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In The Matter Of Goods Of Late Shri Shiv Kumar Bajpai - TESTAMENTARY SUITS No. 14 of 1999 [2007] RD-AH 7 (1 January 2007)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


                             Judgment reserved on 26.3.2007

                               Judgment delivered on 20.4.2007  


In the matter of goods of

(Late Shiv Kumar Bajpai, Son of Bandideen Bajpai, resident of 312 Shahganj, Allahabad the deceased)

Nand Kishor Bajpai (since deceased)

represented by Ashok Bajpai and others

- Plaintiffs


Smt. Munni Devi and others Defendants

Hon. Sunil Ambwani, J.

1. Late Nand Kishore Bajpai filed a Testamentary Case No. 23 of 1998 for 'Letters of Administration' of the estate and credit of his father late Shri  Shiv Kumar Bajpai  (the deceased) son of Bandideen Bajpai, resident of 312 Shahganj, Allahabad attached  with registered 'Will' dated 13.2.1991. The application was directed to be advertised and is contested by caveator Smt. Munni Devi wife of Shri Ram Manohar Tripathi, one of the daughter of the deceased, resident of 560/561 Mill Road Kurla, Bombay-70,   stating that the deceased died intestate and denying the execution of the alleged 'will' dated 13.2.1991.

2. On the contest put by the defendant,  the Testamentary Case was converted to Testamentary Suit No. 14 of 1999.

3. During the pendency of the suit, Shri Nand Kishore Bajpai-the applicant died on 2.2.2006. Shri Nand Kishore Bajpai (since deceased)  was substituted through his heirs:-

1. Shri Ashok Bajpai (son)

2. Smt. Gayatri Devi (wife)

3. Smt. Anita Misra (daughter)

4. Smt. Meera Dixit (daughter)

5. Smt. Suman Tiwari (daughter)

4. I have heard Shri A.N. Misra, learned counsel for plaintiffs and Shri R.N. Kesari, learned counsel for respondents. Both the parties have filed their pleadings and led evidence both documentary and oral in the suit and made final submissions on 26.3.2007.

5. According to the plaintiff, late Shri Shiv Kumar Bajpai (the deceased) son of late Shri Bandideen, was resident of 312 Shahganj Allahabad. He died on 27.11.1997 at his home 15-64 Bajpai Niwas Bombay. He had his fixed place of abode at 312, Shahganj, Allahabad. He had left behind the applicant as his only son and two daughters Smt. Munni Devi wife of Shri Ram Manohar Tripathi, resident of 560/561 Mill Road Kurla, Mumbai-70 and Smt. Leelawati wife of Shri Vikram Dutt Shukla, resident of Old Palghar, Post Office Palghar, District Thana. During his life time, the deceased, out of his love and affection, executed a registered 'will' on 13.2.1991 bequeathing his entire properties to the applicant. No one else has applied before this Court or any other Court for grant of 'Letters of Administration'  and that the applicant has truly and correctly set forth the assets of the deceased in the affidavit of valuation, valued at Rs. 12, 35, 000/- and will pay ad-valarum court fees when letters are granted to him. The schedule initially described five properties including two houses at Allahabad; two houses at Mumbai and one 'Tabela' used as 'cattle shed' including open land. By an amendment dated 7.10.1999,  the plaintiff added in the schedule the properties, namely a Flour Mill in Municipal House No.  477 Wazira Daruwalachal, New Mill Road, Kurla; a Flour Mill Municipal House No. 485-A Shuma-wala Chamar Bara Krishna Chauk New Mill Road Kurala; a Flour Mill Shed No. B-24 Shop No. 2 Atma Ram Takla Chal Dabholkar Alda Jiya Mata Najar Dr. Ambedkar Road Kala Chauk Mumbai 33 and a Flour Mill Ram Chandra Hiraji Makhawa Chal Pika No 1 City Survey No. 189/2-A Dookan No. 1 Thane, Maharashtra and valued at Rs. 15,000/- each.

