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In The Goods Of Late Maharaja Martand Singh - TESTAMENTARY SUITS No. 11 of 1999  RD-AH 11939 (21 July 2006)
Judgment reserved on 26.5.2006
Judgment delivered on 21.7.2006
Testamentary Suit No.11 of 1999
In the matter of the estate of
Maharaja Martand Singh
Dr. Sajjan Singh & others
Maharani Praveen Kumari & another
Hon. Sunil Ambwani, J.
1. The plaintiffs, named as executors in the alleged will of Maharaja Martand Singh son of Late H.H. Maharaja Gulab Singh Juedeo of Rewa, filed a Testamentary Case No.4 of 1999 for grant of probate with will dated 5.1.1993 attached under Section 232 and 268 of the Indian Succession Act, 1925 (in short the Succession Act). The application is contested by the caveators/ objectors Maharani Smt. Praveen Kumari, the widow and Shri Pushpraj Singh, the son of late Maharaja on which it was registered as Testamentary Suit No.11 of 1999. The Maharaja died on 20.11.1995 at his residence at Fort Rewa in the State of Madhya Pradesh, which is stated to be his fixed place of abode. The Maharaja had left behind properties at Rewa in Madhya Pradesh; Bombay in State of Maharashtra and at Allahabad in the State of Uttar Pradesh.
2. Heard Shri Navin Sinha, Senior Advocate assisted by Shri Rakesh Bahadur for the plaintiffs; and Shri Ajeet Kumar, Advocate assisted by Shri Manu Saxena and Shri Mohit Kumar for the defendants.
3. It is stated by the plaintiffs, the executors named in the will, that the Maharaja at the time of his death possessed, and has also left shares in different companies having registered offices outside the State of U.P. and having face value in which he held 1/3rd share. He left behind his last will dated 5.1.1993, and testament made voluntarily in a fit and disposable state of mind. The will is registered and is in safe keeping of the District Registrar, Rewa and may be summoned by the Court. By the will the Maharaja, gave his entire properties to his legal heirs as also his employees as mentioned in the will dated 5.1.1993. The petitioners have been named and are appointed as Executors jointly and severely along with Shri H.S. Srivastava and Shri Ajai Singh. The will was executed in the presence of three marginal attesting witnesses, namely Gyanendra Singh son of Shri Surendra Singh, resident of Amahya, Rewa (M.P.), Dr. R.P. Srivastava son of Late Sri Uma Charan Srivastava, resident of Venkat Battalion, Rewa (M.P.) and Shri Jagdish Prasad Misra, resident of Venkat Battalion, Rewa (M.P.), who had signed in the presence of each other and in the presence of the deceased, who himself put his signature on each page in the presence of the witnesses.
4. It is stated that the petitioners have truly set forth in Annexure-1 to the affidavit, the valuation (property and assets) of all the properties and credits, which the Maharaja possessed of or was entitled to at the time of his death, which have or are likely to come to his hands, so as the petitioners have been able to ascertain, or are aware that there is no property and credits other than that specified in Annexure No.1, which in para 10 have been valued at Rs.1 crore. It is stated that the Maharaja had left behind him as survivors (1) Maharani Parveen Kumari R/o Fort, Uprahathi, Rewa (M.P.) (widow), and (2) Sri Pushp Raj Singh, R/o Fort, Uprahathi, Rewa (M.P. (son), as his only next of kin. It is further stated in the application that no petition, application has been made to any District Court or any other High Court for grant of probate, letters of administration or succession certificate. The petitioners have undertaken to administer the property and credits of the Maharaja and to make full and true inventory thereafter and exhibit the same in the Court within six months of the grant of probate.
5. Maharani Smt. Praveen Kumari and Shri Pushpraj Singh, the widow and son of the late Maharaja filed their caveat on 24.3.1999 through Shri R.N. Upadhyaya, Advocate. They filed their written objections, verified by the Maharani and supported by her affidavit as also the affidavit of Shri Pushpraj Singh, stating therein that Maharaja Martand Singh Juedeo expired on 20.11.1995 at his residence Fort, Rewa (M.P.), but it is not admitted that fort Rewa was his fixed place of residence of which he was the sole owner. His fixed place of residence was Khakhari Kothi at Govindgarh, Dist. Rewa. He used to casually come to Rewa fort, his ancestral home, as he was suffering from protracted illness and that his condition was progressively deteriorating. He was brought from Khakheri Kothi prior to his death by the caveators for his better care. He was not the sole owner of the Rewa fort. It was the ancestral property of joint family of which he was karta. This fort remained the joint Hindu family property till his death leaving the caveators as owners in possession as legal heirs. The bulk and major portion of the property of the deceased are situated in Madhya Pradesh and also at Bombay in the state of Maharastra, in comparison of which his property at Allahabad in U.P.
6. In para 4 of the written objections, the defendants have stated that late Maharaja was suffering from physical and mental disease since 1989 till the time of his death. He did not possess sound and disposing state of mind to understand, to dictate, instruct any other person to execute such a Will. He had lost his memory and could not even sign, having no grip over his fingers. He had no mental capacity to understand the contents of such alleged will. He was not in a sound and disposing state of mind to understand the nature and effect of the disposition. The alleged Will does not appear to have been registered during the lifetime of Shri Maharaja Martand Singh. Annexure ''A', which is said to be the copy of the Will does not appear to be registered and there appears to be no presentation statement nor endorsement of registration of Sub-Registrar or District Registrar during his life time. A bare perusal of the Will, will show the unusual placing of signature with uncertainty and the manner in which the signature appears to have been made is a clear indication of forgery. The testator was not in a mental condition nor had the capacity to understand the contents of the alleged will. He had also lost the vision of his eyes to a great extent. In para 5 she stated that Maharaja had no mental capacity to understand the contents of the will, nor was in a fit and disposing state of mind to execute such a will. The will does not appear to have been registered during the life time of Maharaja and the petitioners are put to strict proof of the due registration of the will.
7. In para 6 she has stated that the caveators are the only legal heirs of the deceased. In the alleged will, the only benefit given to Maharani Praveen Kumari is of only Rs.10 lacs with a right of residence in the Rewa fort, and that the entire property is given to strangers to the family. Maharaja Pushpraj Singh, the only son of late Maharaja has not been given any property. This maneuvering and fraudulent act of some beneficiaries and executors, not only deviates the line of succession but that the caveators have been completely deprived of their inheritance, of the property and of the valuable rights of the deceased also. In para 7 it is stated that taking undue advantage of mental derangement, physical infirmity caused by protracted illness for the last several years, the executors and beneficiaries have made an attempt to grab the entire properties of late Maharaja.
8. The caveator has further stated in paragraph 8 that late Maharaja was not mentally fit and was not in sound and disposing state of mind to give verbal instructions to write down the will with such minute details, which was beyond his mental condition to apprehend and understand. The execution, attestation and registration of the will are all result of fraudulent act of the executors and beneficiaries.
9. Commenting upon the will the Maharani has stated in paragraph 9, 10 and 11 of her written statement that the property in Schedule-A in clause 11 and 12 are ancestral and Hindu Undivided Family properties, as mentioned in partial partition deed dated 29.3.1971, but in the alleged will, Bandhavagarh fort and the fort of Rewa are described as absolute property of deceased Maharaja, which is absolutely incorrect. If Maharaja Martand Singh had executed such Will, he would not have committed such a mistake. The valuation has been minimized to a considerable extent against the real and market value of the property. The caveators/ objectors are the only heirs of the deceased Late Maharaja, and only they are entitled to inherit the entire property of the deceased.
10. In para 12 of the written objections she has stated that after the death of Maharaja and even in his life time there arose some disputes with regard to some amount of insurance policy of the Maharaja, which the Life Insurance Corporation had refused to pay to him as he was not mentally fit and his signatures were not tallying. The two suits were filed by Shri Pushpraj Singh as Karta of the Hindu Joint family for getting the amount of insurance policy namely suit No.4 A of 1994 and 130A of 1995, which were decreed by the competent Civil Courts. The case No.13-A of 1993 was filed by Maharani Praveen Kumari as Maharaja's next friend. During the proceedings of this suit the mental condition of late Maharaja was subject to a report by Medical Board. It was relied upon by the Courts. Out of two more suits filed in the life of Maharaja, one was decreed in his life time and the other ended after his life. The suit No.13-A of 1995 was not contested by the petitioners nor they sought impleadment after the death of Maharaja.
11. In the additional pleas it is stated that the State of Rewa was a sovereign state having its own Ruler, staff of officers, legal advisors, Doctors and relevant departments. Late Maharaja in his advance age became victim of acute type of chronic disease and lost his mental capacity. The affairs of the State were looked after by his officials, administering the estate and property, even after the merger of the State. The property left in possession and ownership of Maharaja was Hindu joint family property with Maharani and Shri Pushpraj Singh, his son as the members. In his old age the Maharaja remained continuously ill and almost bed ridden. There were some persons, who in collusion with each other wanted to grab the properties of Maharaja taking undue advantage of his mental incapacity and also taking advantage of his close association. Shri Laxman Prasad Mishra had come in close association of Late Maharaja and had become his Personal Secretary. Firstly he maneuvered to prepare a trust named Maharaja Gulab Singh Charitable Trust showing transfer of a small portion of movable property of Maharaja Martand Singh. This trust was prepared and drafted by one Shri B.M. Gupta, an Advocate at Bhopal, who had no earlier contact with Maharaja. Late Maharaja challenged this trust through his next friend, the Maharani in suit No.244A/98 pending in the Court of Vth Civil Judge, Rewa. The registration of the Trust by the Registrar was also challenged. In the will sufficient property of the Maharaja has been given to Maharaja Gulab Singh Juedeo Charitable Trust. Shri Laxman Prasad Mishra with his other associates were instrumental in preparing the aforesaid trust deeds, in which he was beneficiary to the extent of Rs.5 lacs and one acre of agricultural land.
12. In para 19 it is stated by Maharani that Raj family of Maharaja Martand Singh is not in good terms with Dr. Sajjan Singh, the real brother of Sri Arjun Singh, the Ex-Chief Minister of Madhya Pradesh. Shri B.M. Gupta, Advocate of Bhopal is a close associate of Dr. Sajjan Singh's brother Sri Arjun Singh. It is indicated at the foot of the will that the will was prepared under the verbal instruction of Maharaja but by no stretch of imagination it can be said that Maharaja having his own staff, personal secretary, controller and legal advisors, chose to give verbal instructions to a lawyer living at Bhopal at a distance of about 400 kms., and that too having no previous relationship of lawyer and client with him. Besides he had no mental capacity to give such instructions.
13. In para 20 and 21 of the written objections it is stated that Maharaja was examined by a Board of Doctors, who did not find him in a fit mental condition. He was taken to Bombay for treatment by Neuro Surgeons in the year 1991 and 1993 and in that period he was examined by Dr. Tureel and Dr. Gajendra Singh, who found him mentally deranged and disoriented, suffering from gross loss of memory. He was also examined by one Dr. K.T. Dholakia, who found the Maharaja quite unfit to undergo hip bone operation.
14. It is further stated in the written objection that in a suit filed in the Court of District Judge, Rewa by the Maharani in respect of some property situate in Amahiya, Rewa against Shri Ballabh Ji Dudia and others for ejectment of the defendants from a house; the defendants pleaded that the property was given by Maharaja to their mother-in-law. In this suit on an application filed by defendants to examine Maharaja Martand Singh, one Shri Awadhesh Singh Patel, Advocate was appointed as Commissioner. When he tried to examine Maharaja, the Maharaja was unable to answer any question due to his mental incapacity, and the Commissioner in his report clearly stated that Maharaja could not answer any question, obviously because of lack of understanding. The Maharani stated in para 24 that the will is result of fraud and maneuvering act of forgery and fabrication of Laxman Prasad Mishra and others in collusion of Shri B.M. Gupta, Advocate of Bhopal, under the pressure of Shri Sajjan Singh, the real brother of Shri Arjun Singh, who are traditionally enimical to the family of Maharaja Martand Singh, and that an attempt has been made to deprive the caveators, who are legal heirs of Maharaja Martand Singh. The defendants have also objected to the valuation of the estate and payment of Court fees.
15. The Registrar General has given a certificate under Chapter XXX Rule 8 of the Rules of the Court, 1952 dated 1st November, 1999, stating that he has not received any intimation from any other High Courts or District Courts of any grant of probate of any will or Letters of Administration of the property and credits of the deceased throughout the territory of India.
16. The original will was summoned by this Court. On 24.3.1999, the District Registrar, Rewa produced before the Court the alleged original will executed by late Maharaja on 5.1.1993. It was directed to be placed on the record under a sealed cover. On an application (A-10) Shri Rakesh Bahadur, learned counsel for the caveators, he was, by order dated 3.8.1999, permitted to inspect the will in the presence of Shri R.N. Upadhyaya, Advocate for the petitioner. The inspection was made on 5.8.1999 and, thereafter again on 4.2.2000.
17. By an order dated 7.9.1999, on the receipt of the written objections to the will the application was converted into suit No.11 of 1999. Further by an order dated 1.3.2001, on an application filed by the caveators, the Court after hearing both the parties and recording that an agreement has been entered into for sale of agricultural land with Shri Nirmal Suchanti and Smt. Pushpa Suchanti, who in turn assigned their rights in favour of Miracle Securities Private Ltd., restrained both the sides i.e. plaintiffs and defendants from alienating or encumbering any part of the estate of the deceased subject matter of the proceedings, unless some unforeseen circumstances require otherwise and in that event they were required to obtain prior clearance from the Court giving the details of the transactions.
18. M/s Miracle Securities Private Limited filed an application on 09.4.2002 seeking permission/ clearance to complete the sale transactions of 50% share in plot admeasuring 549.34 sq. mtr. (657 sq. yard) and two storied bungalow (ground + one) thereon, known as Rewa House situate at Warden Road now Bula Bhai Desai Road, Maha Luxmi Compound bearing cadastral survey No.70 (8), 8788, 789 and 190 Mala Bar and Cumballa Hill Division of Mumbai by virtue of the agreement for sale dated 6.6.2000. The application is supported by an affidavit of Shri Vinod Khatri stating that the property was part of partial partition deed dated 29.3.1971of the HUF of Maharaja Martand Singh, Pushpraj Singh and Maharani Praveen Kumari Ji. They were joint owners/ cotenants of the plot. The deceased Maharaja executed an agreement of sale dated 24.8.1992 in favour of Shri Nirmal Suchanti and Mrs. Pushpa Suchanti, and 50% share of the plot and the two storied bungalow for which part payment was made to him. The Maharaja had died on 20.11.1995 leaving a registered Will dated 5.1.1993 with five named executors and that in para 8 and 9 of this Will he has referred to this property. The executors have entered into an agreement for sale dated 6.6.2000 in favour of the applicant of property in question of Rs.1.5 crores out of which the applicant has paid Rs.5 lacs to the executors. This agreement was executed in continuation of the agreement dated 24.8.1992 after taking consent, approval, assignment and nomination in writing from Mr. Nirmal Suchanti and Mrs. Pushpa Suchanti. Shri Dharmendra Vaish, learned counsel for M/s Miracle Securities Private Limited did not appear on any date of hearing to press the application. In this testamentary suit this Court is not concerned with the sale of properties of late Maharaja or the persons claiming through him by agreement of sale or part performance of contract.
