Sunil Kumar and Gaya Devi vs Dip Narayan Mandal and Others

Honourable Mr. Justice Shailesh Kumar Sinha

The appeal is directed against the order dated 15th of January, 2011 passed by Shri Radhe Shyam Sharma, Additional District Judge, Fast Track Court-I, Bhagalpur, in Probate Case No.14 of 1998 allowing probate of the Will dated 9.11.1997. The short facts of the case are that one Pokan Modi died leaving behind his widow Bichhi Devi,who executed a Will on 9th of November, 1997 in favour of the applicant of the said probate case, namely, Dip Narayan Mandal in respect of the property detailed in Schedule A of the said probate case. Most. Bichhi Devi died on 2nd of December, 1997 and after her death, the probate case in question was filed for probate of the aforesaid Will. In support of the probate of the Will, attesting witnesses and the scribe were examined.

In the aforesaid case Sunil Kumar Chourasia and Kumar Sanu intervened and contested the claim of the applicant for the probate of the Will. The intervernors resisted the claim stating that Pokan Modi died leaving behind his widow Bichhi Devi as also a sister Jugli Devi and the applicant intentionally omitted the name of his sister. It was also stated that said Most. Bichhi Devi did not execute any Will on 9.11.1997, as claimed by the applicant, and as such, the Will in question was forged and fabricated. The date of death of the testatrix was also disputed. Besides, the witnesses, who claimed to be the attesting witnesses, and the scribe of the Will were set-up men of the applicant. As a matter of fact, after the death of Pokan Modi, his sister Jugli Devi remained in possession of all the properties and she sold some of the lands to the intervenors. The intervenors accordingly objected to the application and prayed for dismissal of the probate case.

The applicant adduced oral evidence of the attesting witnesses and scribe, besides his own evidence. The said application for grant of probate was allowed considering the evidence of the applicant, however, it was observed that the intervenors have not produced any evidence in support of their case. The intervenors being aggrieved by the order granting probate of the Will have preferred this appeal.

Mr. Shiv Nandan Rai, learned Senior Counsel appearing for the appellants submits that the trial court committed serious error of record by stating that the intervenors have not produced any evidence in support of their case. As a matter of fact, the intervenors had adduced evidence of four witnesses, besides four documents were brought on the record in opposition to the grant of probate of the Will. It is further submitted that this Court by order dated 24th of February, 2012 called for the lower court records and on perusal of the lower court record it would appear that the intervenors have adduced their oral as also the documentary evidences and the probate application was allowed admittedly without considering the evidence of the intervenors brought on the record.

Mr. Anil Singh, learned counsel appearing on behalf of the respondents, on being confronted with the above situation, is not in a position to dispute the submissions advanced on behalf of the appellants in the light of the available oral as also the documentary evidences adduced on behalf of the appellants.

Considering the submissions of the parties, it would appear that it is not in dispute that the order granting the probate of the Will has been allowed considering the evidence on behalf of the applicant alone. The evidence on behalf of the intervenors were not at all considered as the court granting the probate has specifically recorded in paragraph 5 of the order under appeal that "The intervenors have not produced any evidence in support of their case and as such they have failed to establish the case that they have brought against the petitioner".

Since it is not in dispute that the evidence of the intervenors were not considered and the application for probate was allowed, in such situation, the order under appeal allowing the probate of the Will in question cannot be sustained in law. Accordingly, the order dated 15th of January, 2011 allowing the probate case is hereby set aside and the matter is remitted back to the court below for passing the order afresh, in accordance with law, after considering the evidence of both parties available on the record.

In the result, the appeal is allowed. No costs. Let the lower court records be sent down to the court below without delay.