SANTOSH KUMAR GUPTA v. HARVINDER NATH GUPTA — 1996 DIGILAW 1089 (ALL)

A. K. BANERJI, J. Testamentary Case No. 12 of 1993 was filed by the petitioner for grant of Letters of Administration with the Will annexed in respect of the estate of one Sulaki Lal since deceased. 2. Brief facts, as set out in the petition, are that Sulaki Lal died on 24-6-1970 leaving the properties detailed in the schedule annexed to the affidavit. The deceased had prior to his death executed a Will dated 2-11-1963 regarding his properties. The petitioner is one of the grandsons of the deceased testator and is also a beneficiary named in the Will, as such the petitioner is entitled to the Letters of Administration with the Will annexed in respect of the estate left by the deceased. The petitioner was accompanied by the affidavit of the petitioner annexing a schedule of the properties with regards to which the Letters of Administration was sought. The petition was also accompanied by the affidavit of one Jeet Mal Mishra, Advocate, who is said to have drafted the Will under the instructions of the deceased testator and in whose presence the Will is stated to have been signed by the testator and two attesting witnesses of the said Will. 3. On 21-5-1993 this Court issued notice to the next of kin mentioned in the petition and also directed copies of the notice to be sent to the Board of Revenue, U. P. , Allahabad and the Administrator General and Official Trustee, U. P. , Allahabad. Apart from the same a citation was ordered to the published in one issue of the newspaper amrit Prabhat" published in Hindi from Allahabad. In response to the said notice a caveat was filed on behalf of the contesting respondents Harvinder Nath Gupta and three others who are the brothers of the petitioner and the grandsons of the deceased testator. An objection and a joint written statement was filed oh behalf of the said respondents in support of the caveat. If was pleaded therein that the deceased Sulaki Kal never executed any will and the document filed aiongwith the petition is a forged document which does not bear the signature of the testator. It was further pleaded that the alleged will is the result of the dispute between the two sons of the deceased for claim in the alleged properties left by the deceased testator. It was further pleaded that the alleged will is the result of the dispute between the two sons of the deceased for claim in the alleged properties left by the deceased testator. It was further pleaded that in the year 1962 the deceased had suffered a paralytic attack by which his brain and tongue were affected and he was not in a disposable state of mind on the date when the alleged will is said to have been executed. It was also leaded that the will in question has not been duly and property attested and its genuineness is doubtful. Apart from the same it was further pleaded that the deceased did not leave behind any property as he died in debt and the schedule annexed to this petition is wholly false and the contents thereof the denied. On the basis of the said pleas it was stated that the petitioner was not entitled to the Letters of Administration, as prayed. 4. The petitioner filed a replication to the said written statement denying the allegations made therein and reiterated the contents of the petition. It was stated that the will in question was registered will and was duly and validly executed by the deceased testator. It was denied that the same was not executed in a sound disposable state of mind. It was also stated that the Firm M/s. Sulaki Lal & sons in which 1/4 the share was claimed by the petitioner was in existence when the will was executed in November, 1963 and the said Firm was set up with the assets of Shri Ram Misthan Bhadar. It was further stated that the will was drafted by Shri Jeet Mal Mishra, Advocate, on the instruction of the deceased testator and the will was executed in the presence of the said Jeet Mal Mishra and the tow attesting witnesses who are now dead. It was denied that the testator had incurred any debt during his life time. As the petition was being contested by the respondents the proceedings of the Testamentary Case No. 12 of 1993 was ordered to be converted into a Suit and was renumbered as Testamentary Suit No. 3 of 1994 . 5. It was denied that the testator had incurred any debt during his life time. As the petition was being contested by the respondents the proceedings of the Testamentary Case No. 12 of 1993 was ordered to be converted into a Suit and was renumbered as Testamentary Suit No. 3 of 1994 . 