HARI SHANKAR PRASAD,J. - (1.) THIS appeal is directed against the judgment and order dated 2nd September, 1995 passed by District Judge, Sahebganj in Probate Case No. 2 of 1986/Title Suit No. 16A of 1989 whereby and whereunder the learned Court below granted probate in favour of petitioner -respondent. The appellant was objector -defendant in the aforesaid probate case cum title suit and respondent in this appeal is petitioner -plantiff.
(2.) THE fact of the case in brief is that petitioner -respondent filed a petition for grant of probate under Section 276 of the Indian Succession Act, stating therein that one Sabitri Sahuain, widow of late Baijnath Sah died issueless on 29.4.1985 and before her death she executed a Will in favour of the petitioner -respondent. It is stated that at the time of execution of the Will she was of sound mind and possessed a good health and executed the Will on 14.3.1985 out of her free Will in presence of witnesses. It is submitted that original Will was unfortunately misplaced but the certified copy of that Will is available. It is stated that petitioner -respondent is the maternal uncle's son of the testator and the properties mentioned in the said Will have been bequeathed in the name of the petitioner -respondent. Schedule A contains the description of the properties, which have been given by Will and the amount of liability and other lawful deduction of the said testator is given in Schedule B and, therefore, a paper was made by the petitioner -respondent for grant of probate in his favour. General as well as special notices were issued and the objector Mahabir Sah appeared and filed objection stating therein that the petitioner for grant of probate filed by the petitioner - respondent, on the basis of registered Will, is forged and fabricated one. It is further stated that petitioner -respondent was never in possession and on the other hand he is in possession over the suit property and after death of the testator, the name of this objector has been mutated and he is paying the rent. It is further stated that Sabitri Sahuain was ill and had paralytic attack in or about the month of 1984 and she remained confined to bed and no question of executing any Will on 14.3.1985 arose. The objector was looking after Sabitri Sahuain as he is the nephew and she gave her property to him by way of Danpatra and after her death he inherited her entire properties and not the petitioner -respondent, as claimed. After the death of Sabitri Sahuain, the Unchal Adhikari, after thorough enquiry, allowed mutation case in favour of the objector by his order dated 2.9.1985 passed in Mutation Case No. 312/ -85 -86, 315/10 -85 -86 and 316/1085 -86 and objector is in possession of the properties and the petitioner -respondent was never in possession. Hence in the facts and circumstances the petition for grant of probate is fit to be rejected.
(3.) ON the pleadings of the parties, the learned District Judge framed the following issues for determination in the suit. (i) Is the suit as framed maintainable? (ii) Has the plaintiff got any cause of action for the suit? (iii) Is the Will under the suit genuine or it is a forged and fabricated? (iv) Is the objector Mahabir Sah in any way related to the deceased Savitri Devi as alleged in the genealogy? (v) To what relief or reliefs the plaintiffs is entitled? ;