IMPORTANT POINT
Grant of Probate of Will – Even if Will was there at the time of survey, its non-production before survey authorities cannot lead to any inference about its non-existence on the date it purports to have been executed by testator.

JUDGMENT (CAV)

This is an appeal preferred under Section 299 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act of 1925’) for setting aside the judgment dated 17th day of April, 1982 passed by learned District Judge, Saran, Chapra in Revocation Case No.10 of 1979 (Ram Sevak Singh Vs. Ghinawan Singh & Ors.). By the impugned judgment, the learned District Judge has been pleased to dismiss the suit arising out of an application filed by the plaintiff under Section 263 of the Act of 1925 and thereby refused to interfere with the order granting probate by the District Judge of Saran on 28.08.1928 in Probate Case No.110 of 1926 in favour of the father of defendant no.1.

2. In order to appreciate the dispute between the parties it would be relevant to state the genealogy of the parties as under:—

3. The facts of the case would reveal that wife of Ramroop Singh had pre-deceased him. Ramroop Singh died issueless. He is said to have executed a Will in favour of one of his nephews Sohitchand Singh in the year 1916 which was duly registered on 25.05.1916.

4. Sohitchand Singh filed a probate case in the court of learned District Judge, Chapra giving rise to Probate Case No.110 of 1926 in which probate was granted by the learned District Judge of Saran on 28.08.1928.

5. Ramsevak Singh (plaintiff) of Revocation Case No.10 of 1979 filed an application under Section 263 of the Act of 1925 for revocation of probate granted in favour of Sohitchand Singh, father of defendant no.1 Ghinawan Singh. By the impugned judgment, the learned District Judge, Saran, Chapra has been pleased to dismiss the revocation case after holding that the plaintiff was not able to bring any evidence to support his contention that probate was obtained by practicing fraud upon Raunak Singh or upon the court. It has also been held that there is no evidence that wrong citations were made or that summons and notices had not been served upon the person or persons interested in the matter of grant of probate. Further there was no evidence that the proceedings of the probate case were defective.

Submissions on behalf of the appellants

6. The appellants are the legal heirs of late Ram Sewak Singh who was the original applicant-appellant. Ram Sewak Singh died during the pendency of the present appeal in this Court, hence, his legal heirs have been substituted.

7. Mr. Binod Kumar Singh, learned counsel for the appellants has assailed the impugned judgment on the following two grounds:—

(i) That there was no proper citation in the name of Raunak Singh the father of the original plaintiffappellant who died in the year 1931. It is contended that Raunak Singh died in the year 1931 when the plaintiff was aged about only 7 years. According to him, the Will is said to have come into being in the year 1916 and it was probated in the year 1928. When he was about two years old, the probate case was filed and when he was about four years old only, the probate was granted. The probate was obtained by practicing fraud upon the father of the plaintiff and the court and an ex-parte order of probate was obtained.

(ii) The Will (Ext.- ‘B’) is a forged and fabricated document.

8. It is the case of the plaintiffs that Ramroop Singh was an illiterate person and was a person of weak intellect hence he had no testamentary capacity to execute the Will. Learned counsel for the appellants submits that in course of evidence the two witnesses namely AW-1 and AW-2 both supported the case of the plaintiffs. AW-1 Ram Sakal Singh aged about 85 years has stated that Ramroop had equal love and affection for both the brothers namely Sheo Sahay Singh and Harichand Singh and he could not have been partial to one of them. He has stated that Ramroop was not intelligent enough to understand things and look after his affairs. Learned counsel submits that the applicant witnesses have supported the case of the plaintiffs that survey operation in the village took place some time in the year 1916 or 19