5. On the pleadings of the parties the following issues were framed by the Court on 3-8-1994: (1) Whether the alleged Will dated 2-11-1963 executed by Sulaki Lal was legally and validly executed by the testator in a sound disposable state of mind ? (2) Whether the attestation of the Will dated 2-11-63 was valid and legal ? (3) Whether the Will dated 2-11-63 was a forged and fabricated document, as alleged? (4) Whether the Firm M/s. Sulaki Lal & Sons was not in existence during the life time of Sulaki Lal, and, therefore, the petitioner can not claim Letters of Administration with regards to items No. 1 and 2 of the Schedule to the Petition ? (5) Whether the petitioner is entitled to Letters of Administration regarding the assets left by Sulaki Lal, If so, then to what extent? (6) Whether the petition for grant of Letters of Administration legally maintainable? (7) To what relief is the plaintiff entitled? 6. In support of his case and for proving the Will the plaintiff filed the original Will and also examined himself as P. W. 1 and Shri Jeet Mal Misra, Advocate, as P. W. 2. The defendants, on the other hand, filed photo copy of the registered sale-deed with respect to property No. 86 and 88, Bohadur Ganj, dated 28- 6-1969 as paper No. A-23, photo copy of the partnership dated 4-9-1970 between Sri Nath, Smt. Nanno Devi, Surendra Nath and Rajendra Babu for carrying on the business under the name and style of M/s. Sulaki Lal & Sons as paper No. A-24 and certified copies of the Plaint of Suit No. 340 of 1991 (Rajendra Pd. Gupta v. Harvinder Nath Gupta and others) filed in the court of Civil Judge, Allahabad and the written statement filed by the petitioner in the said, suit, as paper Nos. A-25 and A-26 respectively. The defendants did not produce any oral evidence. Issues Nos. 1 and 2 deals with the question whether the Will was validly executed and duly attested. Consequently, both these issues can be decided under a common head. A-25 and A-26 respectively. The defendants did not produce any oral evidence. Issues Nos. 1 and 2 deals with the question whether the Will was validly executed and duly attested. Consequently, both these issues can be decided under a common head. Issues No. 1 and 2: 7. The plaintiff as P. W. 1 deposed that Sulaki Lal had executed a Will on 2-11-63 bat of his free Will and in a sound disposal state of mind. The will in question which has been filed by him as paper No. A-5 has been signed by the deceased testator with whose signature the witness was well acquainted. He has also deposed that the Will has been signed by the two attesting witnesses namely, Kishori Lal and Jaswant Rai and by Shri Jeet Mal Mishra, Advocate, who had drafted the Will. The testator and the two attesting witnesses had signed the Will in the presence of Shri Jeet Mal Misra, Advocate, and the will was got registered. The plaintiff alongwith his 8 brothers, 2 sisters, mother uncle and 2 sons of his uncle were the heirs of the deceased-testator and the plaintiff was one of the beneficiaries of the said Will. The deceased had left behind him 1/4th share in the business and about fifty thousand rupees in cash and an Insurance Policy of Rs. 70,000/ -. Apart from the plaintiff his six brothers were all beneficiaries under the Will. He has further deposed that the two attesting witnesses of the will namely, Kishori Lal and Jaswant Rai were dead. In his cross-examination he has stated that during his grandfathers life time the business was run under the name and style of Shri Ram Misthan Bhaadar and after his death in the year 1970 a new business was started under the name and style of Sulaki Lal and Sons. The witness has denied that the testator had suffered a paralytic attack in the year 1962 or that he was not in a sound disposable state of mind. 8. Shri Jeet Mal Mishra, was examined as P. W. 2. He has stated that he knew Sulaki Lal, deceased testator as he had a sweetmeat shop in the same mohalla where the witness resided. He had drafted the Will (Paper No. A-5) on the request of Srinath, son of the testator and had signed the said Will as scribe. 8. Shri Jeet Mal Mishra, was examined as P. W. 2. He has stated that he knew Sulaki Lal, deceased testator as he had a sweetmeat shop in the same mohalla where the witness resided. He had drafted the Will (Paper No. A-5) on the request of Srinath, son of the testator and had signed the said Will as scribe. He has further deposed that neither the testator nor the two witnesses had signed the Will in his presence but the same was got signed by Pyarey Lal who looked after his work as clerk and it is the said Pyarey Lal who got the Will registered. 