19. With the consent of plaintiffs and defendants, the Court framed following issues on 19.11.2001:
(1)Whether the ''Will' dated 5.1.1993 as alleged to have been executed by Maharaja Martand Singh Juedeo was duly and validly executed, and is genuine?
(2)Whether Maharaja Martand Singh Juedeo the deceased at the time of the alleged executed ''Will' was in a sound disposing state of mind and he executed and signed understanding the nature, contents and effect of the alleged will dated 5.1.1993, voluntarily in exercise of his free will?
(3)Whether the ''will' dated 5.1.1993 is forged fictitious and was prepared as a result of fraudulent Act of executors and beneficiaries and other interested person in a maneuvering circumstances?
(4)Whether the estate of the deceased under alleged will is under valued and the suit is liable to be dismissed for non-compliance of provisions of the court fee Act?
(5)Whether the plaintiffs are entitled to the relief as claimed in this testamentary suit?"
20. An application under Order 7 Rule 11 CPC was rejected on 11.3.2003 on the ground that the will is yet to be proved by evidence. During the course of examination of plaintiffs' witnesses, an application was filed by Shri Pushpraj Singh, defendant No.1, again, under Order 7 Rule 11 CPC stating that the plaint does not disclose any cause of action. In support of the application it was stated that Maharaja bequeathed through the will in question his ancestral property after affecting partial partition and that these allegations, even if taken to be correct do not disclose any cause of action as the properties were governed by ''Doctrine of Impartibility' and ''Rule of Primogeniture', (the deceased being Maharaja). The application was rejected by the Court on 30.9.2003 on the ground that the written statement has been filed, issues have been framed and three plaintiffs' witnesses have been examined. Although application under Order 7 Rule 11 CPC can be filed at any stage, it cannot be filed repeatedly to stall the proceedings. The application was rejected, making it clear that all the pleas will be available to the defendant No.1 at the time of argument in the suit.
21. The amendment application to insert the plea that the property was governed by the ''Principle of Primogeniture' was rejected on 12.1.2004 with liberty to counsel to put forward their respective pleas on the said doctrine at the time of hearing of the suit.
22. The counsel for defendants, however, did not request to frame any additional issue on the question of applicability of ''Doctrine of Impartibility' and the ''Rule of Primogeniture'. Shri Ajeet Kumar appearing for the defendants inspite of reminder given by the Court, did not choose to argue on this question and confined his argument to the fact, that the will is a forged and manufactured document and that Maharaja was not in sound and disposing state of mind at the time of alleged execution of the will.
23. The plaintiffs have filed the Deed of Partial Partition dated 29.3.1971; Amendment to the deed dated 7.10.1971, the letter of Shri Pushpraj Singh (dated 5.11.ineligible) from Shri Pushpraj Singh to the Maharaja (in original), the letters written by Shri Laxman Prasad Mishra and replies of the Maharaja dated 10.2.1979, 26.1.1981 and 3.8.1981; the letters written by the Maharaja dated 1.1.1980, 6.8.1983 and 15.3.1987, copies of the bank statement of Union Bank of India dated 14.8.1999; the letter written by the Maharaja to police dated 28.4.1992 and the letters for publication sent by the Maharaja; the Maharaja Gulab Singh Juedeo Charitable Trust Deed dated 25.11.1992; photocopy of the envelope in which the Will was kept dated 5.1.1993, photocopy of the minute book in the office of the Sub-Registrar dated 5.1.1993; letter of the Maharaja to public dated 7.1.1993; and various copies of newspaper reports (Sl. No.17 dated 30.4.1992 to Sl. No.29 dated 20.6.1993) (Paper No.A-32 to A-44); and a diary written by Maharaja in original dated 24.8.1983 (A-45).
24. The plaintiff examined Shri Sant Prasad Mishra son of Late Laxman Prasad Mishra, the Private Secretary of Late Maharaja, as PW-1; Dr. Ram Gopal Singh, the Doctor, who attended the Late Maharaja as PW-2; Shri Balram Prasad Dubey son of Late Narain Prasad Dubey, the Deputy Registrar, Deori, District Sagar (M.P.) as PW-3; Shri Gyanendra Singh son of Late Shri Surendra Singh, the attesting witness of the will as PW-4; and Dr. Rajendra Prasad Srivastava son of late Shri Uma Charan Srivastava, the other attesting witness to the will as PW-5.
25. The defendants on the other hand examined Shri Pushpraj Singh son of Late Maharaja Martand Singh, the defendant No.2 as DW-1, Shri Shiv Kumar Verma son of late Shri Bhagwan Deen, a clerk in the service of Late Maharaja, as DW-2; Shri Sher Khan son of Shri Daulat Khan, an employee in the mess of the late Maharaja, as DW-3; Shri Girja Prasad Mishra, Advocate son of late Shri Murlidhar Mishra, the counsel of the entire Rajwara of Rewa, as DW-4; Shri Bawan Gopal son of late Shri Bharosa, an employee and servant of late Maharaja, as DW-5; and Shri Vanshpati Prasad Tripathi son of late Shri Bhagwan Das Tripathi, the Pujari of Maha Mrityunjaya Mandir of the late Maharaja, as DW-6.
26. Issue Nos.1, 2 and 3 are interconnected with each other and are being decided together. Shri Navin Sinha, learned counsel for the plaintiffs submits that the Maharaja was the owner of the properties detailed in the Will as also 1/3rd share, which came to him under the deed of partial partition. He was old and ill but was in sound and disposing mind when he settled H.H. Maharaja Gulab Singh Juedeo Charitable Trust on 25.11.1992, and thereafter executed the will on 5.1.1993 drafted by Shri B.M. Gupta, Advocate of Bhopal. He made provisions for the Maharani, Shri Pushpraj Singh, his employees, servants and bequeathed properties both to Maharaja Martand Singh Juedeo Charitable Trust and to H.H. Maharaja Gulab Singh Juedeo Charitable Trust. He made specific provisions for his employees and servants and waived all loans given to them. The documentary and oral evidence proves that the Maharaja did not have good relation with Maharani and his son Shri Pushpraj Singh. He had made sufficient provisions for them in the deed of partial partition and made further provisions for them in the will. The will was witnessed by Shri Gyanendra Singh, Dr. R.P. Srivastava and Shri Uma Charan Srivastava. The Maharaja signed the Will in their presence and they signed the Will in the presence of Maharaja and thereafter the Will was put in sealed cover and placed in custody of the Registrar, who was called at the residence of the Maharaja at Khakhari Kothi on 5.1.1993, for deposit of Will and for which an application was made in accordance with the prescribed procedure on 4.1.1993. The Maharaja was in good health and possessed sound and disposing mind at the time of execution of the will, and its deposit with the Registrar. He, thereafter, lived upto 20.11.1995 and did not take any step to revoke the will. He had properties in Rewa, Bombay and at Allahabad. The executors named in the will could have filed the application for probate with will at Allahabad High Court where part of his property are situate. The valuation and Court fees will be the matter of consideration of the Registrar General of the Court and the plaintiffs, subject to any objections, which may be raised and decided by the Court. Shri Navin Sinha submits that the Will is a natural bequest of an Ex-Ruler, who was not having good relation with his wife and son. H.H. Maharaja Gulab Singh Juedeo Charitable Trust, is managed by the trustees close to Maharaja. The Maharaja had trusted them and that they will be managing the property for the benefit of the people of his State in accordance with the wishes expressed in the Will.
27. Shri Ajeet Kumar opening his submissions made a frontal attack on the submissions made by Shri Navin Sinha stating that the Court has no right to hear on facts, which were not pleaded in the plaint. He submits that the Fort at Rewa is not the place of abode of Maharaja. He was sole owner of Fort. The Maharaja lived at Khakhari Kothi. In para 6 the plaint discloses that by the will Maharaja gave his entire property to his legal heirs and also his employees. According to Shri Ajeet Kumar the executors are not the legal heirs. The details of the relationships between the Maharaja and Maharani and their son have not been disclosed nor there is anything in the application, which may suggest the reasons for establishing a Trust and giving almost the entire estate to total strangers. He submits that these facts cannot be pleaded in replication and that the Court should not consider the evidence, which has traveled far beyond the pleading.
28. The preliminary objections raised by Shri Ajeet Kumar have been made in complete ignorance of law relating to filing of application for probate. Chapter XXX of the Rules of the Court 1952, provides for a procedure of filing application for letters of administration, and probate. The application under Rule 5 is provided to be made by petition with will annexed, and its translation accompanied, if the will is not in English or Hindi, the official translation thereof in English, and undertaking that the inventory and account will be filed within six and twelve months respectively after the date of issue of probate. The application is required to be in prescribed Form No.175- Petition For Probate of A will (Chapter XXX Rule 5) of the Rules of the Court, to be accompanied by an affidavit of one of the attesting witness, if procurable in the prescribed form, affidavit of valuation in form set forth in Schedule 3 of the Court Fee Act, 1870; authenticated copy of the application, and certificate of death by a competent authority or an affidavit of person, who has actually witnessed the death. The application is required to be in the Form No.8 of Appendix-1 of the Succession Act. At the time of filing of application for probate, an applicant may not have the knowledge that it will be contested and may be converted into suit, and the grounds on which the will may be challenged. It is only when the will is challenged by the caveator on the grounds available to him under the Indian Succession Act, 1925, that the plaintiff may file replication/ rejoinder affidavit, stating therein the facts, which may be proved by him by evidence. It is only after the replication/ rejoinder affidavit is filed that the pleadings are complete. The preliminary objections of Shri Ajeet Kumar are as such rejected.
29. Shri Ajeet Kumar contended, that the will contains inherent inconsistencies and contradictions. He submits that in case of a will executed by a person, who is highly educated and accomplished in life, the Court will cause a greater scrutiny of its contents. Shri Ajeet Kumar read the contents of the will and pointed out the inconsistencies, errors, mistakes and contradictions, which according to him are sufficient to throw away the will as a forged and fabricated document. He summarized the defects as follows:
(i) The will left the date and place of its execution, and the names of witnesses to be filled up in blank spaces. Whereas in the opening paragraph the date is given as 5.1.1993, on the 6th and last page of the will before the schedules, the date is written by hand as "5th January, 1993", which cannot be a way of writing of a single person.
(ii) In para 6 the will refers to items at Sl. Nos. (ii), (iii), (iv) and (v) from (a) to (d) and (vii) and (x) from (a) to (d) and (xi) whereas perusal of Schedule A shows that there are no numbers given in Romans. The numbers in Schedule-A are given in English.
(iii) The will refers to a partial partition in which Maharaja is alleged to have given properties to Maharani Smt. Praveen Kumari, Shri Pushpraj Singh and other members. The other members have not been disclosed and that the Maharaja could not have given the share, which the Maharani and Shri Pushpraj Singh were entitled to as members of Hindu Undivided Family. Further the Maharaja under Para 4 A could not be the owner of the property described in Schedule A.
(iv) In para 8 (b) and (c) the Maharaja gave the names of the persons enumerated in Schedule-C, who are members and the staff and who according to him served him sincerely and faithfully at all times and in Clause-C employees enumerated in Schedule-D for their dedicated, loyal and untiring services to him. As against this no reasons have been given either for leaving almost the entire estate to the trustee of the Maharaja Gulab Singh Charitable Trust and the executors of the will.
(v) In clause (3) the Maharaja is alleged to have expressed the will that property and assets mentioned in Schedule -B belonging to Hindu undivided family shall be deemed to be partitioned on his death and the title right including the sale power and ownership shall be vested in the executors of the will and they shall become absolute owner of 1/3 share with power to dispose of the property. Shri Ajeet Kumar submits that whereas the will purports to give assets and properties to the trust, in this paragraph the executors have been made absolute owner of 1/3 share of the assets of Hindu Undivided Family.
30. Learned counsel for the defendant submits that there is over-writing in Schedule C and D of the names, who have been treated as staff and also the employees and that the Maharaja is alleged to have given rupees to them, making serious mistakes of declaration of their names.
31. In para 10 of the will it is contended that agricultural land at Saman Bandh, is referred to have an area of 18.5 acres at village Saman District Rewa, whereas the total of these properties in Schedule (E) of the Saman Bandh given to the 19 persons mentioned in the schedule is less than 18.5 acres.
32. In para 16 the Maharaja alleges to have referred to loans/ advances to absolve and relieve the employees from loans/ advances, if any, outstanding against any or all of them as shown in Sl. No.VI of the Annexed Schedule B. Shri Ajeet Kumar submits that VI in Schedule B refers to outstanding loans and advances to the extent of Rs.1 lacs. These loans and advances were out of the funds of Hindu undivided family and as such Maharaja again had no right and authority to absolve/ relieve the employees from such loans and advances.
33. In para 18 it is submitted that the residue of immovable and movable property as such has been given to the trustees of Maharaja Gulab Singh Jue Deo Charitable Tust, Fort Rewa and not to the Trust. This according to Shri Ajeet Kumar is glaring mistake in the will.
34. The Maharaja refers to properties in Schedule-B of the property of Hindu Undivided family. He, therefore, could not left the golden and silver ornaments and articles in Clauses (iv) to (v) to be maintained in the museum of Maharaja Martand Singh Jue Deo Trust as he was not the owner of these ornaments.
35. Shri Ajeet Kumar has led great emphasis on the formation of the unregistered Trust on 25.11.1992 three months before execution of the will, and thereafter, the fact that the trust has been given a large part of heritage, assets and properties of which Dr. Sajjan Singh & others are the trustees. He refers to Section 32 of the Madhya Pradesh Registration of Trust Act, which prohibits a trust, from claiming properties by filing suit or otherwise by defending unless the Trust is registered. According to Shri Ajeet Kumar the Trust was not registered.
Shri Ajeet Kumar submits that the alleged will is wholly unnatural, devoid of reasons, and full of inconsistencies and contradictions. It was prepared by one Shri B.M. Gupta, Advocate from Bhopal, who has not been examined. Shri Gupta, who has also signed on the cuttings and over writings must have been examined to prove the necessity of Maharaja deputing him to write the will, and the instructions given to him, which could not be given to a person sitting 400 kms. away without personally meeting him and the drafts and re-drafts, the nature of deposition and schedules provided, prepared and proved before the Court. Shri Ajeet Kumar submits that the fact that the will was prepared by an Advocate unknown to the Maharaja giving details and annexing schedules, clearly demonstrates that it was prepared by executors with common intention and design to play fraud with the Maharaja, who was critically ill and was not in sound and disposing state of mind, by doing conspiracy in which they first got a trust deed prepared in which some of the executors were trustees and thereafter, got the major portion of the properties transferred to the trust through the will. The state of mind of Maharaja could not have given him power of describe such details without meeting the scribe or giving him detailed instructions of which there is neither any pleading nor proof placed on record.
