JOSEPH UTARID AND OTHERS Vs. KAMAL SINGH

JUDGEMENT

(1.) THIS appeal, preferred by defendants, under section 96 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 28.10.1998 passed by learned District Judge, Almora, in Original Suit (Probate) No. 2 of 1997, whereby probate has been granted in favour of the plaintiff -respondent with regard to the Will dated 15.11.1980 executed by one Dr. B.C. Singh. Brief facts of the case, are that one Dr. Beny Chandra Singh (Dr. B.C. Singh), S/o. Sardar Hazara Singh, R/o. Capel Cottage, Mall Road, Ranikhet, District Almora executed his last Will dated 15.11.1980 in favour of the plaintiff and one Shyam Singh. The said Will is a registered document. The testator died on 30.11.1985 i.e. after about five years, in civil hospital Ranikhet. According to the Will, Kamal Singh (plaintiff) and Shyam Singh S/o. Amar Singh, are the beneficiaries in equal share in the property of the deceased. They were living with the deceased for more than six years before his death and due to love and affection the testator executed the Will in their favour. It was also pleaded by the plaintiff that the testator used to live as an owner in Capel Cottage, Ranikhet, District Almora, which is situated in survey number 199 of Cantonment Board, Ranikhet. It was further pleaded in the plaint that Dr. B.C. Singh died issueless. His sister -in -law, Ida Utarid lives in Pakistan and his younger brother K.C. Singh resides in Barma. The movable and immovable property left by the testator are mentioned in Schedule 'A' of the plaint, while the liabilities and expenses are mentioned in Schedule 'B' of the plaint. With the aforesaid allegations, application for grant of probate under section 222 read with section 270 of the Indian Succession Act, 1925, was moved on 19.6.1986 by Executor, Kamal Singh (plaintiff -respondent), against which objections were raised and the said case was converted into a regular suit No. 2 of 1997 in view of the objections raised by the defendants -objector. Defendant -objectors, Mr. Joseph Utarid S/o. Mr. J.M. Utarid challenged the Will on the ground that the Will in question is a fictitious document, which has been fabricated. It was further alleged by the defendants -objector that Dr. B.C. Singh was not in a sound state, mentally and physically, at the time of the alleged execution of Will. Apart from this, it was also alleged that he had no right to execute the Will in respect of the entire property, as he was not the sole owner of the property in question. It was also pleaded by the defendant -appellants that litigation in respect of the property in question with the defendants was already pending before the High Court and the liabilities shown in the Schedule are also false. The defendant -appellants further pleaded before the Trial Court that the deceased has orally gifted the property to Mr. J.M. Utarid, father of the defendant -appellant. The defendant has alleged to be related with Dr. (Mrs.) Stella L. Singh W/o. Dr. B.C. Singh) who was owner of 1/2 share in Capel Cottage as under:

(2.) LEARNED Trial Court on the basis of the pleadings of the parties, framed following issues: - -

(3.) WHETHER , the alleged Will dated 15.11.1980 is fictitious, forged and is not a genuine Will, as alleged?