Judgment:
Pradeep Nandrajog, J.
1. On 20.03.2008 the matter was reserved for judgment. On the said date, appellants were directed to file written submissions within a week. Respondent was granted a week's time to respond. I waited till 31.03.2008 for the written submissions to be filed by the appellant. Unfortunately, appellant has chosen not to file the written submissions thereforee I have no option but to decide the present appeal with reference to the grounds urged in the memorandum of appeal which alone were projected at the hearing.
2. The question involved in the appeal is whether the finding returned by the learned trial court that the will dated 17.04.1973 Ex.PW 1/1 is the last legal and valid testament executed by the Late Smt Mela Devi @ Iqbal Devi is correct.
Backdrop Facts
3. Smt. Mela Devi @ Iqbal Devi (hereinafter referred to as the testatrix) died on 10.02.1987 leaving behind her two married daughters namely Smt. Sudershan Kumari Handa and Smt. Pushpa as her heirs.
4. Smt. Sudershan Kumari was the natural daughter of the testatrix and Smt Pushpa was the adopted daughter of the testatrix.
5. Testatrix was the owner of the property bearing Municipal No.K-16, East of Kailash, New Delhi (hereinafter referred to as the property).
6. Smt. Sudershan Kumari Handa always lived in Delhi after her marriage whereas Smt. Pushpa never stayed in Delhi after her marriage.
7. On 04.05.1987 Smt. Sudershan Kumari Handa (hereinafter referred to as the propounder) filed a petition under Section 276 of the Indian Succession Act, 1925 seeking probate of a will purported to have been executed by the testatrix on 17.04.1973.
8. Along with the probate petition, two identically worded affidavits dated 21.04.1987 executed by Mr. Jagdish Pershad Jain and Mr. Joginder Pal Mathur respectively were also filed. During evidence affidavit executed by Mr. Joginder Pal Mathur was exhibited as Ex.PW 1/2 while the one executed by Mr. Jagdish Pershad Jain was marked as Mark Z. In said affidavits, it was deposed that on 17.04.1973 the testatrix who was in a state of sound disposing mind executed the will in their presence. That the contents of the will were explained to the testatrix by her husband Mr. Basheshar Nath Puri in Punjabi language and that the testatrix appended her signatures on the will after understanding its contents.
Will
9. The will dated 17.04.1973 Ex.PW 1/1 is a computer typed document and consists of 4 sheets. It has been typed in English language.
10. The will bears the purported signatures of the testatrix at 3 points A-1, A-2 and A. Point A-1 appears in the first line on the first sheet where the date 17th April, 1973 has been filled in hand in a blank space. Point A-2 appears towards the end of the third sheet where a correction has been made. Point A appears at the end of the will at the place where the word 'Executant' is typed. The purported signatures of the testatrix have been appended in devnagri script.
11. The will is an unregistered document.
12. The will has been witnessed by Mr. Jagdish Pershad Jain and Mr.Joginder Pal Mathur.
13. Under the will, the testatrix has bequeathed the property in favor of the propounder. However, a life interest in respect of the first floor of the property has been vested in the favor of the other daughter Smt. Pushpa and her husband Mr. Khairati Lal Malhotra.
14. The will contains a reference to an earlier will executed by the testatrix on 26th April 1967 and revokes the same.
Objections To The Will
15. Smt. Pushpa and Mr.Khairati Lal Malhotra filed objections to the will. Relevant portion of the objections reads as under:
Preliminary Objections:
2. ...The will in question was never validly executed by late Smt. Mela Devi alias Iqbal Devi. The petitioners and her husband got the alleged will typed out without any instructions of the alleged testator and obtained her signatures fraudulently. As such the alleged will does not show the free will and intention of the alleged testator.
3. .In case, it is found that the alleged will was signed by the deceased Smt. Mela Devi, the same was not only got signed by the petitioner and her husband fraudulently, with undue influence, and coercion, but they also deliberately concealed and unauthorisedly took possession of and kept the same till ten days after the death of Smt. Mela Devi..
