Akhilesh Chandra, J.This is an application seeking issuance of letter of administration in respect of the will said to have been executed by one Amrit Devi, widow of late Ram Chandra Lal Yadav, on 14th August, 1992 in favour of her grand sons, the plaintiffs, with respect to the property mentioned in the will in question.

2. She (Amrit Devi) died on 23rd September, 1992 leaving behind her two sons, namely, (i) Sri Surendra Yadav and (ii) Sri Gyanendra Prasad Yadav @ Shashi Baboo and three daughters, namely, (i) Smt. Savitri Devi, (ii) Smt. Sharda Yadav and (iii) Smt. Purnima Yadav.

3. Initially, the application was registered as testamentary case, bearing No. 2 of 1993, but subsequently, on filing of caveat and objection by her son, namely, Surendra Yadav (original defendant No. 1) the same has been converted into test suit.

4. The objector-defendants, the eldest son of the testatrix, has contested the application on the ground that the testatrix was having affection with her sons and daughters and to all grand children but she executed the will in favour of sons of youngest son. Further, the will in question bears a thumb impression said to have been affixed by her, but she being an literate lady, had signed number of documents in her life time, hence, in this way, the genuineness of L.T.I. (Left Thumb Impression) on the will in question is also challenged. It is further asserted that the witnesses said to be connected with the documents are the persons in the camp of younger son, namely, Gyanendra Prasad Yadav @ Shashi Baboo and the contents of the will was neither read over to her nor she had ever executed it after fully knowing the contents. Further, the Holding No. 13, in question, was the property acquired by the father of the objector-defendants, of course, in the name of wife and building was constructed by him with his own resources and the entire family has been living in it. The lady, aged about 90 years, at the time of execution of her will had lost her power of understanding for about six months and was completely dependent upon others and was served by her eldest son, the objector-defendants, and his family members. In fact, the father of the plaintiffs and the plaintiffs were not in good terms with her for about a year before her death.

5. The attestation etc. appears to have been done by strangers in spite of assertion in the alleged will that before execution, positive advice of the objector-defendants has also been taken, the document in question appears scribed on 14th August, 1992 but for no reason execution appears conducted on 25th August, 1992 without any registration in spite of the fact that registration office is quite close about half kilometer away. Several interpolations and cuttings have been done by the younger son, namely, Gyanendra Prasad Yadav @ Shashi Baboo, without any attestation and it was prayed that application be dismissed.

6. After hearing the parties vide order dated 7th April, 2000 following two issues are framed to be decided:--

"(1) Whether Mosst. Amrit Devi executed the will voluntarily and in sound state of mind

(2) Whether Mosst. Amrit Devi was entitled in law to execute the will with regard to the property covered by the will"

7. In support of the rival contentions, the plaintiffs have examined altogether eight (8) plaintiff witnesses, such as:- (i) P.W.-1, P.K. Mishra, (ii) P.W.-2, Tapan Roy, (iii) P.W.-3, Amar Yadav, (iv) P.W.-4, Indra Kumar, (v) P.W.-5, Mansoor Alam, (vi) P.W.-6, Ajay Kumar Singh, (vii) P.W.-7, Kumar Binay Bhushan and (viii) P.W.-8, Yogendra Pd. Singh, besides producing following exhibits:--

"Exhibit-1 - Report dt. 29.9.95 by C.F.P.B., N.C.R.B., New Delhi.

Exhibit-2 - Signature of Sri P.K. Mishra, F.P.E. Examiner of C.F.P.B., N.C.R., New Delhi.

Exhibit-3 - Original will.

Exhibit-4 to 4/8 - Thumb impression of the testatrix Late Amrit Devi on every page of the will dt. 25.8.92.

Exhibit-5 - Entry No.-90 of station Diary of Kadam Kuan P.S. (Sanaha) at Page - 594437 to 594438 dated 3.3.84.

Exhibit-6 series 6/1 to 6/7 - Signature of the attesting witness namely Yogendra Pd. Singh.

