DHARMENDRA OJHA Vs. CHANDRA MOHAN OJHA

JUDGEMENT

(1.) The present appeal is preferred by the appellant against the judgment and order dtd. 22/8/2019 passed by the learned Additional District Judge-III, Bhojpur, Ara, in Title Suit (Probate) No. 01 of 1996 by which the testamentary suit filed by the applicant-appellant has been dismissed.

(2.) The facts of the case is that one late Baikuntha Nath Ojha died on 12/3/1995 at village Gundi, P.S. Badhara, District Bhojpur. He was survived by his younger son, namely Chandramohan Ojha, and his grandson, Dharmendra Ojha, the son of Kamleshwar Ojha, who was the head of the family. The applicant-appellant, Dharmendra Ojha, instituted Probate Case No. 23 of 1995 before the learned Sub- Judge-I seeking the grant of Probate/Letters of Administration in respect of an alleged registered Will dtd. 8/3/1995, purportedly executed by the deceased four days prior to his death. According to the applicant-appellant, the said Will constituted the last testament of Baikuntha Nath Ojha, whereby he bequeathed his self-acquired properties described in Schedule-A and his share in the ancestral properties described in Schedule-B in favour of the applicant- appellant. It was pleaded that due to old age and illness, the testator's right hand had become non-functional and, consequently, he affixed his left thumb impression on the Will. The document was stated to have been typed by L.V. Gupta, identified by Ram Ayodhya Singh and attested by Kameshwar Pandey.

(3.) Upon notice of the proceeding, Chandramohan Ojha, the younger son of the deceased, entered appearance and filed a caveat on 18/9/1995. Consequently, the probate proceeding became contentious and had been sent to the Court of learned District Judge where it was converted into a testamentary suit, being renumbered as Title Probate Case No. 01 of 1996. for adjudication and after its admission, the matter was transferred to the file of learned Additional Sessions Judge-III, Bhgojpur at Ara for consideration. The caveator opposed the petition on both legal and factual grounds. Besides raising objections regarding limitation, estoppel, acquiescence, etc., he specifically challenged the genuineness of the Will contending that it was a forged and fabricated document. According to the caveator, the testator had lost his mental balance nearly six months prior to his death and was incapable of understanding the nature and consequences of any testamentary disposition. It was further alleged that the thumb impression appearing on the Will had been fraudulently obtained while the deceased was unconscious.