MOHD. BASHI Vs. STATE AND ORS.

JUDGEMENT

(1.) THIS is an appeal filed by the appellant under Section 299 of the Indian Succession Act against the order dated 8.2.2012 by virtue of which the learned District Judge, North, dismissed the probate petition bearing No. 115/2008 filed by the appellant for lack of evidence to have proved the Will dated 24.5.2001 to be last and final Will of the deceased/testatrix Akhtari Begum. I have heard the learned counsel for the appellant. The only contention of the learned counsel for the appellant for entertaining this appeal has been that the appellant be given one opportunity to produce the attesting witnesses.

(2.) BRIEFLY stated the facts of the case are that the present appellant filed a petition under Section 276 of the Indian Succession Act seeking probate/Letters of Administration in respect of the Will dated 24.5.2001 purported to have been made by one Mst. Akhtari Begum (since deceased/testatrix). In the Will it was allegedly stated that the land measuring 39 bighas 13 biswas bearing khasra Nos. 487/439/53/1, 487/439/1/1 and 487/439/53/1/2 situated in the area of village Sheikh Sarai, Tehsil Mehrauli, New Delhi was bequeathed by her in favour of the appellant. The appellant had claimed to have purchased the said land on the basis of the agreement to sell, receipt, affidavit, general power of attorney, etc. and further got the Will in question executed in his favour. It was alleged in the probate petition that in the month of June, 2008, the appellant had applied before the Tehsildar, Sub -Division Mehrauli for mutation of his name in the revenue record on the basis of the said documents along with 'no objection' whereas the mutation was resisted by respondent No. 2, the son of the testatrix. It was also alleged that respondent No. 2, the son of the testatrix had also entered into an agreement to sell with the appellant herein on 28.12.2006. The case of the appellant was that the testatrix had died after making the Will which was objected to by the sons of the testatrix. On the pleadings of the parties, following issues were framed: -

(3.) THE appellant in support of his case, examined PW -1, Vijay Kumar Rawat, UDC, Sub -Registrar IV, Seelampur, Nand Nagri. Despite sufficient opportunities having been given, the appellant did not produce any other evidence. No attesting witness has been examined which is one of the essential requirements of proving a Will in case the attesting witnesses are alive. The learned trial court after giving sufficient number of opportunities closed the evidence and decided all the issues against the appellant and dismissed the probate petition (PC -115/2008) on 8.2.2012.