Ramcharan, S/O.Ganeshilal Agarwal Vs Ramgopal… — Succession and Inheritance | Bombay HC (2007)

Ramcharan, S/O.Ganeshilal Agarwal Vs Ramgopal… — Succession and Inheritance | Bombay HC (2007)

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 ORDINARY ORIGINAL CIVIL JURISDICTION

APPEAL NO. 976 OF 2001

IN

 TESTAMENTARY SUIT NO. 49 OF 1989

IN

 TESTAMENTARY PETITION NO. 209 OF 1989

 RAMCHARAN, son of GANESHILAL AGARWAL )

 sole Legatee named in the Last Will )
 and Testament of the deceased abovenamed)

 of bombay, Hindu Inhabitant,residing )

 at 19, Neelam, 80 Marine Drive, )

 Mumbai 400 002. )..Appellant

 (Org. Plaintiff)

 Versus

 RAMGOPAL GANESHILAL MITTAL AGARWAL )
 of Delhi, Indian Inhabitant, )

 residing at 1287, Sultan Singh Gate, )
 Kashmiri Gate, Delhi 110 006. )..Respondent

 (Org. Defendant)

 Ms. Rajni Iyer, Senior Advocate, i/b. Ms. Bhadra Dalal,
 Advocate for the appellant.

 Mr. P.V.Sathe, Advocate, i/b. U.L.Shah,Advocate, for the
 respondent.

CORAM: D.K.DESHMUKH &

 J.H.BHATIA,JJ.

JUDGMENT RESERVED ON: 12.09.2007

PRONOUNCED ON : 08.10.2007

JUDGMENT (PER J.H.BHATIA,J.)

 1. Being aggrieved by the Judgment and Order dated
 23rd August, 2001 passed by the learned Single Judge of
 this Court whereby the Testamentary Suit No.49 of 1989
 in Testamentary Petition No. 209 of 1989 seeking
 Letter of Administration came to be dismissed, the
 original plaintiff/petitioner has preferred this Appeal.

 2. To state in brief, it is an admitted fact that
 deceased, Ganeshilal Agrawal, had two sons who are the
 plaintiff and the defendant respectively and five
 daughters who were all married. Ganeshilal Pyarelal
 Agrawal was the resident of Hathras in U.P. His elder
 son Ramcharan, who is the plaintiff, is residing at
 Mumbai, while younger son Ramgopal, who is the
 defendant, is residing at Delhi. Ganekshilal and his
 two sons were carrying on business in partnership in the
 name and style of "M/s. Laljimal Tikaram" at three
 places i.e. Hathras, Mumbai and Delhi and each of them
 held 1/3rd share in the same and some other property.
 Ganeshilal had come to Mumbai on 24.9.1981. On

 9.10.1981, he died at Mumbai. His body was taken to
 Hathras for funeral. His wife had died in the year
 1969. The plaintiff filed the Testamentary Petition
 No.209 of 1989 in this High Court claiming Letter of

 Administration of the property of the deceased on the

 basis of a Will allegedly executed by deceased
 Ganeshilal on 5.10.1981 bequeathing all his property
 exclusively to the plaintiff. Admittedly, in the year
 1958, Ganeshilal had executed one Will bequeathing all
 his property to the plaintiff and the defendant equally,
 however, by the last Will dated 5.10.1981, he bequeathed
 all his property to the plaintiff alone. The
 defendant/caveator appeared and contested the petitioon
 and, therefore, it came to be registered as Testamentary
 Suit No.49 of 1989.

 3. The defendant denied that his father Ganeshilal
 had executed any Will on 5.10.1981. According to him,
 the Will propounded by the plaintiff is a suspicious and
 fabricated document. The attesting witnesses,
 Vijaykumar Agarwal and Ramgopal Agarwal are son-inlaw
 and brother-in-law respectively of the plaintiff and
 they are interested in favour of the plaintiff.
 According to him, in earlier arbitration proceedings,
 the plaintiff had alleged that there was oral Will and
 in Suit No.737/1984 filed by the defendant in the Delhi
 High Court, the plaintiff had contended that there was
 another Will, but it was not available. According to
 the defendant, this Will has been propounded eight years
 after the death of father in suspicious circumstances
 and, therefore, no Letters of Administration can be

 granted in favour of the plaintiff.

 4. The learned Single Judge framed certain issues
 and after hearing the oral and documentary evidence
 produced by the party, held that the plaintiff had
 failed to prove that deceased Ganeshilal had executed
 the Will on 5.10.1981. In the result, the suit came to
 be dismissed.

 5. In the Appeal, it is contended that the learned
 Single Judge failed to appreciate the oral and
 documentary evidence while coming to the conclusion that
 the Will was not executed by deceased Ganeshilal. It is
 contended that the learned Single Judge, after a minute
 scrutiny and discussion of the evidence, had come to the
 conclusion that the relations between the deceased and
 the defendant were very much strained, that the deceased
 was displeased with the defendant and he wanted to
 change his earlier Will as he did not wish to give any
 share in the properties to the defendant; that the
 deceased wanted to give whole of his property to the
 plaintiff and for that purpose, he wanted to make a
 fresh Will cancelling the earlier one, that the deceased
 was, at the relevant time, in a sound and disposing
 state of mind and that the Will Exhibit "G" bears
 signature of the deceased himself. Plaintiff contends
 that inspite of these findings, the learned Single

 Judge, without any justification and without any
 material before him, came to the conclusion that the
 Will was prepared by the plaintiff on the old blank
 paper bearing signatures of the deceased to give effect
 to the desire of the deceased to make a bequest in his
 favour. It is also contended that the learned Single
 Judge committed error in coming to the conclusion that
 to explain the inordinate delay in surfacing of the Will
 Exhibit "G", a theory of late discovery of the Will has
 been put forward. It is also contended that the learned
 Single Judge committed error in holding that the old
 punch marked papers used for preparation of the Will,
 insertion of unwanted description of Kothi therein and
 the fluent signature of the deceased thereon speak for
 its manipulation. It is contended that the learned
 Single Judge also committed error in holding that the
 non-disclosure of the making of the Will by the deceased
 to the plaintiff is the most suspicious circumstance.
 It is contended that if the plaintiff wanted to forge
 the Will, he could have done it immediately after death
 of his father, but the record reveals that plaintiff was
 not showing any interest in making of Will of his father
 bequeathing whole of his property to him. It is
 contended that merely because the attesting witnesses
 are close relatives of the plaintiff, the document
 cannot be suspicious nor evidence of P.W.4 - Vijaykumar
 Agarwal, who is one of the attesting witnesses, can be

 rejected on that ground particularly when in the

 cross-examination no material has come on record to
 disbelieve him. It is contended that this witness was
 not cross-examined on the point of punch marks or old
 thin nature of the papers used for the purpose of
 preparing the Will or about the other contents. It is
 contended that initially, the defendant had taken a plea
 that the signature on the Will is not of his father, but
 later on, an attempt was made to contend that the
 signature was genuine but the Will was prepared on the
 old blank paper bearing signature of his father.

 6. Heard learned Counsel for the parties. The
 learned Counsel for the Plaintiff/appellant vehemently
 contended that Vijaykumar Agarwal had no reason to
 believe that Ganeshilal had not disclosed execution of
 the Will to the plaintiff and he, being son-in-law did
 not feel it necessary to speak about the Will to him or
 to other members of the family, including his wife. It
 is vehemently contended by the learned Counsel for the
 plaintiff that in 1981, the plaintiff was not aware
 about the execution of the Will, but he was aware that
 his father wanted to make a Will in his favour and he
 had also produced a note Ex.N prepared by his father,
 wherein he had expressed his desire to change the Will
 and to make a fresh Will bequeathing whole of his
 property to the plaintiff. After the suit was filed by

 the defendant in the Delhi High Court, the plaintiff was
 required to visit Delhi frequently and, therefore, one
 day when the plaintiff had occasion to meet his
 son-in-law Vijaykumar, the latter asked him about the
 frequent visits. When he was told about the nature of
 the litigation, Vijaykumar disclosed that deceased
 Ganeshilal had executed a Will. On the basis of that
 the plaintiff took a stand before the Delhi High Court
 about execution of the Will, but as the Will was not
 available at that time, he also pleaded that the Will
 was not available. It is contended that the Will was
 traced out in the year 1989 from health file of the
 deceased which he himself used to maintain and then the
 Will was propounded and this petition for Letters of
 Administration was filed. This explains the delay of
 about 8 years in propounding the Will.

