Krishna Deo Prasad vs Sita Mehto And Ors
2022 Latest Caselaw 4887 Patna

       IN THE HIGH COURT OF JUDICATURE AT PATNA
                    FIRST APPEAL No.15 of 1986
======================================================

1. Krishna Deo Prasad, son of Late Sukhdeo Narain Prasad, resident of village-Dulahpur Kathrahi @ Jaiki, P.S.-Asthawan, District-Nalanda.

2. Amrendra Mohan Prasad.

3. Anand Mohan Prasad.

Both sons of Krishnadeo Prasad.

4. Kanti Devi.

5. Jayanti Devi.

7. Radhika Devi.

All married daughters of Late Sukhdeo Narain Prasad. All resident of village-Dulshpur Kathrahi @ Jaki P.S.-Asthawan New, P.S.- Bind, District-Nalanda.

... ... Appellant/s Versus

1. Sita Mahto, son of Late Bhola Mahto, resident of village-

Pagambarpur, P.O.-Korari, P.S.-Belchhi, District-Patna.

2. Smt. Bhatani Devi @ Kari Devi, resident of village-Kamal Bigha, P.O.-Bilari, P.S.-Giriyak, District-Nalanda.

3. Bimla Prasad.

4. Kedar Prasad.

5. Ajit Prasad.

6. Sanjeev Prasad.

7. Sujeet Prasad.

All 3 to 7 sons Late Ganauri Mahto, All resident of village- Choudharin Chak, P.S.-Belchhi, District-Patna, P.O.-Masathu.

8. Bhagwat Prasad.

9. Jawahir Prasad.

10. Beermani Prasad.

11. Tunha Prasad.

8 to 11 all sons of Ramjee Prasad, resident of village+P.O.-Gopalpur, P.S.-Belchhi, District-Patna.

12. Smt. Jai Rani Devi, wife of Late Doman Mahto, resident of village-

Salempur, P.O.-Rahui, P.S.-Rahui, District-Nalanda.

... ... Respondent/s Patna High Court FA No.15 of 1986 dt.08-12-2022

====================================================== Appearance :

       For the Appellant/s       :        Mr. Rajeev Kumar Verma, Sr. Advocate
                                          Mr. Rajneesh, Advocate
                                          Mr. Rohan Verma, Advocate
       For the Respondent/s      :        None

====================================================== CORAM: HONOURABLE MR. JUSTICE RAJIV ROY CAV JUDGMENT Date : 08-12-2022

Heard Mr. Rajeev Kumar Verma, learned Senior

Counsel for the appellant. No one appeared on behalf of the

respondents despite notices and press publication that were done

earlier.

2. The present appeal arises out of the judgment and

order dated 04.10.1985 passed in Title Suit No.15 of 1973 by the

court of learned Ist Additional District Judge, Nalanda by which

the plaint put forward by the Plaintiff-Appellant was negated and

the suit was dismissed.

3. The matrix of facts giving rise to present appeal

is/are as follows:

4. One Babu Naman Mahto was blessed with two sons

namely, Atwari Mahto and Bandhu Mahto. Further, with the

passage of time, the two brothers separated and came in

possession of their respective shares of land. Patna High Court FA No.15 of 1986 dt.08-12-2022

5. Atwari Mahto was blessed with three sons, namely,

Shiv Sahay Mahto, Gopal Mahto and Harihar Mahto. Gopal

Mahto was blessed with three sons namely, Sukhdeo Narain

Prasad (the original plaintiff), Basudeo Mahto and Bisho Mahto.

Further, Shiv Sahay Mahto was blessed with five daughters

namely, Jagia Devi, Bhatni Devi @ Kari Devi, Savitri Devi, Jeera

Devi and Jai Rani Devi. Jagia Devi was married nearer home to

her father, Shiv Sahay Mahto and she was blessed with one son,

Sita Mahto. Harihar Mahto died unmarried.

