The proof of an unregistered WILL must dispel all suspicious circumstances surrounding its execution; failure to do so results in denial of probate.

JUDGMENT

RESERVED ON 21.07.2022

PRONOUNCED ON 29.07.2022

This appeal is directed against the order dated 25^th June, 2015 passed by the District Judge-II, Giridih in Probate Case No.4 of 2003, whereby learned District Judge-II, Giridih has dismissed the application filed by the appellant herein for grant of probate of WILL dated 10.02.2003.

2. The appellant was the applicant before the Court below, who prayed for grant of probate of an unregistered WILL dated 10.02.2003 executed by his grandmother Ramsingari Devi, widow of late Shivaji Singh, resident of Giridih. The said WILL was executed on 10.02.2003 by Ramsingari Devi, by virtue of which she bequeathed the property, which she had purchased vide sale deed bearing No.186 dated 07.01.1955 and 412 dated 20.01.1954, in favour of this appellant. It is the case of the applicant that the deceased had four daughters, who are married and are living with their respective in-laws. This appellant chose to live with her grandmother Ramsingari Devi. Three of the daughters of Ramsingari Devi, namely, Urmila Devi, Uma Devi and Tara Devi prevailed upon Ramsingari Devi and assured her that they will look after Ramsingari Devi, and on such assurance, got a WILL executed on 15.02.2000. The intention of these ladies changed after execution of the WILL and they left Ramsingari Devi in a pitiable condition, thus, Ramsingari Devi revoked the WILL on 15.07.2000 and since this appellant was residing with her and was looking after Ramsingari Devi, she executed a WILL on 10.02.2003 with respect to the property mentioned in the schedule. On 16.02.2003, Ramsingari Devi expired and the appellant being the sole executor of the unregistered WILL prayed for grant of probate.

3. In the probate proceeding, Court issued notice. Opposite Party No.1 Kalawati Devi filed her show cause and supported the case of the applicant-appellant. The other daughters, i.e., opposite parties Nos.2, 3 and 4 filed their written statement and opposed the probate proceeding, contending that the WILL dated 10.02.2003 is a forged and fabricated document, and Ramsingari Devi never executed the same. It is their case that on the date of execution of the unregistered WILL, i.e., 10.02.2003, deceased was seriously ill and in fact she was not in her senses. Ramsingari Devi was hospitalized in Navjeevan Nursing Home, Giridih from 03.02.2003 till 07.02.2003 and, ultimately, expired on 16.02.2003, thus, these circumstances clearly suggest that she was not in a position to execute the WILL. They stated that a partition suit was filed against the mother of the appellant being Partition Suit No.31 of 2003, in which preliminary decree, carving out the share, has already been passed on 03.06.2008 by Sub Judge IV, Giridih.

4. On the basis of the pleadings, six issues were framed by the Trial Court, which are as follows: -

I. Is the present petition for Probate maintainable?

II. Is the Will dt. 10/2/2003 executed by Ramsingari Devi?

III. Was Ramsingari Devi in sound health of body and mind at the time of alleged execution of Will?

IV. Was the Will dt. 10/2/2003 executed by free Will of Ramsingari Devi?

V. Is the petitioner/applicant entitled to Probate of Will dt. 10/2/2003?

VI. To what relief or reliefs if any petitioner/applicant entitled too?

5. Five witnesses were examined on behalf of the applicant, namely, A.W.1 – Dilchand Mahtha, A.W.2 – Umesh Pandey, A.W.3 – Pramod Kumar Singh @ Pintu Singh, A.W.4 – Satyadeo Singh, and A.W.5 – Mahavir Singh.

6. Evidence on affidavit of one witness, Sudhir Kumar Paswan was filed. He was one of the attesting witness and proved the contents of the WILL dated 10.02.2003, but, he was not cross examined by the opposite parties Nos.2 to 4