# Kishan Chand & Ors v. Mitthan Lal & Ors - **Citation:** (2016) 7 ILRA 334 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-27 - **Bench:** Surya Prakash Kesarwani - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishan-chand-ors-v-mitthan-lal-ors-44070 - **Pages:** 6 ## Text 334 INDIAN LAW REPORTS ALLAHABAD SERIES 15. Learned counsel for the petitioner-applicant submits that since he had applied for transfer of the proceedings, the Presiding Officer of the court concerned would adopt a partisan approach and act prejudicially against him. 16. The submission has no substance as in the course of litigation such situations do arise but the judicial officers always rise to the occasion and decide the matter on merits in accordance with law notwithstanding the filing of application for transfer of the case from their court. Moreover, the petitioner-applicant has not levelled any allegation against the Presiding Officer for getting the case transferred. Therefore, there is no question of any of partisan approach by the court concerned. 17. The transfer application, as such, is devoid of merit and is dismissed. 18. The Registry is directed to send a copy of this order to the Stamp Reporting Section for future guidance in submitting reports on transfer applications filed under Section 24 C.P.C. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 27.07.2016 BEFORE THE HON'BLE SURYA PRAKASH KESARWANI, J. First Appeal No.- 248 Of 1977 Kishan Chand & Ors. ...Appellants Versus Mitthan Lal & Ors. ...Respondents Counsel for Appellants: A.N. Bhargava Counsel for Respondents: S.M.H. Zaidi, Bharat Ji Agarwal, Neeraj Agarwal, S.M. Haider 1. Succession Act - Probate/Letters of Administration - Will - Suspicious Circumstances - Duty of Propounder - Failure to Explain Change of Earlier Registered Will - Effect. Where a testator had executed a registered Will (Ex. 2) approximately eight months prior to the execution of the disputed Will (Ex. 3) in favour of both his cousin brothers - the father of the appellants and the contesting respondent - and the disputed unregistered Will sought to supersede the earlier registered Will entirely in favour of the appellants to the exclusion of the contesting respondent, it was incumbent upon the propounders of the later Will to explain the circumstances which led the testator to execute such a Will. In the present case, while the disputed Will attributed the exclusion of the appellants' father to his mental illness and incapacity, it contained no explanation whatsoever for the disinheritance of the contesting respondent who had been a beneficiary under the prior registered Will. Held: The failure of the propounders to furnish any explanation for such a radical departure from the earlier Will gives rise to suspicious circumstances 7 All. Kishan Chand & Ors. Vs Mitthan Lal & Ors. 335 surrounding the execution of the disputed Will, which the appellants completely failed to remove. The application for Letters of Administration was rightly dismissed. 2. Succession Act - Will - Attesting Witnesses - Independence and Impartiality - Witnesses Closely Related to Propounders - Requirement of Strict Scrutiny. The evidence of attesting witnesses to a Will is required to be subjected to strict scrutiny where it is established that such witnesses were not independent or impartial but were closely associated with the propounders of the Will. In the present case, the first attesting witness (A.W. 1) was found to be residing with the principal appellant, used to sit and occasionally handle customers at the appellant's photographer's shop, and had been actively participating in the proceedings of the case (PAIRVI) even before issues were framed by the court. The second attesting witness (A.W. 2) admitted a close association with A.W. 1. Held: The attesting witnesses being closely related to each other and to the appellants, their testimonies lacked the character of independent and impartial attestation required in law, and their evidence was rightly subjected to strict scrutiny by the court below. 