Proceeding now to consider the matter on merits, we have already observed that the learned trial Court has found that the will had been duly executed by relying upon the report of the Handwriting Expert and other witnesses. We may mention here that of all kinds of evidence which are admissible the opinion evidence is of the weakest kind The expert evidence has been made admissible under Section 45 of the Evidence Act'which reads as under :
"When the Court is to form an opinion upon a point of foreign law, or of science or art, or as to identity of any legal or physical expressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or on the questions as to identity of any legal or physical expressions are relevant facts.
Such persons are called experts."
28. In the words of Rogers, an expert in any science, art or trade is one who by practice and observation has become experienced therein. An expert, therefore, really means a person who by reason of his training or experience is qualified to express an opinion whereas an ordinary witness is not competent to do so. His evidence is only an opinion evidence which is based on his special skill or experience. In view of the language of Section 45, it is necessary that before a person can be characterised as an expert, it is necessary that there must be some material on the record to show that he is one who is skilled in that particular science and is possessed of peculiar knowledge concerning the same. He must have made special study of the subject or acquired special experience therein. Thus before the testimony of a witness becomes admissible, his competency as an expert must be shown, may be, by showing that he was possessed of necessary qualification or that he has acquired special skill therein by experience. Apart from the question that the report of a handwriting expert may be read in evidence, what is necessary is that the expert should be subjected to cross-examination because an expert like any other witness is fallible and the real value of his evidence consists in the rightful inferences which he draws from what he has himself observed and not from what he merely surmises.
29. Unfortunately in the present case after the report of the Handwriting Experts from either side had been submitted for admission in evidence, a statement was made that their reports may be read in evidence without formal proof. The question arises whether such a report can ipso facto become opinion evidence in the case. It has been urged that even though the reports as a document can be read in evidence but in the absence of the expert appearing as a witness and being subjected to cross-examination, his report alone cannot be treated as evidence much less an opinion evidence. Apart from this even a reading of the report does not disclose that the person who has given the report was really an expert in this particular branch or that he had acquired necessary skill by experience. The letter head on which the report is typed alone will not prove that the person was an expert. There is thus no material on the record to show that the persons who have submitted their reports regarding, the disputed handwriting were qualified as experts within the meaning of Section 45 of the Evidence Act. In a situation like this, the reports were not at all admissible in evidence and the learned trial Court was certainly in error in placing reliance thereon. The experts' evidence is only a piece of evidence and the weight to be given to it has to be judged along with other evidence as evidence of this nature is ordinarily not conclusive. Such evidence, therefore, cannot be taken as substantive piece of evidence but is there to corroborate the other evidence.
Allahabad High Court
Balkrishna Das Agarwal vs Smt. Radha Devi And Ors. on 9 December, 1988
Equivalent citations: AIR 1989 All 133
Bench: N Mithal, K Birla
1. The defendant has come up in appeal against the judgment of III Additional Civil Judge, Varanasi dated 20-8-1979. The plaintiffs suit for partition and for cancellation of a will has been decreed by the court below.
2. How the parties are related can be better appreciated from the pedigree as set out below :
Radhey Lal Smt. Annapurna Devi(diedon -2-55) __________________________|____________________________________ | | | Bal Kishan Das Mohan Lal Ratan Lal (died | (died issuless on 15-12-69 | on 3-3-1945) =Radha Devi | (Plff.1) _______|_________________________________ | | | | | Jagdish Pd. Balbhadra Baldau | Prasad Prasad | ___________________________________|_______ | | | Kaushal Krishna Ashok Kumar Kumar Kumar (deceased (defdt.No.2) (Plff.2) 3-11-1968) = Smt. Chandra Prabha Devi (defdt No.3) _____________________|______________________ | | Ajay Sanjay (defdt.4) (defdt.5)
3. The suit was filed by the widow of Ratan Lal and one of his minor sons Ashok Kumar for separation after partition of their 1/3rd share in House No. K-11/14 and 3/8th share in another house No. K-11/15. It is alleged that property No. K-11/15 was purchased by Radhey Lal through a sale deed dated 9-5-1918 (Ext. 6). Radhey Lal gifted it to his wife and three sons, to each equally, through a registered gift deed dated 16-8-1921 (Ext 7) each getting 1/4th share thereia The other house K-11/14 was purchased under separate sale deeds 2/3rd share therein was purchased from Narain Singh and others on 1-8-1923 (Ext. 8) and the remaining i/3rd from one Ganeshi vide sale deed dated 13-7-1923 (Ext. 9). The sale deeds were in the name of the sons of Radhey Lal, of whom only Bal Kishan was then major, other two being minors. The plaintiffs case is that by a sale deed dated 28-7-1933 Mohan Lal sold his 1/4th share in House No. K/11/15 and 1/3rd share in K-11/14 to his mother who thus acquired 1/2 share in House No. K- 11/15 and 1/3rd share in House No. K-11/14. On the same date viz. 28-7-1933 she executed a will in favour of Ratan Lal bequeathing her entire interest in the two properties including what she had become entitled to as a result of Mohan Lal's sale deed. These two documents are Exts. 10 and 11 respectively. Mohan Lal committed suicide on 3-3-1945 and Smt. Annapurna Devi also departed from this world in Feb., 1955. On her death, Ratan Lal became the owner of 2/3rd share in House No. K-11/14 and 3/4th share in House No. K-11/15. Kaushal Kumar, one of the sons of Ratan Lal had also died during his lifetime on 3-11-1968. His widow and two sons are defendants 3 to 5 while the third son of Ratan Lal is plaintiff No. 2. On the death of Ratan lal his interest in the two houses devolved on the two plaintiffs and on defendants 2 to 5 equally. Accordingly the two plaintiffs became entitled to 3/8th share in House No. K-11/15 and 1/3rd share in House No. K-11/14. This is how the plaintiffs claimed partition of their share in the disputed property. It may be mentioned here that out of the share of Ratan Lal defendants 2 to 5 also got 3/8th and 1/3rd share in House Nos. K-11/15 and K-11/14 respectively.
