Ajoy Nath Ray, C.J and Ashok Bhushan, J.:— This is a testamentary appeal in relation to the alleged last Will and testament, dated the 5th of January, 1993, of the deceased Majaraja Martand Singh of Rewa, the famous tiger county of the State of Madhya Pradesh where, as the saying goes at that place, the first natural white tiger cub was born and bred.
2. There are a lot of events and interesting facts involved in this case, but most of these being already dealt with somewhere or the other in the judgment under appeal, we wish to keep the narration of facts as brief as possible.
3. The Maharaja was born sometime in or about the 1920's and died in November, 1995, i.e, quite some three years or so after the Will was signed. The caveator and cavetrix are the present Maharaja Pushpraj Singh and the surviving widow of the Maharaja, namely, Maharani Parveen Kumari.
4. The estate left behind by the Maharaja is extensive and vast; it includes no fewer than three forts including those at Bandhavgarh and Rewa, and there are landed properties of considerable value in Allahabad and Bombay also. The assets are large and the case has been fought out bitterly.
5. Not all the executors made the application for probate, but none of the absent executors has opposed the application either.
6. The Will runs into great detail. We have examined the original Will by causing production of it before us from the safe custody of the learned Registrar General of our Court and after our examination, it was consigned to the said safe custody once again. A copy of the Will is given in a photocopy in a paper book also, and it runs to 13 typewritten sheets. It contains five schedules marked A, B, C, D, and E. In Schedule-C, the names of legatees being the employees and others connected to the Maharaja are given, and the total number of names is 72. In Schedule-D, which is for the purpose of buying annuities, the names of 25 persons are given and there are several common names between Schedules-C and D. Land allotment is made to 19 named persons in Schedule-E, together with the details of the situation of the land and the area of bequest. Twice the bequest is of an acre, once of 1.50 acre and once of 0.25 acre, and rest of the time of one fifteenth of an acre.
7. The number of clauses in the Will is 22; all pages in the Will are signed by the Maharaja and one or two pages are signed twice.
8. In the bequest, Maharaja Pushpraj Singh does not figure at all. Maharani Praveen Kumari has been bequeathed Rs. 10 lacs. Excepting for this, the Will cuts them out completely, but it is mentioned in the Will that because of a partial partition made between them and the Majaraja on the 9th of March, 1971, no more need be given to them.
9. Of all the executors, three persons deserve special mention. One is Dr. Sajjan Singh, brother of Mr. Arjun Singh, who is well known by himself; the other one is one Gyanendra Singh, who gave evidence and who is an Advocate, and who was present in Court before us throughout when the appeal was heard although he did not make any submission at any time. The third person, who deserves mention, is one Laxman Prasad Misra, who was originally employed by Maharaja Martand Singh as his driver, but had risen from that position to the position of practically an all in all Secretary, who was assisting the Majaraja in every matter. Laxman was awarded in the Will Rs. 5 lacs by way of money bequest, another Rs. 5 lacs for the purpose of purchasing annuity, and was given one acre of land. He was also the trustee of an important 1992 trust, again allegedly executed by the Majaraja, in the month of November that year, which will require further mention hereafter.
10. This trust was named ‘Majaraja Gulab Singh Trust’ after the name of the father of Martand Singh. It was brought into existence in November, 1992 with a corpus of only about Rs. 11,000/-; it was registered in that year. Laxman Prasad Misra was a trustee of the trust and so were S.P Misra, his son, as well as the said Dr. Sajjan Singh and the said Gyanendra Singh. On a construction of the Will, (which is not the job of this Court at the time of only granting probate of the Will or refusing it), it seems at first glance and we repeat, at first glance only, that the bulk of the residuary property, which would include Forts, kothies and a lot of real estate have been given away to the trustees of the Gulab Singh Trust; the trust deed appears to have been made for the benefit of the people of Rewa as the Central motive thereof.
11. It is well known that in a probate case, the first job is of the propounder to satisfy the Court about the due execution and attestation of the Will and also about the sufficient mental capacity of the testator to make the Will at the material time.
12. The propounder went about this task by calling Gyanendra Singh, who was an attesting witness, Dr. R.P Srivastava, who was also that, and they called amongst others one Dr. R.G Singh for the purpose of establishing the mental capacity of the Maharaja. The Will was not registered there and then as the trust of November, 1992 had been. Instead the Will was put in a sealed cover and kept in the safe custody of the Registrar of the Assurances, which is permitted in law. One Balram Prasad Dubey, a Sub-Registrar of Assurances was called by the propounders to substantiate this part of the case. He said that the Maharaja, who was the depositor, signed the depositing envelop and the Will was kept there; he also said that he came to the garden of Khakhari Kothi, where Maharaja Martand Singh was staying and he found a party assembled on the lawns. The opponents have commented that on the basis of the evidence given it appears, strangely, that the envelope was given to the Sub Registrar not on the day of the Will, i.e, 5.1.1993, but the day before, i.e, 4.1.1993 The Will was however, ultimately registered, though appreciably after the Maharaja's death in November, 1995, and it was done only on the 31st of January, 1996. The application for probate was also not made then and there immediately after registration; it had to wait for another three years and the application was made at Allahabad in February, 1999 although the bulk of the property is at Madhya Pradesh. It was explained that in law, such an application is quite permissible at a place where a part of the deceased's property is situated and it was further explained that in regard to the probate of a Will, which had to be obtained against the caveat of royalty, the best of places might not be the State itself where royalty resides.
