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2013 DIGILAW 1448 (PAT)

In Re : The Goods of Late Hari Har Rai v. .

2013-12-12

KISHORE K.MANDAL

body2013
ORDER In this application filed under sections 273 and 276 of the Indian Succession Act, the applicant prays for grant of Letters of Administration of the Will dated 16.02.2007 executed by Late Hari Har Rai alias Harhir Rai. 2. As per the applicant, Late Hari Har Rai alias Harhir Rai (hereinafter to be referred to as “the testator) was a Hindu governed by the Mitakshara School of Hindu Law. He was permanent resident of Mauza-Semra, P.O. Bandhu Chhapra, within Barhara police station in the district of Bhojpur. While he was alive he had voluntarily executed the Will on 16.02.2007 in respect of the property/estate to be left behind by him as detailed in the Will. The testator was in sound state of health and mind when the said Will was executed fully understanding the contents thereof without any undue influence or coercion. The said will was executed in presence of Raj Ballabh Singh and Jayashree Kumar, the two attesting witnesses. Few days thereafter i.e. on 28.02.2007 the testator died at Patna leaving behind this Will for his properties to take effect after his death. The Will presented along with the application was in the same state as it was executed. In paragraph 7 of the application it has been stated that the testator died leaving behind the beneficiary of this Will and another daughter namely Smt. Manorama Devi, wife of Babu Nand Rai. The wife of the testator had predeceased him. The property covered by the Will along with other properties were self acquired or the ancestral properties of the testator. He had, therefore, every right to bequeath the property as per his will. The value of the assets which were likely to come in the hands of the beneficiary/applicant quantified at Rs. 49 lakhs have been set out in Schedule A. The liabilities thereto and other deductions have been detailed in Schedule B. It has further been stated that no other application earlier to this has been made either to this Court or to any other court for grant of probate or Letters of Administration of the said Will. It has, therefore, been prayed that the Letters of Administration be granted in respect of the said Will to have effect throughout the territory of India. 3. It has, therefore, been prayed that the Letters of Administration be granted in respect of the said Will to have effect throughout the territory of India. 3. The applicant has filed an interlocutory application being I. A. No. 1131 of 2013 for condonation of the delay, if any, in filing the present testamentary case. 4. General Citation was issued in two daily newspapers published from Patna, one in English namely “The Times of India and another one in Hindi namely “Prabhat Khabar. Special Citation was also issued and served upon the sole near relative (NR) who has entered appearance. Upon appearance of the near relative and there being no caveat or objection filed by anyone pursuant to general citation published in two newspapers the application was admitted to hearing subject to limitation and/or objection, if any, to be filed by the near relative(NR). 5. The Will produced along the application avers that the testator, upon his superannuation from the Indian Navy, had constructed a house in Calcutta and also acquired two acres of land in his ancestral village. The testator had two daughters as his legal heirs. The eldest daughter Smt. Manorama Devi (NR) was married and settled. The youngest daughter was also married. The testator after his superannuation was living with his youngest daughter (the applicant) who was taking full care of the testator and his wife until she died. In the aforesaid circumstances, he executed the Will out of his own free will whereby part of the property was bequeathed in favour of his eldest daughter namely Manorama Devi. The applicant was bequeathed part of the property acquired by the testator including the house constructed by the testator and located at 23B, Kavitirth Sarani Wartganj, Khidarpur Calcutta-23 in the State of West Bengal. It thus appears that beneficiary of the Will is both the daughters of the testator. 6. In support of the case, the applicant examined two attesting witnesses namely Raj Ballabh Singh (AW-1) and Jai Shri Kumar (AW-2). AW-1 is the son-in-law of the testator. The applicant herself has examined as AW-3. They have filed their examination(s)-in-chief on affidavit as well. 7. The Will has been marked as Ext. 1. The signature(s) of the testator on every page of the Will are marked as Ext. 2 series. 8. AW-1 is the son-in-law of the testator. The applicant herself has examined as AW-3. They have filed their examination(s)-in-chief on affidavit as well. 7. The Will has been marked as Ext. 1. The signature(s) of the testator on every page of the Will are marked as Ext. 2 series. 