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IN THE GOODS OF THE ESTATE OF LATE RAM DEO SINGH

High Court of Judicature at Allahabad

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In The Goods Of The Estate Of Late Ram Deo Singh - TESTAMENTARY SUITS No. 2 of 1999 [2005] RD-AH 6402 (25 November 2005)

 

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).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 9.

Testamentary Suit No. 2 of 1999.

In the matter of

goods of Late Ram Deo Singh

Smt. Dev Raji Devi & others         ...               Plaintiffs .

Versus

Arun Kumar & others                    ...                Defendants.

Hon. Sunil Ambwani, J.

Heard Sri Narendra Mohan, learned counsel for the plaintiffs,- Smt. Deo Raji Devi, Smt. Amrawati Devi and Smt. Mithilesh Singh.  The plaintiffs have prayed for Letters of Administration with will of Late Ram Deo Singh (deceased) who last resided at village-Singhawal, Pargana-Chanda, Tehsil-Badaliapur, District-Jaunpur and died on 3.6.1995. He has, it is alleged executed a will in favour of the plaintiffs on 1.6.1995 which was registered in the office of Sub Registrar, Jaunpur on 3.6.1995 between 1 to 2 P.M. in presence of witnesses.  One of the witnesses namely Shri Vishwanath has been examined as   attesting witnesses.  The other attesting witnesses who claims to be husband of Smt. Amrawati Devi was neither summoned nor examined in the suit.  

Sri Arun Kumar son of Sri Ram Sewak Singh, Ranjit Singh son of Sri Baij Nath Singh, Sri Harish Kumar Son of Baijoo, Sri Kamlesh Kumar son of Sri Ram Sewak filed a caveat through Sri Namwar Singh, Advocate on which the case  was converted into testamentary suit.  In the written statement, it is alleged that the deceased was in litigation with Jagdabn mba Prasad and Dilbahar alias Ram Bahal.  He was not related to the plaintiffs  at all.  The plaintiffs are the mother, aunt and wife   of   Sri  Jagdamba   Prasad .     It  is  alleged  that  Ram

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Naresh  Singh and the deceased Ram Deo Singh were real brothers.  They did not have children.  Both of them possessed agricultural land and residential house.   They used to live separately.  Sri Arun Kumar and Ranjit Singh, defendants were beneficiaries of the will of Ram Naresh Singh, executed on 21.7.1991 in presence of witnesess Radhey Shyam and Sheo Prasad.  He died on the next day after the execution of the will.  In para 20 of the written statement it is stated that he used to live  with the family of Ram Sewak Singh, the father of Kamalesh Kumar and Arun Kumar.  Kamlesh Kumar looked after the agricultural land in village Singhawal and Harish Kumar son of Baij Nath looked after the agricultural land of Ahopur.  The deceased Ram Deo Singh was pleased with them. In para 21 it is stated that Sri Kamlesh Kumar and Harish Kumar took the deceased to Government Hospital at Amargarh District Pratapgarh where he was hospitalized since  28.5.1995. They paid for his medical expenditure.  His condition, however, did not improve.  It is further stated in para 22 that on 2.6.1995 the deceased executed a will in favour of Kamlesh Kumar and Harish Kumar bequeathing all his movable and immovable properties in presence of witnesses Baijnath and Shiv Prasad.  He was discharged from the hospital  and referred to Banaras Hindu University Hospital or at Allahabad Medical College.  In paras 23, 24 to 32 it is stated that they brought him in their residential house.  While they were arranging for money, Sri Jagdamba Singh who was involved in a number of civil and revenue cases with the deceased, came to his house along with Vishwanath Singh, and taking undue advantage of  their absence, took the deceased Sri Ram Deo Singh in a jeep  on the