6. In the written statement  Smt. Munni Devi, the daughter of the deceased, stated  that the alleged will is absolutely false. The deceased   resided at Kurla Mumbai and had maximum love and  affection for her, such that even after her marriage she and her husband continued to stay with her father at Mumbai. In 1963 after the marriage of her brother Shri Nand Kishor Bajpai, she shifted to the adjacent premises, which she continued to occupy till date. Her father never mentioned of the  execution of will in favour of her brother. The deceased accompanied  her husband to his ancestral house at Rae Bareli to attend the marriage of  their son Mr. Anurag Tripathi fixed on 7.2.1991 and returned on the day of reception of her son at Mumbai. The 'will' does not disclose anything about the various properties at Mumbai. It is absolutely vague  in the description and that the applicant taking advantage of certain words which vaguely refer to the proportion at Mumbai  seeks to deprive his sisters of their share. The properties at Mumbai and Allahabad are ancestral properties. The deceased could not have executed a will in respect thereof. These properties were originally owned by her mother's father late Shri Suraj Prasad Trivedi. The five flour mills at Mumbai acquired by the deceased are not referred  to, in the will and that there are certain other properties of which there is no reference in the will. The deceased was engaged in various litigations in Mumbai and was having many advocates, friends and other educated persons. It is alleged that the the will was fabricated at Allahabad.

7. She further states that her father late Shiv Kumar Bajpai was permanently settled at Mumbai for 50 years and was managing the affairs of her father-in-law Mr. Suraj Prasad Trivedi. The deceased was elected in Kurla Municipality in the late 40s and was the founder Director of the Kurla Nagrik Cooperative Bank at Kurla Mumbai for a span of about more than three decades.

8. Two issues were struck between the parties on 13.7.2000:

"1. Whether the will dated 13.2.1991 was executed by the deceased Shiv Kumar Bajpai with sound and disposing mind?

2. Whether the deceased was permanent resident of Allahabad? If not, its effect?"

9. By a detailed order dated 23.3.2005 the Court allowed  the documents filed along with list of documents (paper No. 1-34/7) to be taken on record.

10. The plaintiff filed the deed of power of attorney executed by Shiv Kumar Bajpai in favour of his son Nand Kumar Bajpai dated 25.9.1991 (Paper No. A-23), and  the affidavit of Smt. Leelawati agreeing of the will dated 17.8.2000 (Paper A-24) and examined the applicant late Nand Kishore (PW-1) on 4.3.202; Shri Tribhuvan Nath Tripathi, Advocate, the scribe of the will as PW-2 on 10.2.2003; Shri Ram Milan Pandey, Advocate, the marginal witness as PW-3 on 3.3.2003 and Shri Ram Raj Yadav, Advocate, the other marginal witness as PW-4 on 22.9.2003.

11. The counsel for defendant Smt. Munni Devi filed original rent receipt No. 291 dated 21.7.1967 and original rent receipt No. 425 dated 16.4.1965 as paper A-18 and A-19 and original power of attorney executed by defendant Munni Devi in favour of Shri Anurag on 6.10.1998 authorising him to sign vakalatnama and to take other proceedings relating to the estate  of the deceased and to defend Case No. 23 of 1998 and examined Shri Anurag Ram Manohar Tripathi son of defendant-Munni Devi as DW-1. He was cross examined on 8.5.2006. Shri Sunil Shukla son of Smt. Leelawati as DW-2 was examined and  cross examined on 6.11.2005.


12. The plaintiff has set up the will executed by the deceased at Allahabad on 13.2.2991 and was registered on the same day in the office of Registrar, Civil Court, Allahabad. The will is written by Shri Srinath Tripathi, Advocate and is witnessed by Shri Ram Milan Pandey, Advocate and Shri Ram Raj Yadav, Advocate. In the will, which is typed by Shri Prem Narain Pandey, it is stated that the deceased aged 70 years is resident of 312 Shahganj, Allahabad and does not know when his life will come to an end. The deceased desired to make proper arrangement of his properties so that there will be no dispute after his death. He mostly lives at Mumbai. He has house 312 and 316 in Mohalla Shahganj. His  son Nand Kishore,  resident of Shahganj, Allahabad is serving him and is also looking after the properties with great efforts and that he is happy with the services of his son and desires that he should bequeath his entire properties movable and immovable in favour of his son Shri Nand Kishore so that there should not be any dispute regarding the properties after his death. The deceased further stated that he has executed the will on his own free will without  any coercion and is in full senses, good health and mental condition and stated that his entire properties both movable and immovable  will be owned by him so long he lives and after his death his son Shri Nand Kishore will become sole owner of his entire movable and immovable properties. He will have right to get his name mutated on the entire properties after his death and to use it  in any manner he likes to which no one will have objection. If any person claims any rights and title over these properties, the same may be considered without any effect after execution of will which is his last will.