36. Shri Navin Sinha submits that argument of Shri Ajeet Kumar appearing for the caveators overlooks the documents filed by him. The caveators had themselves challenged the registration of the trust in the suit filed by her as next friend of Maharaja. The trust was registered by way of abundant caution, whereas it was not necessary to do so as it only settled movable properties with the settler/ trustee. Shri Navin Sinha submits that Trust is a legal entity. The properties of the trust, however, are held by the trustees and not by the trust. The testator could have created the Trust in the will itself. Shri Sinha submits that if the trust deed and will were not genuine document, the executors would not have taken the risk of creating two documents under the signature of Maharaja namely the Trust deed and the will. They could have simply created the Trust under the will and settled the properties in the trust. He referred Section 63 of the Indian Trust Act, which provides the definition and has been referred to in the M.P. Public Trust Act, 1951 whereas the terms have not defined in the M.P. Public Trust Act. The trustees of the trust and the executors of the will, have not filed a suit to enforce the right on behalf of the trust. The executors, who also happened to be the trustees are claiming the rights to execute the will, and to carry out the wishes of the testator.
37. Shri Navin Sinha further submits that arguments raised by the caveators/ objectors that the major properties under the will have been left to the executors and that the residue also goes to them are totally fallacious argument as the executors of the will do not become owners of the properties. They seek probate for administering the properties and to carry out the wishes of the testator. The Trust was created by Maharaja himself for the purposes of settlement of his property after his death.
38. Section 42 to 46 of the Registration Act, 1908 provides in Part IX, for the special procedure of the deposit of wills as follows:
"42. Deposit of wills:- Any testator may, either personally or by duly authorized agent, deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document.
43. Procedure on deposit of wills:- (1) On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register-book No.5 the superscription aforesaid, and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any person who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover.
(2) The Registrar shall then place and retain the sealed cover in his fire proof box.
44. Withdrawal of sealed cover deposited under Section 42:- If the testator who has deposited such cover wishes to withdraw it, he may, apply, either personally or duly by authorized agent, to the Registrar who holds it in deposit, and such Registrar, if satisfied that the applicant is actually the testator or his agent, shall deliver the cover accordingly.
45. proceedings on death of depositor:- (1) If, on the death of a testator, who has deposited a sealed cover under Section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant's presence, open the cover, and at the applicant's expense, cause the contents thereof to be copied into his Book No.3.
(2) Where such copy has been made, the Registrar shall re-deposit the original will.
46. Saving certain enactments and powers of Courts:- (1) Nothing hereinbefore contained shall affect the provisions of Section 259 of the Indian Succession Act, 1865 (10 of 1865), or of Section 81 of the Probate and Administration Act, 1881 (5 of 1881) or the power of any Court by order to compel the production of any will.
(2) When any such order is made, the Registrar shall, unless the will has been already copied under Section 45, open the cover and cause the will to be copied into his Book No.3 and make a note on such copy that the original has been removed into Court in pursuance of the order aforesaid."
39. In his will dated 5.1.1993 late Maharaja has settled his property as well as property of Hindu Undivided Family, which fell to his share and which was deemed to be partitioned on the date of his death. He did not make any reference to his relationship with Maharani Praveen Kumari and his son Shri Pushpraj Singh except by stating in para 2 and 3 that by the Deed of Partial Partition dated 29.3.1971 most of the properties were partitioned and divided between them and they have already received and are in absolute possession in substantial properties and assets, enough to look after their necessity, maintenance, requirements and comfort of his wife and children.
40. In para 8 (a) of the will he further directed the executors to give Rs.10 lacs to Maharani for her maintenance in addition to the property received by partial partition. He had also given right of residence to her in Rewa fort. Thereafter, in para 21 he appointed Dr. Sajjan Singh, Shiv Clinic, Martand Complex, Pili Kothi, Rewa; Shri Gyanendra Singh, Advocate and Ex-Chairman Rewa Improvement Trust, Amahia, Rewa; Shri Luxman Prasad Mishra, Surya Kiran, Kala Mandir Road, Rewa; Shri Ajay Singh son of Shri R.V.P. Singh, Ex-M.L.A., Umaria, Sahdol, Shri H.S. Shrivastava, his Income Tax Advocate at Jabalpur, and Shri Sant Prasad Mishra, Surya Kiran, Kala Mandir Road, Rewa, all of them or whosoever are surviving him as executors jointly and severally with duty to execute and administer the estate and assign to each of the legatees, after deducting funeral expenses, debts and liabilities and other expenses.
41. Shri Sant Prasad Mishra, PW-1 son of Late Laxman Prasad Misra stated that he resides at Kala Mandir, Rewa Road, M.P. and was known to Maharaja Martand Singh. He visited him from his childhood and was closed to him for last 15 to 20 years. His father was the driver of Maharaja and rose to be the Personal Secretary of the Maharaja. He gave details about the illness of the Maharaja and the fact that the Maharani used to mostly live at Bombay and at Jabalpur. For last 15 years before his death she used to come to him only for a month or two at Rewa. Raja Saheb used to live at Rewa and Govind Garh. The witness proved the signatures of Maharaja. He had seen the writing on the will (A-8), another documents envelope (paper No.A-88), and paper Nos. A-19 and A-20. He also proved other documents, which are the letters written by his father and letters and diaries of the Maharaja. The witness stated that he is 45 years old and is M.A., L.L.B. and looks after agriculture and business. He stated that there are six trustees in the Maharaja Gulab Singh Juedeo Charitable Trust and that his father and he himself were the trustees. After the death of the Maharaja Shri S.P. Singh, Retired Deputy Collector and Shri Prem Nath Mahendra, Retired Deputy Collector were inducted as trustees. In the cross examination he made a reference to Dr. Sajjan Singh, the trustee as well as the executor of the Will and made the reference to the shares held by the Maharaja. He admitted that his cousin brother, mother's sister and mother's brother received appointment in school and Madhya Pradesh Road Transport Corporation during the period when Shri Arjun Singh was the Chief Minister. His father was Vice-President of District Congress Committee, Rewa and mother was President of District Mahila Congress Committee Rewa, and Dr. Sajjan Singh is now the Chairman of the Trust. He denied the knowledge of the fact whether Raja Gulab Singh was the Chairman of the Committee of the Princes and that father of Shri Arjun Singh had made any attempt to eliminate the wife of Raja Gulab Singh. He also denied knowledge of questions relating to the families of Raja Martand Singh and Shri Arjun Singh.
42. Dr. Ram Gopal Singh, PW-2 is a doctor by profession. He is Surgeon holding degree of Master of Surgery and is a Urologist. He stated in his examination-in-chief that he was in the services of Madhya Pradesh State from 1969 to 1995. In the year 1970 he was posted as Lecturer in Surgery in Medical College, Rewa. He was in Rewa Medical College from 1969 to 1994 and thereafter from 1994 to 1995 he was the Principal of Raipur Medical College. In 1995 he was appointed as Principal of Bhopal Medical College and retired in the same year. He was the Professor and Head of the Department of Urology in Rewa. He came in contact with Maharaja Martand Singh in 1978 when he had gone to visit him on the complaint of presence of blood in his urine. The witness stated that he had got the deceased examined. The examination of Urinary bladder was carried out under anesthesia by microscopic processes and he had performed cauterization to stop the blood. The examination confirmed that he had cancer of urinary bladder on which the patient was shifted to Bombay and was thereafter taken to Cancer Hospital, New York (America). The witness had gone to Bombay and New York with the patient. In New York the patient was admitted and the cancer in the urinary bladder was removed, after which he examined him for every three months in first year, thereafter every six months by microscope. The patient was examined by him for three years as such patients are examined for five years during which there are chances for the cancer to spread.
43. Doctor Ram Gopal Singh, PW-2 further stated that in 1980 the patient was taken to Bombay as at that time there was passing blood, from passage of stool for which he was admitted to Rewa Hospital and was given three or four bottles of blood. He was shifted to Bombay by Government plain. The doctors had accompanied him in the plain. The witness had traveled to Bombay by train. At that time he was not operated as the patient was told that he was suffering from Granuloma of the large intestine in which the entire large intestine was required to be removed and for which he was asked to come after about a month. After this the Maharaja went back and was again taken to and admitted after two months for operation in Bombay Hospital. The witness also accompanied him to Bombay and was present in the operation theatre at Bombay Hospital at the time when operation was performed. He had gone there on the instructions of Maharaja. After 1980 the patient was admitted in 1988 and 1989 also in Bombay Hospital for check up, and thereafter, after examination, a V.P. Shunt was put by an operation in Beach Candy Hospital in March 1991 by Dr. Tureel, the Neuro Surgeon for Normal Pressure Hydrocephalus. The witness explained that brain is situate inside the skull, which is surrounded by layer of water of about 150 ml. If the quantity of water increases, the patient may suffer from either High Pressure Hydrocephalus or Normal Pressure Hydrocephalus. The V.P. Shunt is installed to reduce the excess quantity of water, which goes into the stomach of the patient.
44. Dr. Ram Gopal Singh clarified that he is Uro Surgeon and not a Neuro Surgeon but still he can say on the basis of general knowledge that in Normal Pressure Hydrocephalus the patient suffers from Dementia, which is also called ''decline in mental control' in which the patient looses control over his Urinary Bladder and has a wavering gait. In Normal Pressure Hydrocephalus the brain matter is not destroyed and this distinguishes it from other diseases. The patient's power to understand his affairs is not affected. After the shunt operation 90% recovery takes place from the symptoms of the disease and the initial recovery is from Dementia.
45. The witness further stated that in January or February, 1992 Dr. Satish Jain, a Neuro Physician, of All India Institute, New Delhi had visited Rewa and had advised Maharaja Sahab that the Shunt installed in 1991 was not operating properly and was required to be changed for which he may get himself admitted to All India Institute, New Delhi where a new Shunt may be installed after the preliminary investigations. Maharaja Sahab was admitted in All India Institute in March 1992, by travelling in aeroplane sent by the Central Government. The witness had also accompanied him to Delhi but was not present when the operation was performed. He last met the patient with regard to his illness in April, 1993. In March 1993 he flew to Bombay in a Government plain to be admitted in Beach Candy Hospital for operation to be performed by Dr. K.T. Dholakia for hip bone fracture, advised by Dr. S.K. Ohri, Professor and Head of the Department of Orthopedics at Medical College, Rewa. In 1993 the witness had traveled with Maharaja on his request to Beach Candy Hospital.
46. In April 1992, when Maharaja was to travel to New Delhi by a Central Government aeroplane to be admitted in All India Institute, Shri Pushpraj Singh, Maharaj Kumar Saheb had lodged a report with Police as soon as the plain has taken off for kidnapping Maharaja to Delhi and that his name was also mentioned in the report as kidnapper. Maharaja Sahab returned from New Delhi on about 24.4.1992 and had called the Police Sub-Inspector in first week of June, 1993. He had called the witness and other five to seven persons to give their statement to the police. The statement of Maharaja Saheb was also recorded. After investigation it was found that the facts were incorrect and thus no case was instituted. The witness was in Government service and had asked for and was supplied with a report of the Sub-Inspector. Maharaja Saheb stated that all the persons had accompanied him on his order and that he was not kidnapped.
46. The witness stated that between 1978 to 1993 he used to meet Maharaja Saheb for about 20 times in a year. He never found his behaviour to be anything except behaviour of a normal person. The witness identified paper No.A-22 and A-24 as the letters written by Maharaja Saheb in his own handwriting. Paper No.A-23/1 and A-23/2 were written to call the witness to go to Bombay with Maharaja Saheb. These letters were written from Khajuraho. The witness was required to go to Bombay Hospital where Shri Laxman Prasad Ji, the Secretary of Maharaja Saheb was to be operated for heart valve replacement. Maharaja Saheb had requested him to reach directly to Bombay and had written that unless he reaches there the operation shall not be performed.
47. In the short cross-examination by Shri Ashok Vidyarthi on 09.5.2002 Dr. Ram Gopal Singh was asked only a few questions. In reply to which he stated that he had read the Will of Maharaja Saheb in June or July, 1996. At the time when the Will was executed he was posted in Medical College, Rewa. The Will was not executed before him. He had benefited out of the Will by which he has been given one and quarter acre of land and one lac rupees. He had applied for mutation on the land. He came to know of Maharaja's death by reading in newspapers and had met Maharaja Saheb for the last time in 1993. Thereafter, he never met Maharaja Saheb and cannot say anything about his mental state.
48. Shri Balram Prasad Dubey, PW-3, the Sub-Registratr, Devri, District Sagar (M.P.) deposed that he was posted as Sub-Registrar at headquarters in January 1993. He knows Maharaja Martand Singh very well. Raja Martand Singh had deposited a will in the office of the Sub-Registrar. The witness identified paper No.A-88, which is a yellow colour envelope in which he had written in his own hand writing the name of the presenter and other details. These details were written on 4.1.1993 for depositing the will of Raja Martand Singh at Khakhari Kothi, Govind Garh, the residence of Maharaja Martand Singh, which is at about 15 kms. from his office. The envelope was given to him in sealed cover signed by Raja Martand Singh. The signatures were made in his presence. He had written in his own writing that the envelope was signed by the depositor and thereafter, Raja Martand Singh has signed on it. The District Registration Officer, who is highest officer and about 8-10 other peoples were also present. On the envelope the signatures were put by the witnesses in his presence after he had written their names. The entire proceedings were written in minute book in a concise form with the date and time. The witness identified paper No.A-30, which is photocopy of the same minute book and has been certified. He stated that there is fire proof box in the office of the District Treasury, operated by the District Registrar where the wills are deposited for safety.
49. In the cross-examination by Shri Ashok Vidyarthi, Advocate on the same day on 06.8.2002 the witness was asked only few questions to which he replied that he had not registered the will. Only a closed envelope was deposited for which there is special provisions in the Registration Act, for the purposes of maintaining the secrecy of the wills. The witness could identify the persons, who had witnessed the deposit of envelope in presence of other persons at the resident of Raja Saheb. The minute book is written every day if it is necessary. On that day the proceedings in minute book were written at the resident of Raja Saheb and the minute book was brought back and deposited in the office. The sealed envelope was not signed by him. He was posted in Rewa from October 1990 to January 1995.
50. Shri Gyanendra Singh, PW-4 stated that he is an Advocate and is engaged in farming. He works for the Congress Party and was President of District Congress Committee from 1986 to 1995 and from 1995 onwards he is member of the State Congress Committee. Maharaja Martand Singh had contested Lok Sabha election for the first time as independent candidate and then with the support of the Congress Party. For the third time he contested the parliamentary election on the ticket given by Congress Party. He had contested all the three elections from Rewa. The witness came in contact with him as he is involved in politics and is worker of Congress party. Maharaja Martand Singh has executed the will in his presence. The witness was shown the original will and he identified the signatures of Maharaja Martand Singh on each page. He stated that Maharaja had signed before him. When the will was signed Dr. R.P. Srivastava, Shri J.P. Mishra and other persons were also present. The witness identified his signatures on page 6 of the will and the signatures of Dr. R.P. Srivastava and Shri K.P. Mishra. At that time Dr. R.P. Srivastava, Shri J.P. Mishra, the Registrar, the Deputy Registrar, Maharaja and his two or four servants were also present. First the Maharaja signed at page 6 and thereafter Dr. R.P. Srivastava and Shri J.P. Mishra signed, after which the witness signed. When Maharaja signed from page 1 to 14 all the persons were present. Thereafter the will was kept in an envelope and sealed. The Maharaja made the impression on the lac seal by his ring and then gave it to the Registrar, who gave it to the Deputy Registrar, who had written our names and addresses. Thereafter, Maharaja Saheb and all the three witnesses signed on the envelope. The witness identified paper No.A-88 as the same envelope. The witness admitted that he was aware that he is one of the executors named in the will. Apart from him many other persons were also made executors including Dr. Sajjan Singh and Laxman Prasad Mishra, Sant Prasad Mishra and an Advocate Srivastava. After a year of the death of Maharaja Martand Singh he had given an application to the Registrar to open the will as it was one of the executor and thereafter the will was registered in the Registrar's office.
