DEEPAK KUMAR MENDIRATTA Vs. SURENDER KUMAR

JUDGEMENT

(1.) The appellant is aggrieved by the impugned order dated 18.01.2010 vide which the probate petition No.44/1990 filed by the appellant seeking probate of the will dated 30.5.1985 of the testator Tehl Ram Tuteja (hereinafter referred to as "the testator") had been dismissed; simultaneously probate petition No.5/1989 filed by the respondent seeking probate of the will dated 29.1.1988 had been granted.

(2.) Record shows that the testator had three daughters; he had no male child. The subject matter of the probate petition was half undivided share in immovable property i.e. Plot No.A-294, Derawal Nagar, Azad Pur, Delhi admeasuring 268.22 yq. yards which was in the joint names of the testator and the respondent (Surender Kumar). It was a joint allotment which was made in their joint names on 11.7.1978 and a joint construction was accordingly made by them on the aforenoted plot; till the date of the death of the testator this property had not been mutated in their individual names. Besides this property, certain movable assets of the testator were also the subject matter of the dispute.

(3.) Appellant had set up a will dated 30.5.1985. This document was proved as Ex. R-1; it was a registered document. Vide this testament the testator had bequeathed his immovable property upon his youngest daughter Sudesh Kumari and her two sons Devender Kumar and Deepak Kumar in equal shares; Sudesh Kumari and Devender Kumar have since expired; Deepak Kumar is the appellant before this Court. This will was attested by two witnesses and was signed by the testator both in the english language and also in urdu.