13. The plaintiff stated that he is only son and has two sisters Munni Devi and Leelawati. The entire property subject to will, is the self acquired  properties of his father who use to live at 312 Shahganj Allahabad and also used to visit Mumbai in connection with the management of his properties. He was keeping good health and mental condition and  used to look after the cases. He  has seen his father reading and writing and can recognise his hand writing. He has proved the will (paper A-4) which was marked as Ext. B-1,  that he has not pressurised his father in any way and was not informed by his father about the execution of the will. He had served his father. The financial condition of his sister is very well. Her husband Dr. Ram Manohar Tripathi was a minister in Maharashtra Government and is permanent resident of Village Misir Khera, Rai Bareli. He owns a house and lives at Mumbai in connection with his political life. His sister Munni Devi has one son Anurag, who is press reporter  of 'Nav Bharat Times Press'.

14. In the cross examination he could not state as to how his father  purchased the houses at Allahabad and stated that these houses are ancestral and were acquired through court cases. These houses are numbered 312 and 316. The house 312 is  of  measuring 30x50 feet. It is single storey house. The house No. 316 is occupied by tenant.  These houses were acquired by litigations from Pancham and Mewa Faros  contested by his father. The deceased shifted to Bombay before his death. His mother's name is Ashoda Bai. His Nana was permanent resident of  Mumbai and has many properties. He could not say whether his father was living as 'Ghar-jamai' with his Nanaji. He used to come Allahabad in vacations. There are six members in his family. He lives permanently at house No. 564 Bajpai Niwas New Mill Road, Kurla Mumbai. His father has two houses and one tabela of  buffaloes and open space at Mumbai which are numbered as 562 Kiran Bhawan, 560/61 and 560/61 and 386  ( stable of buffaloes at Kurla). His father had 04 or 05 flour mills at Mumbai. His father did not have any house and had only 04 or 05 flour mills. His father had a licence to keep a gun. He does not known whether in his licence the permanent residence is shown at Mumbai.

15. In  further cross examination on 10.7.2007, the plaintiff stated that  his father had come to Allahabad 10 days before  execution of the will. He had gone to Rai Bareli to attend the marriage and then came to Allahabad and was living in house No. 312  Shahganj, Allahabad. He had no knowledge of the will and that he came to know about the will only after his father came back after visiting advocates. He had gone along with his father for registration of the will. His father had taken him on the pretext of  getting of power of attorney and then he came to know that the will was registered . The witnesses had signed before the Registrar. There were no details of properties at Allahabad and Mumbai given in the will. It is wrong to say that his father used to get executed power of attorney and not the will. He had received the power of attorney from the office of Registrar after one and half months as well as the will. His father died in Mambai. It is wrong to say that the value of the properties is about Rupees One Crore. It is, however, correct to say that the properties in Mumbai are more than the properties at Allahabad.

16. Shri Tribhuwan Nath Tripathi, PW-1 is an  advocate. He stated that he  knows the deceased as he was his client since 1960. The deceased had asked him to write the will at Kutchery or at his residence. He came to his residence on his request. He expressed desire to execute a will in favour of his son. He was keeping good physical and mental health. He had also met him ten days before and identified the will which was written by him and that the deceased had signed on it before him. He also identified his signatures on the will as scribe. The will was typed by Shri Prem Narain Pandey and was witnessed by Ram Milan Panday and Ram Raj Yadav and was thereafter presented in the office of registrar where the deceased and the witnesses had signed. In the cross examination, the witness stated that apart from these houses at Allahabad, there were three more houses which were sold by Janaki Devi and that the deceased had filed suit for cancellation of the sale deed through him in which Shri Vishwanath Pandey, Senior Advocate was also engaged. One of the cases was compromised with Matool Bibi and other two cases were decided  by the Supreme Court for 15 years back. One other case for specific performance of contract against Sudha Rani filed about 10-12 years ago is still pending. He does not remember the number of the house in respect of which the suit is pending. He does not know about the properties of the deceased at Mumbai and that he mostly lives at Mumbai. The witness denied that  he is 80 years old and is unable to walk and stated that the deceased was keeping good health and  looked after his cases on his own. The witness stated that when the will was produced before the Registrar, there was no one of the family of the deceased with him, and that the son of the deceased had never met him alone in connection with any case.

