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2022 Latest Caselaw 8639 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 31.05.2022
 
Delivered on 01.08.2022
 
Court No. - 10
 
Case :- TESTAMENTARY SUITS No. - 13 of 2000
 
Plaintiff :- In The Goods Of Late Durga Singh
 
Counsel for Plaintiff :- K.S.Rathore, ,Dhananjai Prasad,Dhanjay Prasad,Narendra Mohan,O.P.Singh
 
Counsel for Defendant :- Jamal Ali, ,A.N. Bhargava,Jamal Ali,M.N. Tripathi,Om Prakash,Prabha Shankar Pandey,Punit Kumar Gupta,Punnet Kumar Gupta,Raghvendra Dwivedi,Ram Swaroop Singh,S. Niranjan,S.B. Singh,Shivakant Singh
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Narendra Mohan, learned counsel appearing for Sri Ram Saran Singh, the plaintiff in support of the Suit of Letters of Administration of the estate of late Sri Durga Singh, the grandfather of the plaintiff, who died on 04.05.1993, with his registered Will dated 22.06.1991 attached to the Letters and Sri Dharam Pal Singh, learned Senior Advocate assisted by Sri Ram Swaroop Singh, learned counsel for the defendants no.4 to 6, who are the purchasers of the property sold by one Sri Jai Ram Singh son of late Durga Singh.

2. This case has a long chequered history. Brief narration of the facts is necessary for the better appreciation of the case.

3. Late Durga Singh, the alleged testator of the Will had two sons, namely, Vijay Singh and Jai Ram Singh. Vijay Singh had three sons, namely, Sheo Saran Singh, Deo Saran Singh and Ram Saran Singh (plaintiff). While, Jai Ram Singh had one son, namely, Beeru Singh.

4. Late Durga Singh died on 04.05.1993 leaving behind agricultural land and house. According to the plaintiff, late Durga Singh had executed a registered Will on 22.06.1991, wherein out of total area of 14.07 acres of land comprising of plot No.933 situated at Village Lama, District Banda, 3 acres land was given to Jai Ram Singh, while rest of the land was given to Ram Saran Singh, the plaintiff.

5. After the death of late Durga Singh, names of Vijay Singh and Jai Ram Singh were mutated on the revenue records as co-owners in Mutation Case No.91 of 1993 on 31.08.1993.

6. According to the defendants, late Durga Singh had executed another Will dated 16.02.1993, by which he had cancelled the earlier Will dated 22.06.1991. Plaintiff Ram Saran Singh had filed a Mutation Case No.71 of 1993 before the Court of Tehsildar, Banda for mutating his name on the basis of Will dated 22.06.1991, but the case was dismissed in default.

7. However, Ram Saran Singh, the plaintiff along with his two brothers, sold the house mentioned in the Will through two sale deeds dated 08.01.1996 and 04.06.1997 to Kamla Devi and Raja Ram. Similarly, Jai Ram Singh, the elder son of late Durga Singh, on 12.03.1997 sold 2.34 acres (51/2 Bigha) of land to the contesting defendants no.4 to 6 of plot No.933, of which the mutation was carried out on 26.10.1997, and the second sale deed was executed for the rest of the share of Jai Ram Singh in favour of the contesting defendants (2/3rd share) of plot No.933 on 09.08.1999, which was to the extent of 4.69 acres, and the mutation order was passed on 20.11.1999.

8. Plaintiff, on 08.07.1999 filed Testamentary Case No.14 of 1999 before this Court, on which, notices were issued on 09.07.1999 and publication was to be made and the date was fixed for 20.09.1999. The publication in the newspaper ''Amar Ujala' was made on 21.08.1999.

9. On 20.09.1999, appearance was made on behalf of all the private respondents. On 11.10.1999, Sri Shiv Bahadur Singh, Advocate filed Vakalatnama and appeared on behalf of Jai Ram Singh, and made a statement that Jai Ram Singh does not propose to contest the matter. On 16.11.1999, Jai Ram Singh filed an application stating that he does not propose to file any objection and to contest the case. On 10.12.1999, on the application (A-13) moved by Jai Ram Singh, the Court discharged the caveat filed by Jai Ram Singh and he was released from contesting the matter, and application (A-13) was allowed. In the meantime, two other brothers of plaintiff Sheo Saran Singh and Deo Saran Singh filed their affidavits and contested the matter.

