RUKMINIBAI RAMCHANDRA PAWAR Vs. LAXMANRAO SHANKARRAO SHINDE

JUDGEMENT

(1.) THE present appellants in this second appeal are the legal heirs and representatives of original objector No.2 Smt.Rukminibai Ramchandra Pawar (since deceased) in the probate proceedings under section 270 of the Indian Succession Act, taken out by the present respondent and they have come up in this appeal aggrieved by the judgment and decree passed by the 5th Addl. District Judge, Pune on 20th January, 1995 whereby the said court allowed the appeal and set aside the judgment and decree passed by the Joint Civil Judge, Senior Division, Pune on 6th June, 1992.

(2.) ONE Smt.Sitabai (the testatrix) had executed a Will on 9.9.82 in favour of the respondent Laxmanrao Shankarrao Shinde (Original Applicant) and the said Will was registered before the Registering Authority, Maval The testatrix was issueless and at the time of execution of the Will, her husband was not alive. She was permanently residing at House No.821, Somwar Peth, Talegaon-Dabhade. The property comprising of 2 1/2 acres of land situated at Talegaon-Dabhade bearing Survey No.11/2B and another Survey No.12 was bequeathed by Sitabai in favour of the applicant vide Will dated 9.9.82. After the death of Sitabai on 21.7.86, the applicant made an application u/s.270 of the Indian Succession Act for grant of probate. According to the applicant, the Will dated 9.9.82 executed by the testatrix was the last will and when she was in a sound and disposing state of mind and memory. According to the applicants, after the death of testatrix, the entire property under the Will devolved on him and accordingly, he was entitled to the grant of probate. The case of the applicant in the application was that during lifetime of the testatrix, he was maintaining her and was also cultivating the agricultural land and managing the properties of the deceased testatrix and accordingly, out of love and affection, the testatrix executed her Will in favour of the applicant on 9.9.82. It appears that Smt.Rukminibai as well as Smt.Radhabai who claimed themselves to be relatives of testatrix contested the application of probate made by the applicant and submitted that testatrix has not executed any Will in favour of the applicant and that she was not in a position to execute the will since she suffered from the leprosy and she had no left thumb. Various other objections were raised by the objectors to the application. The Trial court, on the basis of the pleadings of the parties, framed issue and recorded the evidence.

(3.) THE trial court after recording the evidence and after hearing the learned counsel for parties concluded that the applicant has not been able to prove that testatrix Sitabai executed the Will on 9.9.82 while she was sound health and sound mental condition. The trial court also held that applicant was not entitled to grant of probate on the Will dated 9.9.82. In view of these findings, the trial court by judgment and decree dated 6th January, 1992, dismissed the application for probate of Will.