DHIRENDRA THAKUR Vs. DHARAMBIR SHARMA

JUDGEMENT

(1.) The instant appeal has been filed by the caveators against the sole applicant in whose favour application for grant of Probate of the Will, dated 10.03.1989, executed by Most. Jai Rani Kuer @ Ram Jasi Kuer, has been allowed under judgment, dated 26th day of July, 1994, passed by the 5th Additional District Judge, Muzaffarpur in Probate Case No. 16 of 1989.

(2.) Briefly stated, the case of the applicant of Probate Case is that the husband of testatrix died in or about the year 1945 in state of separation from her two brothers. Sri Chandrika Prasad Thakur, the husband of the testatrix, had two younger brothers Mundrika Prasad Thakur and Triveni Prasad Sharma. Sri Chandrika Prasad Thakur died leaving behind his widow Jai Rani Kuer @ Ram Jasi Kuer and minor daughter Rampukari. Rampukari was married at village Riga, District Sitamarhi but her husband died issueless only after two years of marriage, Rampukari also died. Thus, the testatrix became the sole heir. The testatrix was being looked after by the parent of the applicant. Jamabandi remained joint and the land of Jai Rani Kuer was recorded jointly in her name along with co -sharer Mundrika Prasad Thakur and Triveni Prasad Sharma. Jai Rani Kuer bestowed love affection to the applicant as her own son and had expressed her desire that she would bequeath her properties to the applicant. Most. Jai Rani Kuer @ Ram Jasi Kuer was suffering from leprosy which had caused thumb and other fingers of her both hands damaged and in that condition she insisted to execute the Will in respect of her properties in favour of the applicant. She called her full brother Ram Narayan Thakur, nephew Badri Narayan Thakur and her Samdhi Ram Kedar Sharma (father -in -law of deceased daughter). She also called the Scribe Ram Karan Sharma and some agnates of her late husband namely, Ramhit Thakur and Ram Kalewar Thakur and in their presence she asked the Scribe to prepare the Will and accordingly, on 10.03.1989, as per desire of the testatrix, the Will was executed and after knowing the contents of the Will she put pen mark on each and every page of the Will by holding the pen in her right hand palm. As per instruction of Jai Rani Kuer @ Ram Jasi Kuer, her nephew Badri Narayan Sharma wrote the execution portion and signed the Will on her behalf. The Will was attested by the aforesaid persons present there and the Scribe also certified the execution of the Will and thereafter, the Will was handed over to the applicant with her blessings on 10.03.1989. Jai Rani Kuer @ Ram Jasi Kuer thereafter, died on 16.07.1989 at about 8:30 am at her residence at village Basuwa, P.S. - Aurahi, District - Muzaffarpur where she was residing and which was her fixed place of abode.

(3.) The applicant filed the Probate Case which was numbered as Probate Case No. 16 of 1989 and thereafter, the father of the appellants filed a caveat, objecting the grant of Probate in favour of Dharmbir Sharma the applicant. As per the case of caveator, the Will in question is not a genuine one and has been created by committing forgery and fabrication, the thumb and other fingers of both the hands of Jai Rani Kuer were intact and in working condition and, as such, giving pen mark is a rank forgery, it is not possible that a person who has lost thumb and fingers will be able to hold a pen by palm and will put pen mark. The applicant was on duty at Katihar on 10.03.1989 and, as such, as claimed that on 10.03.1989, the testatrix had made over the Will to the applicant is totally false and imaginary. Neither any description of the properties of Jai Rani Kuer is appended with the Will nor there is any explanation for not appending the same. The testatrix died much after the alleged deed of Will and as such its non -registration also creates the circumstance that the same was not executed by Jai Rani Kuer. Bhola Thakur the brother of Badri Narayan Thakur was negotiating for the marriage of his daughter with sons of applicant?s father and the father of the applicant had agreed that there will be no demand of dowry if Badri Narayan Thakur will assist him in getting the Will prepared with regard to properties of Jai Rani Kuer.