TEST SUIT No.2 OF 2004 1. SMT. NALINI MISHRA, WIFE OF LATE SHAILENDRA KUMAR MISHRA, RESIDENT OF LAGANMANI BHAWAN, MOHALLA LALBAGH, KUNKUN SINGH LANE, POLICE STATION PIRBAHORE, DISTRICT PATNA 2. HRIDESH PANCHAM, SON OF LATE SHAILENDRA KUMAR MISHRA, RESIDENT OF LAGANMANI BHAWAN, MOHALLA LALBAGH, KUNKUN SINGH LANE, POLICE STATION PIRBAHORE, DISTRICT PATNA 3. AJITESH NALIN, SON OF LATE SHAILENDRA KUMAR MISHRA, RESIDENT OF LAGANMANI BHAWAN, MOHALLA LALBAGH, KUNKUN SINGH LANE, POLICE STATION PIRBAHORE, DISTRICT PATNA 4. CHANDRA MADHAV MISHRA, SON OF LATE NAWAL KISHORE MISHRA, RESIDENT OF LAGANMANI BHAWAN, MOHALLA LALBAGH, KUNKUN SINGH LANE, POLICE STATION PIRBAHORE, DISTRICT PATNA 5. HEMENDRA KUMAR, SON OF LATE NAWAL KISHORE MISHRA, RESIDENT OF LAGANMANI BHAWAN, MOHALLA LALBAGH, KUNKUN SINGH LANE, POLICE STATION PIRBAHORE, DISTRICT PATNA 6. SMT. MANJULA MISHRA, DAUGHTER OF LATE NAWAL KISHORE MISHRA, RESIDENT OF LAGANMANI BHAWAN, MOHALLA LALBAGH, KUNKUN SINGH LANE, POLICE STATION PIRBAHORE, DISTRICT PATNA ………………………………………………………………………….PLAINTIFFS VERSUS BRAJ KISHORE MISHRA, SON OF LATE BHOLA NATH MISHRA, RESIDENT OF MOHALLA LALBAGH, KUNKUN SINGH LANE, POLICE STATION PIRBAHORE, DISTRICT PATNA ……………………………..DEFENDANT ******************* FOR THE PLAINTIFFS : MR. L. N. DAS, ADVOCATE MR. DHIRENDRA NR.MALLIK, ADVOCATE FOR THE DEFENDANT : MR. MADAN PRASAD SINGH, ADVOCATE MR. RATNESHWAR PRASAD, ADVOCATE ************ P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J Test case No. 6 of 2003 was filed for issuance of letter of administration with respect to a Will executed on 17.3.1936 by one Akshaybat Mishra. The Test Suit was converted into Test Suit No. 2 of 2004. The suit was filed stating therein that late Akshaybat Mishra executed his last Will and testament in 2 his own handwriting dated 17.3.1936 at his residence Laganmani Bhawan, Lal Bagh, Kunkun Singh Lane, Patna in presence of his late wife Laganmani Kuer, his relatives and attesting witnesses namely late Kulwant Sahay, retired judge of the Patna High Court who was at that time residing at Naya Tola, Patna and late H.N. Choubey, Principal, Government Ayurvedic College, Patna. Late Laganmani Kuer appended her signature over the Will and thereafter two other witnesses namely late Mahendra Prasad, Assistant Surgeon and late Anand Prasad, Advocate of the Patna High Court appended their signatures over the Will on 18.3.1936. The Will was presented for registration at Buxar Sub Registry Office, Ara on 29.5.1936 and was registered on 2.6.1936. In the said application filed before this Court, it is said that late Akshaybat Mishra, son of Pandit Rajeshwar Mishra was a resident of Rajdhani Dumraon, P.S. Dumraon, district Sahabad and permanently resided at Laganmani Bhawan, Mohalla Lal Bagh, Kunkun Singh Lane, district Patna. He died in October, 1939 at Patna and was cremated in Patna as well. It is asserted that Late Nawal Kishore Mishra, the father of the petitioners, who had claimed probate of the Will performed the last rites and Shradh of the testator Akshaybat Mishra. The heirs of the deceased have been described at paragraph 6. The property in question is said to be the exclusive property of late Akshaybat Mishra 3 which was purchased in the Benami name of his wife Laganmani Kuer. Akshaybat Mishra constructed the double-storied house and paid the municipal taxes, revenue etc. in his own name till his death. Akshaybat Mishra had bequeathed the property i.e. the land and the double-storied house in favour of his eldest grand son (Nati) Nawal Kishore Mishra. Late Akshaybat Mishra died after execution of the Will dated 17.3.1936 which was registered on 2.6.1936 in favour of his grand son Nawal Kishore Mishra. Nawal Kishore Mishra came in possession of the property and after the death of Nawal Kishore Mishra, the petitioners and their legal heirs are continuing in possession of the same. It has been stated that at the time of execution of the Will, the testator was of sound mind and had voluntarily executed the Will in presence of two witnesses and the Will was witnessed by three others. The case of the petitioners/plaintiffs is that the Will was executed by late Akshaybat Mishra in favour of his eldest grandson Nawal Kishore Mishra with a stipulation that till he attained majority, the property would be looked after by late Bhola Nath Mishra, son-in-law of the executor and husband of his daughter Madalsa Devi. Thus, Nawal Kishore Mishra as per the terms of the Will had absolute right, title and interest over the property since he attained the age of 22 years on 11.11.1945. The name of Nawal Kishore Mishra was also recorded in the revenue records 