A testamentary suit for grant of administration is not maintainable if the Will has been previously disbelieved and affirmed by appellate court under res judicata principles.

JUDGMENT :

Rohit Ranjan Agarwal, J. - Heard Sri Sundeep Agarwal along with Sri Nimai Dass, learned counsel for the plaintiff and Sri Narendra Mohan along with Sri Harishchandra Mishra, learned counsel for the defendant no.12.

2. This testamentary suit has been filed for grant of letter of administration to the plaintiffs in respect of Will dated 20.05.1980 regarding estate of late Mahadev son of Late Jari Bandhan.

3. Initially Testamentary Case No.30 of 2010 was filed by the petitioner late Amar Nath Pandey. The said testamentary case was contested by some of the defendants and caveat as well as written statement was filed and the testamentary case was converted into a suit.

4. According to the plaint, late Mahadev is said to have executed Will on 20.05.1980 bequeathing his entire property in favour of original plaintiffs Amar Nath Pandey. In the plaint it has been mentioned that late Mahadev was unmarried and used to live with his nephew and his sons who took care of his needs. Mahadev had two sisters Dharma Devi and Sukhraji. Dharma Devi had three sons Satya Narain, Jag Narain and Raj Narain. Satya Narain had two sons Omkar Nath and Amar Nath. Sukhraji had two sons Ram Lakhan and Paras Nath. According to para 5 of the plaint, Mahadev had left moveable and immoveable properties in the city of Allahabad and had fixed deposits in the bank at Taradev Branch Mumbai jointly in the name of Paras Nath.

5. According to plaint, Mahadev had already given western part of the house to one of the nephew Paras Nath and the fixed deposit was in the joint name. After the death of Mahadev, sons of Sukhraji, Ram Lakhan, Paras Nath and Sukhraji filed a Civil Suit No.30 of 1982 against Amar Nath Pandey and other sons and grand sons of Dharma Devi claiming relief of declaration for declaring the property recorded in the name of Mahadev as Benami and he being not the real owner of the property in suit. Relief was also sought that Mahadev be declared to have no right to execute any Will relating to properties in suit nor he executed any Will in favour of Amar Nath Pandey. Relief of permanent injunction was also sought against the defendant in the suit for not interfering with the possession of the plaintiff of the suit over the properties in dispute.

6. The trial Court framed six issues, wherein issue No.1 was, whether the plaintiff of the suit are owner of the properties in possession?; secondly, whether the properties were acquired in the name of Mahadev as alleged?; thirdly, whether Mahadev was the sole owner of the property in suit and he executed a Will-deed on 20.05.1980 in favour of defendant No.1 (Amar Nath Pandey); and fourthly, whether the Court has no jurisdiction to try the suit.

7. Issue Nos.1 and 2 were decided against the plaintiff of the suit Ram Lakhan and Paras Nath. While deciding issue No.3, trial Court found that the Will executed by Mahadev, was obtained by playing fraud taking advantage of his illness. Trial Court decided issue No.3 against Amar Nath and held that Mahadev did not execute any Will in favour of Amar Nath. Issue No.4 as to the jurisdiction of the Court to try the suit was not pressed and decided in negative. The suit was partly decreed on 26.10.1983.

8. Against the judgment and order of the trial Court, Amar Nath filed First Appeal No.587 of 1983 before this Court. An application No.13796 of 1986 was moved by the appellant Amar Nath supported by his affidavit praying for dismissal of the appeal as the parties had amicably settled the matter outside the Court. The first Appellate Court on 15.11.1989 dismissed the appeal in view of application made by Amar Nath.

9. According to plaint averment, the plaintiff Amar Nath was not aware about the application of not pressing the first appeal on the basis of compromise arrived out of the Court, nor he had instructed his counsel R.N.Pandey to move such an application. It was when the applicant had come to meet his counsel and enquired about the status of his case than he was told