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IN THE HIGH COURT OF ALLAHABAD
A. P. Misra, J.
MANORAMA SRIVASTAVA - Appellant
Versus
SAROJ SRIVASTAVA - Respondents
Testamentary Suit 5 Of 1987
Decided On : 09/21/1988
WILL - SUIT FOR PROBATE - EXECUTION AND ATTESTATION - UNDUE INFLUENCE - PROOF - CIRCUMSTANCES CREATING SUSPICION - BURDEN OF PROOF - SHIFTING OF - COURT'S DUTY - CONSTRUCTION OF WILL - TESTATOR'S INTENTION - COURT'S APPROACH.
Fact of the Case:
The plaintiff, Smt. Manorama Srivastava, filed an application under Section 232 of the Indian Succession Act for the grant of probate or Letter of administration with a copy of the Will dated 26th April, 1986. The defendant, Smt. Saroj Srivastava, also claiming to be the widow of the deceased, filed a reply by way of counter affidavit objecting to the claim made by the plaintiffs. She asserted that the alleged Will is forged and fabricated document. Dr. Srivastava had no intention to execute the Will.
Finding of the Court:
The court held that the Will was validly executed by the testator and was not obtained by undue influence. The court found that the attesting witnesses had testified that the testator had signed the Will in their presence and that they had signed as attesting witnesses. The court also found that the testator was of sound mind at the time of execution of the Will and that there was no evidence to suggest that the plaintiff had exercised undue influence over the testator.
Issues: 1. Whether the document dated 26-4-1986 alleged to be the Will was validly and duly executed by Dr. M. K. Srivastava ? 2. Whether the plaintiff is entitled to the Letter of Administration on the basis of the Will annexed with the application for grant of Letter of Administration ?
Ratio Decidendi: The court held that the onus of proving the execution and attestation of the Will was on the propounder, and that the defendant had failed to discharge this burden. The court also held that the circumstances relied upon by the defendant to create suspicion about the execution of the Will were not sufficient to shift the burden of proof to the plaintiff. The court further held that the Will was not obtained by undue influence, as there was no evidence to suggest that the plaintiff was in a dominant position over the testator or that she had exercised any undue influence over him.
Final Decision: The court decreed the suit of the plaintiff and granted letters of administration over the property mentioned in the Will dated 26th April, 1986, subject to the payment of ad valorem Court-fee duty payable on the valuation of the property.
( 1 ) AN application under Section 232 of the Indian Succession Act was moved by Smt. Manorama srivastava, describing herself as the widow of Dr. Mithlesh Kumar Srivastava (deceased) and km. Khushboo, minor daughter of the aforesaid deceased through applicant No. 1 under her guardianship (hereinafter referred to as the plaintiffs) for the grant of probate or Letter of administration with a copy of the Will dated 26th April, 1986. Thereafter a caveat was filed on behalf of Smt. Saroj Srivastava also describing as widow of late Dr. Mithlesh Kumar Srivastava (hereinafter referred to as the defendant) in which it was stated that she had applied for succession certificate in the District Court. She also filed a reply by means of counter affidavit which was subsequently converted into written statement objecting to the claim made by the plaintiffs.
( 2 ) THE plaintiff asserted in her aforesaid petition that Dr. Mithlesh Kumar Srivastava died at allahabad on 15th November, 1986, leaving both moveable and immovable properties. He executed a Will on 26th April, 1986 in a sound disposing mind of his own free-will and was duly attested by the two attesting witnesses, viz. , Sri R. P. Srivastava and Sri R. N. Srivastava. Under the Will the deceased bequeathed his entire moveable and immoveable properties, bank account, l. I. C. policies, National Savings Certificate, Contributory Provident Fund and all other amounts due to him to the plaintiffs. He further bequeathed his undivided share in the ancestral property to the plaintiff and son and daughter from the first wife, viz. Smt. Saroj Srivastava ( defendant ). It was further averred that the bungalow No. 25 C/1, Thornhill Road, Allahabad which was subject matter of bequeath to the plaintiffs under the said Will was subsequently gifted to plaintiff No. 1 by meanis of registered gift-deed dated 2nd June, 1986. Alongwith the aforesaid application of the plaintiff a photocopy of the Will was annexed as Annexure a the original will itself was subsequently filed which was kept under seal and cover of this Court. Annexure ca-1 shows the total claim encashable for the deceased was Rs. 66,000/-out of which Rs. 26,000/- were already withdrawn by the defendant. Annexure-CA 2 shows the number of three policies which under the Will plaintiff claimed to be entitled Annexure-CA-3 shows Rs. 1,776/the total amount in the bank of the deceased. Annexure-CA-4 refers to the ancestral house of the deceased in village Katra in the district of Faizabad along with Bhumidhari land. Finally, annexure D showed the liability of the deceased showing various loans taken by him.
( 3 ) IN the counter affidavit which was later converted into written statement the defendant challenged assertions of plaintiff describing herself as widow of Dr. Mithilesh Kumar Srivastava. It was averred that the alleged Will is forged and fabricated document. Dr. Srivastava had no intention to execute the Will. The said Will was said to be got up and afterthought document prepared by the plaintiff in collusion with the attesting witnesses. In the gift-deed executed subsequently there was no mention of the will showing it as an afterthought. Sri Atul Chandra srivastava, Sri K. K. Srivastava and Sailendra Ranjan, father, brother and son (from first wife)respectively filed a suit for cancellation of the registered gift-deed, which is pending. This is referred to in the written statement. Deceased filed a petition for divorce against the defendant (Smt. Saroj Srivastava), which was decreed ex parte. Subsequently, she made an application under Order IX, Rule 13, C. P. C which was allowed by order dated 25th April, 1985. As against that a Civil Revision (Civil Revision No. 421 of 1985) was preferred in this Court, in which after conclusion of arguments but before delivery of judgment Dr. M. K. Srivastava died, hence an application for dismissing the revision was moved by the defendant wherein a counter affidavit was filed by plain
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