IN THE HIGH COURT OF JUDICATURE AT PATNA Test Case No.8 of 2008 In the matter of an application under section 276 of the India Succession Act, 1925 for grant of Probate. ======================================================== In The Goods Of Late Prayag Lal Sao @ Prayag Sao, son of Late Lachhu Sao, resident of Bankarpur Bank, P.S. Sheikhpura, District- Sheikhpura. 1. Ashok Kumar Shaw, 2. Basudeo Prasad Sao 3. Umesh Sao 4. Sudhir Kumar All sons of Late Prayag Sao, resident of Bank Gangati, P.S.- Sheikhpura, District- Sheikhpura ………….. ………… Applicants ======================================================== For the Applicants : M/s Laxmi Narayan Das, Naresh Prasad and Deepak Sahay Jamuar, Adv. ======================================================== P R E S E N T HON’BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh,J.: Applicant has filed this application under section 276 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”) for grant of Probate in respect of the Will executed by his father Late Prayag Lal Sao @ Prayag Sao (Testator). In the application, it is stated that the Testator was a Hindu governed by the Mitakshara School of Hindu Law and was permanent resident of village Bankarpur Bank, P.S. and District- Sheikhpura, within the jurisdiction of this Court. It is stated that the Testator died on 30.6.1986 at 5.00 P.M. at his permanent residence at Sheikhpura. It is stated that before his death, considering his advance age and while he was in sound health, body and mind, he decided to execute a Will. Accordingly, he executed the Will on 28.5.1986 and got the same attested by three witnesses in his presence. Copy of the Will has - 2 - been attached with the petition. 2. It is also stated in the application that the Testator left behind his widow, four sons and five daughters, as named in paragraph 6 of the application. In the Will, all his four sons were appointed as Executors. List of immoveable assets and schedule of debts (Funeral Expenses) have been annexed with the application as Annexures- A and B respectively. It has been specifically stated that the Will was the last Will of the Testator and it was duly executed. In the application the details of the desire of the Testator in respect of mode and manner of administration of his Estate have been narrated. It is stated that the Testator himself had got the Will attested by three witnesses, namely, Naresh Sharma, Shanti Devi and Heera Lal. 3. The applicant filed a supplementary affidavit on 24.10.2008 stating that he had earlier filed Test Case No.7 of 2008 for grant of probate of the present Will, but there were several defects in the said application and therefore, he withdrew the said application on 7.8.2008 with liberty to file fresh application. Accordingly, the present application has been filed on 21.8.2008. 4. Probate Duty of Rs.16,800/- was deposited by the applicant on 15.4.2009 through challan. Thereafter, by order of the Court dated 10.7.2009, general citation in two newspapers, namely, Patna editions of “The Times of India” and Hindi Daily “Aaj” were published on 12.8.2009 and 11.8.2009 respectively. Special citations - 3 - were also issued to the Near Relatives on 4.12.2009. Applicant thereafter filed Examination-in-Chief of three witnesses on affidavit. 5. Two attesting witnesses, namely, Naresh Sharma and Heera Lal were examined as A.W.1 and A.W.2 respectively on 5.2.2010. Applicant Ashok Kumar Saw was examined as A.W.3 on 19.2.2010. 6. In view of the defect pointed out by the office in the application, the applicant filed an amendment application on 3.2.2011, stating therein that other three sons of the Testator are beneficiaries and are named executors also in the Will. It was stated that they have been made Near Relatives and they have appeared and filed no objection. However, since all the sons of the Testator have been made Executors, applicant prayed for amendment in the main application by adding them as applicant nos.2, 3 and 4. The said prayer was allowed by the Court on 11.2.2011. 7. As stated earlier, list of assets and schedule of funeral expenses are annexed with the application as Annexures-A and B respectively and it is stated that the applicants have been appointed Executors of the Will. It is also stated that the deceased died while living at his permanent residence at Sheikhpura within the jurisdiction of this Court. It is stated that the original Will is being filed in the Court separately in a sealed cover. In the circumstances, this Court finds that the application filed by the applicants under section 276 of the Act is in accordance with the requirements of law. - 4 - 8. Inspite of publication of general citation in newspapers and service of special citation of the Near Relatives, no one has appeared and filed caveat with affidavit to contest the prayer of the applicants. 9. Applicant No.1 was examined as A.W.3. He stated that the Will was executed by the Testator, which was duly attested by Sri Naresh Sharma, Smt. Shanti Devi and Sri Heera Lal. He stated that the properties mentioned in the Will have been given to all his brothers, sisters and mother. He stated that he has been appointed as one of the Executors of the Will. This witness was not cross-examined as the three other brothers of the applicant, who had appeared in the case earlier stand transposed in the category of co- applicants. 10. Naresh Sharma (A.W.1) is the attesting witness. On the direction of the Court, Will was taken out from sealed cover in his presence. This witness did not remember as to who had typed the Will. In his statement on oath, he identified the signature of the Testator on the Will. He admitted that he put his signature on the second page of the Will on the request of the Testator. At that time, Shanti Devi and Hira Lal were also present there. This witness stated that the Testator was in good mental and physical condition on the date when he had executed the Will. 11. Heera Lal (A.W.2) is another attesting witness. In his statement on oath, he has stated that the Testator was his neighbour. Will was executed by the Testator on 28.5.1986 in his presence. At that time, - 5 - wife of the Testator Shanti Devi and another attesting witness Naresh Sharma (A.W.1) were also present. Both of them also put their signature on the second page of the Will. He also put his signature on the second page of the Will which was marked as Ext.-3. Signatures of Testator, Naresh Sharma (A.W.1) and Shanti Devi on the Will were marked as Exts.-1, 2 and 4. This witness stated that the Will was typed by one Sukhdeo Giri. The Will was marked as Ext.-5. He stated that at the time of execution of the Will, the Testator was in a fit state of mind and was also physically fit. 12. The applicants refused to produce any other witness. The other Near Relatives also have not filed any caveat or affidavit in opposition with a view to contest the prayer of the applicants. Therefore, evidence in the case was closed and the matter was fixed for hearing. 13. In view of the evidence of the witnesses, this Court has perused the original Will of the Testator. This Court finds that the Will is typed one on two pages. The Testator has executed the Will and put his full signature in Hindi at the bottom of the Will on the last page. This Court also finds that the three attesting witnesses have signed the Will on the second page of the Will as witnesses. The witnesses have identified the signature of the Testator on the Will as well as their own signatures which have been marked as Exhibits. Thus, this Court finds that the Will conforms to the requirement of section 263 of the Act. 14. The witnesses have stated that the Will is - 6 - the last Will of the Testator duly executed by him. They have also stated that the Testator was in a sound state of mind and body at the time of execution of the Will. This Court further finds that there is nothing on record to show that this Will was not the last document executed by the Testator for management of his Estate, and in the Will, the Testator has taken appropriate care of the Near Relatives and has appointed his all four sons, the applicants, as Executors of the Will in respect of his property. 15. In the circumstances, this Court is satisfied that the Will is genuine and contains last wishes of the Testator, duly executed by him in full consciousness and in a sound state of mind and body and duly attested by the witnesses and it satisfies the requirements of law. 16. As a result, this application is allowed. Let a probate be issued in favour of all the four applicants in respect of the Will. (Jayanandan Singh,J.) Patna High Court, The 12th August, 2011 N.A.F.R./Pradeep