KULWANT KAUR Vs. STATE

JUDGEMENT

(1.) This is an appeal filed by the appellants under Order 43 Rule 1 CPC read with Section 299 and 384 of the Indian Succession Act against the judgment dated 27.4.2004 passed in P.C. No.350/2001 titled Kulwant Kaur vs. The State & Others.

(2.) Briefly stated the facts of the case leading to the filing of the present appeal are that one S. Inderjit Singh Loyal (hereinafter referred to as the testator), son of S. Dalip Singh died as a bachelor on 8.4.1992. He had 1/6th undivided share in a building, namely, Dalip Singh Building, Sadar Bazar, Delhi Cantt. According to the appellants, the deceased/testator had executed a registered Will on 18.2.1987 bequeathing his 1/6th undivided share in the aforesaid property in favour of Sardar Iqbal Singh, his nephew, who happened to be the son of the brother of the deceased/testator. The appellant, Kulwant Kaur, mother of the beneficiary was named as executor of the Will. The Will, which was allegedly proved as exhibit PW 2/2, was executed in the presence of two attesting witnesses, namely, S. Ajit Singh Loyal and Dayal Singh. It was also stated that the deceased/testator was in a sound disposing state of mind and accordingly, probate was prayed for.

(3.) The respondent No.5, Joginder Singh, and respondent No.8, Madhu, who were the other relations of the deceased/testator had filed objections to the grant of probate. The respondent No.5 took preliminary objection that the property, which was allegedly bequeathed, was a joint Hindu family property and could not be the subject-matter of the Will executed by the deceased/testator. On merits, it was pleaded that the deceased/testator was having weak mental faculties and was accordingly not a person of sound mind. It was also stated that the deceased/testator had executed a subsequent Will on 3.3.1988, which was also registered with the Sub-Registrar on 27.5.1988 and thereafter, the same was cancelled on 11.10.1988. On the basis of these averments, it was stated that this showed feeble mind of the deceased/testator. It was also alleged that the Will was a product of undue influence as one of the attesting witnesses to the Will was the younger brother of the beneficiary while as the other attesting witness, namely, Dayal Singh, was related to the executor, Kulwant Kaur/ mother of the beneficiary. It was also alleged that the facts averred in the Will were contrary to the facts which were in existence at the time of the execution of the Will. It was stated that the deceased/testator in the Will had stated that the Will was being made by the deceased/testator in favour of the beneficiary, namely, S. Iqbal Singh, as he had served him during his life while as the fact of the matter was that S. Iqbal Singh had gone to France in the year 1983-1984 and remained there till 1995 and there was hardly any occasion for him to look after the deceased/testator.