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PETITIONER: SMT. DEOKALI

       Vs.

RESPONDENT: NAND KISHORE & ORS.

DATE OF JUDGMENT:       24/04/1996

BENCH: SEN, S.C. (J) BENCH: SEN, S.C. (J) SINGH N.P. (J)

CITATION:  JT 1996 (5)   243        1996 SCALE  (3)769

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Sen, J.      The validity  of a  will executed by one Shivnarayan is under  challenge   in  this  case.  Shivnarayan’s  wife  had predeceased him.  He had  two daughters Ramkali and Deokali. Ramkali had  six  daughters  and  three  sons-Nand  Kishore, Santosh and  Prakash. Santosh and Prakash were minors at the time of  execution of the will. By the will Shivnarayan gave all his  properties to  the three sons of his elder daughter Ramkali.  The   will  was   executed  on  2.5.1972.  Shortly thereafter, sometime  in May,  1972,  Shivnarayan  was  shot dead. Banwari  Lal, the  husband of  Deokali end his brother Rudra were charged with murder. Banwari Lal was acquitted by the court but his brother Rudra was, convicted and sentenced to rigorous  imprisonment for life by the Sessions Court. It appears from  the facts  recorded by the court of Additional District Judge  and also  the High  Court that Ramkali after her marriage  started living  with  her  father  Shivnarayan along with  her husband  Balaprasad. All  her children  were born in  the house of Shivnarayan. Shivnarayan had also made arrangements for getting one son and one daughter of Ramkali married.  Ramkali   and  her  husband  used  to  look  after Shivnarayan in his old age.      Deokali, the  younger daughter  after her marriage used to live with her husband Banwari Lal in the husband’s house. Banwari Lal  and Deokali  quarrelled with Shivnarayan at the time of the marriage of Ramkali’s daughter and demanded half share of  the property  of Shivnarayan.  The people  of  the village assembled  but Shivnarayan refused to give any share of his property to them. He said that he had kept Ramkali in his house and that Ramkali and her children had looked after him. He  was not  satisfied with  the conduct of Deokali and her husband and he will not give any share of his properties to them.      Be that  as it  may. Shivnarayan  was murdered  shortly after the  execution of  the will. There were disputes about

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the properties left behind by Shivnarayan.      In  the   will  which   was  produced   in  the  court. Shivnarayan had stated.      After marrying  my  elder  daughter      Ramkali  immediately  in  the  same      year (about  25 years ago) kept her      with me  along with  her husband my      son-in-law to  serve me. After this      I have  married my younger daughter      in a prosperous (well-to-do) house.           The elder daughter Ramkali has      got 3  sons and  5  daughters.  The      elder  son   whose  name   is  Nand      Kishore, after getting him educated      got married  by me. The younger son      Santosh Kumar and the third son who      is about  3 months  old and who has      not been given any name as yet both      of them  are minors. I am very much      happy and  glad with  all  of  them      i.e. by  the Khushamad (Service) of      the daughter  and  son--in-law  and      NATI (Grandsons),  I have  believed      that in taken of their service I am      writing this  will with full senses      and in good health, in the presence      of the  Panches,  whose  signatures      are given  belows in  respect of my      entire   moveable   and   immovable      property which  includes houses and      land in  village Manwara  and Pehra      Haar whatever  is  there  including      all rights thereof in favour of all      the three  Natees (Grandsons),  who      are  the  sons  of  elder  daughter      Ramkali. If  I will  live alive for      some more  days, I  myself will get      Mutation recorded in the Govt. If I      die, then  after my death they will      be owners  of  my  entire  property      like me.  All the  3 brothers  will      get their  respective names mutated      in the  land plot  numbers. In  the      same  way   will  get  their  names      recorded in  the  houses  and  will      take their  possession, and the two      brothers who are still minors, till      they do  not attain majority, their      mother,   Ramkali    shall   remain      SARPRAST   (Guardian)    of   their      property (Share).           The younger  daughter  Deokali      is prosperous  in  her  house.  Her      husband and  her father-in-law  are      persons having sufficient money and      they earn,  they have no difficulty      and the  elder daughter Ramkali has      no  other   source  of   livelihood      except me.  From earlier time since      when I  had decided that  will give      my property  to Ramkali  only. So I      am making  owners the three sons of      Ramkali of my entire property in my      full senses and sound health and do      hereby execute  this  will  in  the

