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2007 DIGILAW 929 (JHR)

Manu Devi v. Chepia Manatain

2007-12-13

D.P.SINGH

body2007
JUDGMENT D.P. Singh, J. 1. The present appeal has been preferred by the heirs of one Nagen Mahto against the order dated 28.6.2000 passed by the Additional District Judge II, Bokaro in L.A. Case No. 2/80 by which the application for issuance of letters of administration was refused. 2. The appellants, now the heirs of said Nagen Mahto, assailed the judgment and order of the learned lower court asserting in the memo of appeal that learned lower court has failed to consider the admitted fact on record. According to this memo of appeal, the learned lower court should have considered that in absence of attesting witnesses, the evidence of the scribe of the will has sufficiently proved the execution of the will in question. It is also asserted that the delay in filing the letters of administration has also been explained sufficiently. According to the learned Counsel for the appellant, the circumstantial evidences were sufficient to prove that said will was executed by intestate in proper state of mind. The other point raised in this memo of appeal is that earlier the lower court has passed ex parte order dated 9.3.83 granting letters of administration, however the said order has been (sic) on 10.3.83. Thus the order under challenge dated 28.6.2000 is without jurisdiction. 3. Notices were Issued upon the respondents, which were returned unserved on the ground that the contessing defendant Chepia Mahtain was dead and Lapla Mahatain did not appear. 4. Perused the lower court records as well as the judgment under challenged. It is admitted fact on record that said Nagen Mahto applied for Issuance of leters of administration on the basis of will said to be executed by one Nandu Mahto on 6.2.62, who admittedly died on 9.11.64. The petition was filed in the year 1980 more than 15 years after the death of said (sic) Mahto. The learned lower court has discussed the evidence produced before it and found that all the attesting witnesses of the disputed document were dead prior to filing of the said case. The contesting defenda its Chepia and Lapia have contested the case on the ground that they were widow and daughters of the deceased and the will in question was forged and fabricated. 5. The learned Counsel for the appellants Mr. The contesting defenda its Chepia and Lapia have contested the case on the ground that they were widow and daughters of the deceased and the will in question was forged and fabricated. 5. The learned Counsel for the appellants Mr. S.N. Das has submitted that the will In question, which were in three parts Schedule A,B, and C, provide shares of the appellants and contesting defendants. However, after going through the will in question, Mr. Das conceded that Schedule A,B and C does not prescribe specifically which land was owned by contesting defendants and the appellants. Therefore, the will in question appears to be vague. 6. Further more the scribe of the will Braj Mohan Mahto, AW 2 has died, who (sic) the lower court that he scribed the will as per desire and dictation of said Nandu Mahto. It is admitted fact on record that Nandu Mahto was having leprosy and was not in a position to put his LTL It is also admitted fact on record that the contesting defendants Lepia an Chapia were the natural heirs of the intestate, whereas said Nagen Mahto was the nephew of the deceased. There is no dispute under the provisions of law that heirs entitled for succession cannot be debarred from their shares by virtue of any disputed document like the present will in question. 7. The learned lower court has grave doubt upon the genuineness of the disputed document, Ext. 1 which find support from the circumstances available on record and discussed by the learned lower court earlier. The law requires strict proof of the execution of a will by the intestate and proper state of mind supposed to be proved by two of the attesting witnesses in whose presence the will was scribed and executed. Since all these aspects could not be proved in all probabilities, I do not find that the learned lower court has committed any mistake of fact and law by refusing to issue letters of administration in favour of said Nagen Mahto. I further find that present appellants cannot claim any right to press this appeal after death of said Nagen Mahto, as the right to file this appeal cannot be assumed by them. 8. In the result, I find that judgment and order dated 28.6,2000 passed by court below in LA Case No. 2/80 does not require to be interfered with. I further find that present appellants cannot claim any right to press this appeal after death of said Nagen Mahto, as the right to file this appeal cannot be assumed by them. 8. In the result, I find that judgment and order dated 28.6,2000 passed by court below in LA Case No. 2/80 does not require to be interfered with. Accordingly, this appeal is found without merit and dismissed but without costs.