HARIHAR PRASAD SAO Vs. BHAGWAN DAS

JUDGEMENT

(1.) This appeal & directed against the judgment and decree passed by the Judicial Commissioner of Chotanagpur, Ranchi, refusing to grant probate to the appellant, on his application dated the 31st July. 1963, under Section 276 of the Indian Succession Act, 1922 in respect of the will executed on the 28th July, 1956, by Mukhlal Sao, one of the sons of Fulchand Sao, in favour of the appellant.

(2.) In order to appreciate the point which has been urged on behalf of the contesting respondent (respondent No. 4), it will be convenient to note below the genealogical table of the family of the appellant and the respondent: (See genealogical table on next page) According to the appellant, Mukhlal Sao, after duly executing the said will, died on the 24th October, 1956, at his residence at Upper Bazar. Ranchi, leaving behind respondents Nos. 1. 2, 3, 4 and 5 as his other near relations, and in the said will, Mukhlal had bequeathed his entire property in favour of the appellant. On behalf of Baijnath Sao (respondent No. 4) who is the main contestant caveat and written statement against the grant of probate of the will were filed in the Court below. It was stated, inter alia, therein that Mukhlal had not executed the will; due to old age and illness it was not possible for him to execute any will nor he had any disposing mind. On the alleged date of execution of the will. Mukhlal was completely in the clutches of the appellant. Even if the will was executed by Mukhlal, he did not execute the same of his own free-will but due to undue influence, fraud and coercion exercised by the appellant. It was further stated therein that respondent No. 4 was the nearest and the sole heir of Mukhlal being his nati (daughter's son) and was entitled to succeed to all the properties left by Mukhlal Sao, under the existing law. <FRM>JUDGEMENT_146_AIR(PAT)_1972Html1.htm</FRM> Sachchita (respondent No, 2) and Kameshwar (Respondent No. 3) also filed a written objection, objecting to the grant of probate to the appellant. They also stated therein, mainly, that Mukhlal never , executed any will nor was there any occasion to execute the same, Mukhlal was mostly living with the objectors and their father in village Khuduwan in the district of Gava. Mukhlal was happy with the objectors; Punai Sao was the Karta of the joint family and after his death his son Harihar (appellant) looked after the family affairs as Karta of the joint family. Mukhlal was an old man and was always suffering from ailments of old age. Therefore, the appellant might have procured the alleged will by fraud, misrepresentation and deceit in order to lay false claim to the share of Mukhlal in the joint family property. It was further stated therein that the objectors demanded partition of the joint family property but in order to avoid partition the appellant falsely fabricated the will.

(3.) Another written statement was filed on behalf of Bhagwan Das (respondent No. 1) supporting the case of the appellant. He stated in his written statement that Mukhlal executed the will in his presence and it was duly signed by Mukhlal and attested by the witnesses in accordance with law and the respondent had no objection to the grant of probate of the will to the appellant.