were looking after him during his illness and at the end of his life. He was the counsel for Shri Jawahir Singh in about three cases. There are three witnesses to the Will namely Paras Muni Pandey, Santosh Kumar Singh and Krishna Chandra Dubey. Shri Jawahir Singh died on 15.7.1993 at Benaras. The witness was not present at Benaras and stated that he came to know of it from others that Tami Devi and sons were looking after Shri Jawahir Singh. In the cross examination the witness stated that he does not know the Pandit, who had performed the marriage of Jawahir Singh with Tami Devi. Shri Paras Nath Yadav sits at a distance of one and half furlong from the Registrar Office and that the Will (document No. A-52) was written on the seat of Shri Paras Nath Yadav.
20. Shri Paras Muni Pandey, the other attesting witness was examined as PW-3, He stated that he was a teacher in Maniyar Inter College and thereafter Principal w.e.f. 1970. Shri Narendra Bahadru Singh was the Manager of the College from 1963 to 1974 and thereafter Shri Jawahir Singh was the Manager. He was very close to late Shri Jawahir Singh, who had married twice. His first marriage took place in 1939-40 at Harpur Karah, District Chapra and the other marriage in the year 1956-57 in Azamgarh now District Mau in village Bhagwan Pur. Shri Jawahir Singh has six daughters from his first wife and five sons from the other. The Will was written by him on 17.1.1991 in favour of his sons. He was present when the Will was written in the office of the Sub-Registrar. Shri Jawahir Singh had dictated and Shri Paras Nath Yadav has written it. The draft was read by Shri Jawahir Singh. He signed on it in front of the door of the Registrar Office and thereafter he and Shri Krishna Chandra Dubey signed it as witness and identified him. Then Shri Santosh Singh signed. They all appeared before the Registrar where they affixed their thumb impression. Thereafter they affixed their thumb impression on a thick register. The witness identified paper No. A-52 as the same Will.
21. PW-3 further stated that Shri Jawahir Singh had not consulted him or referred to any other Will and that in his knowledge it was the last Will executed by him. He was in litigation with Kamlesh Kumar Singh and Vijai Kumar Singh. Shri Jawahir Singh fell ill about 10 to 15 days before his death and was admitted at Shiv Prasad Gupta Hospital, Varanasi. The witness had visited him at Varanasi where the deceased was being looked after by his wife and five sons.
22. In the cross examination PW-3 admitted that he had not attended the second marriage of Shri Jawahir Singh and had known about it from the persons of the mohalla namely Vishwanath Singh, Gopal tiwari, Ram Nageena Tiwari and Sita Ram Singh. None of these persons are alive. On 16th the witness was called about four days before the execution of the Will and was told that the Will is to be executed and that he shall have to come to Kutchery. His wife Tami Devi, Krishna Chandra Dubey, Santosh Singh and five sons sitting outside the Registrar office. The basta of Paras Nath Yadav is one and half furlong of the Registrar office. He does not remember as to who had purchased the stamps. He reached Registrar office at 2 p.m. on 17th. Shri Jawahir Singh has singed the Will after reading it. Thereafter Shri Paras Nath Yadav also signed. Shri Jawahir Singh signed in the verandah outside the Registrar's office. Thereafter the witness and after him Santosh and Shri Krishna Chandra Dubey, Advocate signed on the Will. In further cross-examination the witness stated that Gopal Tiwari, the Purohit of Shri Jawahir Singh performed the marriage ceremony of Shri Jawahir Singh with Tami Devi. He was not present and therefore he cannot say whether saptpadi was performed. Jawahir Singh's first wife died in 1984. Before his death Shri Jawahir Singh was admitted in Shiv Prasad Gupta Hospital, Varanasi. On 12th in the morning he (the witness) had gone by Bhagirathi Express and came back on 13th. He does not know where the last rites were performed. He thereafter answered questions regarding photograph of the cremation ceremony and the litigation pending in the Court at Ballia.
23. Shri Kamal Dev Singh, PW-4 stated that he was acquainted with Jawahir Singh, who had married for the second time in 1956. The witness had attended the marriage at Bhagwan Pur District Azamgarh, which is now in Mau. The marriage was performed with Hindu rites. On 17th he had gone in connection with a case at Civil Court and while finding his counsel Shri Hari Mohan Srivastava he reached Tehsil, where he was told that Shri Jawahir Singh was writing a Will. Shri Paras Muni Pandcy, the Principal, Shri Krishna Chandra Dubey, Tami Devi and other persons were also present. The Will was in favour of five sons. In the cross examination he stated that Shri Jawahir Singh was 40 to 42 years old, when he married for the second time. He wanted to marry as he did not have sons from the first wife. The witness stated that he had attended the barat. The other persons, who had attended the barat are not alive. Shri Gopal Tiwari and Shri Nageena Tiwari performed the religious ceremony. They have also died. The witness stated that it is not correct to say that only dancing girls live in the Village Bhagwanpur. To a specific question whether the marriage was performed by saptpadi the witness stated that he was outside the angan where the marriage was performed and that he had not seen saptpadi. Ram Bahadur Singh had performed Gurhapi. Smt. Tami Devi lived at Maniyar since after 1956. She used to live in parda and visited Ballia regularly by Jeep.