Exhibit-7 - Original Death Certificate. Exhibit-8 - Certify copy of evidence of Surendra Yadav in T.P. Suit - 302/95.

Exhibit-9 - Certified copy of evidence of Savitri Devi in T.P. 302/95.

Exhibit-10 - Letter dt. 9.8.72 written by Surendra Yadav to Asstt. Administrator P.M.C.

Exhibit-11 - Zamindari Bond (in 2 sheets) in the name of Surajdeo Pd.

Exhibit-12 - Certificate by Income Tax."

8. On behalf of the objector-defendants altogether three (3) defendant witnesses have been examined, such as:- (i) D.W.-1, Birendra Bahadur Narayan Sinha, (ii) D.W.-2, Gajendra Pd. and (iii) D.W.-3, Surendra Yadav and following documents have been produced:--

"Exhibit-A - Photocopy of Panchnama.

Exhibit-B - Vak is marked.

Exhibit-C to Exhibit C/7 - Certified copies of Eight petition filed in T.S. 302/95 in the Court of Sub-Judge V, Patna."

9. When the matter was taken up for hearing initially a question was raised, as to who shall begin the arguments. Ultimately, it began on behalf of the objector-defendants and during that course, on examination of will in question, it is noticed that in fact it appears scribed on 24th August, 1992, of course, other formalities appears done on the following day, i.e., 25th August, 1992 and in spite of the errors in the pleadings of both the sides as regard to date of its being scribed on 14th August, 1992, there is no dispute that same bears date of preparation as 24th August, 1992.

10. Learned counsel for the objector-defendants vehementally contended that on the thumb impression on the will in question, as per report of F.S.L., it was difficult to arrive at any definite conclusion. More so, undisputedly now the testatrix has put her signatures earlier on different documents but there is no explanation whether in the will or in the pleading or in the statement of the witnesses what led her to avoid putting signature instead of putting thumb impression. Moreover, neither it appears it was scribed at her dictates or contents were ever read over to her and the attesting witnesses including scribe has been withheld. No doubt, an application (Flag - 36) appears filed alleging they being gained over but in spite of objection in writing by filing rejoinder no other steps appears taken to support such assertion, even the witnesses including the applicants examined have not averted. The suspicion emerging has not been removed; hence, the prayer cannot be accepted.

11. On the other hand, learned counsel for the plaintiffs submitted that there is no wrong committed and the will in question is free from any doubt. The lady at the age of 90 years since was not physically fit as the statements contained in the will itself as well as in the objection made by the objector-defendants, was not in a position to put her signature which she used to do earlier with difficulties. More so, the minutes endorsement made by the concerned persons on the document depends upon their legal acumen. The witnesses examined by the plaintiffs have fully supported the assertions, who could not be produced, were in fact gained over by the objectors-defendants and due applications in time had already been filed, so no adverse interference can be drawn for their non-examination. The application deserves to be allowed.

FINDINGS

12. Issue No. 1: On basis of rival submissions and materials available on the record this issue needs to be re-casted as such:--As to whether the deed of will, in question, is genuine, valid, voluntarily and duly executed by Mostt. Amrit Devi in her sound state of mind

13. The will in question is on record as Exhibit-3 and the same contains eight (8) pages, whereon, on each page there appears one impression encircled with an endorsement "ANGUTHEY KA NISAN HAMARE MAUZODGI MAI MANMOKIR SE LEE GAYI" and on first seven pages there appears one initial but on last page it contains short but visible signature of one Shailendra Singh (not examined) and just near such impression there appears one endorsement by Md. Mahmood (not examined since dead), who signed for the executant with an endorsement "VASIKA PADHWA KAR SUN SAMAJH LEEYA, SAHI PAYA". On the first page there appears simple signatures of other witnesses out of whom only Yogendra Pd. Singh appeared as P.W.-8, but it may also be noticed that except with signature of Md. Mahmood with date, i.e., 25/08/1992, there is nothing mentioned on either of pages. On the last page there is an endorsement of scribe Parmanand Pd. Singh (not examined), but there is nothing about mode of preparing the document such as either he did at the dictation of the testatrix or copied from any other draft or even he read it over to the testatrix after preparing the same though with his signature and endorsement, there is not date, but the last page of the document (Exhibit-3) bears the date as 24th August, 1992. Such detail gives an impression that somehow or the other the document was prepared on 24th August, 1992 but subsequent acts could be done only on the following day.

