KEDARNATH Vs. SITARAM

JUDGEMENT

(1.) THIS is an appeal under sec. 299 of the Indian Succession Act by the petitioner Kedar Nath.

(2.) KEDAR Nath field an application in the court of district judge, Jaipur, for grant of probate or letters of administration for the estate of Maliram on the 28th of April, 1952, on the allegations that Maliram died at Jaipur on the 6th of November. 1946, and prior to such death, he executed a will in Jaipur City on the 11th of October, 1944, which was registered on the 11th of January, 1945. The petitioner alleged that Maliram had two sons, one of whom was the petitioner and the other was Sitaram, the will being made in favour of KEDARnath alone. The will marked Ex. P. 2 was produced, and its running translation would be as under : - "i, Maliram, son of Gopi Nath, Khandel-wal, of Jaipur, Chaukari Puranibasti Rasta Govindrajiyan, shop-keeper of groceries in Kishanpol Bazar. Whereas I have two sons Sitaram and KEDAR Nath. Of these my younger son KEDAR Nath was brought up by Mst. Bhuri, widow of Jagannath, from childhood, as she had no son. Bhuri thereafter made KEDARnath his adopted son & performed his marriage, and KEDAR Nath lives in the house property of Jagannath and is in possession of such pro-perty. A partition has already taken place of the ancestral property between myself and my son Sitaram, and both of us are in possession and enjoyment of our separate shares. I am now an old man of 75 years, and cannot say how long I shall live. KEDAR Nath is doing a good service to me, and I am very pleased with him. 1 desire that I should give my property to KEDAR Nath so that he can live happily after me. I, therefore, make this will that after me and my wife, all my immovable property, which has come to me as a result of partition, will vest in KEDAR Nath. He shall have all the rights of ownership, possession and transfer as now vest in me. But so long as my wife is alive, she would have the right to reside in the property, and during that period KEDAR Nath will not have the right to transfer the same. Wherefore this deed of will has been written in sound mind and full senses. Dated 11th October, 1944. Sd/ - itaram in his own pen. Sd/ - Maliram. Witness Badri Narain Jama-dar on being asked by Maliram and Sitaram, in the pen of self. Scribed by Basantlal Sah, Scribe, entered at No. 252, dated 11th October, 1942. "

(3.) THE next question which arises in the case is whether the will has been properly attested. THE will was said to be attested by Sitaram and Badri Narain. THE finding of the lower court is that the signatures purporting to be the signatures of Sitaram were not genuine. THE court should have found that the will was not properly attested, but this finding was not definitely given. THE plaintiff, however, cannot get relief unless the will is proved to have been properly attested.