CHANDESHWAR RAI Vs. INDIRA DEVI

JUDGEMENT

(1.) The Appellants have filed this First Appeal against the judgment and Order dated 28.01.2003 passed by Sri Radha Krishna, the learned 3rd Addl. District Judge, Gopalganj in Misc. Case No. 3 of 1996 whereby the learned Court below allowed the Misc. case and revoked the probate granted.

(2.) It appears that the Petitioner-Respondents filed application under Section 263 of the Indian Succession Act praying therein to revoke the probate granted in probate case No. 2 of 1990 on 09.09.1993. According to the Respondent's case, Kanta Roy died leaving behind two sons, namely, Suraj Bali Rai and Shio Pujan Rai and a daughter Sanpato Kunwar. Both the sons separated themselves in Baishakh 1965 and partitioned their properties. The sons of Suraj Bali Rai are the opposite parties-Appellants. The second son Shio Pujan Rai had married 4 wives but had no issue. He died on 16.04.1987 leaving behind his 4th wife Mostt. Jugla Kunwar. His 3 wives had predeceased him and after his death, Most. Jugla Kunwar came in possession over the properties of Shio Pujan Kunwar as his heir. Sanpato Kunwar was married with Bishesher Rai and she has 4 sons. Shio Pujan Rai brought up his Bhagna Chandra Prakash Rai, 3rd son of Sanpato. Shio Pujan Rai had his wish to gift his property to Chandra Prakash Rai but he died suddenly on 16.04.1977. On his death, his widow, Most. Jugla Kunwar pleased with the service of Chandra Prakash Rai and also abiding by the wish of her husband executed deed of gift in favour of Chandra Prakash Rai on 16.10.1990 in respect of 12 bighas 6 kathas 9% dhurs and bighas 6 kathas 9% dhurs and she also executed deed of Will in respect of properties prior to execution of the gift. Most. Jugla Kunwar had executed 4 sale deed on 11.10.90 in favor of the - (1) applicant, (2) Bechan Rai (3) Dharmdeo Tiwari and (4) Gulappatti Devi. The Opposite party-Appellant filed Title Suit No. 143 of 1990 in the Court of Sub Judge, Gopalganj against Jugla Kunwar, Chandraprakash Rai and the other persons who have purchased from Jugla Kunwar wherein it was disclosed that Shio Pujan Rai has executed a deed of Will on 08.01.1988 in favour of the opposite-party-Appellant. They also denied that Jugla Kunwar is widow of Shio Pujan Rai and prayed for declaration that the sale deed executed by her are null and void. In that suit, the Defendants appeared and denied the existence of any Will and further stated that if there be any Will, it must be a forged and fabricated document, it has been created with a view to grab the property of Shio Pujan Rai. The said suit is still pending. Recently, the Petitioner-Respondent came to Gopalganj and was informed by his Advocate that the Plaintiff of Title Suit No. 43 of 1990 have obtained a probate from the Court of 3rd Addl. District Judge, Gopalganj in favour of the said forged Will. It is stated that the said probate is liable to be revoked because it was obtained by practsing fraud upon the Court. The probate case was filed concealing the real fact without citing Most. Jugla Kunwar in the said probate case. On these grounds, the Petitioner-Respondent prayed for revocation of the probate.

(3.) On being noticed, the opposite parties-Appellants appeared in the Misc. Case and objected the prayer for revocation. Their case is that Shio Pujan Rai had not married 4 wives rather he had two wives only and both of them predeceased Shio Pujan Rai. Mostt. Jugla Kunwar had no right or interest in the property of Shio Pujan Rai nor did she has any right to execute deed of gift. The deed of gift alleged to have been executed by Jugla Kunwar is forged and fabricated and the vendee did not come in possession over the property. The Petitioner had knowledge about the probate proceeding. On these grounds, it was prayed for rejection of the Misc. Case. The learned Court below framed the point for determination to the effect that as to whether the applicants had no knowledge about the probate proceeding and grant of probate and are they entitled to challenge the probate granted to the opposite parties-Appellants?