VIDYASAGAR SHARMA Vs. JUGAL KISHORE SHARMA

JUDGEMENT

(1.) The legality of the judgment and order dated 21.4.2006 passed by the learned District Judge, Shillong in Test (P) Case No. 39 (H) of 2003 refusing to grant probate to the Appellant is called into question in this first appeal.

(2.) The material facts giving rise to this appeal may be noticed at the outset. The Appellant is the son of the late Hukumchand Sharma ("the deceased"), who died on 26.11.1996 at Shillong and had his fixed place of residence at Jhalupara, Shillong. The Appellant and the deceased belonged to Hindu community and are governed by Hindu Succession Act. The testator had left behind some property at Shillong. According to the Appellant, he and the testator used to be partners in M/s Rajhans Hotel, situate at G.S. Road, Police Bazar, Shillong, each of them having 50% share in the hotel business. It is the case of the Appellant that on 9.11.1983, the deceased made and published his last Will and testament appointing him as the sole executor of the Will and bequeathed his estate and assets, etc. as specified therein. As per the Will, on the death of the deceased, 50% of his share in the said Hotel would go to Smt. Anita Devi Sharma, wife of the Appellant, as she had been looking after and attending the testator when his health condition got deteriorated. The property mentioned in Clause 1 of the Will was disposed of during the lifetime of the deceased. According to the Appellant, the said hotel business was the self-acquired property of the deceased and was run in a rented premise, and he subsequently became a partner of the hotel by virtue of the Deed of Partnership executed on 1.4.1978. The value of the assets likely to come to the Appellant is not more than Rs. 44,123.29 p while a sum of Rs. 1,15,913.21 p as on the death of the deceased was likely to come to the beneficiary in the event of probate of the Will. At the time of the death of the deceased, he left behind him six other children, namely, (i) Shri Sitaram Sharma, aged 66 years, (2) Smt. Achi Devi Sharma, aged 60 years, (3) Shri Murarilal Sharma, aged 62 years, (4) Shri Jugal Kishore Sharma. aged 54 years (the Respondent herein), (5) Smt. Meena Devi Sharma, aged 50 years and (6) Smt. Awan Devi Sharma, aged 58 years. It is stated by the Appellant that one of the attesting witnesses to the Will, namely, Shri K.P. Sharma, has already expired. The properties which are the subject-matter of the Will are listed at Annexure "A" to the application.

(3.) The Respondent herein and one of the legal heirs of the deceased, namely, Shri Murarilal Sharma, filed their objections against the application for probate by filing separate written objections. The said Murarilal Sharma subsequently abandoned his defense. A perusal of their written objections will show that the stands taken by both of them are in pari materia. Therefore, suffice it to refer to the written objection of the Respondent herein. The said Murarilal Sharma, however, subsequently abandoned the case. According to the present Respondent, the document annexed to the application is not the Will of the deceased, which is a manufactured document and he was told by the deceased at his death bed that he left no such Will nor had he executed any codicil: in fact, he had wanted that his children should enjoy his estate equally for their betterment. Until his death, the deceased had acquired properties abutting Jail Road, Shillong and had also left sufficient cash balances in his Bank Account, which the Appellant in collusion with his wife had surreptitiously withdrawn and utilized for his gain. As the deceased ran the hotel in partnership with all his sons and had openly declared that the bulk of other properties were acquired by him through the income earned by him from the hotel business, the question of bequeathing the entire hotel business to the wife of the Appellant does not arise. In fact, the deceased on his death bed had clearly declared that the hotel business and the business of Lakshmi Flour Mill be shared equally by the four brothers for their betterment and old them to perform his last rites jointly. It is alleged by the Respondent that the assets left behind by the deceased are ten times higher in value than as shown by the Appellant, which are conveniently concealed by him. Had the deceased executed a Will as alleged by the Appellant bequeathing all: lis properties in favour of the wife of the Appellant, the Appellant would have filed an application for probate immediately after the death o f the deceased. According to the Respondent the deceased at the time of his death left behind a sum of Rs. 6,15,689.53 p by way of savings/fixed deposits in commercial banks and mutual funds, which have been surreptitiously withdrawn by the Appellant without obtaining Succession Certificate and utilized by him for his own benefits. It is claimed by the Respondent that this probate application has been filed as an after-thought as he had already instituted a title suit against the Appellant for equal distribution of the estate of the deceased among his children, and the same is pending before the learned Munsiff, Shillong. He, therefore, prays for dismissal of the application.