 7. The learned Counsel for the respondent strongly
 supported the impugned order and the findings of the
 learned Single Judge. The learned Counsel for the
 defendant-respondent pointed out the following
 circumstances and improbabilities while challenging 4he
 execution of the Will by the deceased. It may be noted
 that these circumstances were raised before the trial
 Court and they are referred to in para 10 of the
 Judgment of the learned Single Judge.

 "i) The paper of the will is old with a punch

 mark and a mark of removal of rusted pin.
 Spacing of lines is different.

 ii) The description of the property (Kothi)
 given at the bottom of the document has no
 relevance to other contents and it is added to
 fill in the blank space between the last line
 and the signature of the deceased thereon.

 iii) No evidence is produced as to who drafted
 and typed the will.

 iv) Both the attesting witnesses are closely
 related to the plaintiff and are interested in
 him.

 v) Non disclosure of the execution of the will
 to the plaintiff:

 a) by the attesting witnesses for a period of

 three years and

 b) by the deceased till his death.

 vi) The will executed on 5.10.1981 became known

 in 1984 and was discovered in 1989. Till then

 it was lying in the Health File of the deceased

 kept in a cupboard but despite extensive search

 it could not be located earlier.

 vii) The deceased was ailing for quite some time
 before the making of the will and was not having
 sound and disposing mind.

 viii) Unnatural disposition of property. Under
 his first will made in 1958, the deceased had
 given equal shares to both of his sons in his
 property. But the will of 1981 dis-inherits the
 defendant totally and confers all benefits
 exclusively on the plaintiff without assigning
 any reason.

 ix) The plaintiff propounded an oral will of the
 deceased in other proceedings."

 8. On behalf of the plaintiff, four witnesses were
 examined, while defendant examined himself. Out of the
 four witnesses examined by the plaintiff, PW-1 Anthony
 and PW-2 Manohar were officers of the Bank and they were
 called only to get the specimen signatures of the
 deceased. It may be noted that initially, it as a plea
 of the defendant that the signature on the Will is not
 of the deceased, but has been forged. It may be noted

 that in the proceeding before the arbitrator in Delhi

 the signatures on the Will were also referred to one
 handwriting expert at the instance of the defendant
 however, the handwriting expert was not examined by the
 defendant in the present matter. During the
 cross-examination of the plaintiff, on behalf of the
 defendant, a theory was propounded that signatures on
 the Will are genuine, but the Will was prepared on the
 old blank papers bearing signatures of the deceased. In
 view of this stand, the evidence of P.W.1 and 2 becomes
 unnecessary and immaterial and, therefore, the learned
 Single Judge rightly came to the conclusion that the
 signatures on the Will are of the deceased. P.W.3 is
 the plaintiff himself and P.W.4 Vijaykumar is one of the
 attesting witnesses of the Will.

 9. The learned Single Judge referred to several

 documents particularly the letters written by the
 deceased himself as well as a letter written by the
 defendant to his father to come to the conclusion that
 the relations between the deceased and the defendant
 were strained for about 3-4 years prior to his death.
 The learned Single Judge, after referring to the

 letters, particularly the letter Exhibit "C" dated

 7.8.81, Exhibit "D" dated 10.8.81, Exhibit "I" dated
 25.2.81, Exhibit "J" dated 28.5.81, Exhibit "L" dated
 17.8.81 and Note Exhibit "N" which does not bear any

 date came to the conclusion that these are the letters

 and the note in the handwriting of the deceased and the
 deceased was conversant not only with Hindi, but also
 English and in his letters, at many places, he had used
 English words. The learned Single Judge also noted that
 in the letter Exhibit "AA", written by the defendant to
 his father, he had used several English words and those
 English words were written in Roman script, which
 indicated that his father must be well acquainted with
 the English language. This discussion was necessary
 because signature of the deceased Ganeshilal as
 "Ganeshilal" is written in English on the disputed Will.
 After referring to the stand taken by the defendant
 during the evidence and the writings, the learned Single
 Judge came to the conclusion that the signatures on the
 Will Exhibit "G" are of deceased Ganeshilal.

