Ajit Singh and Others vs Mahabir Prasad Singh and Others

Arun Tandon, J.—The present first appeal from order was dismissed vide order dated 16th August, 2010. The reasons for which are being indicated below in this order.

This is Respondents'' First Appeal From order filed u/s 299 of the Indian Succession Act, against the order dated 6th April, 1995 passed by the District Judge, Jhansi in misc. Case No. 54 of 1992, granting letter of administration in favour of the applicant i.e. Respondent no1.

The facts in short giving rise to the present First Appeal From Order are as follows:

An application u/s 278 of the Indian Succession Act, 1925 (hereinafter referred to as the ''Act, 1925'') was filed for letter of administration being issued in favour of Mahabir Prasad Singh. The application was filed before the District Judge, Jhansi, and was registered as Misc. Case No. 54 of 1992. It was alleged that Sri Har Narain Singh, the father of the applicant, Mahabir Prasad Singh had executed his last will dated 23rd June, 1991. A copy whereof was enclosed with the application. Sri Har Narain Singh expired on 16/17th October 1991 after the attaining the age of 83 years. Har Narain Singh left behind applicant, Gyanendra Singh as his sons, Madhuri Devi Singh and Jayanti Devi Singh as his daughters. Mother of the applicant had pre-deceased the father. On the basis of the will executed by Har Narain Singh, the applicant claimed that he was entitled to all the movable and immovable properties left by Har Narain Singh including his shares in the agricultural holding.

The application was contested by opposite parties Nos. 4 to 7 (Appellants in the present first appeal from order), who are grand-sons of Har Narain Singh and it has been stated that ancestral property was partitioned during the life time of Sri Har Narain Singh. The applicant got his 1/3 share partitioned in the joint family property and was living separately. The will set up by the applicant was forged. Reference was also made to a registered will executed by Har Narain Singh in favour of opposite parties Nos. 4 to 7, present Appellants dated 29th December, 1990. On the basis of the said registered will, the opposite parties Nos. 4 to 7 claimed their right over the property of Har Narain Singh. It was stated that the alleged unregistered will set by the applicant dated 23rd June, 1991 could not have cancelled the registered will dated 29th/31st December, 1990.

The trial court after considering the evidence brought on record found the will date 23rd June, 1991 to be genuine, on the basis of testimony of Madhuri Devi Singh and Jayanti Devi Singh recorded that the will dated 23rd June, 1991 bears the signatures of Har Narain Singh. The plea of relationship between Mahabir and Har Narain Singh being strained and Har Narain Singh being unhappy with the applicant during his life time, because of partition suit being filed had been believed. Reliance placed upon the partition decree for the purpose, was not accepted as against the partition decree, an appeal was initially filed by Gyanendra Singh brother of applicant on behalf of Har Narain Singh but it was subsequently withdrawn on an application filed by Har Narain Singh. The trial court further recorded that the opposite parties could not substantiate by material evidence the allegation that between the date of execution of the will and subsequent to the date of death of Har Narain Singh, applicant himself had moved certain applications before the Municipal Board, Gursarain for mutation of names of all the sons and daughters of Har Narain Singh, inasmuch as the applications so filed were not brought on record.

The contention raised on behalf of the Appellants that the earlier registered will dated 19th December, 1990 executed in favour of opposite parties by Har Narain Singh could not be cancelled by the disputed will dated 23rd June, 1991, has been rejected by the trial court after recording that the opposite parties have hopelessly failed to prove the due execution of the will dated 29th December, 1990, inasmuch as the only witness of the will namely, Lachhi Ram was not found to be an independent/impartial witness. Even otherwise, a finding has been recorded that subsequent will dated 23rd June, 1991, even though unregistered will supersede the registered will dated 29th December, 1990. For the purpose, the Court relied upon the judgment of the Hon''ble Supreme Court of India in the case of Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, and upon the judgment of this Court in the case of Rajeev Kumar v. State of U.P. reported in 1979 (5) ALR 151.

With the aforesaid finding, the letter of administration was granted under the impugned order dated 6th April, 1995 by the District Judge, Jhansi.

