(1.) SMT. Prigya Sharma, defendant-appellant (hereinafter called the appellant) being aggrieved by the judgment and decree dated 18-9- 1985 passed by Sri M. K. Mittal, Ilnd Additional District Judge, Jhansi in Misc. Case No. 51 of 1982 has preferred this first appeal from order for setting aside the said judgment and decree by which respondent no. 1 SMT. Dropti Sharma was granted probate on the basis of the will dated 18-6-1980 executed by Sri Girish Chandra Sharma.
(2.) FACTS in brief are that respondent no. 1 filed an application under section 276 of the Indian Succession Act for the grant of a probate in respect of the estate of Sri Girish Chandra Sharma who had executed a will on 18-6-1980 at Bulandshahr in her favour. Sri Girish Chandra Sharma expired on 7-10-1988 at Jhansi. It was alleged by the respondent no. 1 that, she is the only legatee of the will. The property in respect of which brobate has been prayed for consists of a house and accounts in State Bank of India, Allahabad Bank and Central Bank. To buttress her contention that she is the only legatee a photostat copy of the will has been filed.
(3.) HOWEVER, later Smt. Prigya Sharma, appellant on coming to know of the ex-parte order dated 26-8-1983 filed an application for setting aside the ex-parte order which was allowed and the case was restored to its number for disposal according to law. Appellant Smt. Prigya Devi filed necessary objections on 11-5-1984 against the application filed by respondent no. 1 (Smt. Dropti Sharma) for the grant of the probate in the latter's favour. It was alleged that Sri Girish Chandra Sharma did not execute any will on 18-6- 1980 and the photo copy filed by the respondent no. 1 in the court is fictitious only to frustrate her interest share in the property. It was also alleged that Sri Girish Chandra Sharma on the date when the will is alleged to be executed was not in a fit condition either physically or mentally and could not have as such executed a will. It was also alleged that the said will has not been properly attested. It was further alleged that Sri Girish Chandra Sharma was a permanent resident of Jhansi and there was hardly any occasion for him to go to Bulandshahr for the execution of the will. The attesting witnesses to the will are close friends of the family and respondent no. 1 and have thus become witnesses to the execution of the will being under the influence of the respondent no. 1. It was moreover alleged that at the time when her father (Sri Girish Chanda Sharma) expired, there was no talk with her mother Smt. Dropti Sharma, respondent no. 1 and her other sister Smt Urmila Tiwari in regard to the will. Further more it is alleged that the son of Smt. Urmila Tiwari filed a fictitious vakalatnama on her behalf to show that that she had no objection which resulted in the decision of the case ex-parte. HOWEVER, she gave a notice for the partition of the property which remained unreplied.