BITU BHALLA Vs. RAJESH MOHAN BHALLA

JUDGEMENT

(1.) THESE are two appeals filed against the impugned judgment of the Probate Court dated 13.10.2003. By the impugned judgment two petitions were disposed of. The Probate Court allowed the probate petition filed by Sh. Rajesh Mohan Bhalla, who is the respondent no.1 in FAO No.14/2004 and the respondent no.2 in FAO No.17/2004. Besides allowing the probate petition filed by Sh.Rajesh Mohan Bhalla, the impugned judgment dismissed the probate petition which was filed by the appellant in these appeals. Whereas the respondent/Sh. Rajesh Mohan Bhalla had claimed probate with respect to the Will dated 25.2.1986 of his father Sh. Munshi Ram Bhalla, the appellant claimed probate with respect to the Will dated 21.4.1980 of the said Sh. Munshi Ram Bhalla and who was the grandfather of the appellant. The two FAOs contain identical prayers, however basically one appeal is with respect to dismissal of the probate petition as filed by the appellant and the other appeal is with respect to grant of the probate to Sh. Rajesh Mohan Bhalla.

(2.) THE facts of the case are that Sh.Munshi Ram Bhalla was ordinarily a resident of Delhi and he died on 1.5.1986. Sh. Munshi Ram Bhalla was survived by his three sons and three daughters as his legal heirs. Sh. Munshi Ram Bhalla owned the property bearing no. 8 -Jaipur Estate, Nizamuddin East, New Delhi. Sh. Rajesh Mohan Bhalla, respondent no.1 in FAO No. 14/2004 and respondent no.2 in FAO No.17/2004, (herein after referred to as a respondent) filed the probate petition no.192/1986 (old) and 159/2001 (new) claiming probate with respect to the Will dated 25.2.1986 of his father late Sh. Munshi Ram Bhalla pleading that the said Will was the last Will of Sh. Munshi Ram Bhalla, and as per which Will the property at Nizamuddin East was bequeathed exclusively in favour of the respondent. As per this Will dated 25.2.1986 the respondent was to pay a sum of Rs.3,00,000.00 each to his brothers i.e. to the other two sons of Sh. Munshi Ram Bhalla and also certain insignificant amounts to an adopted sister and a servant. This Will is said to have been attested by Sh.Hans Raj Sood, a Chartered Accountant and Dr. Amar Jiwan who was a personal friend of the deceased testator and, who also on occasions attended to the medical requirements of the deceased testator.

(3.) THE Probate Court has held that the Will dated 21.4.1980, Ex. RW1/1, propounded by the appellant is not a valid Will of the deceased testator inasmuch as no attesting witness of the Will was examined and no attempt was made by the appellant to find out the current addresses of either of the two attesting witnesses. It was also held that the scribe of the Will dated 21.4.1980 namely Sh. K. R. Chawla, Advocate was only a scribe and he had no animus attestandi, i.e. an intention to attest the Will. Accordingly, the probate petition filed by the appellant was dismissed. With respect to the Will dated 25.2.1986, Ex.P2, propounded by the respondent, the Probate Court held the same to be validly executed and the last genuine Will of the deceased testator. It was held that both the other sons of the testator had a residential property in Delhi whereas the respondent had no residential property in Delhi thereby giving the reason for the testator to bequeath the property at Nizamuddin in favour of the respondent. It was also held that besides the fact that no details of the fraud and mis-representation were pleaded in the objections, in fact no evidence at all was led with respect to the Will dated 25.2.1986, Ex.P2, as having been executed because of fraud or that the same was a fabrication. It was held that genuineness can be said to be attached to the Will dated 25.2.1986. Ex.P2, inasmuch as the beneficiary, i.e. the respondent was in fact abroad on the date of the execution and attestation of the Will. Credibility was held to exist in the deposition of the attesting witness Dr. Amar Jiwan, who was the friend of the testator for six years.