10. An application A-17 was moved by Vijay Singh, who wanted to lodge a caveat against the petition, which was allowed by this Court on 25.07.2000 and time was granted to file affidavit. On 08.09.2000, the Court converted the petition into suit as it was contested by the respondents and the same was registered as Testamentary Suit No.13 of 2000.

11. On 01.05.2006, following issues were framed:-

"1. Whether the will dated 22.6.1991 was duly executed by the deceased Durga Singh in accordance with law and in his sound and disposing mind?

2. Whether the will dated 22.6.1991, alleged to be executed Sri Durga Singh, was obtained by exercising undue influence and by playing fraud upon him.

3. Whether the deceased Durga Singh had validly executed the will dated 16.2.1993 in accordance with law in his sound and disposing mind?

4. The relief to which the plaintiff entitled?"

12. On 09.10.2006, examination-in-chief of plaintiff Ram Saran Singh, PW-1 was closed. No one appeared to cross examine. On 13.11.2006, the evidence of PW-2 was recorded. He was not cross examined by anyone. On the same date, the Court recorded that all the four caveators have withdrawn from the case.

13. As no one had appeared on behalf of the defendants having withdrawn from the contest, the matter became virtually non-contentious and the Court, on 27.11.2006, decreed the suit finding that the Will dated 22.06.1991 being proved by the plaintiff and one of the attesting witness of the Will.

14. Two recall applications, one being Civil Misc. Recall Application No.251801 of 2008 was filed on behalf of Daya Ram and others, the present defendants no.4 to 6 and another being Civil Misc. Recall Application No.44964 of 2009 was filed by Vijay Singh for recalling the order dated 27.11.2006.

15. This Court found that the proceedings were manipulated, in which the caveators also did not disclose full and detailed facts, the execution of second Will and the sale deed, in which plaintiff was also one of the parties, and the mutation order. The Court further held as under:-

"25. In the proceedings for grant of probate or letters of administration, the Court is not ordinarily concerned with the ownership of the properties. The proceedings of the suit and the findings are confined to the due execution of the will by the testator, but where it is prima facie established that a fraud has been played upon the Court, and that the subsequent will executed by the testator has been suppressed in pursuance to which the registered sale deeds have been executed, and on the basis of which the mutation orders were also carried out and further where the father, uncle and brothers of the plaintiff have executed the affidavit alleging that the plaintiff has misused his position as an Advocate of the Court in making misrepresentation and in concealing the subsequent will and the proceedings to which he was also a party, it becomes necessary for the Court to recall the order and to allow the parties to lead the evidence to arrive at the truth of the matter."

16. Vide judgment dated 23.03.2012, both recall applications were allowed and the order dated 27.11.2006 was recalled and it was directed that the matter was to proceed from the stage from where the issues were framed, as a contentious matter.

17. Against the said order, Special Appeal No.881 of 2012 was filed by the plaintiff Ram Saran Singh. The Division Bench declined to interfere in the finding recorded by the testamentary Court as to the commission of fraud and only reduced the quantum of the cost imposed to Rs.1,000/- each to be payable by the plaintiff.

18. On 15.05.2013, this Court permitted the defendants no.4 to 6 to participate in the proceedings and the defendants stood impleaded by implication. The defendants no.4 to 6 contested the suit and filed their written statement. Vijay Singh also filed his written statement on 25.11.2013. On 02.12.2013, on the suggestion of plaintiff's counsel, one more issue was framed as issue No.3-A, which is as under:-

"Whether the transferees i.e. defendants No.4, 5 and 6, who are subsequent purchasers of the property involved in the Will are bona fide purchasers inasmuch as they had made the purchase without the leave of the court."

19. On 17.12.2013, time was granted to the plaintiff to file his further examination-in-chief on oath, while defendants no.4, 5 and 6 were to submit list of witnesses. Further, time was also granted to file examination-in-chief of all the witnesses.