On Merits:3. ...the petitioner and her husband have procured the signatures of the deceased fraudulently, which are also not genuine.. It is pertinent to mention here that late Smt. Mela Devi was an illiterate lady. She could hardly sign in Hindi..
16. From a perusal of the afore-noted objections it is clear that the defense set up by the objectors was that the petitioner and her husband obtained signatures of the testatrix on the will by playing fraud upon her. That the signatures of the testatrix on the will are not genuine. In the alternative, it was pleaded that if the will indeed contains the genuine signatures of the testatrix, same were obtained by the petitioner and her husband by exercising undue influence and coercion upon the testatrix.
Evidence Led By The Propounder
17. Besides examining herself as PW-3, the propounder examined two other witnesses namely Mr. Joginder Pal Mathur PW-1 and Mr. Inder Pal Singh PW-2.
18. Mr. Joginder Pal Mathur PW-1 was examined by the propounder to establish the due execution of the will by the testatrix and the capability of the testatrix to append her signatures on the documents. He deposed that he was a tenant in the property between the years 1958-1979. That on 17.04.1973 the testatrix called him to the ground floor of the property where she used to reside and asked him to witness the execution of the will. That Mr. Jagdish Pershad Jain who was the neighbour of the testatrix was the second attesting witness to the will. That the will was executed at about 5 PM. That the testatrix was in a state of sound disposing mind at the time of the execution of the will. That at the time of the execution of the will he, his wife, testatrix, her husband and Mr. Jagdish Pershad Jain were present. That before signing the will the testatrix told all the persons present that she has understood the contents of the will. That the testatrix appended her signatures at point A on the will in his presence as also in the presence of the other attesting witness. That thereafter he and the other attesting witness appended their signatures on the will. That he used to receive rent receipts containing the signatures of the testatrix. That he has no knowledge about the preparation of the will. That the husband of the testatrix had explained the contents of the will to the testatrix. That he does not remember whether the testatrix had appended her signatures on the points A1 and A2 appearing on the will in his presence.
19. Inder Pal Singh PW-2 who was a clerk in the Punjab and Sindh Bank, Kailash Colony Branch, New Delhi was examined by the propounder to establish the genuineness of the signatures of the testatrix on the will. PW-2 proved an account opening form dated 01.07.1975 containing the signatures of the testatrix as Ex.PW 2/1. He however deposed that the signatures appearing on the form Ex.PW 2/1 were not appended by the testatrix in his presence.
20. Propounder in her testimony as PW-3 deposed that the will dated 17.04.1973 is the last legal and valid testament executed by the testatrix. That the will was found in the trunk of the testatrix which was opened by her in the presence of her husband and both the objectors. That the testatrix was an illiterate lady but she could sign in Hindi language. That the testatrix was in a state of sound disposing mind and was enjoying good physical health till her death. That the relations between the testatrix and her sister Ms. Pushpa were cordial.
Evidence Led By The Objectors
21. On behalf of the objectors, only the objector Mr. Khairati Lal Malhotra was examined as RW-1. He deposed that the testatrix was an illiterate lady. That the husband of the testatrix had very little knowledge of Urdu language but was otherwise uneducated. That the testatrix had executed a will in the year 1967 as per which the rear portion of the ground floor of the property and front portion of the first and barsati floor of the property was bequeathed in favor of his wife. That the will which was executed by the testatrix in the year 1967 was duly implemented and given effect to. That he had no knowledge about the will dated 17.04.1973 till he received the summons in the present case. That the propounder never opened any trunk after the death of the testatrix in his presence or in the presence of his wife. That in the year 1987 the front portion of the first and barsati floor of the property were in the possession of two tenants who were paying rent to the testatrix till her death. That the health of the testatrix was normal in the year 1973.
