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2016 Supreme(Pat) 534
IN THE HIGH COURT OF JUDICATURE AT PATNA
ADITYA KUMAR TRIVEDI, J.
Anand Mohan Poddar – Appellant
Versus
Kailash Poddar – Respondent
Miscellaneous Appeal No. 588 of 2012
Decided On : 12-08-2016
For the Appellant :Mr. AJAY KUMAR SINGH, ADVOCATE.
For the Respondent:MR. PRAMOD MAN BANSH, ADVOCATE.
The main legal point established in the judgment is the importance of proper verification and authentication of documents, the foundational evidence for giving secondary evidence, and the necessity of proper citation of persons having interest in the property.
Headnote:
Probate - Will - Indian Succession Act, Section 237, 238, 239, 240, 281, 283 - The court discussed the probate of a lost will, the genuineness and validity of the will executed by the deceased, and the necessity of proper citation of persons having interest in the property. The judgment highlighted the importance of secondary evidence and the requirements for its admissibility. The court emphasized the need for proper verification and authentication of documents and the foundational evidence for giving secondary evidence.
Fact of the Case:
The appellant objected to the grant of probate for an unregistered will allegedly executed by the deceased in favor of the respondent. The appellant claimed to be the adopted son of the deceased and argued that the will was forged and fabricated.
Finding of the Court:
The court found that the lower court failed to properly identify the distinction between probate and letter of administration and did not consider the necessity of proper citation of persons having interest in the property. The court also noted deficiencies in the secondary evidence presented and concluded that the judgment and decree of the lower court were not justified.
Issues: The issues included the maintainability of the probate suit, the genuineness and validity of the will, the right and cause of action of the plaintiff, and the entitlement to an order of probate.
Ratio Decidendi: The court emphasized the importance of proper verification and authentication of documents, the foundational evidence for giving secondary evidence, and the necessity of proper citation of persons having interest in the property. The court also highlighted the requirements for admissibility of secondary evidence and the limitations on allowing parties to adduce secondary evidence.
Final Decision: The appeal was allowed, and the judgment and decree of the lower court were set aside. The parties were directed to bear their own costs.
ADITYA KUMAR TRIVEDI, J.
1. Appellant/Objector being aggrieved by judgment dated 16.07.2012, decree dated 03.08.2012 passed by Adhoc Additional District and Sessions Judge-IV, Begusarai in Title Suit No. 03/1978 originated on the basis of Probate Case No. 54/1977 allowing the petition, filed instant appeal.
2. Shorn of unnecessary details, it is evident from the lower court record that Respondent/ Propounder of the ‘Will’, Kailash Poddar had filed a petition for grant of Probate with regard to unregistered ‘Will’ dated 30.04.1977 allegedly executed by testatrix, Sushila Devi wife of late Ram Raksha Poddar in his favour. It has been averred that aforesaid ‘Will’ happens to be the last ‘Will’ of testatrix, Sushila Devi. It has further been stated that testatrix, Sushila Devi died on 19.08.1977. Then thereafter, it has been stated that the aforesaid ‘Will’ at the instance of testatrix, Sushila Devi was scribed by Baidyanath Sah and during course of execution, testatrix, Sushila Devi was identified as well as witnessed by Satyanarayan Poddar, Baidyanath Sah. The petition was verified by Satyanarayan Poddar apart from propounder of the ‘Will’/respondent Kailash Poddar.
3. From the petition it is evident that no details of persons having interest in the property was there, that means to say, even in absence thereof, appellant along with others appeared and filed objection. As pleaded thereunder, it has been submitted that common ancestor, Kesari Poddar died leaving behind four sons, Mahadev, Bulaki, Ram Raksha and Kapil Deo. It has also been stated that a partition took place and during course thereof, Mahadev and Bulaki remained joint at one side while Ram Raksha and Kapil Deo remained joint at other side. It has further been submitted that Bulaki had one son, Chandradeo whose son is Kailash, the legatee.
4. It has also been narrated that Ram Raksha was married to Sharda Devi after whose death he again married with Sushila Devi, the alleged testatrix. Kapil Deo had four sons and it is the branches of Kapil Deo who are objectors. Then it has been submitted that the aforesaid ‘Will’ happens to be forged and fabricated one which, the alleged legatee, Kailash Poddar managed to fabricate taking the witnesses, his own men at his side. Sushila Devi never executed ‘Will’ in favour of Kailash Poddar. As the aforesaid ‘Will’ is not a genuine ‘Will’ executed by the aforesaid Sushila Devi under sound mental, physical condition as well as out of her own volition, therefore, the alleged ‘Will’ could not be said to be the pious expression of the wish of the legator. Apart from this, it has also been pleaded that Ram Raksha and Kapil Deo remained joint whereupon after death of Ram Raksha, it was the family member of Kapil Deo who was taking care of Sushila Devi the alleged legator by rendering all sorts of service, and so there was no occasion for the legatee to render service and is likewise manner, there was not occasion for the legator to receive service at the end of legatee whereupon the contents of the ‘Will’ whatever recited happens to be false, frivolous and imaginary.
5. It has also been submitted that Sushila Devi had adopted objector, Anand Mohan Poddar and on account thereof, he became her adopted son who performed his obligation satisfactorily. So submitted that the ‘Will’ in question happens to be a forged and fabricated document whereupon the instant proceeding is fit to be dismissed.
6. At the present moment, one more incident visualizes. The ‘Will’ in original was filed along with the petition whereupon directed to be kept safely. A copy there of, was not at all attached therewith. On its own, the copy was filed subsequently with a prayer to reconstruct the record by admitting the aforesaid document which the learned lower court vide order dated 10.09.1993 though entertained the aforesaid typed copy with a limitation that the plaintiff will have the burden of proving its genuineness and validity.
7. The learned lower court had
