- (1.) This appeal is by special leave against the grant of a probate of the will of Bhim Sain Arora dated February 8, 1961 in favour of his wife Saraswati. The deceased who had lost his first wife on April 14, 1959 had advertised in September 1960 for a wife in the matrimonial column of Sunday Tribune of Ambala. The advertisement is as follows: "A widower renowned merchant, desires to marry accomplished and liberal-minded Punjabi Hindu unmarried or issuless widow from a respectable family of above 30 years of age. Write confidentially to Box No.47170 C/O Tribune, Ambala". The respondent Saraswati, aged 35 years, a Doctor by medical profession who was also on a look-out for a husband replied on October 4, 1960, not in her name but purporting to be in the name of Mrs. Puri - her mother. In this letter a few particulars were called for regarding "the gentleman in question e.g. age, location, percentage, any issue out of first wife, education etc.". She also asked for clarification of "the exact expectation by the words "liberal-minded'. This letter was replied to by one Amalendu Chaudhuri, Personal Assistant to the deceased Bhim Sain on October 11, 1960. This letter was answered by Puri on December 26, 1960. The correspondence shows that both of them were looking for partners who conformed to similar requirements. We shall deal with the purport of the correspondence at the appropriate place, but for the present it is sufficient to say that as a result of this correspondence the respondent Saraswati came to Calcutta with her mother on January 30, 1961 and stayed with her sister and her husband Colonel Harish Chandra Vijh. After perusing the correspondence. Col. Vijh rang up Bhim Sain and invited him to come over to his place. Bhim Sain visited Col. Vigh's place on three successive days, namely, 31st January, 1st February and 2nd February, 1961 and had talks with Saraswati and her family members who were there. On February 2, 1961, Bhim Sain invited Saraswati and her people including Col. Vigh to have tea at his place on February 3, 1961. At that meeting on the tea party on February 3, 1961, Bhim Sain and the respondent agreed to get married on February 7, 1961. Notice under the Special Marriages Act was given to the Registrar, but since the time was not sufficient to fulfil the requirement of that Act, this notice was ante-dated and the marriage took place on February 7, 1961. After the marriage, Saraswati went to stay with her husband. On February 8, 1961, Bhim Sain rang up Col. Vigh and informed him that he would like to go to his place that evening for executing a will and asked him to get a friend to witness it. Accordingly in the evening of February 8, 1961, Bhim Sain went to Col. Vigh's place along with Saraswati. There he met on Nelson Das who was introduced to him as the Purchase Officer of Bridge and Roof Company. After that Bhim Sain took out the draft of a will which he signed in the presence of Col. Vigh and Nelson Das both of whom attested it thereafter.
(2.) After the will was executed Bhim Sain lived with Saraswati for nearly 3 years before his death on January 18, 1964. It may here be mentioned that Bhim Sain had by his first wife four daughters and one son. Of them two daughters were married to persons in affluent circumstances, the third daughter Shanta 22 years old had not been married by the time Bhim Sain got married and the fourth daughter Rita, a minor of 13 years old, was studying in Loreto Convent School at Simla. The son Surendra Pal Arora was not living with his father at that time. Both the Courts have held that the relationship between the son, Shanta and Rita on the one hand and the father on the other were not good so much so that the two daughters were in fact living with their brother Surendra Pal - the first appellant.
(3.) After the death of his father the first appellant Surendra Pal wrote a letter to the respondent Saraswati in which he said that the respondent had mentioned about a will made by his father in her favour regarding which he expressed ignorance and wanted to see it. If there was in fact no will he wanted "an amicable partition of considerable properties and assets" belonging to his father. Thereafter correspondence took place between the solicitors of the parties which ultimately resulted in the respondent filing an application on September 14, 1964, for the issue of a probate testimento-cum-annexo. A caveat had earlier been filed by the first appellant and the matter was contested. Rita, who was then unmarried and living with her maternal uncle Sikri, who was also her guardian ad litem, did not contest the will but she appears to have made in an attempt before the Appellate Court at a late stage to file an appeal. Her application was, however, dismissed.;