AJIT SINGH Vs. STATE & ORS.

JUDGEMENT

(1.) THIS is an appeal filed by the appellant against judgment dated 2nd January, 2009 passed by the learned Additional District Judge dismissing the probate petition of the appellant. Briefly stated the facts of the case are that the appellant and the respondent Nos. 2 and 3 are the sons of Late Sh. Jhandu Singh. Jhandu Singh and his brother namely Hans Ram, who was unmarried were the owners of half share each in respect of various properties and the present dispute is with regard to the Will dated 18.5.1983 purported to have been made by Hans Ram. The appellant herein filed a probate petition in respect of the said Will stating that his father Jhandu Singh expired in the year 1986, wife of Jhandu Singh expired in the year 1997 and Hans Ram, who was living with the appellant died on 14.8.1993. It was alleged by him that on 28.12.98, that is almost after five years from the date of the death of Hans Ram, he opened a box belonging to his mother and found a Will purported to have been executed by Hans Ram on 18.5.83 by virtue of which the deceased testator had bequeathed his one half share in the property bearing No. E -249, Village Munirka, New Delhi consisting of 22 shops known as Rama Market in favour of the appellant.

(2.) THE respondent no. 2 filed his written statement, contesting the claim of the appellant, which was adopted by the respondent no. 3.

(3.) THE appellant in support of his case had filed affidavits of four persons. So far as PW -1 and PW2 were concerned, though their affidavits were filed but they were not made available for the purpose of cross examination, consequently, their evidence was not read, as their testimony was incomplete. The court was left only with the testimony of PW -4/appellant and PW -3/Mangat Singh, one of the attesting witness of the Will. The respondent no. 2 examined himself as RW -1. The issue no. 1 was stated to be not survived and the same was therefore dropped. So far as issue no. 2 is concerned, the trial court came to a finding that the Will which was set up by the appellant was not a genuine Will of the deceased testator. The reason for forming this view by the trial court was multifold. These reasons were; concealment of fact that the appellant had earlier filed a suit for partition; the original Will was not produced, what was produced was only a carbon copy; the appellant claimed that the deceased testator was living with him since 1986 while as the Will is purported to have been executed in 1983. The attesting witness was not able to prove the due execution of the Will in terms of Section 63 of the Indian Succession Act, 1925. In addition to this, the trial court had also observed the peculiar behavior and conduct of the appellant during the course of trial when he came for the purpose of cross examination where he was avoiding answers which constrained the Court to pass adverse observations.