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2006 Supreme(All) 2978
[2006(10) ADJ 591]
ALLAHABAD HIGH COURT
Before : Sunil Ambwani, J.
In the matter of the Goods of Late Smt. Bimala Neogi (Deceased) .....Respondents
(Testimatary Suit No. 5 of 1995 with T.S. No. 9 of 1998, decided on 10th November, 2006)
Counsel :
N.C. Rajvanshi, J. Nagar and P.K. Mukherjee for the Petitioner.
Headnote:(Indian) Succession Act, 1925—Section 230—Will—Whether duly and validly executed by Testator—Or whether executed under undue influence—Or genuine or forged—And that whether petition for grant of Letters of Administration was legally maintainable—Held, (i) execution of Will, in favour of executor, and Letters of Administration, executed by that executor, in favour of Administrator-General—Proved on record—No reliable evidence lead by plaintiff to prove alleged facts of undue influence by that executor on deceased—House in question was under Supurdagi of S.S.P. and was under management of S.H.O., vide Courts’ order—Therefore, S.S.P. directed to handover vacant possession of house to Administrator-General, U.P. at Allahabad—And that Administrator-General to carry out wishes of Testator—And to create a Trust to be named as “Bimla Neogi Trust”, a private Charitable Trust with power to appoint Trustees for old and disabled persons—Amount in Bank Account and deposit in IFFCO to be utilised for purposes of carrying out wishes of Testator, strictly in accordance with her desire in Will. [Paras 9, 32 to 36]
Hon’ble Sunil Ambwani, J.—The Testamentary Suit No. 5 of 1995 is filed by the Administrator General U.P. and Testamentary Suit No. 9 of 1998 by Shri Prabir Kumar Dutta, both for Letters of Administration of the estate and credits of Smt. Bimala Neogi D/o Late Dr. Brindaban Chandra Sur, resident of 410, Mumfordganj, Allahabad, died on 2.2.1994 at Allahabad.
2. In Testamentary Suit No. 5 of 1995 filed by the Administrator General, U.P. it is alleged that Smt Bimla Neogi, a widow died issueless leaving behind her brother Shri S.C. Sur and two nephews Bhri Ratan Sur and Shri Asim Sur, residents of 48, P.K Ganguly Road, Post Office, Sali, Howrah. Notices were issued to them. They have not contested the suit. Smt. Bimla Neogi (the deceased) executed a will on 29.4.1992, registered by Sub-Registrar, Chail, Allahabad on the same date, on commission, at her residence, and is witnessed by Mrs. Bulbul Dey. and Deepa Dutt Roy, both of whom have died. She bequeathed her properties for charity and appointed Shri Shanker Singh Chaudhary as the executor and trustee in the will to set up an old age home in her house.
3. The deceased Smt. Bimla Neogi was head of the department, Fine Arts, Allahabad University. Shri Shanker Singh Choudhary, a neighbour had retired as. District Magistrate. Due to his advancing age and preoccupation Shri Shanker Singh Choudhery executed a letter of renunciation of executorship of the will under Section 230 of the Indian Succession Act, 1925 in favour of the Administrator General, U.P.
4. In Testamentary Suit No. 9 of 1998 Shri Prabir Kumar Dutta, son of S.K. Dutta, a Physiotherapist attending Smt. Bimla Neogi after she suffered a stroke of paralysis claims that she had named him as a legatee in the will dated 17.11.1989. Shri Prablli Kumar Dutta, has set up another will dated 25.1.1993 attested by Smt. Bulbul Dey and Shri P.N. Chaterjee. Shri P.N. Chaterjee was examined on commission on 31.10.1999 by Shri P.K. Ganguly, Advocate vide his report (A-107).
5. A third Testamentary Suit No. 12 of 1998 was filed by Shri Satish Chandra Jaiswal, who died during the pendency of the suit. By order dated 9.5.2000 the Testamentary Suit No. 12 of 1998 was decided giving right to the heirs of Shri Satish Chandra Jaiswal claiming properties of Smt. Bimla Neogi through will, to be impleaded as caveators in Testamentary Suit No. 5 of 1995 and Testamentary Suit No. 9 of 1998 The heirs of Shri Satish Chandra Jaiswal, however, did not filed caveat or sought Impleadment in the pending testamentary suits.
6. The issues were framed on 21.8.1995
(1) Whether the alleged Will dated 29.4.1992 was duly and validly executed by the testatrix?
(2) Whether the alleged Will dated 29 4.1992 was executed under undue influence of Shankar Singh as alleged in paragraph ‘16’ of the counter-affidavit written statement?
(3) Whether the alleged Will dated 12.1.1993 was genuinely and validly executed by the deceased testatrix and is the last Will of the deceased?
(4) Whether the alleged Will dated 12.1.1993 is a forged document as alleged?
(5) Whether the deceased executed the Will dated 17.11.1989 in favour of Pravir Kumar Gatta?
(6) Whether the petition for grant of Letters of Administration is legally not maintainable?
(7) To what relief, if any, is the plaintiff entitled.”
7. Issue No.6 was amended on 13.3.1996 as follows :
“Whether the petition for the grant of Letters of Administration is not maintainable as pleaded in paragraph Nos.10 and 11 of the written statement?”
Issue No.1 and 2
8. In Testamentary Suit No 5 of 1995 Shri J. Nagar, the Administrator General submits that both the witnesses to the will namely Smt. Btlbul Dey and Deepa Dutt Roy have expired. Shri Yogesh Kumar Gael (PW-2), the scribe proved the will under Section 69 of the Evidence Act. Shri Yogesh Kumar Goyal son of Shri Satya Prakash Goyal resident of 533, Mumfordganj, Allahabad (PW-2) is an Advocate practicing in Civil Court since 1976. He deposed that he had drafted the