17. The witness stated that both the attesting witnesses Shri Ram Milan Pandey and Ram Raj  are advocates of 15-20 years standing. They were brought by the deceased. They are not his juniors. Shri Ram Milan sits at the gap of seat (basta) of two advocates and that the seat of Shri Ram Raj Yadav is far from his seat. The deceased had got will typed by himself and had purchased the stamp. The typist sits about 2-3 pillars away from his place. It is wrong to say that both the witnesses had signed on him asking them to sign on the will. Shri Ram Milan Pandey PW-3 and Shri Ram Raj Yadav PW-4 are advocates and practitioners at  district court Allahabad. They identified the will in a professional manner stating that  the deceased was in a fit physical and mental condition,  and had read and signed the will in their presence and thereafter they signed on the documents. In the cross examination they admitted that they sit close to Shri Tribhuwan Nath Tripathi in the district court and was known to deceased 5-6 years ago and that the deceased had consulted them with regard to house tax  in 1984. The will was not typed before them. The plaintiff Nand Kishore Bajpai met them for the first time on the day of registration of the will and thereafter visited them in connection with the court cases. They, however, cannot say in which cases the plaintiff had consulted them. Shri Ram Milan Pandey stated that his seat number is 64. Tribhuwan Tripathi  sits  at seat no. 63 and Ram Raj Yadav sits at seat no. 27 which is towards west after two seats. They admitted that there is no mention of the properties at Mumbai. In the will Shri Ram Raj Yadav -the other witness of the will also deposed to same effect and stated that they took about three hours  in typing and registering the will and during these three hours he was with deceased and Shri Tribhuwan Nath Tripathi. He was known to the deceased personally and came to his son only after execution of the will.

18. Shri Anurag-DW-1 is son of  Shri Ram Manohar Tripathi. He stated that his mother is very old and keeps ill and therefore she has executed power of attorney in his favour to look after the case. The deceased was his Nana. He or his family members did not reside either permanently and temporarily at Allahabad. The entire property at Mumbai and Allahabad was acquired by his grand father Shri Suraj Prasad Trivedi and that his 'Nana' Shri Shiv Kumar Bajpai  used to look after it. The deceased was Director of  Kurla Nagrik Cooperative Bank Kurla Mumbai for 30 years. He used to live with his Nana who used  to meet all expenses for the family after the plaintiff's marriage. He along with father and mother shifted to house No. 561 New Mill Road Kurla (West) Mumbai. The will is a forged document. It does not mention all the properties. After the death of his grand father Shri Surya Prasad Trivedi the deceased who was his Nana was looking after the properties 312/313 Shahganj, House No. 560/561 New Mill Road Kurla West Mumbai, Kiran Bhawan New Moir Road, Kurla West Mumbai, 386 Tabela and Open Space and five Flour mills. Apart from these there are  Chal New Mill Road Kurla in front of C.S.T. and in the corner of Metab Gali and a shop and Chal near  New Model Cinema  New Mill Road Kurla. The deceased never informed of execution of any will. His marriage was fixed in village Misir Khera, Rai Bareli and that his 'Tilak' was fixed on 4.2.1991. The deceased did not participate in the 'Tilak' ceremony. The marriage took place on 7.2.1991 and that time the deceased was not keeping well. The deceased came to attend the marriage with all the family and was not keeping well . The plaintiff brought the deceased-Shiv Kumar Bajpai to Allahabad on 12.2.1991 and got a fraudulent power of attorney and a will executed for him. The deceased was not keeping good health and his sense to understand the nature of the document executed by him. At that time no one from the family was present. The deceased was engaged in many litigations in Mumbai and that he never informed his advocates that he had executed any will or power of attorney. All the properties are ancestral properties and that the deceased has no right to execute the will.

19. In the cross examination Shri Anurag Tripathi stated that  the deceased left Allahabad when he was about 20 year's old and settled at Mumbai. He has no knowledge about his properties at Allahabad. The deceased was very old and was not keeping  good physical and mental health.  He went to attend the marriage on 4.2.1991 at Rai Bareli, but could not participate in the 'Tilak' ceremony. He was not in a position to reach the dais at  the marriage. He was treated by local doctor at Rai Bareli but that he has not preserved the prescriptions. He was alive for about 6 and ½ years after his marriage but  never visited Allahabad thereafter. The witness stated that his mother has undergone open heart surgery and her written statement was prepared at Mumbai. The will stated that the deceased always used to sign as 'S.B. Bajpai'  Paper  Nos.A-18 and 19 are receipts given by her to the tenants on which he had sign as S.B. Bajpai. His father was a Member of the Legislative Assembly for 18 years and was also Minister in the Government of Maharashtra. His father, however, did not file any objection. It was agreed that mother will file objections.