20. On 15.04.2014, Vijay Singh moved an application bearing No.139066 of 2014 supported by an affidavit with a prayer that he may be permitted to withdraw from the contest. The said application was allowed. On 06.05.2014, the Court allowed applications A-36 and A-38 filed by Sheo Saran Singh and Deo Saran Singh who were not interested in contesting the matter and were permitted to withdraw from the contest. The Court found that the contest remained only between the plaintiff and defendants no.4 to 6.

21. On 19.09.2016, the cross examination of PW-1 Ram Saran Singh was completed. On 10.01.2017, the cross examination of PW-2 was completed and statement was made on behalf of the plaintiff that no other witness was to be examined. On 01.02.2018, the statement and cross examination of DW-1 concluded and on 21.02.2018, the defendants' evidence was closed.

22. Sri Narendra Mohan, learned counsel appearing for the plaintiff submitted that late Durga Singh, grandfather of the plaintiff, in sound state of mind had executed the Will on 22.06.1991 bequeathing 11.07 acres of land of plot No.933 to the plaintiff and 3 acres of land to Jai Ram Singh, his other son. Earlier, the partition had taken place and the property of late Durga Singh was divided into three parts, one of which was given to Jai Ram Singh, Vijay Singh and 1/3rd share was kept with late Durga Singh. The Will is in regard to the 1/3rd share of late Durga Singh.

23. According to him, it was in the June, 1999 that mother of the plaintiff told about the existence of the Will executed by his grandfather in favour of the plaintiff. The plaintiff applied for grant of Letters of Administration on 08.07.1999, and after appearance was put by all the five private respondents, Jai Ram Singh withdrew from the contest and thereafter, Vijay Singh also, in the year 2006, withdrew from the contest and as the matter remained non-contentious, the suit was decreed.

24. According to Sri Narendra Mohan, neither Jai Ram Singh nor Vijay Singh are contesting the matter and only on the wrong advice and pressure of defendants no.4 to 6 filed recall application. According to him, the Will of the year 1993 is not a genuine Will and the purchasers of the property cannot oppose the grant of Letters of Administration. He then contended that there is no dispute as to the first sale deed executed by Jai Ram Singh on 12.03.1997 as it was for 2.34 acres of land, which was well within the share given by late Durga Singh to Jai Ram Singh. It is only the second sale of 09.08.1999, which is being effected by the grant of Letters of Administration and thus, it is being opposed by the defendants.

25. Sri Narendra Mohan, learned counsel next contended that defendants no.4, 5 and 6 had not challenged the validity of Will dated 22.06.1991 in their written statement and statement. They have only supported the case of Vijay Singh without alleging their own case.

26. Once, all the kins opposing for grant of Letters of Administration had accepted the genuineness of Will including Jai Ram Singh, then the defendants cannot oppose the same. Reliance has been placed upon the decision of the Supreme Court in cases of Sameer Kapoor and Others Vs. State through Sub Division Magistrate, South New Delhi and Ors. 2020 (12) SCC 480, Ramanand Thakur Vs. Parmanand Thakur 1982 AIR (Pat) 87, Smt. Leela Karwal Vs. J.D. Karwal and Others 1983 AIR (Alld.) 386, Shyoraj Singh and Ors. Vs. Zahir Ahmad and Ors. 2013 (8) ADJ 492, Sunil Gupta Vs. Kiran Girhotra and Ors. (2007) 7 Supreme 423, Krishna Kumar Sharma Vs. Rajesh Kumar Sharma 2009 (11) SCC 537, Chiranjilal Shrilal Goenka (Deceased) through L.Rs. Vs. Jasjit Singh and Ors. (1993) 2 SCR 454, and Smt. Rukmani and Ors. Vs. Narendra Lal Gupta 1985 (1) SCC 144.

27. Sri Dharam Pal Singh, learned Senior Advocate appearing for defendants no.4 to 6 submitted that contesting defendants are the bona fide purchasers of the land measuring 7.31 acres sold by Jai Ram Singh through two sale deeds dated 12.03.1997 and 09.08.1999. Moreover, mutation has been carried out and no objection was made by the plaintiff.

