NALINI MISHRA, WIFE OF LATE SHAILENDRA KUMAR MISHRA Vs. BRAJ KISHORE MISHRA SON OF LATE BHOLA NATH MISHRA

JUDGEMENT

(1.) Test Case No. 6 of 2003 was filed for issuance of letter of administration with respect to a Will executed on 17.3.1936 by one Akshaybat Mishra. The Test Suit was converted into Test Suit No. 2 of 2004.

(2.) The suit was filed stating therein that late Akshaybat Mishra executed his last Will and testament in his own handwriting dated 17.3.1936 at his residence Laganmani Bhawan, Lal Bagh, Kunkun Singh Lane, Patna in presence of his late wife Laganmani Kuer, his relatives and attesting witnesses namely late Kulwant Sahay, retired Judge of the Patna High Court who was at that time residing at Naya Tola, Patna and late H.N. Choubey, Principal, Government Ayurvedic College, Patna. Late Laganmani Kuer appended her signature over the Will and thereafter two other witnesses namely late Mahendra Prasad, Assistant Surgeon and late Anand Prasad, Advocate of the Patna High Court appended their signatures over the Will on 18.3.1936. The Will was presented for registration at Buxar Sub-Registry Office, Ara on 29.5.1936 and was registered on 2.6.1936. In the said application filed before this Court, it is said that late Akshaybat Mishra, son of Pandit Rajeshwar Mishra was a resident of Rajdhani Dumraon, P.S-Dumraon, District-Sahabad and permanently resided at Laganmani Bhawan, Mohalla-Lal Bagh, Kunkun Singh Lane, District-Patna. He died in October, 1939 at Patna and was cremated in Patna as well. It is asserted that late Nawal Kishore Mishra, the father of the petitioners, who had claimed probate of the Will performed the last rites and Shradh of the testator Akshaybat Mishra. The heirs of the deceased have been described at paragraph-6. The property in question is said to be the exclusive property of late Akshaybat Mishra which was purchased in the Benami name of his wife Laganmani Kuer. Akshaybat Mishra constructed the double-storied house and paid the municipal taxes, revenue etc. in his own name till his death. Akshaybat Mishra had bequeathed the property i.e. the land and the double-storied house in favour of his eldest grand son (Nati) Nawal Kishore Mishra. Late Akshaybat Mishra died after execution of the Will dated 17.3.1936 which was registered on 2.6.1936 in favour of his grandson Nawal Kishore Mishra. Nawal Kishore Mishra came in possession of the property and after the death of Nawal Kishore Mishra, the petitioners and their legal heirs are continuing in possession of the same. It has been stated that at the time of execution of the Will, the testator was of sound mind and had voluntarily executed the Will in presence of two witnesses and the Will was witnessed by three others. The case of the petitioners/plaintiffs is that the Will was executed by late Akshaybat Mishra in favour of his eldest grandson Nawal Kishore Mishra with a stipulation that till he attained majority, the property would be looked after by late Bhola Nath Mishra, son-in-law of the executor and husband of his daughter Madalsa Devi. Thus, Nawal Kishore Mishra as per the terms of the Will had absolute right, title and interest over the property since he attained the age of 22 years on 11.11.1945. The name of Nawal Kishore Mishra was also recorded in the revenue records in the year 1952 and in the records the Patna Municipal Corporation. It is relevant to mention here that the plaintiffs specific case is that petitioner/plaintiff no. 2 Chandra Madhav Mishra took a loan of Rs.15,000/- from the State Bank of India,Kankarbagh, Patna to establish small scale industries for which Nawal Kishore Mishra became the guarantor and in security whereof he mortgaged the said Will in the said Bank. In the meantime, Nawal Kishore Mishra died and the Bank was not ready to handover the original Will till the succession certificate from the competent Court was produced before the Bank. The refusal of the Bank to handover the Will has been annexed as Annexure-3. It appears from this document that the Will was pledged to the Bank on 13.9.1981. The loan was cleared in the year 1987 and an application was made thereafter for release of the document. After the death of Nawal Kishore Mishra, his son who is one of the plaintiffs here, was recorded in the revenue records of the Patna Municipal Corporation and was paying rent to the Patna Municipal Corporation. The rent receipts are Annexures-3, 4 and 5 to the application filed before this Court.

(3.) The occasion to file this case arose when the uncle of the petitioners Braj Kishore Mishra filed a Title Partition Suit No. 262 of 2003 on 25.6.2003 claiming right, title and interest over the said property. Until 2003 the plaintiffs have remained in peaceful possession of the said property and none of the family members raised any objection with respect to the title and possession. In fact the others heirs i.e. the brothers of the objector (uncle of the plaintiffs) have not raised any objection with respect to the title or possession of the plaintiffs-applicants. The plaintiffs stated that they tried to procure the death certificate of late Akshaybat Mishra from the Corporation as well as from the Patna College under the Patna University where late Mishra taught as a Professor of Sanskrit, but the certificate was not available.