3. Succession Act - Will - Typed Will - Non-Disclosure of Origin - Who Got the Will Typed and Delivered - Suspicious Circumstance - Will Not Deposited by Testator. Where a disputed Will is a typed document and there is no evidence on record as to who caused it to be typed or who delivered it to the testator, such unexplained mystery of origin constitutes a material suspicious circumstance. It further adds to the suspicion when the Will was not deposited by the testator himself but was deposited with the District Judge by the first attesting witness, who had also taken an active part in the preparation of the Will. In the present case, A.W. 1 merely admitted that he had approached an advocate for a draft of the Will some 10-15 days earlier, but who got it typed and who handed it over to the testator remained entirely unexplained. Held: These circumstances cumulatively reinforced the suspicious character surrounding the execution of the disputed Will and the propounders failed to satisfactorily account for them. 4. Evidence Act, 1872 - Expert Evidence - Handwriting Expert - Disputed Signatures on Will - Comparison with Admitted Signatures - Imitation Forgery - Corroborative of Suspicious Circumstances. Where a handwriting expert, upon comparison of the disputed signatures of the testator on the contested Will (Ex. 3) with his admitted signatures on an earlier registered Will (Ex. 2), opined that the disputed signatures were imitation forgery and that the writer of the admitted and disputed signatures were different persons, such expert evidence constitutes a significant circumstance corroborating the suspicious character of the disputed Will. In the present case, the report of the handwriting expert (O.P.W. 2, Ex. A-2) went unchallenged in any material particular. Held: The expert's opinion, read along with the other suspicious circumstances surrounding the execution and attestation of the disputed Will, further reinforced the conclusion that the disputed Will (Ex. 3) was not the genuine last Will and testament of the testator. 5. Civil Procedure - First Appeal - Scope of Examination - Appellate Court to Re-Appreciate Evidence - No Infirmity Found in Findings of Court Below. In a First Appeal, the Appellate Court is required to re-appreciate the evidence on record and satisfy itself independently as to the correctness of the findings recorded by the court below. Where, upon such reappreciation of the oral and documentary evidence, the Appellate Court finds no infirmity, illegality, or manifest error of law or fact in the findings of the trial court, and where the propounders of the Will have completely failed to remove the suspicious circumstances surrounding the execution and attestation of the disputed Will, the appeal deserves to be dismissed. Held: The court below did not commit any error of law or fact in deciding Issue No. 1 against the appellants. The impugned judgment and decree dismissing the application for Letters of Administration was affirmed and the appeal dismissed. 336 INDIAN LAW REPORTS ALLAHABAD SERIES Result: Appeal dismissed. The judgment and decree dated 06.05.1977 passed by the First Additional District Judge, Mathura in Misc. Case No. 76 of 1973 dismissing the application for Letters of Administration in respect of the disputed Will dated 14.01.1970 (Ex. 3) affirmed. Cases Referred: 1. Rani Purnima Debi & Another v. Kumar Khagendra Narayan Deb & Another, AIR 1962 SC 567 - Applied. (Delivered by Hon'ble Surya Prakash Kesarwani, J.) 1. Heard Sri Santosh Kumar Tiwari, learned counsel for the appellants. 2. No one appears on behalf of the respondents even in the revised call. 3. This First Appeal has been filed challenging the judgment and decree dated 6.5.1977 passed by the Court of First Additional District Judge, Mathura in Misc. case No.76 of 1973 between present appellants and Mitthan Lal Mehrotra and four others. 4. The case was proceeded ex parte against the opposite party nos.1 to 4, inasmuch as they did not appear. The contesting opposite party is the opposite party no.5, Sri Panna Lal Mehrotra. 5. Sri Santosh Kumar Tiwari submits that the Will Ex. 3 dated 14.1.1970 of Sri Chiranji Lal in favour of the appellants was proved and, therefore, the court below has committed a manifest error of law and facts to decline to grant Letters of Administration and to hold that the said Will in favour of the appellants was surrounded by suspicious circumstances and was not a valid Will. He further submits that the impugned judgment is wholly illegal and, therefore, deserves to be set aside. 6. I have carefully considered the submissions of learned counsel for the appellants. 7. Briefly stated the facts of the present case are that undisputedly, father of the appellants, namely, Sri Chhunnoo Lal and the opposite party No.5, Sri Panna Lal were cousin brothers of the testator, Sri Chiranji Lal. They were living with him since their childhood and Sri Chiranji Lal had supported them from the very beginning. According to the opposite party No.5 a Will dated 5.1.1969 (Ex. 1) was executed in his favour by Sri Chiranji Lal. Subsequently another Will dated 6.5.1969 was executed in favour of the objector Panna Lal (opposite party no.5) and the father of the present appellants Sri Chhunnoo Lal. According to the appellants a Will dated 14.1.1970 was thereafter executed in favour of the appellants by the aforesaid Sri Chiranji Lal and was deposited with the District Judge, Mathura on 16.4.1970. 