Smt. Sunaina Devi vs Estate Of Ram Lakhan Singh And Ors
2022 Latest Caselaw 4842 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Miscellaneous Appeal No.696 of 2016
======================================================

Smt. Sunaina Devi, Wife of Sri Birendra Prasad @ Birmani Prasad, resident of village-Pati Bigha, P.S.-Islampur, District-Nalanda.

... ... Appellant/s Versus

1. Estate of Ram Lakhan Singh, son of Late Jaddu Dash, Resident of village- Pati Bigha, PO-Chandharia, P.S.-Islampur, District-Nalanda.

2. Muneshwar Singh, Son of Late Jaddu Das.

3. Musafir Singh, S/o Late Jaddu Das, both 2 and 3 resident of village-Pati Bigha, P.S.-Islampur, District-Nalanda.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s    :       Mr. Bajarangi Lal, Advocate
For the Respondent/s   :       Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT Date : 06-12-2022

Heard Mr. Bajarangi Lal, learned counsel for the

appellant.

2. The present appeal is directed against the order

dated 26.04.2016 passed in Probate Case No.02 of 2003 / T.S.

No.03 of 2008 by the learned 6th Additional District & Sessions

Judge, Nalanda at Biharsharif, by which the learned court

rejected the case of the appellant and refused to grant probate in

her favour.

3. The matrix of facts giving rise to the present appeal

is/are as follows:

4. Ram Lakhan Singh, the cousin father-in-law of the

appellant was issueless. The appellant used to take care of him

and accordingly pleased with her service, he executed a Will on Patna High Court MA No.696 of 2016 dt.06-12-2022

19.08.2002 in her favour and left thumb impression was given

on the paper in the presence of Kapildeo Prasad, Sidheshwar

Prasad and Bimal Singh.

5. Ram Lakhan Singh died on 27.11.2002 whereafter

the probate case was preferred before the court concerned.

6. The opposite party namely, Muneshwar Singh and

Musafir Singh filed objection in the matter stating therein that it

is a forged Will and despite they being the own brothers of Ram

Lakhan Singh, deliberately they were not made parties to

contest the case.

7. It was the further contention of the opposite parties

that the lady never served Ram Lakhan Singh nor any Will was

executed in her favour. It was further case that Ram Lakhan

Singh was ill suffering from Paralysis and was virtually

senseless when the alleged Will is claimed to have been

executed on 19-08-2002 and as such the present petition is fit to

be dismissed.

8. The learned court framed following issues:

(i) whether the case is maintainable?

(ii) is the Will dated 19.08.2002 a valid

document?

(iii) is it a forged and fabricated document?

Patna High Court MA No.696 of 2016 dt.06-12-2022

(iv) was Ram Lakhan Singh suffering from

paralysis and not in a fit heath on

19.08.2002?

(v) was he in a sound state of mind when the

Will was prepared?

(vi) whether the applicant is entitled for grant

of probate?

9. In support of her case, four witnesses were put

forward.

10. AW.1 is Sunaina Devi herself and she supported the

Will dated 19.08.2002. According to her, Ram Lakhan Singh

executed the Will and put his LTI on the document. They went

to the office on 'Tumtum' to Islampur Registry Office. The

document on which Ram Lakhan Singh put his LTI was a stamp

paper. She further accepted that she has a sister-in-law Punam

Devi and Bimal Singh is her father-in-law.

11. AW.2 is Bimal Singh who is related to the lady and

he has supported the aforesaid Will. It was his further case that

the lady used to serve Ram Lakhan Singh and pleased with her

service, the Will was executed.

12. AW.3 is Birendra Prasad. He is the husband of the

applicant Sunaina Devi. He also supported the Will dated Patna High Court MA No.696 of 2016 dt.06-12-2022

19.08.2002 and further deposed that on 27.11.2002, when Ram

Lakhan Singh died, all the expenses to the tune of Rs.10,000/-

was borne by him.

13. AW.4 is Kapildeo Prasad who has also supported

the signing of the document. He named his father as Sidheshwar

Sao but the document showed his name as Kapildeo Prasad, s/o

of Sidheshwar Prasad.

(i) the exhibits that were produced by the

applicant was Ext.I, the Will dated

19.08.2002.

(ii) Ext.II is the 'Malgujari' receipt and

Ext.III is the death certificate.

14. The opposite party who deposed on the other hand

were Amlesh Prasad and Musafir Singh.

15. According to them, Ram Lakhan Singh was

seriously ill, was senseless at the alleged timing of the execution

that has been stated by the applicant, was not even able to do his

daily cores and as such under no circumstance, the Will could

have been executed.

16. It was their further statement that after his death, all

the funeral expenses were borne by them and not by the

husband of the applicant.

Patna High Court MA No.696 of 2016 dt.06-12-2022

17. Opposite party witness, Amlesh Prasad further

narrated that the funeral of Ram Lakhan Singh was done at

Islampur and reiterated that the funeral was done by Musafir

Singh.

18. The learned court thereafter held that against the

claim of the lady that the Will was executed on stamp paper, the

said document do not have any stamp/ticket.

19. Further, on 19-04-2000, the brothers were

separated and according to the applicant, she possess the papers

of separation but the same was/were never provided/produced to

the court. Further, the lady put forward 'Malgujari' receipt in the

name of Ram Lakhan Singh to show that he was in state of

separation which falsifies her own statement inasmuch as the

'Malgujari' receipt in the name of Ram Lakhan Singh is of

31.01.2000 whereas according to her, the brothers separated on

19.04.2000.

20. The learned court further took into account that the

'Kateeb' Birendra Prasad who allegedly penned the Will was not

presented/examined.

21. Further, none of the witnesses belong to Patibigha

from where Ram Lakhan Singh belonged to.

22. Accordingly, the learned court vide an order dated Patna High Court MA No.696 of 2016 dt.06-12-2022

26.04.2016 came to a definite finding that the Will on the basis

of which the applicant is seeking relief is not a valid piece of

document and accordingly the claim was rejected.

23. Aggrieved by the said order, the present appeal has

been filed.

24. Mr. Bajarangi Lal, learned counsel for the appellant

submits that the opposite party did not challenge the LTI of Ram

Lakhan Singh. It is his further submission that only because the

Will was not registered, that cannot be basis for ignoring the

claim. The last submission of Mr. Bajarangi Lal is that Mr. Ram

Lakhan Singh was in a fit state of mind and even if he was

suffering from Paralytic stroke, the same cannot prevent him

from putting an LTI on the document.

25. However, Mr. Bajarangi Lal failed to provide

answer to the facts that when the lady herself submitted that the

document was signed on stamp paper, why there was no stamp

available on the Will. Further, when the state of separation took

place on 19.04.2000, how the Malgujari receipt dated

31.01.2000 was provided.

26. In view of the aforesaid facts that there is/are no

answer to the said findings of the concerned court, it rightly

came to the conclusion that the Will dated 19.08.2002 is not a Patna High Court MA No.696 of 2016 dt.06-12-2022

valid piece of document for which relief, as prayed for by the

applicant, can be granted.

27. This Court is in full agreement with the order dated

26.04.2016 passed in Probate Case No.02 of 2003 / T.S. No.03

of 2008 by the learned 6th Additional District & Sessions Judge,

Nalanda at Biharsharif.

28. The M.A. No.696 of 2016 fails and is accordingly

dismissed.

                                                     (Rajiv Roy, J)


Prakash Narayan
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          08.12.2022
Transmission Date       NA