28. He then contended that after death of late Durga Singh, names of his two sons Vijay Singh and Jai Ram Singh were mutated in the revenue records, and plaintiff Ram Saran Singh had moved a mutation application for mutating his name on the basis of alleged Will dated 22.06.1991, which was registered as Mutation Case No.71 of 1993, thus, theory set up by the plaintiff that he got knowledge about the Will in June, 1999 from his mother is totally against the fact that plaintiff tried to get his name mutated in the year 1993 itself.

29. Sri Singh next contended that plaintiff along with his two brothers, Sheo Saran Singh and Deo Saran Singh had sold the house left by his grandfather through two sale deeds dated 08.01.1996 and 04.06.1997 to Kamla Devi and Raja Ram, thus, plaintiff cannot blow hot and cold at the same time.

30. According to Senior Counsel, the ex-parte order dated 27.11.2006 was passed due to the fact that the plaintiff as well as his brothers and uncle had colluded, and after execution of sale deed withdrew from the contest and allowed the suit to be decreed.

31. The finding recorded by this Court on 23.03.2012 on the recall application reflects as to the manipulation and connivance of the plaintiff and his family members for getting the suit decreed as non-contentious matter on 27.11.2006. According to Sri Singh, the Will dated 22.06.1991 was cancelled by the second Will dated 16.02.1993 granting share to all the dependents of late Durga Singh and on the basis of which, mutation proceedings were initiated in the year 1993 by the plaintiff.

32. Sri Singh then contended that this Court on 23.03.2012 had recorded a categorical finding while allowing the recall application that caveat supported by affidavits of brothers and uncle of plaintiff states that second Will dated 16.02.1993 has been acted upon and on the basis of mutation, various sale deeds have been executed by plaintiff's uncle Jai Ram Singh and his brothers have sold property, prima facie, established that for undisclosed reasons, they did not contest the proceedings and allowed the matter to proceed ex-parte.

33. According to him, the case set up by the plaintiff for grant of Letters of Administration is only to defeat the genuine sale deed executed by Jai Ram Singh in favour of defendants no.4 to 6. The sons of late Durga Singh as well as his grand sons have colluded, and after execution of the sale deeds for the house and land left by late Durga Singh, a false case has been set up on the basis of Will dated 22.06.1991 which stood cancelled by the second Will dated 16.02.1993 for nullifying the transactions made earlier.

34. Sri Singh then contended that no cost was paid by the plaintiff to the parties as directed by this Court as well as the Division Bench on the earlier occasion. Lastly, Sri Singh contended that the doctrine of lis pendence would not be attracted in the present case due to finding recorded by the Court on 23.03.2012 regarding manipulation and collusion of the plaintiff and his family members. The said finding was affirmed in special appeal.

35. Moreover, the testamentary case was filed on 08.07.1999 and publication was made on 21.08.1999 in daily newspaper "Amar Ujala", while the second sale deed was executed by Jai Ram Singh on 09.08.1999, thus, defendants no.4 to 6 did not have any knowledge about the pendency of the case. Further, there is no material or evidence on record to demonstrate that defendants had any knowledge or information regarding the Will or filing of the testamentary case.

36. Reliance has been placed upon the decision of the Apex Court in the cases of Pashupati Nath Das (Dead) Vs. Chanchal Kumar Das (D) Thr. L.Rs. and Ors. 2018 (18) SCC 554, Priti Jain (Smt.) and Another Vs. Union of India and Ors. (2012) All.C.J. 634, Amit Kumar Shaw and Ors. Vs. Farida Khatoon and Ors. 2005 (11) SCC 403, Nagubai Ammal and Ors. Vs. B. Shama Rao and Ors. AIR 1956 (SC) 593 and Chandra Kishore Dikshit Vs. Sukh Swaroopa Nand Dikshit and Another 2006 (63) ALR 100.

37. From the pleadings of the parties, the issues framed on 01.05.2006 and 02.12.2013 are as under:-

"1. Whether the will dated 22.6.1991 was duly executed by the deceased Durga Singh in accordance with law and in his sound and disposing mind?

2. Whether the will dated 22.6.1991, alleged to be executed Sri Durga Singh, was obtained by exercising undue influence and by playing fraud upon him.

3. Whether the deceased Durga Singh had validly executed the will dated 16.2.1993 in accordance with law in his sound and disposing mind?

