LAXMAN MANDAL Vs. SARO DEVI

JUDGEMENT

(1.) Petitioner-plaintiff in Title Suit No. 4 of 1964 of the court of the 1st Additional District Judge, Bhagalpur, has moved this Court in appeal against the judgment and decree dismissing the suit on contest holding that he is not entitled to a probate of the will alleged to have been executed by one Bhajan Mandal in his favour.

(2.) Briefly stated the facts are as follows Bhajan Mandal died in the year 1958 at Meharpur P. S. Banka in the district of Bhagalpur. Before his death, however, on 24 Chaitra 1363 Fasli, equivalent to 8th of February, 1954 according to the plaintiff-appellant he had adopted the appellant as his son as he had no child and on the 13th Chaitra, 1963, equivalent to 19-4-1956, he had executed a will in respect of all his properties in favour of the appellant. According to the appellant, Bhajan Mandal was in sound state of health and mind when he executed the will and exercised his free will to demise 3 acres 67 decimals of land, as described in the Schedule of the probate application. The will in question was scribed by Suresh Chandra Singh and its execution by Bhajan Mandal was attested by Anup Lal Mandal and Acho Singh stating that the said will was duly executed by Bhajan Mandal and the appellant was his adopted son who was named as the propounder of the last will and testament of Bhajan Mandal. The appellant, accordingly moved the court of District Judge, Bhagalpur, praying for grant of probate. Respondents, Saro Devi and Bataso Devi claiming that they were widow and daughter of late Bhajan mandal respectively, however, entered caveat objecting to the appellant's prayer before the learned District Judge. They pleaded that after the death of Bhajan Mandal they inherited the entire property left by him and were in possession thereof as he had no male issue. They alleged that Most. Saro Devi executed a registered deed of gift dated 28-8-1961 in favour of Bataso Devi in respect of all the properties of her husband Bhajan Mandal and Bataso accordingly was the absolute owner of the properties of her father. He gave Bataso in marriage, yet out of love and affection, he kept her and her husband with him. Bataso and her husband always looked after Bhajan Mandal and his wife Saro Devi including looking after the properties of Bhajan Mandal. Bhajan Mandal never executed any will in favour of the appellant or any other person. The will in question was spurious and forged document concocted for laying a false claim over the properties of Bhajan Mandal which were in possession of Bataso by inheritance as well as by virtue of the gift executed in her favour on 28-8-1961, by her mother and widow of Bhajan Mandal. They also alleged that they got the records inspected and learnt from the contents of the will in question that it contained false and unfounded recitals that Bhajan Mandal had no issue of his own and that he had adopted the appellant as a son who lived as his adopted son. They asserted that the alleged will did not contain Bhajan Mandal's thumb impression and even if it be so, the appellant and his friends and his associates including the scribe and attesting witnesses had managed to obtain his thumb mark on a blank piece of paper as they had access to Bhajan Mandal during his illness. Bhajan Mandal did not execute any will conscious of the disposition and the contents of the document. Attesting witnesses attested no will but a false document. Appellant is the son of Sitabi Mandal and he is so described in all the papers, both public and private. The concoction of the false will was a result of conspiracy of Sitabi Mandal and his children. Bhajan Mandal had a brother Bhado Mandal. Sitabi was Bhado's son. They further alleged that they had filed title Partition Suit No. 25 of 1962 in the Court of the Munsif at Banka, for partition of the lands left by Bhajan Mandal from the joint estate of Bhajan Mandal and Bhado Mandal in which the appellant as well as other members of his family were party defendants. Yet the appellant had not named them in the application for probate as persons interested in the property. Most. Saro had also brought a criminal case under sections 380 and 325 of the Indian Penal Code against Shanker, uncle of Sitabi, Rameshwar and Ramsagar, brother of Laxaman (appellant) and Most. Badamo his mother for assaulting her and removing documents from her house. They were all convicted by the Trial Court in the year 1960 but later acquitted by the appellate court. On these facts they asserted that the will in question was brought in existence with the ulterior motive to deprive the poor women of the interests and rights in the properties of their husband and father. After the lodgment of the probate case by the appellant, he filed a petition of stay of further proceedings in Title Suit No. 25 of 1962, which made their design known to them.

(3.) During the course of evidence the appellant came out with the case that Bataso was not the daughter of Bhajan Mandal; Most. Saro was first married to one Misri Sao of village Muskipur; Bataso is Saro's daughter from that wedlock; Bhajan Mandal lost his first wife and thereafter he took Saro as his second wife; and Bataso came to Bhajan's house with her mother. This was returned by Saro and Bataso by the evidence that Saro was never married with Misri Sao of Muskipur; she had no issue from the said alleged husband; she was married only once and that with Bhajan Mandal and Bataso is her daughter from Bhajan Mandal.