6. After the death of Shiv Sahay Mahto, his nephew

Sukhdeo Narayan Prasad preferred Probate Case No.48 of 1970

before learned District Judge, Patna for grant of probate on the

basis of Will dated 02.04.1961 executed by Shiv Sahay Mahto.

Jagia Devi, one of the daughter of Shiv Sahay Mahto appeared

and filed objection. This led to conversion of Probate Case No.48

of 1970 into Title Suit No.15 of 1973.

7. After the creation of Nalanda district, the case was

transferred to the court of learned District Judge, Nalanda at

Biharsharif.

8. Beside Jagia Devi and her son Sita Mahto, the other

daughters of Shiv Sahay Mahto namely, Bhatni Devi @ Kari

Devi, Savitri Devi, Jeera Devi and Jai Rani Devi also appeared in Patna High Court FA No.15 of 1986 dt.08-12-2022

the case on 25.03.1985 and adopted the written statement of Jagia

Devi.

9. The case of the plaintiffs was that Shiv Sahay Mahto

was in a state of jointness with the sons of Gopal Mahto and due

to the care and attention that he used to take, out of love and

affection, the Will was executed in his favour (with respect to the

suit lands) on 02.04.1961.

10. In furtherance of the said claim, the plaintiff

brought on record documents to show that after the death of Shiv

Sahay Mahto on 27.12.1967, he performed 'Shraddh' and filed

receipts showing purchase of utensils, cloths, grains as also the

documents showing account of expenditure for his treatment.

11. The defendants daughters on the other hand

claimed that while Harihar Mahto died unmarried, the other two

brothers namely Shiv Sahay Mahto and Gopal Mahto had

separated by metes and bounds long ago. The 'Sasural' of Jagia

Devi being close to her 'Naihar', she and her son, Sita Mahto used

to look after Shiv Sahay Mahto and out of said love and affection,

Shiv Sahay Mahto had also gifted some land to her son, Sita

Mahto on 31.05.1963 through registered sale deed. Further, even

Shiv Sahay Mahto had sold some of the property on 04-02-1962

and had mortgaged some other land to cater to his needs. Patna High Court FA No.15 of 1986 dt.08-12-2022

12. It was further case of the defendants that Shiv

Sahay Mahto was bedridden prior to his death and on getting

opportunity, the plaintiff, Shukhdeo Narayan Prasad may have

obtained left thumb impression on blank paper and later

manufactured Will in collusion with the 'Tayeed' Hari Narayan

Prasad and it was thus the case of the defendants that the said Will

cannot be treated as a valid one.

13. The learned court framed issues, the important

amongst which is/are as follows:

(i) is the suit as framed maintainable?

(ii) is the Will dated 02.04.1961 the last Will and a valid

document or it is a forged and fabricated document?

(iii) is the plaintiff entitled for letter of administration?

(iv) to what relief or reliefs, is the plaintiff entitled?

14. The learned Ist Additional District Judge, Nalanda

thereafter vide an order dated 04.10.1985 came to a definite

conclusion that:

(i) the 'Will' that the plaintiff produced is unregistered;

(ii) it does not contain any provision for maintenance of

Gauri Devi, wife of Testator, Shiv Sahay Mahto despite the fact

that she was alive when the alleged deed is said to have been

executed by him;

Patna High Court FA No.15 of 1986 dt.08-12-2022

(iii) the alleged LTI and signature of the Testator on

Ext.2 (Will) is/are also in dispute;

15. The learned court further held that the plaintiff

failed to explain why the deceased executed the Will in his favour

in a joint family property when he was separate and had also sold

some land to Bharat Prasad.

16. It was further held by the learned court that the

inscribed and attesting witnesses failed to give the name of the

lawyer with whom the deceased had sought legal advise to

execute unregistered 'Will' in favour of the plaintiff.

17. The learned court thus held that all the

circumstance create reasonable doubts regarding the genuineness

of the Will and it appears that the plaintiff in collusion with the

aforesaid inscribe and the attesting witnesses managed to

manufacture the alleged Will after the death of Shiv Sahay Mahto

to deprive his daughters and grand son from the properties left out

by him.

