CIVIL APPEAL 1 of 2004 on 9 July 1993

IN THE HIGH COURT OF JUDICATURE AT PATNA

Test Suit No.2 of 2009

In the matter of an application under sections 273 and 278 of the India Succession Act, 1925 for grant of Probate.

======================================================== In the goods of Late Ramadhar Singh, son of Late Dipa Singh, resident of village- Sikthi, P.S. Sanjhauli, District- Rohtas ========================================================

Abhishek Kumar @ Santosh, aged 23 years, son of Surendra Pratap Singh, permanent resident of village Sikthi, P.S. Sanjhauli, District- Rohtas at present residing at C/2, Water Tower, Road No.4, near High Court, P.S. Kotwali, Town & District- Patna.

.... .... Plaintiff .... .... Defendants

Versus

Anshuman Singh & Anr

========================================================= Appearance :For the Plaintiff : M/s Laxmi Narayan Das, Ranjit Sharan and Amitabh Sohan, adv. For the Defendant : M/s Janardan Pd.Singh, Arvind Kr.Singh, Rajeev Kr.Singh and Arjun Pd.Singh, Adv. ========================================================= CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGHCAV JUDGMENT

Date: 03-02-2012

(Per: HONOURABLE MR. JUSTICE JAYANANDAN SINGH)

Plaintiff had earlier filed Test Case under sections 273 and 278 of the Indian Succession Act for grant of Letters of Administration of the Will dated 9.7.1993 duly executed by the deceased Testator Ramadhar Singh. The Testator died issueless on 8.1.2004 at his residence at C/2, Water Tower, Road No.4, near High Court, P.S. Kotwali, Town and District- Patna. Subsequently, two of the Near Relatives, namely, Ansuman Singh and Shashank Kumar Singh filed objection and therefore, the Test Case was converted into the present suit.

2. Plaintiff is the grand nephew of the Testator. It is stated that the said Will was the last Will and Testament of the Testator. It was executed by the Testator in his sound state of health and mind and he voluntarily executed the Will after fully understanding its contents without any undue influence. The Will was executed in presence of two witnesses, namely, Ram Pujan Singh and Bisheshwar Singh. It is stated that the Testator was a retired Assistant Registrar of Patna High Court. At the time of execution of the Will, the plaintiff was minor and one Surendra Pratap Singh was appointed as executor of the Will uptill the legatee attains majority. The said Surendra Pratap Singh filed Test Case No.1 of 2004 for grant of probate of the Will. However, the said case was dismissed on 10.12.2004 on the ground that the plaintiff had become major. Thereafter, the plaintiff filed the present case.

3. Value of the property under the Will is mentioned in Schedule-A of the plaint as Rs.2,50,000.00. Expenses of Rs.1000.00 towards funeral are mentioned in Schedule-B of the plaint. One of the attesting witnesses, namely, Ram Pujan Singh also filed affidavit along with the plaint to the effect that he along with one Bisheshwar Singh had attested the Will as witnesses in presence of each other and in presence of the Testator and the Testator had signed the Will in their presence in his good state of health and sound mind.

4. By order of the Court dated 14.11.2008, general citations were published in two newspapers, one in Hindi “Hindustan” and the other in English “Hindustan Times” and an affidavit to this effect was filed on 11.12.2008.

5. Plaintiff examined five witnesses in support of his case. P.W.1 Bisheshwar Singh and P.W.2 Ram Pujan Singh are the attesting witnesses. P.W.3 Bhagwan Singh is another nephew of the Testator. P.W.4 Ramesh Singh is grand son of the Testator and P.W.5 is the plaintiff himself. 6. P.W.1 Bisheshwar Singh was examined on 4.12.2009. He in his examination-in-chief has stated that the Will was executed by Late Ramadhar Singh on 9[th] July, 1993 in his presence. He is the attesting witness. Signatures of the Testator on the Will were marked as Exts.1 to 1/B. Signature of this witness was marked as Exts.-2 and 2/A. This witness in his deposition has stated that another attesting witness Ram Pujan Singh had put his signatures on the Will in his presence which are marked as Exts.-3 and 3/A. This witness stated that he was requested by the Testator to be a witness on the Will. This witness further stated that the Testator had also requested Ram Pujan Singh in his presence to be an attesting witness. The Testator was in sound state of health physically and mentally when he had executed the Will. The testator had retired as an Assistant Registrar from the High Court. In his cross-examination, this witness has stated that he had joined in the High Court as a stenographer to late Ramadhar Singh, the Testator. He had typed the Will from a draft given by the Testator. He denied the suggestion of the defendants that the Will was not prepared by the Testator but by one Surendra Pratap Singh.

