RAM BAHADUR KHARE Vs. MADHURI KHARE

JUDGEMENT

(1.) THIS is a petition under Section 276 of the Indian Succession Act (although it has been headed as one under Section 278) for the grant of Letters of Administration of a will an nexed to the petition. The petitioner's case wag that one Km. Kanti Kumari Khare, who was staying at Varanasi in connection with service in the Women's College, Banaras Hindu University, had executed a Will on January 20, 1975. She had died at Varanasi on February 25, 1976. In the above Will, the petitioner was appointed the Managing Trus tee along with two other trustees to give effect to her Will, and the petitioner claimed that he was one of the executors of the aforesaid Will. The deceased had left behind her brother, Satish Chandra Khare and a sister, Smt. Madhuri Khare and one maternal uncle, Bihari Lal Khare. The petitioner gave an undertaking to administer the property of the deceased as directed in the Will and to file an inventory and accounts within the period allowed by law. An affi davit of valuation was also filed along with the petition to show that the property was valued at less than Rs.47,000/. Affidavit of the two attesting witnesses, G.P. Srivastava and Mrs. Regional Ukiah were also filed along with the petition. The original Will as well as a photo-stat copy of the Will were also filed. A caveat was filed on behalf of Smt. Madhuri Khare, a sister of the deceased. In her written statement, she denied the execution of the alleged will by the deceased and characterised the petition filed by the petitioner to contain false statements. Smt. Madhuri Khare and her brother, Satish Chandra Khare, were the only heirs of the deceased. The deceased had not formed any idea about the execu tion of any Will or the formation of any Trust for the management of her property. The alleged Will was a forged and fabricated docu ment and was brought about by the petitioner along with G.P. Sri vastava with the help of Mrs. Regina Kiln in order to usurp the property of the deceased and to deprive the legal heirs of their rights in the property. The said will had been contrived by the petitioner and G.P. Srivastava to father their mala fide intention. The said will had not been registered and its execution had also not been disclosed to the next-of-kin. Further the custody of the said Will was also not explained in the petition. Finally, it was stated that the petitioner had not impleaded the other two trustees mentioned "in the said Will nor their consent to the filing of the petition had been mentioned in the petition nor obtained by the petitioner. She stated that the petitioner was not entitled to the grant of Letters of Administration or probate of the aforesaid Will. The other respon dents, namely, Bihari Lal Khare and Satish Chandra Khare did not file any written statement, although time had been granted to them. Shri Satish Chandra Khare sought to file a written statement at the stage of argument in the case, which was rejected. The following issues were framed on April 26, 1977: 1. Whether the Will dated January 20, 1975 was duly executed and attested by the deceased testator while in a sound disposing mind?

(2.) WHETHER the suit is not maintainable because of non-joiner of the two trustees, namely, Sri Manik Lal Khare and Kumari Hiren Malani?