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pretext of taking him Varanasi for treatment.  Instead  they took him to registrar's office at Jaunpur where they by colluding with and influencing the registering authority got a forged will prepared and registered  on 2.6.1995 in the name of their wives and mother of Jagdamba Singh and wife of  Ram Baksh Singh.  Thereafter they took him in Navjeevan Hospital and Maternity Centre Jaunpur at 3.00 P.M. On 3.6.1995,  when the plaintiffs came to know that Sri Ram Deo Singh had been whisked away by Jagdamba Singh on a hired jeep, Sri Kamlesh Kumar and Harish Kumar immediately rushed to Jaunpur on way to Baranas Hindu University Hospital. On  making enquiries they came to know that Ram Deo Singh was admitted in Navjeevan Hospital and Maternity Centre Janpur, where he was found in unconscious state of mind and died at 10.00 P.M.  Sri Kamlesh Kumar and Harish Kumar took the dead body at village Singhawal and then cremated him at Manikarnika Ghat on the same day at 11.30 P.M..  Sri Ram Bahal Singh had also joined the funeral.  

From the pleadings of the parties, following issues were framed:

"1. Whether the alleged will dated 1.6.1995 registered on 3.6.1995 was duly and validly executed in a sound disposing sate of mind and was the last will and testament of the Testator?

2.Whether the alleged will dated 1.6.1995 was a forged and fictitious document prepared in collusion with the attesting witnesses as alleged in the written  statement?

3. Whether the alleged will dated 1.6.1995 was subsequently cancelled by the alleged will dated

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2.6.1995 stated to have been executed in favour of Kamlesh Kumar and Harish Kumar?

4. Whether the alleged will dated 21.7.1991 was duly and validly executed by Ram Naresh Singh, brother of the deceased Testator?  

5. Whether the alleged will dated 21.7.1991 executed by Ram Naresh Singh was a forged and a fictitious document?

6. To what relief is the plaintiff entitled to?"

Both the parties have led documentary and oral evidence.  The plaintiff have filed original copy of sale deed executed by Ram Deo Singh dated   209.1968( A-49); Certified copy of registered sale deed executed by Ram Deo Singh and Ram Sewak in favour of Chandrakali  wife of Arun Kumar dated 10.5.1990(A-50); Original medical certificate of Ram Deo Singh of Navjeevan Hispital Maternity Centre Rohatta Jaunpur  dated 3.6.1995 giving  the time of death at 10 p.m, on the same day (A-51);  Medical prescription dated 2.6.1995 issued from Savitri Nursing Home Hussain Bagh, Jaunpur (A-52); Blood test report dated 3.6.1995 of Ram Deo Singh of Navjeevan Pathology Centre Rohatta Jaunpur (A-53); Report on Urine exmination dated 3.6.1995 of Ram Deo Singh of Navjeevan Pathology Centre Rohatta, Jaunpur (A-54); Medical prescription dated 22.5. 1995 of Savitri Nurshing Home regarding Ram Deo Singh (A-55); Pathology report of  Pathology Clinic Jaunpur dated 22.5.1995 of Ram Deo Singh (A-56); Urin Examination Report of Tripathi Ex-ray and pathology centre dated 19.5.1995 of Ram Deo Singh (A-57); Medical description dated 16.5.1995 of Tripathi X-ray of Ram /

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Deo Singh (A-58); E.C.G. Report dated 3.6. of 9.30 p.m. Of Ram Deo Singh (A-59); Certified copy of consolidation akar patra 45, regarding khata no. 437, village Sindhwal (A-60); Copy of consolidation akar patra 23, part-1, regarding khata no. 427 village Singhawal (A-61); Copy of extract of khatauni sl. no. 252, village Ahopur (A-62); Certified copy of khatauni 1366 to 1368F village Ahopur at sl. 34 (A-63); Copy of khasra land no. 403 village Abhapur (A-64); Copy of extract of Khatauni village Singhawal  khatauni 119 (A-65);  Copy of extract of khatuni 1404 F to 1409 F sl. no. 437, village Singhawal (A-66); Copy of khasa village Ahopur 1404 F regarding plot no. 399,400,377 and 380(A67); A-68 to A-72 are receipts of payment of revenue; Copy of consolidation akar patra 47 village Singhawal at Sl. No. 107 (A-73); Certified copy of family register of village Singhawal (A-74).