 10. The learned Single Judge referred to the
 contents of documents and letters extensively before
 coming to the conclusion that the relations between the
 deceased and the defendant were strained for a period of
 about 3-4 years and, therefore, the deceased had taken
 decision to dis-inherit the defendant from his property.
 Therefore he had taken a decision to cancel the earlier
 Will of 1958 and to make a fresh Will whereby he wanted
 to bequeath whole of his property to the plaintiff
 alone. It is not necessary to refer the contents of

 those letters extensively in this Judgment. However,

 some examples may be given. In the letter Exhibit "I"
 dated 25.2.1981, the deceased expressed "I think R.G.
 (which means Ramgopal the defendant) has changed his
 mind or there is some mystery since before." The letter
 Exhibit "F" dated 15.2.81 from the defendant to his
 father also shows that his father was upset with him
 and his wife and was not happy about their behaviour.
 In the letter exhibit "J" dated 18.5.81, the deceased
 said "Day by day, R.G.’s behaviour is becoming worse."
 By letter exhibit "C" dated 7.8.81, the deceased warned
 the plaintiff against the activities of the defendant
 and to act after properly understanding the deeds of the
 defendant. In his letter Exhibit "D" dated 10.8.81, the
 deceased cautioned the plaintiff that the defendant
 would not bother for Shastra, religion, society,
 propriety and impropriety, but will go only by law and
 possession. He also told the plaintiff that they were
 compelled to prepare themselves for retaliation. By his
 letter Exhibit "L" dated 17.8.1981, the deceased clearly
 expressed that without a loss of even a minute the Will
 should be prepared in such a way that the defendant
 should not be in a position to challenge the same. In

 that letter, he also said "Will should be made at this
 moment and this is an important work which you do not
 like". In the said letter, he had also said that one
 Panditji of Giriraj had told him that his death was very

 near and this was the reason why he was in hurry to make

 a Will. In the next para of the same letter, he
 directed the plaintiff to get prepared a draft of the
 Will and to despatch to him in a packed envelope as the
 defendant was capable of doing anything. If this letter
 is carefully read, it also indicates that while the
 deceased was expecting his death any moment, he wanted
 to make the Will immediately without loss of a moment.
 It also indicates that the desire of the deceased to
 make a fresh Will was not liked by the plaintiff. It
 shows that the plaintiff was not interested in getting
 the old Will revoked and in getting new Will made in his
 favour. Same desire has been expressed by him in letter
 Ex."K" of August 1981 as well as in the note Exhibit "N"
 which does not bear any date, but appears to be of the
 same period. In this note Exhibit "N", he clearly
 expressed that after his death, his 1/3rd share in
 business of L.T. (Laljimal Tikaram) will go to
 plaintiff Ramcharan and defendant Ramgopal will have no
 right in the same. In view of this documentary evidence
 from the letters written by the deceased himself, the
 learned Single Judge came to the following four
 conclusions :-

 "i) That the relations between the deceased and
 the defendant were very much strained.

 ii) That the deceased was displeased with the
 defendant and he wanted to change his earlier
 will as he did not wish to give any share in his
 properties to the defendant.

 iii) That the deceased wanted to give his
 properties to the plaintiff and for that purpose
 he wanted to make a fresh will cancelling the
 earlier one.

 iv) The deceased had at the relevant time sound
 and disposing mind."

 After going through the documentary evidence, we fully
 endorse these conclusions drawn by the learned Single
 Judge.

 11. Having arrived at the above conclusions, the
 learned Single Judge proceeded to discuss the evidence
 and contentions of the rival parties to come to
 conclusion that Exhibit "G" is not the genuine document
 executed by deceased. The learned Single Judge noted
 that there was delay of about 8 years in propounding
 this Will and if the Will was executed by the deceased
 he would have disclosed this fact to the plaintiff and
 even the attesting witness, PW-4 Vijaykumar would have
 informed the plaintiff or at least his own wife. The

 learned Single Judge also found that the paper used for
 making the will appears to be very old and had some old
 punch marks creating suspicion about the same. The
 learned Single Judge also found that the deceased
 Ganeshilal was not keeping good health and his
 handwriting had become shaky. Though the alleged will
 was executed only 4 days before his death, the signature
 appears to be fluent. Therefore, the learned Single
 Judge came to the conclusion that the plaintiff must
 have used some old blank paper bearing signature of his
 father to prepare the disputed Will.