3-A. Whether the transferees i.e. defendants No.4, 5 and 6, who are subsequent purchasers of the property involved in the Will are bona fide purchasers inasmuch as they had made the purchase without the leave of the court.

4. The relief to which the plaintiff entitled?"

38. From the plaintiff's side, Ram Saran Singh, PW-1 was examined and Dinesh Chandra Tripathi was produced as witness PW-2. While, from the defendants' side Daya Ram Gupta was examined.

39. Having heard counsel for the parties and from perusal of material on record, this Court proceeds to examine and decide the issues framed above.

Issues No.1, 2, 3 and 3-A

40. As issues no.1, 2, 3 and 3-A are interlinked and connected with each other, thus, they are being taken up and decided together.

41. This case has a long chequered history. Initially, plaintiff filed for grant of Letters of Administration, for the Will alleged to have been executed by his grandfather late Durga Singh on 22.06.1991, in the year 1999. The publication was made in the daily newspaper ''Amar Ujala' on 21.08.1999, though, the notices were issued on 09.07.1999.

42. Initially, the uncle of plaintiff, Jai Ram Singh, his father Vijay Singh and two brothers Sheo Saran Singh and Deo Saran Singh appeared through their counsel and lodged their caveat. His uncle Jai Ram Singh withdrew from the contest on 10.12.1999, but as caveat was lodged by his father Vijay Singh, the case was converted into Testamentary Suits No.13 of 2000, but all the contesting defendants withdrew from contest on 13.11.2006 and the suit was decreed on 27.11.2006.

43. On the recall application moved on behalf of the contesting defendants no.4 to 6 and father of plaintiff, Vijay Singh, the order dated 27.11.2006 was recalled vide judgment dated 23.03.2012, wherein the Court had recorded finding against the plaintiff that prima facie a fraud was played upon the Court. The case proceeded from the stage from where issues were framed, as contentious matter. Vijay Singh, father of the plaintiff filed his written statement on 25.11.2013, wherein he stated that the Will dated 22.06.1991 was forged and fictitious and it was not the last Will or testament of the deceased late Durga Singh and late Durga Singh had executed another Will dated 16.02.1993 and the Will dated 22.06.1991 was cancelled. In para 28 of the written statement, it has been specifically averred by Vijay Singh about the said Will. In para 12 of the written statement, he further submitted that plaintiff had got his signature on blank paper and had filed no objection on the basis of which the Court proceeded to decree the suit on 27.11.2006. The contesting defendants also filed their written statement on 24.07.2013.

44. Subsequent to the filing of written statement, Vijay Singh moved an application in the year 2014 for withdrawing from the contest, the said application was allowed on 15.04.2014. Similarly, the other two brothers of the plaintiff Sheo Saran Singh and Deo Saran Singh, on 06.05.2014, moved applications A-36 and A-38 for withdrawing from the contest, which were allowed by the Court.

45. The conduct of plaintiff, his uncle Jai Ram Singh, his father Vijay Singh and his two brothers Sheo Saran Singh and Deo Saran Singh can be gauged, in the way they have been participating in proceedings before this Court and playing fraud and colluding with the plaintiff right from the year 1999 to year 2014.

46. It is not in dispute and is evident from the various pleadings of the parties that after the death of late Durga Singh, agricultural land left by him was mutated in the name of both his sons Jai Ram Singh and Vijay Singh. The mutation orders were passed in the year 1993, to which no contest was raised by the plaintiff. However, an effort was made by the plaintiff to get his name mutated in the revenue records on the basis of the alleged Will dated 22.06.1991, but the application was dismissed, and the plaintiff did not proceed to challenge the order passed by the mutation Court. Subsequently, the plaintiff along with his two brothers in the years 1996 and 1997 sold the house mentioned in the Will. Moreover, no question was raised till Jai Ram Singh executed sale deed in favour of contesting defendants on 12.03.1997. It was only the 2nd sale deed which was executed on 09.08.1999, which is under cloud.

47. It is not in dispute that testamentary case was filed on 08.07.1999 and the notices were issued and publication was made in the daily newspaper ''Amar Ujala' on 21.08.1999, while the sale deed was executed by Jai Ram Singh in favour of contesting defendants on 09.08.1999, thus, the defendants did not have any knowledge about the alleged Will of the year 1991, as the purchase date was prior to the publication made in the newspaper for the public at large.