14. The endorsement made by Md. Mahmood (not examined since dead) gives an impression that the document was read over to the testatrix who only after understanding the contents made therein put her impression, but at the relevant time, there is nothing in his endorsement as to who read it over. Similarly, it also lacks from the document either from the endorsement made by the scribe or by any other witness.

15. Affixing of thumb impression on the document undoubtedly gives an impression that the testatrix is an illiterate person unless otherwise endorsed anywhere in the document. In page No. -5 at the top, there is a reference that testatrix is aged about 90 years and is in her full senses. At the same time, in the following page (no.-6), there is reference that she is ill bedridden and not in a position to come to court (registration office) and she also consulted to her eldest son before going further.

16. P.W.-1 is P.K. Mishra, who submitted its report after examining the thumb impression on Exhibit-3 with admitted thumb impression of the testatrix on a registered instrument and found that out of total nine (9) impressions on Exhibit-3 only three (3) appears similar to admitted impression and remaining six (6) are not fit for any comparison, so no definite opinion can be given about those six (6) impressions. No doubt, in a row if thumb impressions are taken on different sheets a few may appear blurred etc., but if majority (six out of nine) are such, it needs some strict scrutiny since apparently smells foul. At the same time, the document bearing admitted thumb impression of the testatrix placed for comparing also carry her signature, but this witness avoided any comment since was not directed to say anything on the signature.

17. The documents, containing signature of testatrix on earlier executed admitted documents, supports the objection put forward by the objector-defendants that there is no explanation as to how and under what circumstances the person putting signatures earlier could be prevented from doing so, but able to put only thumb impression, this itself brings the document in suspicious category.

18. To meet out such suspicion, there is nothing in the pleading of the plaintiffs nor there is anything as stated earlier in the documents in question, i.e., Exhibit-3.

19. P.W.-2, Tapan Roy (plaintiff No. 3) in examination-in-chief has said nothing about capability of putting signature of testatrix. He was not present at the time of the documents bringing into existence. He admits that the testatrix died within a month of creation of Exhibit-3, the will, and further contrary to statements made in Exhibit-3, denied his grandmother, the testatrix, was completely confined to bed on the date of execution of the will and towards end of cross-examination he further denies his grandmother, the testatrix, was a literate lady and capable to read and write and, at the same time, he asserts that anyhow she could put her signature, but again he is silent since he was not present at the relevant time on the circumstances under which the testatrix, capable to put signature, failed to do so.

20. P.W.-3, Amar Yadav (plaintiff No. 2) in paragraph No. - 5 of the examination-in-chief, contrary to the statements made in Exhibit-3 asserts that the will was executed by the testatrix while she was not only mentally but also physically fit and further admits that roughly a month after execution she died and, likewise his brother, further asserts she was only capable to put her signatures, but tried to explain much before her death she became unable to put signatures but, as stated earlier, there is nothing of the kind in Exhibit-3 or in the pleading of the plaintiffs and during cross-examination he again dare to deny the suggestion that his grandmother, the testatrix, was illiterate and was capable to put her signature.

21. P.W.-4, Indra Kumar (plaintiff No. 1), likewise, his two brothers has come to say that his grandmother, the testatrix, was not literate though capable to put signatures, however, since much before her death she was unable to do so. He too was not present at the time of alleged execution, so not specific on the point of manner of execution etc. He is the person, who could be able to trace out the will from the Almirah of her grandmother and then handed it over to his brothers for further needful.

22. P.W.-5, Mansoor Alam, is brother of Md. Mahmood, the person signed for the testatrix. This witness was not present at the relevant time and whatever has stated relating to will is based on information received from his deceased brother, who died in the year 1998, but also said nothing about the documents being read over to the testatrix etc.