 12. The learned Single Judge relied upon H.
Venkatachala Iyenger v/s. b. N. Thimma Jamma & Ors.

AIR 1959 SC 443 wherein Their Lordships observed as
 follows :-

 "Apart from the suspicious circumstances to
 which we have just referred in some cases the
 will propounded discloses 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 circumstances

 attending the execution of the will and the
 propounder is required to remove the said
 suspicion by clear and satisfactory evidence."

 The learned Single Judge also relied upon Jaswant Kaur

V/s. Amrit Kaur AIR 1997 SC 74 wherein Their
 Lordships observed as follows :-

 "In cases where the execution of a will is
 shrouded in suspicion, its proof ceases to be a
 simple lit between the plaintiff and the
 defendant. What, generally, is an adversary
 proceeding becomes in such cases a matter of the
 court’s conscience and then the true question
 which arises for consideration is whether the
 evidence led by the propounder of the will is
 such as to satisfy the conscience of the court
 that the will was duly executed by the testator.
 It is impossible to reach such satisfaction
 unless the party which sets up the will offers a
 cogent ad convincing explanation of the
 suspicious circumstances surrounding the making
 of the will."

 There can be no dispute about the legal proposition
 stated in the above two authorities. The evidence led

 by the parties and the reasons given by the learned
 Single Judge for dismissing the suit will have to be
 minutely considered in the light of the above
 authorities.

 13. The learned Single Judge found that there were
 punch marks on both the sheets of the Will and the
 papers were very old and, therefore, there was
 possibility that the old blank papers bearing signatures
 of the deceased were used for that purpose. We find
 that no question was put to the attesting witness
 Vijaykumar about the condition of the papers or about
 the punch marks on the same. It needs to be noted that
 the said Will purports to have been prepared on 5.10.81.
 The evidence was recorded during the year 1999-2000 and
 the judgment was pronounced in August 2001. When the
 learned Single Judge must have perused these documents
 in the year 2001, the papers were admittedly about 20
 years old and, therefore, merely because the papers
 appear to be old, it was difficult to come to the
 conclusion that the old papers were used for the
 preparation of the Will in the year 1981 or thereafter.

 14. The learned Counsel for the plaintiff contended

 that about the dispute before the arbitrator at
 Delhi,this document was sent to Delhi and was referred
 to handwriting expert. According to her, there is

 possibility that when these papers were sent to Delhi in
 a packet, they must have been punched. That itself was
 in the year 1990 or so. If the pin used for that
 purpose gets rusted, it will leave its marks and the
 period of about 10 - 11 years is not short for this
 purpose. Therefore, in our considered opinion, the old
 punch marks are also not sufficient ground to hold that
 these were the old blank signed papers lying with the
 plaintiff when the Will got prepared. In our considered
 opinion, the evidence of attesting witness, Vijaykumar,
 was material and in absence of any cross-examinatioon in
 this respect we find it difficult to endorse the view
 taken by the learned Single Judge on this point.

 15. The learned Single Judge noted that the
 plaintiff himself had admitted in the cross that he had
 used two blank cheques bearing signatures of his father
 and had withdrawn the amount of Rs.1,20,000/- from his
 account after his death and this indicates that he had
 the capacity to manipulate the record. The evidence on
 record clearly shows that Ganeshilal and his two sons
 were carrying on business at three different places i.e.
 Hathras, Delhi and Mumbai in partnership and each of
 them was required to deal with the banks on behalf of
 partnership firm. It is possible that for the purpose
 of the business, the blank signed cheques were kept by
 the deceased Ganeshilal with the plaintiff and they were

 used for the same purpose. The learned counsel for the
 plaintiff vehemently argued that blank cheques and blank
 papers were altogether different matter while the
 cheques were required for everyday business depending on
 the requirement of the business, blank papers were not
 required for writing any letters, etc. There is no
 material to show that any such blank paper was ever left
 by the deceased with the plaintiff or the defendant The
 learned Single Judge seems to have drawn the inference
 that signed blank papers must be lying with the
 plaintiff merely because such cheques were with him. In
 our opinion, it will not be proper to draw such
 inference.

