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In The Goods Of Late Pt.Triyugi Narain @ Kamla Pati - TESTAMENTARY SUITS No. 15 of 1999  RD-AH 18 (1 January 2006)
Court No. 9
TESTAMENTARY SUIT NO. 15 OF 1999
In the matter of estate of
Late Pt. Triyugi Narain Dubey alias Kamlapati
TESTAMENTARY SUIT NOS. 2/1998, 6/2000, 7/2000 and 2/2006
Hon'ble Sunil Ambwani, J.
Testamentary Suit No. 7 of 2000
1. Shri Rajnish Kumar Rai appearing for Shri Surya Balak Shastri-plaintiff has filed an application for permission to examine Shri Suraj Bux, one of the attesting witnesses, who was not included in the list of witnesses on the ground that his address was not known. It is stated in the Application No. 155542 of 2006 that out of two attesting witnesses namely Shri Pradhut Kumar and Shri Suraj Bux, Shri Pradhut Kumar had died in an accident and Shri Suraj Bux has left his old house and was settled in district Unnao. At the time of filing of documentary evidence and providing the name of witnesses, the name of Shri Suraj Bux was not given as the plaintiff did not know about his address and location. Now after he has come to know about his location, he has contacted him at his new address i.e. Shukla Ganj, Kanchan Nagar-A, P.S. Ganga Ghat, District Unnao.
2. Shri Siddhartha Verma appearing for Shri Raja Ram Soni has made strong objection to the production of the witness, who is present in the court on the ground that the name ought to have been mentioned in the list of witnesses.
3. Shri Narendra Mohan appearing for Shri Narendra Vajpayee has also made a protest that first the plaintiff has to be examined.
4. The reason, given in the application supported by affidavit of Shri Surya Balak Shashtri that one of the attesting witnesses died and where
about of the other witness were not known, appears to be reasonable. It is the plaintiff's choice to examine himself in the proceedings or not. He may choose not to appear and allow the attesting witness to appear in the case.
5. Having regard to the facts and circumstances of the case, the application filed by Shri Rajnish Kumar Rai is allowed. Shri Suraj Bux is present in Court and his affidavit in examination-in-chief has been filed. He was allowed to be examined and cross examined.
6. Shri Rajnish Kumar Rai appearing for Shri Shiv Balak Shastri states that the plaintiff/propounder of the will Shri Shiv Balak Shastri is present in court.
7. Shri Narendra Mohan had taken an objection that under amended Order 18 Rule 3 (a) the first plaintiff had to be examined and only then other witnesses are to be examined. The court is surprised as to when the plaintiff/propounder was present in court, the chance was taken to allow the attesting witness to appear first. Learned counsel for plaintiff has not filed examination-in-chief of the plaintiff so far. His oral prayer to allow plaintiff to depose in the matter is as such rejected.
8. List on next Monday to conclude the plaintiff's evidence in Testamentary Case No. 7 of 2000 between Shiv Balak Shastri and others.
9. It has been brought to the notice of the court by the affidavit filed by Shri Rameshwar Nath on behalf of Shri Rishab Jain in Testamentary Suit No. 15 of 1999 that in three matters relating to the will of same late Shri Triyugi Narain, probate applications were filed before the District Judge, Kanpur in respect of wills dated 6.10.1997 and 5.10.1997 respectively;
1. In probate case No. 189/70-2000 the District Judge has granted probate to Dr. Kiran Agarwal of the will of late Triyugi
Narain dated 6.10.1997 in respect of 4 biswas area 110 village Kohna Mahal Baldeo Prasad Kanpur by order dated 16.5.2001.
2. In probate case No. 238/70-2001 the District Judge Kanpur granted probate to Dr. Dilip Agarwal husband of Dr. Kiran Agarwal in respect of will of Triyugi Narain datd 6.10.1997 which was latter on amended on 5.10.1997 of 2 bigha land of village Kohan Mahal Baldeo Prasad Kanpur vide order dated 21.12.2001.
3. In probate case No. 55/70-2004 District Judge Kanpur granted probate of the will dated 5.10.1997 of late Triyugi Narain to Shri Ganga singh Bhadouria the attesting witness in the will and Raja Ram Soni of the properties in village Mauja Kohna Mohal Baldeo Prasad Kanpur on 17.11.2004.
10. In all these three probate cases Shri Raja Ram Soni was defendant and that the orders state that he had filed objections to the grant of probate. He admitted the knowledge of these probate cases in his cross examination in suit.
11. Shri J. Nagar, Administrator General and Shri Rameshwar Nath submit that in respect of the deceased only one probate can be granted. The law does not permit the several probate cases in respect of several properties of the deceased. Each applicant has to disclose the entire properties of the deceased.
12. On the next date the court shall hear all the counsels for the parties on the question whether after grant of three probate by District Judge Kanpur during the pendency of the proceedings of these connected suits, the Court can still decide about the five wills in some of which the letter of administration has been sought for the entire properties of late Shri Triyogi Narain.
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