24. The law with regard to proof of Will is fairly well settled. In Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321 the principles of proof of Will have been reiterated as follows:
Section 63 of the Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. If further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 63 of the Indian Evidence Act, 1872 (in short "the Evidence Act") mandates examination of one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the court while dealing with a case based upon a Will has been examined in considerable detail in several decision of this Court. (See H. Venkatachala Iyengar v. B.N. Thimmajamma, Rani Purnima Debi v. Kumar Khagendra Narayan Deb and Shashi Kumar Banerjee v. Subodh Kumar Banerjee.) A Constitution Bench of this Court in Sahshi Kumar Banerjee case succinctly indicated the focal position in law as follows: (AIR p. 531, para 4) The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances ' may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion 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, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pas to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been give to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavathi v. Chandraraja Kadamba.) In Rabindra Nath Mukherjee v. Panchanan Banerjee it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly.
25. Learned Counsel for the plaintiffs contended that the execution of the Will has been proved in accordance with law. The testator had signed the Will in the presence of the witnesses, who had also signed the Will in his presence, in the office of the Sub- Registrar, and that all of them has signed and affixed thumb impression on the Will before the Sub-Registrar as also the register maintained by the Registrar. He submits that the presence of testator in the office of the Sub-Registrar for execution of the Will has been proved by attesting witnesses and Shri Arun Kumar, the propounder as well as Shri Kamal Dev Singh, PW-4, who were present on that day in Civil Court at Ballia. Shri Jawahir Singh was prominent citizen of Maniyar and Ballia. He was Chairman of Town Area, Maniyar, and President of Zila Parishad, Ballia for a long time and was associated with educational institutions as Manager and Secretary. He did not have sons from his first wife. He married with Smt. Tami Devi, who bore to him five sons. The defence witness have not denied that Tami Devi lived with him. Shri Arun Kumar Singh, PW-1 has proved his parentage from his school records and was appointed as clerk in Maniyar Inter College managed by his father. All the daughters were married in rich families and were well settled and thus the testator expressed a natural desire to make provisions for his sons and executed the Will. The registration of the Will does not raise presumption to due execution of the Will, as it requires attestation, but that Shri Krishna Chandra Dubey, Advocate and Shri Paras Muni Pandey, the witnesses to the will have proved due execution of the will in accordance with the provisions of Section 63 of the Indian Succession Act, 1925.
26. Per contra, the counsel for the defendant- Smt. Shyam Kumari, submits that the daughters being natural heirs have been excluded in the Will. Smt. Tami Devi, the second wife is alive. She was present at the time of execution of the Will. She, however, did not choose to step into the witness box to remove the suspicions surrounding the Will. Shri Arun Kumar Singh, PW-1 claiming to be the eldest son through Tami Devi led a very important part in execution of the will. Whereas he stated that he was not present at the time of execution of the Will and came to know of it only after about seven days after the execution, through his mother, his presence in the office of the Sub-Registrar on the date of execution of the will has been proved by the attesting witnesses. He played a prominent role along with his mother in execution of the Will by which the entire agricultural property and residential house was given to five sons. The propounder having taken an important part in execution of the will, which confers a substantial benefit of him, has not removed the doubts to the due execution of the Will by clear and satisfactory evidence.
27. Shri Girish Narayan Singh (DW-1), the eldest son in law and Smt. Shyam Kumari, the eldest daughter of the deceased (DW-2) have denied the second marriage of the deceased with Tami Devi. Smt. Shyam Kumari stated that when she was young she had heard of Tami Devi, who used to come to their house for dancing, and that she never saw Tami Devi living with her father and had never heard of plaintiffs. She came to Allahabad with her father and consulted the doctor. Her father was admitted in his nursing home at Allahabad on 10.1.1991 and was discharged on 16.1.1991 with advise to take rest. He was thereafter taken to Maniyar but stopped on way at Harpur. All the sisters are married and have children. Their husbands are well settled. In June 1996 all the sisters assembled at Maniyar in summer vacation. Their mother died in 1980. She is eldest of the six sisters. Her father died at the age of 70 years in Shiv Prasad Gupta Hospital at Varanasi. He was not keeping good health for last five to six years and was suffering from blood pressure, heart disease and diabetes. He had lost his memory and the capacity to recognize people about two months before his death. All the sisters were present at the time of his death. She had not seen Tami Devi or her sons in the hospital. She lives at Chawk in Ballia in a Mohalla inhabited by dancing girls. She has heard about her sons and has seen Arun Kumar in the Court. They never lived with their father. Her father did not enter into second marriage. Both the will produced by Smt. Pushpa Devi and sons of Smt. Tami Devi are forged. Shri Kamlesh Kumar and Shri Vijai Kumar are sons of Shri Narendra Bahadur Singh, who are her cousins. Smt. Pushpa Devi is wife of Shri Vijai Kumar. His father did not have good relation with Kamlesh and Vijai as they were his adversaries in litigation in the Civil Court at Ballia.