18. It further held vide an order dated 04.10.1985 that

the alleged Will dated 02.04.1961 cannot be said to be have been

executed by the Testator, Shiv Sahay Mahto in favour of the

plaintiff, Sukhdeo Narain Prasad rather it appears to be forged and Patna High Court FA No.15 of 1986 dt.08-12-2022

fabricated Will as pointed out by the defendants. Accordingly, the

suit was dismissed with cost.

19. Aggrieved by the said order dated 04.10.1985

passed by the learned Ist. Additional District Judge, Nalanda at

Biharsharif, the present appeal was filed.

20. During the pendency of the appeal, the plaintiff-

appellant, Sukhdeo Narayan Prasad died and has been substituted

by his heirs, Krishnadeo Prasad & Ors.

21. Heard learned Senior Counsel for the appellants.

None appeared for respondents.

22. Mr. Rajeev Kumar Verma, learned Senior Counsel

took this Court to the entire case from the genealogy to the date,

the Testator, Shiv Sahay Mahto executed the Will on 02.04.1961

in favour of Sukhdeo Narayan Prasad.

23. Learned Senior Counsel contented that while

continuing in joint family and in view of the fact that all the five

daughters were happily married and nicely settled in life and

further being fond of his nephew, Sukhdeo Narayan Prasad, Shiv

Sahay Mahto executed the Will in question on 02-04-1961 with

complete alertness of mind without there being any external

influence.

Patna High Court FA No.15 of 1986 dt.08-12-2022

24. The further submission of learned Senior Counsel

was that on 27-12-1967, Shiv Sahay Mahto died whereafter on

14-03-1970, Probate Case was filed by Sukhdeo Narayan Prasad

before the learned District Judge, Patna for the Will to be probated

which resulted into Letters of Administration Case No.48 of 1970.

25. The five daughters of the Testator, Shiv Sahay

Mahto were made parties and firstly Jagia Devi appeared and filed

objection petition and later all the other four appeared and adopted

the stand of Jagia Devi.

26. As a result, the case was converted to Title Suit

No.15 of 1973. Further, the case of Jagia Devi was that her father,

Shiv Sahay Mahto had grown old and was not keeping good

health one year prior to his death, was confined to bed and had

lost his power of understanding. All through his illness, Jagia Devi

and her son, Sita Mahto were there to provide best treatment to

her father but sometimes they used to go to their in-laws house

which was nearer to her 'Maika' and taking advantage of the said

absence, Sukhdeo Narayan Prasad may have taken thumb

impression on blank paper and converted it into a Will.

27. Learned Senior Counsel submitted that this

statement of Jagia Devi was quite contrary to the statement of her

son, Sita Mahto (DW.16) who in his deposition submitted that his Patna High Court FA No.15 of 1986 dt.08-12-2022

'Mausi' Jira Devi frequented the house of Late Shiv Sahay Mahto

to look after him which was followed by other 'Mausis' also and

as such learned Senior Counsel submitted that there was no lonely

hour for Sukhdeo Narayan Prasad to get a thumb impression of

Shiv Sahay Mahto on blank paper as alleged and get it antedated

for preparation of Will.

28. Learned Senior Counsel further submitted that

DW.16 Sita Mahto, son of Jagia Devi in his further statement

stated that 'Sardi, Garmi' had affected his 'Nana' and was

bedridden. This statement of DW.16 is again contrary to the

statement of Jagia Devi that one year prior to the death of Shiv

Sahay Mahto, he was unconscious and unable to understand

things.

29. Learned Senior Counsel submitted that out of five

sisters, only Jagia Devi and Bhatni Devi were examined while

other three sisters were not examined.

