Patna High Court
Jaibir Prasad Gupta And Ors vs Mahesh Prasad Gupta And Ors on 25 February, 2019
Equivalent citations: AIRONLINE 2019 PAT 1484, (2019) 1 CURCC 463 (2019) 2 PAT LJR 1030, (2019) 2 PAT LJR 1030
Author: Birendra Kumar
Bench: Birendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.206 of 2014
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1. Jaibir Prasad Gupta
2. Ram Babu Prasad Gupta
Both 1 & 2 Sons Of Late Hira Lal Sah
3. Mona Devi
4. Sona Devi
Both 3 & 4 Daughter Of Late Hira Lal Sah
All 1 to 4 Resident Of Mohalla- Mishriganj, Patel Chowk, P.S- Lalit Narayan
Mishra University Campus, Darbhanga., At Present Resident of Village
Paigambarpur, P.S- Keoti, District- Darbhanga.
5. Jagriti Devi Widow Of Late Hira Lal Sah Resident Of Mohalla Mishriganj,
Patel Chowk, P.S- Lalit Narayan Mishra University Campus, Darbhanga,
District- Darbhanga. ... ... Appellant/s
Versus
1. Mahesh Prasad Gupta, Son of Late Mahavir Prasad Gupta.
2. Rani Devi D/o Mahavir Prasad Gupta
3. Mamta Devi D/o Late Mahavir Prasad Gupta.
4. Anita Devi D/o Late Mahavir Prasad Gupta.
All Resident Of Mohalla- Mishriganj, Patel Chowk, P.S- Lalit Narayan
Mishra University Campus, Darbhanga, District- Darbhanga.... Respondent/s
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Appearance :
For the Appellant/s : Mr.Arbind Kumar Singh,Adv
: Mrs. Prativa Kumari, Adv
For the Respondent/s : Mr.None
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CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date : 25-02-2019
Heard learned counsel for the appellants.
2. In spite of valid service of notice and appearance of
some of the respondents through vakalatnama, no one appears to
oppose the prayer.
3. One Hira Lal Sah brought Probate Case No.33 of
1997 in the court of learned District Judge, Darbhanga for grant
of probate in respect of the will dated 25.05.1995 executed by
one Radha Devi @ Radhika Devi.
Patna High Court MA No.206 of 2014 dt.25-02-2019
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4. During pendency of the probate proceeding, Hira
Lal Sah died and his sons and daughters were substituted and
they prayed that in changed circumstances, letters of
administration be issued in their favour.
5. The learned court below by the order dated 2 nd
March, 2012 found that since the nature of the claim has
changed, therefore, letters of administration would be granted to
the applicants. Thereafter, the learned court below incidentally
examined title of Radha Devi and found that the property was
purchased by Radha Devi through registered sale deed.
Therefore, she was competent to execute a will in respect of
those properties. The learned court below on appreciation of
evidence came to the conclusion that the will was executed by
Radha Devi.
6. While examining the requirement of attestation of
the will, the learned court below found that for attestation of the
will, two attesting witnesses are required as per Section 63 of
the Indian Succession Act and since in the present case, only one
attesting witness was examined. The petitioners failed to prove
due attestation of the will. Accordingly, prayer for grant of letter
of administration was refused.
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7. Learned counsel for the appellants submits that
the appellants challenged the said order dated 2 nd March, 2012 in
Misc. Appeal No.226 of 2012 before this Court and by order
dated 24.04.2013, the matter was remitted back to the learned
court below to decide the matter afresh. Thereafter, the second
attesting witness was also examined before the learned court
below as A.W.8-Mahavir Prasad. A.W.8-Mahavir Prasad did not
fully support the case of the applicants. Hence, this time also,
the prayer was refused by the impugned order dated
28.02.2014.
8. Section 68 of the Indian Evidence Act provides for proof of execution of document required by law to be attested. The same reads as follows:
"68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process Patna High Court MA No.206 of 2014 dt.25-02-2019 4/5 of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with law the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
9. A will is required to be attested by two witnesses. The due attestation of the will has been well proved by the evidence of attesting witness-Gudari Thakur, who has been examined as P.W.1. There is clear finding of the learned court below that the testator was in a sound disposing state of mind. She has right to dispose of the property. She duly executed the will and the aforesaid requirement of Section 68 of the Indian Evidence Act proves that the due attestation of the will was also proved. Therefore, only for the reason that another attesting witness turned hostile the learned court below should not have refused the prayer of the appellant.
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10. Accordingly, the impugned order is hereby set aside and this appeal is allowed.
11. Let a letters of administration be issued in favour of the appellants within two months.
(Birendra Kumar, J) Nitesh/-
AFR/NAFR AFR CAV DATE NA Uploading Date 26.02.2019. Transmission Date NA