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PATNA HIGH COURT
Sheema Ali Khan, J.
Nalini Mishra, Wife Of Late Shailendra Kumar Mishra
Versus
Braj Kishore Mishra Son Of Late Bhola Nath Mishra
Test Suit No. 2 of 2004
Decided On : MARCH 17, 2010
(Paras 27 and 28)
(2005)4 PLJR 737, (2002) 1 PLJR 577, (2006)2 PLJR 489, AIR (2007) SC 806, (2006) AIR SCW 3956, (2005) AIR SCW 2346-Relied upon.
Indian Succession Act, 1925-Section 63 read with Sections 69 and 90 of Indian Evidence Act, 1872-Will was executed in the year 1936 by testator in a State of Soundmind-Allegation that the signatures of the testator is forged has not been raised or as argued by the testator-The emphasis if at all was on the fact that the signature of the attesting witnesses had to be proved-Attesting witnesses and the sons of the attesting witnesses have died-It is impossible to prove the signatures of attesting witnesses-The attesting witnesses were all well known figures in their time witnesses who was alive at the time of execution of will has stated that testator and the witnesses signed the will in her presence- Moreover one of the attesting witness was a Judge of Patna High Court and his signature from the High Court records tallied with the signature on the will-one has to presume genuineness with respect to a document which is more than 30 years old-Requirement that at least one signature of attesting witnesses to be proved is satisfied will be proved as per Section 69 of Indian Evidence Act-Will duly proved.
(Para 35)
(1993)2 PLJR 28-Relied upon
AIR 1997 Punjab and Haryana 240, AIR 1964 SC 529, AIR 1991 MP 11, AIR 1956 Madras 566, AIR 1976 Rajasthan 40 Referred to.
Indian Succession Act, 1925-Section 232-Probate court-Jurisdiction-Jurisdiction of Probate court is limited to finding out whether the will is (a) duly executed (b) genuine and the last will of the testator (c) that such execution is made in a sound mind with full understanding-Probate court has only to decide whether the particular bequest is good or bad-It is not within the purview of the Probate Court to decide the question of title of the Suit properties.
(Para 45)
2001 (2) PLJR 184, AIR 1954 SC 280-Relied upon
AIR 1977 SC 1944, AIR 1998 SC 2401-Distinguished.
Indian Succession Act, 1925-Section 119 and Section 14(1) of Hindu Succession Act, 1956- Testator had given a life time interest in the property to his wife and after her to his daughters son as of the case of the plaintiff is covered under Section 119 of Hindu Succession Act-Month in which testators wife died not proved and disputed though amendment allowed-The statutory provisions under Section 14(1) of the Hindu Succession Act will ultimately have to be taken consideration-This question can only be raised if the defendant proves that she died after the commencement of Hindu Succession Act-This issue can lot be decided by this court as it is beyond the scope of the suit filed in the High Court.
(Paras 46 to 53)
AIR 1962 Pat. 149, (1996)8 SCC 128 Relied upon.
AIR 1975 Bombay 301, AIR 1951 SC 103, AIR 1976 Madras 295, AIR 1962 Andhra Pradesh 54-Referred to.
Indian Succession Act, 1925-Section 280 read with order 19 rule 3 of Code of Civil Procedure, 1908-Plea that affidavits shown not accordance with law-Language used in Section 280 is "Information and belief"-Affidavit containing words "Knowledge and believe"-objection on maintainability rejected.
(Paras 56 to 59)
Indian Succession Act, 1925-Section 280- Verification-object of-object of such verification has to secure good faith in the averments of the parties, inasmuch as by verification he makes the statements of his own.
(Para 60)
Limitation Act, 1963-Article 137 Probate of Will-Delay in filing the testamentary case-Limitation is a mixed question of law and fact-In the present case will is a genuine document and has been proved to be duly executed-Second generation is now in possession of the suit property by virtue of the said Will their names were mutated in the Municipal Corporation and the document was offered as a security in the bank-Plaintiffs could not get a copy of the will until High Court called for it from the bank directly-Once execution and attestation are proved, suspicion of delay no longer operates-No suspicious circumstances revolving round the preparation of the Will-Entire suit can not be dropped on the ground that it is hit by Section 137 of the act-It can not be said that the delay has not been explained.
