KHUSHAL KANWAR Vs. KAMLA DEVI

JUDGEMENT

(1.) Will dated 28-1-1977 executed by the testator Smt. Anandi Devi wife of Ganeshi Lai, which was registered in the office of Sub-Registrar, Ajmer on 1-2- 1977 was proved. Respondents did raise objection in opposing the cause of the appellant for grant of probate of the Will by pleading that Anandi Bai had no right or title to execute any Will and had not executed any Will on 28-1-1977 nor was she physically and mentally fit to execute the same. There was no plea, however, pertaining to map annexed with the registered Will. The Will has since been held to be a genuine document having been duly executed but for the plan attached with the Will and on that count alone, application made by the appellant herein under Sec. 276 of the Indian Succession Act, for grant of probate of the Will dated 28-1 -1977 has been dismissed by the learned Distt. Judge, Ajmer vide order dated 20-8-1987 which order has since been con firmed on the same very ground by the learned single .judge or this court vide order dated 13-2-1992 recorded in Civil First Appeal No. 48/88. It is against these two orders passed by the learned Distt. Judge and the learned single Judge that the present appeal has been filed u/S. 18 of the Rajasthan High Court Ordinance, 1949.

(2.) Learned counsel appearing for the appellant vehemently contends that once the Will (Ex. 1) has been proved which contained specific portions that were to fall to the shares of three daughters of Anandi Bai and which portions were not at variance with portions that were to fall to the share of three daughters in the plan (Ex. 2) and further that the plan (Ex. 2) attached to the Will was not even questioned, the Courts ought to have held the entire Will to have been duly executed and granted the probate in favour of the appellant. In any case the appellant was entitled to probate of Will (Ex. 1) which the appellant is prepared to have even now and that even though there is no discrepancy in the respective portions allotted to daughters of Anandi Bai in Will (Ex. 1) and one depicted in plan (Ex. 2) the appellant is prepared to have probate as per shares mentioned in the Will (Ex. 1), further contends the learned counsel.

(3.) With a view to appreciate the contentions of the learned counsel, as noted above, it would be necessary to take into consideration facts giving rise to the present appeal.