7. P.W.2 Ram Pujan Singh reiterated the same thing as narrated by P.W.1 and stated that Late Ramadhar Singh, Bisheshwar Singh and he had signed the Will in presence of each other.

8. P.W.3 Bhagwan Singh has stated that the Testator was his uncle among his gotias. He used to visit the village and look after his property. He used to operate his own pension account in the Bank. He had heard after 6-7 months of the death of the Testator that he had executed a Will in favour of Abhishek Kumar.

9. P.W.4 Ramesh Singh stated that the Testator was his grand uncle and he knew that he had executed a Will.

10. P.W.5 Abhishek Kumar, who is the plaintiff himself, stated in his evidence that the Testator was his grand father. The Will was executed by the Testator himself in his good physical and mental condition. He died on 8.1.2004. The Will was signed by two attesting witnesses on the request of the Testator. Notices were sent to the Near Relatives. Three of them have appeared and filed no objection. The property under the Will is self earned property of the Testator and it is not the joint family property.

11. Defendant No.1 Ansuman Singh and Defendant No.2 Shashank Kumar Singh, who were contesting this suit earlier, filed their “No Objection” on affidavit on 9.9.2011, stating therein that they have resolved their dispute and have amicably come to a compromise and now they have no objection in issuance of a letter of administration in favour of the plaintiff.

12. In view of the evidence of the witnesses, this Court has perused the original Will of the Testator. This Court finds that the Will is typed on three pages. The Testator has put his full signature in English on each page of the Will. This Court also finds that Ram Pujan Singh, one of the attesting witnesses has signed on the first page of the Will and the second attesting witness Bisheshwar Singh has signed on the second page of the Will as witnesses. Both of them have also signed on the last page of the Will. The witnesses have identified the signature of the Testator on the Will as well as their own signatures, which have been marked as Exhibits. Thus, this Court finds that the Will conforms to the requirement of section 263 of the Act.

13. The witnesses have stated that the Will is the last Will of the Testator duly executed by him. They have also stated that the Testator was in a sound state of mind and body at the time of execution of the Will. This Court further finds that there is nothing on record to show that this Will was not the last document executed by the Testator for management of his Estate. Testator was issueless and he executed the Will in favour of his grand nephew, i.e. the plaintiff, who was minor at that time, and appointed his father Sri Surendra Pratap Singh as his guardian until he attained majority.

14. As stated earlier, list of assets and schedule of funeral expenses are annexed with the application as Annexures-A and B respectively. It is also stated that the Testator died while living at his Patna residence within the jurisdiction of this Court. Original Will was filed in the Court separately in a sealed cover. In the circumstances, this Court finds that the application filed by the applicants under section 278 of the Act is in accordance with the requirements of law.

15. As noticed earlier, the two defendants and near relatives, who had filed their caveat and objection earlier, have filed their “No Objection” now on affidavit in favour of the plaintiff. There is no other objection of any party on record in respect of genuineness and validity and authenticity of the Will.

16. In the circumstances, this Court is satisfied that the Will is genuine and contains last wishes of the Testator, duly executed by him in full consciousness and in a sound state of mind and body and duly attested by the witnesses and it satisfies the requirements of law.

16. As a result, this application is allowed. Let a probate be issued in favour of the plaintiff in respect of the Will.

(Jayanandan Singh,J.)