8. Sri Chiranji Lal died on 11.9.1971 at the age of about 90 years. Thereafter, the Will was opened by the order of the District Judge, Mathura and it was registered by the Sub Registrar Mathura on 22.1.1973. 7 All. Kishan Chand & Ors. Vs Mitthan Lal & Ors. 337 9. The miscellaneous case no.76 of 1973 was filed by the present appellants for Letters of Administration in respect of the Will dated 14.1.1970 said to be executed by Sri Chiranji Lal in their favour. The attesting witnesses of the Will were Sri Jai Kishan Dixit and Sri Kunj Bihari Asthana (A.W.-1 and AW-2 respectively). The case was dismissed with costs by the impugned judgment dated 6.5.1977. 10. Aggrieved with this judgment, the appellants have filed the present First Appeal. 11. The dispute in the present appeal is with regard to Ex.3 Will dated 14.1.1970. The Court below framed four issues out of which issue no. 3 was not pressed. Therefore, the court below decided issue nos. 1, 2 and 3. Before this Court learned counsel for the appellants has pressed this appeal only against the findings recorded by the court below on issue no.1. Under the circumstances, this Court is considering the following question in this appeal: "Whether Sri Chiranji Lal duly executed a Will on 14.1.1970 in favour of the appellants"? 13. Before the Court below the appellants produced attesting witnesses, namely, Sri Jai Kishan Dixit (A.W.-1), Sri Kunj Bihari Asthana (A.W.-2) and Sri Sohan Lal (appellant no.4), who were also cross examined. The court below, on an application 66 C moved on behalf of the opposite party No.5 on 5.7.1975 noted the fact that Sri Jai Kishan Dixit (A.W.-1), who was attesting witness of the said Will, was present in the court alongwith counsel of the appellants when even issues were not framed in the case upto that time. For this reason it was contended that the aforesaid attesting witness was doing PAIRVI of the case. 14. The A.W.- 2 admitted that he and Sri Kishan Chand both were clerks in the Veterinary College, Mathura. He knows Sri Jai Kishan Dixit (A.W.1) for about 10 or 15 years as Sri Jai Kishan Dixit had been taking contract in the Veterinary College. He had admitted his close relation with Sri Jai Kishan Dixit (A.W. 1). In his cross objection A.W. 1 admitted that he has been residing with the appellant, Sri Kishan Chand and others and that it was only occasionally he lived with his son. He also admitted that he used to sit on the photographer's shop of the appellant Sri Kishan Chand, and also some times handled the customers at that shop. 15. On these facts the court below came to the conclusion that the attesting witnesses of the Will in question (Ex. 3) were very close to each other and also close to the appellants and, therefore, their evidence requires strict scrutiny. The appellant no.4, Sri Sohan Lal (A.W.-3) in his cross examination admitted that his father, Sri Chhunnoo Lal and his uncle Sri Panna Lal used to look after and serve the testator Sri Chiranji Lal who died on 11.9.1971. However, subsequently, he stated that Sri Panna Lal had stopped looking after and serving Sri Chiranji Lal from about 2 or 4 years before the death of Sri Chiranji Lal. When Sri Sohan Lal (A.W.-3 ) was asked to explain as to why Sri Panna Lal stopped to serve Sri Chiranji Lal he stated that relation had become strained but he could not disclose any material cause for that. 338 INDIAN LAW REPORTS ALLAHABAD SERIES 16. Nothing was mentioned by the appellants that what led Sri Chiranji Lal to execute the unregistered Will in favour of the appellants in the year 1970 superseding the registered Will Ex.2 in favour of their father and uncle Sri Panna Lal. In the Will Ex.3 it was mentioned by the testator that Sri Chhunnoo Lal (father of the appellants) remained ill and he suffered very occasionally mental diseases and, therefore, he was incapable to look after the property and business, but nothing was mentioned about the opposite party no.5 for disinheriting him in whose favour the previous registered Will Ex.2 was executed. Thus the appellants who were propounders of the Will, had completely failed to explain the circumstances which led the testator to change his previous registered Will Ex.2 and to execute an unregistered Will Ex.3 in their favour. 17. The Ex.3 Will is a typed will. No evidence was brought on record as to who got it typed and handed over to the testator. In his evidence A.W.1 had only admitted to the extent that he had gone to Sri Rakhal Das, Advocate about 10 or 15 days before for a copy of the draft Will prepared by him. Thus it is not known that who got the Will typed and who delivered it to the testator. 