 16. The evidence on record shows that on 24.9.1981,
 deceased was brought to Mumbai by train. He was 88
 years old at that time. On 5.10.81, he allegedly
 executed the Will and he died on 9.10.81. The learned
 Single Judge noted that when he came to Mumbai after
 undergoing continuous journey of 20 - 22 hours, he was
 tired and exhausted, particularly because he had
 previously suffered heart attach also. There is no
 dispute that he had suffered heart attack sometime in
 early part of 1981, but if his correspondence and even
 his note written on 5.10.81 itself are perused, it
 appears that he was physically as well as mentally alert
 and active. On 5.10.81, he had written a note Exhibit

 "B" about his minute health problems particularly about
 excessive urination, weakness, some pain in chest and
 right arm, pain in spinal cord, shoulders, bones, etc.
 At the age of 88 years and few days before his death, if
 he was suffering from such problems, it was not
 something exceptional, but his noting down such health
 problems minutely was, in fact, an exceptional thing for
 an old man aged 88 years. If we look to his
 correspondence, referred earlier which was made during
 the month of February-March, 1981 and in August 1981
 onwards it appears that he was mentally alert and was
 keeping a minute watch on the defendant and he used to
 advise the plaintiff about such matters. The Will was
 allegedly executed 11 days after his arrival at Bombay.
 Therefore tiring journey of 20-22 hours could have no
 effect on him when the Will was executed.

 17. The learned Single Judge noted that his
 handwriting appears to have become shaky, while his
 signatures on the disputed Will Exhibit "G" which appear
 to be genuine, do not give any indication of such
 shaking of hand. We have carefully gone through his
 letters written by him as late as August 1981. It may
 be noted that he used to generally write in Hindi, but
 in some of the letters, he also used English words
 written in Roman script. Looking to such English words
 written by him in his letters Exhibits "C" dated 13.8.81

 and Ex. "D" dated 10.8.81, it is difficult to come to

 conclusion that his hand was shaking or there was any
 change in his writing due to old age. If his signatures
 on the earlier Will Exhibit "S" of 1958, his specimen
 signature with Banks of 1973 and the disputed Will are
 compared, one finds no difference. Same can be said
 about his handwriting particularly address written by
 him on the different inland letters, etc. The attesting
 witness Vijaykumar has specifically deposed that
 deceased had put signatures on the Will in presence of
 himself and another attesting witness Ramgopal and they
 had also in turn put signatures in presence of the
 deceased. Even though defendant No.1 had referred the
 disputed Will to handwriting expert, when the matter was
 pending for arbitration at Delhi, he did not examine the
 handwriting expert in this matter to establish that the
 signatures on the disputed Will are not of the deceased.
 It is important because initially he had pleaded that
 the signatures were forged, but later on, he took a
 different stand contending that the signature was
 genuine but the old blank papers bearing signatures of
 the deceased were used for forging Will.

 18. It was contended on behalf of the defendant and
 the learned Single Judge accepted that Vijaykumar, being
 son-in-law, and another attesting witness Ramgopal
 Agrawal, being plaintiff’s wife’s brother, are closely

 related to him and Ramgopal had financial dealings with
 the plaintiff and, therefore, they were interested for
 the plaintiff. It is true that they are close relatives
 of the plaintiff, but merely because of this reason
 evidence of Vijaykumar cannot be discarded or
 disbelieved nor the Will can be suspected. It may be
 noted that on 24.10.1973, the defendant had settled a
 trust for the benefit of the wife and children of the
 plaintiff and in that trust, Ganeshilal, defendant and
 his wife were the trustees. It is the contention of the
 plaintiff that a similar trust was also settled by his
 brother-in-law, Ramgopal Agrawal in favour of the wife
 and children of the defendant. A notice was issued to
 the defendant to produce that trust deed however, the
 defendant refused to produce the same. In view of his
 non-production, inference can be drawn that if that
 document would be produced, it would reveal that the
 attesting witness Ramgopal was settlor of that trust
 deed. If it is so, it appears that Ramgopal Agrawal was
 close with both the parties even though he happens to be
 brother-in-law of the plaintiff. It has come on record
 that he was advanced an amount of Rs.71,000/- for his
 business by the plaintiff, but that itself cannot be a
 ground to disbelieve him.

