NALINIBEN L PATEL Vs. JASHODABEN C PATEL

JUDGEMENT

(1.) Plaintiff Naliniben is the daughter of one Laxmandas Maganlal Patel who died in Ahmedabad on 1.3.1976. She filed civil Miscellaneous Application No. 28 of 1977 on 24.12.1976 for obtaining probate of the Will which according to her was executed by the said Laxmandas on 20.10.1971 and 5.12.1971. Laxmandas died leaving behind him his widow named Jiviben, three daughters, named Jashodaben and Kantaben who were original opponents no. 1 and 2 and the applicant Naliniben and two sons named Chimanlal and Jayantilal. Jiviben died on 30.4.1976. Chimanlal died on 28.8.76. Jayantilal is residing in America since many years. Jashodaben and Kantaben resisted the said application for probate and upon caveat being filed the said Miscellaneous Application came to be converted to the present suit being number 2963 of 1978. It was asserted by the applicant that the will was executed in the presence of attesting witnesses named therein and she happened to be beneficiary under the Will in so far as the properties shown in the schedule are concerned. The properties described in the Will were bequeathed to her and Laxmandas appointed Chimanlal as the "Vahivatdar" (Administrator ) of the properties.

(2.) Original opponent no. 1 Jashodaben died during the pendency of the suit but contested the probate application as per her written statement Exh. 26 alleging that Laxmandas never executed such Will as alleged in the petition, that she did not sign the Will as attesting witness and, that the deceased Laxmandas did not have any right or authority to dispose of the properties in question by Will. Opponent no. 2 Kantaben filed written statement Exh. 19 with similar assertions. The learned trial judge framed following issues at Exh. 24.

(3.) This appeal having come up for final hearing has been heard. Learned counsel Mrs. K.A. Mehta submitted that Laxmandas executed the Will in question in sound disposing state of mind after fully understanding the same. In order to make good this submission, she read before this court the evidence as also the observations of the learned trial judge. Mr RN Shah learned advocate for the respondents submitted that upon appreciation of the evidence the finding of the learned trial judge about the execution of the Will in question in sound disposing state of mind by deceased Laxmandas Maganlal Patel would merit acceptance. The submissions essentially arise from the appreciation of the evidence as also the observations of the learned trial judge.