SATRUGHAN MISHRA Vs. SULOCHANA DEVI

JUDGEMENT

(1.) This appeal by the defendant is directed against the judgment dated 30-1-1981 passed by the District Judge, Darbhanga in Revocation Case No. 22/2 of 1978-79. By the said judgment and under the Learned District Judge revoked order dated 30-10-1975 by which he had granted probate with the copy of the Will annexed.

(2.) It appears that an application was filed for revocation of the grant of probate by the plaintiff-respondent under Section 263 of the Succession Act on the ground that the Will of which probate has been granted was unregistered and an ex parte order has been obtained practising fraud upon the plaintiff-respondent by the defendant-appellant. The further allegation was that the petitioner was resident of village Dohi and notice was sent by the defendant in the probate proceeding in village Narainpur, and, as such, no citation was issued to the plaintiff in her proper address. According to the plaintiff she had no knowledge of the probate proceeding and the Court ought to have issued citation to the plaintiff as she was the daughter of the testator and was an interested person to oppose the grant of probate. The further allegation was that the Will was forged and fabricated document. According to the plaintiff, after the death of the testator, the plaintiff was coming in possession of the properties covered by the Will. 2-A. The defendant-appellant contested the said revocation proceeding. It was alleged therein that the Will was genuine and as the defendant was all along obedient and loyal to the testator the Will was executed in his favour by the said testator Sharda Mishra. It was also stated that the Will was executed out of free-will and without any pressure or coercion. The further allegation of the defendant was that the notices were sent to the plaintiff and was also served upon her, but she did not choose to contest the proceeding. The allegation of fraud and collusion was denied. It was also alleged that the plaintiff had knowledge of the probate proceeding and was not a resident of village Dohi, rather she was resident of village Narainpur.

(3.) The trial Court framed the following issues : 1. Whether the suit filed by the plaintiff under Section 263 of the Succession Act it maintainable? 2. Whether the plaintiff has a right to sue? 3. Whether the proceedings of probate case No. 22 of 1971 were defective in substance ? 4. Whether the grant of probate was obtained fraudulently by making a false suggestion or by concealing something material to the case? 5. Whether the plaintiff is entitled to revocation of the grant of probate or letters of administration ? Both parlies adduced evidence, oral as well as documentary. The trial Court held that it has jurisdiction to entertain the suit, that the plaintiff was wrongly and wrongfully described as a resident of village Narainpur, though she was a permanent resident of village Dohi. It also found that summons or notice in relation to the probate proceeding were not served upon the plaintiff Sulochana Devi and she had no knowledge or notice of the probate proceeding until her husband inspected the records of the probate case. It also held that the plaintiff is the youngest daughter of Sharda Mishra whereas the defendant is distant relation. On the question of genuineness of the Will the trial Court did not give any concluded opinion. In the conclusion the trial Court said that "all processes of probate case had been hurried" through because the defendant was conscious of the fact that all was not well about the Will". With the aforesaid findings the trial Court revoked the grant of probate, as already stated above. Hence the present appeal by the defendant.