22. A letter dated 04.03.86 written by the propounder to Smt. Pushpa was also filed by the objectors. Propounder admitted having written the said letter to Smt.Pushpa. The original and photocopy of the said letter were marked as Ex.RW 1/1 and Ex.PW 3/RX2 respectively. In the said letter propounder has informed Smt.Pushpa that the testatrix is not a state of sound disposing mind and that her mental condition is deteriorating day by day. Relevant portion of the letter dated 04.03.1986 is being quoted hereinunder:
You would be distressed to learn that our dear mother has been reduced to a skeleton and even her mental faculties have deteriorated beyond redemption. Her looks are hollow. She behaves insane for example tears her clothes; beats children.
23. A sale deed dated 9.4.1958 was also filed by the objectors to establish that the will does not contain the genuine signatures of the testatrix. The propounder admitted that the said sale deed contains the signatures of the testatrix. The sale deed was marked as Ex.PW 3/RX1.
Impugned Order
24. After noting and considering the pleadings, evidence and arguments of the parties vide impugned order dated 01.04.1998 the learned trial court has held that the will dated 17.04.1973 is the last legal and valid testament executed by the testatrix and that the same was executed by the testatrix in a state of sound disposing mind and thus granted letters of administration in respect of the will in favor of the propounder.
Law Relating To Wills
25. 'Will' as defined under Section 2(h) of the Indian Succession Act means 'the legal declaration of the testator with respect to his property which he desires to be carried into effect after his death'. The essential characteristic of a will, as is well known, is that it is a mere declaration of an intention so long as the testator is alive, a declaration which may be revoked or varied by the testator during his lifetime; it is a disposition that requires the testator's death for its consummation and is but ambulatory or without fixed effect until the happening of this event. The document is a will if it contains specific words of bequest to come into effect after the death of the testator.
26. A will is a solemn document. By it, a dead man entrusts to the living to carry out his wishes and since it is impossible that he can be called either to admit or deny his signatures or to explain the circumstances in which it was executed, duty of care is cast on the shoulders of the court while considering a probate case.
27. The rules governing the propounding of a will are two. First, the onus probandi lies in every case upon the party propounding the will and he must satisfy the conscience of the Court that the instrument so propounded is the last will of the testator. Second, if a party actively participates in the execution of a will under which he takes a benefit, it is a circumstance to excite the suspicion of the Court and calls upon the court to be vigilant and zealous in examining the evidence on record.
28. The strict meaning of the term 'onus probandi' is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding the will. It is in general discharge by proof of capacity and the fact of execution from which the knowledge of and assent to the contents of the instrument are assumed.
29. The nature of proof required to prove a will is not different from those required to prove other documents except the requirement of attestation prescribed under Section 63 of the Indian Succession Act. The proof is to be tested on the usual satisfaction of a prudent mind. What distinguishes a will from other document is that the testator would not be available to testify the same as his last will. This introduces an element of solemnity in the decision. Even then the Court has to proceed with the enquiry in the same manner as is done in respect of any other document. The propounder is called upon to show by satisfactory evidence that (1) the will was signed by the testator in the presence of two attesting witnesses; (2) at the relevant time he was in sound and disposing state of mind; (3) he understood the nature and effect i.e., the content of the disposition; (4) he put the signature to the document of his own free will. The onus of the propounder can be said to be discharged on proof of the above essential facts.
30. However, in a case surrounded by suspicious circumstances viz.: the disposition may appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or there may be indications that the disposition was not the result of the testator's free will and mind, such suspicious circumstances make the initial onus very heavy; and unless satisfactorily discharged, the Court would be reluctant to treat the document as the last will of the testator. Where the propounder takes a prominent part in the execution of the will conferring benefit upon him, that is a suspicious circumstance attending the execution of the will; the propounder is required to remove the doubt by clear and satisfactory evidence. In other words the propounder must satisfy the conscience of the Court that the document is the last will and testament of the testator.
31. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even if there is no such plea but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. If the propounder is able to satisfy the conscience of the Court, the Court shall grant the probate, even if the will cuts off, wholly or in part, near relations. It is the will of the testator that is reflected in the will. Being the testator's own property, he has the liberty to deal with it absolutely. It is not for the Court to find out justification or equity or otherwise in the action of the testator. It is not for the Court to make it fair or to sermonize. It is not for the Court to refuse the grant on account of the fact that the disposition is not just and fair or is unnatural or improbable when the conscience of the Court is clear about the proof of the execution of the will on the face of the evidence, satisfactorily sufficient, to remove the suspicious circumstances.
32. As the wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. thereforee, it is wrong to suppose that those qualities of mind should be possessed by the testator in the highest degree, position or to the same extent as before the illness in order to enable him to validly make his will. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property; memory to remember the relations and persons normally having claims on his bounty and has also a judgment. As observed by their Lordships of Privy Council in the decision reported as Judah v. Isolyne , the fact that the testator was unwell when he executed the will is a long way from saying that he had no testamentary capacity. The testator does not have to be found in perfect state of health to have his will declared valid. It is sufficient to prove that he was able to outline the manner in which his estate was to be disposed of.
33. The general principles governing the presumption of due execution and attestation are, if a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim 'omnia presumuntur rite esse acta' applies, unless it is clearly proved that the will in fact, was not duly executed. The Court of probate has long being accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced where no suspicion of fraud has occurred.
34. Where once it has been proved that a will has been executed by a person of competent understanding, the burden of proving that it was executed under undue influence is on the party who alleges it. The Privy Council laid it down in the decision reported as Mst. Gomtibai v. Kanchhedilal that undue influence in order to invalidate a will must amount to coercion or fraud. Its extents must be established and it must also appear that it was actually exercised on the testator.
35. The burden of proving undue influence is not discharge by merely establishing that the person had power unduly to overbear the will of the testator. It must be shown that in any particular case that power was, in fact, exercised and that it was by means of exercise of that power that the will was obtained. This was observed by the Calcutta High Court in the decision reported as Chandra Majumdar v. Akhil Chandra Majumdar : AIR1960Cal551 . Relying upon the decision of the Hon'ble Supreme Court in the decision reported as Naresh Charan Das Gupta v. Paresh Charan Das Gupta and Anr. : [1955]1ITR1035(SC) it was observed that it is elementary that law does not regard or charactize every interest which is brought to bear upon a testator as undue. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favor and if the testator retains his mental capacity and there is no element of fraud or coercion, the will cannot be attacked on the ground of undue influence. Not all importunities are undue influence. While making said observation, the Hon'ble Supreme Court in Naresh Charan Das Gupta's case (supra) quoted the observation of Lord Penzance in the decision reported as Hall v. Hall 1868 (1) P & D 481 'but all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like - these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.... In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one else's'.
36. The golden rule in interpreting a will is to give effect to the testator's intention as ascertained from the language, which he has used. The overriding duty of a Court is to construe the language which the testator has in fact employed giving due weight to all the words and rejecting none to which a meaning can reasonably be assigned. The Court is entitled to put itself into the testator's arm chair to construe a will and to form an opinion apart from the decided cases and then, to see whether those decisions require any modification of that opinion and not to beckon by considering as to how far the will in question resemble other will upon which the decisions have been given. The proposition that the will has to be read as a whole cannot be disputed. Whether there is a will on the basis of the document, the probate Court certainly will not proceed to consider as to whether or not the disposition of the property was good or bad. The primary duty of the probate Court is to see first whether prima facie, the document constituted a will.
Grounds Urged in The Memorandum of Appeal
37. Under-noted grounds have been urged in the memorandum of the appeal:
A Attesting witness's deposition that he does not remember whether signatures appearing at the points A-1 and A-2 in the will were appended by the testatrix in his presence casts a serious suspicion about the due execution of the will by the testatrix.
