OM PARAKASH SAHNI Vs. ISHAR DEVI

JUDGEMENT

(1.) Smt.Ishar Devi sought probate of the 'Will' dated 8th May, 1970 executed by her late husband Shri Dhani Ram. On the presentation of probate petition, three of her sons out of six, namely, S/Shri 0m Parkash, Ramesh Kumar and Narinder Kumar filed objections to the grant of probate in favour of their mother. The learned District Judge by the impugned order dated 19th January, 1987 dismissed the objections of her sons thereby holding that late Shri Dhani Ram was not of unsound mind. He was not in mental disturbance at the time of executing the 'Will' in question in favour of his wife. Learned District Judge further held that the execution of such a 'Will' was not unusual because the deceased bequeathed his property in favour of his wife to the exclusion of his sons. Moreover, the sons who filed the objections were well placed and their disinheritance by the deceased had not effected them financially. There may be a reasons for the deceased to disinherit them. That there was no suspicion circumstance appearing in the case which could caste doubt in the genuiness of the 'Will'. Objections with regard to the jurisdiction of the learned Court on the ground that a suit for partition was pending in the High Court was also rejected on the ground that District Judge had exclusive jurisdiction to deal with the probate matter. That the judgement given by the learned District Judge on the probate petition would be a judgment in rem. The court was not deciding the question of title in the property. As regards their objection under Section 281 to the effect that the petition was not properly verified the same was also rejected on the ground that the provision under Section 281 are directory and not mandatory. Reliance in this regard was placed by the learned District Judge on various decisions which have been quoted by him in the impugned judgment. After dismissing the objections the learned District Judge by the impugned order granted the letter of administration in favour of deceased's wife.

(2.) The objectors have felt aggrieved with the impugned order hence preferred this appeal, inter alia, on the grounds that the original 'Will' was not filed with the petition which was a statutory requirement hence the petition was not maintainable. Moreover, late filing of the alleged 'Will' could be an act of forgery which possibility cannot be ruled out. That the respondent smt.Ishar Devi failed to explain the delay in filing the probate petition. Shri Dhani Ram died in January, 1976 whereas probate petition was filed in 1980. Delay of four years remained unexplained. The respondent got the alleged 'Will' registered during the pendency of the probate proceedings. The alleged 'Will' was got registered without producing the attesting witnesses before the Sub- Registrar. Probate petition had not been got verified from the attesting witnesses. Certificate from the attesting witness about the execution of the 'Will' by the deceased and about his mental state of affairs had not been annexed. Signatures of one of the attesting witness Lala Lachman Dass Kohli could not be relied. Witness from the Registrar office had not been produced. Thus, the 'Will' was not properly proved and hence the objections ought to have been accepted.

(3.) At the outset Mr. Ravinder Sethi, Senior Advocate appearing for the respondent Smt.Ishar Devi took preliminary objection regarding the maintainability of the appeal. According to him this appeal stood abetted. To support his argument he referred to the admitted facts on record namely the appellant No. 2 Ramesh Kumar died on 29th January, 1992. No legal heir of late Ramesh Kumar had been brought on record. Hence, the appeal abates against him. Since the judgement in probate is a judgement in rem hence if it abets against one appellant it abets as a whole. Moreover, the two respondents before the Trial Court namely. Mohan Parkash and Basant Kumar i.e. respondents 5 and 6 before the Trial Court have not been impleaded as a party in this appeal. This appeal, therefore, stood barred against them. Since it was a composite judgment in rem and the parties before the Trial Court have not been impleaded as a party in this appeal, therefore, appeal as a whole requires to be dismissed.