BHUDEO SHARMA Vs. NAGENDRA KUMAR SHARMA

JUDGEMENT

(1.) The opposite party is the appellant. This appeal is directed against the judgment and decree dated 26.7.1978, passed by the learned 2nd Additional District Judge, Saran, Chapra, in Probate Case No. 13 of 1973 Nagendra Kumar Sharma v. Bhudeo Sharma, whereby he has allowed the application filed by respondent No. 1 herein under the provisions of Part IX of the Indian Succession Act, 1925 (hereinafter referred to as the 'Act') for probate of the Will stated to have been executed by Bechu Rai in favour of the petitioner on 5.12.1960 (Exhibit-2), and for grant of letters of administration, with respect to the properties detailed in Annexure-A to application. We shall go by the description of the parties occurring in the plaint.

(2.) According to the case of the petitioner (respondent No. 1 herein), Bechu Roy (deceased) had executed his Will dated 5.10.1960 (Exhibit-2) in favour of the petitioner. The wife of Bechu Roy had pre-deceased him and he himself died issueless on 10.11.1960. By the said Will Bechu Roy executed his entire property in favour of the petitioner (respondent No. 1 herein). His further case is that after the demise of wife of Bechu Roy, he was alone in his house. The petitioner's house was next to that of Bechu Roy. Because of the proximity between the two family the petitioner and his wife took upon themselves the duty of serving Bechu Roy towards the end of his life. They used to look after him every manner including his food. Being pleased with the service rendered by the petitioner and his wife Bechu Roy had executed the said will whereby he had given his entire property to the petitioner.

(3.) The opposite party (appellant herein) claimed to be the close relative of the testator being his nephew and, therefore, claimed succession to the property. He had opposed the application. His case was that the Will was not duly executed nor properly attested and Bechu Roy had no knowledge of any such attestation nor he ever executed Will. His further case was that Bechu Roy never instructed Brijnandan Singh (AW 1) to sign the Will on his behalf nor the alleged signatures (Exhibits-1 and 1/a) were ever made in presence of Bechu Roy to sign the Will on his behalf. His further case was that Bechu Roy was seriously ill for a long time prior to 1960 and had no testamentary capacity to execute the Will. He has also alleged fraud at the instance of Srikant Sharma (AW 6), the father of the petitioner.