ORAL JUDGMENT

This appeal is directed against the order dated 29th of July, 2010 in Probate Case No.1 of 2007 passed by the District Judge, Gopalganj, dismissing the aforesaid probate case filed for grant of the probate of the Will dated 15th of January, 1970.

2. The brief facts of the case are that one Bhukhla Kuwar, widow of Late Lal Tiwary, executed a Will dated 15th of January, 1970 in favour of the applicants-appellants on being pleased with their services. The said Will was got scribed by Late Kailash Prasad and after the same being read over and making her understand the Will, said Bhukhla Kuwar put her left thumb impression and got the same identified by said scribe Late Kailash Prasad. The witnesses on the request of the testator put their signatures as witness in her presence. The further case is that the applicants used to give services to said Bhukhla Kuwar and after her death, they performed Shradh and other rituals as per the custom under the Hindu Law. Said Bhukhla Kuwar died on 12th of November, 1971 at Village-Pokhar Bhinda, P.S.-Uchakagaon, District-Gopalganj. The applicants are the nephews of the testator Bhukhla Kuwar. The further case of the applicants-appellants was that the said Will was kept in the box by one of the applicants, namely, Ram Sagar Tiwary and after the same was taken out from the box, the application for the grant of the probate of the aforesaid Will was filed in respect of the property mentioned in Schedule-I of the application.

3. Upon general citation, one Prem Sagar Tiwary, who happens to be nephew of the husband of Bhukhla Kuwar, appeared and filed written statement. In the written statement, the execution and the existence of the Will was not denied rather it was admitted. However, it was stated in the written statement that the probate of the Will in question be granted after checking and being satisfied. Thereafter said Ram Sagar Tiwary left doing any Pairvi in the case.

4. Considering the pleadings, the following four issues were settled in the court below : –

“(I) Whether the suit as framed is maintainable?

(II) Whether the Will executed by Bhukhla Kuwar on 15.1.70 is the last and genuine Will and it has been properly executed by Bhukhla Kuwar with her free consent and sound mind and duly attested?

(III) Whether the Will is related with property in the plaint or not?

(IV) Whether the applicants are entitled for relief as claimed in the probate petition?”

5. Upon considering the evidence of the applicant witnesses, the learned District Judge doubted the genuineness of the Will taking notice of the fact that the Will (Ext.1) was presented for its probate after more than 37 years. The L.T.I. of Bhukhla Kuwar was in the margin of the Will and not at the bottom even though there was good space for the same. Besides, the Will did not mention about any specific property rather the words “all properties” of the testator were mentioned. This apart, the learned court below did not find that any witness to the Will has stated that the testator was in such a mental condition so as to understand the nature of the documents. As regard the property mentioned in Schedule-I of the application for probate, the learned court below also held that there was nothing on the record to show that the property mentioned in the Schedule either belonged to the testator Bhukhla Kuwar or her husband and in absence of such material, it cannot be ascertain as to whether the Will in question relates to the property mentioned in Schedule-I of the application for probate. Accordingly, on such observations/findings, the application for probate was dismissed.

6. Mr. Manan Kumar Mishra, learned Senior Counsel appears on behalf of the appellants. Respondent no.1 is present. However, no one appears on behalf of respondent no.2 despite service of notice.

7. Mr. Mishra, learned Senior Counsel appearing for the appellants submits that the learned court below dismissed the probate application primarily on the grounds that (i) the ap