ARJUN PRASAD Vs. BITESHWAR SINGH

JUDGEMENT

(1.) One Peari Devi filed a suit in the court of the Second Subordinate Judge, patna, which was registered as Title Suit No. 168 of 1972, against the petitioners in this Court for a declaration that a certain deed of gift in favour of petitioner Shivaji Mandir, was void, illegal, etc. During the pendency of the suit, Peari Devi died and Biteshwar Singh, who is the Opposite Party in this Court, filed an application for substitution in place of the deceased sole plaintiff, Peari Devi. The Opposite Party claimed to be the legal representative of the deceased plaintiff, being her legatee under a registered Will dated the 19th September, 1980, executed by the deceased plaintiff in his favour. According to the Opposite Party, the entire properties of Peari Devi devolved on him under the aforesaid Will.

(2.) The defendant-petitioners filed a rejoinder to that application for substitution, opposing the prayer for substitution. According to the rejoinder, the aforesaid Will was forged and fabricated and further that the alleged Will being unprobated, the legatee under the Will cannot be regarded as the legal representative of the plaintiff. The defendants asserted that there was no legal representative, of the deceased sole plaintiff and, therefore, the suit was fit to be dismissed for non-prosecution.

(3.) It appears that during the course of hearing of that application for substitution, a photostat copy of the aforesaid alleged Will was produced and the application for substitution was resisted mainly on the ground that the Will being unprobated, the alleged legatee under the said Will could not be recognised as the legal representative.