4. The defendant No. 1 contested the suit setting up a will dated 6-12-1969 in his favour by which Ratan Lal is alleged to have bequeathed his half share in House No. K-11/14 in favour of defendant No. 1. Ratan Lal also admitted therein that he had only 1/2 share in the other house. An application for mutation in the Municipal Corporation was moved by defendant No. 1 but on contest by the plaintiffs, the parties were directed to seek declaration of title from a competent court by order Ext. 12 dated 24-3-1972. The present suit was consequently instituted challenging the will for the reasons set out in the plaint and for partition of their share in, the two houses. The defendants 2 and 3 to 5 have also filed their written statement but it is in support of the plaint allegations.
5. The defence was that property K-11/15 was actually acquired from the funds generated by defendant No. 1 and not by Radhey Lal who had no means at all. The other house was also purchased by defendant No. 1 from his own money although in the sale deed names of all the three brothers was mentioned as its purchasers. He disputed the gift deed by his father that as Mohan Lal had become vagabond and given to easy virtues, the sale deed in favour of their mother was obtained from him on 28-7-1933 with a view to protect it from alienation but it was a sham and fictitious transaction intended to be only on paper and never to be acted upon; that Ratan Lal also fell into evil company and always needed money to satisfy his illegitimate demands and in collusion of Mohan Lal, they misappropriated the gold ornaments deposited by the defendant's wife with their mother Smt. Annapurna Devi. It was alleged that because of his wayward nature Mohan Lal never married and ultimately committed suicide on 3-3-1935. Since Ratan Lal and Smt. Annapurna Devi were both ashamed about misappropriation of ornaments by Mohan Lal, they acknowledged their liability in writing on 16-1-1940. After the death of the mother Ratan Lal felt morally bound by their joint commitment in this regard and because of his great love and respect for Bal Kishan Das, he, of his free will and volition, executed the will on 6-12-1969. According to him the will was a free and conscious act of Ratan Lal which is binding on the plaintiffs as Ratan Lal at that time was in his full senses and understood what he was doing. As for property No. K-11/15 it was asserted that the same had been mutually partitioned leaving the western half portion to Ratan Lal and the eastern half portion to Bal Kishan Das and both are in possession of their respective portions. It is, however, explained that in two Baithaks of the western portion an iron safe and some other articles belonging to defendant No. 1 was stored with Ratan Lal's consent.
6. Duringthetrialofthesuit, defendant's counsel made a statement clarifying his pleadings under Order 10, Rule 2, C.P.C. on 12-12-1977. He stated that partition between Ratan Lal and defendant No. 1 was effected by way of family settlement on 6-12-1969. Prior to this they constituted joint Hindu family; that even at the time of Mohan Lal's death they were joint that although house No. K-11/15 was purchased by defendant No. 1 it was blended with the joint family property and partook the nature of joint family property. The gift deed executed by Radhey Lal in respect of this House K-11/15 was also valid and not bogus.
7. Learned counsel for the defendant No. 1 made another statement under Order 10, Rule 2, C.P.C. on 4-2-1978. The order-sheet, however, wrongly shows Sri I. P. Nagar as a counsel for defendant No. 2. In fact he appeared for defendant No. 1 and the earlier statement was also made by him on behalf of defendant No. 1. According to his subsequent statement although House No. K-11/15 had been purchased in the name of Radhey Lal from the fundsofdefendantNo. 1, yet parties had accepted Radhey Lal to be its true owner. Similarly though House No. K-11/14 had also been purchased in the names of all the brothers from Bal Kishan's money this was also treated as equally owned by all the three brothers. After Radhey Lal had executed the gift, the three brothers became joint owners of both the properties until partition on 6-12-1969. This partition was oral which was admitted by Ratan Lal in his will dated 6-12-1969. In that partition Ratan Lal took a share in property No. K-11/14 by metes and bounds and then bequeathed the same in favour of defendant No. 1 by will.
8. On the pleadings of the parties, the trial Court fixed the following nine issues :
1. Whether the suit is under-valued and the court-fee paid is insufficient as alleged in para 40 of the written statement of the defendant No. 1?
2. Whether Ratan Lal never signed and executed the alleged will dated 6-12-1969 and the said will is a forged one?
3. Whether there was any partition among joint tenants of these two properties on 6-12-69 as alleged by defendant No. 1 as per statement of his counsel under Order X, Rule 2, C.P.C. dated 4-2-78 and was acted upon also? If not its effect?
4. Whether sale deed dated 28-7-1933 executed by Mohan Lal in favour of his mother and the will deed dated 28-7-1933 executed by Smt. Annapurna Devi in favour of her, son, Ratan Lal, were mere purposive documents as alleged in para 24 of the written statement and no transfer of the property thereunder was ever intended to? If so its effect?
5. What is the share of the plaintiffs in the properties in suit?
6. Whether the defendant No. 1 is in exclusive possession of house No. K-11/14? If so its effect?
7. Whether the suit is barred by time?
8. Whether the suit is barred by estoppel and acquiescence?
9. To what relief, if any, are the plaintiff entitled?
9. A large number of documents were also filed from either side but at the time of trial, formal proof of all the documents was waived by the parties except of paper Nos. 164-A, 166-A, 168-A and 169-A filed by the plaintiffs and paper Nos. 455, 457. 463, 466, 252 an 253 filed by the defendant No. 1. The papers of which are formal proof was thus waived also included the two reports submitted by the respective handwriting experts and consequently none of the experts were examined on oath in the Court.
