DURGA Vs. ANIL KUMAR

JUDGEMENT

(1.) This appeal by grant of special leave is directed against the judgment of a Single Judge of the High Court of Judicature at Patna in appeal from original decree being AFOD No. 431 of 1991 wherein and whereby the learned Single Judge has set aside the judgement of the trial court, refusing to grant the letter of administration of the Will of one Mst. Harkhi Devi.

(2.) Briefly stated, the facts giving rise to this appeal are that one Amrit Singh of Village Ghosrama, District Nalanda died leaving behind his widow Mst Harkhi Devi, two sons, namely, Rajo Singh and Saryug Singh and three daughters, namely, Champa Devi, Kaushalya Devi and Shailya Kumari. Rajo Singh died in the year 1968, leaving behind his two widows, Alo Devi and Durga @ Sumitra Devi. Dhaneshwari Devi and Anil Kumar are respectively the wife and son of Saryug Singh.

(3.) Mst. Harkhi Devi executed a registered Will (Exhibit 1) on 13.06.1973 bequeathing her share in the joint family property in favour of Anil Kumar under the guardianship of his mother Dhaneshwari Devi. The Will was scribed by one Ambika Prasad and witnessed by eight persons including Balmukund Sharma and Rameshwar Upadhyay i.e. PWs 4 and 5 respectively. Dhaneshwari Devi being the natural guardian of Anil Kumar filed a petition u/s. 276 of the Indian Succession Act, 1925 (for short "the Act") for grant of letters of administration. The defendant-appellants (hereinafter referred to as "the appellant") entered appearance and filed their written statement contesting the Will. The trial court framed the following six issues for consideration: