KRISHAN LAL DILAWARI Vs. STATE

JUDGEMENT

(1.) This first appeal is filed under Section 299 of the Indian Succession Act, 1925 impugning the judgment of the probate court dated 3.11.1993 by which the probate court dismissed the probate petition filed by the petitioner. Petitioner is in no way related to the deceased Asa Singh whose Will dated 8.5.1974 was sought to be got probated.

(2.) The facts of the case are that the appellant/petitioner propounded the Will dated 8.5.1974 of the deceased testator Asa Singh. Asa Singh was the owner and resident of House no.1/455, Gali Rajan Kalan, Kashmere Gate, Delhi. Asa Singh died on 29.9.1975. The Will dated 8.5.1974 which is relied upon is said to have been registered with the sub-Registrar on 9.5.1974 i.e on the next day of the execution. Petitioner claims that though he was not related to the deceased testator, since he took care of deceased testator Asa Singh and his wife Bhagwanti; physically and financially; during their life time, the deceased testator hence treated him like a son and thus bequeathed to him the Kashmere Gate property.

(3.) Initially, before the court below, the probate petition proceeded till the stage of completion of evidence. The widow Smt. Bhagwanti (treated as the sole surviving relative) is alleged to have given no objection with respect to the petition through her lawyer Mr. Nasim Ahmad, and evidence was led of one attesting witness Sh. Madan Lal, PW-1 and the petitioner as PW-2. It was however noticed at this stage that the deceased had also left behind another legal heir being a grand-daughter Smt. Updesh Kaur/Guddi inasmuch as there was a reference of the grand-daughter in the Will itself. Petition was therefore amended and notice was sent to the grand-daughter Smt. Updesh Kaur/Guddi. The grand-daughter did not file any objections but objections were filed by the respondent no.2 herein, and who is the nephew of the deceased testator. It was contended on behalf of the objector that the deceased was about 100 years old at the time of his death i.e about 98 years when the alleged Will was made on 8.5.1974. Objector also stated that the deceased was not in a sound disposing mind at the time of making of the Will and was suffering from various ailments because of the old age. The objector also pleaded that the appellant-petitioner had never taken care of the deceased testator and that the deceased testator and his wife were taken care of by the objector and the grand-daughter Guddi including helping them financially. The propounded Will was stated to be a forged and fabricated Will. The Will was pleaded to be surrounded by unnatural and suspicious circumstances. Objector also pleaded that the deceased could not bequeath the property as it was an ancestral property. It was the case of the objector that the petitioner who was carrying on the business in an adjoining small shop as a tenant of one landlord Sohan, he was in a position to have and thus in fact had obtained the thumb impression of the deceased by playing fraud upon the deceased.