Judgment:
R.K. Merathia, J.
1. Heard Mr. L.K. Lal, learned Counsel appearing for the appellants at length, who assailed the impugned judgment on various grounds.
2. This appeal has been filed against the judgment and decree dated 14-6-2005, passed by learned 4th Additional District Judge, Palamau at Daltonganj in Title Suit No. 1 of 1991, whereby it has been ordered and decreed that the plaintiff (respondent No. 1) and defendant Nos. 2, 3, 4 (respondent Nos. 2,3, and 4) are legatees in the last Will and Testament of the Testator-Hawaldari Ram Gupta and are entitled for grant of Letter of Administration regarding the Original Will annexed with the said grant with respect to subject matter of the Will.
3. The plaintiff-Brajendra Prasad Gupta (respondent No. 1) filed an application for grant of Letter of Administration with respect to the Will dated 9-6-1970 executed by Hawaldari Ram Gupta. Hawaldari Ram Gupta died on 14-1-1978. The opposite parties therein challenged the said Will and thereupon the said Letter of Administration Case No. 7/1987 was converted into a title suit being Title Suit No. 1/1991,
4. According to the plaintiff, Hawaldari Ram Gupta, being Karta of the family, acquired some properties including the house and land standing over plot No. 554, situated at Mohalla Hospital Road in the name of his eldest daughter-in-law (Putoh) Bindeshwari Devi. In the Will, a portion of the said property was bequeathed in favour of the legatee or executor of the said property acquired by the said testator. The properties were treated as joint family properties of Hawaldari Ram Gupta and his sons. Hawaldari Ram Gupta had three wives. Defendant No. 6-Yugal Prasad Gupta-appellant No. 2 herein, is the son from first wife-Bindeshwari Devi. Lalit Prasad Gupta-defendant No. 5-appellant No. 1 herein is the son of second wife and the plaintiff-Brajendra Prasad Gupta and other defendants-defendant Nos. 1, 2, 3 and 4 were the sons and grandsons of the third wife. Under a registered Partition Deed dated 15-10-1965, an area of 10 decimals under Khata No. 554 was allotted to Hawaldari Ram Gupta, which land and the house is the subject matter of the Will, The amount of assets was valued at Rs. 30,000/-, out of which plaintiff was entitled to l/3rd share. His other brothers Girendra Prasad Gupta ( defendant No. 1 since deceased) and Mahabir Prasad Gupta were entitled to l/3rd share each.
5. According to the plaintiff, the original Will was not with him. Defendant No. 5-Lalit Prasad Gupta-appellant No. 1 herein, obtained possession of various documents including the Will but did not handover the same to the plaintiff in spite of several requests and therefore the certified copy of the Will obtained from Registration Office was annexed.
6. The defendants-appellants categorically admitted due execution, attestation and registration of the Will. Defendant No. 5-appellant No. 1 herein, who mainly contested the case, contended that the property was not personal property of Hawaldari Ram Gupta, though he admitted due execution of the Will by him but asserted that it was revoked under Revocation Deed dated 11-3-1974 (Ext. E) and subsequently under the deed of Izazatnama dated 26-4-1974 (Ext-F). The defendant No. 6-appellant No. 2 herein also admitted due execution of the Will but challenged the title of his father-Hawaldari Ram Gupta and asserted that the property under the Will was purchased by his mother-Bindeshwari Devi, out of her own Stridhan, which could not be partitioned and the deed of partition was not binding on Bindeshwari Devi and therefore his father could not bequeath the property mentioned in the Will.
The trial Court framed several issues. It was rightly held that the partition of the year 1965 and challenge to the title of the testator cannot be considered and any finding given in this proceeding in that regard will be beyond the scope of this proceeding. It was found that defendant No. 5-appellant No. 1 herein had identified the testator at the time of registration of the Will. P.Ws. 3 and 4 were two attesting witnesses who proved execution of the Will in their presence. P.W.-6 also supported the execution of the Will. In fact execution of the Will was not denied or disputed by the appellants. The original Will was produced by defendant No. 5-appellant No. 1 herein, which was accordingly marked as exhibit on behalf of the plaintiff. On careful examination of the evidences on record, the trial Court rightly held that the Will-Ext-3 was a registered document and it was duly proved whereas Ext-E, the purported unregistered Revocation Deed and Ext.-F, the purported unregistered Izazatnama were not reliable. The defendant No. 5-appellant No. 1 herein could not prove Ext.-E. It was found that evidence of defendant No. 5 (DW-5) was contrary to his own statement given in Partition Suit No. 102 of 1987. The summary of the findings recorded in paras 33 and 34 reads as follows:
33. Thus in consideration of the respective pleadings and the evidence on record it can safely be said that the Will Ext.-3 has not been revoked by the testator and the document Ext-E appears to be prepared subsequently to protest the Will and is never genuine nor it appears to bear the signature of the testator. It is pertinent to mention here that entire averment of the written statement of defendant No. 5 he has never mentioned the date of alleged revocation which also points out that the document was prepared subsequently. The moment it is held that there is no revocation of the Will, the Will Ext.-3 comes over the revocation deed.
34. The deed of Izazatnama Ext.-F which also appears to be post dated and prepared after the death of the testator and the recital of the document tries to create some present and future right in favour of defendant No. 5 and it also being unregistered document is hit under Section 17 of the Indian Registration Act and is not worth of consideration. All these issues are decided accordingly.
7. Finally, it was held that the plaintiff was entitled to grant of Letter of Administration and besides him the defendant Nos. 2, 3 and 4 (respondent Nos. 2, 3 and 4 herein) were also legatees of the Will and were also entitled for similar grant in their favour. Accordingly consequential orders were also passed.
8. After considering the entire matter carefully, in my opinion, no grounds are made out for admission of this appeal.
9. Lastly, Mr. Lal, appearing for the appellants, submitted that this appeal being in the nature of first appeal should be admitted. This contention cannot be accepted. Section 299 of the Indian Succession Act provides a forum of appeal before the High Court in accordance with the provisions of Code of Civil Procedure applicable to appeals/This appeal has been heard under Order 41, Rule 11 CPC. This right of appeal under Section 299 of the Succession Act, read with Order 41, Rule 11 CPC does not mean that the appellant has got a right of admission of the appeal and the appeal has to be admitted as a matter of course even if the appellate Court on hearing counsel for the appellants, is satisfied that no grounds are made out for admission of the appeal.
In the result, this appeal is dismissed. However, no costs.