13. A lot of details about the respective lives of the deceased Maharaja and his wife and son have come out. The Maharaja was not a holder of any very many recognized degrees, but had received considerable liberal education in several places. Maharaja Pushpraj is not similarly without degrees, but is a graduate. There is a long diary of the deceased Maharaja, which has been exhibited and which, according to the deceased Maharaja himself, he started writing on the advice of one Dr. Patel. This was for the purpose of overcoming psychiatric difficulties.
14. Maharani Parveen Kumari was not that type of Maharani, who was following the Maharaja here, there and everywhere, or stayed with the Maharaja all the time. In fact, the three persons of the family were quite separated by the 1990's. Although the Maharaja was taken to the Rewa Fort by the Maharani in or about November, 1993 and he stayed there until his death for about two years thereafter, yet in 1990 or so and even for sometime before that, as far as we could gather, the Maharani was living off and on at the Rewa Fort, the Maharaja was at the Khakhari Kothi and Maharaja Pushpraj Singh was at the Lakhari Kothi. In evidence, Pushpraj Singh denied any detailed knowledge, practically any knowledge about the medical treatment of the Maharaja, which was almost continuous for decades before his death. The details given are only in the cross examination of the Maharaja and in any event, it is not in evidence that he accompanied his father to any of the outstations for treatment. The evidence seems to suggest that Maharani Praveen Kumari mostly stayed at Jabalpur and Bombay and the Maharaja resided most of the time on his own. Laxman Prasad Misra was thoughout with the Maharaja.
15. Maharani Praveen Kumari has not given evidence and no attempts have been made to examine her by herself, or by her son.
16. Several parts of the Maharaja's diary were read out before the Court and these parts reveal a large chunk of the inner character of the Maharaja. He was fond of music, introverted, liable to get disturbed and annoyed with his servants over small things, which he himself realised to be small, and had a good command over the English language for the purpose of expressing whatever was going through his mind. He has noted in one place that he was informed of the Maharani's pregnancy over the telephone and he was thoroughly surprised at that because of his own extremely weak physical condition. The Maharaja was only about forty then. It is also recorded that according to the Maharani it was a sort of divine conception during the time when she was doing “Jap”. There are notings by the deceased Maharaja that the offspring did not have the family nose and did not behave like one of the Raja family. The propounders have said only this, that the parentage of nobody is in issue in the Will case; all that is material for the propounders to point out is that Maharaja Martand Singh entertained serious doubt about his fathering the said child. No doubt, the propounders banked on this doubt for explaining why Maharaja Pushpraj Singh was cut off without a rupee and why Maharani Parveen Kumari was not given anything more than Rs. 10 lac.
17. Several suits were instituted by Maharani Parveen Kumari, as the next friend of the Raja during his life time.
18. One of the most important is suit No. 244.A of 1998 instituted on 10.11.1994 for cancellation of the trust deed dated 25.11.1992, i.e, the deed setting up the Gulab Singh Trust, which was fated to become the largest residuary legatee of the Maharaja's Will. We are told that this suit has since been dismissed for default. The matter is disputed at the bar, but there is no certified copy produced, which shows that the suit was restored after it was allegedly dismissed for default on the 31st of January, 2005.
19. Another suit numbered Nil, as far as submissions before us are concerned, was instituted prior to the above suit on 10.9.1994 for cancellation of the registration of the said Gulab Singh Trust of 25.11.1992 A third suit being No. 4.A of 1994 was instituted on 20.1.1994 for obtaining L.I.C payment of the Maharaj's policies, since he was unable, allegedly, to sign, and the Life Insurance Corporation refused to make payment on a thumb impression.
20. Suit No. 13.A of 1993 was instituted on 25.6.1993 when the Maharaja was still at Khakhari Kothi for cancellation of a medical power of attorney dated 10.5.1992 given by the Maharaja in favour of one Moradhwaj Singh for signing papers, necessary for the Maharaja's medical treatment.
21. The Maharani had alleged that the Maharaja had been kidnapped, but it seems that there was no kidnapping; but that he had merely gone to Delhi for treatment. Since the Maharani was not available for weeks, the Maharaja had to return and the power of attorney was thereafter executed.
22. The evidence of the Maharaja was attempted to be taken on commission in one of the eviction suits, but it could not be obtained, as the Maharaja was not found to be in a fit position to answer to the commission sufficiently clearly and consistently.
23. Furthermore, in the suit for cancellation of power of attorney, a Medical Board was constituted by the Court, which submitted a report substantially to the same effect that the Maharaja was not found sufficiently coherent, and a certain loss of memory had certainly occurred in the Maharaja.