51. In the cross examination by Shri Ashok Vidyarthi on the same day on 30.9.2003 the witness stated that he knows Maharaja Martand Singh from the age of discretion as he was the Maharaja. He had seen Maharaja's signatures at other places. He used to go to his place and was required to write certain letters on which he used to sign. The will was signed by Maharaja at his Kothi in Govind Garh, which is known as Khakhari Kothi. On 5.1.1993 Maharaja and all three of us had signed. Khakhari Kothi is at about 20 kms. from Rewa. The witness stated that he has affirmed and filed affidavit in a case on 28.12.1998 in which he stated in para 2 that apart from him Dr. R.P. Srivastava was also present and which does not mean that apart from them no other person was present. He did not know anything about the mental illness of the Maharaja. He does not remember the name of the Registrar, who had signed on the will. The witness stated that on some pages specially on page 3 the Maharaja had signed at a blank space on the paper for the reason that Maharaja singed as he desired. The witness admitted that he is trustee of charitable trust, in whose favour the will has been executed and denied to the suggestion that Maharaja had not signed the will or that the witnesses were not present.
52. The application filed by counsel for defendant to summon Dr. J.P. Bhaswara, Retired Professor of Rewa Medical College, Rewa, Suit Clerk of Civil Court, Rewa and Shri Awadesh Singh, Advocate, Rewa District Court was rejected on 6.2.2006 on the ground that Dr. Bhaswara had examined the late Maharaja on 5.1.1993 five months before the alleged execution will; the certified copy of the medical report dated 1.6.1993 submitted by panel of doctors in suit No.13-A of 1995 and the Advocate Commissioner Report in suit No.28 A of 1995 have already been filed on record and they will have read in evidence. Shri Awadesh Singh, Advocate is not a medical expert and that he had also seen the Maharaja as reported by him on 2.5.1993, after five months of the alleged execution of the Will dated 5.1.1993, and in which he had stated that witness was ill and was not in a position to give statement. Since he had seen the witness after five months after the will was executed, his evidence was not relevant for deposing on the mental condition of the testator at the time of execution of the will. An application to examine Dr. K.E. Tureel on Commission was rejected on 27.3.2006, on the ground that no effort was made to contact him or to take his consent for his examination. The averment that Dr. Tureel is old and ill was made without making contact with him and that his correct address was not given. It was found that the application was moved in a most casual manner and was supported by affidavit of Shri Anil Gupta, who has sworn the affidavit on information received, but the source of information has not been given.
53. In para 16 of his affidavit filed in examination-in-chief Shri Pushpraj Singh, DW-1 has stated that either on 25.11.1992, 4.1.1993 or 5.1.1993 the Maharaja Martand Singh was not in a proper mental state. He was neither capable to understand the nature of document nor capable of reading it, nor to understand as to what is written therein or to understand the effect of the document. He was not capable of understanding the nature of property nor to resist from importunity, nor capable of exercising his free agency. He was not able to sign the document. In para 27 the witness stated that the Maharaja was treated at Beach Candy Hospital, Mumbai, All India Institute of Medical Science, New Delhi and in America. Dr. K.T. Dholakia wrote letters dated 19.3.1993 and 5.7.1993, stating that he is a high risk patient. Dr. K.E. Tureel also wrote a letter dated 8.2.1993 (A-63) regarding mental condition and ailment of Maharaja.
54. Shri Shiv Kumar Verma, DW-2, a clerk in the fort, in the services of Maharaja stated that the Maharaja fell ill in 1986-87 and 1989, he was suffering from diabetes, mental illness, and illness of bones. By the time of his death he was not in a position to understand his affairs and could not have executed any document. In the cross-examination he could not give the details of the illness but stated that the Maharaja was not given anything sweet and was not recognizing people and on which he can say that he was mentally ill, though he never became violent. The witness also stated that in the year 1990 the Maharaja did not have control over his urinary bladder and intestine. Shri Sher Khan, DW-3, who worked in the mess as a cook also said the same thing. He stated that a tube was inserted in urinary bladder of Maharaja in 1990 and the Maharaja was not in a position to understand anything or to sign any document. Shri Girja Prasad Mishra, Advocate aged 85 years was examined as DW-4. He stated that he was the counsel of entire Rajwara of Rewa for few decades. He had completed 5-6 decades as lawyer and the President of Bar Association Rewa at considerable period. The Maharaja never showed any intention at any point of time to execute and constitute any trust in the name of Maharaja Gulab Singh Juedeo Charitable Trust either in 1990, 1991 or 1992. He never executed any will. Before his death, for last about 6-7 years, including on 25.11.1992 and 4/5 January, 1993, due to mental infirmities, incapabilities and disorder, he was not competent either to exercise his option, or to execute his own free will, or to understand the nature of any document, or to understand or adjudge the conduct of any person or to understand fraud if played on him. The panel of doctors reported vide order dated 29.5.1993 passed by Civil Judge, Class III in civil suit No.13A of 1993 filed by Maharani Smt. Praveen Kumari as next friend of Maharaja that he was unable to respond and unable to understand the version of any person and he was not mentally fit. The medical report is signed by Dr. R.K. Lakhtakia, Dr. S.C. Sinha and Dr. J.P. Bhaswara. The Advocate Commissioner Shri Awadhesh Singh, whose signatures were identified by the witness also gave a report that the Maharaja was not in a position to talk. The medical report dated 1.6.1993 and the report of the Advocate Commissioner dated 21.5.1993 have been annexed to his affidavit. In the cross examination the witness stated that he has stopped practicing regularly since 1996 and that the written statement was filed after seeking his opinion.
55. Shri Bawan Gopal, DW-5 the personal servant of the Maharaja stated to have been served the Maharaja about 40 to 45 years and Shri Vanshpati Tripathi, clerk and Pujari of Maharaja appointed in 1968 in Shri Mahamrityunjay Bhagwan, Kila Rewa, and who used to visit Maharaja every day in the morning and gave him advice on religious affairs also stated that for about 4-5 years before his death, the Maharaja was seriously ill, used to sometime pass urine and stool on bed and had lost capacity to understand his affairs. He could not recognize people.
56. Shri Bawan Gopal, the witness aged 65 years has suffered a stroke of paralysis. He was brought to the Court with the help of two persons, who lifted him and seated him on the chair. The witness was alert and answered all the questions in the cross-examination with clarity. He had served as personal servant of Maharaja and stated that the Maharaja had participated in Dushehra festival for the last time in 1992. He used to customarily appear in public in Dushehra procession. Shri Vanshpati Tripathi, DW-6, a clerk and Pujari of Shri Maha Mrityunjay Bhagwan, Fort Rewa stated that he was appointed by the Maharaja in 1968 and is still serving, and is receiving salary from Maharaja Martand Singh Juedeo Trust. He is beneficiary under the will but when he saw the will, he found that the signatures of the Maharaja was forged. The witness stated that he was very closed to the Maharaja upto his death. The Trust Deed dated 25.12.1992 and photocopy of the will dated 05.1.1993 do not contain Maharaja's signatures. The Maharaja was seriously ill, about 5-6 years before his death. He was not in a position to recognize people. He could only make out the existence of people around him by their smell and voice. He was not in a position to understand his affairs. He used to pass urine and stool on the bed and was feeded by spoon. Sometimes he used to bite the spoon, which was taken out forcibly from his mouth. A urine bag and machine to take out bus from his brain was always attached to him. He was treated at various places but did not improve. In the cross-examination the witness admitted that he gets salary from the trust of which Shri Pushpraj Singh is a trustee. The Maharaja did not consult him in his affairs but used to consult him for religious matters. He further stated that the Maharaja suffered hip bone fracture in 1992 and that he never recovered from the fracture upto his death and that after he suffered from various ailments he did not participate in Dushehra procession.
57. Smt. Praveen Kumari, the Maharani, who was called as Rajmata after the death of Maharaja, did not appear in the witness box. In para 30 of his affidavit in examination-in-chief Shri Pushpraj Singh explained that she is about 80 years of age and is suffering from ailments.
58. With the aforesaid statements by the defence witnesses, the burden of proof, that the testator was in sound and disposing state of mind on the date of execution of the will shifted on the propounders of the will.
59. 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."
60. 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.
61. 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.
62. 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.
63. 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.
64. 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.
65. 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.
66. With regard to the mental condition and the capacity of the testator to understand his affairs and in execution of the will dated 5.1.1993, Shri Naveen Sinha, Sr. Advocate has relied upon the statement of Dr. Ram Gopal Singh, PW-2. He submits that Dr. Singh is not a Neuro Surgeon, however, a medical doctor possessing a degree of Master of Surgery and an expert in Urology and who had served as Principal of Rewa Medical College and Bhopal Medical College, and had treated the deceased for cancer of Urinary bladder, had sufficient expertise and personal knowledge of the medical condition of the deceased. Shri Singh had accompanied Maharaja on all occasions of his treatment to Bombay, New York and at New Delhi and was in his attendance on all the occasions. He has deposed as medical expert and was not cross-examined on his competence, treatment and observations made by him. Shri Naveen Sinha in order to support the experts opinion has relied upon the Textbook of Neurosurgery, Second Edition, Volume II published by B.I. Churchill Livingstone Pvt. Ltd., New Delhi and edited by Prof. B. Ramamurthi, MS, FRCS (E), DSc, FAMS, FNA, Head of the Department, Dr. A. Lakshmipathi Neurosurgical Centre, Voluntary Health Services Medical Centre, Madras and Prof. P.N. Tandon, MS, FRCS, FAMS, FNA, Professor Emeritus Neurosurgery, All India Institute of Medical Sciences, New Delhi. Shri Sinha has relied upon page 1206 and 1207 of the Text Book, ''93. Normal Pressure Hydrocephalus' by B. Ramamurthi. The causes, clinical features and treatment given in the Chapter are quoted as below:
"The causes of the development of normal pressure hydrocephalus are many. The subarachnoid pathways in the region of the tentorium and the base of the brain may be obliterated following infection or as a consequence of subarachnoid haemorrhage due to trauma, aneurysm, vascular; malformation or following intracranial surgery (33). About 10-30 per cent of patient with subarachnoid haemorrhage due to aneurysms develop signs of hydrocephalus (3).
The incidence following head injury and intracranial operations is not clear known as the symptoms may be delayed for several weeks or months (24) or may be early and acute in onset (26). Post-traumatic communicating hydrocephalus due to obstruction may present in three ways: (1) progressive mental and physical deterioration after the acute state, 2) symptoms of raised intracranial pressure and 3) continuous unconsciousness when the intracranial pressure is normal (19).
When patients with intracranial trauma or bleeding do not improve rapidly, one must suspect the possibility of hydrocephalus with or without a temporary increase of pressure. If the process is continuous with the original incident, the diagnosis may not be clear for sometime. The neurological signs of brain injury get superimposed on the signs of hydrocephalus. On the contrary when the symptoms development sometime later, the association is obvious.
The important clinical signs are mental changes urinary incontinence and disturbances in gait. The cardinal aspect of the mental change is the slowing of mental processes without any aberration (frontal lobe inertia). Physical activity is slowed down and the patient is found to be generally slow in spontaneous action and in calculations. The gait disturbance manifests as slowness with a wide base and unsteadiness and is attributed to pressure on motor fibers to the leg by the dilating ventricular system. The gait problem is probably due to excessive activity of the antigravity muscles, which prevents smooth organization of walking.
There is no papilloedema but occasionally nystagmus may be seen with increased tendon reflexes. The primitive reflexes of sucking and grasping appear in the late stages. Urinary incontinence is an important component of the clinical picture.
Arteriosclerotic dementia and presenile dementias can be recognized by the mental aberrations and the psychotic elements characteristic of these conditions. In NPH there are no illusions, hallucinations or irrational speech. Occasionally cerebral degeneration may co-exist with NPH and thus present difficulties regarding decision about surgical treatment.
Diversion of the CSF through a ventriculoperitoneal shunt gives good results. The mental symptoms begin to improve rapidly and the improvement continues for weeks. Gait takes a longer time to improve. Postoperative reduction in the size of the ventricle is not always seen nor is it proportionate to the clinical improvement. However, estimation of cerebral blood flow before and after shunting procedures has shown a significant increase in the blood flow in both the grey and white matter in all patients investigated.
Lack of improvement after shunting may, apart from wrong selection of patients, be due to overshunting resulting in too low a pressure or undershunting, where the pressure is not reduced. It is preferable to use a low pressure shunt to achieve good results. In these cases subdural haematoma or hygroma may form in the postoperative period and has to be excluded by repeating the CT scan.
The good results of surgery in normal pressure hydrocephalus in the elderly have led to the adoption of the same treatment in degenerative brain diseases without all the classical features of normal pressure hydrocephalus. Salmon et al studied a heterogeneous group of cases with chronic degenerative disease of the brain, all of whom had hydrocephalus of minimal to moderate degree, but without any evidence of obstruction. A large number of them had evidence of cerebral atrophy as shown by enlarged cortical sulci. All these patients were subjected to ventricular shunting and signs fo improvement started to appear two to three weeks after shunt surgery. Analysing the results, it was found that with smaller thickness of the cerebral mantle the results were better. Patients above the age of 50 showed greater improvement as also patients with lower IQ and more mental disturbance. These conclusions are most thought-provoking and have to be analysed carefully to prevent a flood of operations for all elderly patients with commencing dementia. One would naturally like to predict which cases would improve with shunt surgery so that unnecessary operations may be avoided."
67. Shri Sinha has also relied upon signs and symptoms of Normal Pressure Hydrocephalus in an article ''Management of Normal Pressure Hydrocephalus' by Meg Verrees, M.D., and Warren R. Selman, M.D., Case Western Reserve University, Cleveland, Ohio published in ''American Family Physician, September 15, 2004, Volume70, Number 6 page 1071 available at www.aafp.org/afp, as under:
"The triad of gait instability, urinary incontinence, and dementia distinguishes NPH (Table1). Elucidation of the presence of these three symptoms, as well as their predominance and pattern of presentation, is essential. One study reported a 65 percent positive predictive value of this classic constellation in selecting patients for ventriculoperitoneal shunting.
Although NPH commonly is referred to as a treatable form of dementia, cognitive deficits and memory loss are the symptoms least specifically indicative of this syndrome and the last to respond to shunting. Gait instability is most often the first presenting and most significant problem. In a review of 35 studies evaluating diagnostic studies and outcomes of patients with NPH, investigators arrived at a similar conclusion. The aberrant pattern of ambulation often is composed of a slow gait; short, shuffling steps; and a wide-based stance."
68. The burden to prove that the testator was in sound and disposing mind, is on the propounder of the will. The defendants have, in paragraph 4, 8, 20 and 21 of the written statement, stated that on the date of alleged execution of the will i.e. 5.1.1993 the Maharaja suffering from physical and mental diseases since 1989, was not in sound and disposing state of mind, to understand, to dictate or instruct any other person to execute such will. He had lost his memory and could not even sign having no grip over his fingers. He had no mental capacity to understand the contents of the alleged will and the nature and effect of the disposition. He had also lost his vision of his eyes to a great extent. The will does not appear to have been registered during his life time. It was beyond his mental condition to comprehend and understand the details given in his disposition.
69. The counsel for the plaintiffs cross-examined DW-2, DW-6 with regard to their association with Shri Pushpraj Singh and that all of them except Shri Girja Prasad Mishra, Advocate, DW-4, admitted that they are still in service and are receiving favours from Shri Pushpraj Singh, the defendant in the suit.
70. The statements of Shri Sant Prasad Mishra son of late Shri Luxman Prasad Mishra (PW-1), Dr. Ram Gopal Singh (PW-2), Shri Balram Prasad Dubey (PW-3), the attesting witness Shri Gyanendra Singh (PW-4), Shri Uma Charan Srivastava (PW-5), and the statements of Shri Pushpraj Singh (DW-1), Shri Shiv Kumar Verma (DW-2), Shri Sher Khan (DW-3), Shri Girja Prasad Mishra (DW-4), Shri Bawan Gopal (DW-5) and Shri Vanshpati Tripathi (DW-6), are relevant for the purposes of examining the sound and disposing mind of Maharaja Martand Singh on the date of execution of the will. There are certificates given by Dr. K.E. Tureel and Dr. K.T. Dholakia, and the report of the Medical Board convened at the instance of Civil Court and the report of the Advocate Commissioner to be assessed in this matter.
71. The statement of Dr. Ram Gopal Singh, PW-2, who had attended the Maharaja since 1980 when he fell ill for the first time and accompanied him on his visits to America, Bombay and Delhi, is most relevant for deciding the issue.
72. Dr. Ram Gopal Singh, PW-2 is a Master of Surgery and Urologist. He was posted as Lecturer in Surgery in Medical College, Rewa in 1970. He was in Rewa from 1969 to 1994. For a short period between 1994-95 he was appointed as Principal of Raipur Medical College and in 1995 the Principal of Bhopal Medical College and retired in the same year. On his own statement he came in contact with Maharaja Martand Singh in 1978 when he visited him on a complaint of presence of blood in Urine. He performed cauterization to stop the blood. The examination confirmed Cancer of Urinary bladder. He was shifted to Bombay and thereafter to Cancer Hospital, New York. Dr. Singh accompanied the Maharaja all along to New York and Bombay. The urinary bladder was removed in New York after which he was examined every three months. In 1980 the Maharaja complained of passing blood in stool and was admitted to Rewa Hospital. He was shifted to Bombay and was operated for Granuloma of large intestine in which the entire large intestine was required to be removed. The Maharaja was operated after two months of his visit to Bombay at Bombay Hospital where he went for check up in 1988 and 1989 also. Dr. Tureel, a Neuro Surgeon at Beach Candy Hospital carried out an operation to install V.P. Shunt in March 1991 for Normal Pressure Hydrocephalus (NPH) to remove the excess quantity of water present around the brain in skull. Though Dr. Singh is not a Neuro Surgeon, he stated on the basis of his knowledge that in NPH the patient suffers from Dementia. It is called as decline in mental control in which the patient looses control over his urinary bladder and has wavering gait. He, however, stated that patient's power to understand his affairs was not affected and that after shunt operation 90% recovery takes place from the symptoms. In January/ February 1992 Dr. Satish Jain, a Neuro Physician of All India Institute, Delhi visited Rewa and advised to install a new shunt as old one is not operating properly. The Maharaja was admitted in All India Institute in March 1992. Dr. Singh accompanied him to Delhi also. In March, 1993 the Maharaja was flown to Bombay in Government plain to be admitted in Beach Candy Hospital for operation of hip bone fracture to be performed by Dr. K.T. Dholakia. Dr. Singh is also present at Beach Candy Hospital. In April, 1992 the Maharaja was transferred to New Delhi by aero plane to be admitted to All India Institute, when the suit was filed by Shri Pushpraj Singh and police report was also lodged about kidnapping, which was later on withdrawn on the statement of the Maharaja, when he came back.
73. It is significant to notice that Dr. Singh, who was not cross-examined in detail, is silent about the medical condition of the Maharaja in January, 1993, when the alleged will was executed and has nowhere stated in his examination-in-chief that the Maharaja was in a fit mental condition and was in sound and disposing mind in January, 1991 and that he was in a position to execute the will. The Maharaja was operated for Cancer of Urinary Bladder at Cancer Hospital, New York in 1978. In 1980 he was operated for Granuloma of large intestine at Bombay Hospital. In March, 1991 V.P. Shunt was installed for draining water due to NPH at Beach Candy Hospital, Bombay. In January or February, 1992, on the advice of Dr. Satish Jain, a Neuro Physician of AAIMS, New Delhi the Shunt was replaced. The witness then jumps to April 1993, when he flew along with Maharaja to Bombay for hip bone fracture operation by Dr. K.T. Dholakia. The witness did not mention anything about the medical condition of Maharaja in Jaunary, 1993. The witness has benefited out of the will, in which he is a legatee of over one and quarter acre of land and Rupees one lac for his services rendered to Maharaja.
74. The medical certificate filed along with list of documents as well as appended to the affidavit of Shri Pushpraj Singh by Dr. K.E. Tureel, Consultant Neuro Surgeon dated 8.2.1991 reads as follows:
"Maharaja Rewa Shri Martand Singh Ju Deo aged 67 years has symptoms of Normal Pressure Hydrocephalus (NPH).
He needs a V P Shunt operation. Because of NPH he is unable to fully realize the pros and cons of V P Shunt operation under general anaesthesia.
Therefore it is necessary to obtain consent from his wife Her Highness Praveen Kumari for the V P Shunt operation."
75. There is no medical certificate on record relating to the period December, 1992 and January, 1993. Dr. K.T. Dholakia, the renowned Orthopedic Surgeon was consulted again and the Maharaja was re-admitted to Beach Candy Hospital on 5.12.1993 for treatment of his bone fracture of right hip. His certificate dated 5.7.1993, after about four months of the execution of the will in suffering hip bone fracture is also relevant and reads as follows:
"This is a further report on H.H. Shri Martand Singh Ex-Maharaja of Rewa who was re-admitted to Breach Candy Hospital a fortnight back for the treatment of his old fracture of right hip.
He was found to be uncontrolled diabetic which has since been controlled under careful medical supervision. His other parameters are investigated and found to be within normal limits.
He was put on physio- therapy to assess his co-operation, co-ordination and also to try to give correct position to his fractured limb which is so necessary and important in the after care of surgery.
His Highness had some years earlier ventricular shunt and his cerebral function is not normal. Surgery that would be needed for his old hip fracture, will be either prosthetic replacement or better still Total Hip replacement. This surgery by itself is major and can be considered high risk surgery and particularly with His Highness who himself is a high risk patient.
However, our team would have taken this guarded risk as we always have to do when confronted with situations such as this. Realisation of such calculated risk has to be understood by relations and all other interested parties concerned. We were given to understand that this was so from His Highness's close relations. We were also given to understand that there was difference of opinion and the Court mediation was necessary and so obtained on this issue.
However, it is our considered opinion that the mental condition of His Highness is not conducive to allow us to undertake such major high risk surgery as we have grave doubts that the co-operation needed in the after care of such surgery cannot be obtained. This can result in complications like dislocation of the implanted joint, which could only result in increased pain than what he has now and inability to move around. Besides he will be required to do proper physio-therapy to re-educate his muscles, which have not been functioning for quite some time in order to get good and desirable result of surgery performed on him.
In view of his lack of co-operation and appreciation of these features because of his old cerebral condition, we have decided that it is most inadvisable to subject him to this major High-risk surgery, which due to his back ground may not give him the desirable result. It becomes an unnecessary exercise full of calculated risk and hence this decision."
76. The Maharaja was examined by Board of Medical Doctors, in a suit in which an injunction was sought to evacuate him for medical treatment, on the risk of his life by Maharaja Martand Singh through his next friend Smt. Praveen Kumari. The medical report of Board dated 1.6.1993 consisting of Dr. J.P. Bhaswara, Professor of Medicine as Chairman, Dr. S.C. Singh, Reader, Surgery and Dr. P.K. Lakhtakia, Lecturer Orthopedics, who examined the Maharaja opined as follows:
"Board agrees with the observations of Dr. K.T. Dholakia that he needs surgery for his # neck femur, however, whether he is fit to undergo surgery or not at the moment can only be judged by the operating Orthopedic surgeon and his team consisting of anesthesia, Neuro Physician, Neuro Surgeon and diabetologist."
77. Regarding query No.2 whether he can undertake visit of a foreign country without any apparent danger, the Board did not give any definite opinion on the query. The Board, however, at page 2 of his report observed as follows:
"He is conscious, remains disoriented, confused, although occasionally responding to relevant questions. He as emotionally disturbed and cries in between, appears to have loss of memory for past and recent events. No anemia tungmoist and red JVP not rest. Good edoma. Pulse 104/mnt. Regular good volume. Other peripheral pulses, well felt, B.P. 160/90 (R-ARM)."
78. The physical and mental condition of the Maharaja was not normal. He had undergone operation of urinary bladder and his large intestine was removed. He had developed NPH and a V.P. Shunt was installed in 1991 and was replaced in 1992. He was severely diabetic and that doctors had refused to perform operation on him in June, July, 1993. There is no evidence at all led by the propounders of the will that the Maharaja was in a fit mental state to execute the will, which runs into several pages and describes properties in great detail. Shri Sant Prasad Mishra, son of late Shri Luxman Prasad Mishra, Private Secretary of Maharaja did not state the fact in his examination in chief that on the date of execution of the alleged will the Maharaja was in sound and disposing mind. Dr. Singh also did not make any such statement. The Deputy Registrar, PW-3 did not make any statement with regard to physical and mental condition of Maharaja and attesting witnesses namely Dr. Gyanendra Singh PW-4 and Dr. Rajendra Prasad Srivastava PW-5 did not state a word about physical and mental condition of Maharaja on the date of execution of the will and its handing over to the Registrar. The propounder as such has failed to prove that the testator was in good physical and mental health and was in sound and disposing mind, to understand the contents for executing the will.
79. The alleged will dated 5.1.1993 handed over in sealed envelope to the Registrar on the same day in the presence of the attesting witnesses, following the procedure provided for deposit of wills under Section 42 and 43 of the Registration Act is a long document running into 14 pages with Schedules A to E. It begins with a statement by H.H. Maharaja Martand Singh, aged 70 years son of Late Maharaja Shri Gulab Singh Juedeo resident of Fort Uprahati, Rewa (M.P.) that he hereby revokes all codicils, wills and testamentary dispositions hereto before made by me and declares this to be my last will and testament dated 5.1.1993 made at Khakhari, Govind Garh, Rewa. In para 1 it is stated by the testator that due to his old age and ill health he thinks it prudent to make the last will and testament. Para 3 refers to deed of partial partition dated 29.3.1971 between the testator, his wife Maharani Smt. Praveen Kumari and Shri Pushpraj Singh by which most of the properties both immovable and movable were partitioned or divided among themselves. Para 3 he states that the testator is possessed of excessive properties and assets both movable and immovable and also hold 1/3 share in co-owned undivided properties of Hindu undivided family of which he is Karta. Para 4 (a) gives the details of all the properties and assets of which the testator is the absolute owner and para 4 (b) gives the details of the properties and assets mentioned in Schedule B belonging to the undivided family of which he is Karta holding 1/3rd share.
80. In para 5 the testator desired that on his death the Hindu undivided family shall be deemed to have been partitioned and the title rights including the sole power of ownership of his 1/3rd share shall be assessed and shall vest in executors of the will and they shall become the absolute owners of his 1/3rd share with power to dispose of all the properties and assets. The testator then bequeathed the items at Sl. Nos.2, 3, 4 and 5 from (A) to (D) and 7 to 10 from (A) to (D) and 11 of Schedule A to Maharaja Gulab Singh Juedeo Charitable Trust and then in para 7 Sl.No.V from (f) to (h) of Schedule A again to Maharaja Gulab Singh Juedeo Charitable Trust and instructed that Puja and Sewa done in the temple of Shri Radha Krishna Ji shall continue to be performed in future also though the salary of Pujari and other expenses shall be met out of the trust. 25 feet wide road running north to south from Rewa Kothi facing Leader Road shall be available for approach to temple and well.
81. By para 8 the testator gave absolute power including power of sale of his half share of the entire ground floor at Rewa House, Mumbai in a manner that out of sale proceeds Smt. Praveen Kumari will be paid Rs.10 lacs. Persons enumerated in Schedule C, rupees mentioned therein for their sincere and favourable servants and persons enumerated in Schedule D for their dedicated loyal and untiring service, rupees mentioned therein. The will then proceeds to bequeath land at Summon Bandh Rewa in such a proportion as mentioned in Schedule E, payment of three months' salary in para 11 to all employees of Fort and Khakhari, who remained in his services, the entire Khakhari house to Maharaja Gulab Singh Juedeo Charitable Trust to be developed good picnic/ recreational/ amusement place for public at large and their children, in para 12 all personal wearing, garments, crockery and cutlery, utensils, furniture, beds and armory consisting of Pistols and Rifles to Maharaja Martand Singh Charitable Trust to be kept maintained and displayed in its museum at fort Rewa and the entire fort Uprahati Rewa in Schedule A to Maharaja Gulab Singh Juedeo Charitable Trust, with the residential portion and Janankhana for use of his wife and on her demise to the Maharaja Gulab Singh Juedeo Charitable Trust. The Maharaja then in paragraph 15 bequeathed his 1/3 share in the property and as such of Hindu undivided family to Maharaja Gulab Singh Juedeo Charitable Trust and articles mentioned at Sl. Nos.4 and 5 of Schedule B to Maharaja Martand Singh Juedeo Charitable Trust. Loans advances of the employees shown in Sl. No.VI of Schedule B shall be completely waived and they will be relieved of the loans. In para 17 he wishes that his funeral shall be performed as per his family standards and in para 18 the residue of all undisposed of property including Privy Purse, if any granted by the Court or by the Government to the trustee of Maharaja Gulab Singh Juedeo Charitable Trust, Fort Rewa. In para 19 he stated that he is proud of his ancestral heritage well known for generosity, magnanimity and charity for all good causes and for welfare of the people and with all these objects and view he has instructed Shri B.M. Gupta, Advocate, 52 Marwari Road, Bhopal to prepare a draft. The testator is hopeful that both Maharani Smt. Praveen Kumari and Shri Pushpraj Singh shall extend their full cooperation to the executors of the will.
