TESTAMENTARY SUIT No.1 OF 2008 ---- In the matter of an application under Section 278 of the Indian Succession Act for grant of Letter of Administration to the will of Late Ramkali Devi wife of Late Kamta Prasad Jaiswal. ---- SMT.VIDYAWATI DEVI, wife of Sri Ramanand Jaiswal, Resident of Mohalla Lodikatra, P.S.Khaje Kalan Patna City, Patna 800008------------------Applicant Versus NEERAJ KUMAR------------------------------Defendant For the Applicant :MR.SHASHI BHUSHAN PRASAD,Advocate For the Defendant : None P R E S E N T HON'BLE MR. JUSTICE RAMESH KUMAR DATTA R.K.Datta,J. This is an application for grant of Letter of Administration in respect of the will dated 2nd January, 2004 of late Ramkali Devi, widow of late Kamta Prasad Jaiswal, resident of Mohalla Jairam Bazar, Khagaul, Police Station and Post Office Khagaul, District Patna with her present address on the day of execution of the will being Mohalla Lodikatra, Patna City, P.S.Khaje Kalan, Post Office Patna City, Patna- 800008, District Patna. The application has been filed by Smt. Vidyawati Devi, who is the Mameri sister of the testatrix on the ground that she is the sole beneficiary under the will and, thus, she has the right to be granted Letter of Administration with a copy of the will annexed. 2 2. It is the case of the plaintiff that the testatrix Smt. Ramkali Devi purchased a house on 26.2.1991 from Bibi Sabra Khanam from her own stridhan at Mohalla Lodikatra, Patna City which was in front of the house of the plaintiff and after the purchase she came in possession over the same and started living in it along with her husband. Her name was also entered in the Municipal records. On 11.1.1995 her husband Kamta Prasad died and after his death the plaintiff and her family members started looking after Ramkali Devi. After some time Ramkali Devi started living in the house of the plaintiff. 3. It is the further case that being pleased with the services rendered by the plaintiff, her husband and sons the said Ramkali Devi executed a will on 2.1.2004 in the presence of as many as five witnesses in which she left behind her said stridhan property in favour of the plaintiff. Thereafter Ramkali Devi died on 27.3.2004 in the house of the plaintiff and was cremated by her son Suresh Kumar Jaiswal and shradh, etc. were also performed by the plaintiff’s family members. 3 4. It is the further case of the plaintiff that the original sale deed of the house was taken away by Neeraj Kumar who is the son of the Bhaisur of Ramkali Devi on false pretext. 5. In the application grandsons of the husband’s brother of the testatrix were mentioned as near relatives, namely, Suresh Kumar Jaiswal, Neeraj Kumar and Sri Arun Kumar. On notice all appeared and filed their caveat and objection petition. Thereafter the case which was originally Test Case No. 6 of 2006 was converted into Test Suit No.1 of 2008. On a consideration of the pleadings of the parties this Court directed the following issue to be framed : Whether the will executed by Smt.Ramkali Devi was in accordance with law and should be probated. The defendants, however, did not appear either for cross-examining the witnesses of the plaintiff nor did they come forward to examine their witnesses despite the matter being adjourned by this Court for the said purpose. 6. The plaintiff has examined as many as five witnesses in support of the case. P.W.1 is the plaintiff herself. She has in her evidence supported her own case. P.W.2 Munilal Sah and 4 P.W.3 Uday Shankar are two of the attesting witnesses. P.W.2 has proved the signature (Ext.1) of the testatrix on the will stating that she had signed on the will in his presence. He has also proved his own signature (Ext.2) as also the entire will (Ext.3). He has further stated that the will was typed by one Mohan Prasad who had typed the same in his presence. He has also stated that Ramkali Devi had signed on the will and gave her impressions of fingers after reading and understanding the same. He has also supported the statements made in the plaint. 7. P.W.3 Uday Shankar, the other attesting witness, has also stated that the will was executed by the testatrix in his presence and he had signed on the will as a witness. He has proved his signature (Ext.4). He has also stated that the testatrix had signed and put impressions of her fingers in his presence and on her saying so he had signed as a witness. He has also supported the other part of the case of the plaintiff. 8. P.W.4 Manoj Kumar Chaudhary has also supported the general case of the plaintiff. P.W.5 Ramanand Jaiswal is the husband of the 5 plaintiff. He has stated regarding the house having been purchased by late Ramkali Devi in front of his house at Lodikatra from Bibi Sabra Khanam in the yer 1991. He has further stated that there was an agreement for sale (Ext.8) on 21.10.1990 and proved the signatures of Sabra Khanam and the witnesses over the same. He has also produced the certified copy of the sale deed (Ext.9) which had been obtained from the Collectorate and according to him the original sale deed was taken away by the grandson of the Bhaisur of Ramkali Devi fraudulently. He has also produced the death certificate (Ext.10) of Kamta Prasad, husband of Ramkali Devi who died in 1995. He has also produced the death certificate (Ext.11) of Ramkali Devi. He has stated that receipts were issued by the Municipal Corporation in the name of Ramkali Devi and has proved ten Municipal receipts. He has further stated that the defendant Neeraj Kumar had fraudulently got his name mutated in the records of the Patna Municipal Corporation against which his wife (plaintiff) filed an appeal which was allowed after setting aside the order of the Executive Officer. The certified copy of the appeal order is marked 6 Ext.13. He has also stated that after the favourable order passed in appeal the name of the plaintiff was mutated in the Municipal records and receipts were also issued and he has proved the Municipal receipt as Ext.14. He has also produced prescriptions of two of the Doctors to show that Ramkali Devi was being treated at his instance. He has also produced seven photographs (Exts. 17 to 17/F) with respect to the death, cremation and last rites of Ramkali Devi. 9. As stated above, the defendant has not come forward with any evidence in support of his objection, but stopped taking interest in the case when the matter came up at the stage of trial. 10. On a proper consideration of the evidence brought on the record on behalf of the plaintiff it is evident that the plaintiff has produced two of the attesting witnesses to prove the signature of the testatrix on the will as also their own signatures. The attesting witnesses have further stated that the testatrix had signed in their presence and had also put her finger impressions on the will in their presence. 7 11. Learned counsel for the plaintiff has sought to emphasize the fact that the deed of will has been executed in the presence of Smt.Pramila Agrawal, Notary Public who has duly certified the same at the back of the first page of the will apart from putting her seal and signature on each page of the will. Learned counsel, however, was unable to point out any provision of law as to how the same is relevant in any manner in proving of the authenticity of the will. However, according to me, the plaintiff has succeeded in proving the genuineness of the will by producing two of the attesting witnesses. They have also been able to show that the testatrix being the first cousin (Fuferi sister) of the plaintiff and her next door neighbour was being looked after by the plaintiff, her husband and sons specially after the death of her husband in 1995 and thereafter she had started living with the plaintiff and her family members. The said facts have not been controverted by the defendant by producing any evidence to the contrary. All these go to show that the testatrix, being issueless and a widow, would 8 be naturally inclined to will away her property in favour of the plaintiff. 12. Thus, in the light of the aforesaid discussions, I am of the view that the will dated 2.1.2004 is genuine. Since no one has been mentioned as an executor in the will the plaintiff would be entitled to grant of Letter of Administration with a copy of the will dated 2.1.2004 annexed in her favour. Let the same be, accordingly, issued. 13. The suit is accordingly disposed of. (Ramesh Kumar Datta,J.) PATNA HIGH COURT 7th day of May, 2010 Spal/ N.A.F.R.