RANCHI, India, Sept. 30 -- Jharkhand High Court issued the following order on Aug. 29:

1. The Objectors/ Appellants are before this Court in appeal against the grant of probate of WILL in Original Case No. 01 of 2013 which was converted to a testamentary suit on contest.

2. Relations are not in dispute that the Objector-Punit Gope is the son of Testator-Rewat Gope and Rukiaya Devi, whereas the legatee-Girdhari Yadav/respondent no. 1 is the maternal grandson (Nati) of the Testator.

3. Petitioner /Respondent no.1 filed an application for grant of probate with respect to registered WILL said to be executed by the Testator along with testatrix on 01.02.2008 bequeathing the land situated in Mouza Badki Sariya, PS Bagodar, Khata No. 132, Plot No.3081, area 23 decimals, Khata No. 102, Plot No. 3082, area 08 decimals and under Khata No. 102, Plot No. 3082 and area 14 decimals along with dwelling house and well etc. It is also not in dispute that the said land was the self-acquired property of the Testator.

4. The application for probate was contested, inter alia, on the ground of fraud and adverse possession. It was averred that the said WILL was not executed in favour of the appellants out of their free will and sound mind, and by playing fraud they were made to sign the WILL.

5. Learned Probate Court framed the following issues:

(i) Whether the suit as framed is maintainable?

(ii) Whether the WILL dated 01.02.2008 executed by Testator namely, Rewat Gope and Rukiya Devi is last WILL of the deceased?

(iii) Whether the WILL was executed by both the Testators in their sound mind and in presence of the witnesses?

(iv) Whether the WILL dated 01.02.2008 is genuine and legally valid or the petitioner has obtained the said WILL by playing fraud and using coercion on the Testators?

(v) Whether the petitioner Girdhari Yadav @ Giri Yadav is entitled to grant the Probate of WILL?

6. Altogether three witnesses, including respondent no. 1, were examined on behalf of the petitioner and the documents including the Deed of WILL dated 01.02.2008 (Ext. 4) and signatures of Raghunandan Prasad Mandal and Sarju Prasad Mandal on the WILL (Ext. 5 & 5/1) were adduced into evidence.

7. Learned Trial Court found no suspicious circumstance in execution of the WILL and granted the probate of WILL which is under challenge in the instant misc. appeal.

8. It is submitted by learned counsel for the appellants that the impugned order of award is not sustainable for the following reasons:

i. Original WILL was never produced and the probate cannot be granted on the certified copy of the WILL.

ii. The grandsons of the testator were not impleaded who are the necessary party and, therefore, their non-impleadment vitiated the case.

9. It is further argued that the attesting witness (PW3) in para-13 of the cross-examination has deposed that he has not seen or read the original of the WILL. At the time of scribe of WILL, no-one else was present except Rewat Gope and his wife. It is further argued that PW1, who is the son of the attesting witness Raghunandan Mandal, has deposed in para-6 of the cross-examination that the original WILL was with Girdhari Yadav and not in record. Despite the availability of the said WILL with applicant Girdhari Yadav, the same has not been produced.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=U%2BbhtlrLe2adAHN8Tz%2F1d1kJd5mzuCW4sVKZEwL2%2ByE%2FOobNru4C7m%2FEHlvua%2F7n&caseno=MA/180/2020&cCode=1&cino=JHHC010133092020&state_code=7&appFlag=)

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