HAZARA SINGH DEAD Vs. KASHMIR KAUR

JUDGEMENT

(1.) This appeal is directed against the judgment dated 11.3.1985 of a learned Single Judge of this Court, allowing F.A.O. No. 9 of 1982 and dismissing the application for grant of probate, filed by the appellant/Hazara Singh. A few relevant facts may be noticed as under:

(2.) Ishar Singh is alleged to have executed a will dated 3.10.1964 in favour of appellant Hazard Singh, son of Jagat Singh, resident of Kalanaur Tehsil Batala, District Gurdaspur. Upon the death of Ishar Singh which took place on 8.12. 1967, Hazara Singh applied for grant of probate, based on the said will, in the Court of the District Judge, Gurdaspur. Budha Singh (since deceased, husband of Kashmir Kaur and father of Surjeet Singh, Balbir Singh and Amarjit Kaur, was made respondent besides the General Public. Budha Singh did not appear despite service of summons and as such, he was ordered to be proceeded ex parte. The learned District Judge passed an order for grant of probate to Hazara Singh vide ex parte order dated 18.12.1969, on the basis of which probate was grated on 1.4.1970, after the requisite court-fee/stamp papers were submitted. Budha Singh learnt about the grant of probate in favour of Hazara Singh. He applied on 5.10.1971 for revocation of the probate Under Section 263 of the Indian Succession Act, 1925 (for short to be referred as "the act, 1925"). The District Judge dismissed the said application and his order was assailed in appeal before this Court. The appeal was allowed and the ex parte order granting probate was set aside. The matter was remanded for decision afresh after affording a reasonable opportunity to Budha Singh to prosecute his objection and lead evidence in support thereof. After remand of the case, Budha Singh was afforded opportunity to defend and lead evidence. The witnesses were examined by Hazara Singh and they were subjected to cross-examined by Budha Singh. The learned. District Judge after appraising the evidence granted probate vide order dated 19.12.1981 to Hazara Singh after recording the finding that the execution of the will was duly proved. He also held that Hazara Singh was proved to be the son of the sister of Ishar Singh deceased, the testator. It was also found that Hazara Singh had been residing with the testator Ishar Singh till his last rites. After the death of Budha Singh his legal representatives, named above, filed the (F.A.O. No. 9 of 1982) in this Court. The sons and daughters of late Budha Singh being minors were represented by their mother-cum-guardian ad litem Mst. Kashmir Kaur. The learned Single Judge after appraising the evidence on record and examining the will (Exhibit P1) held that the due execution and attestation of the will was not proved. He also held that it was not proved that Hazara Singh was the son of the sister Ishri Devi of the testator Ishar Singh deceased. He left this matter open to be gone into in the non-testamentary succession proceedings. He also left the matter regarding the relationship of late Budha Singh with the testator Ishar Singh to be decided in non-testamentary proceedings, as and when filed by either side. The appeal was allowed and the impugned order granting probate was set aside and application for grant of probate was dismissed.

(3.) Feeling aggrieved against the dismissal of the application for grant of probate, Hazara Singh (appellant) has filed this appeal.