SHANTI SINGH WIFE OF BIJAY BAHADUR SINGH Vs. SHARDA SINGH DAUGHTER OF LATE JAGARNATH PRASAD SINGH AND WIFE OF SRI BINAY KUMAR SINGH

JUDGEMENT

(1.) The appeal is directed against the order dated 22nd of July, 2010 passed by the 1st Additional District Judge, Bhojpur at Arrah in Title Suit No. 1 of 1998 arising from the Letters of Administration Case No. 40 of 1997 filed under section 278 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act'), whereby prayer of the plaintiffs for grant of letters of administration was refused and the suit was dismissed by the judgment under appeal. The short facts of the case are that the plaintiff-appellants filed the aforesaid letters of administration case, which was later on converted into Title Suit No. 1 of 1998 for grant of letters of administration with respect to the Will dated 27th of April, 1994 executed by their father Late Jagarnath Prasad Singh, Advocate, Civil Court, Ara with respect to his landed property, detailed in the Will. In the said Will, two witnesses are attesting witnesses, namely, Lakhichand Singh and one Rishimuni Singh. The scribe of the aforesaid Will was one Raj Kishore Sahay.

(2.) Mr. Kamal Nayan Choubey, learned Senior Counsel appearing on behalf of the appellants submits that the suit was basically dismissed on the ground that the attesting witnesses to the Will were not examined. In this connection it was submitted that the plaintiffs made efforts for examination of the attesting witness, namely, Rishimuni Singh, who had appeared in the suit for his examination on two dates i.e., on 26.6.2009 and again on 10.7.2009, but on both the dates, the attesting witness could not be examined as on the first date, no work call was given by the Advocates and on the second date, there was an incident of bomb blast in the premises of Ara Civil Court and as such, the plaintiffs did made all efforts for the examination of said attesting witness. Therefore, on account of non-examination of the said attesting witness, the suit could not have been dismissed. It was further submitted that while filing an application under section 278 of the Act for grant of letters of administration as required under the law, one of the attesting witnesses, namely, Lakhichand Singh had put his separate endorsement along with the aforesaid application testifying the genuineness of the Will, which was exhibited as Ext. No. 7.

(3.) On the other hand, Mr. Umesh Prasad Singh, learned Senior Counsel appearing for the respondent submits that the suit was rightly dismissed since the mandatory requirement that the attesting witness must be examined, was not done in the case. Admittedly, the attesting witness Rishimuni Singh was not examined. It is submitted that on two occasions although he had appeared, but he could not be examined on account of the reasons already taken notice by the court below. However, admittedly no steps were taken on behalf of the plaintiffs for his examination after 10th of July, 2009 and till 19th of December, 2009 when the plaintiffs after examination of three witnesses closed their case without examining the attesting witness. It is submitted that in terms of the provisions of sections 68 and 69 of the Evidence Act, the examination of the attesting witnesses with respect to the grant of letters of administration/probate of a Will is the mandatory requirement and in absence of such examination, the Will cannot be probated or the letters of administration cannot be granted.