10. The trial Court has found that none of the two properties had been purchsed from the funds provided by defendant No. 1. While house No. K-11/15 belonged to Radhey Lal the other house No. K-11/14 had been purchased by all the three brothers and thus accepted the case set up by the plaintiffs. Although the court found that the will set up in defence had been duly executed yet the same having been obtained by undue influence was held to be invalid and unenforceable. In the face of these findings, the plaintiffs' suit was decreed giving rise to this appeal by defendant No. 1.
11. We have heard the learned counsel for the parties at great length which have thrown up several questions of law and fact. At the very out set it will be mentioned that the entire evidence in the case was recorded by Sri B. R. Singh Civil Judge, while the arguments were heard by his successor who has also delivered the judgment under challenge. The Presiding Officer who decided the suit, therefore, did not have the advantage of seeing the demanour of the witnesses.
12. On the arguments raised by the learned counsel for the parties, two core questions arise first as to the due execution of the will and the other regarding partition of the property prior to the executing of the will on 6-12-1969. The second question regarding partition being a short one may be disposed of first.
13. There are two houses in dispute. Of these house No. K-11/15 purports to have been purchased by Radhey Lal. The stand of the plaintiffs is that Radhey Lal was its owner and later executed a gift deed in respect thereof in favour of his wife and three sons. The property devolved on them not by survivorship but through transfer under the gift deed. It cannot, therefore, be characterised as joint family property in their hands. The defendant on the other hand initially took the plea that he himself was the true owner of this property as it was he who had purchased it with his own money though in the name of his father. In short his plea was that Radhey Lal was merely a Benami owner of the house which really belonged to him. This stand was, however, abandoned by the defendant when his counsel, while clarifying the pleadings under Order 10, Rule 2, C.P.C. stated that this house was always treated to be the property of Radhey Lal which was validly gifted by him on 16-8-1921. In view of this, the character of the property in the hands of defendant No. 1 and Ratan Lal could not be of joint family property. Instead they were co-owners thereof.
14. Similar is the position as regards the other house K-11/14 which had been purchased in the name of three sons of Radhey Lal. Although this house was also initially claimed as his sole property by defendant No. 1 yet in respect of this house also this stand was given up and in his statement under Order 10. Rule 2, C.P.C. the defendant's counsel admitted that this house was treated by the parties as belonging to all the three brothers. In this property also each of them was a co-sharer.
15. These houses are alleged to have been partitioned orally on 6-12-1969. The question arises as to whether any oral partition of this property could be effected? It is only when partition of coparcenary property is involved that an unequivocal and definite indication of intention to separate by a member of the joint family may be enough to constitute a partition. This intention to separate may be manifested either in writing or orally. Law places no obligation on members of a joint family in this regard that the agreement to separate must be in writing. Even if parties only agree in writing to separate without effecting any division as such, no registration is required. However, the above rule is not applicable when partition among co-sharers takes place. When partition of immovable property worth more than Rs. 100/- is effected among co-owners it requires both a written instrument and registration.
16. In the present case the alleged partition dated 6-12-69 was oral and the property was actually divided though not by metes and bounds after actual measurements. Such a partition could not be effected orally and it required a registered instrument to evidence it.
17. Apart from the above, even the date of this alleged partition was not mentioned in the written statement and it was only in the statement under Order 10, Rule 2, C.P.C. this was disclosed as 6-12-69. In his oral testimony, however, Bal Kishan deviated from this version and stated that it had taken place about four or five days prior to the execution of will. Further, in the statement under Order 10, Rule 2, C.P.C., the stand of defendant No. 1 on the manner of effecting partition is also contradictory; while according to the statement under Order X, Rule 2, C.P.C. it was done by metes and bounds but in his oral examination he denied preparation of any map or partition scheme In fact he went to the extent Of saying that house No. K-11/14 was not partitioned at all and Ratan Lal made a bequest of his undivided half share in the house to him by the impugned will. He also categorically denied that any partition had taken place on 6-12-1969 contradicting the statement under Order X, Rule 2, C.P.C. made on 4-2-1978.
18. His entire theory of partition is so full of contradictions that it is not worth believing. His statement that mention of this partition had been made in the will is belied by that document which contains not even a murmer of it. There could be no actual partition until the properties had been valued, measured and demarcated into separate lots. Although at one stage the defendant tried to say that this partition was also acted upon but he had to beat a hasty retreat when confronted with the fact that in some of the rooms which,according to him, had come to Ratan Lal's share articles belonging to the defendant were stored which also included a huge safe.
19. The theory of oralpartition also loses credence if we consider that at the time of alleged partition, no other persoa not even Ratan Lal's family members, is said to have been present. Admittedly Ratan Lal was unwell from before 6-12-1969 and was confined to his own house and. therefore, it is strange that his family should not have been anywhere near. There is nothing in the evidence to suggest that Ratan Lal had taken his children or even his wife into confidence. No explanation is forthcoming as to why he would have agreed to partition the house in a manner that would leave a major part of the accommodation of his share to continue to remain in defendant's possession.
20. All these circumstances strongly make the theory of partition unbelievable as it strongly militates against normal human conduct and we find it difficult to accept.
21. The finding on the question of due execution of the will has been seriously assailed by the respondent both on facts and also on the ground that the learned trial court had erred in relying upon inadmissible reports of the hand-writing expert. A preliminary objection has, however, been taken by the appellant that no cross-objection having been filed against the finding, the respondent could not be permitted to challenge the finding in view of the amended provisions of Order 41, Rule 22, C.P.C. In his support the appellant has cited a decision of this Court in Neki v. Sukh Lal, 1986 (2) Rev Dec 115 where a learned single Judge took the view that it was incumbent for the respondent to file a cross-objection against an adverse finding if he wanted to challenge the same while supporting the decree. It appears that the attention of the learned single Judge was not drawn to an earlier contrary decision in the case Shyam Nath v. Durga Pd., AIR 1982 All 474. In the latter case, the Court took the view that the amended Rule was merely an enabling provision and the aggrieved respondent has the choice to either file a cross-objection or to contest the finding while supporting the decree. In view of these conflicting views, we would like to examine the relevant provision to find out its impact and scope. The relevant portion of the Rule may be quoted as under :
"22. Upon hearing respondent may object to decree as if he had preferred separate appeal -- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also stated that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation : A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
22. While under the first part of the Rule, the respondent is entitled to support the decree not merely on the grounds decided in his favour but even on those grounds that have gone against him, this part, however, does not authorise him to challenge the decree. If the respondent wants to challenge the decree, he must have recourse to the second part of Rule i.e. by way of filing a cross-objection if that part of the decree has not already been challenged by him in appeal.
23. In objects and reasons of Act 104 of 1976 by which the Code of Civil Procedure was extensively amended and which also introduced changes in Rule 22 of Order 41, the reasons given for the proposed amendment were as under :
"Rule 22 gives two distinct rights to the respondent in appeal The first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him, and the second right is that of taking any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case, the respondent supports a decree and in the second he attacks the decree. The language of the rule, however, requires some modification and a person cannot support the decree by asserting that the matter decided against him should have been decided in his favour. The rule is being amended to make it clear.
An Explanation is also being added to Rule 22 empowering the respondent to file cross-objection in respect of a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour."
24. We must then examine whether a party can be said to be attacking the decree or merely supporting it. If we find that the person seeking to support the decree could in fact do so only by attacking it, then he cannot be heared to support the decree and he must do so either by filing an appeal or failing that by way of cross-objection. This incidentally raises the question as to who can file the appeal? All that Section 96 and Section 100 of the Code prescribe, is that an appeal shall lie from every decree. These sections do not prescribe as to at whose instance such an appeal shall lie. It is, however, fundamental in view of the very nature of things that an appeal should lie only at the instance of a person who may be aggrieved by the judgment sought to be appealed against. A party who would benefit from change in the judgment, therefore, would have an appealable interest.
25. What is of importance to note is that the person filing an appeal must have a legal grievance against a decision which had wrongfully deprived him of some thing or affects his title to some thing. In Corpus Juris Secondum Vol. IV this phrase has been defined thus :
"Broadly speaking a party or person is aggrieved by a decision only when it operates directly and injuriously upon his personal, pecuniary or proprietary rights."
26. Keeping these principles in mind, we find that the plaintiffs here had not suffered in any way on account of the judgment since their suit had been decreed, finding on the point of due execution of the will notwithstanding. If the plaintiffs were not aggrieved by the judgment, they could hardly have a cause to file an appeal and for that matter even to file a cross-objection. That being so, the plaintiffs are entitled to support the decree even on those points that have been decided by the judgment under appeal against them. In our view, therefore, the respondent is entitled to challenge the finding on the question of due execution of the will even though a cross-objection in that regard has not been filed. We, therefore, overrule the preliminary objection by the appellant.
27. Proceeding now to consider the matter on merits, we have already observed that the learned trial Court has found that the will had been duly executed by relying upon the report of the Handwriting Expert and other witnesses. We may mention here that of all kinds of evidence which are admissible the opinion evidence is of the weakest kind The expert evidence has been made admissible under Section 45 of the Evidence Act'which reads as under :
"When the Court is to form an opinion upon a point of foreign law, or of science or art, or as to identity of any legal or physical expressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or on the questions as to identity of any legal or physical expressions are relevant facts.
Such persons are called experts."
28. In the words of Rogers, an expert in any science, art or trade is one who by practice and observation has become experienced therein. An expert, therefore, really means a person who by reason of his training or experience is qualified to express an opinion whereas an ordinary witness is not competent to do so. His evidence is only an opinion evidence which is based on his special skill or experience. In view of the language of Section 45, it is necessary that before a person can be characterised as an expert, it is necessary that there must be some material on the record to show that he is one who is skilled in that particular science and is possessed of peculiar knowledge concerning the same. He must have made special study of the subject or acquired special experience therein. Thus before the testimony of a witness becomes admissible, his competency as an expert must be shown, may be, by showing that he was possessed of necessary qualification or that he has acquired special skill therein by experience. Apart from the question that the report of a handwriting expert may be read in evidence, what is necessary is that the expert should be subjected to cross-examination because an expert like any other witness is fallible and the real value of his evidence consists in the rightful inferences which he draws from what he has himself observed and not from what he merely surmises.
29. Unfortunately in the present case after the report of the Handwriting Experts from either side had been submitted for admission in evidence, a statement was made that their reports may be read in evidence without formal proof. The question arises whether such a report can ipso facto become opinion evidence in the case. It has been urged that even though the reports as a document can be read in evidence but in the absence of the expert appearing as a witness and being subjected to cross-examination, his report alone cannot be treated as evidence much less an opinion evidence. Apart from this even a reading of the report does not disclose that the person who has given the report was really an expert in this particular branch or that he had acquired necessary skill by experience. The letter head on which the report is typed alone will not prove that the person was an expert. There is thus no material on the record to show that the persons who have submitted their reports regarding, the disputed handwriting were qualified as experts within the meaning of Section 45 of the Evidence Act. In a situation like this, the reports were not at all admissible in evidence and the learned trial Court was certainly in error in placing reliance thereon. The experts' evidence is only a piece of evidence and the weight to be given to it has to be judged along with other evidence as evidence of this nature is ordinarily not conclusive. Such evidence, therefore, cannot be taken as substantive piece of evidence but is there to corroborate the other evidence.
30. Before proceeding to examine the direct evidence in proof of due execution of the will, it will only be proper if we have a look at the background facts and surrounding circumstances at the relevant time.
