ROHTAS SINGH Vs. STATE

JUDGEMENT

(1.) This first appeal is filed impugning the judgment of the probate court dated 24.8.2002 by which the probate petition filed by the petitioner has been dismissed. Petitioner/appellant/Sh. Rohtas Singh is one of the sons of the deceased testator Sh. Than Singh, and he seeks probate of the Will dated 6.10.1989 of his father who died at Delhi on 15.1.1991.

(2.) BEFORE the probate court, the appellant/petitioner proved the Will dated 6.10.1989 of late Sh. Than Singh testator as Ex.P1 as per the testimonies of both the attesting witnesses. Both these attesting witnesses deposed to the due execution and attestation of the Will. Both the attesting witnesses to the Will namely Sh. Devender Kumar Sharma, Advocate (PW - 1) and Sh. Naresh Kumar Verma (PW -2) were cross -examined. Nothing material was elicited in the cross -examination as regards the execution and attesting of the Will as also the mental soundness of the deceased testator to execute the Will. Witness from the office of the sub Registrar also appeared as PW -3, and he proved the registration of the Will as document no.3408 in Book no.3, Volume 1017 at pages 128 to 133 on 6.10.1989. PW -5 Ravi Kumar Aggarwal, was the Advocate who had defended the deceased Sh. Than Singh in the suit no.166/1998 filed by Sh. Baljeet Singh - the brother of the wife of one objector Sri Bhagwan/one son of deceased Sh. Than Singh.

(3.) IN my opinion, the trial court has fallen into a clear error in dismissing the probate petition. Before I turn to the reasons given by the probate court for holding that allegedly there are suspicious circumstances for discarding the subject Will, an extremely important aspect needs to be noted is that the mother of the petitioner and the wife of the deceased Sh. Than Singh testator was alive when the probate petition was filed. She was indubitably living with the petitioner not only during the lifetime of her husband Than Singh, but even thereafter when the probate petition was filed. The mother (widow of the testator) thus would be the best person to object if at all there existed suspicious circumstances surrounding the Will. The fact of the matter however is that she did not file any objections to the probate petition. Therefore, the very fact that the widow of the deceased Sh. Than Singh, and the mother of the petitioner as also the respondents/objectors/two sons namely Sri Bhagwan and Sh. Jaswant Singh, did not object to the Will, this aspect is indeed a very strong factor to hold that really there are no suspicious circumstances with respect to the Will Ex.P1 dated 6.10.1989. This most important aspect, the court below has failed to consider.