In Re: Late Kamta Prasad Sinha and Dr. Abha Sinha

Honourable Mr. Justice Jayanandan Singh

Originally this application was filed by Smt. Sukumari Sinha (wife) and Dr.Abha Sinha (Daughter) of Testator Late Kamta Prasad Sinha u/s 276 read with section 300 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act") for grant of probate in respect of the Will executed by Late Kamta Prasad Sinha (Testator). During the pendency of this application, applicant no.1 Smt. Sukumari Sinha died. Hence, an affidavit was filed by applicant no.2 Dr.Abha Sinha for deleting her name from the records of the case, which was allowed by this Court by order dated 29.6.2012. As such this application now stands confined to applicant no.2 Dr.Abha Sinha only Will was executed and registered on 7.1.2000. It is stated in the application that the Testator was permanent resident of House No.20, Anugrah Narayan Path, North S.K.Puri, P.S. - S.K.Puri, Town and District- Patna, within the jurisdiction of this Court. Testator died on 8.2.2006 in U.S.A., where, at the relevant time, his son Mr.Alok Kumar Sinha, an I.F.S. Officer, was posted. His Shradh Ceremony was performed at Patna by his family members.

It is further stated that the Testator had acquired 3 katha 8 dhurs of land through registered sale deed and constructions were made thereon by him. There was family partition between the Testator and his only son Alok Kumar Sinha on 1.10.1983 and southern half was allotted to the Testator and northern half was allotted to his son Alok Kumar Sinha. Will was executed and registered by the Testator on 7.1.2000 in favour of his wife Mrs.Sukumari Devi and daughter Dr.Abha Sinha with respect to his share in the said property, details of which are mentioned in Schedule-A. A copy of the Will has been attached with the application.

It is mentioned in paragraph 10 of the application that the Testator left behind his wife Mrs.Sukumari Sinha, one son, namely, Alok Kumar Sinha and four daughters, namely, Mrs.Vibha Jauhari, Dr.Abha Sinha, Dr.Eva Sahay and Mrs.Jyoti Sinha. It is mentioned that Alok Kumar Sinha is in Indian Foreign Service; two daughters, namely, Mrs.Vibha Jauhari and Dr.Eva Sahay are well settled abroad; third daughter, namely, Mrs.Jyoti Sinha is A.I.G.(C.I.S.F.) and the fourth daughter, namely, Dr.Abha Sinha is a Doctor, practicing at Patna. Will was attested by two attesting witnesses, namely, Alok Kumar Sinha and Sunil Kumar Sharma. Separate affidavit has been filed by one of the attesting witnesses, namely, Sunil Kumar Sharma, stating that the Will was signed by the Testator in his presence and also in presence of his son Alok Kumar Sinha and after the Testator signed the Will, he and Alok Kumar Sinha, both put their signature on the Will.

Probate Duty of Rs.30,000/- was deposited by the applicants on 26.4.2011 through challan. All the Near Relatives filed their "No Objections? with their vakalatnama. Thereafter, by order of the Court dated 1.7.2011, general citation in two newspapers, namely, Patna editions of English Daily "The Times of India" and Patna Edition of Hindi Daily "Dainik Jagaran" were published on 16.7.2011 and an affidavit to this effect was also filed along with original copy of newspapers. Since all the Near Relatives had appeared and filed their "No Objections?, special citations were not issued to them. Applicant thereafter filed Examination-in-Chief of the witnesses. Applicant also filed Examination-in-Chief on her behalf.

Applicant no.2 Dr.Abha Sinha was examined as A.W.1 on 6.1.2012. During her Examination-in-Chief, original Will was opened from seal cover and shown to her. She identified the Will and said that original Will was executed by her father Late Kamta Prasad Sinha. She identified his signature on the Will. The said Will was marked as Ext.-1. This witness stated that her father died in U.S.A. on 8.2.2006 while he had gone there to meet his son, who was in Indian Foreign Service posted there at that time. This witness testified that this was the first and last Will executed by her father in his sound state of mind and body and without any pressure. This witness stated that the Death Certificate of her father has been annexed as Annexure-2 with the main application. The property belonged to her father by a memorandum of partition and his name was mutated in the municipal records of Patna Municipal Corporation and he was paying municipal taxes. This witness also stated that her sisters and brother have filed "No Objection? on affidavit and they have put their signatures on each page of "No Objection? which she identified. Their signatures have been marked as Exts.- 2, 3, 4 and 5 series. This witness has also filed separate affidavit supporting her statements on oath.