8. AW-1 in his deposition has stated that the testator was his father-in-law who was residing at South Mandiri, Patna. On 16.02.2007 the testator had called him and one Jai Shri Kumar. When he met him the testator desired to execute the Will. He had already got the Will drafted by Sri Arbind Prasad Singh. The Will was typed in Hindi. He has identified the Will which was executed by his father-in-law on 16.02.2007 (marked as Ext. 1). He has identified the signatures of the testator on each page of the Will which have been marked as Ext. 2 series. After having signed the Will, the testator requested him to sign the Will as attesting witnesses. On such request he first signed the Will in presence of the testator as well as Jaishree Kumar. The witness has identified his signature on the last page of the Will (marked as Ext. 3). Thereafter the testator requested Jaishree Kumar to sign the Will as attesting witness. On such request he also signed the Will in his presence. The signature of another attesting witness Jaishree Kumar on the last page of the Will has been marked as Ext.4. He has further stated that when the Will was executed the testator was in sound mental and physical condition. He was able to understand everything. The Will was executed on his own free will. There was no coercion or influence. This witness has further stated that to his knowledge the present one was the last Will of the testator. 9. AW-2 Jaishree Kumar in his deposition has stated that the testator was known to him from before. On 16.02.2007 he was called in by the testator at his residence. He was then residing in Mohalla South Mandiri, Patna. When he reached the house of the testator he found Raj Ballabh Singh (AW-1) present there from before. The testator showed him the Will which was prepared from before. He has also identified the Will. The testator thereafter signed the Will in his presence as well as in presence of Raj Ballabh Singh (AW-1). When he reached the house of the testator he found Raj Ballabh Singh (AW-1) present there from before. The testator showed him the Will which was prepared from before. He has also identified the Will. The testator thereafter signed the Will in his presence as well as in presence of Raj Ballabh Singh (AW-1). He has also identified the signature of the testator on each page of the Will. On request made by the testator Raj Ballabh Singh signed the Will as one of the attesting witnesses in his presence as well as in presence of the testator. This witness has also identified the signature of Raj Ballabh Singh (AW-1). Thereafter he signed the Will in presence of the testator and Raj Ballabh Singh. He has identified his signature (Ext.4) on the Will. He has further deposed that at the time when the Will was signed by the testator he was in sound state of health and mind. The testator died a few days thereafter. 10. AW-3 is the applicant herself. She is the daughter of the testator. According to this witness, the testator had executed the Will in February, 2007. She has identified the Will (Ext.1). Few days thereafter her father died on 28.02.2007 at PMCH, Patna. On the date of execution of the Will her father was in sound state of health and mind. The Will was executed in presence of her husband namely Raj Ballabh Singh and another attesting witness namely Jaishree Kumar. She has also identified the signatures of the testator on each page of the Will as also the signatures of the attesting witness on the last page of the Will. Her father later died leaving behind herself and one sister namely Manorama Devi as his legal heirs. She has further stated that notice of the present application was issued and served on Manorama Devi who has appeared in the proceeding through a counsel and filed her no objection to the grant of Letters of Administration respecting the Will. She has also stated that some property under the Will has also been given to her elder sister (NR). According to her, no other case except the present one is pending in the court respecting the Will of the Testator. The Will after its execution was not given to her. She has also stated that some property under the Will has also been given to her elder sister (NR). According to her, no other case except the present one is pending in the court respecting the Will of the Testator. The Will after its execution was not given to her. After death of the testator the Will was found placed in the belongings of the testator at his Calcutta residence which was retrieved in the month of November, 2012. She has claimed the present Will as the last Will of her father. 11. Having perused the deposition of the three witnesses, two of them are attesting witnesses, I am satisfied that the testator executed the Will dated 16.02.2007 in presence of the two attesting witnesses which is the last Will and testament of the testator. It has also been proved from the evidence of the three witnesses that on the date of execution of the Will i.e. on 16.02.2007. The testator was maintaining sound physical and mental health and there was no coercion or pressure. The Will was executed by the testator voluntarily. 