APPEAL FROM ORIGINAL DECREE No.26 OF 1998
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AGAINST THE ORDER AND JUDGMENT DATED 22.9.1997 PASSED
BY
SRI BIPIN DUTTA PATHAK, 2nd ADDITIONAL DISTRICT JUDGE,
AURANGABAD IN PROBATE CASE NO. 3 OF 1986/ 2 OF 1993.
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PANCHAM SINGH--------------------------------------------------------Appellant.
Versus
AM JANATA---------------------------------------------------------------Respondent.
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For the Appellant: Mr. Bhanu Pratap Singh, Advocate.
For the Respondent: None.
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PRESENT
THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN
Sheema Ali This appeal arises out of the judgment dated 22.9.1997
Khan,J.
passed by 2nd Additional District Judge, Aurangabad in Probate Case
No. 3 of 1986 / 2 of 1993 by which the court has rejected the
application of the applicant to grant probate of a Will dated 1.8.1983
executed in favour of the applicant by one Hari Bansh Kuer wife of
Ramjatan Singh of village- Baruna.
The case of the appellant is that Hari Bansh Kuer executed a
deed of will in his favour on 1.8.1983, out of love and affection as the
appellant had taken care of her. She has transferred all her lands in
favour of the appellant.
It has further been stated by the appellant that the executant
was an agnate and the relationship was that she was the grand- mother
of the appellant. Since the applicant had not impleaded any one as an
objector in this case, the court had ordered that a general notice be
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issued to the public at large regarding the case.
The order dated 1.6.1995 reveals that a notice was given to
the general public by a beat of drum and thereafter the case was fixed
for ex-parte hearing.
The only issue to be decided in this case whether the
appellant is entitled to get the benefits of the Will dated 1.8.1983 ?
On behalf of the appellant, three witnesses have been
examined to prove his case. P.W.1 is the appellant himself who
supports his case and states that the executant was an agnate and was
his grand -mother. It has been stated by the appellant that she died in
the year 1985 and after that property has come in his possession. The
appellant has also deposed that apart from the appellant there is no
other person who is entitled to receive a share in her property.
To prove the document, the appellant has examined P.W. 2
who is the deed writer of the Will in question. P.W.2 supports the fact
that he has written the document and also proved the Will. P.W.3
Lakhan Singh is the witness to the Will. P.W.3 supports the case of
the appellant and proves his own signature on the Will.
After perusing the findings, I find there is no reason for
disbelieving the evidence led on behalf of the appellant and in fact the
court below has not disbelieved the evidence of the appellant at all but
has rejected the application for grant probate on three grounds which
according to me are very unreasonable.
The first ground for rejecting the claim of the appellant is
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that according to the court below, the Will did not disclose whether
the executant had any heirs. It is quite clear from the evidence led on
behalf of the parties that the executant did not have heir and in fact no
body came forward to make a claim with respect to the property
belonging to the appellant. As such, this reason given by the court
below is untenable.
The second ground for rejecting the case of the appellant is
that the court has observed that Ramdeo Singh, the process server was
the person responsible for informing the general public by the beat of
drum, has not been examined to prove service of notice.
I do not understand why the court should disbelieve his own
records. By the order dated 1.6.1995, the court has recorded that the
notice was served by a beat of drum and the record shows that such
steps were taken for service of notice, and as such, the reasoning of
the court below is defective. Moreover, if the court had any doubt
while hearing the matter the court could have summoned Ramdeo
Singh and examined him as a court witness.
The third reason for rejecting the claim of the appellant by
the court below is that the appellant had not made his brothers party in
the lower court. The appellant has specifically pleaded and testified
that Hari Bansh Kuer had no heirs, and has stated that the executant
was his grand mother and she has executed the Will because he used to
look after her. The brothers of the appellant live in the same village
and they would have made a claim or appeared during the hearing of
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the case if they had some stake in the property.
There is another aspect to this case. Admittedly, the
appellant has been in possession of the property belonging to Hari
Bansh Kuer since the year 1985 to the knowledge of all concerned and
if anyone had an objection certainly they would come forward and
objected to his possession, however, in this case no body has come
forward to object to the possession of the appellant, and as such, that
the court below has erred in coming to the conclusion that the
petitioner is not entitled to grant probate of the Will on the ground that
he has not come with clean hands.
For the reasons mentioned aforesaid, the order and judgment
dated 22.9.1997 passed in Probate Case No. 3 of 1986 / 2 of 1993 is
set aside and this appeal is allowed.
PATNA HIGH COURT (Sheema Ali Khan,J)
DATED, 4TH
AUGUST,2008.
N.A.F.R./U.K./SECRETAR
Y