BALBIR SINGH Vs. SMT. SALOCHANA DEVI

JUDGEMENT

(1.) THIS first appeal has been filed by the appellant Balbir Singh against the judgment and decree dated 10 -3 -1981 passed by the 1st Addl. District Judge, Lucknow, dismissing the suit filed by the appellant and thereby refusing to issue Letters of Administration in favour of the appellant in respect of the estate of Late Sri Gopal Narain Fadnis. Appellant Balbir Singh had filed the suit under Section 278 of the Indian Succession Act with a prayer that the Letters of Administration with the will of the deceased annexed therewith be granted in his favour. The case of the appellant is that Late Sri Gopal Narain Fadnis had died on 19 -1 -1983. Late Sri Fadnis had executed a will dated May 18, 1961 in favour of the appellant. The property in the will included House No. 108/53, Model House, Lucknow. The will was registered before the Sub -Registrar. In the petition for grant of Letters of Administration it was also mentioned that earlier a suit was filed by the appellant for grant of Probate but that was dismissed on the ground that no executor was appointed by the will. Two annexures A and B have been annexed alongwith the petition, annexure 'A' indicating the movable and immovable properties of the deceased including House No. 108/153 situate in Model House Gangni Shukla Ka Talab, Lucknow, valued at Rs. 51,000/ -. The other movable properties shown in the list was of negligible amount.

(2.) THE respondent, Salochana Devi, Daughter of Late Gopal Narain Fadnis filed written statement resisting the petition filed by the appellant for issue of Letter of Administration. The case, as given in the written statement in short, is that Gopal Narain Fadnis was a successful businessman having earned quite some fortune. The respondent is the only daughter of the deceased. The mother of respondent suffered from some mental ailment and ultimately she died while the respondent was still child of tender age. Gaya Prasad, father of Balbir Singh, appellant was initially employed by Late Gopal Narain Fadnis as his servant in his business of dry and fresh fruits but later on he had become a partner of business. After the death of the mother of the respondent, Gaya Prasad got closer to Gopal Narain Fadnis on the pretext of extending help to him in the absence of his wife and in bringing up of the respondent. By and by Gaya Prasad and Balbir Singh became in a position of dominating the will of Late Gopal Narain Fadnis. In the year 1950 Gopal Narain Fadnis was badly assaulted by some unknown assailants on the bank of River Gomti where he used to go for a walk. According to the respondent, her father was seriously injured but somehow his life was saved. After this incident of assault her father had become almost crippled and lost soundness of mind and became devoid of competent understanding. In 1950, due to incapacity by which Gopal Narain Fadnis was suffering, the partnership firm was dissolved and Gaya Prasad continued with the business alone. The appellant and his father prevailed upon Gopal Narain Fadnis to marry the respondent at the age of 13 years in the year 1953. She was married to one Yogendra Sharma on the suggestion of Gaya Prasad. Out of the wed -lock the respondent gave birth to a daughter named Aarti Sharma

(3.) ON the pleadings of the parties the trial court framed the following: - -