31. After some initial hesitation on the part of the defendant-appellant, it is now admitted that House No. K-11/15 had been purchased by Radhey Lal on 9-5-1918 which was later gifted by him to his wife and three sons by a registered Gift Deed dated 16-8-1921. Each of the donee thus got 1/4th share in the said house. In respect of the other house No. K-11/14 it was also reluctantly admitted that it belonged to three brothers, Bal Kishan Das, Mohan Lal and Ratan Lal. Mohan Lal had gone wayward and was squandering the property as would appear from the letters placed on record by the defendant. Bal Kishan also had shifted to Darbhanga some time in 1932 to join his father-in-law as is apparent from letters Exts. A-199, A-200 and A-204. These letters are of the year 1932. 1933 and 1934. During this period obviously Bal Kishan had been residing at Darbhanga. On 28-7-1933 Mohan Lal executed a sale deed in favour of his mother Smt. Annapurna (Ext. 10). The recitals in this document throw ample light on the relations between the brothers. According to it Bal Kishan was living and messing separately from the time of his father and was residing with his father-in-law at Darbhanga and the remaining two brothers initially lived with their father. Mohan Lal also separated after the death of their father and shifted to Maharajpur in Santhal Pargana of West Bengal and suffered heavy losses in the grain business he had started there. The document also mentions that he had failed to repay the money loaned to him by his mother and consequently the sale deed was executed in her favour in respect of his entire share in the two houses i. e. 1/2 share in House No, K-11/15 and 1/3rd share in House No. K-11/14. Bal Kishan was also a witness to this deed but in his oral statement he made no effort to explain this or to state that he was unware about the contents of the deed which was being witnessed by him.
32. On the same date, almost immediately thereafter, Smt. Annapurna also executed a will in favour of Ratan Lal bequeathing to him her own interest in the two, houses together with the interest which he had acquired under the sale deed executed by Mohan Lal in her favour earlier that day. As a consequence of the sale deed Smt. Annapurna had become owner of 1/3rd share in House No. K-11/14 and 1/2 share in House No. K-11/15 as she already owned 1/4th share in House No. K-11/15 by virtue of the gift deed executed by her husband on 16-8-1921. Under this will (Ext. 11) Smt. Annapurna bequeathed her entire interest in the two properties to Ratan Lal who was the youngest amongst the three sons. In the will it is also mentioned that Bal Kishan very seldom visited Varanasi and was living with his father-in-law at Darbhanga, A provision was made in the will that whenever Bal Kishan visited Varanasi he may stay in one of the rooms of House No. K-11/15. As for Mohan Lal it was mentioned that if he ever gets married, his children will have a right of residence in the house. This will was also attested by Bal Kishan and he also identified the executant before the Sub-Registrar at the time of its registration. Thus Bal Kishan was actively associated with the execution of the sale deed and the will and was aware about these transactions.
33. There are some other letters of the period 1962 to 1968 Exts. A-205, A-206 and A-210 on the record which show that Ratan Lal had also shifted to West Bengal in connection with his business and was residing at Jagatdal in West Bengal. That relations between Bal Kishan and Mohan Lal had become strained is apparent from the fact that Bal Kishan had lodged a First Information Report against him under Section 323, I.P.C. on 30-3-1932. Letters Exts. A-199, A-200 and A-204 also disclosed that Mohan Lal was not behaving properly causing some concern to his mother. There are some letters in this respect that were sent to Bal Kishan by his friends informing him about these activities.
34. According to defendant No. 1 some ornaments were allegedly left by Bal Kishan with his mother before leaving for Darbhanga as per receipt Ext. A-207 dated 5-7-1932. It also contains an acknowledgment dated 16-1-1940 by which both Ratan Lal and Smt. Annapurna had acknowledged custody of the ornaments and that these had been stolen by Mohan Lal on 20-2-1934 with an undertaking to pay Rs. 7000/- the price of the ornaments to Bal Kishan with no limitation as to time within which the same was to be paid to him.
35. The above facts are enough to throw light on the nature of relationship that existed between the parties. Mohan Lal had died on 3-3-1935 of 'suicide by poisoning' according to copy of the Death Register. Smt. Annapurna also died some time in 1955 while Radhey Lal had pre-deceased them, having died in 1931. At the time of the alleged will, therefore, there were only two living co-sharers of the property, Ratan Lal and the defendant. According to the previous transactions, the share of Ratan Lal in House No. K-11/14 would come to 2/3rd while in House No. K-11/15 it would be 3/4th. The defendant, however, claimed that he had half share in both the houses as sale by Mohan Lal in favour of the mother and execution of will by her in favour of Ratan Lal were both sham transactions and a mere device to save the property from being wasted by Mohan Lal which were meant never to be acted upon.
36. The suggested motive of these transactions does not appeal to reason. If the intention was only to save the property from wastage, a simple sale deed in favour of the mother would have sufficed and a will by her in favour of Ratan Lal was not needed Her will deprives Bal Kishan of very substantial right in the bequeathed property but for a mere right to stay. Looking to the circumstance that Bal Kishan had already left Varanasi and was living with his father-in-law in Darbhanga after having left his mother and two young brothers without any support soon after the death of their father, there is a greater likelihood that the mother was no longer well disposed towards him. When the other son Mohan Lal also turned vagabond and the youngest was still not in a position to fend for himself, her eyes would have naturally turned towards Ratan Lal as the formost though in her mind must have been to protect the interest of her youngest son. This appears to be most natural, logical and reasonable that only to achieve this purpose she had executed the will in his favour. These transactions, therefore, cannot be termed as sham. At any rate, Bal Kishan is estopped from questioning the genuineness of these transactions as he himself was a witness to the sale deed and had attested the will. In his testimony he has hardly stated any thing to justify a conclusion that these transactions were sham.