9. It is now well settled by a catena of decisions that the propounder of the will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator was at the relevant time in a sound disposable state of mind, that he understood the nature and effect of the disposition and that he put his signature to the document on his own free Will. In other words, the onus on the propounder can be taken to be discharged on the prove of the essential facts indicated above. In this connection the provisions of S. 68 of the Indian Evidence Act and S. 63 of the Indian Succession Act may also be noticed. S. 68 speaks about attestation of the document executed, if required under law. Section 68 of the Indian Succession Act is regarding execution of the Wills which lays down that every testator shall sign or shall affix his mark on the Will and the same shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the will. The propounder has, therefore, to prove that the provisions of Section 68 of the Evidence Act and section 63 of the Succession Act have been duly complied with. In this backdrop the evidence produced by the plaintiff on the aforesaid issues framed by the Court shall have to be considered. 10. As already noticed above, to prove the legal and valid execution of the Will and its due attestation the plaintiff had examined himself as P. W. 1 and Jeet Mal Mishra, Advocate, as P. W. 2. In this backdrop the evidence produced by the plaintiff on the aforesaid issues framed by the Court shall have to be considered. 10. As already noticed above, to prove the legal and valid execution of the Will and its due attestation the plaintiff had examined himself as P. W. 1 and Jeet Mal Mishra, Advocate, as P. W. 2. The plaintiff had deposed that he was well acquainted with the handwriting and signature of the deceased-testator and had seen him writing. The Will (A-5) bears the signature of the testator on each page. S. 67 of the Evidence Act speaks about the prove of signature and the handwriting of person alleged to have signed or written the document which is produced by a person who has seen the said person signing before him. On this basis it has been submitted on behalf of the plaintiff that the signature" of the testator on the testamentary document has been proved by the P. W. 1. It is to be kept in mind that the witness was aged about 39 years when his evidence was being recorded in this case. His age in the year 1963 when the Will was alleged to have been executed would, therefore, be about 8 years. This witness was still a minor in the year 1970 when the testator died. Admittedly the will was not signed in the presence of the plaintiff. In fact, the plaintiff admits that he had no knowledge about the said Will till the same was discovered. There is neither any pleading nor evidence to the effect as to when, where and from whom the Will was discovered neither has it been stated by this witness in his evidence that this was the last Will of the testator and not other Will was executed by him subsequent thereto. This witness further deposed that he does not have in his possession a single document bearing the signature or writing of the testator. In paragraph 3 of the plaint and in his evidence the witness has stated that the testator had signed the Will in the presence of Shri Jeet Mal Mishra. Advocate. This witness further deposed that he does not have in his possession a single document bearing the signature or writing of the testator. In paragraph 3 of the plaint and in his evidence the witness has stated that the testator had signed the Will in the presence of Shri Jeet Mal Mishra. Advocate. This statement has, however, been denied by the P. W. 2 Jeet Mal Mishra, who has stated in his examination-in-chief that the Will was not signed by the executant in his presence but it was got signed by Pyarey Lal, who was his clerk, at the seat where the witness sat in the district courts. P. W 2 has further stated that he had drafted the Will on instructions of Srinath, son of the testator, and had thereafter handed over the draft to Srinath. The witness had not read over the draft to the testator. It is, therefore, apparent that there is material contradiction in the evidence of the two witnesses regarding the execution of the Will. That apart, there is no pleading from the plaintiffs side or any evidence regarding the mental capacity of the deceased- testator at the time of execution of the Will. Though in the cross-examination P. W. 1 has denied that the testator at the time of the execution of the Will was not in a sound disposing state of mind yet his reply to the suggestion put by the counsel cannot be taken on its fact value because at the time when the will was executed the said witness was only about 8 years of age and he was not even aware that any such will had been executed. In his evidence he has also said that he was able to remember things from the age of 12 or 13 years. He was still a minor when the testator had died. Besides, P. W 2 has stated that Srinath, the son of