23. P.W.-7, Kumar Binay Bhushan, is brother-in-law of one of the attesting witness to execute Exhibit-3 to Yogendra Pd. Singh, P.W.-8, said to be present at the relevant time alongwith others though has said that the witnesses on Exhibit-3 put their signatures at the instance of the testatrix in his presence, but he is silent about the fact as to whether the testatrix was present there or not or as to whether she put her L.T.I. in their presence or not and to explain the same he is not doing anything on the document. He asserts that the scribe, Parmanand Pd. Singh (not-examined), prohibited on the ground that no more witness is required. This witness is silent about continued illness of the testatrix and about her confinement on bed as recited in Exhibit-3 and also said nothing about as to whether the contents were read over to her or by whom.

24. P.W.-8, Yogendra Pd. Singh, is the last witness in paragraph No. - 4 and he in examination-in-chief, on affidavit, said that on 24th August, 1992 at the instance of testatrix the scribe, Parmanand Pd. Singh (not examined), prepared the document and only because Md. Mahmood could not arrive, the same could not be executed and further in paragraph No. - 5 he says on the following day, i.e., 25th August, 1992, in presence of the witnesses and identifier, the contents was read over to the testatrix by the scribe and, thereafter, the testatrix put her L.T.I. followed by the signatures of the witnesses thereon. But this witness is again silent as to whether all such thing happens in the presence of the testatrix and also contrary to endorsement on the will he has named the scribe as the person reading over the contents to the testatrix. In cross-examination also this witness, contrary to the contents made in Exhibit-3, says that the lady carries perfectly good health on the day of the execution and denies she was bedridden on the relevant day, whereas, there is a reference in Exhibit-3 itself that she was ill and confined to bed. This witness further do not know as to whether she was literate or capable of putting signature or wholly an illiterate lady and specifically denies that she used to do all her transactions in writing.

25. Now to further prove that the testatrix had some bad feelings against the objector-defendants, who had been ill-treating her, on behalf of the plaintiffs there is a document by way of Exhibit-5, Entry No. -90 in station diary of Kadamkuan Police Station Case on 3r March, 1984. To prove, P.W.-6, Ajay Kumar Singh, the Officer-In-Charge, Kadamkuan Police Station, is produced who except stating that such entry is made in due course of business, of course, not by him, by the then Officer-In-Charge and he is unable to say as to whether enquiry is made with respect to contents made therein or not etc. The attesting witness to such Sanha made under signature of the testatrix is one Purnima Kumari, one of the three daughters of the testatrix who, as submitted, was also ill-treated by the objector-defendants but this lady is also withheld for no reason rather contrary, this Exhibit-5 establishes that the testatrix was in a position to put her signatures, not the thumb impression at the time of entry into any correspondence.

26. The materials available and discussed above clearly indicates that in spite of knowing the fact that the testatrix, who was ill and confined to bed at the relevant time capable to put signatures, tried to conceal both the facts in the pleading and also never explained the circumstances under which, if at all genuine, her impression was affixed on the documents and only after examination of P.W.-1 and production of one admitted registered document, containing her signature, the plaintiffs have tried to improve their case with assertion that since before she had left putting signatures on any paper and even at this stage the witnesses including the plaintiffs, contrary to the recitals in Exhibit-3, continued saying she was not ill or confined to bed. This goes to show the persons deposing had not been in touch with the lady at least on the relevant date and time.

27. The other witnesses on the document including scribe are also alive and they have neither been produced nor have either of the plaintiffs or witnesses examined explained any circumstances behind their non-examination, of course during argument, it is pointed out that one application has been filed earlier on their behalf that they have been gained over by the attesting defendants. At the same time, rejoinder denying such allegation is also on the record. Had it not been so, the position might have been different, adverse interference against the defendants could have been drawn for not denying the allegations, but it is not the case here. Now it was incumbent upon the plaintiffs to assert on oath in court, if at all they had any such valid explanation.