30. According to learned Senior Counsel, altogether

twelve witnesses (from plaintiff side) were examined out of which

PW.3 Santosh Kumar Chatterjee was Private Signature Expert

while P.W.6 Kashi Lal was photographer of the signature and the

Will as also the mortgaged bond (Ext.4) and according to them,

the photograph and the signature / thumb impression on the Patna High Court FA No.15 of 1986 dt.08-12-2022

mortgaged bond and the Will were of the same person and this

statement was not challenged by defendants.

31. Further case of Learned Senior Counsel was that

the PW.11 Barber who used to look after Shiv Sahay Mahto had

also participated/conducted his funeral and subsequently

'Shraddh' also supported the plaintiff's story.

32. According to learned Senior Counsel, PW.12,

Sukhdeo Narayan Prasad narrated that it was joint family and

Shiv Sahay Mahto was very fond of him being blessed with five

daughters and he used to shower love and affection since

childhood and accordingly, on 02-04-1961 he willed the suit

property through unregistered deed in the presence of Janki

Mahto, Guru Sahay Mahto and Ishwar Singh and the same was

inscribed by Hari Narayan Prasad (PW.2).

33. Learned Senior Counsel submitted that the PW.2,

Hari Narayan Prasad, stated that he was called by Shiv Sahay

Mahto to draft the Will. However, he conceded that the inscribe

could not remember the messenger who conveyed him the

message of Shiv Sahay Mahto to him.

34. It was his further submission that after the death of

Shiv Sahay Mahto, all the rituals were performed by Sukhdeo

Narayan Prasad who also spent money for funeral and 'Shraddh' Patna High Court FA No.15 of 1986 dt.08-12-2022

and kept the account in his own handwriting which was presented

and marked as Ext.5. Even the land involved in the Will which

stood mortgaged by the Testator was redeemed by PW.12 on

payment of Rs.769/-.

35. He submitted that it was a proper Will and denied

that the thumb impression was taken on a blank sheet on which

the Will was incorporated illegally.

36. The learned Senior Counsel further submitted that

even the learned court held that DW.5 Jagia Devi failed to

establish the fact that Shiv Sahay Mahto had lost consciousness

one month prior to his death.

37. Learned Senior Counsel next submitted that the

most important aspect of the entire case is that the defendant

witnesses have not denied the signature/thumb impression of Shiv

Sahay Mahto on the Will but have only objected that this may

been taken on a blank sheet during their absence and had

converted it into a Will. It is his further submission that when the

court itself held that the Jagia Devi failed to prove that the

Testator was unconscious prior to his death, the natural inference

will be that he was in a conscious state of mind and as such the

learned court was duty bound to issue the letter of administration

in favour of the defendant-appellant.

Patna High Court FA No.15 of 1986 dt.08-12-2022

38. In support of his case, learned Senior Counsel has

cited firstly a case of Sm. Chinmoyee Saha, vs. Debendra Lal

Saha and others reported in AIR 1985 Calcutta 349 with

special reference to para-8 which is as follows:

"The court is not justified to

consider the terms of the Will for deciding

whether the testatrix was justified in excluding

her sons or daughters or the wives of Kishori

or the son of Rajendra, when the propounder

has been able to prove due execution and

attestation of the Will as well as the sound

disposing mind of the testarix."

39. The next case cited by learned Senior Counsel was

Sheogobind Singh and another vs. Mt. Rajeshwari Kuer

reported in AIR 1963 Patna 24 to show that the court only has to

see whether the Will and testament was duly executed and attested

properly and at the time of execution he had sound disposing

mind. Whether the same is good or bad is not within the purview

of the court.

40. The learned Senior Counsel has also referred to

an order of Patna High Court in Ram Prashad Sahu and another

vs. Musummat Basantia reported in 6 PLT 615 to submit that a Patna High Court FA No.15 of 1986 dt.08-12-2022

Testator can revoke Will in part under section 70 of the Indian

Succession Act. Still the rest of the 'WILL' will remain

unaffected.

