MANORAMA SRIVASTAVA Vs. SAROJ SRIVASTAVA

JUDGEMENT

(1.) An application under Section 232 of the Indian Succession Act was moved by Smt. Manorama Srivastava, describing herself as the widow of Dr. Mithlesh Kumar Srivastava (deceased) and Km. Khushboo, minor daughter of the aforesaid deceased through applicant No. 1 under her guardianship (hereinafter referred to as the plaintiffs) for the grant of probate or Letter of Administration with a copy of the Will dated 26th April, 1986. Thereafter a caveat was filed on behalf of Smt. Saroj Srivastava also describing as widow of late Dr. Mithlesh Kumar Srivastava (hereinafter referred to as the defendant) in which it was stated that she had applied for succession certificate in the District Court. She also filed a reply by means of counter affidavit which was subsequently converted into written statement objecting to the claim made by the plaintiffs.

(2.) The plaintiff asserted in her aforesaid petition that Dr. Mithlesh Kumar Srivastava died at Allahabad on 15th November, 1986, leaving both moveable and immovable properties. He executed a Will on 26th April, 1986 in a sound disposing mind of his own free-will and was duly attested by the two attesting witnesses, viz., Sri R. P. Srivastava and Sri R. N. Srivastava. Under the Will the deceased bequeathed his entire moveable and immoveable properties, bank account, L.I.C. policies, National Savings Certificate, Contributory Provident Fund and all other amounts due to him to the plaintiffs. He further bequeathed his undivided share in the ancestral property to the plaintiff and son and daughter from the first wife, viz. Smt. Saroj Srivastava ( defendant). It was further averred that the bungalow No. 25 C/1, Thornhill Road, Allahabad which was subject matter of bequeath to the plaintiffs under the said Will was subsequently gifted to plaintiff No. 1 by meanis of registered gift-deed dated 2nd June, 1986. Alongwith the aforesaid application of the plaintiff a photocopy of the Will was annexed as Annexure 'A' the original Will itself was subsequently filed which was kept under seal and cover of this Court. Annexure CA-1 shows the total claim encashable for the deceased was Rs. 66,000/-out of which Rs. 26,000/- were already withdrawn by the defendant. Annexure-CA 2 shows the number of three policies which under the Will plaintiff claimed to be entitled Annexure-CA-3 shows Rs. 1,776/the total amount in the bank of the deceased. Annexure-CA-4 refers to the ancestral house of the deceased in village Katra in the district of Faizabad along with Bhumidhari land. Finally, Annexure D showed the liability of the deceased showing various loans taken by him.

(3.) In the counter affidavit which was later converted into written statement the defendant challenged assertions of plaintiff describing herself as widow of Dr. Mithilesh Kumar Srivastava. It was averred that the alleged Will is forged and fabricated document. Dr. Srivastava had no intention to execute the Will. The said Will was said to be got up and afterthought document prepared by the plaintiff in collusion with the attesting witnesses. In the gift-deed executed subsequently there was no mention of the will showing it as an afterthought. Sri Atul Chandra Srivastava, Sri K. K. Srivastava and Sailendra Ranjan, father, brother and son (from first wife) respectively filed a suit for cancellation of the registered gift-deed, which is pending. This is referred to in the written statement. Deceased filed a petition for divorce against the defendant (Smt. Saroj Srivastava), which was decreed ex parte. Subsequently, she made an application under Order IX, Rule 13, C.P.C which was allowed by order dated 25th April, 1985. As against that a Civil Revision (Civil Revision No. 421 of 1985) was preferred in this Court, in which after conclusion of arguments but before delivery of judgment Dr. M. K. Srivastava died, hence an application for dismissing the revision was moved by the defendant wherein a counter affidavit was filed by plaintiff No. 1 for her substitution. That application was dismissed by this Court by means of order dated 7th January, 1987. This judgment is reported in 1987 All LJ 640. In view of this it was stated by the defendant that the plaintiff No. 1 cannot claim herself to be the legally wedded wife. Similarly, the counter affidavit (written statement) filed by Sri Atul Chand Srivastava, father of the deceased, supported the case of the defendant. In this it was stated that he sold a house out of that money plot No. 25-C/1, Thornhil Road, Allahabad was purchased in the name of his son, deceased Dr. M. K. Srivastava as benami and for the construction of the house over it he further sold his another house. He described Smt. Saroj Srivastava as the legally wedded wife and further stated that the plaintiff was only a pupil and then a research scholar under his guidance and his son came completely under her influence and it was later he heard that his son was persuaded by plaintiff No. 1 to marry her who then filed a divorce petition against the defendant, which was decreed ex parte and which was later set aside. The plaintiff No. 1 was a lecturer in Geography Department at Allahabad University and she along with other unscrupulous elements wants to grab the property, which belonged to him or the defendant.