the testator had told him that the testator was not keeping good health. There is, therefore, no pleading or evidence with regards to the mental capacity of the testator at the lime of the execution of the Will neither has it has been pleaded by the plaintiff or there is any evidence to show that the testator had voluntarily executed the Will. There is, therefore, no pleading or evidence with regards to the mental capacity of the testator at the lime of the execution of the Will neither has it has been pleaded by the plaintiff or there is any evidence to show that the testator had voluntarily executed the Will. In view of what has been discussed above, I am of the opinion that the plaintiff has failed to establish that the Will was duly and validly executed. 11. The Supreme Court in the case of Beni Chand v. Kamla Kunwar, AIR 1977 SC, 63, had observed that by attestation is meant the signing of a document to signify that the attestator is a witness to the execution of the document and an attesting witness is one who signed the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. To prove the due and valid attestation of the document the plaintiff has examined Shri Jeet Mal Mishra, Advocate, as P. W. 2. It has also been submitted in paragraph 3 of the plaint that the signature of the testator was duly attested by Jaswant Rai and Kishori Lal, both of whom are dead and the execution of the Will is duly proved by the declaration of Shri Jeet Mal Misra, who drafted the said Will and in whose presence the execution and the witnesses affixed their signatures on the Will in the presence of each other. However, as already noticed above, in his examination-in-chief P. W. 2 states that he had drafted the Will on the instructions of Srinath and that the Will was not signed either by the executant or by the attesting witnesses in his presence but were got signed by his clerk Pyarey Lal. He has further deposed that he knew Kishori Lal who was the son of his clerk but he did not know Jaswant Rai, the other attesting witness. The evidence of this witness, who as only the scribe of the document, in my view, does not prove the due attestation of the testamentary document. He has further deposed that he knew Kishori Lal who was the son of his clerk but he did not know Jaswant Rai, the other attesting witness. The evidence of this witness, who as only the scribe of the document, in my view, does not prove the due attestation of the testamentary document. A learned Single Judge of this Court in the case of Vishwanath Singh v. Umanath Singh (Second Appeal No. 136 of 1972 decided on 21-4-1980), reported in 1985 Revenue Judgments, 240 had held as follows: "the evidence of the scribe in regard to due execution of the Will is not to be considered so long as one of the attesting witnesses is alive and is subject to the process of the Court and is capable of giving evidence. . . . . . . . . . . . The scribe may at the most give evidence regarding the instructions given to him for the drawing up of the Will, his scribing the Will and its approval by the testator. Unless the scribe had signed the Will as attesting witness his evidence regarding the execution of the Will is not be looked into," On behalf of the plaintiff it has been submitted that the in the plaint as well as in the evidence of the two witnesses it has been stated that both the attesting witnesses namely, Kishori Lal and Jaswant Rai were dead, consequently the attesting witnesses could not be produced in this case and as the will is a registered document wherein the Registrar has made endorsement regarding due execution and attestation, it can be presumed that the same has been validly and legally executed. This submission cannot be sustained. In his cross-examination. P. W. 1 has stated that he has no personal knowledge about the death of Kishori Lal and Jaswant Rai but he had heard that the said witnesses were dead P. W. 2 states that Kishari Lal was dead and he has heard that Jaswant Rai is also dead. P. W. 1 has not disclosed the name of the persons from whom he had heard that the attesting witnesses were dead P. W. 2 has stated that he did not know Jaswant Rai and he has heard that the said witness was dead. He has also not disclosed that from whom he had learnt regarding the death of Jaswant Rai. He has also not disclosed that from whom he had learnt regarding the death of Jaswant Rai. The evidence both these witnesses are based on hearsay and, therefore, can not be taken to be admissible in evidence. It is imperative that so long as there is a witness alive and subject to the process of the Court the documents which is required by law to be attested can not be used in evidence until such witness has been called. Under Section 68 of the