20. Shri Sunil Shukla son of Smt. Leetawati-the second sister of the deceased  appeared as a witness (DW-2). In the affidavit filed in Examination-in-Chief, he stated that the deceased was not happy with his son-the  plaintiff and that the plaintiff never looked after the properties nor took take care of the work of the bank. The deceased never informed them of the will which was executed by playing fraud upon him.  Anurag Tripathi was to marry  at Rai Bareli. His 'Tilak'  ceremony took place on 4.2.1991. The deceased was not present in 'Tilak' as he was not keeping well. It was difficult for him  to walk without any support. In the cross examination, the witness stated that his mother and father did not file any reply in the proceedings.  His mother did not sign any affidavit. His mama-the plaintiff may have got some papers  signed from his mother in connection with the transfer of a gun and that the signatures on the affidavit  are the  signature of his mother. There was some litigation with regard to the houses.  His maternal grand father had lost the litigation from one Shri Panna Lal Ji who was living in the house known as 'Maya Niwas'. In respect of two houses 312 and 313, at Allahabad there was no litigation. The deceased was  running Ata Chakkies (floor mills) in partnership with Ram Briksha Mehta. After the death of Shri Ram Briksha Mehta, there was a partition between his son and the deceased in which five Ata Chakkies were given to son of Ram Briksha Mehta and four were retained by the deceased. His Nanaji always signed as 'S.B. Bajpai'. He was a Director of Kurla Nagrik Sahkari Bank and also used to sign as Shiv Kumar Bandideen Bajpai. He had seen his Nanaji reading and writing. After looking a will (A-4) the witness stated that the deceased never used to sign in the manner as it was signed on the will and that it was not his Nana Ji signatures.

21. It is contended by Shri A.N. Misra, learned counsel for plaintiff that the will has been proved in accordance with the law. The scribe and witnesses have proved the will and it is admitted that the deceased was in Allahabad at the time when the document was executed. The scribe and one of the witnesses is known to the deceased. The deceased may be signing as 'Shiv Kumar Bande Deen Bajpai' at Mumbai but that did not make any difference. The fact, that there are no details of the properties of Mumbai in the will, is not very significant as the deceased wanted his entire properties of Allahabad and Mumbai to be given to his son. The defendant could not prove that the properties in the will were ancestral properties or were acquired by grand father of Shri Anurag Tripathi.

22. Shri R.N. Kesari, on the other hand, appearing for defendants states that the deceased had left Allahabad at the age of 20 years and was all along living in Mumbai. He was settled with his father-in-law and acquired large properties including the four flour mills. The deceased was a Director of Nagarik Cooperative Bank Kurla for 30 years and was looking after the properties at Mumbai all along. The deceased always used to sign as  'Shiv Kumar Bandi Deen Bajpai,' and that he had signed the power of attorney in favour of his son at Mumbai (paper A-23) giving  the authority to deal with the properties including  recovery of rent, pay taxes, and the bills of Bombay Sub Urban Electricity Supply, Income Tax and Municipal Corporation  Bombay. The  deceased always signed in Hindi as 'Shiv Kumar Bande Deen Bajpai'. In English the deceased always signed as 'S.B. Bajpai'.  Shri Kesari submits that the will is a forged document, which was never signed by the deceased. It is apparent that the deceased was not keeping well on his visit to Rai Bareli. His son brought him to Allahabad and taking advantage of his presence at Allahabad got the will prepared  through Advocates who were not known to the deceased at all. The typist,  the scribe and two marginal witnesses are all persons sitting in Chaurasi Khambha, a place where large number of advocates sit under a closed verandah with 84 pillars at  Allahabad on adjoining seats. They  conspired with the plaintiff and got stereotyped documents prepared and then got it  executed before the Registrar, may be on the pretext of  a power of attorney signed in favour of plaintiff. The deceased was  very old and ill and was not in a physical condition to visit civil court alone and sit there  for three hours. The details of properties were not given in the will. The deceased  was Director of a Bank for 30 years, which is a very significant feature in the fraud played by the plaintiff in preparing the will.