41. The last case cited by learned Senior Counsel was

Smt. Indu Bala Bose and others vs. Manindra Chandra Bose

and another reported in AIR 1982 SC 133 to show that it is not

the job of the Probate Court to inquire as to in whose favour the

Will is executed or not. It only has to examine whether the Will is

genuine or not. Even in presence of wife, widow, grand mother

children, daughter, sister and brother, who all are alive, Will can

be executed in favour of nephew and the same can be considered

genuine.

42. As noted, no one appeared for the respondents

despite all steps taken in the matter.

43. This court took up the matter from the stage the

issues were framed by the learned First Additional Sessions Judge,

Nalanda and it would be appropriate to reproduce them once

again.

44. The learned court framed issues, which included

amongst the other the following:

(i) is the suit as framed maintainable?

Patna High Court FA No.15 of 1986 dt.08-12-2022

(ii) is the Will dated 02.04.1961 is the last Will and a

valid document or it is a forged and fabricated document?

(iii) is the plaintiff entitled for letter of administration?

(iv) to what relief or reliefs, is the plaintiff entitled?

45. The learned court thereafter took note of the facts

and held that the documents that has been put forward by the

plaintiff i.e. the receipts showing purchase of utensils, cloths,

grains (Ext.6,6/A and 6/B respectively) for the 'Shraddh' of Shiv

Sahay Mahto are all on plain papers and as such the same can be

easily manufactured and these documents cannot show that it was

the plaintiff who performed 'Shraddh'.

46. It was further held by the learned court that the

Ext.5 which is the document/account of expenditure for treatment

is again on loose sheets. It was further marked by the learned

court that although the details of expenditure on different dates

have been incorporated, it appears that the same ink and pen has

been used for all the dates and thus this can also be termed a

created document.

47. So far as the documents the plaintiff relied on

(Ext.9, Ext.16, Ext.17) showing that Shiv Sahay Mahto and

Sukhdeo Narayan Prasad as also his brothers as judgment debtors,

the learned court took note of the plea of the defendants that Patna High Court FA No.15 of 1986 dt.08-12-2022

despite separation, they used to contest the cases together and thus

these documents cannot prove that Shiv Sahay Mahto and Gopal

Mahto as also the sons of Gopal Mahto were in state of jointness.

48. The learned court also took note of the statement of

the defendants that in the Title Suit No.228 of 1970 which the

plaintiff had unsuccessfully brought against the lands that her son,

Sita Mahto was holding, he had filed certified copy of a document

in which the District was described as 'Nalanda' whereas at that

particular time, the area was under the jurisdiction of Patna district

and not Nalanda which was not even in existence. The learned

court hearing the Title Suit No.228 of 1970 had found the said

document to be a forged one. Later, the plaintiffs surreptitiously

brought the changed version in which it was shown as Patna. As

such the said document cannot be relied upon.

49. The learned court further took note of Ext.D

submitted by the defendants i.e. the sale deed dated 04.12.1962 by

Late Shiv Sahay Mahto to show that he was separate and not in a

state of jointness. The learned court further held that on the said

sale deed, one of the brother of the plaintiff, namely Biso Mahto

was a witness. It thus held that had it been a joint property, he

would not have been a signatory on the witness side. The learned

court further took note of Ext.E. i.e. the deed of gift in favour of Patna High Court FA No.15 of 1986 dt.08-12-2022

Sita Mahto against which, as stated, the plaintiff had

unsuccessfully brought Title Suit No.228 of 1970.

50. The learned court also took note of the mortgaged

deed dated 31.07.1946 (Exhibit F) executed by Gopal Mahto

(father of the plaintiff) to show that the families were separate by

metes and bounds and as such they were selling, mortgaging as

well as executing gift deeds separately. Then another document

Ext.F/1 was on record which was the mortgaged deed dated

14.09.1946 by Harihar Mahto, another brother of Shiv Sahay

Mahto.

51. The learned court took special note of Ext.D/2

which is the sale deed dated 09.12.1966 by Bisho Mahto, brother

of the plaintiff in favour of Bharat Prasad which clearly gave

impression that even Shukhdeo Narayan Prasad and his brothers

(sons of Gopal Mahto) were separated which enabled Bisho

Mahto to execute sale deed separately.

