KHEM CHAND Vs. STATE

JUDGEMENT

(1.) The appellants before me are, one son and two daughters of Smt. Bholi Devi, while respondents No.2 & 3 are her two other sons. Smt. Bholi Devi, who shall hereinafter be referred to as the "testatrix", died on February 19, 1996 leaving behind her aforesaid three sons and two daughters besides a step-daughter from her husband's first wife. She also left behind a registered "Will" dated December 04, 1991 and thereby she bequeathed a double-storey house built on a plot area of 100 Sq. Yards bearing No.WZ-39, Mukh Ram Park Extension, Tilak Nagar, New Delhi in favour of respondents No.2 & 3 to the exclusion of the appellants and her step-daughter. The respondents applied for probate/Letters of Administration of the "Will" under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as the "Act") in the Court of the District Judge which was opposed by the appellants, in the first place, on the ground that the application for probate itself was not maintainable, as it was not verified by one of the attesting witnesses to the "Will" as per the requirement of Section 281 of the Act. And as regards the "Will" in question, the appellants sought to rubbish the same on the following grounds:-

(2.) It is this judgment of July 21, 2005 which is the subject matter of the present appeal.

(3.) Let me begin with the objection that the probate petition itself was not maintainable, as it was not verified by an attesting witness in terms of Section 281 of the Act which requires that: "where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely"?