28. Section 63 of the Indian Succession Act, 1925, which reads as such:--

"63. Execution of unprivileged Wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

And it appears in the instant case that the mandatory requirement of attestation by the witnesses has not been fulfilled and, as stated, there is nothing to show signatures of attesting witnesses were made in the presence of the testatrix at her command or she put her L.T.I. (Left Thumb Impression) in their presence. In that event, it cannot be said that the will, in question, is valid one. The Honble Apex Court under almost similar circumstances in a case of Yumnam Ongbi Tampha and Ibemma Devi Vs. Yumnam Joykumar Singh and Others, , do not found the will there as valid one.

29. This is undisputed that the testatrix died on 23rd September, 1992 (Exhibit-7) within a month of such execution of Exhibit-3. She had been ill and confined to bed since before. This circumstance also makes the execution of will suspicious. Such inference finds support from a decision of Honble Apex Court in a case of " Adivekka and Others Vs. Hanamavva Kom Venkatesh D by LRs. and Another, .

30. The Honble Apex Court decision in a case of "Bhagwan Kaur w/o Bechan Singh Versus Kartar Kaur w/o Bachan Singh and Others", reported in (1994) 5 Supreme Court Cases 135, [LQ/SC/1994/470] comes in the way of the plaintiffs since there is vital contradictions about reading of the contents of Exhibit-3 over to the testatrix, who as per the endorsement of the only deceased witness Md. Mahmood allegedly signing on her behalf. So not read personally by her and he was not the person reading it over to her whereas contrary to the endorsement of scribe in view of statement of P.W.-8, the scribe read it over.

31. One more circumstances making the cloud dark against the validity of Exhibit-3 as per the statement of P.W.-8 in spite of everything the document being ready only because Md. Mahmood could not arrive but nothing could be done. Why such a great importance was given to him is not evident from anywhere. If at all document was ready, other witnesses, all literate, capable and understanding the writing, present there either of them could have read over the documents to the testatrix or played the role of Md. Mahmood as signing on her behalf, but nothing was done. This also goes to show, if at all the assertion is genuine, the testatrix had no confidence upon a single person present other than Md. Mahmood. So when the testatrix could not depose faith, now the statement of only said attesting witness P.W.-8 can be relied upon.

32. Since the cloud created against the validity execution of the will could not be diluted the decisions of this Court in cases of Ram Nath Das Vs. Ram Nagina Choubey and Others, and "Smt. Nalini Mishra v. Braj Kishore Mishra" reported in 2010 (4) PLJR 355 and also in case of Krishna Kumar Birla Vs. Rajendra Singh Lodha and Others, , are of no avail, likewise, another decision of this Court in case of Nand Kumar Singh Vs. Chander Kishore Saran, , wherein, the document was fully read over to the testator who, thereafter, put his pen mark, but here in the instant case it completely lacks.

33. True it is, as submitted by learned counsel for the plaintiffs that there is no evidence on record showing the testatrix was not carrying sound mental health, but the plaintiffs, by their own misconduct concealment of relevant facts and circumstances as indicated above, as well, by not coming with clean hands, have made it irrelevant.

34. In face of all such discussions made above, there appears no much relevance to the statements of all the three (3) witnesses examined on behalf of the objector-defendants, i.e., (i) D.W.-1, Birendra Bahadur Narayan Sinha, (ii) D.W.-2, Gajendra Pd. and (iii) D.W.-3, Surendra Yadav. Exhibit-3 is a Vakalatnama, an admitted piece of document, whereon, the testatrix also put her signature (almost before a year of her death) further give jolt to plaintiffs version as for years together she had left putting her signature on the correspondences and other materials on the record since neither placed nor appears relevant for the issue; they need no discussion.

35. On overall consideration of the facts and circumstances and judicial pronouncements relied upon by either side, the issue is decided against the plaintiffs.

36. Issue No. 2: None of the learned counsels pressed this issue nor made any submissions on the question of entitlement of the testatrix to execute the will. Thus, it stands disposed of as not pressed.

37. In the result, finding no merit, the suit is hereby dismissed on contest. However, the party shall bear their own cost.