ARJAN DEV MITTRA Vs. SADA NAND

JUDGEMENT

(1.) Sada Nand Mittra and Laxmi Devi tiled a petition under Section 276 of Indian Successfpp Act, 1925 for the grant of Probate to them of a registered Will dated 2nd May, 1977 excpuled by their deceased mother Chhinko Bai who expired on 5th May, , 1986. Chhinko Bai was survived by her three sons and two daughters. Arjan Dev Miltra filed objections against fhe said Will before the Trial Court. Trial Court framed an Issue to tte following prfecf:- "Whether Smt. Chhinko Bai executed a valid Will dated 2nd May, 1977 while in sound disposing mind ?" The above issue was decided in favour of the respondents. Aggrieved by the impugned order, the present appeal has been preferred by said Arjan Rev Mittra.

(2.) Mr, Aman Lekhi, learned counsel for the appellant has contended that Ex. PW 2/1 i,6, Will dated 2nd May, 1977, in view of two different inks having been used on the same Will ereate suspicion regarding 4s genuineness. He has contended that report of the hand-wrttlBg expert that the ink was different at point 04 and 05 of Ex. PW2/1, the Trial Court ought to have given weightage to the testimony of band-writing PWtan(1could not have brushed aside the objections of the appellant. Another contention of learned counsel for the appellant was that Dr. S.K. Dutta who was an attesting witness, according to the propounder of the Will, has as a matter of fact, certified that the Testatrix was 'mentally sound' and there was no second wit- ness in relation to Ex. PW2/1. What has been contended by Mr. Lekhi is that pursuant to Section 63 sub-clause (c) of Indian Succession Act, 1925, two witnesses are required to attest a Will and when there is only one witness attesting a Will, the same will not be a proper Will in the eyes of law. In support of his contention, he has relied on M.L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri & Sons and Others 1969 (1) SCC 573. In this case it was held as follows :

(3.) yet another argument has been advanced by learned counsel for the appellant that there was contradiction in the statement of the attesting witnesses and in that regard he has relied on the testimony of Vinod Kumar Goyal-PW2 and Dr. S.K. Dutta-PW3. He has contended that PW2 in his statements has stated that Chhinko Bai was accompanied by only one doctor whose name I do not remember whereas PW3 Dr. S.K. Dutta in his deposition has stated that he was called by PW2 in connection with the Will to be executed by Chhinko Devi. On the basis of the aforesaid statements, Mr. Lekhi, learned counsel for the appellant has contended that reasonable suspicion was created before the Trial Court and Trial Court ought not to have granted Probate of the Will.