ANNU VERMA Vs. MAHESHWAR PRASAD VERMA

JUDGEMENT

(1.) PETITIONER -plaintiff initially filed Testamentary Case No. 01 of 1993 praying inter alia to grant probate of the last Will and testament of late Tetar Devi, which is dated 15.7.1990 who left for her heavenly abode on 25.5.1992. Perusal of the Will dated 15.7.1990 indicates that four sons of late Jagannath Prasad including the three petitioners -plaintiffs and opposite party -defendant -1st set were the beneficiaries and executors appointed under the Will dated 15.7.1990 and the subject -matter of the Will is a house situate in Boring Road, Patna and five Bighas and odd land and 1/3rd share in the residential house at village Sundari, P.S. Barhariya, District Siwan. The 4th son of late Jagannath Prasad, Maheshwar Prasad Verma did not join the Probate Petition, accordingly, he was impleaded as Opposite Party -defendant -1st set and the surviving uncle of the petitioners -plaintiffs Sri Ram Bilas Prasad Verma was impleaded as Opposite Party -defendant -2nd set. Perusal of the petition further indicates that Sri Nag Narayan Lal had three sons, namely, Bishwanath Prasad, Jagannath Prasad and Ram Bilash Prasad Verma. They were employed in different Government Departments. Bishwanath Prasad, husband of late Tetar Devi superannuated as an Assistant Engineer while serving in the Public Works Department of the State Government some times in the year 1958, whereafter he purchased 3 kathas 12 dhurs of land in the name of his wife Smt. Tetar Devi at Boring Road, Patna in the year 1959 from his own funds and thereafter took loan of Rs. 8,000/ - in the name of his wife from the Housing Department of the State Government which was sanctioned under Letter No. 6433 dated 10.12.1959 and constructed a house which was completed in the year 1962 whereafter the house was named as Anand Bhawan. Having raised the aforesaid Anand Bhawan, Bishwanath Prasad and his wife Smt. Tetar Devi both lived peacefully in the said house along with the other members of the family including the petitioners/opposite parties as both had no surviving issue. Sri Bishwanath Prasad died on 01.5.1985 leaving behind his wife Smt. Tetar Devi and other members of his family including the petitioners -plaintiffs and the opposite parties -defendants. After the death of her husband, Smt. Tetar Devi continued to live in the said Anand Bhawan along with other members of her family including the petitioners -plaintiffs and the opposite parties -defendants. As she had grown old, for better management of her properties and finance, she executed a Power of Attorney dated 4.6.1990 in favour of petitioner -plaintiff No. 3 as also opened a joint bank account with him in the State Bank of India, Boring Road Branch, Patna. Later, she executed Will dated 15.7.1990 bequeathing her aforesaid house, namely, Anand Bhawan and agricultural lands as also her 1/3rd share in the ancestral house at village Sunderi in favour of petitioners -plaintiffs and Opposite Party -defendant -1st set. The said Will was executed in presence of witnesses Sri Madan Mohan, Advocate, High Court, Patna and Sri Kanhaiya Prasad, a family friend and both the witnesses also signed over the Will as attesting witnesses. Later, she left for her heavenly abode on 25.5.1992 at 5.30 P.M. in the Indira Gandhi Institute of Cardiology (P.M.C.H.), Patna, whereafter the present petition was filed on 18.1.1993, praying inter alia to grant probate of the aforesaid Will and last Testament dated 15.7.1990 of late Tetar Devi.

(2.) THIS Court, under orders dated 19.7.1996 directed publication of general citation in two newspapers. "Times of India" and "Aryavarta", both Patna Edition as also further directed for issue of special citation through registered cost to the near relatives Opposite Parties -defendant 1st and 2nd set, in response whereto general citations were published on 30.7.1996 and the near relatives appeared through Vakalatnama and filed their caveat/objection. This Court, taking note of the caveat/objection of Maheshwar Prasad Verma, full brother of the petitioners -plaintiffs, under orders dated 6.9.1996 allowed the proceeding to be converted into a suit.

(3.) OPPOSITE Party/defendant -2nd set, Ajay Kumar Verma, son of Ram Bilash Prasad Verma filed written statement disputing the claim that the house -in -question, Anand Bhawan was the personal property of Bishwanath Prasad and his wife Smt. Tetar Devi, as according to him, while purchasing the land and raising the house, Anand Bhawan, major contribution including the loan of Rs. 8,000/ - obtained from the Housing Department of the State Government was arranged by Bishwanath Prasad in the name of Smt. Tetar Devi but other members of the family also had given their contributions for purchasing the land and raising the house which was evaluated by the Income Tax authorities worth Rs. 33,000/ - in the year 1962 -63 and the house all along remained a joint family property in which he along with other members of the family are even presently living. It was further stated that the Will dated 15.7.1990 is a forged and fabricated document as the same has been obtained by practicing fraud as the signature was obtained from his aunt Smt. Tetar Devi for taking steps in connection with case No. 802(M)/90, Balmohar Jalan and Ors. v. Brajnandan Sahay and Ors. in which all family members including the defendants were impleaded as parties.