28. Smt. Shyam Kumari, DW-2 further states that she knows Paras Muni Pandey, who was Principal of Maniyar Inter College. The last rites of her father was performed by all the sisters together at Maniyar. The Dah Sanskar was performed by the son of her sister Smt. Manju Singh. The house at Harpur Ballia was in the name of Mangla Devi. All the sisters used to visit there. The house was locked and the servants were looking after it.
29. In the cross examination she stated that all her sisters are married and have their children. All the sisters last assembled together in June 1996 at Maniyar where they had planned to spend their vacation. They used to visit the father every summer and even after his death they meet in summers at Maniyar. Their mother died in 1994. They stayed there for about one month in June 1995 as Kamlesh had cut the crops. They had lodged an FIR and had met Station Incharge. They came to know in June 1995 that Kamlesh and Vijai had cut the crops. She docs not remember what has happened in pursuance of FIR. Her father Shri Jawahir Singh was a man of character and respected in the locality. He had never done anything in his life, which may have put them to disrepute.
30. Smt. Shyam Kumari further stated in her cross-examination that her sister at Varanasi looked after their father when he was admitted to the hospital. He was suffering from boils in his mouth and heart disease in 1991. One of the sisters lived at Allahabad where they had brought their father for treatment, and he was admitted from 10 to 16 in a nursing home at George Town. She does not know the name of the doctor. He died in 1993. The agriculture was looked after by the manager Bali and one servant Hridaya. The house at Maniyar had not been partitioned. At the time of the ceiling case her father was alive. The case was concluded in his life time. Regarding the property at Harpur she gave the boundaries of the house, which is two storied with four rooms on the ground floor and five rooms on the first floor. She stated that her sister looks after the house and pays the taxes. In the cross-examination on 27.11.1996 she stated that her father was taken to Shiv Prasad Gupta Hospital but was not admitted. She does not remember as to who has given him blood and that she cannot say anything about paper No. A-53, which is a certificate of donating blood given to Shri Ashok Singh, He was admitted to special ward at Varanasi Hospital and died on 19th July between 12 p.m. and 1 a.m. At the time her sister was residing at Varanasi. Her son, the son of the witness and the servant was present. She returned back at 12 p.m.. Her father was cremated at Manikarnika Ghat. The funeral was attended by many persons. The son of her sister at Varanasi had performed the ceremonies. She does not know about the rifle and as to where it is deposited.
31. The will is registered document. The attesting witnesses have deposed that Shri Jawahir Singh, a prominent citizen of Maniyar and Ballia had himself gone to Civil Court at Ballia on 17.1.1991 to execute the will. He dictated the Will to Shri Paras Nath Yadav, the scribe and then signed on it in the presence of the witnesses in front of the office of the Sub-Registrar. Shri Krishna Chandra Dubey, Advocate-PW-2 and Shri Paras Muni Pandey, the Principal of Maniyar Inter College, signed on the Will as attesting witness in the presence of the testator. All of them thereafter signed before the Sub-Registrar and that photograph of Shri Jawahir Singh was verified by Shri Krishna Chandra Dubey. All of them signed in the presence of each other, affixed their thumb impression on the Will for its registration as well as thick register of the Registrar.
32. Shri Jawahir Singh lived for about two and half years after the execution of the Will and died at Shiv Prasad Gupta Hospital at Varanasi on 15.7.1993. If he was not in agreement with his registered will dated 17.1.1991, he as an educated, intelligent and responsible persons had sufficient time to revoke it before his death on 15.7.1993. All his six daughters through Smt. Sita Devi, his first wife, were married in prosperous families and were well settled. Though his marriage with Tami Devi has not been proved, as there is no witness to Saptpadi ceremony, the fact that they lived together and had five sons, is proved. The statement of Smt. Shyam Kumari that his father did not marry Smt. Tami Devi, and that he did not have five sons from her is not supported by any other independent witnesses of the town, and appear to be naturally coming from a daughter, who was not happy with the second marriage of his father when her mother was alive. The defendant has not examined any other witnesses from Maniyar or Ballia to state that Shri Jawahir Singh did not marry Smt. Tami Devi or that he did not have five sons from her. Shri Girish Narain Singh, DW-1 the husband of Smt. Shyam Kumari and Smt. Shyam Kumari, DW-2 are the only witnesses, who have questioned the execution of the will. The other sisters, or the persons known to Shri Jawahir Singh have not been produced. Shri Jawahir Singh was active in public life. He was Chairman of Town Area, Maniyar and then President Zila Parishad, Ballia. He was also manager and Secretary of educational institutions. The defendants could have easily procured or summon other witnesses to depose about the events in his life, and testamentary capacity. The litigation with Smt. Mangala Kunwar, and with Shri Kamlesh Kumar Singh and Shri Vijai Kumar Singh, is not relevant to this testamentary suit in which the Court is concerned with deciding issues of due execution of the Will.