(Paras 70 & 71)
AIR 2008 SC 2058-Relied upon
AIR 1977 SC 282, (1894) 1 LR 17 Madras 379, AIR 1991 Madras 214-Referred to
AIR 1983 Bombay 268-Assented to.
Sheema Ali Khan, J.
1. Test Case No. 6 of 2003 was filed for issuance of letter of administration with respect to a Will executed on 17.3.1936 by one Akshaybat Mishra. The Test Suit was converted into Test Suit No. 2 of 2004.
2. The suit was filed stating therein that late Akshaybat Mishra executed his last Will and testament in his own handwriting dated 17.3.1936 at his residence Laganmani Bhawan, Lal Bagh, Kunkun Singh Lane, Patna in presence of his late wife Laganmani Kuer, his relatives and attesting witnesses namely late Kulwant Sahay, retired Judge of the Patna High Court who was at that time residing at Naya Tola, Patna and late H.N. Choubey, Principal, Government Ayurvedic College, Patna. Late Laganmani Kuer appended her signature over the Will and thereafter two other witnesses namely late Mahendra Prasad, Assistant Surgeon and late Anand Prasad, Advocate of the Patna High Court appended their signatures over the Will on 18.3.1936. The Will was presented for registration at Buxar Sub-Registry Office, Ara on 29.5.1936 and was registered on 2.6.1936. In the said application filed before this Court, it is said that late Akshaybat Mishra, son of Pandit Rajeshwar Mishra was a resident of Rajdhani Dumraon, P.S-Dumraon, District-Sahabad and permanently resided at Laganmani Bhawan, Mohalla-Lal Bagh, Kunkun Singh Lane, District-Patna. He died in October, 1939 at Patna and was cremated in Patna as well. It is asserted that late Nawal Kishore Mishra, the father of the petitioners, who had claimed probate of the Will performed the last rites and Shradh of the testator Akshaybat Mishra. The heirs of the deceased have been described at paragraph-6. The property in question is said to be the exclusive property of late Akshaybat Mishra which was purchased in the Benami name of his wife Laganmani Kuer. Akshaybat Mishra constructed the double-storied house and paid the municipal taxes, revenue etc. in his own name till his death. Akshaybat Mishra had bequeathed the property i.e. the land and the double-storied house in favour of his eldest grand son (Nati) Nawal Kishore Mishra. Late Akshaybat Mishra died after execution of the Will dated 17.3.1936 which was registered on 2.6.1936 in favour of his grandson Nawal Kishore Mishra. Nawal Kishore Mishra came in possession of the property and after the death of Nawal Kishore Mishra, the petitioners and their legal heirs are continuing in possession of the same. It has been stated that at the time of execution of the Will, the testator was of sound mind and had voluntarily executed the Will in presence of two witnesses and the Will was witnessed by three others. The case of the petitioners/plaintiffs is that the Will was executed by late Akshaybat Mishra in favour of his eldest grandson Nawal Kishore Mishra with a stipulation that till he attained majority, the property would be looked after by late Bhola Nath Mishra, son-in-law of the executor and husband of his daughter Madalsa Devi. Thus, Nawal Kishore Mishra as per the terms of the Will had absolute right, title and interest over the property since he attained the age of 22 years on 11.11.1945. The name of Nawal Kishore Mishra was also recorded in the revenue records in the year 1952 and in the records the Patna Municipal Corporation. It is relevant to mention here that the plaintiffs specific case is that petitioner/plaintiff no. 2 Chandra Madhav Mishra took a loan of Rs.15,000/- from the State Bank of India,Kankarbagh, Patna to establish small scale industries for which Nawal Kishore Mishra became the guarantor and in security whereof he mortgaged the said Will in the said Bank. In the meantime, Nawal Kishore Mishra died and the Bank was not ready to handover the original Will till the succession certificate from the competent Court was produced before the Bank. The refusal of the Bank to handover the Will has been annexed as Annexure-3. It appears from this document that the Will was pledged to the Bank on 13.9.1981. The loan w
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