RAJESHWARI DEVI Vs. KESHORI DEVI

JUDGEMENT

(1.) It was on 2nd June, 1960 that the plaintiff filed a petition before the District Judge, Shahabad at Arrah praying to grant a letter of administration of an unregistered Will, dated 24 -12 -1942, executed by one Jagnarain Dubey, who died on 7 -1 -1948. The said Will was annexed with the petition. The case was transferred to the Court of Additional District Judge for hearing, who by his judgment and decree non -suit the plaintiff, against which this appeal arises.

(2.) The case of the plaintiff is that Jagnarain Dubey executed the said Will while he was in a sound state of mind and body, and with full understanding of the contents thereof. The plaintiff (Rajeshwari Devi) is the daughter of the testator Jagnarain Dubey from his second wife Sumitra Devi (defendant No. 1), who died during the pendency of the suit. Whereas Kishori Devi (defendant No. 2) is the daughter of Jagnarain Dubey from his first wife, named Raj Kuer. Defendants 3, 4 and 5 are sons of defendant No. 2. In the Will half of the properties of the testator has been bequeathed to the plaintiff, one fourth has been given to Kishori Devi -defendant No. 2 and the remaining one fourth share has been donated to a High School known as Jagnarain Vidyalaya founded by the testator himself. Sumitra Devi defendant No. 1, i.e. the second wife of the testator and the mother of plaintiff has been given only a claim for maintenance, but she was appointed as receiver of the property of the testator under the terms of the Will. It was made clear that Sumitra Devi was to manage the properties for the benefit of the beneficiaries in the Will. Plaintiff in her petition for letter of administration alleged that Sumitra Devi (defendant No. 1) was not managing the affairs and she was not giving due share to the plaintiff. The petition filed in the Court was registered as Misc. case No. 40 of 1960 which was converted into T. S. No. 6/62 (Probate). 2. All the defendants jointly filed objection praying to dismiss the petition for grant of letter of administration on the allegation stated therein. The case of the defendants is that the Will in question was a forged and fabricated document. Jagnarain Dubey never executed any testamentary document, much less the Will in question. Jagnarain Dubey was ill for a month or so and was not in a sound state of mind sometime prior to his death, which occurred on 7 -1 -1943. Taking advantage of this situation, enemies of the defendants forged and fabricated this document in conspiracy with attesting witnesses.

(3.) The scribe of the Will in question was said to be a trusted employee of the testator named Sahmatullah (defendant No. 1). Sumitra Devi also executed a Will on 23 -2 -1949 in favour of her daughter, the plaintiff, her step daughter defendant No. 2 Keshri Devi, which also was ascribed by the same scribe Sahmatullah and attested by Umanath Ojha, who happened to be the attesting witness to the disputed Will in question. It was submitted that had the Will in question been a genuine one, Sahmatullah and Umanath Ojha would not have figured in the second Will, dated 23 -2 -1949 executed by the defendant No. 1. Apart from it, defendant No. 1 as a full owner after the death of her husband, executed that Deed of gift in favour of her step daughter i.e. defendant No. 2 and in favour of her children defendant Nos. 3, 4 and 5 and gave possession thereof. It has been further stated that the contents of the Will would show that it runs counter to the ordinary sentiments of a testator. Though the alleged Will was executed on 24 -12 -1942 and the testator Jagnarain Dubey died only a fortnight after 7 -1 -1943, the petition for grant of letter of administration was filed long after on 2 -6 -1960. There is no explanation for this inordinate delay in filing the petition for grant of letter of administration.