Evidence Act it is mandatory that atleast one of the attesting witnesses will have to be called to prove the execution, if he is alive, and the omission cannot be cured with the evidence of any other witness like the scribe or the beneficiary. [see Harish Chand Sahu v. Basant Kumar Sahu - AIR 1974 Orissa, 170]. As already noticed above, there is no categorical evidence from the side of the plaintiff to prove that the attesting witnesses were dead. In the case of Deorao v. Dhordilio AIR 1928 Nagpur, 244) it has been held that where out of two attesting witnesses one was dead and the plaintiff had deposed that the whereabouts of the other were not know and he did not examine the person from whom he made inquiry about the living witness the provisions of Section 68 of the Evidence Act had not been complied with. In the facts of the present case, even assuming that the two attesting witnesses were dead but as the Will had been challenged as forged and not duly executed, in such a circumstance the plaintiff should have examined the relatives of the two attesting witnesses who knew the hand writing of the said witnesses and could prove the same as laid down in Section 69 of the Evidence Act. The said provision lays down that where no attesting witness is found it must be proved that the attestation of one of the attesting witnesses atleast is in his own writing and that the signature of the person execution the document is in the hand writing of that person. [see. S. M. Nooruddin v. Mohd. Oomer, AIR 1956 Bom. The said provision lays down that where no attesting witness is found it must be proved that the attestation of one of the attesting witnesses atleast is in his own writing and that the signature of the person execution the document is in the hand writing of that person. [see. S. M. Nooruddin v. Mohd. Oomer, AIR 1956 Bom. , 641 ; R. Sarawathi v. I. Bhavathy Ammal, AIR 1989 Kerala, 228] Therefore, the plaintiff not having established by any cogent evidence that the attesting witnesses were dead and having failed to prove the handwriting and the signatures of attesting witnesses on the testamentary document by calling any person who was acquainted with the handwriting of the said attesting witnesses, has, in my opinion, failed to prove the due attestation of the alleged Will (A-5) 12. It has also been contended on behalf of the plaintiff that the Will in question was a registered document which bore the endorsement of the Sub-Registrar regarding due and valid execution of the said Will. Consequently, it can be presumed that the Will was validly executed. I am unable to agree. In the case of Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC, 135, it has been held that the endorsement made by the Sub-Registrar does not satisfy the requirement of Section 63 of the Succession Act and does not reach upto the level of proof required under Section 68 of the Evidence Act and hence mere registration of the Will is of no consequence. In view of the above, merely because the Will has been registered, it cannot be presumed that the requirements of Sections 63 and 68 of the Evidence Act have been complied with. 13. Shri J. Nagar, learned counsel for the plaintiff being faced with the above difficulty has made two other submissions. Firstly, it has been submitted that the plaintiff has given evidence with regards to execution and attestation of the Will in question and has stated in the pleadings as well as in the evidence that the Will was duly executed. From the side of the defendants there is no evidence in rebuttal and consequently whatever evidence has been given by the plaintiff is to be believed and the Will taken to he proved. This submission appears to be misconceived. From the side of the defendants there is no evidence in rebuttal and consequently whatever evidence has been given by the plaintiff is to be believed and the Will taken to he proved. This submission appears to be misconceived. It is well settled that the onus lies upon the propounder to prove due and valid execution of the Will. The propounder having failed to prove the same legally it was not obligatory upon the defendants to give any evidence in rebuttal, Secondly, the learned counsel has urged that as the Will in question is more than 80 years old. , is a registered document and on its face is free from suspicion, in view of the provisions of section 90 of the Evidence Act the Court may presume that it has been duly executed and attested. In support of his submission learned counsel has placed reliance upon the decision of the Calcutta High Court in the case of Prabhat Chandra Kanrar v. Rani Bala Kanrar AIR 1989 Cal. 202 and a recent decision of the Patna High Court in the case of Haradhan Mahatha and others v. Dukhu