Hrishikesh Roy JUDGMENT
Hrishikesh Roy, J.
1. This appeal arises out of the judgment and order dated 15.04.2009 of the Patna High Court whereby the appeal filed by the probate applicant was allowed in his favour by concluding that the Will favouring Sarjug Singh was not cancelled. Thus, the appellate Court reversed the Trial Court's decision which held that the applicant is disentitled to get the Will probated as the same was revoked. The High Court to give the impugned verdict against the objectors, disbelieved the registered deed of cancellation dated 02.02.1963 (Exbt C) whereby, the Exbt 2 Will, was revoked by the testator.
RELEVANT FACTS
2. Rajendra Singh (since deceased) had executed a Will on 14.09.1960 (Exbt 2) in favour of the applicant Sarjug Singh. The executant died issueless on 21.08.1963 leaving behind his sister Duler Kuer, wife of late Thakur Prasad Singh and nephew Yugal Kishore Singh and also the probate applicant Sarjug Singh. The case of the applicant is that the testator's wife died long ago and therefore Rajendra Singh who was issueless bequeathed his property in village Pojhi Bujurg and Pojhi Kapoor, District-Saran, Bihar by executing the Will (Ext. 2) favouring the Respondent Sarjug Singh (since deceased).
3. In the probate proceeding initiated by Sarjug Singh i.e. Probate Case No. 19/1967, objection was filed by Shyam Sunder Kuer alias Raj Bansi Kuer (claiming to be the second wife and widow of the testator). Khedaran Kuer also opposed the applicant and she claimed to be the widow of Jamadar Singh who was the son of late Jag Jitan Singh (brother of the testator Rajendra Singh). According to the objectors, the Will favoring Sarjug Singh was revoked and cancelled by a registered deed dated 02.02.1963 (Exbt. C). It was also the objector's contention that Raj Bansi Kuer was in possession of all assets belonging to late Rajendra Singh and she along with Khedaran Kuer, sold several plots of land to the Appellants. Eight of the vendees who took possession after such purchase, appeared in the probate proceedings and supported the case of the objectors.
4. It is relevant to state that the validity of the Will in favour of the applicant Sarjug Singh was never seriously challenged but the objectors pleaded that the concerned Will was cancelled by a registered deed on 02.02.1963 (Exbt. C) by the testator himself. The applicant however claims that the testator was in very poor health, paralytic and was not in a position to attend the Sub-Registrar's office on 02.02.1963 to execute the registered cancellation deed (Ext. 'C'). The applicant also challenged the genuineness of the testator's thumb impression on the cancellation deed of the Will.
5. In the Probate case filed by Sarjug Singh, the learned First Additional District Judge, Chapra firstly concluded that the Will (Ext. 2) is a genuine document. However, by referring to the evidence laid by the objectors, the learned Judge then held that the Will (Ext. 2) was cancelled on 02.02.1963 under a registered deed (Ext. C), a few months before Rajendra Singh died on 21.08.1963, at Patna hospital. The Court also referred the death certificate (Ext. F) to conclude that the same does not indicate that the testator was suffering from paralysis. This observation w........