Challenging the impugned order passed by the District Judge, learned Counsel for the Petitioner vehementally contended that under the will dated 23rd June, 1991, except for the applicant, all other legal heirs of Har Narain Singh have been deprived of any share in the property of late Har Narain Singh, which creates a suspicion qua the will being genuine. Further because of partition during the life time of Har Narain Singh, 1/3 of the property had already given to the applicant and therefore, there was no occasion for any will being executed in favour of the applicant.

Ground Nos. 10 (a) to 10 (d) were read out to the Court for alleging that the will dated 23rd June, 1991 executed by Har Narain Singh was a forged document.

Learned Counsel for the Appellant contended that the earlier registered will executed on 29/31st December, 1990 was in favour of four sons of Gyanendra. However, by means of subsequent will dated 23rd June, 191, which was executed only after six months of the first will, absolutely no property was provided to the sons of Gyanendra Singh or to the other legal heirs. He submits that distance between the place where Har Narain Singh was putting up and the District Court, Jhansi was about 100 kilometres. There was no occasion for the will being executed on Sunday. All these factors lead to suspicion about the execution of the will and therefore, in view of the judgment of the Hon''ble Supreme Court of India in the case of Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, and Seth Beni Chand (Since Dead) Now by L.Rs. Vs. Smt. Kamla Kunwar and Others, satisfactory evidence was essential to dispel the suspicion and the burden in that regard lay on propounder of the will which in the facts of the present case has not been discharged. The Court below was not justified in granting the letter of administration. It is also stated that the execution of the earlier will which was registered could not have been doubted as has been done in the facts of the present case and there could be no suspicion of the same under the subsequent unregistered will.

The legal position as explained by the Hon''ble Supreme Court of India in the case of Gurdial Kaur and others Vs. Kartar Kaur and Others, that if execution of the will is found to be shrouded with suspicion then it is for the propounder of the will to lead satisfactory evidence for establishing the execution of the will.

Judged in the aforesaid legal background, this Court finds that except for Respondent Nos. 4 to 7 to the application, no written statement was filed to the application by Gyanendra Singh the other son of Har Narain Singh and father of Respondent Nos. 4 to 7. Similarly, Madhuri Devi Singh and Jyanti Devi Singh , the daughters of Har Narain Singh filed application No. 36-C and 37-C respectively, wherein they stated that they have no objection if the application of Mahabir Prasad Singh is allowed on the basis of the will dated 23rd June, 1991.

Madhuri Devi Singh, P.W.1 stated on oath that her father Har Narain executed the will in her presence and in the presence of her sister, Jayanti Devi Singh. He had put his signatures in their presence. She further stated that she and her sister, Jayanti Devi Singh have put their signatures on the said will in the presence of Har Narain Singh. She identified the signatures of Har Narain Singh and Smt. Jayanti Devi on the will dated 23rd June, 1991. It was stated that Har Narain Singh was a lecturer in an intermediate college, well educated and he had executed the will voluntarily, at the time when his medical and physical condition was sound. Madhuri Devi Singh was cross-examined at length by present Appellants but nothing could be found, which could discredit her testimony. Specific details qua the date of execution of the will were also disclosed which was found to be natural by the District Judge. Similarly, Jayanti Devi Singh also appeared as P.W.2 and stated on oath that will had been executed by her father in her presence and in the presence of her sister, Madhuri Devi Singh. The facts stated by Jayanti Devi Singh were more or less identical to those stated by Madhuri Devi Singh, in her deposition. The District Judge considered the testimony of opposite parties Nos. 1 and 2 and after such examination and after considering the documents brought on record came to a conclusion as noticed above. I

In these set of facts and in light of the finding recorded by the trial court which had the occasion to consider the demeanour of the witnesses produced in the case. This Court has no hesitation to record that due execution of the will dated 23rd June, 1991 had been established. It is no the case of the Appellants that any legal requirements qua due execution of the will have not been satisfied. In the totality of the circumstances, this Court has no hesitation to record that the will dated 23rd June, 1991 had been duly executed. The grounds raised for contending that the will is forged, appear to be mere conjectures of the present Appellants.

The District Judge has further rightly held that law does not require that the will should be registered. He has further rightly held that a subsequent unregistered will can supersede the earlier registered will after relying upon the judgment of Hon''ble Supreme Court of India in the case of Ishwardeo Narain Singh (Supra) and of the High Court in the case of Rajeev Kumar (Supra).

This Court finds hardly no ground to interfere with the impugned order passed by the District Judge dated 6th April, 1995.