4 in the year 1952 and in the records of the Patna Municipal Corporation. It is relevant to mention here that the plaintiffs specific case is that petitioner/plaintiff no. 2 Chandra Madhav Mishra took a loan of Rs. 15,000/- from the State Bank of India, Kankarbagh, Patna to establish small scale industries for which Nawal Kishore Mishra became the guarantor and in security whereof he mortgaged the said Will in the said Bank. In the mean time, Nawal Kishore Mishra died and the Bank was not ready to handover the original Will till the succession certificate from the competent Court was produced before the Bank. The refusal of the Bank to handover the Will has been annexed as Annexure-3. It appears from this document that the Will was pledged to the Bank on 13.9.1981. The loan was cleared in the year 1987 and an application was made thereafter for release of the document. After the death of Nawal Kishore Mishra, his son who is one of the plaintiffs here, was recorded in the revenue records of the Patna Municipal Corporation and was paying rent to the Patna Municipal Corporation. The rent receipts are Annexure 3, 4 and 5 to the application filed before this Court. The occasion to file this case arose when the uncle of the petitioners Braj Kishore Mishra filed a Title Partition Suit No. 262 of 2003 on 25.6.2003 claiming right, title and interest over the said property. Until 2003 the 5 plaintiffs have remained in peaceful possession of the said property and none of the family members raised any objection with respect to the title and possession. Infact the others heirs i.e. the brothers of the objector (uncle of the plaintiffs) have not raised any objection with respect to the title or possession of the plaintiffs-applicants. The plaintiffs stated that they tried to procure the death certificate of late Akshaybat Mishra from the Corporation as well as from the Patna College under the Patna University where late Mishra taught as a Professor of Sanskrit, but the certificate was not available. It is specifically pleaded that the Will was executed in the presence of Smt. Prabhawati Devi who is the niece of Akshaybat Mishra. The attesting witnesses died and their sons are dead and apart from Smt. Prabhawati Devi, there is no other witness who can testify with respect to the Will. On the basis of the aforesaid application filed under Sections 276 and 278 of the Indian Succession Act, notices were issued to the heirs mentioned at paragraph 6 of the petition. Ultimately, on 6.7.2004 a general citation was issued by the Court and objection was filed on 4.10.2004 by a caveator Braj Kishore Mishra. The case of the caveator is that this case is not maintainable. The deponent has described himself as one of the sons of late Madalsa Devi and claims that he is 6 entitled to a share of the estate of late Akshaybat Mishra in accordance with the Hindu Law of Succession and inheritance. It is further stated that notices should be issued to the propounders of the alleged Will. The caveator/defendant claims that Akshaybat Mishra did not live in his residence at Dumraon and actually Smt. Laganmani Kuer his wife was residing at Dumraon at the time of her death. The caveator accepts that he has filed a suit for partition as he is entitled to a share in the estate of late Akshaybat Mishra. The caveator/defendant claims that Smt. Laganmani Kuer had executed a sale deed for the southern portion of the property in question measuring 1½ Kathas in favour of Bharosa Rai and claims that he had played an active role in negotiation and finalization of the deed of sale. It is also pleaded that late Nawal Kishore Mishra had executed on behalf of himself and as a guardian of his two minor brothers, namely, Nand Kishore Mishra and the caveator registered acknowledgement or disclaimer deed with the nomenclature “agreement” dated 9.9.1955 in favour of the said purchaser Bharosa Rai in respect of the property which was the subject matter of the sale deed dated 14.6.1955 (Annexure-B) to the objection petition. It is said that Laganmani Kuer died in August 1956. Smt. Madalsa Devi died on 17.8.1962 and it has wrongly been stated by the applicants that she died in 1963. Bhola Nath Mishra is said to have died in the year 7 1951 and it has wrongly been mentioned by the applicants that he died in the year 1946. On the basis of the aforesaid facts, the objection petition was filed. The date of death of Nawal Kishore Mishra is 26.4.1985. It would be relevant at this juncture to quote the order dated 18.1.2005 filed in this suit which was passed while considering the application filed on behalf of the defendant to stay the Test Suit till