JAI KUMAR SINGH Vs. KALLU SINGH

JUDGEMENT

(1.) This appeal Is directed against the judgment and order dated 28.2.1986 in Civil Misc. Case No. 122 of 1980 passed by the then First Additional District Judge, Moradabad, rejecting the application of the appellant for issue of probate and letters of administration.

(2.) The appellant had filed an application for grant of probate and letters of administration on the basis of Will dated 20.6.1976 alleged to have been executed by his brother Raj Kumar Singh in his favour and in favour of opposite parties Kallu Singh (father of the executant of the Will) Shyam Kumar Singh, Virendra Singh (brothers of the executant) and one Smt. Brahaspati Devi excluding respondent No. 5 Smt. Sushila Devi wife of the executant. It was alleged in the application that the deceased was married to Smt. Sushilla Devi in the year 1954 at Moradabad. The parties belonged to Scheduled Tribes called Bhantu. At the time of marriage as well as at the time of death. Raj Kumar Singh was employed with the Railway department. At the time of his death, he was posted as Shed Man (Assistant Foreman), Northern Railway at Najibabad, district Bijnor. He had developed disease of bone tuberculosis and in June. 1976, his condition deteriorated. On 20.6.1976 Raj Kumar Singh became seriously ill and as such he went to Rampur along with Smt. Brahaspati Devi wife of one Jorawar Singh the applicant. He was then posted as Social Welfare Officer at Rampur. The deceased reached Rampur by train at about 1.00 p.m. and expressed his desire for executing a will in favour of the applicant and his other brothers and also in favour of Smt. Brahaspati Devi who was wife of cousin of the applicant. It was alleged that Smt. Brahaspati Devi had rendered sufficient service to the deceased Raj Kumar Singh during his illness. Pursuant to the request of Raj Kumar Singh the applicant called Sri M. K. Saxena Advocate at his residence along with a scribe of the Will. Sri M. K. Saxena, Advocate drafted the will and thereafter it was read over to Raj Kumar Singh who approved the same. Thereafter it was copied out on a stout paper by scribe Sri Shyam Bharosey Lal. Witnesses Chintamani and Banshidhar who were posted as Central Excise Inspector and Plant Protection Officer were called and then Will was again read over to Raj Kumar Singh who signed it in the presence of the aforesaid attesting witnesses. It was also stated that both the witnesses thereafter signed the aforesaid Will in the presence of Raj Kumar Singh. Thereafter Raj Kumar Singh returned to Moradabad along with Smt, Brahaspati Devi by Roadways Bus at 3.00 p.m, and on the next day i.e., on 21.6.1976 he got himself admitted at Railway Hospital, Moradabad at 10.00 a.m. He was treated there for 8 or 9 days whereafter he was referred to Railway Hospital, Delhi and from there he was sent to All India Institute of Medical Sciences, New Delhi for treatment. Raj Kumar Singh died on 14.7.1977 while he was admitted at All India Institute of Medical Sciences, New Delhi. The Will dated 20.6.1976 executed by Raj Kumar Singh was presented for registration by the applicant before the Sub-Registrar, Rampur on 1.9.1977. Thereafter an application for grant of probate and letters of administration was moved before the District Judge, Rampur on 14.11.1977. The District Judge, Rampur granted probate Certificate in Civil Misc. Case No. 59 of 1977. However, after issue of the probate and letters of administration, Smt. Sushila Devi filed an application under Section 263 of the Indian Succession Act praying for annulment and cancellation of the probate and letters, of administration. That application under Section 263 of the Indian Succession Act was allowed by the District Judge, Rampur on 5.12.1980 and the probate granted in favour of the applicant was annulled on ground that the Court at Rampur had no territorial jurisdiction. It was also stated by the applicant in his application filed before the District Judge, Moradabad that Raj Kurnar Singh died on 14.7.1977 and after his death, the dead body was brought from there to Moradabad at the house of Kallu Singh who lived in Moradabad and the dead body was cremated at Moradabad. The deceased had a G.P.F, account and was also entitled to bonus and gratuity from Northern Railway, Moradabad. Total sum payable on the death of the deceased was Rs. 19,791.00. It was further alleged in the application that Smt. Sushila Devi married wife of Raj Kumar Singh had deserted him for more than 12 years prior to the death of Raj Kumar Singh. According to the custom prevailing in the Bhantu community, any woman who deserts her husband for more than 12 years or lives an immoral life shall be deemed to have automatically divorced her husband and. therefore, Smt. Sushila Devi stood divorced Raj Kumar Singh and there was no relationship of husband and wife subsisting between Raj Kumar Singh and Smt. Sushila Devi at the time of death of Raj Kumar Singh. She was, therefore, not entitled to succeed to the assets of the deceased.

(3.) Smt. Sushila Devi alone contested the claim of the applicant Raj Kumar Singh. She alleged that the applicant had no right to file the present application for grant of probate and letters of administration. Raj Kumar Singh became seriously ill at Najibabad on 20.6.1976. Dr. S. N. Agarwal who was then posted as Assistant Medical Officer at Railway Hospital, Najibabad attended him and advised him that he be taken to Railway Hospital, Moradabad for further treatment. On the same day, he prepared sick report and issued Railway pass to Raj Kumar Singh and one attendant for traveling in First Class. On 21.6.1976 Raj Kumar Singh travelled by morning train from Najibabad to Moradabad. On arrival at Moradabad, he got himself admitted on the same day in the Railway Hospital. Moradabad at 10.00 a.m. It was specifically stated that Raj Kumar Singh did not go to Rampur on 20.6.1976 and never executed the alleged Will in favour of the applicant and remaining opposite parties. The allegations of desertion were denied and it was specifically stated that she is married wife of Raj Kumar Singh and after the death of Raj Kumar Singh, she was leading a widow's life. She also denied the existence of any custom as alleged by the applicant. As regards Smt. Brahaspati Devi opposite party No. 4 she specifically denied that she is kept wife of Raj Kumar Singh and had been residing with him as his wife. It was stated that she was employed as Maid servant at Railway Hospital, Moradabad and the allegation that she was kept wife of Raj Kumar Singh has been made just to deprive of the objector from succeeding to the assets of the deceased Raj Kumar Singh.