SHRIMATHI UTTAMI Vs. SHRI RAM DASS AND ORS.

JUDGEMENT

(1.) This first appeal arises out of an order of the learned District Judge, Mandi, whereby he has granted probate of a will dated 9 -5 -1961 executed by the late Shri H.M. Banon. The executor specified in the will was Shri Ram Dass, Advocate, and he filed his application before the learned District Judge and prayed for the probate with the obvious intention of distributing the assets of the deceased in accordance with the terms and conditions laid down in the will. Accordingly, notices were issued to the members of the public, and also to the beneficiaries including Smt. Uttami, stated to be a mistress of late Banon. The objections were filed by Smt. Uttami and she stated that the deceased Shri Banon was more than 80 years old when he executed the will. He did not possess sound disposing mind owing to his longstanding illness and as such he was not in a fit state of health to execute the will. Uttami herself claimed to be a wife of the deceased who, according to her, was a Hindu although bom as Christian. The first wife was Smt. Bassi who too is a beneficiary under the will. According to Uttami the will is unnatural because under the marriage contract entered into by Banon with her, she was to receive one half of the properties. Instead, she was granted only a house to live and some annuity for maintenance. Besides that, the other nearest heirs of Banon, namely, his brothers and nephews were not given any share in the properties. It was also contended that Ruldu Ram, his servant, got the major share which was again an unnatural feature of the will.

(2.) Upon the pleadings of the parties the learned Additional District Judge framed several issues containing the pleas as to the proper execution and attestation of the will, the total value of the assets left by the deceased, the question regarding payment of court fee and the fair disposing mind which the deceased possessed at the time he executed the will. His findings on all these issues have been in favour of the Petitioner Shri Ram Dass, executor of the will. Smt. Uttami has felt aggrieved of the decision and has preferred this first appeal in this Court.

(3.) Formerly, this first appeal came for consideration before a learned single Judge of Delhi High Court, Tatachari, J. but he remanded the case because according to his decision Uttami was not permitted to set up her marriage contract under which Banon had promised to give her one half of the properties. In the opinion of the learned Judge that marriage contract was required to be considered in order to assess the merit of the will and for this reason the order of the learned District Judge was set aside and the case was remanded for re -consideration and fresh decision. Accordingly, opportunity was given to Uttami to prove the marriage deed, Ex. R.R.W. -2 -A. The learned Additional District Judge, Mandi, after considering the marriage deed has again granted the petition for probate and Uttami has accordingly filed this first appeal.