48. This Court on 23.03.2012, while allowing the recall application filed by the defendants and Vijay Singh, had recorded a categorical finding that not only the plaintiff, but also the caveators i.e. Jai Ram Singh, Vijay Singh, Sheo Saran Singh and Deo Saran Singh did not disclose the full and correct fact of the execution of the 2nd Will and the sale deed in which the plaintiff was also one of the parties, and the mutation order. The Court further recorded a finding which is as under:-

"25. In the proceedings for grant of probate or letters of administration, the Court is not ordinarily concerned with the ownership of the properties. The proceedings of the suit and the findings are confined to the due execution of the will by the testator, but where it is prima facie established that a fraud has been played upon the Court, and that the subsequent will executed by the testator has been suppressed in pursuance to which the registered sale deeds have been executed, and on the basis of which the mutation orders were also carried out and further where the father, uncle and brothers of the plaintiff have executed the affidavit alleging that the plaintiff has misused his position as an Advocate of the Court in making misrepresentation and in concealing the subsequent will and the proceedings to which he was also a party, it becomes necessary for the Court to recall the order and to allow the parties to lead the evidence to arrive at the truth of the matter."

49. The matter did not end here, and subsequent to the recall order after written statement was filed by Vijay Singh and the contesting defendants, Vijay Singh withdrew from the contest in the year 2014. This conduct of Vijay Singh, father of the plaintiff shows the connivance/collusion between the plaintiff, his father, his brothers and uncle Jai Ram Singh. They have taken Court for a ride and at each and every step they have tried to play fraud with Court and made various misrepresentations.

50. The plaintiff and his family members have not approached this Court with clean hands, and after the death of late Durga Singh, his two sons Jai Ram Singh and Vijay Singh, after getting their names mutated on their part of share sold the property in dispute and then permitted their family members i.e. plaintiff-Ram Saran Singh to play fraud by obtaining Letters of Administration on the basis of Will alleged to have been executed in the year 1991.

51. Initially, the petition was moved for grant of Letters of Administration, and by lodging a caveat, the petition was converted into suit and a false contest was created between the parties, and thereafter there was withdrawal by the parties to the contest and the suit was let to be decreed on 27.11.2006.

52. It was when the defendants no.4 to 6 came to know in mutation proceedings about the decree of the suit dated 27.11.2006 that recall application was filed not only by the contesting defendants, but also by Vijay Singh, father of the plaintiff. In the written statement, Vijay Singh has specifically mentioned about the subsequent Will of 1993 which had cancelled the earlier Will of 1991 and has filed the same along with written statement. It was on the basis of the Will of 1993 that the names of sons of late Durga Singh were mutated in the revenue records and Jai Ram Singh proceeded to sell his share of land to the contesting defendants no.4 to 6.

53. It is a case of manipulation and fraud committed by the plaintiff and his family members not only upon the defendants no.4 to 6, but also upon the Court, on the one hand by taking benefit of subsequent Will of 1993 and then by trying to get Letters of Administration in favour of one of the family members i.e. Ram Saran Singh, the plaintiff on the basis of forged Will of 1991.

54. Argument of Sri Narendra Mohan, learned counsel appearing for the plaintiff to the extent that not challenging the validity of Will dated 22.06.1991 by the defendants gives no cause of action to them, holds no ground. According to learned counsel, the defendants had only supported the case of Vijay Singh without alleging their own case. It is a case where the plaintiff had played fraud with Court as well as the judicial system in connivance with his family members.

55. Vijay Singh, the father of the plaintiff in his written statement had categorically stated that the Will dated 22.06.1991 was cancelled by the subsequent Will executed by late Durga Singh on 16.02.1993, and on the basis of which, the mutation was carried out in the revenue records which remained uncontested by the plaintiff. For the reasons best known, Vijay Singh after filing his written statement withdrew from the contest which not only raises an alarm, but also creates suspicion regarding the fact of collusion between the plaintiff, his father and brothers.