B The admission of the attesting witness PW-1 in his testimony that the signatures appearing at the points A-1 and A-2 in the will are not identical with those appearing at point A in the will and that of the propounder that the signatures of the testatrix appearing on the sale deed Ex.PW 3/RX1 and the will Ex.PW 1/1 are not identical casts a doubt upon the authenticity of the signatures of the testatrix on the will.
C The fact that no evidence was led by the propounder to establish who had appended the date mentioned in the first line of the will casts a suspicion upon the genuineness of the will.
D The fact that no evidence was led by the propounder to establish the preparation of the will casts a suspicion upon the genuineness of the will.
E In the two affidavits dated 21.04.87 Mark Z and Ex.PW 1/2 executed by the attesting witnesses to the will it has been deposed that on 17.04.1973 at about 5.30 PM they were called by the husband of the testatrix to his residence to witness the due execution of the will whereas PW-1 has deposed that the will was executed at about 5.00 PM. The said contradictions pertaining to the time of the execution of the will has not been considered by the trial court.
F Propounder in her testimony has deposed that the testatrix was in a state of sound disposing mind and was enjoying good physical health till her death whereas in the letter dated 04.03.86 Ex.PW 3/RX2 admittedly written by the propounder to objector Smt. Pushpa it has been stated that the testatrix is not in a state of sound disposing mind. The trial court did not consider this aspect of the matter.
G The fact that the testatrix never mentioned about the execution of the will during her lifetime is a circumstance throwing suspicion upon the execution and genuineness of the will.
H The testimony of the objector Khairati Lal Malhotra RW-1 that the husband of the testatrix who according to the attesting witness PW-1 had explained the contents of the will to the testatrix had little knowledge of Urdu language but was otherwise an uneducated person was ignored by the trial court.
I The testimony of the attesting PW-1 that he cannot identify the signatures of the other attesting witness to the will has been ignored by the trial court.
J Learned trial court has wrongly held that no will was executed by the testatrix in the year 1967 when the will Ex.PW 1/1 itself contains a referance to the will executed by the testatrix in the year 1967.
K The contradictions pertaining to the execution of a will by the testatrix in the year 1967 in the testimony of propounder has been ignored by the trial court.
L The trial court failed to note that there was no reason for the testatrix to make a disproportionate bequest particularly when the propounder had herself deposed that the relations between the testatrix and the objector Smt. Pushpa were cordial.
Discussion
38. A perusal of the impugned order shows that the ground 'A' raised in the memorandum of appeal has not been discussed by the trial court. It appears that the said ground was not argued before the trial court.
39. It is settled law that in case where a ground which was argued before a court has not been considered it is open to the party aggrieved to draw the attention of the court which has passed the order by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not. (See the decision of the Hon'ble Supreme Court reported as Daman Singh and Ors. v. State of Punjab and Ors. : [1985]3SCR580 ).
40. Notwithstanding the afore-noted proposition, I proceed to consider the ground 'A'.
41. In the decision reported as Smt Krishna Bera and Ors. v. Sri Prabir Pramanaik and Ors. (2007) 2 CLT 484 (HC) it was held that there is no denying that an attesting witness would have imperfect recollection particularly if the date of execution is long prior to the evidence of the attesting witnesses being received.
42. In the decision reported as Senthil Kumar v. Dhandapani : AIR2004Mad403 an attesting witness to the will was unable to state the exact month and date on which the will was executed. Attention of the court was also drawn to certain discrepancies in the testimony of the attesting witness. Nothing that the attesting witness was examined nearly 4 years after the execution of the will, the court held that it cannot be expected that the attesting witness would be able to dispose all the details about the will accurately. Further noting that the attesting witness was otherwise able to establish that he was one of the attester to the will and that he saw the testator signing the will in his presence, the court refused to disbelieve his testimony.
43. From the afore-noted two judgments the legal principle which emerges is that it is natural for an attesting witness to have an inaccurate memory and inaccuracy would not by itself cast any serious aspersion on his testimony unless the contradictions are material.
