RAMENDRA SHAH Vs. SHEW RAM SHAH AND ORS.

JUDGEMENT

(1.) By this appeal, common judgment passed by learned District Judge, Dhubri in miscellaneous Probate case being T.S.(P) No. 18/1999 and T.S. (P) No. 19/1999 has been challenged by the unsuccessful party saying that the learned Probate Court committed error in allowing probate in favour of the applicant in T.S.(P) No. 19/1999 and rejecting the prayer of the applicant in T.S. (P) No. 18/1999.

(2.) The appellant herein, as petitioner, filed an application under Section 276 of the Indian Succession Act, 1925 before the learned District Judge at Dhubri on 20.12.1993 stating that the property described in Schedule A and B to the petitioner originally belong to one Murti Devi Shah who died on 01.01.1993 without leaving any son or daughter. She during her life time had executed a registered Will being No. 2813 dated 26.06.1986 in favour of the petitioner bequeathing the schedule properties in his favour. The testatrix was survived by as many as 8 (eight) near relatives name of whom were furnished in paragraph 7 of the application. It was claimed that there was no other Will or letters of administration left by the testatrix and so necessary order need be passed for granting probate in favour of the petitioner. The case was registered as Misc. (P) Case No. 213/1993 and notices were issued not only to the near relatives but also to the general citations whereupon opposite parties No. 4 to 8 herein appeared and submitted written objection. In paragraph 6 of the objection, it was stated that Will was never the last Will and testament of Murti Devi Shah and that one annexed to the petition is forged and manufactured for the purpose of application. Rather, it was stated that the testatrix was all along living with her only brother Ram Naresh Shah and his family in the Railway Lease Hold Waste Land at Dhubri town which stood in her name. She was looked after by the opposite parties till she died. Petitioner was a resident of Bihar and he came to Dhubri and settled there after matrimonial tie with a Muslim woman and was residing at Bidyapara. He never visited the deceased and also deceased never visited the petitioner. She, before her death on 01.01.1993, was leaving with the opposite parties and funeral ceremony and Shraddha was performed by the opposite parties. Long before her death, she executed a Will on 02.12.1992 being in sound and good health in favour of the objector, namely, Smti. Munia Devi Shah and already another application registered as Misc. (P) Case No. 33/1994 was pending in respect of probate by that Will. In paragraph 13, it was specifically claimed that in view of the last Will of the deceased testator on 02.12.1992, the probate proceeding has become void ab-initio. With these prayers, the opposite parties claimed that the proceeding be dismissed.

(3.) In the mean time the opposite party No. 4 in Misc. (P) Case No. 213/1993, had instituted another application under section 276 of the Indian Succession Act and the same was registered as Misc. (P) Case No. 33/1994 of the same court. In this case it was the stand taken by the petitioner therein that Munia Shah being owner of the schedule land died in her own house on 01.01.1993 and she executed the Will dated 02.12.1992 cancelling her previous Will and Codicils. The testatrix had no issue and her husband had died long ago. The testatrix was survived by 8 near relatives mentioned in paragraph 4 of this application. It was prayed in this application that probate of the Will dated 02.12.1992 be granted in favour of Munia Devi Shah. Petitioner in Misc. (P) Case No. 213/1993 appeared in this proceeding as respondent No. 5 and submitted written objection stating that the latter Will was forged and manufactured to gain over the property left by the deceased. It was stated that during December, 1992 when Dhubri town was under promulgation of curfew, the petitioner Munia Devi and others wanted to get signature of the deceased on a Will prepared by one Shankar Mohuri but the deceased denied to put thumb impression on the Will. It was stated that the objector opposite party No. 5 was none other than the son of brother of the husband of the testatrix. With these objections, the opposite party No. 5 prayed that the probate proceeding be dismissed.