Shamim Khan vs Sabanam Khatoon

Mr. Justice Shailesh Kumar Sinha

This appeal is directed against the order dated 16th of February 2010 passed by Additional District and Sessions Judge, FTC-I, Kaimur at Bhabhua in Probate Case No. 10 of 2007/2 of 2007 granting letters of administration, hence the present appeal. The short facts of the case are that one Diwan Suleman Khan resident of Biddi, P.S. Chainpur, District - Kaimur (Bhabhua), who had three sons namely, Haffizulla Khan, Azizulla Khan and Samiullah Khan @ Mulla Khan executed the registered will bearing Registration No. 1199 of 145 dated 31st of October 2005 with respect to his one third properties in favour of the applicant, namely, Sabnam Khatoon. The testator died on 9th of November 2005. The said will was sought to be probated. The appellant being the opposite party appeared and filed objection stating therein to the effect that testator was not in a sound state of mind at the time of the execution of the aforesaid will and as such, the will being not genuine, the application for granting probate deserves to be dismissed.

The Court below upon considering the oral as well as documentary evidence on the record concluded that the testator was in a sound state of mind at the time of the execution of will. The court below did not find anything from the evidence on the record that testator was mad or he was not in a sound state of mental health, as alleged by the opposite party. Accordingly, the letter of administration with respect to the aforesaid will was granted as per the order under the appeal.

Learned counsel for the appellant submits that the testator was not in a sound state of mind which would be appearing from the oral evidence adduced on behalf of the opposite party who were consistent on the point that the testator was not having a sound state of mental condition at the time of the execution of the will as also from the receipt granted by the mental hospital Ranchi vide Ex- A and discharge certificate (exhibit -B) would also show that the testator was admitted into the mental hospital. Accordingly, learned counsel for the appellant submits that the court below did not consider the case in proper manner and allowed the application.

On the other hand, learned counsel for the respondent submits that the oral evidence including the evidence of the wife are consistent on the fact that the testator was in a sound state of mind at the time of the execution of the sale deed. It is further submitted that besides oral evidence, documentary evidence was also produced on behalf of the applicant to support the case that testator was absolutely in a sound state of mind. In this connection, learned counsel refers a sale deed No. 11019 of 1987 vide Exhibit -10 executed by all the brothers of the testator with respect to the certain property. Besides the registered sale deed, identity card issued by the Election Commission vide Exhibit - A as also Ration Card vide Exhibit - 9 appearing the name of the testator is the sufficient evidence to indicate that the testator was not mad as alleged by the opposite party of the said probate case. It is further submitted that the Exhibit - A is the Medical Report of the year 1972 and Exhibit - B of the year 1994 which is of no relevance that the testator was not in good health of mind and beside oral evidence on behalf of the appellant that documents produced are sufficient to hold that the testator executed the will genuinely.

Upon considering the rival submissions of the parties as also the documentary evidence as noticed above and discussed in the order under the appeal, it would appear that court below rightly held that the testator was not unsound mind as alleged by the objectors. The court below as such, concluded on the basis of the evidences on record that the testator was in a sound state of mind at the time of the execution of the will which was duly attested by the witnesses proving the execution will. This Court also perused the documents brought on the record as also the oral evidence and finds that there is nothing on the record to take a different view in this matter. Accordingly, the order under the appeal is upheld. Consequently, this appeal being devoid of any merit, is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.