disposal of the Title Partition Suit No. 262 of 2003 pending before the Sub Judge, Patna. The defendant claims that the Title Suit is pending relating to the question of ownership and title of the deceased over the property in dispute and unless that point is decided, no succession certificate, probate or letters of administration could be issued in favour of the plaintiffs whereas the stand of the plaintiffs was that in the present case, the only relevant question to be decided is that whether the Will was executed by the deceased of his own free will. The Court held as follows: “It is hereby directed that this Court would not decide the question of title of the deceased over the property in dispute. The only question to be decided in this case would be whether the deceased had executed the will of his own free will without any pressure, coercion, duress and whether the will is the last will of the deceased.” A rejoinder was also filed to the caveat application controverting the statements made by the 8 caveator in his objection petition. It is stated that the property in question was the self acquired property of Akshaybat Mishra and the sale deed referred to by the caveator would indicate that the son-in-law of the testator Babu Bhola Nath Mishra was assigned the job of the Manager of the property till the beneficiary of the property i.e. Sri Nawal Kishore Mishra attained majority. Sri Nawal Kishore Mishra attained majority in the year 1945 and thereafter he became the absolute owner of the property and had been enjoying the right, title and interest over the property without any hindrance by virtue of the said Will. It is said that in the Will, there is a provision that after the death of the testator, his wife Laganmani Kuer shall occupy the house and shall use the rent of the house for her own purposes and after her death, the son-in-law of the testator, namely, Babu Bhola Nath Mishra shall manage the property till the eldest son (Nati) of the testator attains majority. It is clearly mentioned that Babu Bhola Nath Mishra would not be entitled to sell, mortgage and operate any charge in respect of the said property. The provisions of the Will would indicate that after the death of the testator and his wife Laganmani Kuer, the daughter of the testator Smt. Madalsa Devi and her son Nawal Kishore Mishra shall come in possession of the property. Annexure-B would in fact indicates that Laganmani Kuer, being owner of the property, executed the sale deed in 9 favour of Bharosa Rai. Finally, it is stated that Laganmani Kuer died in August, 1956 and Babu Bhola Nath Mishra died in the year 1946. The case of the caveator is denied and it has been stated that the caveator and his brothers including Nawal Kishore Mishra separated in metes and bounds long ago and their brother Sri Nawal Kishore Mishra was living at Saharsa. The caveator is living in a rented house at Mithapur near Goria Math at Patna separately with his family members. The plaintiffs are dealing with the property, they have got their name mutated and are collecting rent from the property after the death of the testator. It is mentioned that Chandra Madhav Mishra the petitioner had borrowed Rs. 15,000/- from the State Bank of India, Kankarbagh Branch on 13.9.1989 and Brij Kishore Mishra was made a guarantor in the transaction aforesaid and as such he had full knowledge regarding the fact that the Will had been pledged to the Bank by Nawal Kishore Mishra and as such any objection taken to the Will is at a belated stage. The map and other documents which were also attached with the Will while taking loan have also been annexed to the rejoinder application as Annexure-2. A written statement has also been filed by the defendant/caveator although it is not essential in a case of this nature. Apart from other objections, it has been stated that there has been a delay of 31 years which is 10 unexplained, and as such the plaintiffs are not entitled to the issuance of letters of administration. Issue has been framed in this case after considering the applications filed by both the parties which are as follows: “Whether the will in question is the last will of the testator and was executed in accordance with law in presence of the true witnesses”. Again, by order dated 9.9.2005, this Court disposed of the petition filed by the defendant for recasting the issues framed by order dated 1.4.2005 and the issues were recasted as follows: (a) “ Is the suit maintainable”? (b) “Rather the plaintiffs entitled to issue of either probate or letters of administration”? The witnesses have filed their chief in Court and the cross-examination in this case