Examination of attesting witnesses is a mandatory requirement for grant of letters of administration/probate of a Will.

Honorable Mr. Justice Shailesh Kumar Sinha

1. The appeal is directed against the order dated 22nd of July, 2010 passed by the 1st Additional District Judge, Bhojpur at Arrah in Title Suit No. 1 of 1998 arising from the Letters of Administration Case No. 40 of 1997 filed under section 278 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act'), whereby prayer of the plaintiffs for grant of letters of administration was refused and the suit was dismissed by the judgment under appeal. The short facts of the case are that the plaintiff-appellants filed the aforesaid letters of administration case, which was later on converted into Title Suit No. 1 of 1998 for grant of letters of administration with respect to the Will dated 27th of April, 1994 executed by their father Late Jagarnath Prasad Singh, Advocate, Civil Court, Ara with respect to his landed property, detailed in the Will. In the said Will, two witnesses are attesting witnesses, namely, Lakhichand Singh and one Rishimuni Singh. The scribe of the aforesaid Will was one Raj Kishore Sahay.

The respondent contested the aforesaid application, inter alia, on the ground that the Will is not genuine. Testator Jagarnath Prasad Singh was not in a sound state of mind as on the date of the execution of the Will. As a matter of fact, the Will was got executed at the instance of the husband of Karuna Singh, namely, Rajendra Singh. Further stand of the respondent Smt. Sharda Singh was that she had no sister named as Karuna Singh. Accordingly, prayer was made for dismissal of the suit.

The court below on considering the pleadings of the parties framed several issues as mentioned in paragraph 3 of the judgment under appeal.

Issue No. 3 was with respect to the genuineness of the Will. The court below, on perusal of the evidence-oral as well as the documentary-on the record, came to the conclusion that the aforesaid Will dated 27th of April, 1994 (Ext.2) is not a valid and genuine deed executed by Jagarnath Prasad Singh in favour of the plaintiffs on the ground that the attesting witnesses were not examined, a mandatory requirement of law for such examination, especially in the matter of grant of letters of administration/probate of a Will. The court also expressed serious doubt and suspicion with regard to the identity of Krishna Singh, one of the plaintiffs, who claimed to the effect that Karuna Singh and Krishna Singh is one and the same person in view of the evidence of defendant Smt. Sharda Singh (D.W.1) to the effect that she had no sister of the name Kauna Singh in her examination-in-chief, which was not diluted in her cross examination. The court has further taken note of the fact that firstly, on perusal of the plaint there is no averment mentioning the name of the attesting witnesses nor there is any specific averment that the testator Jagarnath Prasad Singh had put his signature over the Will in presence of the attesting witnesses and thirdly, the attesting witnesses had put their signatures over the Will on the instructions of Jagarnath Prasad Singh. The court below in view of the evidence on the record adduced on behalf of both the parties held that the Will is not a valid and genuine and, accordingly, dismissed the suit.

2. Mr. Kamal Nayan Choubey, learned Senior Counsel appearing on behalf of the appellants submits that the suit was basically dismissed on the ground that the attesting witnesses to the Will were not examined. In this connection it was submitted that the plaintiffs made efforts for examination of the attesting witness, namely, Rishimuni Singh, who had appeared in the suit for his examination on two dates i.e., on 26.6.2009 and again on 10.7.2009, but on both the dates, the attesting witness could not be examined as on the first date, no work call was given by the Advocates and on the second date, there was an incident of bomb blast in the premises of Ara Civil Court and as such, the plaintiffs did made all efforts for the examination of said