SHEO SHAMBHU TIWARI Vs. MAHESHWARI DEVI AND OTHERS

JUDGEMENT

(1.) This appeal has been filed against the judgment dated 14.7.2005 passed by the learned 6th Additional Judicial Commissioner, Ranchi in Probate Suit No. 10 of 2004 arising out of Probate Case No. 137 of 2001 dismissing the case of the petitioner/appellant for grant of probate/letter of administration in his favour on the basis of a purported Will dated 15.12.1985 said to have been executed by his uncle Manpal Ram Tiwary in his favour.

(2.) Mr. Sunil Kumar, learned counsel, appearing for the appellant assailed the impugned judgment on various grounds. His main contention is that the execution of the Will having been proved, the learned court below could not have gone into the other aspects.

(3.) Learned Curt below after considering the respective cases of the parties and evidences on the record, inter alia, held as follows. No evidence has been brought on the record by the appellant in view of Sec. 59 of the Indian Succession Act, 1925. The wife of Manpal Ram Tiwary was alive for about 5 years after his death. The daughters and wife of Manpal Ram Tiwary were looking after and nursing him. The claim of the appellant that he performed 'Shradh' of Manpal Ram Tiwary did not find support from the evidence. The evidences adduced on behalf of the appellant do not support his case that he served Manpal Ram Tiwary during his life time and after his death he performed his 'Shradh'. The evidences adduced on behalf of the appellant on the point of probability of execution of the Will by Manpal Ram Tiwary are contradictory and mutually opposed to each other. The 'Shradh' of Manpal Ram Tiwary was performed by his wife and daughters. It was further held that there was no explanation as to why P.W. 2 handed over the Will after 15 years to the appellant. The attestation of Will by P.W. 2 as well as the handing over the Will by Munshi to this P.W. was found unworthy and beyond reliance. The appellant could not prove proper attestation within the meaning of sub section (b) and (c) of Sec. 63 of the Indian Succession Act. It was further held that the appellant could not prove the genuineness of the Will in question. It was held that Ext. 1 and 1/1 on the Will were not genuine signatures of Manpal Ram Tiwary and the Will was probably prepared by or on the instance of the appellant. The Will, said to have been, prepared on 15.12.1985 was brought before the court for issuing probate in the year 2001 and such delay was wholly unreasonable. The explanation that it was handed over by P.W. 2 to the appellant in the year 2000 was not proved.