SIYARAM ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE defendant Nos. 1 and 2 have filed this First Appeal against the judgment and Order dated 29.6.2005 passed by Sri Prakash Chandra Gupta, 7th Addl. District Judge, Gaya in Title Suit No. 18 of 1999/2 of 1994 allowing the application for probate and letters of administration filed by respondent No.1.

(2.) THE respondent No.1, Ajay Kumar Sharma filed the aforesaid title suit under Section 278 of the Indian Succession Act alleging that late Fateh Bahadur Singh, the father of the plaintiff died on 14.5.1991 at Gaya leaving a registered Will in favour of the plaintiff dated 13.5.1981 duly executed and attested. The plaintiff also averred that the value of the property which may come to him is Rs. 2,32,758/ - Most of the property are within the jurisdiction of Gaya Court. Both the attesting witnesses are dead but the scribe Chandrika Prasad is still alive. The Will was annexed with the application.

(3.) THE further objection is that the property at Gaya is joint family property which was ancestral property inherited by Fateh Bahadur Singh. It was stated that Gulab Kuer executed a deed of gift in the name of Fateh Bahadur, Singh but in fact it was in lieu of service rendered by Dudheshwar Nath Singh who was father of Fateh Bahadur Singh. To grab the property situated at Gaya the plaintiff fabricated the alleged Will. None of the next doors neighbours were made attesting witnesses to the Will which shows that the Will is forged and manufactured. At the time of execution of the Will, the youngest daughter, Meera Singh was unmarried and no provision was made for appellant No. 1, Smt. Radhika Devi, the wife of Fateh Bahadur Singh. The mother, namely, Smt. Radhika Devi is residing with defendant No. 2, Dr. Virendra Prasad Sharma. The family still constitute joint Hindu family governed by Mitakshara School of Hindu Law. In the year 1981, when the Will was executed, Fateh Bahadur Singh had no definite share and, therefore, no details of property has been mentioned in the Will which shows that the Will is forged. Partition Suit No. 123 of 1993 is pending in the Court of Sub - Judge, Jehanabad where the title and share of the parties is to be decided regarding the property which are still joint. Since the alleged Will does not disclose the list of the property, no letters of administration can be granted with respect to the property which is given by the plaintiff in his application in the schedule.