S. K. Sen, C. J. - (1.) -This special appeal arises out of judgment and order dated 3rd April 1987 passed by the learned single Judge Hon'ble V. K. Mehrotra (as his Lordship then was) granting probate in consequence of Will dated 25th August, 1978.
(2.) BRIEFLY narrated, the facts of the present case are that late Pandit Ram Chandra Sharma (hereinafter referred to as "Pt. Sharma"), an advocate, had married one Smt. Shanti Devi. Out of this wedlock, a daughter, namely, Smt. Snehlata, and a son, namely Pradeep were born in 1941 and 1942 respectively. Smt. Snehlata died in 1946. In 1947, Pt. Sharma remarried Smt. Raj Kumari Sharma. Out of this wedlock, a son, namely, Anil and a daughter, namely, Usha alias Shami were born in 1948 and 1952 respectively. Differences arose between Pt. Sharma and Smt. Raj Kumari Sharma. Latter instituted suit No. 32 of 1959 for custody of children. In the said litigation, Pt. Sharma had sworn an affidavit, wherein he candidly admitted that it was joint Hindu Family. In 1961, a divorce decree was passed. One A. K. Misra, on the death of his first wife, married Snehlata daughter of Pt. Sharma on 19.4.1962. Likewise, Pradeep son of Pt. Sharma married to one Abha Sharma on 6.5.1965. On 7.7.1965, Anil son of Pt. Sharma (from his second wife) died. Thereafter, on account of some family dispute, Pradeep left Moradabad for Delhi in 1965-66. With the passage of time, when Pt. Sharma was left alone and he was feeling loneliness, he created 'Ram Chandra Sharma Educational Trust, Moradabad, (hereinafter referred to as 'the Trust') through a registered deed on 18th November, 1966. This trust was also running an institution, known as Ram Chandra Sharma Balika Vidyalaya. There were eight trustees ; Pradeep and Abha Sharma, children of Pt. Sharma, were two amongst them. In 1968, one Sudama Kulshreshtha was appointed as a teacher of the institution. In April, 1969, Pradeep along with his wife, came back from Delhi. On 3rd August, 1970, Sri R. S. Pathak brother of Pt. Sharma was inducted as a trustee. Pradeep and Abha Sharma were removed from trusteeship. Thereafter, on 7th August, 1970, Pt. Sharma executed a registered Will. Sri R. S. Pathak was one of the attesting witnesses of the said Will. Then, Pt. Sharma served a notice dated 30th October, 1970 on Pradeep to vacate his house. On 6th October, 1971, Sri R. S. Pathak was removed from the trust. On account of the strained relationship between Pt. Sharma and Pradeep, Pt. Sharma had to lodge criminal complaints against Pradeep between 1971-78. On 25.4.1977, a suit was instituted by Pt. Sharma against Pradeep in the Court of Civil Judge, Moradabad, for his eviction from the portion of the house of Pt. Sharma, in his occupation. On August 18, 1978, Pt. Sharma went to Bombay. The case of the respondent in this appeal is that he executed another Will on 25th August, 1978. On the basis of this Will, the respondent in this appeal sought probate in respect of the assets left by late Pt. Sharma. He claimed that he was named as executor of the Will. This Will was subject matter of challenge in Testamentary Suit No. 10 of 1982, which was ultimately decided by the impugned judgment and order dated 3rd April, 1987 of the learned single Judge. Learned single Judge, after going through the entire record of the case, and discussing entire material brought before him, came to the conclusion that the execution of the Will dated 25th August, 1978, was fully established and applicant (respondent herein) was entitled for grant of probate. Feeling aggrieved by this judgment and order dated 3rd April, 1987, the Trust through its Secretary Sri R. S. Pathak has approached this Court by means of instant special appeal. Heard Sri P. K. Mukherjee learned counsel for the appellant and Sri Tarun Agarwal, learned counsel for the legatees.
(3.) SRI P. K. Mukherjee, learned counsel for the appellant vehemently urged that the learned single Judge has erred in law in holding that the execution of the Will dated 25th August, 1978, has been duly proved. According to him, learned single Judge did not take into consideration the vital requirements to prove execution of the Will. Will was non-est on account of the fact that the witnesses and scribe were not produced, in evidence. Moreover, according to SRI Mukherjee, the signatures in the Will were forged. According to him, the learned single Judge miserably failed to consider the suspicious circumstances. That apart, the learned counsel tried to justify that the Will dated 25th August, 1978, was a fraudulent document and the judgment of the learned single Judge deserves to be quashed. Sri Tarun Agarwal vehemently contended that the judgment under appeal passed by the learned single Judge is just, apt and legally sound. The learned single Judge has rightly held that the Will dated 25.8.1978, was the last testament of the testator, namely, Pt. Sharma. That being so, it was genuine-duly and validly executed in a sound disposing state of mind. Pt. Sharma had put his signatures on the testament on his own freewill in the presence of witnesses. Learned single Judge rightly concluded that there were no suspicious circumstances surrounding the execution of the Will. Even otherwise, the suspicious circumstances, if any, as alleged by the Trust-appellant, have been properly explained by the propounder.;