Mahatha AIR 1993 Pat. 129 . In the Calcutta case it has been held that the right of the court to presume under Section 90 of the Evidence Act is not controlled or curtailed by Section 68 of the Evidence Act. Whether or not the presumption should be made, will depend upon the facts of the particular case e. g. to decide the genuiness of the old document the important consideration should be whether they were acted upon or not, or whether they were supported by possession or not? The observations made in this case were on the facts of the said case. However, in this very case it has also been stated that Section 90 gives a discretion to the court to presume about the genuineness of certain documents. However, the same shall depend upon the facts of the case. In the said case the document was acted upon throughout presumably within the knowledge of the plaintiff. However, in the present case at hand, there is neither any pleading nor evidence to show that the Will in question was at all acted upon. However, the same shall depend upon the facts of the case. In the said case the document was acted upon throughout presumably within the knowledge of the plaintiff. However, in the present case at hand, there is neither any pleading nor evidence to show that the Will in question was at all acted upon. In fact, admittedly there are number of litigations pending before the civil court between the parties inter se but in the pleading of the said cases the Will in question has not been referred to and no mention has been made that the same has been acted upon. In the case of Kempamma v. Kalamma AIR 1992 Karnataka 282, it has been held that where the propounder of Will executed more than 30 years before did not make any averments in the pleadings that the Will was acted upon after the death of the testator and that he was in a sound condition of mind at the time of the execution of the Will the presumption available under Section 90 could not be extended to the Will even if it was a registered Will. Similarly in the case of Rangu Vithobav. Rambha Dina, AIR 1967 Bom. , 382) it was held that assuming that the presumption under Section 90 could be made and the valid attestation of the will could be upheld though not pleaded by the plaintiff, the presumption will not extend to the will being the last Will of the testator. The mere fact that is was a registered document would not centra-indicate its cancellation and subsequent date of the making of another Will on a later date, particularly when the testator lived for more than 30 years after the Will. In the present case at hand, according to the own case of the plaintiff, the testator was alive for 7 years after the execution of the Will. The plaintiff has not stated in his evidence that no other Will had been made by the testator after the said Will cancelling the same. It has been held by the Bombay High Court in the case of Rangu Vithobav (supra) that the question of presumption under Section 90 would arise only with respect to a case set up by the plaintiff and not with respect to a case which was never pleaded by the plaintiff. It has been held by the Bombay High Court in the case of Rangu Vithobav (supra) that the question of presumption under Section 90 would arise only with respect to a case set up by the plaintiff and not with respect to a case which was never pleaded by the plaintiff. As already seen above, the plaintiff has not pleaded that this will has been acted upon by the beneficiaries. So far as the case of Haradhan Mahatha (supra) is concerned, I have carefully perused the said decision. It has been stated therein that if a document is more than 30 years old and is produced from proper custody and is free from suspicion the Court may presume that it has been duly executed and attested. In paragraph 11 of the said decision it has been stated that there cannot be any straight jacket for exercising discretion by the Court under Section 90 of the Act. If the document is over 30 years old and is produced from proper custody and its genuineness is not disputed, then the Court should exercise its discretion under Section 90 of the Act. In paragraph 12 it has been stated that if the executant or attesting witnesses are not alive or available in relation to a document the genuineness of which is disputed and the mode of proof as required under Section 69 of the Act is also not possible, the Court should raise a presumption under Section 90 of the Act in relation to due execution and attestation of the document. In the facts of the present case at hand, the genuineness of the Will is disputed. Besides, no evidence has been given to show where form the plaintiff had got this document which was executed admittedly when he was a minor aged about 