APPEAL FROM ORIGINAL DECREE No.26 OF 1998 ----------- AGAINST THE ORDER AND JUDGMENT DATED 22.9.1997 PASSED BY SRI BIPIN DUTTA PATHAK, 2nd ADDITIONAL DISTRICT JUDGE, AURANGABAD IN PROBATE CASE NO. 3 OF 1986/ 2 OF 1993. ----------- PANCHAM SINGH--------------------------------------------------------Appellant. Versus AM JANATA---------------------------------------------------------------Respondent. ----------- For the Appellant: Mr. Bhanu Pratap Singh, Advocate. For the Respondent: None. ----------- P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan,J. This appeal arises out of the judgment dated 22.9.1997 passed by 2nd Additional District Judge, Aurangabad in Probate Case No. 3 of 1986 / 2 of 1993 by which the court has rejected the application of the applicant to grant probate of a Will dated 1.8.1983 executed in favour of the applicant by one Hari Bansh Kuer wife of Ramjatan Singh of village- Baruna. The case of the appellant is that Hari Bansh Kuer executed a deed of will in his favour on 1.8.1983, out of love and affection as the appellant had taken care of her. She has transferred all her lands in favour of the appellant. It has further been stated by the appellant that the executant was an agnate and the relationship was that she was the grand- mother of the appellant. Since the applicant had not impleaded any one as an objector in this case, the court had ordered that a general notice be 2 issued to the public at large regarding the case. The order dated 1.6.1995 reveals that a notice was given to the general public by a beat of drum and thereafter the case was fixed for ex-parte hearing. The only issue to be decided in this case whether the appellant is entitled to get the benefits of the Will dated 1.8.1983 ? On behalf of the appellant, three witnesses have been examined to prove his case. P.W.1 is the appellant himself who supports his case and states that the executant was an agnate and was his grand -mother. It has been stated by the appellant that she died in the year 1985 and after that property has come in his possession. The appellant has also deposed that apart from the appellant there is no other person who is entitled to receive a share in her property. To prove the document, the appellant has examined P.W. 2 who is the deed writer of the Will in question. P.W.2 supports the fact that he has written the document and also proved the Will. P.W.3 Lakhan Singh is the witness to the Will. P.W.3 supports the case of the appellant and proves his own signature on the Will. After perusing the findings, I find there is no reason for disbelieving the evidence led on behalf of the appellant and in fact the court below has not disbelieved the evidence of the appellant at all but has rejected the application for grant probate on three grounds which according to me are very unreasonable. The first ground for rejecting the claim of the appellant is 3 that according to the court below, the Will did not disclose whether the executant had any heirs. It is quite clear from the evidence led on behalf of the parties that the executant did not have heir and in fact no body came forward to make a claim with respect to the property belonging to the appellant. As such, this reason given by the court below is untenable. The second ground for rejecting the case of the appellant is that the court has observed that Ramdeo Singh, the process server was the person responsible for informing the general public by the beat of drum, has not been examined to prove service of notice. I do not understand why the court should disbelieve his own records. By the order dated 1.6.1995, the court has recorded that the notice was served by a beat of drum and the record shows that such steps were taken for service of notice, and as such, the reasoning of the court below is defective. Moreover, if the court had any doubt while hearing the matter the court could have summoned Ramdeo Singh and examined him as a court witness. The third reason for rejecting the claim of the appellant by the court below is that the appellant had not made his brothers party in the lower court. The appellant has specifically pleaded and testified that Hari Bansh Kuer had no heirs, and has stated that the executant was his grand mother and she has executed the Will because he used to look after her. The brothers of the appellant live in the same village and they would have made a claim or appeared during the hearing of 4 the case if they had some stake in the property. There is another aspect to this case. Admittedly, the appellant has been in possession of the property belonging to Hari Bansh Kuer since the year 1985 to the knowledge of all concerned and if anyone had an objection certainly they would come forward and objected to his possession, however, in this case no body has come forward to object to the possession of the appellant, and as such, that the court below has erred in coming to the conclusion that the petitioner is not entitled to grant probate of the Will on the ground that he has not come with clean hands. For the reasons mentioned aforesaid, the order and judgment dated 22.9.1997 passed in Probate Case No. 3 of 1986 / 2 of 1993 is set aside and this appeal is allowed. PATNA HIGH COURT DATED, 4TH AUGUST,2008. N.A.F.R./U.K./SECRETAR Y (Sheema Ali Khan,J)