LAXMI RAM Vs. GURU NARAYAN PRASAD

JUDGEMENT

(1.) THIS first appeal has been filed by the objector against the judgment and order dated 6. 9. 1974, passed in a probate case no. 16 of 1968, whereby the two application filed by the respondent for grant of probate was allowed. The respondent Guru Narayan Prasad filed a petition under the provisions of the Indian succession Act, 1925, for grant of probate in respect of the will executed by his father shyam Lai on 18. 2. 1968. The said will was marked as Ext. 1. In order to appreciate the case of the parties, it is relevant to mention here that the executor Shyam Lal had three sons nemely Mohan Lai, Bishwanath Prasad and Guru Narayan Prasad. The deceased shyam Lal executed the will in respect to the property covered therein in favour of the youngest son namely Guru Narayan prasad. Immediately after executing the will the said Shyam Lal died on 19. 2. 1968 and on 22. 4. 1968 the probate case was filed by the respondent for grant of a probate with respect to the properties mentioned therein which was registered as probate case no. 16 of 1968 as stated above.

(2.) ON 25. 2. 1969 a registered deed of relinquishment was executed by the said bishwanath Prasad in favour of respondent guru Narayan Prasad alleging therein that he had no right and interest in the properties covered under the will. It is further alleged that the will executed by his father shyam Lal in favour of Guru Narayan prasad, who is the youngest son of the executor is valid. The said deed of relinquishment was marked as Ext. 3 in the court below. The said Bishwanath Prasad has also filed written statement on 21. 4. 1969 in title Suit no. 264 of 1963 reiterating the averments made in the aforesaid deed of relinquishment. It appears that the said bishwanth Prasad executed the sale deed with respect to certain properties in favour of the sons of the objector appellant. After the probate case was filed and the deed of relinquishment was executed as has been stated above the said Bishwanath Prasad alleged to have executed the sale deed on 23. 6. 1969 in favour of the sons of the appellant. On 18. 6. 1970 the appellant filed the objection in the aforesaid probate case. The objection was also filed by one of the sons of Shyam Lai on 29. 9. 1970 but he has filed a compromise petition in the said probate proceeding whereby he has disclaimed his right title in the property and also accepted the will in question to be genuine and valid one. The other son namely the said Bishwanath Prasad has also filed an application on 23. 8. 1974 in the aforesaid probate proceeding whereby he has accepted the genuineness of the will in question. The appellant has filed the objection as stated above on the ground that some of the properties belonging to the said Late shyam Lal were purchased by his sons through a registered sale deed executed by one of the sons of Late Shyam Lal nemaly bishwanath Prasad in favour of the sons of the appellant. After taking into consideration all the relevant evidence both oral and documentary, the court below has rejected the objections filed by the appellant and held that the will in question, is a valid piece of documents executed by the said Shyam lal in favour of his youngest son particularly taking into consideration the stand taken by the other sons of the Late Shyam Lal in the proceeding. The appellant aggrieved by the judgment and order of the courts below has filed the instant appeal as stated above.

(3.) IN support of this first appeal, Mr. Madan Mohan Prasad, learned counsel appearing on behalf of the appellant has firstly submitted that the court below has wrongly and illegally non-suited the appellant without taking into consideration the relevant evidence, inasmuch as, the evidence of o. W. 6 Krishna Madav who was an attending physician of Late Shyam Lal, the executor of the will. According to the learned counsel the doctor has stated that he was not only treating the deceased Shyam Lal but also attending him every day and has categorically stated that at the time of the death he was delirium. Relying on the evidence of O. W. 6, the doctor, learned counsel submits that the executor Shyam lal was not in a position at the relevant time to execute such will as he was not in sense. The second submission of the learned counsel is that the court below also wrongly rejected the report of hand writing expert Ext. D. According to learned counsel the hand writing expert has clearly stated in his report that the signature appearing on the will does not tally with the signature appended by the executor in the earlier written statement. It is further submitted that o. W. 11 has specifically stated that the will has not been signed by the testator as alleged by the respondents. The last submission of the learned counsel is that schedule-1 property was purchased in the name of the wife of the Shyam Lai out of stridhan property and as such he has no authority to execute the will with respect to the land belonging to the wife.