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2018 Supreme(All) 575
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL AND AJIT KUMAR, JJ.
LAXMI KANT AND OTHERS ....Appellants
Versus
Smt. GANGA DEVI ....Respondent
(Special Appeal No. 236 of 2006, decided on 22nd May, 2018)
Counsel :
A.K. Rai, Anshu Chaudhary and Vishnu Kumar Singh for the Appellants; R.B. Singh for the Respondent.
Headnote:(Indian) Succession Act, 1963—Section 63—Code of Civil Procedure, 1908—Section 10—Transfer of Property Act, 1882—Section 3—Testamentary suit—Adjudication—Filing of civil suit for cancellation of Will—Testamentary Suit filed in a Court of exclusive jurisdiction, then such suit cannot be stayed and Section 10 C.P.C. would not be attracted—In a suit filed for cancellation of ‘Will’, only question up for consideration is, “whether ‘Will’ was actually executed or it was a forged and fictitious—While in Testamentary Suit, other issues are also involved namely whether Plaintiff-respondent was entitled to grant letter of administration, which could not have been subject-matter of issue in the suit filed by plaintiff-respondent for cancellation of ‘Will’—Single Judge not erroneous in rejecting application for stay of Testamentary Suit—With respect to factum of ‘seen’, there are two witnesses, one is blind hence question of ‘seen’ does not arise and another did not depose at all that he has seen Testator executing ‘Will’—Since ‘Will’ in question found not ‘attested’ as provided under Section 63 of 1925 Act, hence its execution was not proved—Mere filing of a Civil Suit for cancellation of ‘Will’ in Civil Court would not oust jurisdiction of this Court to entertain Testamentary Suit. [Paras 17 to 50]
Result; Appeal Dismissed.
Hon’ble Sudhir Agarwal, J.—Heard Sri Dharam Pal Singh, learned Senior Advocate, assisted by Sri Anshu Chaudhary, Advocate, for appellants. None appeared on behalf of respondents though the case has been called in revise. Hence, we proceeded to hear and decide this appeal finally, ex parte.
2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment of learned Single Judge in Testamentary Intestate jurisdiction. vide judgment dated 6.2.2006, learned Single Judge has directed to grant Letter of Administration of Estate of deceased to plaintiff-respondent, Smt. Ganga Devi, in Testamentary Case No. 6 of 1999 in the matter of property of Late Panna Lal.
3. Plaintiff, Smt. Ganga Devi, filed Testamentary Suit registered as Testamentary Case No. 19 of 1999 on 18.8.1998 stating that Panna Lal died on 3.6.1993 and she being widow of Panna Lal is entitled for Letter of Administration in respect of Estate of deceased which he possessed at the time of death. The valuation of Estate described in the affidavit was Khata No. 246, Khasra No. 878 measuring 1.263 hectares, Khata No. 247, Khasra No. 1152 measuring 0.389 hectares; 1/2 share of the deceased in area No. 0.826 at Rs. 5 lacs and one house situated in Village Karb, Pergana and Tehsil Mant, District Mathura for Rs. 10,000/-.
4. It was contested by Appellants stating that deceased Panna Lal executed a ‘Will’ on 8.5.1993 (unregistered) in favour of his nephews Bhagwan Swaroop, Laxmi Kant, Kali Charan and Brij Kishore, sons of Babu Lal on the basis whereof those persons filed application for mutation of Estate of deceased Panna Lal in their favour and Tehsildar passed order accordingly. Plaintiff carried the matter in appeal before Additional Commissioner who set aside order of Tehsildar and thereagainst appellants filed Revision No. 17 of 1997-98. It is also said that a suit for cancellation of ‘Will’ being Original Suit No. 483 of 1996 is pending and, therefore, petition for grant of Letter of Administration is not maintainable.
5. Learned Single Judge formulated following four issues:
“1. Whether the plaintiff Smt. Ganga Devi, widow of late Panna Lal is entitled to grant of Letter of Administration?
2. Whether Panna Lal had executed ‘Will’ dated 8.5.93 in favour of Babu Lal son of Hajari Lal, Bhagwan Swaroop son of Babu Lal, Kali Charan son of Babu Lal and Brij Kishore son of Babu Lal as claimed by them in respect of the property in dispute?
3. Whether petition for grant of Letters of Administration is maintainable when plaintiff has filed suit No. 483 of 1996 for cancellation of ‘Will’ alleged to have been executed by deceased Panna Lal?
4. Whether this Court can adjudicate upon the validity in execution of ‘Will’ alleged to have been executed by the deceased Panna Lal?”
6. Plaintiff examined Nathi Lal and Ganga Prasad as PW-1 and PW-2 while defendants-appellants examined Dau Dayal, a blind person, as attesting witness to ‘Will’ as DW-1 and Ram Dayal, another attesting witness as DW-2.
7. Issues-3 and 4 were taken together and decided holding that since Letter of Administration can be granted only by this Court, therefore petition is maintainable and this Court has power to adjudicate upon validity of ‘Will’ alleged to have been executed by deceased Panna Lal, set up in defence by defendants-appellants. Original ‘Will’ was not filed before learned Single Judge.
8. DW-1 was an attesting witness who had suffered loss of eye-sight, according to his own admission, at the age of 12 years. He was 17 years of age at the time of execution of ‘Will’.
9. DW-2, Dau Dayal, though admitted that he has attested ‘Will’ as a witness, but further said that he does not know when Panna Lal died and whether ‘Will’ was registered or not.
10. PW-1, Nathi Lal, is brother of plaintiff-respondent, Ganga Devi, and said that deceased Panna Lal was not well for almost a month and died on 3.6.1993 at Village Karam, District Mathura. He has not executed
