TEST SUIT No.6 OF 1995 In the matter of an application Under Section 273 & 276 of the Indian Succession Act for the Grant of Probate of the Will Dated 19.05.1972 of Late Rajo Singh RAMABATAR SINGH @ GANESH SHANKAR------------------------------------(Plaintiff) Versus SHIYA SHARAN SINGH----------------------------------------------(Defendant) For The Petitioner :LAXMI NARAYAN DAS For The Respondent :BIRENDRA KUMAR P R E S E N T THE HON'BLE MR. JUSTICE SUBASH CHANDRA JHA S.C. Jha, J. This application has been filed by Ramabtar Singh @ Ganesh Shankar for grant of probate to the Will executed by late Rajo Singh son of late Joba Singh on 19.05.1972. Heard learned counsel for the applicant/plaintiff. Nobody appear for the defendant Shiya Sharan Singh. From the order dated 31st March, 1995 it would be revealed that caveat filed by Smt. Manorma Devi objecting to the grant of probate of the will of Late Rajo Singh was disposed of as the applicant/plaintiff Ramabtar Singh @ Ganesh Singh had challenged the locus standi of the caveat. Hon’ble Mr. Justice Sachchidanand Jha has rejected the petition of Manorma Devi filed under Section 284 of the Indian Succession - 2 - Act. Thereafter, on 25.08.1995 the caveat filed by Shiya Sharan Singh was disposed of by holding that Shiya Sharan Singh has Caveatable interest in the estate of the deceased testator who was permitted to participate in the proceeding and, thus, it was converted into a suit. Thereafter, Shiya Sharan Singh left the matter. As per averment the testator Late Rajo Singh was a cultivator and land owner. The applicant Ramabtar Singh is his own nephew and sole beneficiary of the property mentioned in the Will. The testator was governed by Mitakshara School of Hindu Law. From the recital of the Will, it would appear that the testator was looked after by the applicant, who had affection for the applicant. The testator was issueless. At the time of executing the Will, his wife Gayatri Devi was alive and was given life interest and after her death, the properties mentioned in the Will was to devolve upon his nephew i.e. applicant. The testator had also appointed the applicant as sole executor. The testator died on 05.06.1974 at his residence at village-Kajur, district-Gaya. The properties are within the jurisdiction of this court. At the time of filing of this application, the widow of the testator Smt. Gayatri Devi was his only near relative, who was noticed in this case. - 3 - There were three attesting witnesses in the Will. No.-1 namely, Raghunath Prasad Singh who was advocate at Gaya but, he is now dead. No.-2 Dr. Shagir Ahmad, a medical officer posted at that time in the year 1972, near the testator’s village who was acquainted with the testator, but after his transfer, his where about is not known during the long period of more than 35 years. The third attesting witness is Uma Shankar Singh. Initially, inspite of service of notice to the near relative no body appeared and objected and the case was treated as Test Case No. 2 of 1990. During that period two witnesses were examined namely, Uma Shankar Singh and another Ramabtar Singh @ Ganesh Shankar. Subsequently, some attempts were made by different persons who tried to object the grant of probate. But they were not allowed to enter caveat or to object the grant of probate and subsequently, one caveat filed by Shiya Sharan Singh was allowed and he filed his objection in the case. After contesting for some time, Shiya Sharan Singh also left the matter. Shiya Sharan Singh was also directed to appear and disclose as to whether he wanted to contest the suit. But, thereafter, neither the said objector Shiya Sharan Singh came to the court nor his lawyer. In this way the probate application is required to be decided on the basis of material and evidence adduced by the - 4 - applicant as per the requirement of law. So, in the facts and circumstances, it is to be seen as to whether the applicant has been able to prove the execution, attestation of the Will of the testator in his proper mind and health after understanding the contents of the Will voluntarily. A.W. 1 is Uma Shankar Singh was an attesting witness to the Will and A.W. 2 is the applicant himself. Uma Shankar Singh has stated here that he knew the testator from his childhood who had no issue. He has knowledge that the Will has been executed in favour of the applicant. He also remembered that the testator executed the Will on 19.05.1972. He has attested the thumb impression of the testator. He also named attesting witnesses namely, Raghunath Prasad Singh and Dr. Shagir Ahmad. He has further stated that testator in his presence put thumb impression upon the Will and the attesting witnesses had put their signatures in his favour. He identifies the will in court. Will is ext.- 1. He has further stated that contents of the will were read over and explained to Rajo Singh by the attesting witness Raghunath Prasad Singh, advocate in Hindi and on only after understanding the contents of the Will the testator put his thumb impression on the Will. - 5 - Then, the testator requested all the three attesting witnesses to sign as attesting witness and all of them have singed in presence of the testator. He proved all the thumb impression of the testator on all the three pages of the Will which are marked as Exhibit-2, 2A and 2B. The signatures of attesting witnesses were proved and marked as Exhibit-3, 3A and 3B. The applicant is witness No. 2, has stated that the testator was issueless and died on 05.06.1974 leaving behind his widow at that time. He has also identified thumb impression of the testator as well as signatures of all the three attesting witnesses, besides supporting the fact that the testator was in sound state of health and mind at the time when Will was executed voluntarily by him. The testator was governed by Mitakshara School of Hindu Law and was a permanent resident of village-Kajur, district-Gaya. He has further stated that he had performed cremation, funeral and Shradh etc. of the testator after his death and that it was last Will of the testator. It was desire of the testator that after death of his wife Gayatri Devi his properties should remain in his family because neither he nor his brothers had any issue. From aforesaid facts and perusal of Exhibits-1, 2 and 3 series it would appear that applicant has been able to prove the execution of the Will successfully as - 6 - provided under relevant provisions of the Indian Succession Act. He has also stated about mental and physical soundness of the testator at the time when will was executed so as to infer that it was executed out of free Will without any undue influence, coercion, threat, etc. from any corner after making provision for his widow. In the result, probate of the Will dated 19.05.1972 executed by Late Rajo Singh be granted in favour of the applicant Ramabtar Singh @ Ganesh Shankar and accordingly disposed of. Patna High Court Dated 18th Sept., 2008 Sanjeet/N.A.F.R. (Subash Chandra Jha, J.)