24. Regarding the attestation of the Will, there can hardly be any doubt that the signatures of the Maharaja were attested by the persons claiming to have been the Maharaja sign. About the signatures of the Maharaja, we are constrained to opine that those are the signatures of the Maharaja, although those are extremely shaky, and not put at exactly the right places although almost at the bottom of the pages. Those sometimes run through typewritten portions showing the weakness and infirmity of the person signing. One Sher Khan, who was called as witness by the caveator and the caveatrix, had also deposed in regard to the signature of the Maharaja on the trust deed of November, 1992; he said that the signature on that trust deed, is not the signature of the Maharaja, but if it is, then it must have been obtained by fraud.
25. There is hardly any difference between the signature of the Maharaja on the trust deed and those on all the pages of the Will, and on the envelope of the Sub-Registrar, which had to be signed by the depositor for depositing the Will.
26. Regarding the mental condition of the Maharaja, we come to this conclusion on the basis of the evidence that he was not so blanked out by the 5th of January, 1993 that he had no mental capacity to make a Will or any Will at all. As late as July, 1993, he went to Bombay for treatment of hip bone fracture. Dr. Dholakia, who saw him there, opined that the Maharaja was sometime answering the relevant questions, but he was also becoming emotional and crying.
27. Dr. R.G Singh, who had treated the Maharaja for 20 years or so, and had accompanied him on several occasions for outside treatment, said that the Maharaja, at the material time, was just like a normal person; the Doctor said that he used to meet the Maharaja twenty times a year. Dr. Srivastava went so far as to say that on the 5th of January, 1993, the Maharaja was quite well. When asked why he thought the Maharaja to be quite well, he said that the second shunt in the Maharaja's brain had been put and thus, the excess bad fluid was being drained out and thus the Maharaja was quite well.
28. On behalf of the caveator and the caveatrix, witnesses have come, but not of the standing of these two doctors. A Pujari has come, a butler has come and the said cook, Sher Khan has also come; they have denied the Maharaja's mental capacity. Sher Khan said that wherever the Maharaja was put, he used to sit, stare blankly and he said nothing. Maharaja Pushpraj Singh has also denied his father's mental capacity. Maharani Parveen Kumari, notably, did not come to the box at all.
29. No Court can conclude that on 5.1.1993, the Maharaja was mentally totally incapacitated and could not make a Will.
30. The point and the only point why we could not bring ourselves to grant probate of the Will in this. The Will is in great detail; we have mentioned some of the details about it in the beginning of the judgment. The draftsman of the Will is one B.M Gupta, an advocate, residing 500 kms. away from Khakhari Kothi at Jabalpore, who was not called by the propounders; he was, by any standards, a “must” witness for the propounders. The Will states that it was drafted by him on the personal verbal instructions of the Maharaja.
31. At the time the Will was drafted, the Maharaja was surrounded by the principal beneficiaries or persons about to receive the Maharaja's property on trust. Laxman Prasad Misra was there, very much on the scene, Gyanendra Singh was also there. That by a strange twist of fate Laxman Prasad Misra died in March, 1995, and thus pre-deceased the Maharaja is an interesting fact, but not a material one, like Rewa being tiger country. The presence of beneficiaries at the time of the making of the Will and their taking a prominent part in its registration, are typical suspicious circumstances in the probate Court.
32. The making of the Will is not merely shrouded in mystery; it is inside the daak coffin itself and nobody knows anything about how any clause of the Will got drafted or when or on whose instruction. It is a total blackout. Does verbal mean oral or written? Nobody knows.
33. In these circumstances, we ask ourselves in our own conscience as to how a man of the Maharaja's admitted infirmity of the mind and body could have sufficient initiative and energy to give personal verbal instructions relating to the details of the bequests in 22 main clauses and 5 different schedules, the longest of which contains the names of 72 persons. Did the Maharaja summon B.M Gupta and Laxman Prasad Misra and do all this? Did he clearly stipulate to B.M Gupta that almost all of his property will go to this trust with a corpus of Rs. 11,000/- only? The propounders said that an earlier Martand Singh Trust was also started with the corpus of only Rs. 19,000/-. That may be so, but if one is giving away one's whole property to a trust which has not yet taken off, and has done nothing yet, and is with a bank balance of Rs. 11,000/- only, then the probate Court is entitled to ask the propounder, please tell us why the Maharaja felt so confident about the future of the still flat lying trust, even if it is admitted that it is born. To these questions, we did not find a satisfactory reply to still our conscience.
34. In the probate Court, the conscience of the Judges rules the ultimate outcome. The probate Court is not to answer a question in a quiz, did he make the Will or did he not? Which answer is more likely to be correct? The Court does not ask itself that question. The probate Court is under law compelled to play it safe, and not grant probate unless, to reasonably doubtful and suspicious issues, satisfactory answers have been given to quieten its conscience.
35. Because of our troubled conscience in regard to the extremely detailed nature of the Will, the making of which is wholly in the dark, and during the signing and registration of which the recipients played an exclusively prominent role, we dismiss the appeal. We are not, respectfully, in agreement with all the reasons, which the Hon'ble Judge has given in the Court below, but we have no hesitation in agreeing with the order passed by his lordship which we hereby do.
36. No order as to costs before us.
Appeal Dismissed.