SURYA NATH BHAGAT Vs. THE COLLECTOR AND ORS.

JUDGEMENT

(1.) THIS miscellaneous appeal has been filed by the applicant against the judgment and order dated 04.10.2010 passed by the learned District Judge, Gopalganj in Probate Case No. 24 of 2009 dismissing the probate case.

(2.) THE appellant filed the aforesaid probate case for grant of probate with respect to registered Will dated 16.07.2004 executed by Bhrigun Bhagat in his favour. According to the appellant, Paranpat Mahto had three sons, namely, Bijadhar, Goverdhan and Padarath. Bijadhar had a son Jaipal, who had two sons and two grandsons. Likewise Padarath had two sons Kishundeo and Kuber Nath. Surya Nath, the applicant, is the first son of Kishundeo. Kishundeo had six sons. Further Goverdhan had a son Deoki, who had three sons, namely, Bhrigun, Gopal Jee and Kanhaiya. Bhrigun is the testator of the Will. He had three daughters, Sudama Devi, Prabhawati Devi and Raspati Devi. Sudama died leaving behind Anup and Kamlesh. The further case of the applicant is that Class -I heirs were added as party in the probate application. Although Bhrigun had his wife and daughters but even then being pleased by the service of the appellant he executed the Will in favour of the applicant. He also went to registration office where he got the Will scribed. Later on he died at Lucknow on 24.04.2008. Thereafter in spite of notice none appeared on behalf of the opposite parties. By the impugned order the court below rejected the probate application.

(3.) ON the other hand, the learned counsel for the opposite parties -respondents submitted that in fact no notice was ever served on them in the court below. The probate case was filed in 2009 and hastily the judgment was passed in October, 2010 without there being any valid service. According to the learned counsel, Bhrigun had his wife and daughters and grandsons, therefore, in such circumstances without making any provision he could not have executed the Will in favour of the applicant, who is distantly related with Bhrigun because the applicant is the grandfather's brother's grandson. In fact the L.T.I. on the Will is not the L.T.I. of Bhrigun and at the time of execution of the Will he was not understanding the affairs of the world. A counter affidavit to this effect has also been filed by the respondents. The learned counsel submitted that the testator was well literate person and always used to sign the documents. He had already gifted part of the property in favour of Hanuman Mandir by registered gift deed dated 17.07.1990. Therefore, there was no question of execution of Will in favour of the applicant -appellant arises.