23. Shri Kesari further submits that the plaintiff has not given any details of his educational back ground and his vocation. In fact, the plaintiff was a vagabond. The plaintiff never did any business and used to survive on the money given by his father. The plaintiff never assisted the deceased in his business and that the deceased was not happy with his son. In fact, the plaintiff had no knowledge about the details of the properties at Mumbai and as such neither he nor his counsel who  prepared the will, could mention it in the will proving that they had no instructions from the deceased. Shri Kesari submits that a person living at Mumbai for 50 years could not change the way he always signed just because he came to Allahabad. The plaintiff never used to sign as  'Shiv Kumar Bajpai' in Hindi. He always signed as 'Shiv Kumar Bande Deen Bajpai' and in English as 'S.B. Bajpai' which is evident from the power of attorney and the rent receipts signed by him at Mumbai.

24. 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, AIR 1959 SC 443, the Supreme Court laid down the principles of onus of proof of the will as follows:

"The party propounding a will or otherwise asking a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents.  Sections 67 and 68 of the Evidence Act are relevant for this purpose.  Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss.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, Ss.59 and 63 of the Indian Succession Act are also relevant.  Thus the question as to whether the will set up by the propounder is proved to be the last  will of the testator has  to be decided in the light of these provisions.  It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act.  As in the case of proof fo other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty.  The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

However, there is one important feature which distinguishes will from other documents.  Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before  a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.  Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents.  The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing statement of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will.  Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and  sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law.

Courts would be justified in making a finding in favour  of the propounder.  In other words the onus on the propounder can be taken to be discharged  on proof of the essential facts just indicated.

There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances.  The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind.  In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.  The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator.  It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas   circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity.  Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits.  If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove  the said suspicion by clear and satisfactory evidence.  It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience.  The lest merely emphasizes that, in determining the question as o whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence.  It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence.  It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the  nature and quality of the evidence adduced by the parties.

It is no doubt true that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances.  What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated.  That inevitably would be a question of fact in each case."

25. These principles were reiterated in Rani Purnima Debi Vs. Kumar Khagendra Narayan Deb, AIR 1962 SC 567; Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee, AIR 1964 SC 529; Ramchandra Rambux Vs. Champabai, AIR 1965 SC 354; Pushpavati Vs. Chandraja Kadamba, AIR 1972 SC 2492; Jaswant Kaur Vs. Amrit Kaur, AIR 1977 SC 74; S. Sundaresa Pai Vs. Sumangala T. Pai, AIR 2002 SC 317; Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, AIR 2003 SC 761; Pentakota Satyanarayana Vs. Pentakota Seetharatnam, AIR 2005 SC 4362 and Madhukar D. Shende Vs. Tarabai Aba Shedage, AIR 2002 SC 637.

26. 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.

27. 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.

28. In Ramchandra Rambux Vs. 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.

29. In Jaswant Kaur Vs. 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.

30. 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.

31. I have carefully considered the evidence on record and submissions of the counsels, which clearly establish that the deceased had left Allahabad at the age of 20 years. He married  at Mumbai and was living with his in-laws. He was fairly successful in the business.  He constructed a house and was doing business of running flour mills in a partnership firm in which he got four flour mills. His father-in-law was elected as Member of Legislative Assembly for 18 years and was also a Minister in the Government of Maharashtra. The deceased  served as Director of Kurla Nagrik Cooperative Bank Kurla Mumbai for 30 years. He always signed  in Hindi as 'Shiv Kumar Bande Deen Bajpai' and in English as 'S.B. Bajpai'. The two houses at Allahabad were inherited by him and that he got possession of the house after some litigation. He had let out these houses to the tenants. The deceased and his son-the plaintiff were not living in Allahabad. They were both living at Mumbai and had come to attend the 'Tilak Ceremony' of Shri Anurag, daughter's son at Rai Bareli on 4.2.1991. He was not keeping well on that date and was treated by a local doctor. The purpose for visiting Allahabad is not given out in the oral evidence. He lived thereafter for six and half years and then died at Mumbai on 27.11.1997 at his residential house No. 1565 Vijay Niwas Mumbai. A person of such a social standing in life having a number of properties including flour mills at Mumbai acquired by him  will not forget to give details of his properties in his will. The deceased had given the numbers of the houses  at Allahabad as his son and counsels could easily ascertain the numbers of the houses in litigation at Allahabad. The fact, that no mention or details of properties or even the statement about the nature of business and four flour mills are given in the will which is said to be prepared at the instance of the deceased, clearly shows that the will was not prepared on his instructions. Further if the deceased had come to Rai Bareli to attend Tilak ceremony of his daughter's son he could be accompanied by any relative or any acquaintance at Allahabad where he was not living for last 50 years for visiting civil court for preparation and execution of the will