52. So far as contention put forward by Mr. Rajeev

Kumar Verma, Learned Senior Counsel about the statement of Sita

Mahto vis-a-vis his mother Jagia Devi relating to presence of one

or the other 'Mausis' coming to see his ailing maternal grand

father (Nana) is concerned, in the considered view of this court the

said statement of Sita Mahto is not different from his mother. He Patna High Court FA No.15 of 1986 dt.08-12-2022

has merely stated that one or the other 'Mausi' used to visit his

'Nana' and has not stated that one of her 'Mausi' always remained

with him during the illness.

53. Again, so far as the submission of learned Senior

Counsel about the illness of Shiv Sahay Mahto having been

described as 'Sardi-Garmi' vis-a-vis his mother that he was

unconscious, this Court is of the view that from the said statement

it can be held that the Shiv Sahay Mahto was ill and not in good

State of health and mind and thus does not find any contradiction

in said statement either.

54. Further the finding of learned Ist Additional District

Judge, Nalanda cannot be ignored that not only Shiv Sahay Mahto

gifted some land to Sita Mahto, he himself sold some land in 1962

and thus it is clear that they were separate and not in a state of

jointness.

55. The further finding of the learned court that Biso

Mahto, brother of plaintiff Sukhdeo Narayan Prasad was a witness

to the said sale deed (and not one of the executant) clearly proves

that it was not a joint property.

56. Further, while challenging the gift Shiv Sahay

Mahto made to his 'Nati', Sita Mahto vide T.S. No.228 of 1970,

Sukhdeo Narayan Prasad resorted to fraud by producing a Patna High Court FA No.15 of 1986 dt.08-12-2022

document which recorded the district as Nalanda whereas at that

time, the area was under the jurisdiction of Patna. Sukhdeo

Narayan Prasad lost the said Title Suit No.228 of 1970.

57. Then another Sale deed executed by brother of

Sukhdeo Narayan Prasad namely Bisho Mahto on 09.12.1966

cannot be ignored which proved that not only Shiv Sahay Mahto

had separated, even the brother of Sukhdeo Narayan Prasad were

in a State of separation.

58. Then there is absence of the name of the lawyer

who gave advice to Shiv Sahay Mahto.

59. All these findings of the learned Ist Additional

District Judge, Nalanda clearly shows that the plaintiff failed to

conclusively prove the genuineness of the 'Will' that he claimed

to have been executed by Shiv Sahay Mahto in his favour.

60. So far as the decision cited by the learned Senior

Counsel Sm. Chinmoyee Saha vs. Debendra Lal Saha and

others (Supra) is concerned, in that case, the Calcutta High Court

had held that the court is not justified to consider the terms if the

propounder has been able to prove the execution and testator of

the Will in sound mind. However, in this case, the defendant

witnesses made consistent stand that Shiv Sahay Mahto was ill

and not in a good health and during the illness, Sukhdeo Narayan Patna High Court FA No.15 of 1986 dt.08-12-2022

Prasad on getting an opportunity may have taken signature/thumb

impression on a blank paper which was later converted into a

Will. In the backdrop of the consistent statement of the defendant

witnesses, the onus was on the part of the plaintiff-appellant to

prove due execution and attestation of Will including the fact that

he was in sound state of mind.

61. However, the ascribed who appeared as a witness

and stated that he was called upon by Shiv Sahay Mahto to pen

down a Will in favour of Sukhdeo Narayan Prasad failed to bring

on record the messenger who came with the said information.

62. Further, the lawyer who was part and parcel of the

said Will too was not examined and in absence of that, it cannot

be said that Sukhdeo Narayan Prasad was able to prove due

execution and attestation of the Will.

