SUMITRA DEVI Vs. UPENDRA NATH

JUDGEMENT

(1.) Both these appeals have been heard analogously as they arise out of the same judgment and order and the parties in the appeal are also same and similar.

(2.) These two appeals have been preferred by the appellants above named under Section 299 of the Indian Succession Act, 1925 (hereinafter to be referred to as 'the Act') against the order dated 6-2-1989 passed by Shri B. Ram, the then 1st Additional District Judge, Palamau, in Probate (Title) Suit No. 1 of 1989 granting probate in favour of the applicant-plaintiff-respondents No. 1 to 4 in both the appeals in respect of a Will said to have been executed and registered on 8-5-1972 by late Bageshwari Chaubey.

(3.) Before proceeding with the discussions in the appeals, the genealogy is required to be mentioned. The testator Bageshwari Chaubey had one son, namely, Suresh Dutt Chaubey and one daughter Kaushalya Devi who happens to be the proforma respondent No. 5 in the case. Suresh Dutt Chaubey, predeceased Bageshwari Chaubey, who died sometime in January, 1969. In course of his life time, he married four times. His wives are Sanjha, since deceased, mother of appellant No. 2, Sumitra, appellant No. 1, Bhagmani Devi, sole appellant in M.A. No. 50 of 1989 (R) and another wife whose name had not been disclosed in course of the proceeding. Bageshwari Chaubey's daughter Kaushalya Devi has four sons who are respondents No.1 to 4 who happened to be the beneficiaries of the Will while respondent No.l Upendra Nath Pandey was the executor of the will of Bageshwari Chaubey. The Will (Ext.1) was executed and registered at Palamau on 8-5-1972. At the time of execution of the Will, Bageshwari Chaubey was an old man of 90 years. After three years of the execution of the Will, he died on 16- 7-1975. In the Will (Ext. 1) he did not mention regarding the properties to be bequeathed. It was only mentioned that whatever properties would be left by him at the time of death would go to the beneficiaries i.e. the grand sons through her daughter Kaushalya Devi. During the life time of Bageshwari Chaubey, his grand-daughter Radhika through his pre-dcceased son Suresh Dutt Chaubey filed partition Suit No. 14 of 1971, plaint of which has been marked as Ext. 7 in the case. In that partition suit, Bageshwari Chaubey contested the suit by filing written statement. In that suit, Radhika Devi demanded/claimed half share in the joint family property. Once probate case was decreed ex-parte when proper parties were not made but then on an application being made by the appellants, the ex-parte probate order was revoked and then it was contested by filing separate written statement by the appellants. After the written statements were filed, the probate proceedings were proceeded as regular title suit. Although in the Will (Ext.1) no description of the property was mentioned, yet in the Schedule of the probate petition, the respondents-plaintiff had given detailed accounts of the properties left by the testator. The main ground of contest on the registered Will was that the testator Bageshwari Chaubey was an old ailing man and he was under the influence of the beneficiaries i.e. the plaintiff- respondents and they made all efforts to get the Will executed in their favour. Both the parties adduced evidence. The Will was found to be a genuine one by the learned Court below as the same was executed by the testator in presence of the attesing witnesses who were also not in any way related to the testator and the said Will was registered on the very date in the Sub- Registry office at Palamau.