44. In the instant case the will was executed on 17.04.73 and PW-1 was examined on 16.02.95 i.e. 22 years after the execution of the will. It is thereforee quite natural for PW-1 to have forgotten whether the signatures on points A-1 and A-2 were appended by the testatrix in his presence.
45. Pertaining to ground 'B' it is relevant to note that three defenses were set up by the objectors. First, that the signatures of the testatrix on the will were obtained by the propounder and her husband by playing fraud upon the testatrix. Second, that the signatures of the testatrix upon the will are not genuine. Third, that the signatures of the testatrix upon the will were obtained by the propounder and her husband by exercising undue influence and coercion upon the testatrix.
46. It seems that the objectors were shooting arrows in the dark in the hope that at least one of the arrow would hit the bull's-eye.
47. Objectors have miserably failed to prove that the signatures of the testatrix on the will were obtained by the propounder and her husband by playing fraud upon her.
48. As already noted, the burden of proving undue influence is not discharged by merely establishing that the person had power unduly to overbear the will of the testator. It must be shown that in any particular case that power was, in fact, exercised and that it was by means of exercise of that power that the will was obtained. Nothing of the sort has come on record.
49. A feeble attempt was made by the objectors to prove that the will does not contains the genuine signatures of the testatrix.
50. Admissions made by the attesting witness and the propounder in their respective testimonies of variations in the signatures of the testatrix at different places was pressed into service by the objectors to establish that the will does not contain the genuine signatures of the testatrix.
51. Suffice would it be to note that neither the attesting witness nor the propounder is a handwriting expert thereforee their opinion as to variations in the signatures of the testatrix at different places is of no use to the objectors.
52. No handwriting expert was examined by the objectors to compare the signatures of the testatrix appearing at different places and thereupon comment upon the genuineness of the signatures of the testatrix upon the will.
53. Section 73 of the Indian Evidence Act, 1872 empowers a court compare the admitted signatures of a person with his disputed signatures and thereupon decide the genuineness of the disputed signatures.
54. In respect of stated admission of the attesting witness that the signatures of the testator at points A, A-1 and A-2 were not the same suffice would it be to state that a visual comparison of three signatures with naked eye reveals that the said signatures are near identical. It would be relevant to note that the ink used to pen the signatures is the same. Pen used is the same.
55. With reference to the admission of the propounder that the signatures on the sale deed Ex.PW 3/RX1 and the will Ex.PW 1/1 are different suffice would it be to state that the said sale deed was executed on 09.04.1958 whereas the will was executed on 17.04.1973 i.e. 15 years after the execution of the sale deed Ex.PW 3/RX1. It is trite that with age variations are bound to occur in the signatures of a person. I further note that the signatures of the testatrix on the will and the account opening form Ex.RW 2/1 upon which the testatrix had appended signatures on 01.07.1975 i.e 2 years after the execution of the will are identical.
56. I thereforee find no merit in the ground 'B' raised by the objectors.
57. As regards ground 'C' suffice would it be to note that the attesting witness PW-1 was cross-examined at length by the objectors. No question was put to him as to who had appended the date mentioned in the first line of the will. In such circumstances, I find no merit in the ground 'C' raised by the objectors.
58. In so far as ground 'D' pertaining to absence of evidence regarding the preparation of the will is concerned, suffice would it be to note the following observations of the Hon'ble Supreme Court in the decision reported as Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande : AIR2003SC3109 ..The learned District Judge has observed that Smt. Yamunabai was very old when she executed the will and she was hard of hearing and was unable to walk. He further observed that Chhaya Dighe who typed the will and one Shri Tiwari, Advocate, who was present at the time of preparation and execution of the will, were not examined and these facts together created a doubt regarding the authenticity of the will. As discussed earlier, in view of Section 63 of Indian Succession Act and the proviso to Section 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witness is examined to prove the will. That this had been done in the present case by examining PW 2 Raghunath Govind Sogale cannot be disputed. No infirmity of any kind had been found in the testimony of this witness. Chhaya Dighe merely typed the will and she is not an attesting witness nor it is anybody's case that Smt. Yamunabai had put her thumb impression on the will in her presence, thereforee, her examination as a witness was wholly redundant. The mere non examination of the Advocate who was present at the time of preparation or registration of the will cannot, by itself, be a ground to discard the same....
