MAHABIR PRASAD Vs. STATE

JUDGEMENT

(1.) This proceeding concerns the claim for probate in respect of the Will of late Sh. Krishna Prasad, who died on 13.03.1982. The petitioner (hereafter called "Mahabir Prasad") is concededly the son of the testator; the Will of which Probate is sought is dated 28.01.1982. The testator had three children - Gobind Prasad, Mahabir Prasad and Kanti Prasad. Gobind Prasad had pre-deceased the testator and was survived by his children i.e. Gopal Prasad, Gita Chatterjee, Jagriti Gaur and Yamini Mishra. Gobind Prasad was survived by his widow, Smt. Satyawati Prasad, who during the pendency of the present case, died on 24.04.2007. It is contended that in terms of the recitals of the Will, the testator bequeathed his property, i.e. A-16 Maharani Bagh to Sh. Mahabir Prasad entirely, besides all other movables and personal assets. The petitioner seeks probate only in respect of the said immovable property. It is contended that the cause for approaching the Court arose on 13.02.1982 when the testator died.

(2.) After citation was published and notices were issued to the testator's heirs, Sh. Gopal Prasad, the third objector, filed his reply, submitting that the Will is not genuine. Sh. Gopal Prasad also contends that the plot upon which the subject property was constructed was purchased out of HUF funds and amounts invested by late Sh. Gobind Prasad, the pre-deceased son of the testator. Sh. Gopal Prasad also contends that the Will was forged and is a fabricated document and that the property has to devolve in one-third proportion to each branch of the testator's family. In the additional pleas, Sh. Gopal Prasad argues that the property was purchased in 1965 from the Maharani Bagh Cooperative House Building Society of which the testator became a member in 1959; it is also submitted that the testator was karta of HUF and that he invested 21,000/-on 20.04.1959 in the Society - an amount which had accrued on him on sale of Zamindari Abolition Bonds in 1958 and partly from rent and so on. It is also submitted that Gopal's father, i.e. Sh. Gobind Prasad had sent 16,000/-in 1961 from Bareilly and was used to acquire the suit property. Sh. Gopal Prasad argues that the late testator was trying hard to raise amounts for constructing upon the suit property for which purpose Sh. Gobind Prasad, his father had given total amount of 19,500/-during the period 1966-1968. It is submitted, therefore, that the testator had no bequeathable interest which he could have parted through the Will.

(3.) Ms. Yamini Mishra filed objections sometimes in 1993, contending that the Will propounded in this case is not genuine or enforceable as it was executed only 14 days before the death of the testator who was allegedly suffering physically for some months before its execution. Ms. Yamini Mishra mentions about a previous registered Will dated 08.10.1969 which was revoked by the Will sought to be propounded in this case. She also alleges that the testator was not permitted to meet his relatives before his death and that he requested her (Yamini) not to meet him by letter dated 28.10.1981. It is alleged that the circumstances under which the Will was executed are shrouded in suspicion. Ms. Yamini Mishra also contends that there is sufficient evidence suggesting that the property in question was bought and built with the funds of one of the objectors and that the common HUF amounts and even Streedhan and, therefore, he (the testator) was not its absolute owner. The objection refers to a letter dated 03.04.1971 in which the testator mentioned about his having sold her jewelleries and using them for construction of the house on the suit property. It is also contended that the Will was procured by fraud, coercion and undue influence.