82. In para 20 he expressed gratitude to the beloved people of Rewa for their love and honour shown to him. In para 21 he named the following persons as executors jointly and severely, all of them or whosoever are surviving at the time of his death, of the will and testament after deducting funeral expenses, debts and liabilities. These executors are named as below:
"That (1) Shri Dr. Sajjan Singh, Shiv Clinic, Martand Complex, Pili Kothi, Rewa, (2) Shri Gyanendra Singh, Advocate and Ex-Chairman Rewa Improvement Trust, Amahia, Rewa, (3) Shri Luxman Prasad Mishra, Surya Kiran, Kala Mandir Road, Rewa, (4) Shri Ajay Singh, S/o Shri R.V.P. Singh, Ex-M.L.A., Umaria, Sahdol, (5) Shri H.S. Shrivastava, my Income Tax Advocate, Jabalpur and (6) Shri Sant Prasad Mishra, Surya Kiran, Kala Mandir Road, Rewa, all of them or whosoever are surviving at the time of my death, are hereby appointed as the EXECUTORS, jointly and severally, of my this will and testament. It shall be the duty of the said Executors to administer the estate and assign to each of the legatees, after deducting all my funeral expenses, debts and liabilities and other expenses, if any, in administering the estate, the properties and/ or assets and/ or moneys prescribed to each of them.
83. I find substance in the contention of Shri Ajeet Kumar that such a will containing five schedules giving meticulous details with description of properties shares names of employees and amounts could not have been drafted unless detailed instructions were given to Shri B.M. Gupta, Advocate. There is absolutely no pleading or evidence with regard to meeting or contact or instructions which the Maharaja gave to Shri B.M. Gupta, Advocate, who was infact the counsel of the family of Dr. Sajjan Singh, the elder brother of Shri Arjun Singh, the Ex-Chief Minister of Madhya Pradesh and had his office at Bhopal. There is no evidence to show that the Maharaja had ever met Shri B.M. Gupta, Advocate before or even after the execution of the will. The documentary and oral evidence is completely silent about the acquaintance between the Maharaja and Shri B.M. Gupta and their visit to each other. Further there is nothing to show that Shri B.M. Gupta was instructed by some person with the consent and instructions from the Maharaja for preparing the Will. The instruction to prepare such a will with details of private partition, trusts, names and addresses of the trustees, the names and addresses of the seventy two employees in Schedule B and twenty five in Schedule D with details of the amounts to be paid to them, the details of the companies in which the Maharaja held shares, the number of the shares and the amount in different bank accounts, could not be drafted without assistance of the Maharaja or any one very close to Maharaja looking after his affairs. Such a document could only be drafted under close supervision of the testator. The propounder has neither summoned the scribe nor the person, who was deputed to have instructed the scribe to draft the will. Further I find that the corrections in the will have been signed by the scribe Shri B.M. Gupta, Advocate and not by the testator.
84. Shri B.M. Gupta, Advocate was named as plaintiffs' witness and was issued summons for appearance on 25.2.2002. He sent a telegram and thereafter a letter dated 21.2.2002 by speed post to the Deputy Registrar (J), Allahabad High Court, stating that he is suffering from diabetes and severe arthritis, supported by medical affidavit of Dr. Pankaj Agrawal of Bhopal and requested that he may be examined by commission at Bhopal. Neither the plaintiffs nor the defendants made any request to examine him, nor the medical condition of Shri B.M. Gupta, Advocate was reported to the Court when the oral evidence was being led in the suit upto the year 2006.
85. Now coming to the beneficiaries under the alleged will, I find that H.H. Maharaja Martand Singh Juedeo Charitable Trust was settled on 18.10.1970 between Maharaja Martand Singh, Maharani Praveen Kumari and Shri K.L. Pancholi, resident of Rewa with Rs.19,000/-. This trust has been referred to in the alleged will. The will refers to another trust by the name of the Maharaja Gulab Singh Juedeo Charitable Trust settled on 25.11.1992 with Dr. Sajjan Singh & others as trustees, as major beneficiaries under the Will. This trust was registered on 25.11.92. Although it was argued by Shri Ajeet Kumar that the trust was not registered and in the absence of such registration it cannot claim properties, it is to be found from the record that the Trust Deed dated 25.11.1992 (A-28) is a registered document and that Smt. Praveen Kumari had filed a suit for cancellation of the registration of the trust deed. A question then arises about the identity and association of Shri Sajjan Kumar, the executor, trustee and plaintiff No.2, who is a propounder, with the Maharaja. Shri Sajjan Singh did not choose to appear in the witness box. The Court was curious to know about his relationship with the Maharaja for being named the trustee of Maharaja Gulab Singh Juedeo Charitable Trust as also executor of the will. A perusal of the entire documentary and oral evidence does not show that there was any relationship between Maharaja Martand Singh and Shri Sajjan Singh. The plaintiffs' witness Shri Sant Prasad Mishra, PW-1 son of late Shri Laxman Prasad Mishra, has referred to Dr. Sajjan Singh in his cross-examination. Shri Sant Prasad Misra stated that his late father was known to Shri Arjun Singh, who was the Chief Minister of Madhya Pradesh from 1980 to 1988, and 1988 to 1989. Dr. Sajjan Singh is elder brother of Shri Arjun Singh. The witness admitted that Shri Prabhuti Mishra, his cousin was employed during the period of Shri Arjun Singh. His mother, sister and mother's brother received appointments during the period when Shri Arjun Singh was the Chief Minister. His father late Shri Sant Prasad Mishra was initially engaged by Maharaja as his driver and then rose to become his Private Secretary, and was the Vice-President of District Congress Committee, Rewa. His mother was President of the District Women's Congress Committee, Rewa. Dr. Sajjan Singh is the Chairman of the trust.
86. The evidence led by the parties does not establish that the Maharaja had any special relationship, friendship or acquaintance with Dr. Sajjan Singh to repose trust upon him to execute his Will. A suggestion was given to Shri Sant Prasad Mishra, PW-1 as to whether Shri Shiv Bahadur Singh, the father of Shri Arjun Singh was given any position in the Council of Ministers of Kings by the British Government in the interim Government or that Maharaja Gulab Singh, the father of Maharaja Martand Singh had taken away this position from Shri Shiv Bahadur Singh. The witness plead ignorance to such facts. He, however, admitted that Shri Gyanendra Singh, the other trustee and executor was made the President of Rewa Development Trust by Shri Arjun Singh.
87. The Maharaja was a highly educated person and was also a Member of Parliament. He does not appear to have any relationship, much less a special relationship that he would settle a trust just two months before the execution of the will and then nominate the trustees including Dr. Sajjan Singh as one of the executors of the will, bequeathing all his residual properties including, the fort, the lands, jewelry, shares in companies, his share in the HUF, and his proud heritage to the strangers. Dr. Sajjan Singh, the plaintiff, in this suit, the trustee of Maharaja Gulab Singh Juedeo Charitable Trust, the executor and the chief propounder of the Will has not entered the witness box. He has not dared to stand the cross examination to remove the strong suspicious circumstances surrounding the will. The oral evidence led by the plaintiff does not show that he was present at the time of execution of the will, or at any time, thereafter, with the Maharaja.
88. Shri Ajeet Kumar, learned counsel for the defendants submits that a bare perusal of the signatures of the Maharaja on the alleged will and the envelope in which it was deposited with the Registrar and the trust deed dated 25.11.1992 by which the Maharaja Shri Gulab Singh Juedeo Charitable Trust was settled, and its comparison with his signatures on the trust deed dated 18.10.1970 settling H.H. Maharaja Martand Singh Judeo Charitable Trust filed along with the affidavit in examination-in-chief of Shri Pushpraj Singh, DW-1 and the diary (A-41) of the Late Maharaja written in his hand-writing and title with the signature dated 19.8.1963 at Bombay, shows that the propounders of the will, have committed a crude forgery. Shri Ajeet Kumar submits that Maharaja used to make big and long signature in a flourish and with fluency. Even if the long period of about thirty years between the writing of the diary, produced by the propounders, and twenty three years from the date of settlement of H.H. Maharaja Martand Singh Juedeo Charitable Trust and his age and illness, be taken into consideration, his signatures on the will are not in the handwriting of late Maharaja. He submits that the Maharaja used to sign as Martand Singh in great fluency with special emphasis on the words ''M', ''t', ''d' and the last words as ''Sh', which followed after a loop made with the flow a pen while completing the word ''d'. The loop crossed ''T' in a semi circle and went on to complete the last word ''Singh', which was written by him as ''Sh'. He submits that signatures on the Maharaja Gulab Singh Juedeo Trust and the will of late Maharaja do not have these characteristics at all. The Maharaja's signatures made on the will and the envelope are in a string of loops like a spring do not match with his admitted signatures and are not identifiable at all.
89. Shri Ajeet Kumar further submits that the place, and the position of the signatures on the will shows that the Maharaja appended his signatures over and above the typed letters on page 1, 2, 3, 5 and 7 and that all his signatures except on page 2 and on pages 12 and 13, are pointing downwards. In all these alleged signatures on the will repeated loops have been made with no visible letters. On page 2, 4, 5 and 9 only the signatures are appended on the left margin as well. Shri Ajeet Kumar went on to submit that a comparison between the different signatures and different pages on the will itself shows that these have been made either by a person, who had not seen the Maharaja's hand writing or have been made by different persons. The signatures on the will itself do not tally with each other.
90. Shri Navin Sinha on the other hand submits that the Maharaja was old and was suffering from severe illness, which must have affected his handwriting. The flow in which the signatures have been made clearly shows that these are of same person and that in case any forgery was planned, the propounder would not have ventured to have executed two documents namely firstly the trust deed dated 25.11.1992 and then the will dated 5.1.1993. The propounders, if they were so cunning as it is suggested by the counsel for the defendants, would have created a trust by the will itself. Shri Navin Sinha further submits that in case the defendants were in doubt, they could have called an expert for examining the signatures. The Court should not assume the role of an expert in such matters.
91. Late Maharaja was an educated person and had served as elected Member of Parliament from Rewa. His diary shows that he had good command over English language and possessed a sharp intellect. He was the ruler of Rewa. The deed of partial partition dated 29.3.1971 (A-17) and deed of H.H. Maharaja Martand Singh Juedeo Charitable Trust dated 18.10.1970 bear his signatures. He had suffered from cancer of urinary bladder and granuloma of large intestine, and had undergone a V.P. Shunt operation. He was diabetic and was not keeping good health. It is not denied by the propounders of the will that his signatures on the Maharaja Gulab Singh Judeo Trust and the will do not match with his earlier signatures found on the deed of partial partition and the deed of Maharaja Martand Singh Juedeo Charitable Trust. The manner and position of the signatures on the Will, the due execution of which is in question, clearly shows that even if Maharaja had signed on the document, either he was in a great hurry or under some strain or influence. As discussed above his alleged signatures on the 1st, 4th, 5th, 7th, 8th, 10th and 11th pages go to demonstrate as if these signatures were made by a person, who was wholly unconcerned with the document or that some one else was holding the document when he appended the signatures. The will does not bear his signatures on left hand margin of all the pages except page numbers 2, 4 and 5. There is only one signature on page no.6, at the place where the word ''testator' is written at the bottom of the will, before the schedule begins. This is the only signature which has some semblance with his previous signatures but not the others. In the circumstances a very heavy burden is placed on the propounders and that they were required to call the aid of an expert to prove the signature on the will. The propounders did not find it prudent to make a request to seek the opinion of a handwriting expert.
92. Shri Gyanendra Singh, PW-4 and Dr. Rajendra Prasad Srivastava, PW-5, entered the witness box as attesting witnesses of the will. They made an attempt to prove the signatures of the Maharaja. Shri Gyanendra Singh stated that the Maharaja had signed before him and when he had signed Dr. R.P. Srivastava, Shri J.P. Mishra and other persons were also present. He identified the signatures on page 6 of the will and stated that when he signed on page 6, Dr. R.P. Srivastava, Shri J.P. Mishra, the Registrar, the Deputy Registrar and two or four servants of the Maharaja were also present. After the Maharaja signed on pages 1 to 14, all these persons were present. After the Maharaja and all the three witnesses signed, the Maharaja kept the will in an envelop and sealed it, and thereafter the Maharaja put the impression of his ring on the lac seal. The envelope was also signed by all the three attesting witnesses. Dr. Rajendra Prasad Srivastava, a Government doctor posted as Medical officer in District Umaria is the attesting witness to the will. He entered the witness box and deposed to the same effect. He also stated that when the Maharaja signed the will, there were about seven or eight persons present including the witness, Shri Gyanendra Singh, Advocate, Shri Jagdish Prasad, the Registrar, the Deputy Registrar and some persons of the staff of the Maharaja. After the Maharaja signed, Shri Gyanendra Singh and Shri Jagdish Prasad Mishra and the witness himself signed as attesting witnesses. He identified these signatures on page 6. He also deposed that thereafter, the will was kept in an envelope and sealed.
93. The Deputy Registrar, Shri Balram Prasad Dubey, PW-3 was called by executors to depose about the deposit of the will in the office of the Sub-Registrar. The witness identified paper No.A-88, the yellow envelope, on which he had written the name of the presenter and other details. He deposed that these details were written on 4.1.1993 in connection with the deposit of the will of Raja Martand Singh at his residence at Khakhari Kothi, Govind Garh, which is about 15 kms. from his office. He identified the signatures of Raja Martand Singh on the envelope and also proved the certified copy (a photocopy) of the minute book. He deposed that the District Registrar Officer and about 8 to 10 persons were present at that time. In the cross examination he stated that the will was not registered by him. Only the sealed envelope was deposited for which there is a special provision in the Registration Act with the object of keeping the will as a secret document. This witness, who entered the witness box as an official, witness of the deposit of the envelope did not say a word about the execution of the will by the Maharaja. It is significant to note that whereas Shri Gyanendra Singh, PW-4 and Dr. Rajendra Prasad Srivastava, PW-5 stated in their examination-in-chief that at the time of execution of the will by the Maharaja and its attestation by the three witnesses, both the Registrar and the Deputy Registrar were present, the Deputy Registrar, however, did not say a word about the attestation and execution before him and deposed only with regard to the deposit of the sealed envelope containing the will.
94. Shri Gyanendra Singh, PW-4, the attesting witness is also the executor of the will. Both these attesting witnesses stated in the cross-examination that the Maharaja had signed on the typed portion of some other pages and at some places his signatures at a downward trend. They, however, could not explain as to why he had signed in such manner, but that he had signed in that manner before them.
95. Ordinarily the Court will not compare the signatures on the disputed documents, with the admitted signatures and that such matters under Section 45 of the Evidence Act should be left to the opinion of the expert. Where, however, both the propounder of the will as well as caveator/ objector do not choose to call an expert in evidence, the Court may in order to satisfy its conscience examine the signatures and in the given circumstances the manner in which they have been appended on the document. Section 73 of the Evidence Act authorizes the Court to compare the signatures on the disputed document with the admitted signatures.
96. In Fakruddin Vs. State of M.P., AIR 1967 SC 1326, the Supreme Court observed that handwriting may be proved on admission of the writer or by the evidence of some other witness in whose presence it was written. It is direct evidence. In the absence of such direct evidence the opinion of handwriting expert or some one, who is familiar to the writing of the person is relevant. The third method provided by Evidence Act in Section 73 is a comparison by the Court with the writing made in the presence of the Court or admitted or proved to be the writing of the person. The Court can apply its own observations to the admitted or proved writing and to compare them with the disputed one. This comparison depends on an analysis of the characteristics in the admitted or proved writing and of the same characteristics in large measure in the disputed writing. Even if there is the opinion of the expert on the handwriting, it is subject to the scrutiny by the Court. The expert opinion is not the final word. The Court must see for itself whether it can safely be held that the two writings are of the same person. To this extent, the Court may play the role of an expert. The Court can accept the disputed signature to be that of the witness when it is satisfied on the observation that it is safe to accept the same. If the Court finds that the disputed signatures have the same characteristics in large measure with the admitted signatures, it can safely come to the conclusion that both are of the same person.