commenced on 7.4.2006. Before considering the evidence and the arguments advanced on behalf of the parties, it would be relevant to discuss the provisions of the Will as much has been said on behalf of both the parties regarding the said contents. The Will being very old is in a damaged condition but still legible. This Court will refer to the relevant paragraphs and also quote some of the paragraphs which are important in this case. Paragraph 1 11 of the Will indicates that it is the last Will of the testator and it deals with the property and house situated within the Patna Municipality which has been described in detail in the schedule of the Will. Paragraph 2 indicates that the land was purchased in the Benami name of the wife of the testator Smt. Laganmani Kuer for which the testator is paying rent etc. to the State of Bihar. Paragraph 3 indicates that Laganmani Kuer was the owner of the house and she was living in the house. Paragraph 4 states that ge nksuksa vFkkZr eSa vkSj esjh /keZiRuh ds ejus ds ckn esjs nkekn] LoxhZ; (vLi"V) ’khry feJ th ds iq=] Hkkxyiqj egYyk& vkneiqj fuoklh] ckcq HkksykukFk feJ bl ofl;rukesa ds izcU/kd gksaxsA (vLi"V) uhps fy[kh fof/k ls bl tk;nkn dk bartke djsaxsA Paragraph 5 states that esjs vkSj esjh L=h ds ejus ds ckn esjs ukrh (esjh ,d ek= iq=h) (vLi"V) enkylkokph vkSj esjs (QVk gqvk va’k) HkksykukFk feJ ds T;s"B iq= (uoy fd’kksj feJ) (oou ckcq) bl (QVk gqvk va’k) edku ds ekfyd gksaxs vkSj esjs iqoksZfDr (QVk gqvk va’k) esjs ukrh ds fy, bl edku ds ns[kjs[k djsaxsA nkui= ds izcU/k djus (QVk gqvk va’k) esjs nkekn ckcw Hkksyk ukFk (QVk gqvk va’k) dks edku ds cspus ;k btkjk djus ;k (QVk gqvk va’k) fdlh jhfr ls bl edku (QVk gqvk va’k) ysu nsu djus dk vf/kdkj u gksxkA Paragraph 6 indicates that the grandson (Nati) was a minor at the time of preparation of the Will. Paragraph 7 of the Will states that bl olh;rukesa esa eSus iw.kZ ’kkjhfjd vkSj ekufld (QVk gqvk va’k) iwjh lKkurk vkSj izlUurk dh voLFkk esa fcuk fdlh ds dgus ;k vuqfpr (QVk gqvk va’k) Mkyus ls 12 vius bPNkuqlkj fy[kk vkSj bl ij gLrk{kj fd;k gSA eSa ;g (QVk gqvk va’k) djrk gwa fd bl olh;rukek (vLi"V) dks n`<+ j[kw¡xk vkSj ;fn eSa cnywaxk rks uktk;t (QVk gqvk va’k) Thereafter the Will is signed by Akshaybat Mishra describing himself as retired Sanskrit Professor, Patna College. The Will is dated 17.3.1936. The document is in one page, written in Hindi, signed in English and is in the handwriting of Akshaybat Mishra. The said document is also signed by Laganmani Kuer. The signature and writing of Akshaybat Mishra has not been challenged by the caveator. The submission is that signatures of the witnesses have to be duly proved. The genealogical table of the parties is given below: AKSHAYABAT MISHRA = LAGMANI KUER | MADALSA DEVI = BHOLA NATH MISHRA | _______________________________________________________ | | | | | | Nawal Nand Braj Lalita Shyama Manorma Kishore Kishore Kishore Devi Devi Devi Mishra Mishra Mishra | (defendant) _____________________________________________________ | | | | Shailendra Chandra Hemendra Manjula Kumar Madhav Kumar Mishra Mishra Mishra (Plaintiff) (Plaintiff) =Smt. Nalini (Plaintiff) Mishra (Plaintiff) | ------------------------------------------------------------------ | | Hridesh Pancham Ajitesh Nalin (Plaintiff) (Plaintiff) 13 Four witnesses have been examined on behalf of the plaintiffs. P.W. 1 is Shailendra Kumar Mishra. He has proved his chief and has supported the application filed for probate of this case filed by an affidavit dated 10.8.2005. In his examination-in-chief, he has supported the case filed before this Court. P.W. 1 has also proved the registered Will dated 17.3.1936. P.W. 1 Shailendra Kumar Mishra is the son of Nawal Kishore Mishra. He has proved his statement filed on affidavit on 10.8.2005 which is the examination-in-chief in the present suit. This witness has also proved the Will of Akshaybat Mishra which is marked as Ext. 1. P.W. 1 has stated that he knew about the Will from his father and also from one Smt. Prabhawati Devi who is the attesting witness to the Will with respect to the contents of the Will. He has stated that it had remained in the possession of Laganmani Kuer during her life time for the purposes of her maintenance. He stated the date of death of his father and Madalsa Devi and has also stated that Smt. Laganmani Kuer sold part of the land to one Bharosa Rai in the year 1955. He has denied the suggestion that his father had relinquished the rights conferred on him under the Will in question by executing the agreement. In the cross-examination, he has stated that “He cannot recall that there is any mistake with regard to the year of