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    presence of the Panches, so that in      case of  my death if any dispute by      any one  claiming himself  my  heir      may arise in respect of my property      then the  Court should not take any      cognizance of  the same  and the  3      sons of  Ramkali  may  continue  to      enjoy the  fruits of  the  property      belonging to me."      Sometime in  1977 Deokali  filed a suit in the Court of Civil Judge,  First Class,  Chattarpur, for declaration that the will  in question was invalid and not properly executed. She prayed  for declaration of cancellation of the will. The trial court,  however, held  that the  will was  genuine and dismissed the  suit. The  first appeal  being  Civil  Appeal No.23A of  1982 preferred by Deokali against the judgment of the  trial  court  was  also  dismissed  by  the  Additional District Judge, Chattarpur.      In the  second appeal  before the  High Court,  it  was contended  that   there  were   at  least   six   suspicious circumstances  because  of  which  the  genuineness  of  the alleged  will   should  have   been  disbelieved.   The  six suspicious circumstances were: (1) The  will was  written in  two pages. The first page did not bear  any signature of Shivnarayan nor of any one of the witnesses. (2) The  first page of the will was written on a plain paper but the second page was written on a stamped paper. (3) The  writer of  the will  did not  cone forward  to give evidence. (4) The will alleged to have been executed by Shivnarayan on 2.5.1972 was produced for the first time in 1975. (5) The  will was  allegedly proved on evidence of witnesses who were close relations of the respondents. (6)  Murder   of  Shivnarayan   by  the   relations  of  the respondents only  some days  after the execution of the will was very suspicious.      Both the  trial court  and the first appeal court found that the  signatures of  Shivnarayan and  the witnesses were genuine. The  signatures were  on the  second page only. All the three  courts took the view that this was not an unusual practice. So  far as  the will  having been  written on  two pages, one stamped and the other unstamped, the courts noted that the  witnesses were  examined on this point. One of the witnesses Baijinath  had stated that when the will was being written it  could  not  be  completed  on  the  first  page, therefore a  second page  which was  not a stamped paper was used. Both  the trial  court and the first appeal court held that there  was nothing  unusual about this practice. In the second appeal  this view  was not  disturbed, The court also took note of the fact that the witnesses had signed the will and some  of the  persons in  whose presence  the  will  was written had  given testimony. Having regard to this fact the failure of  the writer  to justify the will did not make any difference. It  has also  been  denied  that  the  will  was produced for the first time in 1975. From paragraph 4 of the written statement  it appears that the existence of the will was known  to Deokali  and her  husband Banwari  Lal in 1972 itself. It  was also  held that making only the relatives as witnesses to  the will  is also  not an  unnatural practice. Every person  wants to  make arrangement  for disposition of his property with the knowledge of his relatives.      The High  Court affirmed the judgment and decree passed by the Additional District Judge Chattarpur dated 24.12.1982 after  considering   all  the   arguments  advanced  by  the

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appellants. The  facts of the case and the evidence produced were gone  into at  great length  by the Additional District Judge. On  a review  of the  findings of  fact and  evidence brought on  record, he  affirmed the  finding of  the  trial court. The  High Court  also examined the facts but declined to interfere  with the  concurrent  finding  of  the  courts below. What  was alleged to be suspicious circumstances were also examined by the High Court. It does not appear that the High Court  has committed  any error in law in coming to its decision. The case was decided basically on facts. We see no reason to interfere with the judgment of the High Court. The appeal is dismissed. There will be no order as to costs.