8 years. It has not been stated in whose custody the Will had been during all these years. In the absence of the same it could not be said that it has come from a proper custody. There is some documentary evidence filed by the defendants to show that there is litigation inter se pending between the parties. This document does not appear to have been mentioned in the pleadings of the said case. In the absence of the same it could not be said that it has come from a proper custody. There is some documentary evidence filed by the defendants to show that there is litigation inter se pending between the parties. This document does not appear to have been mentioned in the pleadings of the said case. Therefore, in the facts of the present case, the observation made in the Patna case does not support the submission made by the learned counsel for the plaintiff. In fact, in paragraph 15 of the said judgment it has been observed thus: "in cases where genuineness of a document is disputed and the executant or attesting witnesses are alive and available or if they are dead or not available but evidence is available for proving the document in accordance with the mode prescribed under Section 69 of the Act, then the court should not raise presumtion under Section 90 of the Act and admit the document in evidence but direct the party to prove the document by leading evidence. " As already discussed above, the plaintiff in this case has failed to prove by cogent evidence that both the attesting witnesses are dead. The plaintiff has also failed to prove the hand writing and the signature of said attesting witnesses under Section 69 of the Evidence Act. He has not produced any relation or any such person who would depose that the attesting witnesses were dead. On the contrary, the plaintiff had tried to prove the same by his evidence and has failed to establish the said fact before this Court. In such a situation, in my opinion, the presumption under Section 90 of the Evidence Act is not available to the plaintiff. I consequently do not find any force in the submission of Shri J. Nagar regarding the presumption about due and valid execution and attestation of the document on the ground that it is over 30 years old. 14. In view of the aforesaid discussion, I am of the opinion that the plaintiff has failed to prove the due and valid execution and attestation of the Will (A-5) Issues 1 and 2 are decided accordingly against the plaintiff. Issue No. 3 15. This issue was framed at the instance of the defendants. 14. In view of the aforesaid discussion, I am of the opinion that the plaintiff has failed to prove the due and valid execution and attestation of the Will (A-5) Issues 1 and 2 are decided accordingly against the plaintiff. Issue No. 3 15. This issue was framed at the instance of the defendants. In paragraph 11 of the written statement it had been pleaded that Sulaki Lal never executed any Will and the alleged Will is a forged document which does not bear the signature of late Sulaki Lal. Learned counsel for the plaintiff has contended that the burden to prove this issue was on the defendants and they had not led any evidence in support of the said plea. So far as this issue is concerned, in my view, it is not necessary to decide the same after the finding recorded under issues No. 1 and 2. It is well settled that the onus is on the plaintiff to establish first that the Will has bee validly and duly executed and attested. The plaintiff having failed to establish the same it is not necessary to decide this issue. Issue No. 4 16. The plaintiff had in the schedule annexed with the plaint claimed 1/4th share in the business of Sulaki Lal & Sons which was valued at the time of his death at rupees One Lac. He has also sought 1/4th share in the good-will of the business which was valued at the time of the death of the testator at rupees Fifty thousand. In the written statement the defendant had pleased that the claim of 1/4th share in the business of the firm Sulaki Lal & Sons and in the goodwill of the said firm was untenable as the said firm was not in existence during the life time or at the time of the death of Sulaki Lal. The firm Sulaki Lal & sons was not (constituted from the assets of Shri Ram Misthan Bhandar of which late Sulaki Lal was a partner. After the evidence was closed in this case an application (A-32) was filed by the plaintiff seeking amendment in the schedule annexed to the plaint by which the plaintiff sought to add that M/s. Sulaki Lal & Sons was renamed as such after the death of Sulaki Lal and was constituted with the assets of Sri Ram Misthan Bhandar. After the evidence was closed in this case an application (A-32) was filed by the plaintiff seeking amendment in the schedule annexed