12. There has been delay in filing this case. According to the applicant the Will was executed on 16.02.2007 and soon thereafter the testator had died. The present proceeding was filed in the year 2012. In the case of Smt. Nalini Mishra v. Braj Kishore Mishra (2011(1) BBJC 101) this Court after scanning the relevant decisions having bearing on the point held as under in paras 69 and 70 : 69. The Patna decision has taken into account the decision of The Kerala State Electricity Board and held that Article 137 applies to all applications made before any authority. However, it has been noted by the Patna High Court that the legal position regarding the construction of Article 137 has to be based on what would be the staring point for computing the period of limitation. Would it be on the date on which the executor died or would the right to apply for a probate accrue from the day to day so long as the Will remains unprobated. The Patna High Court held that the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the Will remains unprobated and therefore, for such an application, there is no period of limitation. The Patna High Court held that the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the Will remains unprobated and therefore, for such an application, there is no period of limitation. Similarly, as the view taken by the Madras High Court in the case of Gnanamuthu Upadesi v. Vana Kilpillai Nadan (1894) ILR 17 Madrs 379. I shall lastly refer to the judgment of Kunwarjeet Singh Khadpur v. Kirandeep Kaur ( AIR 2008 SC 2058 ). The Supreme Court has recognized that the applicant filing a probate seeks recognition of the Court to perform duty. Probate or Letters of Administration issued by the Court is of the legal character throughout the world. The Supreme Court had held that though the nature of the petition as described by Madras High Court in the case of S. Krishnaswami and etc. v. E. Evarajan and others (AIR 1991 Madras 214), was not correct in observing that the application for grant of probate of Letters of Administration is not covered by Article 137 of the Limitation Act. However, while referring to the decision of the case reported in AIR 1983 Bombay 268, the Supreme Court has quoted paragraph 16 of the Bombay decision, which reads as follows: Similarly, reference was made by the Apex Court in Kunwarjeet case to a decision of the Bombay High Court case in Vasudev Daulatram Sadarangani, AIR 1983 Bom 268 ). Para 16 reads as follows: 16. Rejecting Mr. Para 16 reads as follows: 16. Rejecting Mr. Dalpatrai contention, I summarize my conclusions thus: (a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; (b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased is unwarranted; (c) such an application is for the Court permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased death; (e) delay beyond 3 years after the deceased death would arouse suspicion and greater the delay, greater would be the suspicion; (f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates. 70. the Supreme Court has held that the conclusion (b) is not correct while the conclusion (c) is the correct position of law. In this context, I may point out that the Supreme Court has not rejected the stand taken by the Bombay High Court at (e) that delay beyond three years after the deceased death would raise suspicion and greater the delay, greater would be the suspicion and stand (g) which is “once execution and attestation are proved, suspicion of delay no longer operates. In the context of this case, this Court has already come to a finding that and a conclusion that the Will executed by Akshaybat Mishra is a genuine document, duly attested in the state of sound mind and is the last Will and testament of Late Akshaybat Mishra and there are no suspicious circumstances revolving round the preparation of the Will. Having held as above, this Court finds it difficult to accept the contention that the entire suit should be dropped on the ground that it is hit by Section 137 of the Limitation Act. Having held as above, this Court finds it difficult to accept the contention that the entire suit should be dropped on the ground that it is hit by Section 137 of the Limitation Act. I find that the actions of the plaintiffs in between the execution of the Will till 2003, when the partition suit was instituted indicates that by virtue of the Will, they were in possession of the property in question and had acted upon the Will inasmuch as their names were mutated in the Patna Municipal Corporation and the document was offered as a security in the bank, the plaintiffs could not get a copy of the Will until this Court called for it from the bank directly and as such, it cannot be said that the delay has not been explained. 13. The present case was filed beyond three years. The case, therefore, requires to be looked into with a great circumspection. In the case at hand the applicant has stated that the testator used to reside in Patna as well as Calcutta where he had constructed his own house. The Will was not handed over to the beneficiary after its execution. After the death of the testator the Will was found kept in the belongings of the testator at his Calcutta residence. The explanations, in absence of any objection, merit to be accepted. Secondly, on going through the Will and the evidence on record it appears that the testator had left behind only two daughters. Part of the property under the Will has also gone in favour of another daughter of the testator. Upon service of notice on the NR, no objection has been filed by the elder sister (near relative) of the applicant. The doubt or suspicion created on account of delay in filing the case stands clarified/cleared. This Court has, therefore, no difficulty in accepting the case of the applicant which has been proved by reliable evidence. 14. In the result, the application is allowed. Let the Letters of Administration annexing a copy of the Will and the Testament dated 16.02.2007 (Ext.1) executed by the testator be granted in favour of the applicant Smt. Sumitra Devi which shall have effect throughout the territory of India. I. A. No. 1131 of 2013 is also disposed of. Petition allowed.