97. In State of Maharashtra Vs. Sukhdev Singh, (1992) 3 SCC 700 (para 32) the Supreme Court was of the opinion that though Section 73 of the Evidence Act empowers the Court to see for itself whether on a comparison of the two sets of writing/ signatures it can safely be concluded with the assistance of an expert opinion that the disputed writing are in the handwriting of the accused and that Section specifically empowers the Court to compare the disputed writings, the prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison.
98. On the aforesaid legal position, I have no hesitation to come to the conclusion that the propounder has failed to prove that the Maharaja had executed the will by making and subscribing on the document in the presence of the attesting witnesses, and find that the signatures on the will are not the signatures of late Maharaja Martand Singh.
99. Shri Ajeet Kumar submits that probate cannot be granted to an association, and has relied upon Section 236 of the Indian Succession Act and the judgment of the Supreme Court in Illachi Devi Vs. Jain Society Protection of Orphans India, 2004 ACJ 213. The submission overlooks that in the present case the plaintiffs are three out of the six alleged executors of the will. Shri Laxman Prasad Mishra died during the pendency of the suit. The property settled in the trust does not vest in the trust itself. It vests in the trustees. Where some of the trustees are also the executors of the will, the application made by them stand on a different footing than the application by a society or trust for grant of probate. The three executors are named in para 21 of the alleged will and were thus competent to move the application.
100. Shri Pushpraj Singh has filed a long affidavit as his examination-in-chief and was cross-examined on 27.8.2004, 29.11.2004, 4.4.2005 and 26.9.2005. He has explained in details and has tried to dispel the doubts over the relationship between his father and mother and he himself. He has stated in para 10 of his affidavit that the Maharaja lived in Fort Rewa till his death and that his last rites was performed by him and his mother. The Maharaja never executed the will either on 4.1.1993 or 5.1.1993 and never divested his legal heirs from succession. His mother and he himself are the only legal heirs and successors of the Maharaja. The Maharaja never signed the alleged will, paper No.A-8, which does not contain his signatures. The insertion of the words and digits are not in the handwriting of his father. He was not in a proper mental state either on 25.11.1992, when the trust is alleged to be settled or on 4.1.1993 or 5.1.1993, when the will is alleged to be executed and attested, and was neither capable to understand the nature of document nor capable of reading it. He was not in sound and disposing state of mind on these dates and was not in a position to either call for preparation of any document or suggest or advise either to prepare any trust deed or will. He could not dictate the terms of the trust deed or the will. Shri B.M. Gupta was never engaged by his father as lawyer. Shri B.M. Gupta is closely associated with Mr. Sajjan Singh and his brother Shri Arjun Singh and his associates. The Maharaja had very high status in the society. He was a Maharaja, the King and had his own battery of lawyers and high class educated persons conversant with law, and legal and financial affairs. The partial partition was made on the advise of Mr. N.A. Palkhiwala, the famous lawyer for income tax purposes. It was not partition of entire properties. All the properties mentioned in the will were not owned and possessed by the Maharaja. Some of the properties belong to Maharaja Martand Singh Juedeo Charitable Trust and some others by Union of India. Shri Sri Nath Singh, the Head Accountant of Maharaja stated on oath in civil suit No.4A of 1994, for claim under the Insurance Policy filed by Smt. Praveen Kumari as next friend and guardian ad- litem of Maharaja, that the Maharaja was not mentally well and that his mental state of mind had worsened and that he could not read or write or even speak and recognize the persons. The Advocate Commissioner appointed in Suit No.28A of 1993 reported that the Maharaja was neither capable to understand his questions nor he was able to answer them. He has then narrated the long medical history of Maharaja, which has been discussed in detail.
101. Shri Pushpraj Singh, DW-1 further stated that the legal matters of the family were dealt with the consultation of Mr. H.S. Srivastava, Sr. Advocate, High Court of Madhya Pradesh at Jabalpur, who was held in great regard and trust by his father and Shri N.A. Palkiwala, the famous Advocate of Bombay High Court and the Supreme Court, who had drafted the partial partition deed, HUF deed and trust deed of Maharaja Martand Singh Juedeo Charitable Trust, Fort Rewa dated 18.10.1970. The Maharaja loved his wife and had announced 23rd June and 3rd July, the date of birth of his mother and he himself as holidays in the State. The witness stated that he became Legislature of Madhya Pradesh Vidhan Sabha after he was inducted in politics by his father and was made a member of the Congress Party and then became a Minister in the Madhya Pradesh Government. By that time his father had died, but that it was his planning, that the witness joined the politics and continued to do well. His mother accompanied the Maharaja for his treatment to America. They were running from one hospital to another consulting the best and topmost doctors in Bombay and Delhi for getting him best medical treatment. He denied that his mother and he himself had not taken care of the Maharaja during his illness.
102. Shri Navin Sinha, learned counsel for the plaintiffs, propounder of the Will, made an attempt to cast a shadow over the relationships between Maharani and Shri Pushpraj Singh, to explain the unnatural bequest, in which the natural heirs were deprived and replaced by the trustees and executors of the will. He referred a few pages from the diary of the Maharaja written and signed by him 19.8.1963 at Bombay. This diary written by the Maharaja on the advise of one Dr. Patel, to clear the contradictions and doubts in his personal life, expresses his feelings and draws a clear picture of his experiences and perception of life. It also shows the background in which the Maharaja was brought up and his interests and relationships, which he shared with his family members, employees and his personal staff. The diary written by the Maharaja in the days when he was quite young demonstrates that he was educated like a prince should be, and had a particular liking for nature and music. A few passages of this diary proved by Shri Sant Prasad Misra, PW-1 running into 77 pages written by the Maharaja in his hand are quoted as follows:-
"On this day, the 14th of August, I have started to write as desired by Dr. Patel. It is afternoon and in the ampligram I am listening to Sachs' Brandenburg Concerto. I am fascinated, as always, by the rhythm and the beauty of all music, and Bach is no exception. He has beauty in his mind and grace in his every note. I don't know why I have always preferred orchestral music to vocal; the later is a school to which I have never responded with any great ferver. The weather is cloudy and overcast, and there is a laden pall over everything- a sort of uniform pewter montage. Yesterday on my arrival in Rewa from Allahabad, I discussed in detail the various points ment my father's statue with General, K.L. and Lall J. We settled quite a few points. I was in a good mood and no part of the discussions were marred by any controversial points of view. Of course had this been the case I should most probably have withdrawn into the "shell' which Dr. Patel has now made me aware of! As he says it is this "wretched fear of rejection" which is responsible for so many things in my life; I feel confident now to some extent that a time will come when I shall really conquer this major handicap. Sub-consciously I must always have been aware of this factor, but without having been able to pin- point it or to comprehend it in any way. Quite often when this "fear of rejection" is set up in my mind, I have been vaguely aware of its happening, but have never till now, been able to know it for what it is in reality. I am astonished at the idea that something which happened when I was three should or indeed could, have such a potent and lethal effect all through my life, uptill now, but now that Dr. Patel has explained it all so clearly, I not only understand and comprehend but am even becoming actively aware of this particular reaction when different situations start to trigger it off. At least to know one's enemy is half - way to a prospective victory. I imagine! It has started to drizzle now- I see all manner of reflected light on the stone pairing in the garden. It is a source of never- failing surprise to me to think of how many different sheds and textures can come and go, depending on extraneous factors like light, rain, sun and so forth, upon practically every kind of surface, be it animate and alive or dead and lifeless. Colours and angles of light can make or mar- a shaft of sun can make of even the dullest and most prosaic article a thing of imperishable beauty, if only for a fleeting second in eternity.........." (A-45/3-4).
"And talking about moods, I also find that I have quite a tendency towards mild and momentary irritation in small matters of everyday insignificance. This irritation is purely- usually- caused by some small matter; perhaps something forgotten by some servant, some petty matters of a similar nature, of either omission or commission in the day-to-day routine of work. These matters quite often irritate me and I can become really annoyed if I do not quickly take steps to check this rising annoyance (which, nine times out of then, I do at once!) The degree of annoyance of this particular nature varies, also with the person responsible for the mistake; a person whom I do not particularly like, or, especially, a servant whom I suspect of either laziness, carelessness or forgetfulness- when such a servant makes mistakes the degree of irritation is quicker in its onset and greater, also, in intensity. Also a servant whom I know for a fact is timid or unduly frightened of me could easily be a victim- more easily to this petty irritation, because I suppose I have, to some extent, a tendency to bully people, who are unduly frightened or apprehensive........."(A-45/5)
"Do I live the kind of life that I prefer to lead- cloistered and environmentally confined- because I am by nature sensitive, or am I sensitive because of the cloistered life I lead? This is an interesting peculation just brought into my mind because of the rapt concentration with which I am listening at the moment to a Schuman Concerto which brought on a train of thought which I cannot now recollect. Obviously, the sort of life I lead by preference must lead to some degree of introspection and self-analysis, because on the whole I prefer the type of solitude which can only be broken by circumstances and individuals whom I myself permit and desire to do so. There must be no question of anybody or anything being allowed to break into my environmental "walls" without my so wishing it and actively permitting it. As long as this holds good in its entirety, I am happy and reasonable content and quite undisturbed......"(A-45/7)
"I have just received a message from Rewa that Her Highness and Baby would like to come this evening, and have said that after 5.30 will be all right, as I am going to watch a foot-ball match from 4.30 to 5.30. Richard and Daird are both playing, and I want to see what sort of game the former plays. I have seen Daird playing frequently, but never Richard. I want to make up a really good team of Rewa boys for a foot-ball affair. Perhaps Richard might be one of the players in this team, though I rather doubt it so far........"(A-45/8-9)
"The weather is very similar to yesterday which, considering the time of the year, is not surprising! I have next to me, as I write this, an incense stick of pleasant fragrance and inspiring perfume! What beautiful lighting one sees when the sky assumes this particular pewter hue; the flowers all glow with a hidden, dull fire, and red appears to be particularly dramatic in this light. Dr. Patel wants me to start painting as a sort of therapeutic recreation, but I have not the faintest idea of this subject, nor indeed any knowledge of it. I know very well what sort of paintings I like- nature studies and landscapes and flower studies, and what I absolutely and totally abhor, which is modern paintings and the modern surrealistic style. But there, it is possible that my lack of appreciation of this particular form of art makes me view it with a somewhat jaundiced eye! Another facet of myself which comes to mind is my tendency towards impatience. I am unusually quick in doing things and in the performance of day-to-day routine tasks- for example in dressing and sharing and so forth, and when I see somebody being slow and tardy in any work, or even somebody being slow in the uptake it always annoys me, and I try to hurry the fellow up. Quickness and neatness of work, plus proof of real application to work are the main qualities that I look for in a servant, and these qualities hold great favour in my eyes. Strangely enough, however, I myself lack this same gift of application in so many ways! I will start something new with the greatest zeal and with enormous enthusiasm, but after a while these lendable qualities start to fizzle out, and my enthusiasm disappears. The obvious result of all this is that drop whatever subject happened to have generated all this energy at the time- the World of Lost Causes-?! I trust this will not happen with my writing although I have a shrewd suspicion that I have nothing to worry about on this score!........"(A-45/10-11).
"I have just received a note of great consideration and niceness from Her Highness, which has put me in charity with the world- not that I ever was out of charity, but these little things go a long way towards oiling and lubricating the machinery of social usage and, indeed, of life and living in general; at least this is an idea I have always held. To me, particularly such things have great value and mean a lot, and they can go a long way to improving and stimulating my mood of the moment.
Having switched from a 1966 Parker 75 to a 1942 Sheaffer, I have again come back to the former, and am now thinking of trying out my favourite pen, the Parker 521 which Bunny gave me some years ago for my birth-day........"(A-45/11)
"This morning is a morning of overcast skies and drizzle again, with a faint mist in the distance. Mist is always associated in my mind with mystery and things sensed but not seen. It fascinates me and always, when it is really thick, almost awes me, in some ways. The birds in my garden, undaunted by the rain and the clouds alike, continue their melodious bird- song. They ask for nothing from us callous humans, and yet how much pleasure and surcease they give us, at least to those of us who have the ears to hear their melodies and the hearts to appreciate them. Truly unselfish generosity, asking nothing in return for the bounty they shover upon us. It reminds me of "the pelican in her piety"- a phrase out of Heraldry, which is a subject in which I dabble from time to time. The female pelican tears the flesh from her own breast to feed her hungry fledglings, hence the "piety" part of this heraldic phrase! There is something stirring and magnificent in the study of heraldry- it recalls the Age of Chivalry, when knights "sans peus et sans reproche" used to bestride their mettlesome chargers and sally forth in search of damsels in distress and awaiting succour, or world gallop towards fearsome, fire- breathing dragons and lop off their heads, and win, by such deeds of velour the hand of the fair maiden they had worshipped up till that moment, only from afar! King Arthur, the "Siege Perilous", the Quest of the Holy Grail, of these and their like are the tales of ancient knights, kings and queens made and it is a heady wine indeed. And throughout these ancient legends the subject and the over-riding importance of Heraldry is woven like a constant thread running through all this scintillating magnificence. An inspiring and spirited subject indeed, is Heraldry! And I have often wondered, just for interest, where, if at it still exists, the Holy Grail now is- is it in some secret recess in some ancient church, say in Jerusalem, or is it in some mystic, unknown place, guarded by equally mystic and holy guardians. Cruscant splendour and awe- inspiring light before which the heard would almost cease its function and upon which one could gaze only on bended knee and bereft of all awe adoration and reverence- blinding light and almost terrifying in its sheer purity. The very cup out of which the saviour drank at the Last Supper. Shades of Mallory, my goodness-!! Maisoui! Religion and religious beliefs are indeed strange and potent facets of human life- and here I am turning myself into a Woolworth philosopher, marblean-!! And, likewise, ma fois-!!......"(A-45/14-15)
"I am listening just now to Germanis rendering of one of the Bach fugues and a toceata, at the Royal Festival Hall. The organ is truly a magnificent instrument, and Germani certainly plays it as if he lacs it, which one supposes must actually be the case, naturally I always feel that great music like this brings out so many of my suppressions, and I know positively that nothing relaxes my mind as does music of this type. I feel almost transported at the sheer artistry both of the great composers as also their great exponents, who make these wonderful recordings in what I am sure must be a spirit of reverence and instinctive understanding of what the composer was trying to express. I am particularly fond of Beethaven, and I think I have practically all his available recordings- at least such recordings as are available in India, which implies, as I know to my cost, a very limited repertoire indeed, on the whole. There is so much life and verve in Beethaven, so much joy of hiring and exuberance, coupled with a fantastic sense of rhythm and timing that he literally leaves me spellbound on occasions. Take, for instance, the Ninth- it is almost something out of this world. I have a very strongly developed sense of rhythm, and a fantastically true ear for notes and music as a whole, and these are probably the main reasons for my passion for all great music.........."(A-45/17).