to the plaint by which the plaintiff sought to add that M/s. Sulaki Lal & Sons was renamed as such after the death of Sulaki Lal and was constituted with the assets of Sri Ram Misthan Bhandar. By a detailed order dated 25-1-1995 this Court had rejected the said application and had not permitted the amendment sought for in the schedule. At the time of hearing Sri J. Nagar had stated that as the amendment sought in the schedule was not allowed he is confining this petition only to items No. 3 and 4 mentioned in the schedule namely, cash in hand and the amount of Life Insurance Policy of the testator. In view of the aforesaid statement issue No. 4 does not survive and it is not necessary to decide the same. Issues Nos. 5 and 6 17. In the written statement the defendants had pleaded that the plaintiff was not entitled to Letters of Administration regarding the assets left by Sulaki Lal and the present petition for grant of Letters of Administration was legally not maintainable. It is noteworthy that the plaintiff has sought letters of Administration with the Will annexed and was relying upon the Will (A-5 ). It has already been seen above that the plaintiff has failed to prove due execution and attestation of the Will. The plaintiff is, therefore, not entitled to Letters of Administration with the Will annexed. Shri Nagar has, however, contended that assuming that the plaintiff has failed to prove due execution and attestation of the Will yet he being the grandson of late Sulaki Lal is entitled to a share in the properties mentioned it items No. 3 and 4 in the schedule. Consequently he can still claim Letters of Administrating for administration the escape left by the deceased. This submission, in my view, is misconceived. Firstly, because the petitioner has not been amended and no such plea has been taken or issue framed with regards to the same and secondly because Sulaki Lal died in the year 1970 when the plaintiff was a minor and whatever property was left was administered by the sons of the deceased among whom Shrinath was the father of the plaintiff. If any property had to be administered or any debt bad to be paid the same must have been done either by the father of the plaintiff or his uncles. It is well settled that Letters of Administration is granted only when some estate has to be administered or some debt has to be paid or there be difficulty in collecting the assets. No such plea has been taken by the plaintiff nor any evidence has been led with regards to the same. On the contrary, the plaintiff has denied the suggestion that Sulaki Lal died in debt. Besides, it is also equally well settled that when administration of the estate is not the object but the object of claiming Letters of Administration is to establish heirship in a prospective suit no letters of Administration can be granted. Consequently, I am of the view that the prayer for grant of Letters of Administration in the alternative is not maintainable and can not be granted. That apart, it will be noticed that in the Schedule annexed to the plaint the plaintiff has claimed that the cash left by the deceased was Rs. 5000/-and the Insurance Policy was of the amount of Rs. 70. 000/ -. However, in his evidence the plaintiff has claimed that the cash in hand left by the deceased was Rs. 50,000/-and has not given any evidence regarding the amount of the Insurance Policy. No document has been filed to establish that the deceased has an Insurance Policy of Rs. 70,000/ -. The defendants have pleaded that a sum of Rs. 20,000 was got by Shrinath from the Life Insurance Corporation as the amount of Insurance Policy left by the deceased and he being the Karta of the family had spent the said sum on the upkeep and education of his sons. Plaintiff had not led any evidence to the contrary, therefore, there being material contradiction regarding the amount left by the deceased and there being a dispute with regards to the amount of the Insurance Policy and no evidence from the side of the plaintiff with regards to the same, no Letters of Administration can be granted unless the plaintiff succeeded in proving his case regarding item Nos. 3 & 4 of the Schedule which the plaintiff has failed to prove. Issue Nos. 5 & 6 are therefore decided against the plaintiff. Issue No. 7 18. 3 & 4 of the Schedule which the plaintiff has failed to prove. Issue Nos. 5 & 6 are therefore decided against the plaintiff. Issue No. 7 18. In view of the aforesaid discussion and the findings on issues No. 1 & 2 the plaintiff is not entitled to any relief. Consequently, the plaintiffs suit is liable to be dismissed and is hereby dismissed. However, in view of the facts and circumstances of the case, there will be no order as to costs. Suit dismissed. .