32. The evidence further shows that the both  the scribe of the will and two advocates were having their seats very close to each other, raising suspicion in the manner in which the will was prepared, scribed and witnessed. The District Court at Allahabad is a notorious place for preparation of false documents, which  are mostly prepared at the instance of the Advocates, in a stereotyped manner. The modus operandi of preparing the document is the same and that the contents of the documents are almost the same and can be easily identified. These forged documents do not give the details of the family or the properties as these lawyers are not aware of such details at the time of preparation of the document.  The contents of the will, which is prepared in a most casual manner; the  signatures appended to the document, the age and the state of  health of the testator and the fact that he was not residing at Allahabad for 50 years before his death and that there is no mention of the properties which he had acquired or was managing at Mumbai, clearly demonstrates that the will is a manufactured document prepared at the instance of the applicant  who was not engaged in any useful activity in his life and was surviving on the dole given by his father. The plaintiff took advantage of the presence of his father at Allahabad and got the document prepared  with the help of the professionals at the civil court at Allahabad who were strangers to the deceased. Shri Kesari is correct in submitting that authenticity of  the signatures on the document could be established by any one who was known  to the testator. Both the houses at Allahabad were given on rent and that at least the tenants or the neighbours who could have identified the deceased should have accompanied him or produced as witnesses for due execution of the document.

33. The testator in his long stay at Mumbai had acquired large number of properties with the help of his father-in-law. He was placed in good position in the social hierarchy and had easy access to competent legal advise at Mumbai. As the Director of Bank for a long period of time, the testator must be used to writing the document and putting the signatures on them. It was highly unliking  that he will visit the civil court at Allahabad with no one along with him, for preparing a will  and would not give the details of family and the properties at Mumbai and would sign in a manner in which he did not usually sign with 50 year's stay at Mumbai during which he was Director of the Bank for 30 years. The deceased must have perfected the way of signing and using his father's name 'Bande Deen' between his name and sir name in the signature. The counsel for the plaintiff could not explain as to why he would sign differently on each page at Allahabad and will forget to mention the details of his properties in the will, and  why he will take the help of a typist and advocates, all sitting at one place, to scribe and witness the will. There is no explanation as to why the testator would forget to mention about his two daughters and their sons and as to why he would not leave any thing for them  at Mumbai.

34. The plaintiff has not identified himself sufficiently to explain his educational back ground, qualifications and the business or activities which may have engaged him at Mumbai.  If the evidence led by defendants is to be believed, the defendant was not doing anything and was surviving on the money given by his father. The plaintiff  was highly interested in preparing a will to inherit all the properties of his father to the exclusion of his sisters and their sons. He was as such required to discharge a heavy burden of suspicious circumstances surrounding the will and to satisfy the court's conscience to decide the matter of  the will  executed by the testator who is no longer alive. The plaintiff has failed to remove the suspicion with any cogent and satisfactory evidence.

35. In the present case the evidence on record has not removed the  doubts and  strong suspicion surrounding the execution of the will against the propounder. The fact, that the deceased was not living at Allahabad for last 50 years and that the signatures on the will are not his full and usual  signatures and further the fact that the will does not provide description of any of the properties of the deceased, most of which is  situate in Mumbai, and was acquired by him  and that the deceased was in his advanced age visiting Rai Bareili for a few days  to attend Tilak ceremony of his  daughter's son, create strong doubts over the genuineness of the document. The court as such comes to the finding that the will pronounced by the plaintiff is a forged and fabricated document manufactured for the purposes of saving the properties from being shared in inheritance with his sisters  and their sons. The issue No. 1  relating to due execution of the will is decided against the plaintiff. The counsel for the parties have not made any submissions on issue No. 2. With the findings on issue No. 1 against the plaintiff, the issue No. 2 is not required to be decided.

36. The testamentary suit is dismissed with costs.




Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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