SMT. DEOKALIversusNAND KISHORE AND ORS.

A                                SMT. DEOKALI
                                         v.
                          NAND KISHORE AND ORS.

                                  APRIL 24, 1996
B
                     IN.P. SINGH AND SUHAS C. SEN, JJ.]


          Will-Validity of-Alleged suspicious circumstances in execution of
    will-Found not correct by Trial Court as well as the first Appellate
    Cow1-High Court affirmed the decree of cow1s below-Appeal before
c   Supreme Court-Held as the case was decided basically on facts there was
    no reason to intelfere with the judgment of High Court.

        The appellant's father executed a Will on 2.5.1972 whereunder he
  bequeathed his entire moveable and immovable property in favour of his
D three grandsons-sons of the elder sister of appellant. The appellant filed
  a suit challenging the validity of the Will contending that (i) first page of
  the Will, which was written in two pages, did not bear signatures of the
  testator and the witnesses; (ii) first page of the Will was written on a stamp
  paper while the second page was written on a plain paper; (iii) writer of
  the will did not come forward to give evidence; (iv) will executed on 2.5.72
E was produced for the first time in 1975; (v) will was proved on evidence of
  witnesses who were close relatives of the respondents; and (vi) murder of
  testator by the relatives of the respondents after some days of the execution
  of the Will was very suspicious.

F          The Trial Court and First Appellate Court dismissed the suit hold-
    ing that (i) the signatures of the testator and the witnesses were genuine;
    (ii) there was nothing unusual in signing only the second page of the Will
    or even in writing the Will on two pages, one stamped and the other
    unstamped; (iii) having regard to the fact that the witnesses had signed
G   the Will and some of the persons in whose presence the Will was written
    had given testimony, the failure of the "riter to justify the Will was not
    relevant; and (iv) making only the relatives as witnesses to the Will was
    also not an unnatural practice. The High Court affirmed the judgment and
    decree passed by the courts below. Hence this appeal.

H         Dismissing the appeal, this Court
                                        684
                  DEOKALI v. NAND KISHORE [SEN. J.]                     685

       HELD : The High Court has not committed any error in coming to          A
its decision. The case was decided basically on facts. There is no reason to
interfere with the judgment of the High Court. [688-F-H]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 367 of
1991.
                                                                               B
     From the Judgment and Order dated 21.8.89 of the Madhya Pradesh
High Court in S.A. No. 35 of 1983.

        Pramod Swarup for the Appellant.

     S.S. Khanduja, Y.P. Dhingra and Baldev Krishan Satija for the             C
Respondents.

        The Judgment of the Court was delivered :

       SEN, J. : The validity of a Will executed by one Shivnarayan is under
challenge in this case. Shivnarayan's wife had predeceased him. He had         D
two daughters Ramkali aod Deokali. Ramkali had six daughters and three
sons - Nand Kishore, Santosh and Prakash. Santosh and Prakash were
minors at the time of execution of the Will. By the will Shivnarayan gave
all his properties to the three sons of his elder daughter Ramkali. The Will
was executed on 2.5.1972. Shortly thereafter, sometime in May, 1972,           E
Shivnarayan was shot dead. Banwari Lal, the husband of Deokali and his
brother Rudra were charged with murder. Banwari Lal was acquitted by
the court but his brother Rudra was, convicted and sentenced to rigorous
imprisonment for life by the Sessions court. It appears from the facts
recorded by the court of Additional District Judge and also the High Court
that Ramkali after her marriage started living with her father Shivnarayan     F
along with her husband Balaprasad. Alf her children were born in the
house of Shivnaraya. Shivnarayan had also made arrangements for getting
one son and one daughter of Ramkali married. Ramkali and her husband
used to look after Shivnarayan in his old age.

       Deokali, the younger daughter after her marriage used to live with G
her husband Banwari Lal in the husband's house. Banwari Lal and Deokali
quarreled with Shivnarayan at the time .of the marriage of Ramkali's
daughter and demanded half share pf the property of Shivnarayan. The
people of the village assembled but Shivoarayan refused to give any share
of his property to them. He said that he had kept Ramkali in his house and H
    686                  SUPREME COURT REPORTS I1996] SUPP. 1 S.C.R.

A   that Ramkali and her children had looked after him. He was not satisfied
    with the conduct of Deokali and her husband and he will not give any share
    of his properties tu them.

          Be that as it may, Shivnarayan was murdered shortly after the execu-
    tion of the Will. There were disputes about the properties left behind by
B   Shivnarayan.

          In the Will which was produced in the court, Shivnarayan had stated:

            "After marrying my elder daughter Ramkali I immediately in the
            same year (about 25 years ago) kept her with me along with her
c           husband my son-in-law lo serve me. After this I have married my
            younger daughter in a prosperous (well-to-do) house.