death 14 of his grand mother.” With respect to the sale deed, he has stated that until the death of Laganmani Kuer, she was the MALKIN of the house which is subject matter of the Will in question. He denies that he is running away from the agreement dated 9.9.1955. He has stated that he has filed the present probate case two months after the title partition suit was filed and further states that his father was given the rights in the house after he became major. He claims that he is not aware of the dates on which the attesting witnesses died. P.W. 2 is Prabhawati Devi. She is aged about 82 years. In her chief, she has stated that she knew Akshaybat Mishra who was her father‟s elder brother. According to her, the Will was prepared on the eve of “JANEU” ceremony of Nawal Kishore Mishra by her uncle Akshaybat Mishra. He disclosed to her that he wanted to bequeath “Laganmani Bhawan” to Nawal Kishore Mishra. On 17.3.1936, Akshaybat Mishra had written the Will in his own handwriting which she recognizes and he had invited Justice Kulwant Sahay and late H.N. Choubey at “Laganmani Bhawan” for becoming attesting witnesses to the Will. At paragraph 9, she has stated that late Akshaybat Mishra put his signature in presence of the attesting witnesses, his wife and in the presence of this witness. She has identified the Will which is in the handwriting of Akshaybat Mishra and also the 15 handwriting of Laganmani Kuer who had put her signature on the Will (both have been marked as Exhibits). She has claimed that she has remembered that Akshaybat Mishra got the Will registered 2½ months after it was signed on 2.6.1936. The Will was in favour of the eldest grandson (Nati) Nawal Kishore Mishra @ Babban Babu. On cross-examination, she supports the statements made in her chief and states that she remembers that the Will was written on the UPNAYAN SANSKAR (JANEU) ceremony of Nawal Kishore Mishra. On being cross- examined where the affidavit was prepared on her instruction, she has stated that she does not remember, as she is not feeling well, the exact date of the UPNAYAN SANSKAR and the age of her sons and daughters. She cannot recall the exact date of the death of Akshaybat Mishra but states that it was in the month of KARTIK. She has stated that she does not recall the faces of the witnesses who had signed on the Will but she remembers that it was signed at the Patna residence. She denies that she has been schooled to give evidence in Court. P.W. 3 is Kameshwar Prasad Mishra. He is the nephew of Nawal Kishore Mishra (sister‟s son) the beneficiary of the Will and also the nephew of the contesting defendant. In his chief, he has stated that Nawal Kishore Mishra had full knowledge regarding existence of the present Will and the contents of the Will. 16 He claims that he knows that the Will was attested by late Justice Kulwant Sahay and late H.N. Choubey, Principal of Government Ayurvedic College, Patna and the Will was registered at Buxar. According to him, the name of Nawal Kishore Mishra was mutated sometime in the year 1952. He states that the defendant was allowed to stay in the Patna house as he had no other place to live. According to this witness, he was told by his mother that Laganmani Kuer died in February, 1956. This witness supports his examination-in-chief which was filed on an affidavit and denied that he has been tutored. This witness also states that he visited her house in question with his mother at the time of Shradh of Laganmani Kuer at that time he was 6 or 7 years of age. P.W. 4 is Alok Kumar Mitra. P.W. 4 claims to know Deo Narayan Lal, the Tax Collector of the Patna Municipal Corporation and has proved the Municipal Tax Receipts of 1969 which are Exhibits 2 and 2A which have been accepted with objection. In his cross-examination, he has admitted that he is working as a clerk for the advocate appearing on behalf of the plaintiff. He claims that he visited the house of the Tax Collector and knows the address of the Tax Collector as well. This witness has stated that he has visited the house of the Tax Collector for many clients who came to him for this work. The defendant Braj Kishore Mishra has 17 examined himself as D.W. 1. This witness has supported his case and has stated in his examination-in-chief that Laganmani Kuer died in August, 1956. She was the limited owner in possession of the house Laganmani Bhawan which was the subject matter of the alleged Will having antecedent right of maintenance till 16.6.1956 but from 17.6.1956 she became the absolute owner in accordance with law of inheritance. According to this witness, he has inherited equal share after the death of Madalsa