Attesting Witness Alok Kumar Sinha was examined as A.W.2 on 17.2.2012. In his Examination-in-Chief he stated that his father died in U.S.A. on 8.2.2006 leaving behind his widow, this witness as a son and four daughters. This witness identified the signature of his father on the Will which was marked as Ext.-6 series. This witness identified his own signature on the last page of the Will, which was marked as Ext.-7. This witness stated that the Will was also attested by another attesting witness Sunil Kumar Sharma. He had put his signature on the Will in his presence. This witness stated that, to his knowledge, this is the last Will of his father. At the time of execution ofthe Will, his father was in sound state of health and mind. His father had traveled to U.S.A. after execution of the Will. At the time of execution of the Will, his father was not under coercion or undue influence nor was there any pressure or threat on him. The property mentioned in the Will is self acquired property of his father. This witness has filed separate affidavit supporting his statements on oath.

Another attesting witness Sunil Kumar Sharma was examined on 24.2.2012. In his Examination-in-Chief, this witness stated that Late Kamta Prasad Sinha had executed a registered Will on 7.1.2000 in favour of his wife and one of his daughters Dr.Abha Sinha. This witness stated that on the request of the Testator, he had put his signature on the last page of the Will as attesting witness no.2 which he identified. His signature was marked as Ext.-8. This witness also stated that at the time of execution of the Will, the Testator was in sound health and mind. He had executed the Will without any threat, coercion or undue influence. This witness also filed separate affidavit supporting his statements on oath.

On 9.12.2011 an oral prayer was made on behalf of Applicant no.1 Smt.Sukumari Devi that due to advance age and illness she was not in a position to come to Court for her evidence. However, no application was filed in this regard. Thereafter, Examination-in-Chief was filed on behalf of Applicant no.1 on 23.9.2011 but she was not examined.

No Objections were filed on behalf of the Near Relative Nos. 2, 3, 5 and 6 on affidavit. Near Relative no.1 was applicant no.1, who died during the pendency of this application and Near Relative no.4 is now the sole applicant. No caveat and objection was filed on behalf of any of the Near Relatives in the case.

As stated earlier, list of properties is enclosed with the Will as Schedule-A. It is also stated that the deceased died in U.S.A. while visiting his son there. It is stated that the Will was executed and registered at Patna within the jurisdiction of this Court. It is stated that the original Will is being filed in the Court separately in a sealed cover. In the circumstances, this Court finds that the application filed by the applicant u/s 276 read with section 300 of the Act is in accordance with the requirements of law.

In the light of the evidence of the witnesses, this Court has perused the original Will of the Testator. this Court finds that the Will is a registered deed running in four pages. The Testator has executed the Will and put his signature on each page of the Will. this Court also finds that the two attesting witnesses have signed the Will as witnesses. Out of six Near Relatives, four have filed their "No Objections?. Near Relatives 2 and 4 were applicants in this case. Near Relative no.2, who was applicant no.1 in this case, died during the pendency of this application. The attesting witnesses have identified the signature of the Testator on the Will as well as their own signatures which have been marked as Exhibits. Thus, this Court finds that the Will conforms to the requirement of section 263 of the Act.

The witnesses have stated that the Will is the last Will of the Testator duly executed by him. They have also stated that the Testator was in a sound state of mind and body at the time of execution of the Will. this Court further finds that there is nothing on record to show that this Will was not the last document executed by the Testator.

In the circumstances, this Court is satisfied that the Will is genuine and contains last wishes of the Testator, duly executed by him in full consciousness and in a sound state of mind and body and duly attested by the witnesses and is a registered Will. Hence, it satisfies the requirements of law. As a result, this application is allowed. Let a probate be issued in favour of the present applicant Dr. Abha Sinha in terms of the Will in respect of property covered by the Will.