Brijesh Kumar, J. - (1.) THIS first appeal has been filed by the appellant Balbir Singh against the judgment and decree dated 10 -3 -1981 passed by the 1st Addl. District Judge, Lucknow, dismissing the suit filed by the appellant and thereby refusing to issue Letters of Administration in favour of the appellant in respect of the estate of Late Sri Gopal Narain Fadnis. Appellant Balbir Singh had filed the suit under Section 278 of the Indian Succession Act with a prayer that the Letters of Administration with the will of the deceased annexed therewith be granted in his favour. The case of the appellant is that Late Sri Gopal Narain Fadnis had died on 19 -1 -1983. Late Sri Fadnis had executed a will dated May 18, 1961 in favour of the appellant. The property in the will included House No. 108/53, Model House, Lucknow. The will was registered before the Sub -Registrar. In the petition for grant of Letters of Administration it was also mentioned that earlier a suit was filed by the appellant for grant of Probate but that was dismissed on the ground that no executor was appointed by the will. Two annexures A and B have been annexed alongwith the petition, annexure 'A' indicating the movable and immovable properties of the deceased including House No. 108/153 situate in Model House Gangni Shukla Ka Talab, Lucknow, valued at Rs. 51,000/ -. The other movable properties shown in the list was of negligible amount.
(2.) THE respondent, Salochana Devi, Daughter of Late Gopal Narain Fadnis filed written statement resisting the petition filed by the appellant for issue of Letter of Administration. The case, as given in the written statement in short, is that Gopal Narain Fadnis was a successful businessman having earned quite some fortune. The respondent is the only daughter of the deceased. The mother of respondent suffered from some mental ailment and ultimately she died while the respondent was still child of tender age. Gaya Prasad, father of Balbir Singh, appellant was initially employed by Late Gopal Narain Fadnis as his servant in his business of dry and fresh fruits but later on he had become a partner of business. After the death of the mother of the respondent, Gaya Prasad got closer to Gopal Narain Fadnis on the pretext of extending help to him in the absence of his wife and in bringing up of the respondent. By and by Gaya Prasad and Balbir Singh became in a position of dominating the will of Late Gopal Narain Fadnis. In the year 1950 Gopal Narain Fadnis was badly assaulted by some unknown assailants on the bank of River Gomti where he used to go for a walk. According to the respondent, her father was seriously injured but somehow his life was saved. After this incident of assault her father had become almost crippled and lost soundness of mind and became devoid of competent understanding. In 1950, due to incapacity by which Gopal Narain Fadnis was suffering, the partnership firm was dissolved and Gaya Prasad continued with the business alone. The appellant and his father prevailed upon Gopal Narain Fadnis to marry the respondent at the age of 13 years in the year 1953. She was married to one Yogendra Sharma on the suggestion of Gaya Prasad. Out of the wed -lock the respondent gave birth to a daughter named Aarti Sharma On 25 -9 -1958 Gopal Narain Fadnis had executed a will in respect of the house in question in favour of the respondent. This will was also registered. It has further been stated in the written statement that in 1960 due to certain circumstances, which had later developed, a deed of divorce was written, by which divorce took place between the respondent and Yogendra Sharma. However, she again married to one Ram Chandra Sharma in December, 1960. The case of the respondent is that the earlier divorce deed was attested by Gopal Narain Fadnis as well and the second marriage also with Ram Chandra Sharma was arranged by Gopal Narain Fadnis. It has been averted that after the second marriage, when the respondent was again away from the Scene, Gaya Prasad and Balbir Singh got influence over Gopal Narain Fadnis and under their influence and dominance manipulated the will dated 18th May, 1961 in favour of the appellant. According to the respondent her father had been having the same affection for her throughout his life. He had already bequeathed the same property in her favour in the year 1958, thereafter, he had never expressed any displeasure against the respondent nor ever informed her of having executed the second will. It was also averred in the written statement that the appellant did not inform her about the death of her father. She could know about it only after a week of his death. According to her, this concealment was done with a view to usurp all other movable property which was in the house On coming to know of the death of her father, when she went, the appellant did not allow her to enter into the house saying that she had no right on any thing it has also been pleaded that the will is forged one which does not bear the signature of her father and in any case it is proved that it was executed by him, it was then got executed under the influence of the appellant on his father and there are a number of suspicious circumstances by reason of which the said will cannot be said to be genuine.
(3.) ON the pleadings of the parties the trial court framed the following: - - ISSUES (1) Whether Gopal Narain Fadnis duly executed a registered will dated 18th May, 1961 in favour of plaintiff? (2) Whether the said will is void due to uncertainty? (3) Whether the testator was of sound disposing mind at the time the will was executed? (4) Whether the suit is barred by the principles of res -judicata or constructive res -judicata due to decision in Suit No. 1 of 1964? (5) Whether the plaint has not been properly verified? If so, its effect? (6) Whether the defendant is entitled to special costs? (7) To what relief, if any is the plaintiff entitled? (8) Whether the will dated 18 -5 -1961 relied upon by the plaintiff was executed by Gopal Narain in the circumstances alleged in para 54 of the written statement and as such invalid and void?;