 19. It is vehemently contended on behalf of the
 defendant that non-disclosure of the Will by the

 deceased as well as the attesting witnesses to the
 plaintiff immediately after execution of the Will as
 well as delay in propounding the Will is very serious to
 suspect the genuineness of the Will. The learned Single
 Judge accepted this contention. However, if evidence is
 closely scrutinised, taking into consideration the
 desire of the deceased to execute a Will in favour of
 the plaintiff, excluding the defendant from inheritance
 and the other circumstances, this contention cannot be
 accepted. Already it is pointed out that the deceased
 had repeatedly expressed his desire to execute a will
 particularly because of the conduct and behaviour of the
 defendant which was day-to-day worsening. The letter
 Exhibit "F" dated 15.2.81 from the defendant to his
 father clearly indicates that the deceased was not happy
 not only with the defendant, but also with his wife.
 The deceased expressed in the letter Exhibit "L" dated
 17.8.81 that he wanted his will to be executed without
 loss of a minute. He also expressed that the plaintiff
 did like this idea which indicates that the plaintiff
 was not keen on the change of Will and possibly this was
 the reason that when the deceased executed the Will on
 5.10.81, even at the house of the plaintiff himself at
 Mumbai, he did not feel it necessary to disclose this
 fact to him.

 20. The attesting witness Vijaykumar is the

 son-in-law of the plaintiff. They belong to Marwadi
 community. He was married only few years before i.e.
 on 7.12.1977 and it appears that he did not feel it
 proper to interfere in the family and property matters
 of his father-in-law. May be, due to this reason, when
 the deceased asked him to read the contents of the Will
 before its execution,Vijaykumar said that it was not
 necessary and thereafter the deceased put signatures on
 it in presence of both the attesting witnesses.
 Possibility cannot be ruled out that Vijaykumar was
 under the impression that the plaintiff must be aware
 about the Will and therefore he did not speak about it
 either to the plaintiff or to his own wife. It appears
 from the evidence that in 1984, when in connection with
 the suit filed by the defendant in the Delhi High Court,
 the plaintiff was required to go there repeatedly and
 when Vijaykumar came to know about it, he told the
 plaintiff that there was a Will executed by the deceased
 and, according to the plaintiff, at that time for the
 first time, he came to know that the Will was actually
 executed. Admittedly, prior to that when the matter was
 before the arbitrator, the plaintiff had produced the
 Note Exhibit "N" written by the deceased to show the
 desire of the deceased to bequeath whole of his property
 in favour of the plaintiff and he had taken a plea that
 even though it was oral it was as good as written. Such
 a stand could not be accepted. After he came to know

 from the attesting witness Vijaykumar in 1984, that in

 fact, such a Will was executed, he took that stand
 before the Court in Delhi but also pleaded that the Will
 was not available. He explained that in 1989, during
 the search of the almirah, which was in use of the
 deceased father, he found a file containing health
 papers of the deceased and in those papers he also found
 the Will of the deceased and thereafter he propounded
 it. In such circumstances, if the Will was actually
 found in the year 1989 and shortly after that the
 plaintiff filed the petition for letters of
 administration, it cannot be said that delay in
 propounding the Will is not explained.

 21. The learned Single Judge noted that as per the
 custom among Hindus, clothes of deceased are disposed
 of on the 10th day. However, in his evidence, the
 plaintiff denied that there was any such custom, though
 of course, it can be believed that after the death of a
 person the relatives would not retain the clothes of the
 deceased for very long period unless there is some
 special reason for the same. The evidence

 reveals that after his death, his dead body was taken to
 Hathras by flight for funeral. There is a possibility
 while taking his body, the plaintiff and other family
 members might not have collected all the clothes and
 papers of the deceased with them. It appears that later

 on a trunk of the deceased lying in the house was

 searched but no Will was found. However, later on, a
 file containing health papers and the Will was found in
 an almirah under the clothes. This has lost sight of
 for long time. Therefore merely because the file
 containing health papers as well as the Will remained in
 the cupboard unattended for long time, genuineness of
 the Will cannot be suspected.

