VIMAL MISHRA Vs. KRISHNA GOPAL SHARMA

JUDGEMENT

(1.) APPELLANT/non-APPLICANT has filed this appeal against the order dated ; 8-3-2002, passed by III rd Additional District Judge, Shivpuri in Probate Case no. 7/2000. Applicant filed an application for probate under Sections 218 and 254 of the Indian Succession Act. He pleaded that his uncle Chhotelal Sharma executed a "will" on 16-3-1995 and by the aforesaid "will" he had bequeathed admeasuring 1. 89 hectare of land situated at Village Kota, Pargana and District shivpuri in favour of the applicant because the applicant had been living with his uncle. It is an admitted fact that the non-applicant is the daughter of the deceased. Non-applicant resisted the claim of the applicant. She further stated that her father has not executed any "will" in favour of the applicant. The said "will" (Exh. P-l) is a forged one. After considering the evidence on record of the case, the Trial Court granted probate in favour of the applicant by holding that 'will' executed in favour of the applicant is proper.

(2.) LEARNED Senior Counsel on behalf of the appellant/non-applicant has submitted that the Trial Court has committed an error of law in granting probate in favour of the respondent. The "will" is not genuine and the respondent has failed to prove genuineness of the 'will'. In support of his contentions, learned Counsel relied on the following judgments:- (i) Bharpur Singh and others Vs. Shamsher Singh, reported in (2009) 3 SCC 687, (ii) Apoline D'souza Vs. John D'souza, (2007) 7 SCC 91 and 225, (iii) H. Venkatachala Iyengar Vs. B. N. Thimmajamma and others, reported in AIR 1959 SC Pg. 443, (iv) Joseph Antony Lazarus (Dead) by L. Rs. Vs. A. J. Francis, (2006) 9 SCC 515, (v) Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and others, (2006) 13 SCC 433.

(3.) CONTRARY to this, learned Counsel for the respondent has submitted that the Trial Court has considered all the evidence on record and passed proper order. 'will' executed by the deceased is in accordance with law. Hence, probate has rightly been granted in favour of the respondent/applicant. In support of his contentions, learned Counsel relied on the following judgments:- (i) Sridevi and others Vs. Jayaraja Shetty and others, (2005) 2 scc 784, (ii) Pentakota Satyanarayana and others Vs. Pentakota seetharatnam and others, (2005) 8 SCC 67, (iii) Meenakshiammal (Dead) Through L. Rs. and others Vs. Chandrasekaran and another, (2005) 1 SCC 280, (iv) Keshav Prasad s/o Chhotelal and another Vs. Smt. Bhuwani bai and another, 2007 (1) MPLI499.