33. There are contradictory statements with regard to the fact as to who had taken care of the deceased before his death and the performance of last rites. Both the parties agree that Shri Jawahir Singh was seriously ill a few days before his death and died at Shiv Prasad Gupta Hospital on 15.7.1993. Smt. Shyam Kumari says that she was present along with her sister living at Varanasi and had left just before midnight after which her father died in the hospital, and that last rites were performed by the sons of Manju Singh, the daughter living at Benaras. Shri Arun Kumar Singh however disputes the statement and states that Shri Ashok Singh one of the sons had given blood to his father and obtained certificate of death and that Smt. Tami Devi and his sons performed the last rites of the deceased.
34. It is not necessary to record any findings on the second marriage and the fact as to who had taken care of Jawahir Singh at the time of his death and performed his last rites. The fact that Smt. Tami Devi did not appear in the witness box is also not of such importance, so as to doubt the due execution of the Will. It is proved by good and sufficient evidence on record including the documents filed by Shri Arun Kumar Singh with regard to school register that Shri Jawahir Singh had relations with Smt. Tami Devi for sufficiently long period of time and that the five sons were born to her out of the relationship. The deceased had admitted in ceiling proceedings that he had five sons. The date of second marriage is not proved on record. The witnesses, however, deposed that it was performed sometime in the year 1956, the year in which the Hindu Marriage Act, 1956 came into force. The second marriage, therefore, cannot be said to unlawful, and in any case even if the second marriage was not valid, the will in favour of the five sons cannot be questioned on that ground. Shri Jawahir Singh had the testamentary capacity to execute will bequeathing his property to any person, and if they happened to be his five sons, the will cannot be treated to be unnatural bequest shrouded in suspicious circumstances.
35. Learned Counsel for the defendants laid great emphasis on the evidence regarding the presence of Shri Arun Kumar Singh on the date of execution of the Will. The attesting witnesses stated that he was sitting outside the Registrar's office whereas Shri Arun Kumar Singh stated that he acquired knowledge of the Will after about seven days from his mother. This inconsistency in my opinion, on the basis of overwhelming evidence of due execution of the will proved by the attesting witnesses before the Sub-Registrar does not attach any such suspicion on the execution of the will, which has not been successfully removed. The counsels argued at length about the pending litigation and affidavits filed in ceiling cases. I do not find that these documents have much bearing on due execution of the will, except that the deceased had admitted that he had five sons.
36. The propounder has proved the will to be executed in accordance with the provisions of Section 63 of the Indian Succession Act, 1925 by producing both the attesting witnesses of the will executed by Shri Jawahir Singh before the Sub-Registrar, Ballia. The Will is thus held to be proved in accordance with law to be executed by the deceased Shri Jawahir Singh in sound and disposing state of mind. The issues are decided in favour of the plaintiff and against the defendants.
37. The description of the estate and property of the deceased given in the schedule of the plaint has been denied. The defendants however have not given any better details of the estate and property, which is not included in the schedule. The correct valuation of the properties will be subject matter between the plaintiffs and state and subject to their objections as the Court fees has to be paid after the grant of 'Letters of Administration' to the satisfaction of the Registrar General of the Court. The issue is decided accordingly.
38. On the findings given on issue Nos. 3, 4, 5 and 6, the due execution of the will by the deceased in sound and disposing state of mind, has been proved by the attesting witnesses after removing all the doubts and is in accordance with Section 63(c) of the Indian Succession Act, 1925. The plaintiffs are as such entitled to grant of 'Letters of Administration' with will dated 17.1.1991 attached.
39. The testamentary suit is decreed. The plaintiffs shall be granted the 'Letters of Administration' of the estate and properties of the deceased Late Shri Jawahir Singh with his registered will dated 17.1.1991 attached, after payment of Court fees worked out and to the satisfaction of the Registrar General and after due execution of the administration bonds. The plaintiffs are also entitled to costs of the proceedings from the defendant.