SHIV SHANKAR GUPTA Vs. GAURI SHANKAR GUPTA

JUDGEMENT

(1.) At the time of hearing argument, learned counsel for the appellant pointed out legal defects going to root of the proceeding having been conducted before the learned lower Court invalidating the proceeding having been conducted before the learned lower Court whereupon learned counsel for the respondents has also been heard and the respective counsels are of the view that those deficiencies are sufficient to undo the finding recorded by the learned Court below, on account thereof, detail discussion on merit of the case is being forbidden.

(2.) Instant appeal has been filed in terms of Sec. 299 of the Indian Succession Act against the judgment dated 18.04.2012 passed by the Additional Sessions Judge-3rd, Patna in Probate Case No.20 of 2008 whereby and where under the learned lower Court had allowed the petition and further, directed to issue probate with regard to a Will dated 18.08.2007 executed by one Birendra Kumar Gupta.

(3.) As is evident from the pleading, it is evident that after the death of Birendra Kumar Gupta on 03.01.2008, learned counsel Sri R. P. Gupta transmitted the Will in question dated 18.08.2007 under registered cover which the propounder of the Will had received and after going through the same, he found that the Will was executed in favour of his three brothers excluding one Shiv Shankar Gupta (appellant). It has also been pleaded that the Will was executed by the testator, Birendra Kumar Gupta voluntarily, under his freewill, having duly acknowledged with its recital in sound, physical as well as mental condition and further, was capable to execute the same. It has also been pleaded that aforesaid Birendra Kumar Gupta, testator had shown his inclination to Mr. R.P. Gupta, learned advocate, who scribed the Will in presence of witnesses whereupon Birendra Kumar Gupta had put his signature in presence of witnesses and in likewise manner, witnesses had also put their signatures. It has also been pleaded that testator, Birendra Kumar Gupta had sworn an affidavit on 21.08.2007 in proof of last Will dated 18.08.2007 and handed it over to learned counsel Mr. R.P. Gupta, who had transmitted the same after his death. Then after dealing the property, value and further, completing other paraphernalia filed petition for grant of probate as in terms of propounder, he was shown to be executor of the Will. Furthermore, in Para-12 of the petition, had detailed the heirs having interest with the property of Birendra Kumar Gupta. After citation, the proceeding sailed after appearance of other brothers, evidences were recorded, documents were exhibited and lastly, by the order impugned, the learned lower Court found the Will to be genuine and accordingly, directed to issue probate.