JHARKHAND HIGH COURT ISSUES ORDER ON SHYAM BIHARI LAL V/S SMT. USHA SINHA AND ORS.

RANCHI, India, Sept. 28 -- Jharkhand High Court issued the following order on Aug. 27:

1. Heard, learned counsel for the parties. 1. The instant Misc. Appeal has been preferred under Section 299 of the Indian Succession Act, 1925 against the grant of probate of Will in Title Suit No.02 of 2009 arising out of Probate Case No.05 of 2004.

2. Applicant, Smt. Usha Sinha @ Smt. Usha Devi, the legatee of Will executed by the Testator, Brij Mohan Sahay submitted an application for grant of Will dated 25.04.2004 with respect to the land measuring 2 acres, as detailed in the Will. The five sons of the Testator were impleaded as Opp. Party Nos.1 to 5.

3. Opp. Party No.6 is the widow of the testator and 7 to 11 are his daughters. Defendant Nos.1 to 2 were contesting the probate application, whereas Opp. Party Nos.3 to 11 have admitted the averments made in the application.

4. In view of the contest made by Opp. Party Nos.1 and 2, the probate case was converted into a testamentary suit in which altogether seven witnesses were examined on behalf of propounder of the Will and five were examined on behalf of objector.

5. The relevant documents including the Will were adduced into evidence and marked as Exhibits.

6. The grant of Will has been assailed on the ground that the Typist has not been examined and date does not appear below the signature of the testator and further the Will was also not registered.

7. However, the factum of the Will being made is admitted by none other than the widow of the deceased and mother of these appellants/ objectors and also by the daughters of the Testator. Further, the attesting witnesses have proved the Will as required under Section 63(c) of the Indian Succession Act and also under Section 68 of the Evidence Act. The examination of scribe/Typist is not far-less an essential requirement to prove the Will. The appearance and non-appearance of date with the signature of the testator is inconsequential, as it has been reflected in the WILL. There is no requirement that a WILL needs to be registered.

8. Under the aforesaid facts and circumstance of the case, I do not find any merit in the instant Misc. Appeal and the same stands dismissed. Pending I.A(s), if any, stands disposed of.

Disclaimer: Curated by HT Syndication.