KAMLA DEVI AND ORS. Vs. ANJU DEVI

JUDGEMENT

(1.) In the present case, the appellants are challenging the judgment and decree 25th March 2011 passed by the Additional District Judge -II, Nawada in Title Suit No. 1 of 2001 arising from Probate Case No. 16 of 1993 whereby and whereunder the court below has refused to grant probate in favour of appellants.

(2.) Short facts of the case are one Julumdhari Pandey is the father of the present appellants as well as of Shiv Narayan Pandey. Julumdhari Pandey gifted his entire lands i.e. ancestral and acquired property to his wife Smt. Rampati Devi and Shiv Narayan Pandey, who was minor on the day of execution of registered deed of gift dated 19th April 1971. The said gift deed was accepted by Rampati Devi and Shiv Narayan Pandey through his mother. Accordingly, both Rampati and Shiv Narayan came in possession of the gifted property. It has also come that Julumdhari Pandey died in the year 1974 as well as Rampati Devi, mother of testator had also died in the month of Jeth 1992 leaving behind Shiv Narayan Pandey, the testator. It has been claimed by appellant Shiv Narayan Pandey was married with one Anju Devi but was insane having no power to understand and, as such, he could not enjoy his conjugal life and on that account Anju Devi was not blessed with any male or female child. As per claim of the appellant's, Shiv Narayan Pandey, at the age of 25 became victim of cancer disease. There was no hope for his survival, hence, he voluntarily executed the will dated 11th July 1992 in sound state of mind and body thereby bequeathed the entire property which has been mentioned in Schedule -A of the application filed by the legatee. As has been claimed by the appellants, it was the last Will of Shiv Narayan Pandey, through the said Will entire property was transferred in favour of these appellants, made a provision for maintenance to his wife, Anju Devi. On notice, Anju Devi appeared, filed rejoinder dated 30th September 1994 wherein it has been mentioned that the Will dated 11th July 1992 is a forged and fabricated Will and Shiv Narayan Pandey had never executed the Will to the present appellants. It has been accepted that Julumdhari Pandey had gifted the entire property in favour of his wife, namely, Rampati Devi and Shiv Narayan Pandey. It has been further mentioned that Julumdhari Pandey had three daughters and not two daughters, namely, Bimla Devi, Kamla Devi and Malti Devi. It has seriously been disputed that Anju Devi was insane, rather it has been claimed that Shiv Narayan Pandey had love and affection with his wife Anju Devi and Shiv Narayan Pandey was never suffering from cancer, rather he was hale and hearty looking after cultivation during his lifetime. The appellants had developed greed over landed property of Shiv Narayan Pandey after death of mother of Rampati Devi. It has been mentioned in the written statement that Shiv Narayan Pandey had gone to village Katuna i.e. Sasural of Kamla Devi on 16th September 1992 where he was killed under a plan, the dead body was sent back by Kamla Devi from her village Katuna through her husband Satyendra Pandey and father in -law Lakhan Pandey along with four other villagers. The dead body of Shiv Narayan Pandey was cremated by the villagers and after cremation one Tripti Singh and four other villagers of Sundara informed her father Chhotan Dubey vide letter dated 21st September 1992 about the death of Shiv Narayan Pandey. After getting information of death of Shiv Narayan Pandey, Anju Devi and her father came to village Sundara and performed Shraddh of Shiv Narayan Pandey. Anju Devi filed a complaint case before the Chief Judicial Magistrate, Nawada bearing Case No. 73 of 1994 under Ss. 302, 467, 468, 419 and 420 IPC and claimed that Anju Devi is always in possession over the property left by her husband. Later she sold one piece of land to one Preman Yadav vide registered deeds dated 20th April 1993, 25th May 1993 and 14th July 1994 as described in the written statement.

(3.) It is further being claimed that Kamla Devi had filed a case before the Anchal Adhikari, Govindpur, on the ground that Shiv Narayan Pandey was patient of appendix and he died on 18th September 1992 due to lack of treatment. Accordingly, appellant's name was mutated in place of his mother and brother. The order was passed ex parte claiming that the Will dated 11th July 1992 is a manufactured and collusive document so much so that in the mutation case, nowhere it has been stated about Shiv Narayan Pandey was suffering from the disease of cancer.