59. Noting the law laid down by the Hon'ble Court in the Ramabai's case (supra), I can safely conclude that the absence of the evidence regarding the preparation of the will is not fatal to the genuineness of the will.
60. Pertaining to ground 'E' i.e. contradictions in the testimony of the attesting witness I note the decision of the Hon'ble Supreme Court reported as Durga v. Anil Kumar (2005) 11 SCC 189.
61. In Durga's case (supra) examining the genuineness of the will in question, the Hon'ble Supreme Court having found that two witnesses to the will deposed that the testator was in sound disposing mind at the time of execution of the will and he had executed the will after understanding the contents thereof and that the witnesses had put their signatures on the will in presence of the testator and in presence of each other, held that, minor contradictions in their testimony cannot put to any doubt the execution of the will.
62. The contradiction pointed out in the appeal are that in the two affidavits dated 21.04.87 Mark Z and Ex.PW 1/2 executed by the attesting witnesses to the will it has been deposed that on 17.04.1973 at about 5.30 PM they were called by the husband of the testatrix to his residence to witness the due execution of the will whereas PW-1 has deposed that the will was executed at about 5.00 PM.
63. It is already noted that the PW-1 has been examined 22 years after the execution of the will. PW-1 surely could not have remembered the exact time of the execution of the will after a period of 22 years. thereforee the mere difference of hour between the time of execution of the will in the testimony of PW-1 and the affidavits Ex.PW 1/2 and Mark Z are not at all a material contradiction. It is not even a minor contradiction.
64. Pertaining to ground 'F' it is relevant to note that the courts have time and again taken judicial notice of the fact that in India parties and witnesses have tendency to exaggerate their case. (See the decision of the Hon'ble Court reported as Rai Singh v. State of Haryana : 1971CriLJ1738 ).
65. The maxim 'Falsus in uno falsus in omnibus' is not applicable in India. While analyzing the evidence, the courts are required to separate grain from the chaff, truth from the falsehood. The court has to sift the evidence with care in each case and on full consideration of all the relevant material circumstances to come to a decision, which part of the testimony of the witness to accept and which to reject. (See the decisions of the Hon'ble Supreme Court reported as Gurcharan Singh and Anr. v. State of Punjab : 1956CriLJ827 , Sucha Singh and Anr. v. State of Punjab (2003) 5 Supreme 445, Narain v. State of Madhya Pradesh : (2004)2SCC455 and Gubbala Venugopalaswamy and Ors. v. State of Andhra Pradesh : 2004CriLJ2557 ).
66. It is quite possible that the propounder picked up a rumour/gossip that a will is held to be not genuine if the testator is found to be not in a state of sound disposing mind during his lifetime and thus deposed that the testatrix was in a state of sound disposing and enjoying good physical death till her death.
67. Notwithstanding that the objectors have not raised a ground in the memorandum of appeal that the letter dated 04.03.1986 Ex.PW 2/RX2 establishes that the testatrix was in a state of sound disposing mind at the time of the execution of the will I proceed to consider the same with a view to foreclose the issue once for all.
68. The will was executed on 17.04.1973. The letter Ex/PW 3/RX2 was written by the propounder on 04.03.1986 i.e. 13 years after the execution of the will. thereforee it can safely be held that the letter Ex.PW 3/RX2 throws no light upon the physical or mental condition of the testatrix at the time of the execution of the will for the reason it was written 13 years after the making of the will.
69. Additionally I note that the objector in his testimony as RW-2 has deposed that the health of the testatrix was normal in the year 1973. Testatrix died in the year 1987 i.e 14 years after the execution of the will.
70. Noting the testimony of RW-1 as also the fact that the testatrix had outlived the execution of the will by a period of 14 years it can safely be presumed that the testatrix was in a state of sound disposing mind at the time of the execution of the will.
71. Pertaining to ground 'G' suffice would it be to note that it is not at all uncommon for a testator to keep the will executed by him a secret from his heirs and relatives during his lifetime. More often than not a will surfaces after the death of a testator.
72. A feeble attempt was made by the objectors to taint the will by establishing that the testatrix had executed the will without understanding its contents. PW-1 in his testimony as also the other attesting witness in his affidavit Mark Z had deposed that the contents of the will were explained to the testatrix by her husband Mr. Bashseshar Nath Puri. Objector in his testimony as RW-1 had deposed that Mr.Bashseshar Nath Puri had very little knowledge of Urdu language but was otherwise an uneducated person. In this context, it was contended that how could Mr. Bashseshar Nath Puri who was himself an uneducated man was able to explain of the will typed in English language to the testatrix.
73. In this regards, besides the mere testimony of the objector no evidence was led by the objectors to establish that Mr. Bashseshar Nath Puri was an uneducated man. No question was put to the propounder who was the daughter of the Mr. Bashseshar Nath Puri and was examined much after the evidence of PW-1 regarding the educational qualifications of her father.
74. In such circumstances, I find no force in the ground 'H' raised by the objectors.
75. As regards ground 'I' it is necessary to carefully scrutinize the testimony of PW-1. He had deposed that the other attesting witness Mr. Jagdish Pershad Jain had appended his signatures on the will in his presence. He however expressed his inability to identify the signatures of Mr. Jagdish Pershad Jain appearing on the affidavit Mark Z. He had also deposed that other than seeing Mr. Jagdish Pershad Jain appending his signatures upon the will he has never seen him signing.
76. As already noted PW-1 was examined 22 years after the execution of the will. Obviously PW-1 could not identify the signatures of Mr. Jagdish Pershad Jain appearing on the affidavit Mark Z whom he had seen signing only once and that too 22 years ago.
77. Pertaining to ground 'J' suffice would it be to note that the issue of the stated will executed by the testatrix in the year 1967 is a non issue because no such will ever surfaced in the trial.
78. Pertaining to ground 'K' i.e. certain alleged discrepancies in the testimony of the propounder regarding the execution of a will by the testatrix in the year 1967 suffice would it be to note that no such will was proved.
79. No doubt the will Ex.PW 1/1 does refers to an earlier will stated to have been executed by the testatrix in the year 1967. Merely because the propounder of the instant will disputed the said fact would not render testimony of the propounder to be suspect for the reason it is quite possible that the testatrix never informed her about having executed a will in the year 1967.
80. Pertaining to ground 'L' suffice would it be to note that the courts have repeatedly held that the disproportionate nature of a bequest is not a suspicious circumstance for the reason the whole idea behind the execution of a will is to alter the natural line of succession.
81. A court of probate does not make a will of its own. The court is not the testator. Its function is to see if the will propounded by the propounder was duly made and executed by a capable testator. In order to do that if the court of probate has to sit in the arm-chair of the testator, it has also to sit there with the mind of the testator keeping in mind the surrounding circumstances and context of the testator's family and other environment very much in the forefront in its deliberations.
82. In the instant case it can be very well be presumed that the fact that the objector Smt Pushpa was her adopted daughter coupled with the fact that the propounder lived closer to her led the testatrix to bequeath the property in favor of the propounder.
Decision
83. In view of above discussion I concur with the view taken by the learned trial court that the will dated 17.04.1973 Ex.PW 1/1 is the last legal and valid testament executed by Late Smt. Mela Devi @ Iqbal Devi.
84. Impugned order dated 01.04.1988 is affirmed.
85. Appeal is dismissed.
86. No costs.