The defendants have filed documents A-87 to A-96 and A-105; Original will dated 2.6.1995 executed by Ram Deo Singh in favour of Kamlesh Kumar and Harish Kumar (A-15);  Original Will dated 21.6.1991 executed by Late Sri Ram Naresh Singh (A-16); Original Medical discharge certificate dated 3.6.1995 issued by the Primary Health Centre, Amargarh, District Pratapgarh (A-17); Application on behalf of respondents (A-18); Certificate of Dom dated 19.8.1995  of the  cremation ceremony on 22.7.1991( A-19). Rest of the documents are certified copies of the plaint in suit no. 27 of 1964, Jagdamba and another Vs. Gorakhpur  Narain Singh and others (A-20); Plaint of Suit No. 309 of 1982, Jagdamba Vs. Ram Sewak in the Court of Civil Judge(J.D.)-II, Jaunpur ( A-21); Written statement on behalf of Late Sri Ram Deo Singh in suit No. 309 of 1982, Jagdamba Singh Vs. Ram Sewak (A-22);

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Application No. 378 of 1983 under Order 39 Rule 2-A C.P.C. Agaist Ram Sewak, Ram Naresh and Ram Deo (A-23); Copy of order dated 7.3.1981 dismissing Misc. Case No. 378 of 1983, Jagdamba Vs. Rameshwar ( A-24); Certified copy of statement of Jagdamba Prasad dated 5.1.1998 in case No. 440/441 under section 9-A-2 (A-30); Certified copy of Kutumb Register of village Singhawal in respect of Ram Naresh Singh and Ram Deo Singh 9A-36); Certified copy of Kutumb Register of Sri Vishram of village Ahopur ( A-38) and other documents.

The plaintiffs have examined Jagdamba Prasad Singh and Sri Vishwanath Singh attesting witnesses of the Will dated 1.6.1995 as  DW1 and DW2.   The defendants have examined Dr. Subedar Singh of Primary Health Centre and posted at up-graded Primary Health Centre, District-Pratapgarh (DW1); Baijnath Dubey attesting witness of the Will dated 2.6.1995 in favour of the defendant as DW-2; Radhey Shyam Misra atesting witness of the Will dated 21.7.1991 executed by Ram Naresh Singh in favour of Arun Kumar and Ranjeet Singh as DW-4.

Issues 1 and 2.

Before proceeding to consider the submissions of either parties, on issues 1 & 2, it is necessary to set out the law on the  proof of will. In Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another, AIR 1962 SC 567.  The Supreme Court held in para 5 as follows:

"5.       Before we consider the facts of this case it is well to set out the principles which govern the proving of a will.  This was considered by this Court in H. Venkatachala Iyengar Vs. B. N.

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Thimmajamma, (1959) Supp (1) SCR 426: (AIR 1959 SC 443).  It was observed in that case that the mode of proving a will did 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 S. 63 of the Indian Succession Act.  The onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity, and  signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious, circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine.  If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court.  Further, what are suspicious circumstances was also considered in this case.  The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature.  The condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might 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 was accepted as the last will of the testator.  Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits.  If

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this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence.  But even where there were suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations."

In Smt. Jaswant Kaur Vs. Smt. Amrit Kaur, AIR 1977 SC 74, the Supreme Court held in paras 9 and 10 as follows:

"9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the defendant.  What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the Court that the will was duly executed by the testator.  It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.

10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will.  Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar Vs. B.N. Thimmajamma, (1959) Supp (1) SCR 426 = (AIR 1959SC 433).  The Court, speaking through Gajendragadkar J, laid down in that case  the following propositions:-

1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters.  As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness

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alive, and subject to the process of the court and capable of giving evidence.

3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.  This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator.  Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

4.  Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing.  A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will.  That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.  The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicion before the document can be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved.  That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

6. If a caveator alleges fraud, undue influence,

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coercion etc. In regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will.  And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."