                The elder daughter Ramkali has got 3 sons and 5 daughters.
            The elder son whose name is Nand Kishore, after getting him
D           educated got married by me. The younger son Santosh Kumar and
            the third son who is about 3 months old and who has nut been
            given any name as yet, both of them are minors. I am very much
            happy and glad with all of them i.e. by the Khushamad (Service)
            of the daughter and son-in-law and NATI (Grandsons), I have
            believed that in token of their service, I am writing this Will with
E           full senses and in good health, in the presence of the Panches,
            whose signatures are given belo\v, in respect of my entire move-
            able and immoveable property, which includes houses and land in
            village Manwara and Pehra Haar whatever is there including all
            rights thereof in favour of all the three Natees (Grandsons), who
F           are the sons of elder daughter Ramkali. If I will live alive fat-some
            more days, I myself will get Mutation recorded in the Go;t. If I
            die, then after my death they will be owners of my entire property
            like me. All the 3 brothers will get their respective names mutated
            in the land plot numbers. In the same way Will get their names
            recorded in the houses and Will take their possession, and the two
G
            brothers who are still minors, till they do not attain majority, their
            mother, Ramkali shall remain SARPRAST (Guardian) of their
            property (Share).

               The younger daughter Deokali is prosperous in her house. Her
H           husband and her father-in-law are persons having sufficient money
                  DEOKALI v. NANO KISH ORE [SEN.J.]                       687

         and they earn, they have no difficulty and' the elder daughter A
         Ramkali has no other source of livelihood except me. From earlier
         time since when 1 had decided that I will give my properly Lo
         Ramkali only. So l am making owners the three sons of Ramkali
         of my entire properly in my full senses and sound health and do
       · hereby execute this will in the presence of the Panches, so that in
         case of my death if any dispute by any one claiming himself my
                                                                             B
         heir may arise in respect of my property then the Court should not
         take any cognizance of the same and the 3 sons of Ramkali may
         continue to enjoy the fruits of the property belonging to me.''

      Sometime in 1977 Deokali filed a suit in the Court of Civil Judge;         c
First Class, Chattarpur, for declaration that the Will in question was invalid
and not properly executed. She prayed for declaration of cancellation of
the Will. The trial court, however, held that the Will was genuine and
dismissed the suit. The first appeal being Civil Appeal No. 23A of 1982
preferred by Deokali against the judgment of the trial court was also
dismissed by Additional Districl Judge, Chattarpur.                              D

      In the second appeal before the High Court, it was contended, that
there \Vere at least six suspicious circumstances because of which the
genuineness of the alleged Will should have been disbelieved. The six
suspicious circun1stances were :                                                 E
      (l) The Will was written in two pages. The first page did not bear
          and signature of Shivnarayan nor of any one of witnesses.

      (2) The first page of the Will was written on a stamped paper but
          the second page was Vlnittr::n on a plain paper.                       F

      (3) The \Vriter of the Will did not come for\vard to give evidence.

      ( 4) The Will alleged to have been executed by Shivnarayan on
           2.5.1972 was produced for the first time in 1975.
                                                                                 G
      (5) The Will was allegedly proved on evidence of witnesses who were
          close relations of the respondents.

      (6) Murder of Shivnarayan by the relations of the respondents only
          son1e clays ;:iJter the execution of the Will was very suspicious. H
    688                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A          Both the trial court and the first appeal court found that the signa-
    tures of Shivnarayan and the witnesses were genuine. The signatures were
    on the second page only. All the three courts took the view that this was
    nut an unusual practice. So far as the Will having been written on two
    pages, one stamped and the other unstamped, the courts noted that the
    \Vitnesses were cxan1incd on this point. ()ne of the \vitnesses Baijianath had
B
    stated that when the Will was being written it could not be completed on
    the first page, therefore a second page which was not a stamped paper was
    used. Both the trial court and the first appeal court held that there was
    nothing unusual about this practice. In the second appeal this view was not
    disturbed. The court also took note of the fact that the witnesses had signed
c   the Will and some of the persons in whose presence the Will was written
    had given testimony. Having regard to this fact, the failure of the writer to
    justify the Will did not make any difference. It has also been denied that
    the Will was produced for the first time in 1975. From paragraph 4 of the
    \Vritten statement, it appears that the existence of the Will was known to
    Deokali and her husband Banwari Lal in 1972 itself. It was also held that
D
    n1aking only the relatives as witnesses to the Will is also not an unnatural
    practice. Every person wants to make arrangement for disposition of his
    property with the knowledge of his relatives.

           The High Court affirmed the judgment and decree passed by the
E   Additional District Judge, Challarpur dated 24.12.1982 after considering
    all the arguments advanced by the appellants. The facts of the case and the
    evidence produced were gone into at great length by the Additional
    District Judge. On a review of the findings of fact and evidence brought
    on record, he affirmed the finding of the trial court. The High Court also
    examined the facts but declined lo interfere with the concurrent finding of
F   the courts. What was alleged to be suspicious circumstances were also
    examined by the High Court. It does not appear that the High Court has
    committed any error in law in coming to its decision. The case was decided
    basically on facts. We see no reason to interfere \vith the judgment of the
    High Court. The appeal is dismissed. There will be no order as to costs.
G
    T.N.A.                                                    Appeal dismissed.




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