RAJENDRA Vs. GOPINATH

JUDGEMENT

(1.) Present appeal has been filed by the original respondent, in order to challenge the judgment and order passed in Civil Misc. Application No. 77 of 2016, by 2nd Joint Civil Judge (Senior Division), Aurangabad, dated 21-01-2019, whereby the petition filed by the present respondent came to be allowed and the probate granted to the present appellant in MARJI No.77 of 2015, dated 07-06-2015 was revoked. [Parties are referred hereinafter, as per their nomenclature before the trial Court.]

(2.) The facts which are not disputed are that the petitioner and respondent are real brothers. Their father Sadashiv died on 07-03-2009. He was survived by widow, three sons and two daughters. One of the son i.e. Shridhar expired on 16-03-2013. It is further not in dispute, that the suit for partition bearing Regular Civil Suit No. 109 of 1971 was filed. As aforesaid, it is not in dispute, that MARJI no.77 of 2015 was filed by the original respondent - present appellant for grant of probate and it came to be allowed on 07-06-2015.

(3.) With the above said admitted facts, original petitioner - present respondent had come with a case that the original respondent had forged and fabricated will allegedly left by Sadashiv in respect of house properties in his favour. When he had filed MARJI no.77 of 2015, he had not included the petitioner and other heirs left by Sadashiv as party to that proceedings. He had deliberately given proclamation in a newspaper called Anandnagari which has no large circulation in Aurangabad. Because of the said step, petitioner could not come to know about the petition filed for grant of probate and he could not object by appearing in the matter. According to the petitioner, their father Sadashiv was around 95 years of age at the time of his death. It was not possible for him to execute the said will. The will was notarized on the same day before notary; however, alleged signature on the will is not that of his father. Fitness of his father regarding sound state of mind was not attached. Further, he was not residing with the father at the time of his death but was in touch of his father. There was no disclosure by his father regarding will. Therefore, on the ground that the probate has been fraudulently obtained from Court, prayer was made to revoke and set aside the probate.