56. This is not a simple case where plaintiff can take a plea that the defendants had not challenged certain acts in the written statement when the conduct of plaintiff itself is under cloud and has already been held earlier by this Court to have played fraud and the said order having been affirmed in special appeal.

57. Another point raised on behalf of the plaintiff was that the citation was issued to persons claiming through Will or against the Will and purchasers are not necessary party. Here is a case where on the basis of the Will of a deceased, the beneficiaries have entered into contract with a 3rd party and executed documents, thus the purchasers are necessary party and have right to know about the proceedings which affects their right.

58. A feeble attempt has been made on behalf of the plaintiff that the defendants no.4 to 6, who are the purchasers, purchased the property without the leave of the Court and thus, are not bona fide purchasers.

59. This Court finds that the notices were issued on 09.07.1999, while publication was made in the newspaper ''Amar Ujala' on 21.08.1999 while sale deed was executed by Jai Ram Singh on 09.08.1999, thus no question arose for the purchasers to have taken leave of the Court as they were not aware of the malicious design of the plaintiff that he had filed any case before any legal forum on the basis of some testament.

60. The property in question came into the share of Jai Ram Singh after the death of his father late Durga Singh in the year 1993 and the Will of the year 1993 was acted upon by the parties and name of Jai Ram Singh and his brother Vijay Singh were mutated in the revenue records. In the year 1997 Jai Ram Singh had executed sale deed in favour of the defendants for the part of land and rest portion of the land was transferred through conveyance of 1999, thus, no question arose for any suspicion as Jai Ram Singh was the owner in possession of the land transferred by him to the defendants/vendee.

61. Various judgments relied upon by the plaintiff's counsel is of no help to him as the case of the plaintiff is clearly distinguishable from the case law cited, as it is a case of fraud and misrepresentation by the plaintiff in moving the petition for grant of Letters of Administration before this Court, and earlier on 23.03.2012 finding having been recorded while allowing the recall application against the plaintiff and his family members as to their conduct.

62. This Court finds that the plaintiff has failed to make out a case as to how he is entitled for grant of Letters of Administration on the basis of Will dated 22.06.1991, once the said Will was cancelled by late Durga Singh and subsequent Will was executed on 16.02.1993, acting on which not only the plaintiff, but his family members carried out various transactions such as mutation proceedings, selling house mentioned in the Will in the year 1996-1997 and then the execution of sale deed by Jai Ram Singh in favour of defendants in the year 1997-1999.

63. Once, the plaintiff and his family members proceeded on the basis of the Will of late Durga Singh of the year 1993, no question arises for granting of Letters of Administration on the alleged Will dated 22.06.1991, which was cancelled when the 2nd Will was executed on 16.02.1993.

64. The story set up by the plaintiff that he acquired the knowledge about the Will dated 22.06.1991 in the year 1999 is belied from the fact that an effort was made by the plaintiff for getting his name mutated in the revenue records on the basis of the said Will in the year 1993, which failed and his mutation application was dismissed. The plaintiff did not pursue the matter further after the dismissal of the mutation application in the year 1993, which clearly establishes the fact that he was well aware of the Will of 1991 as well as the subsequent Will executed by his grand father late Durga Singh on 16.02.1993, which had cancelled the earlier Will dated 22.06.1991, and the mutation was carried out on the basis of the Will dated 16.02.1993 in the revenue records, whereby names of Jai Ram Singh and Vijay Singh, the two sons of late Durga Singh were mutated in the revenue records.

65. Thus, this Court finds that no relief can be granted to the plaintiff on the basis of Will dated 22.06.1991 and issues no.1, 2 and 3 stand decided against the plaintiff. While, issue no.3-A stands decided in favour of defendants no.4, 5 and 6 as they are the bona fide purchasers of the property as there is no requirement for leave of the Court as the publication was made on 21.08.1999, while the sale deed was executed on 09.08.1999 that is prior to the date of publication. The issue stands decided in favour of the defendants no.4 to 6.

66. Considering the facts and circumstances of the case, this Court finds that no case for grant of Letters of Administration is made out by the plaintiff.

67. The suit fails and is, hereby, dismissed, with a cost of Rs.25,000/-.

Order Date:- 01st August, 2022

SK Goswami

[Rohit Ranjan Agarwal, J.]