Letters Patent Appeal No.1039 of 2000 ----- Against the judgment and order dated 30 .6.2000 passed by a learned Single Judge of this Court in Test Suit No.01 of 1995. ------- SMT.GAYATRI AGRAWAL---------------------Appellant Versus SATISH CHANDRA AGRAWAL & ORS-----------Respondents ------ For the Appellant: M/s Shivajee Pandey,Sr.Advocate & Manoj Kumar Sinha,Advocate For the Respondents: M/s Y.V.Giri,Sr.Advocate, Mahesh Narain Parbat,Ved Praksh Srivastava & Prav- een Prabhakar,Advocates. P R E S E N T THE HON’BLE MR.JUSTICE BARIN GHOSH THE HON'BLE MR.JUSTICE JAYANANDAN SINGH Barin Ghosh & J.N.Singh, JJ.: The appellant, who is a daughter-in- law of the testator, applied for grant of letters of administration to the last Will and the testament said to be of the testator and said to have been executed on 20th July, 1990. Upon caveat having been filed by two of the sons of the testator, the application was converted into a testamentary suit and the same having been dismissed by the judgment and order under appeal, the applicant for grant is before us in the present appeal in her capacity as appellant. - 2 - 2. In the application, the case of the appellant was that the testator had three sons, two of whom were residing outside Patna and the testator did not have cordial relationship with them. It was contended that the said two sons did not provide for the testator, nor did they look after him and on the contrary she and her husband, the third son of the testator, were serving the testator until his death. It was thus instituted that the same was the reason for disinheriting the said two sons. 3. At the trial letters written by the testator during his life time to his other two sons and daughters were proved and exhibited without objection. These letters were written between 1988 and July, 1990. Whereas the alleged Will is dated 20th July, 1990, the last of such letter is dated 10th July 1990. This letter revealed that one of the sons, who was living apart, used to send money to the testator and that the appellant and her husband were not helping him in his old days. The letter of the testator dated 22nd April, 1988 revealed that a day earlier the husband of the appellant had - 3 - assaulted the testator causing injuries on different parts of his body. The letter dated 4th of January, 1990 written by the testator shows that the husband of the appellant had broken his briefcase and mirror. By that letter a request was made to one of those two sons of the testator to send another briefcase. The letter revealed that the wife of the testator, who was then suffering, was being provided by one of the sons of the testator, who was living apart, for her treatment. Letter dated 11th November, 1989 shows that the husband of the appellant assaulted and misbehaved with the testator. 4. These letters demolished the case of the appellant that the testator was not keeping good relationship with his two other sons. On the other hand, the letters indicate that the testator did not have good relationship with the husband of the appellant. In the circumstances, the appellant failed to establish that the Will in question was executed by the testator, while having disposable capacity. 5. The records of the case show that the testator filed a suit registered as Title Suit No.94 of 1990 before the Munsif, Patna City - 4 - against his two sons, who were living apart. This suit was instituted prior to the execution of the Will and was dismissed for default subsequent to the death of the testator. Plaint filed in the said suit was exhibited for the purpose of comparing the signature of the testator appearing on the plaint with the signature of the testator appearing on the Will. The experts, who deposed on behalf of the appellant, deposed that the said signature tallies with the signature on the Will. The records of the said suit depict that summons in the said suit had not been issued and served upon the defendants. The experts, who deposed on behalf of the appellant, did not compare the signature of the testator appearing on the Will with the handwriting of the testator on the letters of the testator as were exhibited without objection. The husband of the appellant is an Advocate practicing in the Civil Court, where the said suit was filed. The caveators disputed filing of the said suit by the testator. On the other hand, the experts, who deposed on behalf of the caveators, in no uncertain terms reported that the signature of - 5 - the testator as appearing on the said plaint does not tally with his handwritings appearing on the exhibited letters. 6. Lastly, the Will contained three signatures apart from the signatures of the testator. The first signatory, who claimed to be an attesting witness, deposed that he does not know whether the third signatory, the typist, had put his signature on the Will. The third signatory, namely the typist, deposed that he signed the Will in presence of two attesting witnesses. According to the first signatory, the testator first signed and later on the testator had put his left thumb impression, whereas according to the second signatory, again an attesting witness, the testator had put his left thumb impression first and thereafter he signed. The third signatory, on the other hand, said that the testator did not sign the Will, he only put his left thumb impression. 7. That being the state of pleadings and evidence, the learned Single Judge upon noting the judgment of the Hon’ble Supreme Court rendered in the case of Guro vs. Atma Singh, reported in (1992)2 S.C.C. 507, refused to grant - 6 - letters of administration as was applied for by the appellant. 8. We have heard the submissions made on behalf of the learned counsel for the appellant, who submitted that though there were some discrepancy in the oral evidence of the witnesses, but having regard to the fact that such evidence was recorded several years after the incident, those discrepancies were of no serious consequence and as such the Court should have ignored the same. Learned counsel further submitted that as the son of the testator, being the husband of the appellant, the appellant and her family were living with the testator until his death, and as admittedly his two other sons, who were well settled, were living apart, there was nothing unsual for the testator in gifting his only house to the wife of the son with whom he was living. 9. Considering the fact that his two other sons are well off, it was possible for the testator to gift his only house at patna to his other son and his family, who were residing with him. However, that was not the case of the appellant. On the contrary she contended that - 7 - there was strained relationship between the father and two sons, who were living apart, on the one hand and love and affection between the father and the son, who was living with him, on the other hand. Such contention having been demolished on evidence, it was obligatory on the part of the appellant to establish execution of the Will by the testator without leaving any doubt in order to remove suspicion created by the appellant herself. This could be done by establishing that the left thumb impression as appearing on the Will is that of the testator. No attempt was made to do so. No attempt was made by the appellant to bring on record any other thumb impression of the testator. Despite accepting and acknowledging that the letters produced by the caveators were hand written by the testator, no attempt was made to compare such handwriting with the writing on the Will purporting to be the signature of the testator. In such a situation, when one of the three witnesses, who were allegedly present at the time of execution of the Will by the testator, said that the testator had only put his left thumb impression and no signature at all, and - 8 - one of the other two witnesses said that the testator had put his left thumb impression first and then his signature and the last one said that the testator had put his signature first and then his left thumb impression, such statements become significant. 10. The reasons given for not allowing the application of the appellant being sound and based on principles of law acceptable by this Court, we refuse to entertain the appeal and dismiss the same. ( Barin Ghosh, J. ) ( Jayanandan Singh,J.) Patna High Court Dated the 30th June, 2008 A.H./N A F R