 22. It was argued on behalf of the defendant that
 the person who had drafted or typed the disputed Will
 has not been examined and that is also a ground to
 suspect the genuineness of the same. In fact, it is not
 necessary for the propounder of the Will, unless he
 himself had taken active part in preparation and
 execution of the same, to produce such evidence. In
 fact, if, as the circumstances of the present matter
 revealed, the plaintiff himself was not keen on
 execution of such a Will and he had not played any role
 in preparation and execution of the same, he could not
 be expected to know about the person who had drafted the
 Will or who had typed it. The evidence on record
 reveals that while in Mumbai, the deceased had taken
 assistance of one Krishna Kumar who had taken him to
 Advocate Chaganbhai. It appears that deceased must have
 consulted him before preparing and executing the Will as
 in his letters addressed to the plaintiff, in the month

 of August, he had cautioned that it was necessary to be
 careful so that Will could not be challenged by the
 defendant. In our opinion, when by an unimpeachable
 evidence, it is proved that the deceased wanted to
 dis-inherit the defendant and to bequeath whole of his
 property to the plaintiff and when genuineness of his
 signature on the disputed Will is also no more in
 dispute and when the attesting witness, Vijaykumar, has
 also deposed that the Will was actually executed by the
 deceased in his prtesence, we find no justification to
 suspect the same merely because Krishna Kumar or
 Advocate Chaganbhai were not examined. In fact, none of
 them was the attesting witness. It is argued on behalf
 of the defendant and the learned Single Judge also
 upheld the argument to the effect that the disputed Will
 is identical with the earlier Will of 1958 Exhibit "S".
 On perusal of these two Wills, it can be said that when
 the disputed Will Exhibit "G" was typed, the earlier
 Will must have been before the person who drafted or
 typed it because some of the sentences are word to word
 identical. However, there were two differences. First
 difference is that in the earlier Will, property of the
 deceased was bequeathed to the plaintiff and defendant
 equally, while in the latter Will, whole of his property
 was bequeathed to the plaintiff alone. Another
 difference is that when the earlier Will was prepared ,
 wife of the deceased was alive and, therefore, he had

 given life estate in his Kothi at Hathras after her

 death to both the sons equally, but she was no more

 alive when the disputed Will as prepared in 1981 and
 therefore there is no specific mention about bequeathing
 the Kothi. It is pointed out on behalf of the defendant
 that in the earlier Will, the description of Kothi at
 Hathras was written by the deceased himself below the
 sentence "In witness whereof I Ganeshilal abovenamed do
 hereby set my hand at Hathras this 24th day of May
 1958". Below this sentence, the description of the
 Kithi was given and then there were signatures of the
 deceased and the attesting witnesses. Similar position
 is to be found in the disputed Will Exhibit "G". In

 view of the fact that the second Will is totally silent
 about the Kothi the description of that Kothi at the
 bottom of the second Will in the above referred manner
 is unnecessary and irrelevant. It is contended that
 possibly because there was sufficient space between the
 signature of the deceased and the above referred
 sentence to fill in the gap the description of the Kothi
 was typed In our opinion, there is a possibility that
 the deceased might have given the earlier Will to the
 person who prepared and typed it with the instructions
 about changes. Possibility cannot be ruled that the
 person, who typed the Will, mechanically noted down the
 description of the Kothi in the same manner though it
 was not necessary. In our opinion, this circumstance

 also cannot be sufficient to discard the disputed Will.

 23. Having considered the evidence minutely and the
 reasons given by the learned Single Judge for suspecting
 the genuineness of the Will, we find ourselves unable to
 agree with the learned Single Judge. Taking overall
 view of the documentary and oral evidence on record, we
 are satisfied that the Will Exhibit "G" is a genuine
 document and the plaintiff is entitled to get letter of
 administration. Therefore, we find that the Judgment
 and Order passed by the learned Single Judge are liable
 to be set aside.

 24. In the result, the Appeal is allowed. The

 Judgment and order passed by the learned Single Judge in
 Testamentary Suit No.49 of 1989 in Testamentary Petition
 No.209 of 1989 are hereby set aside. The suit is
 decreed. The Letters of Administration be issued as
 prayed. No order as to costs.

(D.K. DESHMUKH,J.)

(J.H.BHATIA,J.)