SARLA JAIN Vs. STATE

JUDGEMENT

(1.) The appellant who is the beneficiary under the Will dated 5/10/1987 alleged to have been executed by Late Sh. S.L. Jain, her father-in-law in her favour is aggrieved of the judgment and order passed by the then learned Additional District Judge (as he then was) dated 2/8/2005, whereby the probate petition filed by the appellant seeking grant of probate in respect of the Will dated 05.10.1987 of her father-in-law has been dismissed, by holding that the Will, exhibit PW- 2/1 propounded by the appellant was not a genuine Will and that the said Will by no means can be said to have been executed by the deceased voluntarily of his own free will after understanding the nature of disposition contained therein. With these observations, the issue No.1 framed in that case was decided against appellant and in favour of the Objector and accordingly, the petition was dismissed.

(2.) Briefly stating the facts giving rise to the filing of this appeal are that the appellant filed a probate petition on 27.06.1994 for the grant of probate of the Will dated 05.10.1987 allegedly executed by father-in- law. It is a matter of record that her father-in-law expired just after 20 days of the execution of the Will i.e. on 27.10.1987 leaving behind his widow Smt. Rajwati, 4 sons and 4 daughters. Smt. Rajwati also expired on 11.06.1994 before filing of the probate petition. The legal heirs were arrayed as respondents No.2 to 9 in the original petition. Sh. Jinender Kumar Jain one of the other legal heirs of the deceased also expired during the pendency of these proceedings and thereafter he was substituted by his widow and two sons. After citation of the probate petition was got published, respondents No.8 to 11 in the original petition being daughters of the testator filed their no objection. Nobody appeared for respondents No.2 and 3 despite service and thus, they were proceeded ex parte.

(3.) The objections against Will in question were filed only by one of the four sons of the deceased, namely, Sh.B.M. Jain who was arrayed as respondent No.4 in the probate petition. It was his allegations that the Will propounded by the appellant was a forged and fabricated document. The testator was mentally ill for about one year prior to his death and was not able to understand, write or even talk on the date on which the Will is stated to have been executed by him. In his objections, the said respondent also stated regarding circumstances which, according to him, created suspicion on the genuineness of the Will in question inasmuch as he also stated that the appellant has failed to explain as to why he got the Will in question registered on 20.04.1989 i.e. after about one year and 7 months of the death of the deceased testator. It was alleged that the manner in which signature of the testator appeared on the Will, only goes to show that as if signatures of the testator was procured by the petitioner on a blank paper which was later on misused by her. It was also stated that the non-mentioning of the Will in question in a legal notice dated 14.07.1992 sent by her and in the agreement dated 29.12.1989 or even in the Suit bearing No.400/1992 filed by the wife of respondent No.2, namely, Smt. Bimla Jain, also creates a mystery and causes serious doubt about the circumstances executing the alleged Will and thus, it was contended that the Will in question was surrounded by suspicious circumstances and was not a genuine Will and, therefore, the petition filed by her should be dismissed.