RINCHIN CHAPKHANWALA Vs. NYIMO LHAMO

JUDGEMENT

(1.) The respondent as plaintiff filed an application under Sec. 276 of the Indian Succession Act, 1925, for grant of Letters of Administration in respect of a Will dated 7th Jan., 1988, executed by Phu Doma @ Phuti Lhamu, since deceased, resident of Chapleton 15, Robertson Road, Darjeeling Town. The plaintiff/petitioner claimed that Late Phu Doma @ Phuti Lhamu, the widow of Late M.L. Tempa, died at Darjeeling in D.D.M.A. Hospital on 13th July, 1988, but prior to her death she had duly executed her last Will on 7th Jan., 1988, making the plaintiff/petitioner the sole beneficiary under the Will and appointing her brother, Kami Tshering, as the sole Executor of the Will.

(2.) Kami Tshering duly applied for probate of the aforesaid Will in the Court of the District Delegate at Darjeeling, and the same was numbered as Misc. (Probate) Case No. 52 of 1989. The said Kami Tshering died on 7th Nov., 1989, during the pendency of the probate case and on his death there was no one left to continue with the probate proceedings as he was the sole. Executor named in the Will. Accordingly, the plaintiff/petitioner applied for grant of Letters of Administration along with a copy of the Will with a prayer to tag the said application with the pending Misc. (Probate) Case No. 52 of 1989.

(3.) In her application for Letters of Administration the plaintiff/petitioner stated that she was the elder sister of the testatrix and her co-widow and was residing on Chapleton 15, Robertson Road, Darjeeling Town. The testatrix also left behind her daughter, Smt. Rinchin Chapkhanwala, wife of Mr. M. Chapkhanwala, who was residing in the out-house of Chapleton 15, Robertson Road, Darjeeling Town. Claiming to be the sole legatee under the Will of Phu Doma the plaintiff/petitioner claimed that she was entitled to get Letters of Administration to administer the properties forming the estate of Late Phu Doma. The said application for grant of Letters of Administration was contested by Smt. Rinchin Chapkhanwala by filing a written objection wherein she contended that she is the sole child and legal heir of Phu Doma and no Will as filed by the plaintiff/petitioner in Court had ever been executed by her mother, and, in any event, if there was such a Will in existence, the same had been created under suspicious circumstances by the petitioner in collusion with unscrupulous persons with the intention of depriving the objector from her lawful and legitimate right, title and interest over the properties left by her mother. It was also contended by the objector that the properties in question were jointly owned and possessed by her mother during her life time and her mother's brother and that in view of partition of the property her mother's portion fell into the share of the objector and her mother. According to the objector, ever since such partition she had been living with her family members in the holding at premises No. 15 Robertson Road, Darjeeling Town, till her mother's death and also thereafter. She claimed to be in peaceful occupation of the same as lawful owner thereof. On the basis of the pleadings of the respective parties the following issues were framed:-