63. So far as Sheogobind Singh and another vs. Mt.

Rajeshwari Kuer (Supra) case is concerned, this Court holds

that it is true that the Court has only to see whether the document

put forward as last Will and testament of a deceased persons was

duly executed or not and attested in accordance with law and

whether he was in a sound disposing mind or not but the onus lies

on the appellant to prove the same and if he fails to do so and the Patna High Court FA No.15 of 1986 dt.08-12-2022

overall circumstances are found against him, he cannot be

extended the relief he has asked for.

64. In this particular case, the stand of the appellant

was that the family was in state of jointness and due to care and

attention, he used to take and out of love and affection, the Will

was executed on 02.04.1961. The said statement is not supported

by the facts as the documents/facts clearly proved that the family

had separated long before and all of them were in possession of

their separate lands.

65. This further gets fortified from the fact that Late

Shiv Sahay Mahto had executed a deed of gift in favour of Sita

Mahto (Nati) and had also executed sale deed dated 04.12.1962 in

which one of the brother of the plaintiff-appellant namely Bisho

Mahto was a witness which clearly shows that the families were

separated with separate piece of lands.

66. So far as the case cited by learned Senior

Counsel in Ram Prashad Sahu and another vs. Musummat

Basantia (Supra), is concerned, the same was in a very different

context inasmuch as in that case the testator executed a Will in

respect of his entire properties bequeathing them to his widow for

life and after her death to her two brothers, reserving only a

nominal maintenance allowance to his step mother, who raised a Patna High Court FA No.15 of 1986 dt.08-12-2022

quarrel with him and in order to satisfy her he subsequently

executed a sale deed in her favour in respect of two of the

properties only, containing the following:-

"that the properties entered in this deed of absolute sale have been entered in the said deed of Will. I having cancelled the said Will and rendered it null and void, have executed this deed of absolute sale in respect of the properties specified below and have made over to the said vendee the documents specified below....",

Held, - that the will had been revoked only to the extent of the properties conveyed by the sale deed and the will remained operative in respect of the other properties. In spite of the words 'cancelling the will' in the deed of sale, of which the plain object was to transfer the two properties only, the general scope or intent of the instrument could not be to revoke the entire will nor did the context justify that interpretation.

In the interpretation of deeds and written instruments the established rule of construction is to read the words in their ordinary and grammatical sense, and to give them effect, unless such a construction would lead to some absurdity or inconvenience or would be plainly repugnant to the intention of Patna High Court FA No.15 of 1986 dt.08-12-2022

the parties to be collected from other part of the deed.

67. A plain reading of the aforesaid observation of the

Patna High Court shows that it was in a very different context

where the Testator had clearly stated about rendering the Will null

and void and thereafter executed the deed of absolute sale in

respect of the properties.

68. Here the case of the other side is that Shiv

Sahay Mahto was in state of separation and had not only executed

deed of gift in favour of his maternal grand son Sita Mahto, he

had also subsequently alienated some land in 1962 and as such the

Will that was manufactured by the appellants is forged document.

Thus, this also does not come to the appellant's rescue.

69. Regarding Smt. Indu Bala Bose and others vs.

Manindra Chandra Bose and another (Supra) put forward by

the learned Senior Counsel, this Court again holds that it is true

that Will can be executed by a Testator in favour of anyone during

the lifetime of his/her family members. However, it is a fact that

on the day Shiv Sahay Mahto alleged to have executed the Will,

his wife Sudama Devi was alive and died almost 27 years later on

22.6.1994 but the Will was completely silent on the care and

attention that she needed after the death of Shiv Sahay Mahto and Patna High Court FA No.15 of 1986 dt.08-12-2022

once the Will is effected. Thus even the said judgment does not

come to the rescue of the plaintiff-appellant.

70. Taking into account all the facts leading to passing of

the order dated 04.10.1985 by the learned Ist Additional District

Judge, Nalanda, this court holds that the same is just and proper

and needs no interference.

71. The appeal fails and is accordingly dismissed.

(Rajiv Roy, J)

Prakash Narayan /-

AFR/NAFR                NAFR
CAV DATE                30.11.2022
Uploading Date          08.12.2022
Transmission Date       NA