"I am basically and essentially a creature of habit, and in every phase and aspect of my life and way of living, it is very obvious. I get used to certain places to sit in and certain timings for my daily routine, from the timiest details thereof to the most important, and I dislike any change whatsoever in these personal agendas and time-tables. I sit in certain places at certain times, and do other things at other times, but when I pause to consider the fact, I find that my timings during the course of the whole day are almost identical with those of so many, many days, weeks and even months preceding. I wonder whether this is a good thing, or a bad thing? Whichever it is, it is the way that suits me and which I vastly prefer. The same thing applies to all the little knick-knacks with which I am invariably surrounded......"(A-45/18).
"The idea of a pen flying over the paper to "keep pace" with the speed of writer's thoughts is as stupid and absurd as it is impossible, unless either the pen happened to be jet propelled (and therefore out of the control of the writer) or the writer happens to be an imbecile of the first water. This is, however, how the dam- fool yanks have advertised their parker's 75 pen, with which I am now writing. It has a "sculpted grip" for the fingers, and is beautifully constructed and perfectly finished article of writing in every way sterling silver too!......." (A-45/19).
"And now I come to a very important chapter of my life - Me wrought with the greatest possible significance and pregnant with significance! "Pregnant" is actually the operative word too, in more senses then one because the matter refers very intimately to pregnancy. To be specific, the whole thing starts from pregnancy! In the March of 1959 when I was on one of my frequent trips to Jala, just after my illness, Her Highness wrote me a letter from B'bay to say that she was expecting a child! I was not really as moved and stunned as I might have been for various reasons, all of which are already known to Dr. Patel. As a matter of fact there was already a loud and sustained clamour for a child to be borne to us; a successor to the line, and all the usual gaff of a similar nature. So when I received this extraordinary communication; and after some thought, I came to the conclusion that all told, it was not a bad idea, because the birth of a child would completely still this noise, anxiety and clamour. Beyond that I am afraid I did not consider further aspects very seriously. The reason Her Highness gave me to understand for this "Parthenogenesis" was that the pregnancy was the result of some religious "Jap" performed by her in B'bay- an explanation, which is so utterly absurd and impossible of belief that it left me entirely unimpressed and unbelieving of its veracity. As I have just said my only idea was that here was something in the nature of a sort of windfall; an incident that would solve the problem of a "successor' and still all the plangent clamour around us! With this as the overriding reaction in my mind at the time, I wrote back to Her Highness to give her "go ahead" and to let nature take its course- until she had received my reply she was naturally terribly worried and apprehensively uncertain of what my reaction would be to so singular a situation. But when I spoke to Her Highness on the telephone she was far happier and her mind was set more at rest over the whole matter. Then after about three weeks she returned to Rewa, and I set about bruiting abroad "glad news", with settle embellishments and hints and natural, general reaction was one of increasing and incredulous joy and jollity! The day she arrived Her Highness and I had a long talk and I told her that I had accepted the situation she had faced me with, and with henceforth the subject of her conception and pregnancy was one that we should eschew entirely; furthermore that apart from the two of us no third person, should ever know any more about this matter,- a proposition, which she needless to say agreed with entirely..........." (A-45/49-51).
"Dr. Patel wants me to let my mind wonder back into the past sometimes- abreaction he calls it. So now whenever I can think of something from the past; from my childhood or early youth, for instance, I will attempt to write it down so clearly as I can remember it. Unfortunately, however, my recollection of my past is, on the whole, extremely hazy, and I can recollect precious little of the early years of my life, barring of course, a few salient points and incidents. Some are totally unimportant as far as memory are concerned for instance I can remember my father shooting with a .22 rifle and I can even recall a place in Govindgarh where he was sitting at the time. He was wearing a striped shirt and pyjamas. I think! Then I can also remember running down the passage in my Mother's room and when I see the passage I can recollect the incident very well. Again I can remember trying to divert the attention of my dear, sweet, old Indian guardian from a temple of Hanuman Ji in Govind Garh. On our returns from our drive he used to fold his hand with great reverence to statute as we want past and I used to try and divert his gaze and his attention from this temple- this I can remember quite well! Infact, for many years my vague conception of God was a smallish figure covered with ''sindoor' as are all statute of Hanumanji, sitting there in middle of the sky, and I can clearly recollect this image- this conception of my childhood, and there are quite a few more in my memory of a similar nature, but they all appear to me to be quite without any significance as far as my practical purposes are concerned!!! I can clearly visualize the actual sight of the first tiger I fired at - and missed! - at the age of 13 and then of my first tiger- duly shot - at the same age; how he was standing, how he came out and how he fell when shot. I can recollect quite a few incidence after 1936, but very few comparatively before 1936. About early days in Switzerland for instance, I remember one of my English guardians falling down while skiing and breaking his rib. I can remember to a foolish little song of the same period which my Indian tutor and I used to sing in St. Moritz, in the woods. Like this and in this way I can remember only a small snippets of my life although all these memories are only small and varied in their character and importance, as far as I can view and recollect them. There appears to be nothing of any importance or significance to the subsequent years of my life among those early memories but Dr. Patel will be the best judge although I imagine! One incident I can recollect very well is saying good bye to my Mother before I left for my first trip to Europe- just the actual leave taking part of it that is I remember the room, and clothes she was wearing and also my English Nurse was standing in a certain door waiting for me to go to her; This I can remember so very well. Then my return to Rewa from Europe, I remember seeing my mother standing in a certain place in the Zenana- in the Fort- and I can point out the spot where she was standing although I cannot recollect the route by which I was taken to reach the spot........"(A-45/65-67).
"Upon consideration, I think the English I was taught to speak and to write and the English in which I even think, is just about as good as English can possible be, and I am unboundedly grateful to those, who made this an accomplished fact. My nurse, my governesses, my guardians and my tutors, they were all responsible for this, collectively, and to all of them I owe so deep a debt of gratitude that I will never be able to repay it. They all combined with my truly illustrious Parents to make of me what I am to-day. Where I have lived up to their collective expectations in life, the fullest credit goes to them all and where I have failed to do so or where I have "fallen by the way side". I realise too well that this has been entirely my own shortcoming, and inspite of their arduous and conscientious efforts......." (A45/73-74).
103. In the cross examination Shri Pushpraj Singh stated that he studied at Panchmarhi, Bombay and then at Jabalpur for some time, and then went to San Francisco at a place called San Raefle for a Crash course in Urban Management. He had also learnt music there and had also joined the music classes of Ustad Ali Akbar Khan. He, however, could not get any regular diploma or degree. At Jabalpur he studied at Cross George School and then in Saint Elyses College from where he passed B.A. Examination from Jabalpur University. During his stay at Bombay his mother used to live with him and the father visited them very often. The Maharaja mostly lived at Rewa fort and had also developed an outhouse known as Khakhari Kothi, which is 18 kms. away from Rewa. He was fond of ''yog' and ''adhyatm' for which he found the atmosphere at Khakhari to be conducive. The witness, however, stated that his father's parliamentary office was at fort in Rewa, which is also the office of the trust and that all their family deities, temples and that his father's library was in Rewa fort.
104. The witness stated that he has seen the original will for the first time on inspecting the documents in the Court with the help of his counsel. The witness admitted that a general power of attorney was executed by his father in 1986 in favour of Shri Rama Shankar Mishra, Shri S.R. Khare and Shri Sri Nath Singh for day to day affairs for filing income tax returns and dealing with Municipal Board. This, however, had no connection with the sale of part of Rewa House at Bombay. The counsel for the witness objected to the personal questions, which were put to the witnesses regarding his marriage and whether his father had attended the marriage. He, however, admitted that in 1993 he was permanently staying at Rewa and was living at Lakhauri Bagh, which is the property of his mother.
105. A careful study of the documentary and oral evidence led by the parties establishes that the Maharani did not always live with the Maharaja, and that in his later years she was not present on most of the occasions when he was treated at Bombay and at Delhi. At the time of V.P. Shunt operation Dr. Tureel had requested for seeking her consent. The witness Shri Pushpraj Singh, DW-1 could not give the details of the treatment of the Maharaja, as is given by Dr. Ram Gopal Singh and that on a question about the cause of death of Maharaja, the witness stated that his mother was looking after the Maharaja and that he was quite busy as Member of State Legislature and had gone to get the State plane at Delhi when his father died. These relations, however, in my opinion are not of much relevance for the purposes of finding out the due execution of the will. In this case apart from the unnatural bequest of the ex-ruler of a State, giving away the major portion of his estate to Maharaja Gulab Singh Juedeo Charitable Trust settled only forty one days before the execution of the will in favour of the strangers to the family as trustees, the real issue is the due execution of the will.
106. The suggestions given by Shri Navin Sinha for which the Maharaja excluded his son Shri Pushpraj Singh and mentioned him only once in his will, is not proved by the evidence led by him. The diary (paper No.A-45) from which the passages have been quoted extensively shows that the Maharaja expressed some veiled doubts but had reconciled them with Maharani. There may have been some differences between the husband and wife but there is no trustworthy evidence on record to show that he did not treat his son with the affection due from a father. Paper No.A-31 is a document written on official letter head of palace, Rewa (M.P.) local dialect and is claimed to be written by Late Laxman Prasad Misra on the dictation of the Maharaja. Shri Laxman Prasad Misra died during the pendency of the suit. His son stated in his examination-in-chief that he discovered the document namely paper Nos.A-19, A-20, A-21 and A-31 after the death of his father. The signatures at the bottom of each page of this 10 page document again appear to be put in the same manner in which the signatures are appended on the will and are not identifiable. The words in the signatures of Maharaja cannot be deciphered. The document was read out and appears to be written in a bad taste. The diary of the Maharaja (paper No.A-45) reflects his personality and character. It is unbelievable that he would have dictated or given instructions to write such a nasty language against his wife and son. He always addressed his wife as Her Highness and treated her in great respect. It appears that Shri Laxman Prasad Misra, his driver, who had won his confidence, prepared the document by himself to support the will. The document in any case has not been proved as the witness did not state it is in handwriting of his father or that his father had told him that it was written on the dictation or instructions of the Maharaja.
107. An assessment of the evidence led by the propounder on whom the burden had shifted to prove the will, shows that the propounders have failed to prove the execution, attestation and registration of the will. The propounders have not led satisfactory evidence to establish that on the date of execution of the will, the Maharaja was in sound and disposing state of mind and that he understood the nature and effect of the disposition and had put his signatures to the document by his own free will.
108. The propounders had played an active part in execution attestation and deposit of the will with the Registrar. Though the attesting witnesses have stated that the Maharaja signed before them and that they appended their signatures in the presence of Maharaja, and that the execution and attestation was made in the presence of the Registrar, the statement of Shri Balram Prasad Dubey, the Sub-Registrar does not support them. The Deputy Registrar did not state in his examination-in-chief or cross-examination that the Maharaja and the witnesses had signed the will in his presence. The attesting witnesses and the Deputy Registrar stated that there were about 8-10 persons present at the time of execution and attestation of the will but that no one except the attesting witnesses deposed that they had seen the Maharaja put his signatures on the will in their presence.
109. Shri Gyanendra Singh, PW-4 clearly stated in his examination-in-chief that when the Maharaja signed from pages 1 to 14 on the will, all the persons namely Dr. R.P. Srivastava, Shri J.P. Misra, the Registrar, the Deputy Registrar and some servants were present. Dr. Rajendra Prasad Srivastava, the other attesting witness also made the same statement but the Deputy Registrar did not state that the Maharaja had signed the will in his presence. He has simply stated that the Maharaja handed over the envelope to him in a sealed cover and in his presence he had only signed on the envelope.
110. The signatures on the will are shaky and doubtful and do not match with the admitted signatures of the Maharaja on the documents namely on the Maharaja Martand Singh Juedeo Charitable Trust and his diary.
111. Dr. Ram Gopal Singh, PW-2 has given vivid details of the Maharaja's medical condition. He, however, significantly omitted to state about his medical condition in January, 1993 and specially on 05.1.1993, when the will was executed. The Maharaja had suffered from cancer of urinary bladder and granuloma of large intestine. A V P Shunt was installed, to drain the excess fluid from his brain. The Consultant Neuro Surgeon had reported as long back as on 08.2.1991 that the Maharaja is unable to fully realize the pros and cons of V P Shunt operations under general anesthesia and had requested for consent of his wife. On 05.7.1993 Dr. K.T. Dholakia refused to operate on him for hip replacement as the Maharaja was a high risk patient and that surgery could result in complications. The report of the Medical Board dated 01.6.1993 and the Advocate Commissioner in the suits filed by the Maharaja through his next friend Maharani Smt. Praveen Kumari for taking him outside Rewa for treatment clearly established that he was disoriented, confused and was only occasionally responding to relevant questions. Was it possible for the Maharaja in this medical condition, to understand the contents of the will? The attesting witnesses did not state that the will was read out to him before he executed the same.
112. The Maharaja was brought up under the care of nurses, governesses and tutors. He upbringing as a Prince had made a very sensitive and upright person. His writing in his diary, gives out a complete picture of his personality. He was born a prince and lived as Maharaja. He had the best legal advise available to him from eminent counsels like Shri Nani K. Palkhiwala. He was a Member of Parliament from Rewa and in that position it is highly doubtful that he would have engaged the services of a totally unknown lawyer, close to Dr. Sajjan Singh with whom his friendship or association has not been proved. There is no evidence on record to show that Shri B.M. Gupta, Advocate was ever engaged by the Maharaja as a lawyer and that he had come to Rewa or the Maharaja had gone to Bhopal to instruct him to prepare the will, which runs into several pages and contains details of his properties, shares, servants and trusts. The same lawyer had drafted a trust deed three months before the execution of the will making Dr. Sajjan Singh as a trustee, which was given a lion's share of properties. There is absolutely no reason on record nor any suggestion was given by the counsel for the propounders, for settling a trust and bequeathing all the properties to the trustees. The bequest, as such, is clearly unnatural and highly doubtful. The Maharaja was proud and possessive of his heritage. He could not have, except for a very strong reason, gave away a large share in his properties to the trustees, who are more or less strangers to his family. The evidence on record is not sufficient to prove the will, nor has satisfied the conscience of the Court. The propounders have failed to remove the suspicious circumstances surrounding the will. I am not satisfied, from the evidence produced on record, including the statement of the witnesses, who deposed before me, giving an opportunity to watch their demeanor that the Maharaja could have executed such a document as his last will.
113. The findings on issue Nos.1 and 2 are returned against the plaintiffs and issue No.3 is decided in favour of defendants. It is held that the will dated 05.1.1993 was not duly and validly executed by late Maharaja Martand Singh Juedeo. It is not proved that he was in a sound and disposing state of mind to understand the nature, contents and effect of the alleged will dated 05.1.1993, on the date it is alleged to be executed. The will was not prepared on his instructions and appear to be prepared as a result of a fraudulent act of the executors and other interested persons in maneuvering circumstances.
114. In view of the findings on issue Nos.1, 2 and 3 it is not necessary to decide issue No.4, which in any case is a matter, which was required to be taken up only after it is proved that the will is duly executed.
115. With the findings on issue No.1, 2 and 3 in favour of the defendants, the plaintiffs are not entitled to any relief claimed in the testamentary suit. The suit is dismissed and the interim orders are discharged. The costs of the proceedings are quantified at Rs.50,000/-, to be paid by the plaintiffs to the defendants.
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