Coming to the evidence on proof of will in  the present case, I find that there was long  drawn  litigation between the deceased and Sri Jagdamba Prasad Singh, husband of Smt. Amrawati Devi, son of Smt Deoraji Devi  and nephew of Smt. Mithilesh Singh, the plaintiffs since 1964.  Shri Jagdamba Prasad Singh  had also moved an application to prosecute him.  Shri Jagdamba Singh was contesting these matters for more than 20 years.  There is  no evidence to show  Jagdamba Singh or any of the plaintiffs were living with deceased  or they had taken care of him and his  treatment.  They did not get him  admitted to the Government hospital, or visited him in the hospital.  It is absolutely improbable to believe that the deceased, who was in a serious condition, as stated  by Dr. Subedar Singh, PW 1, had  travelled from the hospital upto the office of Sub Registrar by himself and  got the will   registered on the same day when he was operated and died later in the evening.

Sri Jagdamba Singh has tried to keep himself away and had pleaded ignorance of the will.   He could not establish as to who was attending  the deceased. He has not produced any medical prescription or bills of purchase of medicine or hospital. The medical certificate of Nav Jeevan Nursing and Materinity Hospital shows that the toe of the deceased was amputated at 6.00 P.M, on he same day.

In the circumstances, it is improbable to believe the

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statement of attesting witness that the will was signed on 1.6.1995 and that the deceased  was present in the office of Sub Registrar for registration of the will. I therefore find that the will dated 1.6.1995 registered on 3.6.1995 was not executed by the deceased in his free and disposing state of mind and accept the case set up by the defendant that  the deceased  was whisked away on 3.6.1995 and was taken to the office of Registrar for registration  of the will.

Issue no. 3.

The defendants that set up a will dated 2.6.1995 in defence .  It is alleged that this subsequent will cancelled the earlier will.  For the same reasons which I have given while deciding the issues 1 & 2, I find  that though Dr. Subedar Singh has tried  his best to establish that the deceased was in sound state of mind up to the  end of day i.e.  2.6.1995,  his statement cannot be reconciled with the earlier part of his statement, that on 3.6.1995, the  patient was in  a very serious  condition with the symptoms of confusion, hallunation and  semi conciousness.   His statement that the patient was  in a fit condition upto 2.6.1995, and thereafter lost his conscious, as such, cannot be believed.  The discharge certificate prepared by the Doctor gives the  date of admission in  PHC Amargarh Pratapgarh as 28.5.1995 and  date of discharge as 3.6.1995, with diagonis  as follows:

"Perisis of both legs and diabities and gangrene toe and delirum"

A person  suffering from diabetes  which had led to gangrene  in toe, hospitalised since 28.5.1995, without showing

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any signs of recovery and which led to the amputation of his toe

and died on the same day, could not be in such conscious mind a day before to execute the will. The defendants, even though they had  got the deceased admitted, were grossly  negligent in leaving the deceased unattended on 3.6.1995 to be whisked away by those who were in litigation with them.  The witness to the will of the defendant could not explain these circumstances.  

The deceased did not leave behind any heir.  The evidence shows that, like his brother, he lived alone all his life in the last three days of his live, when he was suffering from diabetes and was seriously ill and gangrene has effected his toes.  Both the plaintiffs and defendants attempted to get the will executed from him. The deceased hospitalized on 28.5.1995.  Sri Jagdamba Prasad Singh,  son of Smt. Deoraji, nephew of Smt. Mithilesh Singh and husband of Smt. Amrawati Devi, the plaintiff was in long drawn litigation with him.  There was absolutely no reason whatsoever for the deceased to have executed a will in their favour.  The defendants also were eager to get the properties through the will.  They left him unattended to be taken away by Jagdamba Prasad Singh for execution of will.  The medical condition of the deceased was not such that he could be said to be in free disposing mind to execute the will.  I, therefore, find that there are strong suspicious circumstances in attaining the execution of both the wills which the respective propounders have not removed by clear and satisfactory evidence.

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Issue No. 4.

The parties have not led evidence is in respect of  the will of Ram Sewak Singh, and thus this issue need not be decided. Both the wills dated 1.6.1995 and 2.6.1999 are not proved.

The suit is consequently dismissed.  Let notice be issued to the Administrator General, U.P., to take appropriate steps in the matter.  

Dt. 25.11.2005.

BM/-


Copyright

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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