GULSHAN KUMAR ANAND Vs. PESHORI LAL ANAND

JUDGEMENT

(1.) The appellants are the real brothers. Two Probate Petitions were filed invoking original jurisdiction of this Court. One was by the respondent herein, namely, Sh.Peshori Lal on the basis of Will dated 11.12.1968 executed by their mother late Smt.Lakshmi Devi. The second petition was filed by the appellant herein on the basis of Will executed by their father on 28.11.1978. Subject- matter of both the Wills is the same properties bequeathed by both of them. It is not in dispute that Smt.Lakshmi Devi was the absolute owner of the properties bequeathed by her. The Will dated 28.11.1978 written by the parties' father is on the premise that after the death of his wife Smt.Lakshmi Devi, he became the absolute owner of the properties in question as stipulated in para-5 of the Will of Smt.Lakshmi Devi. There is no dispute about the execution of Will dated 11.12.1968 executed by Smt.Lakshmi Devi. In any case, the respondent herein has proved the Will by leading appropriate evidence.

(2.) In fact, there is no serious dispute about the factum of the Will dated 28.11.1978 executed by Sh.Boota Mal, father of the parties. The entire dispute is as to whether he had right to execute the said Will. It is because of the reason that whereas the assertion of the appellant was that their mother Smt.Lakshmi Devi in her Will had made the bequeath in favour of her husband who became absolute owner thereof after her death and therefore, had right to make further bequeath as owner thereof, contention of the respondent is that by Will dated 11.12.1968 Smt. Lakshmi Devi conferred only life interest in favour of Sh.Boota Mal with further stipulation that after his death the properties had to be devolved upon his sons in the manner stipulated in para-6. Therefore, Sh. Boota Mal could not have made disposition of the said properties by writing the Will dated 28.11.1978.

(3.) The learned Single Judge of this Court vide judgment dated 23.4.1985 granted probate in favour of the respondent Sh.Peshori Lal in respect of Will dated 11.12.1968 executed by Smt.Lakshmi Devi. At the same time, he refused to grant probate in respect of Will dated 28.11.1978 executed by Sh.Boota Mal holding that in the Will of Smt.Lakshmi Devi only life interest was created in favour of Sh.Boota Mal and after his death, the property in his hand had to go to two sons, viz., the appellant and the respondent herein, in shares as mentioned in para-6 of the Will of Smt.Lakshmi Devi. This judgment was taken in appeal. The Division Bench, vide orders dated 11.12.1985, allowed the appeal and set aside the judgment dated 23.4.1985 rendered by the learned Single Judge, inter alia, observing that the Probate Court is only concerned with the decision whether the Will is valid. Even if in the trial, Will executed by Sh.Boota Mal is proved and Letter of Administration granted, it would still remain to be seen whether the person concerned gets an estate or not for which the terminative factor would be as to whether Sh.Boota Mal had only a life interest in the property in question. However, such a question could be decided only in a regular civil suit, which was already pending, noted the Division Bench. After the matter was remitted back to the learned Single Judge with the aforesaid observations, the learned Single Judge has decided both the Probate Petitions afresh vide his judgment dated 5.11.2001, albeit, with the same results, namely, granting probate in respect of the Will of Smt. Lakshmi Devi and dismissing the other Probate Petition filed by the appellant herein seeking Letter of Administration on the basis of Will executed by Sh.Boota Mal, on the ground that he had neither any authority nor any locus to bequeath the property in question. A perusal of the impugned judgment of the learned Single Judge would show that he has gone into the same exercise again, namely, interpreted paras 5 and 6 of the Will of Smt.Lakshmi Devi and on that basis concluded that Sh.Boota Mal was given life interest in the estate left by Smt.Lakshmi Devi, which was to be devolved upon the two sons after the death of Sh.Boota Mal in the manner mentioned in para-6 of the said Will and therefore, Sh.Boota Mal could not have bequeathed the properties in question in the manner he liked since he was only given life interest. Interestingly, the learned Single Judge noted the Division Bench order dated 11.12.1985 whereby the earlier judgment dated 23.4.1985 was set aside. The following extract is specifically reproduced in the impugned judgment:-