SHOBH NATH DUBEY Vs. TARA DEVI

JUDGEMENT

(1.) The appellant before us was the original plaintiff in a testamentary suit, which came to be instituted on the original side of this Court seeking grant of letters of administration to the estate of the deceased Kashi Nath Dube with the Will annexed. Kashi Nath Dube is stated to have died on 9 February 2007 leaving behind his widow Smt. Tara Devi and a married daughter Smt. Vijay Laxmi from his first wife, who died in 1954. The appellant is the brother of the deceased. The Will in question is dated 14 December 2003 and is an unregistered document in terms of which the estate of the deceased stands bequeathed to the appellant. Smt. Tara Devi, the widow filed her objections on affidavit and consequently treating the matter as having become contentious, the proceedings for grant of letters of administration stood converted into a testamentary suit by the order of the Court dated 22 January 2009.

(2.) The learned Single Judge found that the plaintiff had failed to dislodge the suspicious circumstances surrounding the execution and making of the Will dated 14 December 2003. The Court accordingly, proceeded to dismiss the suit by the judgement dated 3 July 2015. This appeal lays challenge to the said order of the learned Single Judge.

(3.) The learned counsel appearing for the first respondent raised a preliminary objection to the maintainability of this appeal. He contended that an appeal under the provisions of the Indian Succession Act, 1925 The Act lies to the High Court against the order made by a District Judge. He contended that since the suit in question had been tried by a learned Single Judge of this Court itself, no appeal would lie against the judgement impugned. In the alternative, it was submitted that the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 The Rules also did not sanction an appeal against the order of the learned Single Judge passed in respect of testamentary proceedings. The learned counsel for the respondents submitted further that since the Act did not provide for an appeal against an order of the learned Single Judge exercising testamentary jurisdiction, the provisions of Chapter VIII Rule 5 of the Rules, 1952 could not be pressed into service.