37. There is another aspectofthematter. Smt. Annapurna lived for well over 20 years after the death of Mohan Lal in 1935 but during these 20 long years, neither the defendant ever asserted any as right in the property nor Smt. Annapurna took any action to alter the will and give a share to Bal Kishan. On the death of Mohan Lal the danger of wasting the property by him no longer existed. If the reason for the sale deed was to prevent waste, the defendant would not have waited timelessly to claim a share in the property. During the 20 years that Smt. Annapurna lived thereafter, the defendant should have raised this issue at some stage in order to nullify these transactions but it was never done. His conduct clearly shows that these transactions were real and intended to be acted upon and were not designed only to protect the property from being wasted by Mohan Lal.
38. Coming now to the will set up by the defendant No. 1, we must bear in mind that the mode of proving a Will does not ordinarily differ from that of proof of any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. The onus of proof rests squarely on the person propounding a Will and in the absence of any suspicious circumstances surrounding its execution, the proof of testamentary capacity and testatorts signatures as required by law would normally suffice in discharging the onus. Where, however, suspicious circumstances are found to exist, the propounder of the Will must explain them and dispel all the suspicions to the satisfaction of the Court before it is accepted as genuine. This would be so even in those cases where such a plea has not been raised and on proved circumstances had given rise to doubt. In such cases also, it is for the propounder to satisfy the conscience of the Court. These suspicious circumstances may be as to the genuineness of the testator's signatures, his mental condition, the nature of disposition being unnatural and improbable or unfair in the light of the relevant circumstances or may consist of such other indications inherent in the Will as would show that the testator mind was not free. In any of such cases, the propounder must remove all legitimate suspicions to the entire satisfaction of the Court. These rules are based on sound judicial principles and on ground of public policy as the Will often, if not always, comes under challenge only when the testator has already departed from this world and cannot, therefore, assist the Court enquiring into its genuineness in any manner.
39. The leading case on the point is H. Venkatachala Iyngar v. B.N. Thimmajamma, AIR 1959 SC 443. In that case, the Supreme Court has very elaborately discussed the various circumstances which have to be taken into account when deciding this questioa It is best to quote the very words in which the Supreme Court chose to express itself.
"The party propounding a Will or otherwise making 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 stalutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 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 Sections 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 prescribed the requirements and the nature of proof which must be satisfied by the party who relied on a document in a Court of law. Similarly, Sections 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 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 Section 63 of the Indian Succession Act. As in the case of proof of 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. Like 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 and 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 state 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 signatures; 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 test merely emphasizes that, in determining the question as to 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.
Held on the facts and circumstances of the case that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the Will."
40. On the same point, there is another decision by the Supreme Court in Rani Purnima Debi v. Khagendra Narain Deb, AIR 1962 SC 567. In that case the Court examined the bequest made by the Will and since the testator had not made a proper provision for his wife and sister depending upon him and the sole benefit was to be derived by the propounder who took active part in its execution was treated to be a suspicious circumstance. Again in Shashi Kumar v.
Subodh Kumar, AIR 1964 SC 529, the ratio of the earlier two decisions was reiterated Similarly inGorantla Thataiah v. Thotakura Venkata Subbaiah, AIR 1968 SC 1332, it was held that in a case in which a Will is prepared under circumstances which raise a suspicion of the Court that it does not express the mind of the testator, it is for those who propound the Will to remove that suspicion. What are the suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the Will which confers substantial benefits on him, that itself is a suspicious circumstance attending the execution of the Will and in appreciating the evidence in such a case, the Court will proceed in a vigilant and cautious manner.
41. According to the defendant, the motive for executing the Will by Ratan Lal was that he wanted to compensate him for the loss of his wife's ornaments. As seen earlier, the entrustment of ornaments was made to the mother on 5-7-1932 and in 1980 it is alleged that the defendant and his brother had agreed to compensate him for this loss. The document is Ext. A-207 filed by the defendant but its execution is denied by the plaintiff. It is unbelievable that a son's wife will obtain a writing from her mother-in-law in respect of ornaments entrusted by her. A writing Will be required only when there is lack of faith between the two and if there is lack of faith, there was no occasion for the defendant's wife to have kept the ornaments with an untrustworthy mother-in-law particularly at a time when defendant's family had already left or was proposing to leave Varanasi to live with in-laws at Darbhanga. The defendant, in para 28 of his statement admitted that although he himself had faith in his mother, his wife did not believe her mother-in-law and the receipt was executed only in order to satisfy her. This, to our mind, is totally against the normal behaviour of a Hindu son or his wife. There is also no reason that the mother or Ratan Lal should have acknowledged any liability in respect thereof as late as in 1940, almost 8 years after the alleged entrustment of ornaments. The plaintiff's case is that Mohan Lal had broken upon the safe of his mother and removed the ornaments. The liability, therefore, was of Mohan Lal who allegedly had stolen them. If that be so, it was not understandable that when Mohan Lal had executed the sale deed in favour of his mother in July, 1933 in the presence of the defendant, he should not have insisted that the sale be made in his own favour in lieu of the price of the lost ornaments. Surprisingly in para 23 of his I statement in Court he admits that the Will of his mother was read over to him and he had absolutely no objection to any part of it. In a moment of bravado he stated that the entire property was bequeathed by his mother to Ratan Lal at his own behest. The conduct of the defendant in this regard appears to be very curious. If he was aware that his wife's ornaments had been stolen by Mohan Lal, he should have insisted that either the sale deed of Mohan Lal's share be executed in his favour or at least in the Will a part of the interest in the property be bequeathed to him. Nothing of this kind was done and that certainly shows that the story about the loss of ornaments and the acknowledgment of liability is a fake story.
42. It is also difficult to believe that in 1969, nearly after 18 years of the alleged undertaking by Ratan Lal vide Ext. A-207, he should have thought it proper to bequeath a share in one of the houses to the defendant. After such a lapse of time, the defendant could not raise any claim against Ratan Lal as it had already become barred by time and towards the end the relationship between the two were far from being cordial as would be seen from some of the letters on record. Even the earlier letters show that Ratal Lal always entertained a doubt about what the defendant was doing regarding his property. The defendant's letters to Ratan Lal also betray calculating and scheming mind He even tried to obtains a power of attorney from him to enable him to appear as a witness in some litigation. All these circumstances show that Ratal Lal did not have explicit faith in the defendant and, therefore, there could be no reason for him to have bequeathed any property to him in lieu of some obligation regarding ornaments.
43. There is one more circumstance against the defendant. If this was the motive for bequeathing the property to him why this fact does not find any mention in the Will'. The only reason for bequeathing the property to the defendant as indicated in the Will is that he was being looked after during his illness by the defendant and his family members. The conspicuous absence of alleged motive from the recitals of the Will goes a long way against the defendant. There is also no reason why a sale deed was not obtained by the defendant if Ratan Lal really wanted to compensate him for the loss of ornaments. Thus, in our opinion, there was absolutely no motive fur Ratan Lal to have bequeathed the property to the defendant.
44. The bequest made in the Will is also very unnatural. Admittedly Ratan Lal left behind him his wife and two sons besides the family of a pre-deceased son who are defendants3 to5. There is no apparent reason for Ratan Lal to think of depriving all these persons. Even the defendant contends that these persons were so poor as not to be able to perform the funeral rites of Ratan Lal and had to be performed by the defendant. If these persons were so poor and had nothing to fall back upon, we cannot conceive that a father will think of depriving them even of the property to which they could legitimately lay a right. It is strange that the defendant is not even aware about the names of the sons of Ratan Lal although he claims to be living in a portion of the same house with him.
45. Besidesthe above circumstances, the Will is also full of incorrect facts: It is alleged that the defendant had only one-half share in the two houses. This is contrary to the facts proved. We have already seen earlier that in House No. K-11/14 the deceased had 2/3rd share while in House No. K-11/15, 3/4th share belonged to him. We have also held above that the sale deed executed by Mohan Lal in favour of Smt. Annapurna and her Will in favour of Ratan Lal were not bogus transactions and the same were real and meant to be acted upon. In view of this, the mention made in the Will that the defendant had 1/2 share in both the houses was obviously engineered by the defendant and could not have been an act of free Will on the part of the testator.
46. The recitals in the Will do not make any mention about the pre-deceased son of Ratan Lal and about his wife and children. It is not disputed that the defendant No. 3 is the widow of Kaushal Kumar, the pre-deceased son of Ratan Lal while defendants 4 and 5 are his minor children. It is highly improbable that Ratan Lal would not have made any disposition of the property in their favour and in case he wanted to deprive them, he would certainly have given some reasons for doing so. The Will have been written in a very detailed manner but a reading of the same will show that all the facts recited therein only tend to assist the case of the defendant and go totally against the interest of Ratan Lal's own children and family.
47. Thus from the above, it is clear that the Will propounded by the defendant could not have been made by Ratan Lal if he had a free disposing mind. The inherent inconsistencies and improbabilities in the bequest made creates a strong suspicion in our mind about the genuineness of the Will.
48. Coming now to the actual execution of the Will there is direct testimony of three witnesses on this question. While the defendant states that the Will was executed in the Verandah towards the south of the Court-yard of House No. K-11/15, its attesting witness Bhairao Prasad asserts that it was executed on the first floor verandah of the house. Similarly according to the defendant, a draft of the Will was handed over by Ratan Lal to the scribe who made a fair copy of it which was then signed by the testator and the attesting witnesses. The attesting witness Bhairo Prasad in para 8 of his testimony stated that the draft of the Will was given by Ratan Lal to the scribe and the testator and the witnesses signed on it. These are two glaring and material contradictions in their statements. Apart from this, the witnesses also contradict as to whether any suggestion about getting the Will registered was mooted after the Will was executed The scribe, the attesting witnesses and the defendant all have given different versions.
49. The defendant admittedly had taken a prominent part in the execution of the Will. According to his testimony, neither at the time when originally the question of execution of Will was first broached between them nor at the time when the Will was executed, any member of Ratan Lal's family was present which is itself very strange and surprising. Admittedly Ratan Lal was in West Bengal until 1968 and must have come to Varanasi some time thereafter. The exact date or period of his return is not clear from the evidence, After returning from West Bengal, he was residing in a portion of House No. K-11/15, in another portion of which the defendant and his family were also residing. Admittedly Ratan Lal had been ill for about a month before his death in the middle of Nov., 1969. It is, therefore, unbelievable that his wife and sons were no where around at these two crucial moments, first at the time when the initial talk about the Will between Ratan Lal and the defendant took place and again on 6th Dec., 1969 when the Will is alleged to have been executed. No suggestion has been given as to why these persons were not present. In view of the fact that Ratan Lal was ill at that time, it is unbelievable that his wife and children would have been living away from him. It is not suggested either in the Will or in the evidence that relations between Ratan Lal and his family members were strained and sour.
50. The witnesses, i.e. the scribe and one attest ing witness have very close acquaintance and contact with the defendant although both of them claim to be close to the testator. This part of their testimony, however, cannot be accepted because Ratan Lal had been living away from Varanasi for a number of years and the defendant had admittedly returned from Darbhanga and had been managing the property at Varanasi for a number of years. We have been taken through the statements of these witnesses and on analysing their statements we have discovered that all of them had closer association with the defendant rather than the testator. There are number of letters on record indicating that it was the defendant who was looking after the property at Varanasi and was also indulging himself in litigation.
