Jharkhand High Court
Mahadeo Thakur vs Hira Hazam on 25 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 217 of 2013
1.Mahadeo Thakur
2.Tulsi Thakur
3.Digambar Thakur
4.Deodhari Thakur
5.Ram Charan Thakur ..... Appellants
Versus
1. Hira Hazam
2. Mithu Thakur .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellants : Mr. A.N. Deo, Advocate
For the respondent No. : Mr. Nehru Mahto, Advocate
09 / 25.10.2021 This appeal is directed against the judgment in
Probate Title Suit No.2 of 2007/Probate Suit No.4 whereby and
whereunder the probate was granted in respect of Will dated
28.01.1998 executed by testatrix Most. Bodha Devi, w/o late
Sobha Thakur.
The application for probate was preferred by Hira Hazam
under Section 276 of the Indian Succession Act for grant of
probate of the said Will with respect to land of Khata No.61 total
Plots for the area 2.08 acres out of 4.56 acres of land. Most.
Bodha Devi died on 30.01.2003 leaving behind the respondent
Hira Hazam who has taken proper care of the executant. The
opposite parties/appellants were not impleaded in the probate
case and after getting information they filed an application under
Order 1 Rule 10 of CPC and impleaded as opposite parties. The
appellants/O.Ps contested the application for probate mainly on
the ground that testatrix Most. Bodha Devi was not even alive on
the day of execution of the said registered Will on 28.01.1998
and the second wife of Sobha Thakur, Piaro Devi had got the
Will registered in the name of Most. Bodha Devi by
impersonation. The appellant Hira Hazam is no other than the
son of brother of Piaro Devi the second wife of Sobha Thakur.
The learned court below on the basis of rival pleading framed the
following issues:-
1) Whether the alleged registered deed of Will has been
executed by Most. Bodha or the same has been created
by Most. Piaro Devi describing herself as Bodha Devi
by impersonating her from Bodha to Pairo Devi?
2) Whether the Bodha Devi, the first wife of Sobha
Thakur predeceased him prior to the year 1970?
3) Whether the alleged Will has been validly proved by
the applicant as provided U/s 63 of the Indian
Succession Act?
4) Whether the applicant is entitled for grant of probate on
the basis of the alleged Will dated 29.1.1998?
On the basis of evidence laid on behalf of both the sides
the learned court below decided all the issues in favour of the
applicants and the probate application was allowed.
The order of learned court below has been assailed mainly
on the ground that Most. Bodha Devi was not alive on the date of
execution of registered deed of Will.
Having gone through the judgment of learned court below
and having heard the learned counsels for the parties it is
manifest that the core issue whether the testatrix of 'Will' was
allowed at the date of execution of the suit she died much before
that opposition witness No.1 Hira Hazam has stated in para-18 of
the cross-examination that Most. Bodha Devi died earlier in the
year 2003. DW-3 has also admitted that the execution of Will in
favour of Hira Hazam. Further OP witness No. 4 Dasaharat
Thakur in para-23 of the cross examination has stated that long
before the death of Most. Bodha Devi, Pairo Devi had married.
This evidence thus strike at the root of the case of the applicant
opposite party that the testatrix had died much before the
execution of the Will and after her death, Pairo Devi was married
to Sobha Thakur.
Learned court below has also referred to Ext.3 which is
sale deed No.452 dated 24.02.2000 in which the sale deed was
jointly executed by Most. Bodha Devi in favour of Dayal Steel
Ltd. along with Ops. 1, 3, 5 and 6. This dispels the contention of
the appellant that Most. Bodha Devi the predeceased her husband
Sobha Thakur and was not alive on the date of execution i.e.
28.01.1998.
The requirement of Will to attested by two or more
witnesses under the Indian Succession Act has been fulfilled.
PWs. 2 and 3, the attesting witnesses has proved during evidence
their signatures on the Will.
As per Section 3 of the Indian Succession Act every
testator shall execute his Will according to following rules :-
(a) The testator shall sign or affix his mark to the Will or it
shall be signed by other persons and as per his
direction.
(b) The signature or mark of the testator, or the signature of
person signed him, shall so placed that it shall appear
that it was intended thereby to give effect to the writing
a Will.
(c) The Will shall be attested by two or more witnesses out
of whom has signed the testator signed or affix his
mark to the Will or has assigned some other persons
who signed the Will.
Under Section 68 of the Indian Evidence Act if the
document is required by the law to be attested, which shall not be
used as evidence until one attested witness has been called for
proving its execution.
Heard. The Will had been registered in presence of that
witnesses who have been examined and have proved their
signatures on the Will. O.Ps/Appellants have failed to raise any
ground over the manner and mode of the execution of the Will.
Their contention that the testatrix was no alive has not only been
falsified by their own witnesses but also the documentary
evidence adduced on behalf of applicant/respondent.
Under the aforesaid facts and circumstances the learned
court below had discussed at length of the questions raised and
there is nothing on record to further raise any suspicion on the
due execution of the Will.
The order of learned court below is accordingly affirmed
and appeal is hereby dismissed.
(GAUTAM KUMAR CHOUDHARY, J.)
Tarun
