JANAK PRASAD Vs. ESTATE OF LATE SHIBU MAHATO

JUDGEMENT

(1.) This First Appeal has been filed by the Plaintiff against the judgment and decree dated 15.03.2005 passed by Sri Syed Md. Nasimuddin, 1st Additional District Judge, Hilsa in title suit No. 2 of 1997 rejecting the application filed under Section 276 of the Indian Succession Act.

(2.) The said application under Section 276 filed by the Appellant was registered as probate case No. 1 of 1990. The Appellant alleged that Shibu Mahato died in August, 1984 and the writing annexed with the application is the last Will and testament of Shibu Mahato. The said probate case was filed on 04.01.1990. It is alleged that Shibu Mahato died leaving behind no near relatives such as son, widow and daughter and he died issueless. Shibu Mahato was separate from his brother and as he had no issue, he had got love and affection with the Appellants and that is why during his life time, he executed the Will in favour of the Appellant.

(3.) It appears that Respondent filed a caveat in the case alleging that they are sons and daughters and husband of daughter of Shibu Mahato and contested the matters. Therefore, the probate case No. 1 of 1990 was converted to title suit No. 2 of 1997. The Respondents, caveators alleged that Shibu Mahato had a daughter, Sumirkha Devi who pre-deceased her father leaving behind the daughters, sons and husband as her legal heirs. The Will annexed with the petition is not genuine rather it is forged and fabricated and the Plaintiffs have brought it into existence for the purpose of defeating the right of inheritance of the Respondents. The further case is that Shibu Mahato was joint with his brother, Raghunandan Mahato and there had been no partition between the two brothers. The Appellants are the three sons of Raghunandan Mahato. Shibu Mahato had got no male issue. In the consolidation proceeding, the lands have been recorded jointly in the name of Raghunandan Mahato and Shibu Mahato half and half. Raghunandan Mahato fraudulently created a forged gift deed dated 19.09.1970 purported to have been executed by Shibu Mahato with respect to 3.45 acres of land. The further case is that the Defendants are in joint possession of the joint family properties and in fact, they have filed a suit for partition being title suit No. 49 of 1989 in the Court of Sub Judge, Hilsa. An application for appointment of Receiver was filed by the Respondents and a show cause has been filed by the Appellant and in that show cause, they claimed the property on the basis of gift only and there is no whisper of Will. The said show cause was filed on 13.12.1989 and on 21.12.1989, documents were filed but the Will was never produced at that time because it was not in existence. It is further alleged that Shibu Mahato never executed the Will and did not put his L.T.I. and signature and, therefore, the Will is forged and fabricated. On the basis of the aforesaid case of the parties, the learned Court below framed the following issues: