PRABHA SINHA Vs. KAUSHAL CHAND SINGH

JUDGEMENT

(1.) The present appeal has been filed against the order dtd. 5/3/1992 passed by Shri Kumar Ganesh Dutt, 4th Additional District Judge, Rohtas at Sasaram in T.S. No. 2/86 arising out of Probate Case No. 33 of 1985 by which the Court below has dismissed the suit as not maintainable.

(2.) The appellant filed the Probate Case No.33 of 1985 for grant of probate and letters of Administration with respect to the property described in Schedule-A, B and C of the petition left by Late Kanji Sahay. In paragraphs 7 and 8 of the petition of Probate case, it has been stated that Late Kanji Sahai executed a deed of will in the name of petitioner on 19/12/1951 with the condition that his first wife Maina Devi @ Manraj Kuer and second wife Mundrika Devi @ Mundrika Kuer shall remain in possession of the land and properties left by the testator during their life time. It was further laid down that the wives of the testator shall deposit the usufruct and income of the properties left by the testator and the savings after the expenses towards their maintenance. It was further mentioned in the Will that after the death of his wives the appellant shall be entitled to take actual possession as the absolute owner over the lands and properties of the testator, movable and immovable and shall be entitled to deal and manage as title holder. The testator died in the month of June, 1952.

(3.) It is further case of the appellant that the first wife of Late Kanji Sahay, namely, Maina Devi @ Manraj Kuer died on 31/12/1968 and the second wife Mundrika Devi @ Mundrika Duer died on 30/9/1984. The Kanji Sahay had no issue from both the wives and, as such, he filed the case for grant of probate and letter of administration. It is the further case of the appellant that one Lalit Prasad, Respondent No.3 (now deceased and substituted by his heirs and legal representative) had been wrongly claiming as the adopted son of Late Kanji Sahay. Late Kanji Sahay had not given any instruction to his wives to adopt Lalit Prasad. Lalit Prasad got a fraudulent decree of adoption which was challenged in the title suit and the same was dismissed and affirmed by the Lower Appellate Court but in the second appeal a compromise decree was obtained fraudulently by Lalit Prasad.