51. Baij Nath had admittedly come along with the defendant from the Court. The defendant is not aware as to how the other two witnesses had assembled. One of the witnesses stated that some one had called him saying that Ratan Lal wanted him at his house. He could not, however, disclose the identity of the person who had gone to call him. When according to the defendant's evidence, no family member of Ratan Lal was around him, it is not understandable as to who could have been sent by him to call that witness. The witnesses do not claim any acquaintance with each other. In fact they are all said to be strangers to one another.
The only common link that emerges between them is their association with the defendant.
Despite every effort made by them to hide this fact, it is quite obvious that all these persons had been collected by or at the instance of the defendant and could not have been called by Ratan Lal. A faint attempt has been made by the defendant to dissociate himself as far as possible but this attempt appears to be crude and clumsy.
52. There is another important factor to be taken note of. Some evidence has come that Ratan Lal already had a draft of the Will ready with him and this draft was only faired by the scribe which was finally executed. The Will is not required to be scribed on a stamp paper. If Ratan Lal had managed to get a draft prepared, the same could have been straightway signed by the testator and the attesting witnesses and there was no need for making a fair copy. The question also remains unanswered as to how Ratan Lal was in a position to get the draft prepared and who prepared the draft for him. The defendant does not throw any light on this and the plaintiff No. 1 has denied that Katan Lal ever intended to execute a Will In these circumstances, we do not find that the defendant has been successful in removing the suspicion about the genuineness and due execution of the Will.
53. It is well established that in a case in which a Will is prepared under circumstances which raise the suspicion of the Court that it does not express the mind of the testator, it is for those who propound the Will to remove that suspicion. What are suspicious circumstances must invariably be judged in the facts and circumstances of each particular case. If, however, propounder takes a prominent part in the execution of the Will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the Will and in appreciating the evidence in such a case, the Court should proceed in a vigilant and cautious manner.
54. There is another kind of evidence which needs to be considered In order to prove that the testator was not possessed of a free disposing mind, the plaintiff examined Dr. K. C. Misra as P.W. 1. The prescription issued by him during the period of illness of the testator has also been placed on record as Ext. 4. The evidence of this witness has been very seriously challenged by the learned counsel for the appellant and it is submitted that the certificate Ext. 4 issued by him was prepared only for the purposes of this suit and was not genuine one. It is not necessary for us to dwell in detail on this question as we find that the certificate issued by him is obviously prepared at a latter date. This would be apparent from a lapse committed by him. It appears that on 11-12-1969 while prescribing medicine for the patient, he has mentioned that the same medicine may be repeated which is mentioned at No. 1 in his prescription of 3-12-1977. The prescription purports to have been issued in 1969 and, therefore, it is not conceivable that the witness would have wrongly put the year as 1977 in it. It is quite obvious, therefore, that the prescription must have been prepared at a much latter date. The statement was recorded in August 1978 and it is quite possible that this prescription was obtained by the plaintiff some times in 1977 because of which this error in the year has occurred in Ext. 4.
55. Several other medical certificates relating to one Rizwan Ahmad have also been filed by the defendant No. 1 in order to show that the witness Dr. K. C. Misra was in the habit of issuing false certificates. However, from a perusal of these certificates Exts. A5 to A-11, we cannot reach to the conclusion that all these certificates had been issued falsely. In most of the certificates the doctor has only written what the patient complained of and the diseases which are mentioned are such as could not be found on a mere physical examination. Thus the medical evidence about the illness of Ratan Lal and its nature is not sufficient to establish that he had no mental capacity to execute the Will.
56. On the other hand, in the cross examination of defendant No. 1, it has come that Ratan Lal was in fact ill and he was under the treatment of Dr. Dhruva Bhushan Mukerji and Dr. Shanker. For reasons best known to the defendants, none of these doctors have been examined to prove that Ratan Lal was in a fit mental state on the relevantdate. However, the very fact that the defendant admits Ratan Lal to be under the treatment of these doctors goes to show that he was ill during that period but it has not been established that his illness was so serious as to impair his mental faculties. No prescriptions issued by these doctors have been placed on record and a very lame excuse has been given that these were immersed in river Ganges after his funeral rites had been completed. The medical evidence of the parties, therefore, is hardly of any help in reaching any conclusion about the mental state of the testator.
57. The defendant-appellant has moved an application also that P.W. 1 Dr. K. C. Misra should be proceeded against for committing perjury and suitable action be taken against him. We find that at the time of his statement in August 1978, the doctor was already 77 years of age and now he shoud be at the fag end of his life. We do not know if he is even alive today. To take proceedings for prosecuting him at this stage for the perjury committed by him will not be in the best interest of justice and we, therefore, decline to do so.
58. Lastly, on a perusal of the original Will, we find it difficult to agree with the observation of the trial Court that the alleged signature of Ratan Lal on the impugned Will were similar to his admitted signatures. A large number of letters are on the record and we see that Ratan Lal possessed certain amount of proficiency in writing and the formation of letters was very firm and definite. On the contrary the signatures appended to the impugned Will do not show any such firmness and do not display any proficiency in writing. The letters have been framed in a laboured manner and, it appears, with lot of hesitation which are signs of forgery. We have carefully compared the signatures appended to the Will with the admitted signatures of Ratan Lal and we have no hesitation in saying that the signature on the Will was not made by Ratan Lal. The steady hand possessed by Ratan Lal and the other attributes of his writing are totally missing from the disputed signatures and writings.
59. On an over all consideration of the evidence on the record, therefore, we are of the firm opinion that the will dated 6th Dec., 1969 alleged to have been executed by Ratan Lal has not been proved to be genuine and duly executed will We have, therefore, no hesitation in agreeing with the ultimate result reached by the Court below. In our opinion, therefore, the appeal has no merits and ought to be dismissed. The appeal is hereby dismissed with costs to the plaintiffs-respondents.
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