KISMAT DEVI Vs. RAM BAPU PD

JUDGEMENT

(1.) The opposite party-appellant has filed this First Appeal against the Judgment and Decree dated 18.05.1987 passed by Sri Bisundeo Dutta Jha, the learned 4 th Addl. District Judge, Saran at Chapra in probate case No.27 of 1980.

(2.) The applicant-respondents filed the aforesaid probate case for the grant of probate regarding the Will dated 26.04.1946 said to have been executed by Ram Sundar Sah in favour of Jagarnath Sah and two others. It is said that partition took place among the 3 sons of Sher Sah, namely, Sahdeo Sah, Ram Pyare Sah and Ram Sundar Sah. In that partition Ram Pyare Sah only separated and Sahdeo Sah and Ram Sundar Sah remained joint. Since Sahdeo Sah died in his young age, his son Jagarnath Sah was brought up by Ram Sundar Sah. After attaining majority, he helped Ram Sundar Sah in his business and when Ram Sundar Sah was suffering from tuberclouosis, Jagarnath Sah spent Rs.2,000/- on his treatment. Ram Sundar Sah had his business at Calcutta where he had own house also. When he was attacked with tuberclosis, he came to Chapra and executed the will on 25.04.1946 ext.1 and the legatees were his two widows Premana Devi and Dhandeia Devi and Jagarnath Prasad. His both widows died in 1955 at short intervals from one another. On their death, Jagarnath Prasad came in exclusive possession over the property. The scribe and the attesting witnesses of the will are dead. Jagarnath Prasad was not knowing about the necessity for filing probate case so he did not file the probate case earlier.

(3.) Kishori Devi and Kishmat Devi the two daughters of Ram Sundar Sah through Dhandeia Devi filed objection. According to them the will is forged and fabricated documents and, their father never executed any will. The signature / Left thumb impression on alleged will is not that of their father. Ram Sudnar Sah had immense love and affection for his wife and two minor daughters. He died in the year 1947 and the properties were inherited by his two widows. After their death in the year 1955, Kishori Devi and Kishmat Devi came in possession of the properties of their father. Ram Sundar Sah was separate from his two brothers. When Ram Sundar Sah was attacked with tuberclosis, he was being taken care of by his two wives. Because of ailment, he became too weak and he almost lost his mental balance and was not in a position to execute a will or to understand its implication. Jagarnath Prasad was residing in the house at Chapra with permission and apprehending the filing of eviction suit for vacating the suit house forged and fabricated a will to defeat the claim of the daughters of Ram Sunder Sah. Therefore, Kishmat Devi had filed title suit No.140 of 1982 for declaration of title and recovery of possession.