SUDHIR KUMAR Vs. BASANT SINGH

JUDGEMENT

(1.) This interlocutory application has been filed with a prayer for rejecting the plaint/petition of Test Suit No. 02 of 2017 for grant of Letters of Administration of Will dated 19.08.2000 executed by late Ram Chandra Singh, under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act').

(2.) The short facts according to the defendant are that the testator Ram Chandra Singh executed a registered Will dated 19.08.2000 in favour of the three sons of his wife's brother Chandeshwar Singh, namely, Sudhir Kumar, Sujeet Kumar and Ravinesh Kumar. The said testator died issueless on 28.05.2001 after his wife Ram Sakhi Devi pre-deceased him on 16.05.1995. Prior thereto on 14.03.2001, Partition Suit No. 100 of 2001 was Patna High Court TEST SUIT No.2 of 2017 dt.20-12-2019 filed by Raj Pati Devi, sister of the testator before the Court of Sub- Judge-I, Patna in which the testator appeared as defendant. On 17.04.2001, the plaint was amended and a compromise petition was filed by the testator in which it was stated that he has revoked and cancelled the registered Will dated 19.08.2000 which had been executed by him in favour of the three sons of his wife's brother. The compromise petition was accepted and the suit was decreed in terms of the compromise petition forming part of the final decree in terms of order dated 18.04.2001 passed in the said Partition Suit No. 100 of 2001 before the demise of testator on 28.05.2001. On the basis of the said decree, Eviction Suit No. 40 of 2001 was instituted before the Court of Sub-Judge-I, Patna at the instance of Raj Pati Devi which came to be decreed ex-parte on 29.11.2001, after taking due note of the compromise in the partition suit. Proceedings were undertaken by the authorities for handing over possession of the property to the decree holder as evident from the letter of the Superintendent of Police, Rural, Patna to the S.H.O., Punpun dated 16.03.2002 (Annexure-C). Mutation was also done in favour of Raj Pati Devi (Annexure-D). The property was mortgaged for a tractor loan to Raj Pati Devi who duly repaid the loan as evident from the no dues certificate dated 14.06.2013 (Annexure-E).

(3.) Learned senior counsel Mr. J.S. Arora appearing on behalf of the defendant submits that Test Suit No. 02 of 2017 has Patna High Court TEST SUIT No.2 of 2017 dt.20-12-2019 become infructuous and no fruitful purpose will be served in allowing the same to continue. It is submitted that the test suit has been filed for grant of Letters of Administration in respect of the Will dated 19.08.2000 which itself has been revoked and is no longer in existence in terms of the decree dated 18.04.2001 passed in the partition suit. It is submitted that any challenge to the decree in the partition suit has become hopelessly barred by limitation and such decree has therefore attained finality. Nothing prevented the plaintiffs from challenging the compromise decree by instituting a suit if they were aggrieved, notwithstanding that Letters of Administration had not yet been granted in respect of the Will. In any event, grant of Letters of Administration upon finding the Will to be genuine would be of no avail to the plaintiffs, inasmuch as such order would have to be revoked or annulled on the ground that the Will itself had been revoked, as contemplated under Section 263 of the Act. Reliance has been placed on the following decisions -