Surinder Kumar vs Ashok Kumar and Others

Rakesh Kumar Jain, J.—This appeal is directed against the order dated 1.10.1986 passed by the District Judge, Hisar whereby a petition u/s 276 of Indian Succession Act (39 of 1925) (for short ''the Act'') for grant of probate in respect of Will dated 25.4.1975 allegedly executed by Shanti Devi in favour of the appellant was dismissed.

Case set up by the appellant is that Shanti Devi, who was looked after by him in her old age, executed a Will dated 25.4.1975 in his favour in respect of a double storeyed house bearing Municipal No. 89 situated in Dhan Mandi Sri-Ganganagar to the extent of 1/2 share belonging to her together with Rs. 500/ - in cash deposited with M/s. Vijay Medical Store, Hisar. The Will is alleged to have been attested by Sultan Singh s/o Gugan Ram resident of Sri Ganganagar and Inder Singh son of Bishan Singh resident of Village Dhandoor, Tehsil Karan, District Sri Ganganagar. As per the case of the appellant, the Will was produced by him in case appeal No. 22 titled as Surender Kumar v. Roshan Lal in the Court of District Magistrate at Sri Ganganagar and a photocopy thereof, was annexed with the petition. It is stated that Shanti Devi, testator died in village Khola Bari, District Darang (West Bengal) in October 1975 leaving behind her moveable/immovable assets mentioned in the Will. The petition was contested by the respondents. Besides raising preliminary objections that the petition being undated has not been verified in accordance with law, it was alleged that father of the appellant sold the property in question to Shanti Devi vide registered sale deed and himself got inducted as tenant against which respondents Nos. 1 to 3 filed ejectment petition with recovery of rent for the period from 18.3.1976 to 17.5.1983 at Sri Ganganagar and the Probate petition has been got filed by father of the appellant with an object of perpetuating his occupation in the said premises as a tenant. It was also alleged that Shanti Devi had no relation with the appellant rather father of the appellant is the wife''s brother of one of the brothers of Mahadev Parshad who is father of the respondents. It was also pleaded that Shanti Devi had four sons and three daughters and except for Shanker Lal her son, all the remaining three sons and daughters are alive who used to serve her in her life time. The execution of Will by her in favour of the appellant was denied and finally, it was pleaded that Will in question is a forged document which has been set up by the appellant at the behest of his father only with a view to grab the property regarding which they have already claimed inheritance and the story with regard to deposit of Rs. 500/ - with M/s. Vijay Medical Store, Hisar has been coined to confer jurisdiction on the Courts at Hisar. The learned Court below framed the following issues on 14.5.1985:

(i) Whether Smt. Shanti Devi executed a valid Will dated 25.4.1975 in favour of the petitioner in respect of the property in dispute? OPP.

(ii) Whether this Court has no territorial jurisdiction? OPR.

(iii) Whether the present petition has been filed benami in the name of the petitioner by his father Chandu Lal? OPP.

(iv) Whether the petition has not been duly verified if so to what effect? OPR.

(v) Relief.

While deciding issue No. 1, learned Court below came to the conclusion that original Will, which was unregistered, has not been produced on record by the appellant. The entire evidence in this regard was discussed in detail and it was held that there was hardly any ground for receiving the certified copy of the Will as secondary evidence, as it is clearly indicated in the evidence that the Will was forged document having been set up by the appellant at the behest of his father with a view to defeat his adversary in the appeal pending decision in the High Court at Jodhpur.

I have heard Sh. Jaswant Jain, learned Counsel for the appellant and have gone through the record. No one has put in appearance on behalf of the respondents.

Learned Counsel for the appellant could not point out any error in the process of reasoning adopted by the Court below while dismissing the probate application. He could not satisfy the Court as to why original Will was not produced on record nor could persuade the Court for receiving the secondary evidence in this regard as it has already been held by the Court below that the Will in question was a forged document.

After taking the entire circumstances into consideration as mentioned in the judgment of the Court below while deciding issue No. 1, I do not find any error therein and as such, the present appeal is found to be without any merit and the same is hereby dismissed. No costs.