JUDGMENT Sunil Ambwani, J.
1. The application registered as Testamentary Case No. 12 of 2000 was contested by the widow and her two daughters and was thus converted and registered as suit.
2. The plaintiff Raja Ram son of Sukh Lal, is the son of the daughter of elder brother of the deceased Shri Kisun Lal, who died at village Dhanuha, Post Rampur, District Jaunpur on 17.1.1994. The plaintiff has prayed for grant of probate of the will dated 9.1.1994 executed by the deceased. The unregistered will is witnessed by Shri Radhey Shyam Dubey son of Sri Sobh Nath Dubey, and Shri Sallah alias San Mohammad. It is alleged that by this will dated 9.1.1994 the deceased cancelled his earlier registered will dated 9.2.1993 in favour of his second wife Smt. Phool Kumari and their daughters. The recitals in the will state that the deceased had entered into second marriage after his first wife died. He had a daughter from first wife and two daughters from second wife. He had no son and was living with Sukh Lal, son of his real brother at Mauja Dhanuha. His brother's family had looked after him, his farms and his treatment and that he is happy with them. He further states in the alleged will that he is not well and it is not possible for him to reach upto the Registrar's office and thus he has called the scribe at his residence and has executed the will in favour of Raja Ram @ Guddu son of Sukh Lal resident of Dhanuha, who shall be owner and entitled to possess and to get his name mutated over all his properties.
3. The schedule of properties, includes three houses valued at Rs. 2 lacs.
4. In the counter affidavit/ objections filed by Smt. Phool Kumari, the widow of the deceased she has denied the execution of the will. She alleges the will to be a forged document prepared by the petitioner to usurp the estate of the deceased and that no such will was executed by the deceased. The deceased had executed a will on 9.2.1993 as his last will by which he bequeathed his entire property to the objector. Shri Dilip Kumar, the younger brother of Sri Raja Ram has filed a suit No. 542 of 1994 against her and her daughters in the Court of Munsif Jaunpur claiming title to the property of Late Kisun Lal on the basis of a will dated 7.12.1993 in favour of Dilip Kumar.
5. The will dated 9.2.1993 executed by the deceased in favour of the objector, Smt. Phool Kumari was registered on 10.3.1993. The will dated 9.2.1993 and a copy of plaint in O.S. No. 542 of 1994 is annexed to the objections.
6. Two issues were framed by the Court on 12.9.2003:
(i) Whether Late Kisun Lal executed the will dated 9.1.1994 in favour of the plaintiff Raja Ram?
(ii) Whether Raja Ram is entitled to grant of probate on the basis of will alleged to have been executed on 9.1.1994?
7. The parties have not filed documentary evidence. The plaintiff has examined only Shri Radhe Shyam Dubey, the attesting witness as PW-1, who was cross examined on the same day on 23.8.2004. The defendant examined herself and was cross examined on the same day on 27.3.2006.
8. I have gone through the pleadings and the evidence led by the parties.
9. The plaintiff has, along with his application for probate, filed an affidavit of Shri Sallan @ Sah Mohammad son of Sri Gafar Ali, in proof of will. He was, however, not produced as witness, and since he has not been examined or permitted to be cross-examined, his statement cannot be read in evidence.
10. Shri Radhey Shyam Dubey son of Shri Sobhnath Dubey, PW-1 was examined and was cross-examined on 23.8.2004, to prove the will and his signatures on the first page as well as signature of Late Kisun Lal on the margin of the first and second page and at the bottom of the second page of the will. In his examination-in-chief he stated that the document was written before him, and also bears the signature of Sah Mohamad. Shri Kisun Lal was in good mental state and that the document was signed by Shri Kisun Lal in his presence. Shri Sah Mohammad also signed the document in his presence. The document was written by Shri Ashok Kumar Srivastava. The witness had knowledge about the will dated 9.2.1993 executed by the deceased in favour of his second wife. The witness was put to a suggestion that since he and Shri Sah Mohammad were close to Shri Raja Ram and thus Shri Raja Ram had shown the will to him on which Sah Mohammad and he had signed. The witness agreed to the suggestion. Shri L.K. Dwivedi, counsel for the plaintiff requested and was permitted to re-examine the witness. He put a question to the witness that who were present when he has signed the will. To this question the witness replied that he has signed before all the four persons namely Kisun Lal. Radhey Shyam Dubey, Sah Mohammad and Ashok Kumar Srivastava.
11. Smt. Phool Kumari, DW-1 stated in her examination that her husband died more than one year ago. She lived in the same house with her husband and two daughters. Her husband had executed a will in her favour before his death. Raja Ram is son of the daughter of her elder brother-in-law. Her husband and Raja Ram had no relationship. Her husband was a patient of breath-asthma. He was ill for about a year before his death. About 15 to 20 days before his death he had stopped talking and that her husband and Raja Ram were not on visiting terms. In cross examination she stated that her husband used to agree to all her suggestions. She had good relations with the daughter of first wife of her husband. Her elder daughter lives with her. Her elder daughter's husband lives at Bombay. About 15 days before his death her husband was unable to talk. Her brother or nephew do not live with them. Her elder daughter's son had performed the fire ceremony at the cremation of her husband. Raja Ram and Sukh Lal had not participated in this ceremony.
