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2009 DIGILAW 599 (JHR)

Baban Tiwari v. Mukhram Tiwari

2009-04-22

R.K.MERATHIA

body2009
JUDGMENT : This appeal has been filed against the judgment dated 23.12.2006, passed by 1st Additional District Judge, Palamau dismissing Title Suit No. 1/2004. 2. Mr. Amar Kumar Sinha, learned counsel appearing for the appellant, assailed the impugned judgment on various grounds. 3. It appears that the applicant/appellant filed a Probate Case No. 5/1993 for grant of probate of the Will allegedly executed by one Mangro Kuer, wife of Triloki Tiwary. Opposite Party nos. 1 to 5 are father and brothers of the applicant and they supported the case of the applicant. Opposite party nos. 6 to 10 were uncle and cousin brothers of the applicant, who objected the grant of probate. On such objection, the said Probate Case was registered as title suit. 4. On the basis of the pleadings, issues were framed. The evidences produced by the parties were examined. The learned court rightly observed that a Will has been held to be pious document and it creates right in favour of person after ceasing or withdrawing rights of other person (s). Opposite party nos. 6 to 10 were the persons, whose rights were snapped by the Will in question. It further held that only two witnesses namely Ghura Chaudhary or Anil Kumar Pandey could explain the document to the testator but Ghura Chaudhary was not examined and Anil Kumar Pandey had admitted in evidence that he does not know English and therefore the applicant could not prove as to who explained the document prepared in English, to the testator. 5.Para 30 of the judgment reads as follows:-“ Admittedly Mangro Kuer being illiterate rustic and Parda Nasin Lady and the documents being Will, it was bounded duty of the propounder i.e. the applicant to clear the suspicion appearing over the Will. Suspicious circumstance which cloud the will into suspicion is as follows:- I-The testator is illiterate but the document is written in English. II-None of the alleged attesting witnesses or Notary or the advocate, who allegedly prepared draft or typist were either resident of village-Ornar where the said testator reside or resides or have any personal knowledge or relation with the said testator. III-It is also not clear as to who explained the documents to the testator. IV-It is also not clear as to who got document prepared. The draft allegedly prepared by Tapeshwar Ram, advocate was not brought. III-It is also not clear as to who explained the documents to the testator. IV-It is also not clear as to who got document prepared. The draft allegedly prepared by Tapeshwar Ram, advocate was not brought. Moreover from the evidence which is on record and considered that testator was aged about 85 years it appears highly improbable and unrealistic and unfaithful that she being looked after, cared by the applicant but she alone moved for Daltonganj to get the Will prepared and executed. V-The applicant was knowing that the said testator was party in Partition Suit No. 26 of 1948 but in spite of that applicant has not get the LTI of Ext2 examined from that bearing in plaint of that suit”. 6. The learned court below rightly held that the applicant could not prove that the Will was genuine and authentic and could not clear the suspicion over it. 7. In my opinion, no grounds are made out for admission of the appeal, which is accordingly dismissed. However, no costs.