18. The Will Ex.3 was not admitted by the opposite party No.5. In his objection he stated that to the best of his knowledge and conviction this Will did not bear the signature of the deceased Sri Chiranji Lal. Alternatively, he stated in his objection that if any signatures were obtained which he denied the same must had been obtained by fraud or misrepresentation. Thus the signatures of the Sri Chiranji Lal on disputed Will was denied by the objector, opposite party No.5. 19. The opposite party no.5 filed a report of Sri Salek Chand Verma (O.P. W.2) hand writing expert which was marked as Ex.A-2. He compared the disputed signatures of Sri Chiranji Lal on the disputed Will Ex.3 with the admitted signatures of Sri Chiranji Lal on the Will Ex.2. He deposed that the signatures of the Will Ex.3 were immitation forgery and that the writer of the admitted signatures on Ex.2 and the disputed signature on Ex.3 are of different persons. 20 .The court below, on consideration of various evidences; came to the conclusion that Sri Chiranji Lal was about 90 years old a weak man who mostly remained on the cot on the date of the Will Ex.3 but it was not established that he was not in sound disposing state of mind at that time. However, the Court below considered the suspicious surrounding circumstances in the light of the law laid down by Hon'ble Supreme Court in the case of Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another, A.I.R. 1962, SC 567(para 5) and certain other judgments and proceeded to examine the question as to whether the Will Ex.3 was surrounded by suspicious circumstances? On this point it was noted by the court below that the attesting witnesses of the disputed Will were very close to each other and also close to the appellants. They were not independent and impartial witnesses. The appellants had failed to explain the circumstances which necessitated Sri Chiranji Lal to execute the disputed Will in favour of the petitioner when the testator had bequeathed about 8 months back his property to both of his cousin brothers, namely, the father of the appellants and the opposite party no.5, by a registered Will (Ex.2) in which the names of the appellants and also the sons of opposite party no.5 were mentioned but their names were struck off from the said Will by the testator himself at the time of registration. This being so 7 All. Kedar Nath Vs State Of U.P. 339 the appellants could not prove that the relations of Sri Chiranji Lal and the opposite party No.5 had become strained. It remained mystery that who got typed the disputed Will and handed over it to the testator. The Will was not deposited by the testator himself. It was deposited by Sri Jai Kishan (A.W. 1) who used to live with the appellant and took active part in getting the Will prepared. Considering all these evidences on record, I do not find any infirmity in the findings recorded by the court below. The appellants have completely failed to remove the suspicious circumstances which surrounded execution and attestation of the disputed Will. 21. In view of the aforesaid this Court is of the view that the court below has not committed any error of law or facts to decide the issue no.1 against the appellants. 22. In view of the above discussion, I do not find any illegality in the impugned judgment. 23. In result, the appeal fails and is hereby dismissed. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 27.07.2016 BEFORE THE HON'BLE SHASHI KANT GUPTA, J. THE HON'BLE HARSH KUMAR, J. Criminal Appeal No.- 264 Of 1983 Kedar Nath ...Appellant Versus State Of U.P. ...Respondent Counsel for Appellant: V.S. Singh, Adhya Gupta, D. Singh, M. Islam Counsel for Respondent: A.G.A Indian Penal Code, 1860 - Ss. 302 & 307 - Murder and Attempt to Murder - Ocular Evidence - Corroboration by Medical Evidence - Injured First Informant as Natural Eye Witness - Two independent eye witnesses accompanying him - Consistent and trustworthy testimonies - Conviction upheld - The accused-appellant was convicted by the trial court under Sections 302 and 307 IPC for causing the death of Prem Chandra and causing grievous injuries to first informant Suresh Chandra Singh by stabbing them with a knife. The first informant (P.W.1), being an injured witness, is a natural eye witness of the occurrence. His statement was fully corroborated by the medical evidence on record as well as by two other independent eye witnesses, Kamlesh (P.W.2) and Awadh Bihari (P.W.4), who were accompanying him at the time of occurrence, and with whom the accused-appellant had no enmity. The evidence of P.W.1, P.W.2 and P.W.4 was consistent with regard to the place and manner of occurrence. The argument that no injuries were found on the palms of the injured or deceased - which would naturally occur