12. In H. Venkatachala Iyengar v. B.N. Thimmajamma ; Rani Purnima Debi v. Kumar Khagendra Naravan Deb ; Shashi Kumar Banerjee v. Subodh Kumar Banerjee followed in Uma Devi Nambiar v. T.C. Sidhan (Dead) , the principles of proof of will have been laid down by the Apex Court. These principles have been reiterated in para 15 and 16 of the judgment in Uma Devi Nambiar's case 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. It 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 68 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 lyengar 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.
13. An unprivileged will is to be attested by two or more witnesses each of whom have seen the testator signing or affixing his mark to the will, or has seen some other person signed the will, in the presence and by the direction of the testator, and each of the witnesses have signed the will in the presence of the testator. Shri Radhey Shyam Dubey, PW-1, the only attesting witness produced by the plaintiff did not state in his examination that he had signed on the will as a witness in the presence of the testator. He has not stated as to whether the will was scribed or signed by the testator. When he was given a suggestion in the cross examination that Raja Ram had shown the will on which he and Sah Mohammad had signed the witness agreed to it. In re-examination the counsel made an attempt, to solicit the statement that he had signed before the testator but the attempt in my opinion did not succeed as he did not clearly state that he has signed on the will in the presence of the testator.
14. Any question suggesting an answer, which the person putting it wishes or expects to receive is called and is defined under Section 141 of the Indian Evidence Act, 1972, as a leading question. Section 142 provides that the leading question must not if objected to by the adverse party be asked in an examination-in-chief or in re-examination, except with the permission of the Court. The Court shall permit leading question, as to matters, which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.
15. In the present case, the will is required to be proved by the attesting witness. The affidavit of Shri Radhey Shyam Dubey, PW-1 was not filed with the plaint under Rule 5 (a) of Chapter XXX of the Rules of the Court. The witness did not state in his examination-in-chief that he has signed as an attesting witness, in the presence of the testator. After the cross-examination, the counsel for the plaintiff made an attempt to put a leading question soliciting an answer as to whether the witness had signed the will in the presence of the testator. This question in my opinion is a leading question, which could not be put to the witness to get a reply, in an attempt to fill up the lacuna, in re-examination. The fact on which the question was asked neither introductory nor undisputed. The answer as such shall not be read in evidence.
16. There is clear recital in the alleged will that the testator is ill and is unable to go the Registrar's office and as such he had called the scribe at his residence. The witnesses signed only on the left hand margin of the first page. The second and last page does not bear the signature of the witnesses.
17. Smt. Phool Kumari, the second wife and legatee in the first registered will, stated that her husband was suffering from asthma and was seriously ill before his death. He had stopped talking about 15 to 20 days before his death. The recitals in the will also established the fact that the deceased was seriously ill a few days before his death, In the circumstances, the propounder is under greater obligation, to have removed all the suspicious circumstances surrounding the execution of the will. The propounder has not led evidence to show the circumstances in which the will was executed in favour of a distant kindered, to the exclusion of the second wife and two daughters as well as daughter from the first wife. The place and time on which the will was written, the physical and mental capacity of the testator at the time of its execution, the relationship of Shri Sah Mohammad, the other witness with the testator, the reason for which the testator desired to execute the will to a distant relative and to exclude his wife and daughters have not been sufficiently explained. There is absolutely nothing on record to show as to why the testator, excluded his wife and daughters and gave his entire property to the plaintiff. The testator died on the 8th day of the alleged execution of the will in which he had admitted that he was so ill that he was not able to go to the office of the Registrar. The propounder has not adduced any evidence regarding the health of the testator. In the absence of any evidence to remove these suspicious circumstances surrounding the execution of the document, and the physical and mental condition of the testator, the propounder has not satisfied the Court's conscience. The document does not speak for the testator.
18. The propounder has not examined himself as a witness to remove these suspicions and doubts surrounding the execution of the will. His absence and consequent refusal to be cross-examined by the counsel for the objector/defendant, confirm the doubts surrounding the will both with regard to sound and disposing mind of the testator and the reason as to why he excluded his wife and daughters, and gave away the entire properties to the son of his brother's sister. The will in my opinion, has not been proved. The will as such is not proved to be executed by Shri Kisun Lal on 09.1.1994 in favour of the propounder. Both the issues are as such decided against Shri Raja Ram, the plaintiff. He is not entitled to grant of probate.
19. The suit is dismissed with costs quantified at Rs. 10,000/- to be paid by the plaintiff to the defendant.