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PETITIONER: MISRI LAL (DEAD) BY L. RS. & ANR.

       Vs.

RESPONDENT: SMT. DAULATI DEVI & ANR.

DATE OF JUDGMENT:       31/07/1997

BENCH: A.S. ANAND, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Venkataswami. J      The legal  representatives of  the first  defendant and the second  defendant in  Probate Suit No. 26/73 on the file of the  Second Additional  District Judge. Varanasi, are the appellants in  this appeal. The respondents herein had filed the said  suit on  the basis of a Will dated 3.10.72 alleged to have  been executed  by one  Smt. Bhullan  Devi in  their favour. The property in dispute is a house property.      Indisputably the appellants herein are the close agents of the deceased Bhullan Devi’s husband Ram Lal. Likewise the respondents herein belong to a different caste. That appears to be the sheet anchor of the appellants’ case for attacking the genuineness of the Will in dispute.      Broadly put  the objections  raised by  the  appellants before the  Trial Court  for granting Probate were: (a) that the beneficiaries  (respondents herein)  belong to different caste  and   that  the   recital  in   the  Will   that  the beneficiaries were  looking after the needs of the testatrix were absolutely  false and  were without any foundation; (b) that the  testatrix at the time of her death namely 3.10.72, was very old, weak and hard of hearing and was not at all in a disposing  state of  mind; (c)  that there  were  no  good reasons  for  ignoring  the  appellants  and  selecting  the respondents  to  bequeath  the  suit  house;  (d)  that  the appellants and  the family  members were  looking after  the needs of  the testatrix and the respondents taking advantage of their  absence form  the village  at the time of death of testatrix, removed  some blank  papers and  other deeds from the testatrix’s  house and using the same forged the Will in question and  (e) that the testatrix was literate person and she used  to sign  papers, but  the Will  in question  bears thumb marks which were not the thumb marks of the testatrix.      In  support  of  their  application  for  Probate,  the respondents (applicants  before the  Trial Court) inter alia examined  one  attesting  witness  (P.W.1)  and  the  scribe (P.W.2). The  evidence let in on the side of the respondents through P.Ws. 1 and 2 and their own to support the pleadings for grant  of Probate  was to the effect that the father-in- law of  the respondents  by name  Mahabir was a close friend

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and co-worker of Bhullan Devi’s husband in Railway. The said Mahabir has  given to him free of cost the land on which the suit house  was constructed  by the husband of Bhullan Devi. The  husband   of  Bhullan  Devi  died  in  the  year  1950. Thereafter, the  relationship between  Bhullan Devi and that the families of appellants was anything bin cordial. Bhullan Devi  was   not  looked  after  by  her  relations  and  the respondents being  their neighbours  and old  family friends after Bhullan Devi’s comforts as if she was their mother-in- law. It  is also  brought on  record by evidence that on the death of  Ram Lal, Bhullan Devi’s husband, the father of the defendants (grandfather  of appellants  1,2 and 3 and father of appellant  4) moved  the Court  for obtaining  Succession Certificate claiming  to be  the sole heir to succeed to the estate of  Ram Lal but on objection he withdrew the case. It is also  on record  that Bhullan Devi issued a Public Notice claiming to  be the  sole heir  to her  deceased husband. In that capacity  she has  executed a  waqf deed  in respect of some property  and also  alienated another  property.  Those alienations were  not questioned  by the  appellants herein. The attesting  witness and  the scribe  as P.Ws 1 and 2 have also clearly  spoken about  the true  and valid execution of the Will as well as to the sound and disposing state of mind of the  testatrix at  the time of the execution of the Will. It was also brought on record by evidence that Bhullan Devi, testatrix, while  executing the waqf deed had not signed but put her thumb impression.      The appellants  in support of the objections as set out above have also let in oral evidence. The Trial Court framed three issues  on the  basis of  the pleadings and considered the  merits   in  the   light  of  the  pleadings  oral  and documentary evidence  and held  that the  Will  was  validly executed  and   the  respondents   (applicants)   were   not successful  in   clearing   the   suspicious   circumstances surrounding the  execution of  the Will.  In coming  to that conclusion the  Trial Court seems to have been influenced by the fact  that  the  applicants  before  it  belonged  to  a different by the fact that the applicants before it belonged to a  different caste  and there  were no  good reasons  for ignoring the  close relations like the appellants. The Trial Court also  was not  prepared to  accept the evidence of the scribe and the attesting witness.      Consequently the Trial Court dismissed the Probate Suit filed by the respondents herein.      Aggrieved by  the  judgment  of  the  Trial  Court  the respondents preferred  First Appeal  No.171/75 in  the  High Court of indicature at Allahabad      The learned  Single Judge by its judgment dated 12.4.78 on a  proper analysis  of the  evidence oral and documentary disagreeing with  the findings of the Trial Court found that the Will  in question  was genuine  and the same was validly executed and  the respondents  herein were  entitled to  the Probate prayed  for in  the  Trial  Court.  Accordingly,  he allowed the appeal.      Before  us   Mr  Pramod  Swarup,  the  learned  counsel appearing for  the appellants reiterated the same objections raised before the Trial Court.      After going  through the  judgments of  the Trial Court and the  Appellate Court as well as the oral and documentary evidence placed  before us, we are of the view that the High Court has  not exceeded  its appellate  jurisdiction in  re- appreciating the  oral evidence to upset the findings of the Trial Court.  The  learned  Judge  while  dealing  with  the objection regarding  the thumb impression has stated that it is not  unnatural for  an old  person to prefer to put thumb

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mark instead of signature. In addition to that as we noticed earlier, he  testatrix herself in executing the waqf deed in respect of other properly has conveyed the title by affixing her thumb  impression only.  Therefore, the  doubt regarding execution of  the Will  on the basis of thumb impression has been rightly overruled by the High Court.      Likewise, the objection that the beneficiaries belonged to a  different caste  and  the  testatrix  would  not  have preferred them  was also  rightly answered  by  the  learned Judge on  the  basis  of  the  evidence.  That  is  they  as neighbours looked after the comforts of the testatrix at the time of  need and  the appellants  and their  family members never looked  after the  testatrix. It  is also found by the learned Judge  that even during the life-time of testatrix’s husband  they   were  living   separately  away  from  their relations and  after the death of her husband she was living alone and  managing her  own  affairs  without  the  aid  or support of  any of their relations. It was also found by the learned Judge  on appreciation  of evidence that the site on which the  suit house  was  constructed  was  given  by  the father-in-law of  the beneficiaries  free of  cost and  that could have  been one  of the  reason  for  preferring  them. Further  we  have  noticed  earlier  the  legal  proceedings between the  testatrix and  appellants  family  members.  As noticed earlier, the Trail Court disbelieved the evidence of P.Ws 1 and 2, the attesting witness and the scribe. The High Court, however,  on re-appreciation  of  evidence  which  is within its  domain has believed them and found the execution of the  Will as  true, valid  and that  the testatrix was in sound  disposing  state  of  mind.  The  alleged  suspicious circumstances pleaded  by the appellants did not find favour with the High Court.      We find  that the High Court has not exceeded its limit in re-appreciating  the evidence  and consequently reversing the findings  of the  Trial Court to uphold the Validity and genuineness of  the Will.  We agree with the findings of the High Court.      In the  result,  the  appeal  fails  and  the  same  is dismissed with no order as to costs.